Opinion
Appeal No. 14988 Index No. 652432/20Case No. 2020-04920
01-06-2022
Quad Capital Portfolio A LLC et al., Plaintiffs-Appellants, v. AbbVie Inc., Defendant-Respondent. Appeal No. 14988 No. 2020-04920
Glancy Prongay & Murray LLP, New York (Garth Spencer of counsel), for appellants. Goldman Ismail Tomaselli Brennan & Baum LLP, Chicago, IL (Andrew Rima of the bar of the State of Illinois, admitted pro hac vice, of counsel), for respondent.
Glancy Prongay & Murray LLP, New York (Garth Spencer of counsel), for appellants.
Goldman Ismail Tomaselli Brennan & Baum LLP, Chicago, IL (Andrew Rima of the bar of the State of Illinois, admitted pro hac vice, of counsel), for respondent.
Before: Kern, J.P., Mazzarelli, Gesmer, González, Higgitt, JJ.
Order, Supreme Court, New York County (Andrea Masley, J.), entered November 20, 2020, which granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
The complaint was correctly dismissed for lack of personal jurisdiction over defendant. Personal jurisdiction cannot be obtained pursuant to CPLR 302(a)(1), because there is an insufficient relationship between defendant's activities within the state, which include the negotiation, promotion, and execution of a merger agreement with nonparty Shire plc, the retention of New York bankers and lawyers to assist with those activities, and the selection of New York law or forums in several related agreements, and plaintiffs' fraudulent misrepresentation and concealment claims, which concern public statements that were made outside New York about defendant's reasons for pursuing the Shire merger (see SPCA of Upstate N.Y., Inc. v American Working Collie Assn., 18 N.Y.3d 400, 404-405 [2012]; Copp v Ramirez, 62 A.D.3d 23, 29-30 [1st Dept 2009], lv denied 12 N.Y.3d 711 [2009]) and do not concern the merger agreement itself (see Pichardo v Zayas, 122 A.D.3d 699, 701 [2d Dept 2014], lv denied 26 N.Y.3d 905 [2015]).
Personal jurisdiction could also not be established pursuant to CPLR 302(a)(3), because, "[i]n the context of a commercial tort, where the damage is solely economic, the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred" (CRT Invs., Ltd. v BDO Seidman, LLP, 85 A.D.3d 470, 471-472 [1st Dept 2011]). The "original critical events" were the making of the misrepresentations at issue (in Illinois), not the purchase of shares in reliance thereon (in New York).
Because we find no basis for jurisdiction under New York's long-arm statute, we need not reach plaintiffs' arguments with respect to due process, res judicata, or the first-in-time rule.