IN THIS ISSUE / Obtaining Evidence in the U.S. for Use in Foreign Proceedings 1–3 / Ohio Federal Court Upholds ICDR Arbitration Award in Favor of Chinese Party 4–5 / Avoiding Unenforceable Liquidated Damages Clauses 6–7 / 2017 Resolutions: What Every Company Can Do Now to Help Prevent Litigation Headaches 8 / Justice Pigott Returns to the New York Supreme Court 9 / Spotlight 9–11 ■ Attorney Advertising Beyond Dispute A BUSINESS LITIGATION REPORT FROM PHILLIPS LYTLE MAY 2017 Continued on page 2 Obtaining Evidence in the U.S. for Use in Foreign Proceedings A company involved in a foreign litigation or other legal proceeding—or considering bringing a foreign proceeding—can use a powerful federal tool to obtain evidence in aid of that proceeding, including documents and deposition testimony, from parties located in the United States: 28 U.S.C. § 1782. 2 Under Section 1782, “any interested person” may apply, ex parte, to the federal district court “in which a person resides or is found” for an order to produce documents or provide testimony “for use in a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a). The district court has discretion whether to grant the application and will look to four factors: (i) whether the person from whom discovery is sought is participating in the foreign proceeding; (ii) the nature of the foreign tribunal and its receptiveness to U.S. judicial assistance; (iii) whether the request conceals an attempt to circumvent foreign proof-gathering restrictions; and (iv) whether the request is unduly intrusive or burdensome. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004). Section 1782 has expansive reach and should be considered by any company involved in litigation or other proceeding outside of the U.S. NOT LIMITED TO PARTIES IN LITIGATION Section 1782 is applicable to proceedings in any foreign “tribunal,” including traditional civil, commercial, criminal and administrative courts. It also applies to “investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies,” Intel Corp., 542 U.S. at 258, although there is some disagreement amongst the courts as “Obtaining Evidence in the U.S. for Use in Foreign Proceedings” continued from front cover E-Newsletter Sign-up & Staying In the Know Different people have different preferences in communication styles. Therefore, Phillips Lytle offers this newsletter in an electronic format as well as the printed version. To start receiving Beyond Dispute, other practice area newsletters, or periodic updates and alerts via e-mail, visit our website at www.phillipslytle.com and click on “E-publication Sign-up” under the Publications menu. Here you’ll also find various articles of interest. Phillips Lytle attorneys follow the latest trends and developments impacting the industries in which they are involved. We invite you to check out our Thought Leadership videos at www.phillipslytle.com/ThoughtLeadership.aspx. 3 “Obtaining Evidence in the U.S. for Use in Foreign Proceedings” continued from front cover to whether it applies to private international arbitrations. Moreover, Section 1782 is available not only to a party in a foreign proceeding, but any person with significant “participation rights” in the proceeding that possesses a “reasonable interest in obtaining [judicial] assistance.” Id. at 256 (alteration in original) (citation omitted). INCLUDES REASONABLY CONTEMPLATED PROCEEDINGS Discovery under Section 1782 is not limited to ongoing proceedings, or even to proceedings that are pending or imminent. The proceeding only needs to be “within reasonable contemplation” at the time of the application. Id. at 259. Two recent Second Circuit cases have addressed this point. In Mees v. Buiter, the Court held that, as long as the proceeding is “within reasonable contemplation,” the discovery sought does not need to be “necessary … to succeed in the foreign proceeding” and it does not need to “be sought for the purpose of commencing a foreign proceeding.” 793 F.3d 291, 295 (2d Cir. 2015). However, in Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, L.L.P., the Court warned that the proceeding “cannot be merely speculative” and an applicant must show some “concrete basis” that “the contemplated proceeding is more than just a twinkle in counsel’s eye.” 798 F.3d 113, 124 (2d Cir. 2015). NO EXHAUSTION OR DISCOVERABILITY REQUIREMENTS In order to grant an application under Section 1782, the district court does not need to determine whether the evidence would be discoverable in the foreign proceeding or will ultimately be admissible in that foreign tribunal. See Intel, 542 U.S. at 260-63. There is also no requirement that the interested party first attempt to obtain discovery in the foreign proceeding. See Mees, 793 F.3d at 303. EXPANSIVE U.S. DISCOVERY As opposed to foreign or international tribunals, which often provide for narrow discovery and limit the procedures for gathering evidence, the discovery permitted under Section 1782 is relatively broad and operates under the Federal Rules of Civil Procedure. As a result, an applicant may be able to obtain documents and testimony from parties in the U.S. that it could not obtain if those parties were located elsewhere. GLOBAL LITIGATION STRATEGY Given the scope of available discovery under Section 1782, companies involved in foreign litigation should consider seeking discovery of any relevant third parties in the U.S. In addition to potential witnesses, these third parties include financial institutions, subsidiaries or affiliates located in the U.S. If your company is involved in foreign litigation, the Business Litigation Team at Phillips Lytle can assist in developing and implementing a global litigation strategy. For more information on obtaining evidence in the U.S. for use in foreign proceedings, contact Phillips Lytle Business Litigation Associate Jeffrey D. Coren at (716) 847-7024 or firstname.lastname@example.org. n 4 Ohio Federal Court Upholds ICDR Arbitration Award in Favor of Chinese Party Recently, the U.S. District Court for the Southern District of Ohio denied a Minnesota company’s motion to vacate or modify a U.S. $1.3 million arbitration award from the International Centre for Dispute Resolution® (“ICDR”) and confirmed the award in favor of the Chinese company claimant. The case illustrates the benefits of international arbitration and serves as a reminder of the limited grounds on which an award can be vacated under the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards1 (the “New York Convention”) and the Federal Arbitration Act2 (the “FAA”), which adopts and implements the New York Convention.3 Petitioner, G&K Services LUG, LLC (“LUG”) sought to vacate or modify the ICDR award in favor of Talent Creation, Ltd. (“Talent”), a Chinese corporation.4 LUG alleged the arbitrator exceeded her authority under the FAA and the New York Convention and “manifestly disregarded [Ohio] law in issuing the Award[,] … by ruling on a claim that [Talent] did not assert in its Demand for Arbitration, and in fact never asserted until after the evidentiary hearing[,]” and by refusing to enforce Ohio’s 4-year statute of limitations and “Ohio law on laches.”5 LUG argued, inter alia, that Talent’s Notice of Arbitration did not include a claim for liquidated damages.6 LUG further asserted that because the claim was raised only in Talent’s “post-hearing brief, without obtaining LUG’s consent to arbitrate the issue and without amending or supplementing its initial arbitration notice[,]” Talent violated the ICDR rules.7 LUG requested the Court vacate the award, or alternatively, “modify the award to remove the $400,000 in liquidated damages awarded.”8 The 15-page final award from the ICDR arbitration and the underlying International Supply Agreement, which contained the arbitration provision, were attached to the Petition as exhibits.9 The motion to confirm the ICDR award was succinct, and the memorandum offered no legal argument whatsoever, as the issues were reserved for briefing. 5 LUG seems to have applied a civil procedure analysis in challenging the ICDR proceedings by arguing that without Talent obtaining leave or LUG’s consent to amend the Notice (as would be required if the case were being litigated in federal court), the arbitrator could not render an award on the liquidated damages claim. In the Order, the Court found it had jurisdiction over the matter pursuant to 9 U.S.C. § 203 and 28 U.S.C. § 1332.10 The Court noted the New York Convention governed the matter because the arbitration award involved a party domiciled or having its principal business outside of the United States.11 The Court observed that the New York Convention provides seven grounds for vacatur or modification of an international arbitration award, and that the Court also has authority to vacate or modify the award on any of the grounds set forth in the FAA, including “where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award … was not made.”12 Recognizing “the strong public policy favoring arbitration and enforce[ing] … awards[,]” the Court noted the narrow standard when reviewing awards.13 The Court rejected LUG’s argument that the arbitrator exceeded her powers by including an amount for liquidated damages in the award. The Court rejected LUG’s reliance on federal civil procedure, holding the arbitration provision called for the parties to arbitrate any dispute under the International Supply Agreement.14 The Court found the arbitrator did not exceed her powers because the dispute “fell squarely within the Agreement’s subject matter,” and it also deferred to the arbitrator on this procedural matter because the Court “is not governed by, or even necessarily familiar with, ICDR rules.”15 The Court also rejected LUG’s arguments that the arbitrator exceeded her powers by rejecting its laches defense and that she manifestly disregarded the applicable Ohio statute of limitations. The Court held the arbitrator’s rejection of the laches defense was not unreasonable, arbitrary or unconscionable.16 Similarly, it found, in part, that in light of the “strong pro-enforcement biases of the Convention and FAA,” LUG failed to meet its burden that the arbitrator manifestly disregarded Ohio law in rejecting the status of limitations defense.17 Eight days after the Court confirmed the award, a Satisfaction of Judgment was filed, concluding the matter.18 Generally, the benefits of arbitrating international commercial disputes are well-recognized. This case shows the importance of thoughtfully drafting the arbitration provision in an international commercial agreement. For instance, parties can agree that the arbitrator must be admitted to practice law in the jurisdiction of the law that will govern the arbitration, or that the arbitrator(s) can only decide claims raised in the arbitration demand, which may avoid issues such as those raised by LUG. Parties to international commercial agreements may want to consider giving more attention to arbitration provisions in light of this decision. For questions on and assistance with international commercial agreements and disputes, please contact Jon P. Yormick, Special Counsel, at email@example.com or (716) 847-7006. In addition to New York State, Mr. Yormick is admitted to practice in all state and federal courts in Ohio. n 1 Convention on the Recognition and Enforcement of Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 38. 2 9 U.S.C. §§ 1-14. 3 Id. §§ 201-208. 4 Petition to Vacate Arbitration Award (“Petition”), G&K Servs. LUG, LLC v. Talent Creation, Ltd., No. 3:16-cv-00180-WHR (S.D. Ohio Feb. 23, 2017), ECF No. 1. 5 Id. ¶¶ 17-18, 20. 6 Order Sustaining Motion to Confirm Arbitration Award of Respondent/Counter-Petitioner Talent Creation, Ltd. (DOC. #10) and Overruling Petition to Vacate Arbitration Award of Petitioner/Counter-Respondent G&K Services LUG, LLC (DOC. #1); Judgment Shall Enter in Favor of Talent Creation Against LUG; Termination Entry (“Order”), G&K Servs. LUG, LLC, supra, ECF No. 21, at 6. 7 Id. at 6-7. 8 Petition ¶¶ 21, 23. 9 The complete International Supply Agreement was attached to the Petition, without redaction, apparently due to the termination of the agreement and expiration of the confidentiality provision. Nonetheless, it is worth noting that the confidentiality provision in the agreement did not require the existence of the agreement or its terms to be kept confidential by the parties, a consideration that companies should not overlook. 10 Order at 1. 11 Id. at 4. 12 Id. at 5 (quoting 9 U.S.C. § 10(a)(4)). 13 Id. at 5-6. 14 Id. at 8. 15 Id. 16 Id. at 9-11. 17 Id. at 16. 18 Satisfaction of Judgment, G&K Servs. LUG, LLC, supra, ECF No. 24. 6 AvoidingUnenforceable LiquidatedDamagesClauses industries in a variety of commercial agreements and transactions. Given the potentially far-reaching consequences, it is important for both parties to a contract with a liquidated damages clause to understand its enforceability. LIQUIDATED DAMAGES CLAUSE GENERALLY A liquidated damages clause “is an estimate, made by the parties at the time they enter into their agreement, of the extent of the injury that would be sustained as a result of breach of the agreement.” Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., 41 N.Y.2d 420, 424 (1977). In other words, the parties to a contract may agree between themselves on the amount of damages to be paid if there is a breach rather than leaving that amount up to the court or jury. Id. Generally, a liquidated damages clause will be sustained if the agreed-upon amount is reasonably proportional to the probableloss and the amount of actual loss is impossible JMD Holding Corp. v. Cong. Fin. Corp., 4 N.Y.3d 373, 380 (2005) (citing Truck RentA-Center, 41 N.Y. 2d at 424). If, or grossly disproportionate to the probable loss, courts will consider the clause a penalty and will not enforce it. Id. Whether or not a clause is an unenforceable penalty “is a question of law, giving dueconsideration to the nature of the contract and circumstances.” Bates Adver. USA, Inc. v. 498 Seventh, LLC, 7 N.Y.3d 115, 120 (2006) (quoting JMD Holding Corp., 4 N.Y.3d at 379). A recent decision by Justice Matthew A. Rosenbaum of the New York State Supreme Court, Commercial Division, 7th into how New York’s specialized commercial courts address and answer the critical question of a liquidated damages clause’s enforceability. It also provides a useful framework for evaluating contractual damages clauses—both at the time that the parties are negotiating the terms and when the courts are called upon to consider enforceability. RES EXHIBIT SERVICES, LLC V. GENESIS VISION, INC. D/B/A ROCHESTER OPTICAL In RES Exhibit Services, LLC v. Genesis Vision, Inc., Index No. 2015- 14088 (Sup. Ct., Monroe Cnty. 2016) Phillips Lytle LLP represented of a liquidated damages clause contained in a Master Exhibit Services of certain trade show-related services and deliverables to support Genesis Vision, Inc. d/b/a Rochester Optical’s (“Rochester Optical”) trade show amended by a “First Amendment” to include a “Termination Fee” that would be payable to RES in the event of a “Termination Event,” which included “Rochester Optical failing to attend and space size referenced in the PAFs incorporated [into the Agreement].” Both RES and Rochester Optical were represented by counsel relative to the negotiation of the Agreement and First calculated by a formula set forth in the Termination Fee paragraph of the Agreement. RES contended in the lawsuit that theTermination Fee under the Agreement was triggered by Rochester Optical’s failureto attend and exhibit at a required tradeshow. Notably, as part of the liquidated damages clause set forth in the Agreement, Rochester Optical Termination Fee bore a reasonable proportion to the probable loss 7 that RES would sustain if Rochester Optical failed to perform its obligations, and (2) the actual amount of damages incurred by RES would be difficult, if not impossible, to measure. RES filed a motion for summary judgment that sought, among other relief, $388,630 as liquidated damages under the Agreement. Rochester Optical cross-moved for, among other relief, a declaration that the Termination Fee was an unenforceable penalty. Justice Rosenbaum decided that the Termination Fee was enforceable and was not a penalty. RES’s motion for summary judgment on liability was granted in the sum of $388,630, together with a money judgment in this sum and statutory interest. In reaching this decision, Justice Rosenbaum specifically relied on the stipulations made by the parties in the Agreement. The Court was persuaded that it “must enforce the Amended Agreement as unambiguously written as agreed to by the sophisticated and represented parties … and [declined] Rochester Optical’s invitation to overrule the unambiguous agreement entered into by the sophisticated entities.” CONCLUSION While liquidated damages clauses are generally enforceable under New York law, there are circumstances in which New York courts will strike them down. Contracting for liquidated damages clauses that New York courts will enforce requires thoughtful drafting without overreach. Parties should avoid the term “penalty” when describing or referring to the liquidated damages provision. Instead, parties should include language that (i) the actual damages resulting from the breach are difficult to ascertain, (ii) the liquidated damages are intended to constitute an estimate of damages, (iii) the parties agree the liquidated damages are reasonable in light of the anticipated harm caused by the related breach, and (iv) the liquidated damages do not constitute a penalty. Such language would likely bolster enforceability of the clause. For assistance with drafting enforceability language, or for more information on liquidated damages clauses, contact Chad W. Flansburg, Business Litigation Partner, at (585) 238-2009 or firstname.lastname@example.org. n 2017 Resolutions: What Every Company Can Do Now to Help Prevent Litigation Headaches Each year, companies should take the time to review and improve their litigation protocols. Below are some questions to help prompt an analysis of existing policies and procedures to help prevent litigation headaches: 1 REVIEW CURRENT LITIGATION HOLDS Do you have a single repository for all documents subject to a hold? Are there holds that can be lifted? Do holds need to be updated? Who is responsible for each hold? Phillips Lytle is seeing more and more clients reduce the amount of data stored by removing data that no longer is subject to a legal hold or other obligation to store. 2 EVALUATE LEGAL HOLD PROCEDURES When was the last time you evaluated your litigation hold procedures? It is important to have up-to-date litigation hold procedures that address how holds are mapped to data and communicated to staff and third parties, if necessary. Phillips Lytle helps clients fine-tune their legal hold procedures to make sure they are compliant with applicable laws and result in efficient and cost-effective responses while minimizing risk. 3 CREATE A SUBPOENA RESPONSE PLAN Who is responsible for coordinating responses to subpoenas? Are objections sent out in a timely manner to ensure they are preserved? Is confidential information redacted? Is privilege asserted? When should a subpoena response be escalated to legal for review? A subpoena response plan can help reduce expenses. 4 REVIEW THIRD-PARTY CONTRACTS Does the company use third parties to store or manage data? Are those third parties compliant with the ever-changing legal requirements for data collectors? Have you vetted their security protocols to prevent data breaches? 5 EDUCATE STAFF ON ATTORNEY-CLIENT PRIVILEGE Does your staff understand which communications with counsel are protected and which may not be and how to take steps to ensure privilege? Phillips Lytle can assist by providing in-house training on privilege matters. 6 CONDUCT AN INTERNAL SURVEY ABOUT THE LEGAL DEPARTMENT What is the current relationship between employees and the in-house legal department? It may be helpful to conduct an internal survey to obtain feedback about how to strengthen the relationship, leading to a more productive relationship and efficiency in litigation matters. 7 REVIEW INSURANCE POLICIES What type of insurance policies does the company currently have in place, and is it responsive to the company’s risk assessment (e.g., cybersecurity)? Phillips Lytle can help review insurance policies. Phillips Lytle Business Litigation attorneys are available to review your current policies and procedures or assist if you feel an issue raised here affects your company. n 8 Justice Pigott Returns to the New York Supreme Court Justice Eugene F. Pigott, Jr. was granted approval to serve as a certificated New York Supreme Court Justice in Western New York following his retirement from the Court of Appeals on December 31, 2016, after reaching the Court’s mandatory retirement age of 70. Justice Pigott was initially appointed to the New York Supreme Court in 1997, and thereafter was elected to a full 14-year term. In 1998 he was appointed to the Appellate Division, Fourth Department, and in 2006 he was nominated by Governor Pataki to the Court of Appeals. Justice Pigott began working as a Justice of the New York Supreme Court on January 1, 2017, and will head the Alternative Dispute Resolution team. The maximum allowable age for Justices of the New York Supreme Court is 76. n 9 Spotlight KENNETH A. MANNING NAMED 2017 LAWYER OF THE YEAR BY THE BAR ASSOCIATION OF ERIE COUNTY Kenneth A. Manning, Phillips Lytle Partner, has been chosen to receive the 2017 Lawyer of the Year Award by the Bar Association of Erie County (“BAEC”). The award will be presented at the BAEC’s 130th Annual Dinner in June 2017 in Buffalo, New York. The Lawyer of the Year Award was established to recognize outstanding service and dedication to the legal profession, the Bar Association and the community at large. Mr. Manning has been described as “a man of extraordinary talents and integrity.” As leader of the firm’s Class Action and Government Operations Practice Teams, Mr. Manning has prosecuted and defended class actions in both state and federal courts, and has experience in challenges to governmental actions, including taxes and assessments, as well as actions for declaratory relief. In addition, he has experience in bet-the-company corporate and commercial litigation, including dissolution proceedings, employment termination disputes and controversies involving the sale of goods and services. He also has experience in personal injury and wrongful death claims involving products liability, workplace accidents, negligence and environmental exposure. Mr. Manning also serves as Phillips Lytle’s Education Practice Team Leader. CRAIG R. BUCKI NAMED 2017 LIBERTY BELL AWARD WINNER Phillips Lytle Partner Craig R. Bucki recently received the 2017 Liberty Bell Award from the Bar Association of Erie County (“BAEC”). He received the award in recognition of his “invaluable service and tireless dedication” in chairing the BAEC’s Mock Trial Program for the past six years. Mr. Bucki is a member of the New York State Bar Association’s Law, Youth and Citizenship Committee and the Chair of its Mock Trial Subcommittee, which prepares the annual fact pattern used in the Statewide High School Mock Trial Tournament throughout New York. Established in 1964, the Liberty Bell Award is the highest award bestowed at the BAEC’s Law Day program. The purpose of this award is to recognize community service that has strengthened the American system of freedom under the law and to accord public recognition to those who, among other criteria, have encouraged a greater respect for the law and the courts; fostered a better understanding and appreciation of the rule of law; and stimulated a deeper sense of individual responsibility so that citizens recognize their duties as well as their rights. Mr. Bucki focuses his practice on litigation involving state and municipal government, public authorities and other quasi-governmental entities. Continued on page 10 10 NEW PRACTICE AREA ANNOUNCED Phillips Lytle recently formed a Crisis Response & Management Practice Team and is the first law firm in Upstate New York to offer dedicated, comprehensive crisis response services. The Crisis Response & Management Practice Team includes attorneys from across the firm’s eight offices and works with the Litigation Practice Team in responding to client needs. PHILLIPS LYTLE’S REPRESENTATIVE EXPERTISE INCLUDES NAVIGATING EMERGENCIES FOR: • CRISIS POLICY PREPARATION • DATA BREACH • PRODUCT RECALL • ENVIRONMENTAL • GOVERNMENT INVESTIGATIONS Phillips Lytle’s team has on-the-ground experience addressing all types of crises and the ability to immediately deploy its attorneys— taking whatever steps are necessary to implement emergency response protocols. In order to avoid crises, Phillips Lytle attorneys also regularly advise clients on crisis planning, from drafting policies to on-site training to public and governmental relations and crisis communications. The team is accessible 24 hours a day, 7 days a week, 365 days a year to handle the most time-sensitive situations. Our attorneys can be reached at 1-866-812-5116. Jennifer A. Beckage and Morgan G. Graham are the team co-leaders. BTI LITIGATION OUTLOOK 2017 Phillips Lytle is pleased to be named among an elite group of law firms as a Litigation Powerhouse for Commercial Litigation. Corporate counsel ranked Phillips Lytle in the top 15 percent of all national law firms for Commercial Litigation in the BTI Litigation Outlook 2017: Changes, Trends and Opportunities for Law Firms. BTI research is independent and combines a comprehensive analysis of client spending, goals, priorities and needs with unbiased, direct feedback from clients on more than 200 individual law firms. Spotlight continued from page 9 HON. JUDITH S. KAYE COMMERCIAL AND FEDERAL LITIGATION SCHOLARSHIP RECIPIENT Phillips Lytle attorney Alissa M. Fortuna-Valentine received the Hon. Judith S. Kaye Commercial and Federal Litigation Scholarship from the New York State Bar Association Commercial & Federal Litigation Section. To honor the memory of Chief Judge Judith S. Kaye, the Commercial & Federal Litigation Section created, through a gift made to The New York Bar Foundation, The Honorable Judith S. Kaye Commercial and Federal Litigation Scholarship. The Kaye Scholarship is awarded to up to five female litigators, called Kaye Scholars, and will pay for their attendance at the 2017 Commercial Litigation Academy in New York City in May 2017. The goal of the Kaye Scholarship is to increase the number of women prepared to serve as first chair in large commercial cases. Ms. Fortuna-Valentine concentrates her practice in the area of business litigation, with particular emphasis on labor and employment law. NEW BUSINESS LITIGATION PARTNERS Phillips Lytle is pleased to name the following Partners within the Business Litigation practice in 2017: CHAD W. FLANSBURG Mr. Flansburg concentrates his practice in the area of civil litigation, with an emphasis on contractual disputes, real property, personal injury, products liability and collection enforcement. He can be reached at (585) 238-2009 or email@example.com. AMANDA L. LOWE Ms. Lowe concentrates her practice on civil litigation matters in federal and state courts, including complex corporate disputes, business litigation, breach of contract, collection, construction, and commercial disputes as well as labor and employment law. She can be reached at (716) 504-5747 or firstname.lastname@example.org. TODD A. RITSCHDORFF Mr. Ritschdorff concentrates his practice in bankruptcy and creditors’ rights, including workouts and reorganizations, as well as commercial and equipment finance litigation. He can be reached at (518) 618-1212 or email@example.com. 11 PHILLIPS LYTLE ATTORNEYS NAMED TO BEST LAWYERS® AND SUPER LAWYERS® LISTS Phillips Lytle is honored to be among the 2017 U.S. News–Best Lawyers® “Best Law Firms” and has earned “Top Listed” rankings in New York State in Commercial Litigation and Product Liability Litigation – Defendants on the Best Lawyers in America© 2017 list. Phillips Lytle earned a National Tier 1 ranking for the firm’s Mass Tort Litigation/Class Actions – Defendants practice as well as a Top Listed City Award for Commercial Litigation in its Buffalo, New York office. Fifty-seven attorneys from five Phillips Lytle offices were ranked on the 2017 national list. The annual Best Lawyers® is based on an exhaustive peer-review evaluation. Their methodology can be found on www.bestlawyers.com/Methodology. Sixty-four Phillips Lytle attorneys have been named to a 2016 Super Lawyers® list issued by Thomson Reuters. The selections of Super Lawyers are made using a patented multiphase selection process where peer nominations and evaluations are combined with independent research. The methodology can be found at www.superlawyers.com/about/selection_process.html. BEST LAWYERS® AND SUPER LAWYERS® RECOGNITION Congratulations to the following Phillips Lytle attorneys, within our Business Litigation practice, who have received both 2016 Super Lawyers recognition and 2017 Best Lawyers recognition, including two who were cited by Best Lawyers as “Lawyer of the Year.” PHILLIPS LYTLE BUSINESS LITIGATION ATTORNEYS RECEIVING 2017 BEST LAWYERS® RECOGNITION: Edward S. Bloomberg Tamar P. Halpern Richard E. Honen PHILLIPS LYTLE BUSINESS LITIGATION ATTORNEYS RECEIVING 2016 SUPER LAWYERS® RECOGNITION: Alan J. Bozer Craig R. Bucki Craig A. Leslie Preston L. Zarlock PHILLIPS LYTLE BUSINESS LITIGATION ASSOCIATE NAMED A 2016 NEW YORK METRO SUPER LAWYERS® RISING STAR: Anna Mercado Clark PHILLIPS LYTLE BUSINESS LITIGATION ATTORNEYS NAMED A 2016 UPSTATE NEW YORK SUPER LAWYERS® RISING STAR: Jennifer A. Beckage Andrew P. Devine Joanna J. Chen Myriah V. Jaworski Kevin J. Mulvehill Sean C. McPhee Amanda L. Lowe Kevin J. English James R. Grasso Kevin M. Hogan “Lawyer of the Year” Buffalo Environmental Law Frederick G. Attea William J. Brennan William D. Christ James D. Donathen Gary F. Kotaska David J. Murray Eric M. Kraus Kenneth A. Manning “Lawyer of the Year” Buffalo Bet-the-Company Litigation Mark J. Moretti Paul Morrison-Taylor Lisa McDougall David J. McNamara Linda T. Prestegaard Michael B. Powers James W. Whitcomb Thomas S. Wiswall Paul B. Zuydhoek John G. Schmidt Jr. Ronald S. Shubert Lisa L. Smith At Phillips Lytle, our Business Litigation Team brings to bear unique case-management skills and techniques for success in commercial litigation. Our attorneys have extensive experience in all phases of disputes, including banking, contracts, sales and product distribution, services, financing, construction, insurance coverage, joint ventures, employment, technology, franchising, licensing, leasing, real estate finance and development, trusts, shareholder and partnership disputes, and contract disputes. For additional information or advice, please contact one of our Business Litigation attorneys listed below: John G. Schmidt Jr., Partner, Team Leader Preston L. Zarlock, Partner, Team Leader Frederick G. Attea, Partner Jennifer A. Beckage, Partner Joel A. Blanchet, Partner Edward S. Bloomberg, Partner Erin C. Borek, Associate Alan J. Bozer, Partner William J. Brennan, Partner Christine Donovan Bub, Associate Craig R. Bucki, Partner Joanna J. Chen, Associate William D. Christ, Partner Anna Mercado Clark, Associate Erin E. Connare, Associate Jeffrey D. Coren, Associate Andrew P. Devine, Associate Joanna Dickinson, Associate James D. Donathen, Partner Kevin J. English, Partner Chad W. Flansburg, Partner Alissa M. Fortuna-Valentine, Associate Marc H. Goldberg, Special Counsel James R. Grasso, Partner Patrick M. Hanley, Jr., Associate Kevin M. Hogan, Managing Partner Richard E. Honen, Partner Myriah V. Jaworski, Senior Associate Luke B. Kalamas, Associate William P. Keefer, Partner Heather H. Kidera, Associate Gary F. Kotaska, Counsel Eric M. Kraus, Partner Ryan A. Lema, Senior Associate Craig A. Leslie, Partner Amanda L. Lowe, Partner Daniel R. Maguire, Associate Kenneth A. Manning, Partner Matthew R. Mazgaj, Associate Lisa McDougall, Counsel David J. McNamara, Partner Sean C. McPhee, Partner Mark J. Moretti, Partner Paul Morrison-Taylor, Partner Deena K. Mueller, Associate Kevin J. Mulvehill, Partner David J. Murray, Partner Patricia M. Pirri, Associate Michael B. Powers, Counsel Linda T. Prestegaard, Partner Thomas F. Puchner, Partner Todd A. Ritschdorff, Partner William V. Rossi, Associate Nicolas J. Rotsko, Senior Associate Joseph B. Schmit, Partner Gargi Sen, Associate, Admission Pending Jennifer A. Shah, Partner Ronald S. Shubert, Partner Lisa L. Smith, Partner Jacob S. Sonner, Associate Richard Weingarten, Associate James W. Whitcomb, Partner Thomas S. Wiswall, Partner Jon P. Yormick, Special Counsel Paul B. 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