Carolyn G. Nussbaum

What do you focus on?

I concentrate my commercial litigation practice in several specialized areas, using more than 30 years of experience in the courtroom to represent clients in securities and governance, financial and complex business disputes. My litigation experience also brings a valuable perspective to the negotiating table to assist deal lawyers and clients draft provisions that will be interpreted as intended, and potentially avoid future disputes.

Covid-19 Issues

During the Covid-19 pandemic, I have counseled clients on the myriad of issues impacted by the extraordinary times, including force majeure provisions, whether to invoke frustration or impossibility to modify contractual obligations, how to respond to concerns on contractual insecurity, material adverse change (MAC) provisions, assessing and managing supply chain risk, and business transformation. I was proud to counsel local and national manufacturers who pivoted and adapted to supply personal protective equipment to medical centers about the contractual and regulatory landscape. More recently, clients have sought my advice on how to protect their businesses as they navigate reopening guidelines, including whether and how to manage risk through releases, waivers and other documentation. I have prepared social compacts for students, parents, and educators for private schools and higher education institutions, and presented before business and industry groups on reopening risk mitigation. As businesses innovate, adapt and evolve, they will benefit from legal counsel who have the unique practical experience and ability to identify—and solve—the issues that have been impacted by the pandemic.

Securities and Governance Litigation

I counsel officers, directors and their companies confronting a threat of a securities or governance claim, with the goal of minimizing the risk of litigation and business disruption and helping them achieve their objectives. When litigation is unavoidable, I defend and advocate on behalf of my clients, bringing my extensive experience in this highly specialized area of the law to bear for the best practical and efficient resolution. I have a record of achieving dismissal of lawsuits on preliminary motions challenging transformative transactions.

Financial Institutions Representation

I represent local, regional and national financial institutions in the defense of claims by borrowers, consumers, and others, including consumer class actions, particularly claims of wrongful fees, and the investigation and defense of claims from suspected fraud by customers, counter-parties and employees. My experience includes defending fraudulent transfer claims, as well as Fair Debt Collection Practices Act (FDCPA) claims, claims regarding fee disclosures, and claims arising out of customer misconduct.

Class Actions

I have defended multiple securities class actions and other collective litigations and proceedings alleging consumer and commercial claims.  Working together with our clients, we develop an approach, tailored to each case, focused on strategic defense and efficient dispute resolution. I have extensively litigated the ability to pursue multi-claimant and class action arbitrations in the arbitration forum as well as in the courts. We provide value to our clients honed by extensive experience and deep knowledge of the latest developments and trends.

Business Litigation

I work with clients to explore strategies to prompt expedient efficient results of business disputes. Recently, I represented a global information and document management company faced with arbitration claims by nearly 100 members of its distribution chain, seeking in excess of $100 million in damages. Using creative case management techniques and rapidly evolving law from the United States Supreme Court limiting the ability to aggregate arbitrations, we assisted the client in reaching a business resolution that avoided the distraction and expense of continued litigation.

What do you see on the horizon?

Covid-19 has reshaped commercial relationships and engendered unique and novel legal issues. Businesses need the counsel of those who have had experience navigating regulatory issues to nimbly—and responsibly— transform their operations to meet the emerging challenges and opportunities of this extraordinary time. Businesses need to be attuned to the risks that come with accelerated change, working now to assess, plan for, anticipate and manage internal and external risk, including reviews of procurement policies and contractual provisions.

In the governance area, the events of the past year have accelerated discussion and attention to the development of environmental, social and governance (ESG) standards and policies. We have seen a growth in shareholder activism and litigation around disclosures and implementation of ESG policies. This trend is likely to expand, with increased scrutiny from regulators as well as investors.

Representative Cases

• Represented Respondent and obtained award of no damages after multi-day virtual merits hearing administered by the American Arbitration Association (May 2021)
• Represented regional broker-dealer in FINRA investigation, resolving matter with Letter of Acceptance, Waiver and Consent
• Represented regional broker-dealer in FINRA investigation, with successful resolution after on-the-record interview.
• Miller v. HCP & Co., 2018 Del. Ch., LEXIS 40 (Del. Ch. Feb. 1, 2018) (dismissing all claims against a limited liability company, its board and affiliates arising out of sale of the company).
• Buttonwood Tree Value Partners, LP v. R.L. Polk & Co., 2017 Del. Ch. LEXIS (Del. Ch. July 24, 2017(dismissing fraudulent breach of fiduciary claims against outside directors arising out of self-tender)
• Aozora Bank, Ltd. v. Credit Suisse Group, 40 N.Y.S.3d 407 (1st Dep’t 2016) (affirming dismissal of fraud claims against collateral manager of CDO as time-barred because plaintiff was on inquiry notice more than two years before it commenced suit)
• Healthnow N.Y. Inc. v. Catholic Health Sys., 2015 U.S. Dist. LEXIS 129656 (W.D.N.Y. Sept. 24, 2015) (granting motion to dismiss defamation per se claims and converting motion to dismiss remaining claims to motion for summary judgment)
• Maa-Sharda, Inc. v. First Citizens Bank & Trust Co., (In re Maa-Sharda), 2015 Bankr. LEXIS 1176 (W.D.N.Y. Bk. April 9, 2015) (successfully argued for remand of fraud claims by debtor against mortgagee to state court on abstention grounds)
• Golisano v. Turek, 2015 U.S. Dist. LEXIS 72559 (W.D.N.Y. June 4, 2015) (granting motion to dismiss indemnification claims by guarantor who was also officer of the corporate primary obligor).
• Bausch & Lomb, Inc. v. Sarfarazi, 2013 U.S. Dist. LEXIS 107113 (W.D.N.Y. July 21, 2013) (dismissing counterclaim for reputational damage based on alleged breach of medical device development agreement)
• Corning Incorporated v. Freight Revenue Railway of Miami, Inc., 2012 U.S. Dist. LEXIS 69337 (W.D.N.Y. May 17, 2012) (dismissing claims for defamation)
• Ozbakir v. Scotti, 2011 U.S. Dist. LEXIS 13490 (W.D.N.Y. Feb. 10, 2011) (dismissing RICO and state law fraud claims)
• Klein v. Chase, 2010 U.S. Dist. LEXIS 53866 (W.D.N.Y. June 1, 2010) (dismissing ERISA and contract claims by former employee against financial institution employer)
• Xerox Corporation v. Arizona Digital Products, 2009 U.S. Dist. LEXIS 84015 (W.D.N.Y. Sept. 14, 2009) (denying motion to dismiss certain contract and intellectual property claims by client against former sales agent)
• McDowell Research Corporation v. Tactical Support Equipment, Inc., 2009 U.S. Dist. LEXIS 80884 (W.D.N.Y. Sept. 4, 2009) (dismissing counterclaims against purchaser of business).
• In re Bausch & Lomb ERISA Litigation, 2008 U.S. Dist. LEXIS 106269 (W.D.N.Y. Dec. 12, 2009) (dismissing in their entirety ERISA claims by putative class alleging company stock was an imprudent investment for retirement plan)
• Premium Mortgage Corporation v. Equifax Info. Services, 2008 U.S. Dist. LEXIS 76279 (W.D.N.Y. Sept. 30, 2009), aff’d, 2009 U.S. App. LEXIS 21762 (2d Cir. Oct. 5, 2009) (dismissing claims against credit reporting services as pre-empted by the Fair Credit Reporting Act)
• In re Bausch & Lomb Inc. Securities Litigation, 2008 U.S. Dist. LEXIS 92034 (W.D.N.Y. Nov. 13, 2008) (granting defendants’ motion and dismissing securities fraud claims, in their entirety and with prejudice, against company and eleven individual defendants alleging multiple false statements related to restatement of three years of financial reports and product recall)
• Novartis Pharmaceuticals Corp. v. Bausch & Lomb, Inc., 2008 U.S. Dist. LEXIS 92133 (D.N.J. Nov. 13, 2008) (granting defendant’s motion and dismissing defamation, tortious interference, and misappropriation claims against client)
• Eastman Kodak Company v. Wachovia Bank, N.A., 2007 U.S. Dist. LEXIS 61283 (W.D.NY. August 21, 2007) (denying motion to dismiss fraud claims)
• Eastman Kodak Company v. TeleTech Service Corporation, 2007 U.S. Dist. LEXIS 50139 (W.D.N.Y. July 11, 2007) (granting clients motion to dismiss counterclaims of detrimental reliance and promissory estoppel)
• Pinchuck v. Zarrella (N.Y. Sup. Ct. Monroe Co., 2006/06377, March 30, 2007) (dismissing on motion shareholder derivative claims against board alleging directors breached their fiduciary duties by failing to inform themselves of circumstances leading to product recall)
• In re Eastman Kodak Company Securities Litigation, 2006 U.S. Dist. LEXIS 79879 (W.D.N.Y. 2006) (securities fraud claims against issuer and its directors and officers dismissed in their entirety on motion)
• Miller v. Allaire, 2006 Conn. Sup. LEXIS 1575 (Sup. Conn. 2006) (derivative claims against Xerox Corporation and its officers and directors dismissed on motion)
• In re Corning Incorporated Securities Litigation, 2004 U.S. Dist. LEXIS 8741 (W.D.N.Y. 2004), aff'd, 2005 U.S. App. LEXIS 5259 (2d Cir. 2005) (granting defendants’ motion and dismissing securities fraud claims against company and its officers under the Securities Act and Securities Exchange Act in their entirety)

Publications

Ms. Nussbaum has published several articles and book chapters, including:

• “Delaware Chancery Court issues rare decision finding Material Adverse Effect justifying termination of merger,” Transaction Advisors, October 2018
• “Alternative Dispute Resolution Law,” ABA Annual Review of Developments, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018
• “U.S. Supreme Court: Sarbanes-Oxley’s Whistleblower Protections Reach Private Contractors,” Corporate Governance Advisor, Volume 22, No. 3, May/June 2014
• “Who Decides: The Court or the Arbitrator?” Business Law Today, March 2014
• “New Developments in Securities Litigation: The Impact of Recent Supreme Court Decisions on Securities Litigation,” Aspatore, 2010
• “Alternative Dispute Resolution Law,” Recent Developments in Business and Corporate Litigation, 2014, 2015, 2016, 2017, 2018, 2019 and 2020 Editions (Volume 1), ABA Business and Corporate Litigation Committee (Co-author with Chris Mason)
• “Practice Insights,” UCC sections 2-602, 2-606, 2-607, 2-702, 2-703, 2-705, 2-708, NY Cons. Laws Serv., Mathew Bender & Co., Inc. (2006) (available online through Lexis)

Speaking Engagements

Ms. Nussbaum is a regular speaker on securities litigation, corporate governance, and ethical issues at industry and legal events, including:

• “The Evolution of ADR in a Pandemic Environment and Beyond,” Nixon Peabody Webinar, April 29, 2021
• “The Brave New World - Mitigating Emerging Risks in M&A,” Nixon Peabody Webinar, March 16, 2021
• “What a Strange Long Trip We’re On: ADR in the POST-COVID-19 World,” American Bar Association, Litigation Section Annual Conference for Corporate Counsel, February 17, 2021
• “Mitigating and Managing Reopening Risks in the Esports & Gaming Industry,” Esports Bar Association, Webinar, September 15, 2020
• “Mitigating Reopening Risk for Businesses (Reopening New York: A Series),” Webinar, June 12, 2020
• “Reopening New York: A Series,” Webinar, May 28, 2020
• “Mitigating Reopening Risk,” Greater Rochester Chamber of Commerce, May 2020
• “Do we have an agreement? Oral agreements, LOI’s, and the Covenant of Good Faith and Fair Dealing,” Nixon Peabody’s Complimentary CLE Program, Rochester, NY, March 6, 2020
• “M&A Litigation Update 2019,” Monroe County Bar Association, October 2019
• “Procure and Protect: Non-disclosure agreements and data security,” Rochester, NY, June 25, 2019
• “M&A Post-Closing Disputes: Who agreed to that?!,” Nixon Peabody’s CLE Program, Rochester, NY, March 9, 2018
• “M&A Point/Counterpoint: Words Matter—In the Board Room and in the Courtroom,” Nixon Peabody’s CLE Program, Rochester, NY, March 8, 2019
• “Procure and Protect – Commercial Law Series: Vendor/Supplier Indemnification Issues,” Rochester, NY, May 3, 2018
• “Evidence Institute: Admissibility of Electronic Evidence,” Monroe County Bar Association, May 2018
• “ABA Leadership in the Law 2015,” Monroe County Bar Association, October 23, 2015
• “Meet our Newest Federal Court Judges,” Monroe County Bar Association, April 21, 2015
• “Blowing the Whistle on Fraud: Ethical Considerations,” New York State Bar Association, December 2013
• “Evidence Institute: Admissibility of Electronic Evidence,” Monroe County Bar Association, June 2013
• “Blowing the Whistle on Fraud: The SEC Whistleblower Program,” New York State Bar Association, Commercial and Federal Litigation Section, May 2013