Carolyn Nussbaum is a partner in the Complex Commercial Disputes group, a member of the Securities and Governance Litigation and Class Action teams and served as Managing Partner of the Rochester office from 2011–2017. Carolyn represents companies and their management and leaders who confront business disputes.
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.
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.
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.
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.
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.
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.
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.
Ms. Nussbaum has published several articles and book chapters, including:
Ms. Nussbaum is a regular speaker on securities litigation, corporate governance, and ethical issues at industry and legal events, including:
District of Columbia
U.S. Court of Appeals, Second Circuit
U.S. Court of Appeals, Sixth Circuit
U.S. Court of Appeals, District of Columbia Circuit
U.S. Supreme Court
George Washington University, J.D., with high honors, Order of the Coif
Smith College, B.A.
Carolyn Nussbaum has been appointed by the Chief Judge to serve on the statewide Commercial Division Advisory Council to advise the judiciary of the Commercial Division of the Supreme Court of the State of New York and also was appointed to the Pandemic Practice Working Group of the Commission to Reimagine the Future of NY Courts. She is a past president of the Monroe County Bar Association and a former Trustee of the Foundation of the Monroe County Bar. She is actively involved in the legal profession as a member of the New York Law Journal’s Board of Editors; the New York State Bar Foundation (Fellow); the New York State Bar Association (elected delegate); the Volunteer Legal Services Project (past president); the Women’s Bar Association of the State of New York (past director); and the Greater Rochester Association for Women Attorneys (past president). She was appointed and serves on the Character and Fitness Committee for the Seventh Judicial District; as well as a member of the Committee on the Local Rules for the Western District of New York.
Carolyn is the General Counsel and member of the Executive Committee of the Rochester Area Community Foundation (and past chair of the governance committee); founding and current board member of Cancer Wellness Connections, Inc.; past co-chair of the Levine Center to End Hate, an initiative of the Jewish Community Federation of Rochester Inc. (of which she is a past president and current member of the Board of Governors); member of the Finance Committee of The Jewish Federations of North America (and past board member); former board member and officer of Temple Beth El of Rochester and the Jewish Community Center of Rochester; and a former board member of Jewish Senior Life.
This article mentions NP for representing the Eastman Kodak Company, which secured the dismissal of a securities lawsuit brought by investors complaining of options granted to executives just before announcement of Kodak’s potential participation in a government program to fund expansion to produce pharmaceutical products in the early months of the COVID-19 pandemic. Rochester Complex Disputes partner Carolyn Nussbaum and Privacy & Technology partner Rick McGuirk served as counsel for the company. Rochester Labor & Employment partner Steve Jones is client attorney for Kodak. The NP team also included Rochester Complex Disputes associate Sarah Tufano, senior paralegal Amy Demanchick, and practice assistants Kathy Elhelw and Darbie James.
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