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Carolyn G. Nussbaum



Carolyn Nussbaum is a partner in the Commercial Litigation 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.

What do you focus on?

I concentrate my commercial litigation practice in four main specialized areas, using more than 30 years of experience in the courtroom to represent clients in securities and governance, trade secret, financial and complex business disputes.

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, fraudulent transfers, 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 claims, claims regarding disclosures at ATMs and claims arising out of customer misconduct.

Trade Secrets

One of the most important investments a business must make is in the protection of its intellectual property. When my client’s investment is threatened, whether by employees or competitors, I act quickly and aggressively to stop the damage, to seek redress and to achieve business objectives.

Business Litigation

I work with clients to explore strategies to prompt expedient efficient results to 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, 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?

In today’s technologically advanced world, businesses are faced with significant risks from fraudulent conduct, including data theft and financial manipulation. Businesses need to work with legal advisors who can advise them on what to do now and in the future to minimize their vulnerability to the bad acts of others and to comply with ever-increasing regulatory burdens.

Representative Cases

  • 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).
  • Bausch & Lomb, Inc. v. Mimetogen Pharms., Inc., 2016 Dist. LEXIS 59941(W.D.N.Y. May 5, 2016) (granting motion to dismiss claims of intentional breach of contract).
  • Healthnow N.Y. Inc. v. Catholic Health Sys., 2015 U.S. Dist. LEXIS 129656 (W.D.N.Y. Sep. 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. February 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. September 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. September 4, 2009) (dismissing counterclaims against purchaser of business).
  • In re Bausch & Lomb ERISA Litigation, 2008 U.S. Dist. LEXIS 106269 (W.D.N.Y. December 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. September 30, 2009), aff’d, 2009 U.S. App. LEXIS 21762 (2d Cir. October 5, 2009) (dismissing claims against credit reporting services as pre-empted by the Fair Credit Reporting Act).
  • 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).
  • 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).
  • 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).
  • United Republic Ins. Co. v. Chase Manhattan Bank, 2002 U.S. App. LEXIS 14426 (2d Cir. 2002) (successfully defended dismissal of multimillion fraudulent transfer, racketeering, and fraud claims).
  • Crowley v. Corning, Inc., 234 F.Supp. 222 (W.D.N.Y. 2002) (dismissing ERISA claims challenging continued offering of sponsor’s stock as an investment option).
  • John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48 (2d Cir. 2002) (litigated arbitrability of securities claims under NASD Code of Arbitration).
  • Brimo v. Corporate Express, Inc., 2000 U.S. App. LEXIS 25381 (2d Cir. 2000) (successfully defended dismissal on motion of securities claims against public company).
  • Lowe v. Salomon Smith Barney, 206 F.Supp. 2d 442 (W.D.N.Y. 2002) (obtained dismissal of securities fraud claim based on allegedly fraudulent analyst report).
  • Pesino v. Atlantic Bank, 244 Conn. 85 (Sup. Ct. Conn. 1998) (upholding right of financial institution to multimillion-dollar settlement of securities fraud and lender liability claims).
  • Dodds v. Cigna Securities, Inc., 12 F.3d 346 (2d Cir. 1993), cert. denied, 1994 U.S. LEXIS 2709 (1994) (affirming dismissal of securities fraud claims and establishing new law on interpretation of limitations periods).

Publications

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

  • “Alternative Dispute Resolution Law,” ABA Annual Review of Developments, 2011, 2012, 2013, 2014, 2015, 2016.
  • “U.S. Supreme Court: Sarbanes-Oxley’s Whistle- blower 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.
  • “ADR Update,” 2009, 2008, 2007, and 2006 Annual Review of Developments in Business and Corporate Litigation, American Bar Association, Business Litigation Committee of the Business Law Section.
  • “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).
  • Dabit Demystified: U.S. Supreme Court Rules on SLUSA,” The Daily Record, April 24, 2006.
  • “Finding Shelter in the Storm: Safe Harbor for Forward-Looking Statements,” Recent Developments in Shareholder Litigation and Related Government Enforcement Initiatives, New York State Bar Association, June 9, 2005.
  • “Alternative Business Structures for the Franchise System,” American Bar Association Forum on Franchising, October 2000.
  • “Duty to Disclose Purchase or Sale Activity,” co-author, American Bar Association Franchise Law Journal, Vol. 18, No. 2 (Fall 1998).

Speaking Engagements

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

  • “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 Whistelblower Program,” New York State Bar Association, Commercial and Federal Litigation Section, May 2013.
  • “Advice from the Experts: Successful Strategies for Winning Commercial Cases in New York State Courts,” Monroe County Bar Association, May 2013.
  • “Current Issues in Securities Law,” Monroe County Bar Association, October 6, 2010.
  • “Ethics Update,” Women’s Bar Association, the State of New York, Annual Convention, 2010, 2007, 2006, 2005.
  • “Electronic Evidence,” 2010 Evidence Institute, Monroe County Bar Association, March 2010.
  • “Commercial Division Update,” New York State Bar Association, Commercial and Federal Litigation Section, April 2007.
  • “Privilege and Ethics—Developments in Corporate Law,” National Association of Women Lawyers Mid-Year Meeting, February 2007.
  • “Risk Management for Financial Professionals,” Financial Planners’Association Convention, May 12, 2006.
  • “After Disney: Directors’ Duties,” Association of Corporate Counsel, Rochester Chapter, November 2005.
  • “Dissolution of Business Entities,” New York State Judicial Institute, September 29, 2005.

Next step for appeal unclear

Business Insurance | October 02, 2017

Rochester commercial litigation partner Carolyn Nussbaum is quoted in this article regarding the likelihood that United States of America v. Mathew Martoma will obtain Supreme Court review.

Prosecuting insider trading charges could be easier after appeals court ruling

Business Insurance | September 05, 2017

Rochester commercial litigation partner Carolyn Nussbaum was quoted in this article about possible ramifications from the ruling in the insider trading case United States of America v. Mathew Martoma.

Much ado about arbitration and CFPB decision

Rochester Business Journal | July 28, 2017

Rochester commercial litigation partner Carolyn Nussbaum authored this column about the debate over mandatory arbitration.

Top women in the law

New York Law Journal | November 14, 2016

Rochester commercial litigation partner and office managing partner Carolyn Nussbaum is profiled in this article as a result of her recent “Top Women in the Law” recognition.

Future of Dodd-Frank uncertain under Trump

Law360 | November 11, 2016

This piece focuses on the changes we may see in the financial industry in a Trump administration. Rochester commercial litigation partner and office managing partner Carolyn Nussbaum provides commentary throughout the article discussing the likely impact on the Consumer Financial Protection Bureau and the Volcker Rule.

Japanese bank's MBS suit against JP Morgan revived

New York Law Journal | November 07, 2016

Rochester commercial litigation partner and office managing partner Carolyn Nussbaum is included as counsel representing Harding Advisory LLC in a case about allegations of fraud connected to collateralized debt obligations.

Credit Suisse, UBS beat lender's CDO fraud suits on appeal

Law360 | November 03, 2016

Rochester commercial litigation partner and office managing partner Carolyn Nussbaum is included as counsel representing Harding Advisory LLC in a case about allegations of fraud connected to collateralized debt obligations.

Business spotlight: Nixon Peabody

Democrat & Chronicle | October 22, 2016

Rochester commercial litigation partner and office managing partner Carolyn Nussbaum is quoted throughout this profile piece about Nixon Peabody’s Rochester office and the work the firm has done in the Rochester area and beyond.

Top Women in Law 2016

New York Law Journal | September 16, 2016

Rochester office managing partner Carolyn Nussbaum, nominated by the Women’s Bar Association of the State of New York, was selected by New York Law Journal among the 2016 “Top Women in Law.” The list shines a light on the outstanding work and notable achievements of female attorneys across New York State.

Contact

Carolyn G. Nussbaum

Partner

Rochester

Phone: 585-263-1558


Fax: 585-263-1600

George Washington University, J.D., with high honors, Order of the Coif

Smith College, B.A.

New York

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

Carolyn has been selected by her peers for inclusion in The Best Lawyers in America© 2018 in the following fields: of Arbitration; Bet-the-Company Litigation; Commercial Litigation; Litigation - Banking and Finance; Litigation - Labor and Employment; Litigation - Mergers and Acquisitions; and Litigation - Securities. She was named Rochester, NY, “Lawyer of the Year” in Bet-the-Company Litigation (2018), Litigation – Labor and Employment (2017), Bet-the-Company Litigation (2015), and Litigation–Securities (2014). She has been listed in Best Lawyers in America since 2001.

In October 2016, Carolyn was honored as one of the “Top Women in Law” by the New York Law Journal, following her selection in May 2013 as a “Top Women in Law” award recipient by the Daily Record. Based on a peer-review survey conducted by New York Upstate Super Lawyers magazine, she has been selected as one of the Top 25 Women annually since 2007, one of the Top 50 Upstate Super Lawyers in 2007-2008, 2012-2013, and one of the Top 10 Upstate Super Lawyers in 2007, along with being recognized in Securities Litigation (2007–2015). Carolyn has also received an AV Preeminent® Peer Review Rating ™ from Martindale Hubbell®, the highest possible rating for ethics and legal ability from her peers and the Judiciary. Carolyn has also been recognized for exceptional standing in the legal community in Chambers USA: America’s Leading Lawyers for Business 2017 for Litigation: General Commercial (New York (Upstate)); she has also been recognized in previous years.

Carolyn Nussbaum is a member of the New York Law Journal's Board of Editors; American Arbitration Association (Securities Arbitration and Franchise panels); the New York State Bar Foundation (Fellow); the New York State Bar Association (former elected delegate and member, Nominating Committee, past appointed member of Committee on Courts of Appellate Jurisdiction); Monroe County Bar Association (former trustee and co-Chair of the Litigation Section); the Volunteer Legal Services Project (past president); the Women’s Bar Association of the State of New York (past director); the Greater Rochester Association for Women Attorneys (past president); and the Partnership for Equal Justice and Campaign for Justice (campaign cabinet member). She was appointed by the New York Courts to the Character and Fitness Committee for the Seventh Judicial District; to the Independent Judicial Qualifications Commission of the Seventh Judicial District; and the Committee on the Local Rules for the Western District of New York.

Carolyn Nussbaum’s community activities include: Board member, Rochester Area Community Foundation, Jewish Federations of North America, and the Foundation  of the Monroe County Bar; Jewish Community Federation of Rochester, Inc. (past-president); Cancer Connections, Inc. (founding board member); Temple Beth El (former board member and officer); Jewish Community Center of Rochester (former board member and officer); and Jewish Senior Life (former board member).

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