Carolyn Nussbaum

Carolyn G. Nussbaum



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.

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

Women of Excellence

Rochester Business Journal | April 02, 2021

Rochester Complex Commercial Disputes partner Carolyn Nussbaum has been named as one of the publication’s 2021 “Women of Excellence“ award winners, recognizing high-achieving women for their professional experience, community involvement, leadership, and sustained commitment to mentoring.

Five steps businesses can take now to minimize coronavirus-related risk

Rochester Business Journal | June 12, 2020

Rochester Corporate partner Jeremy Wolk contributed this column on how businesses can prepare now for legal implications of the coronavirus, putting themselves in a stronger position for long-term success. The column was adapted from an NP alert by Rochester Complex Commercial Disputes partners Carolyn Nussbaum and Rick McGuirk.

MCBA President’s Message: A year-end perspective — Looking forward to what might be

The Daily Record | June 10, 2020

In her final monthly column as president of the Monroe County Bar Association, Rochester Complex Commercial Disputes partner Carolyn Nussbaum reflects on the last three months of her presidency, focusing on the bar association’s role and its responsibility to educate, inform and address overt racism in response to the death of George Floyd.

MCBA President’s Message: His legacy will endure: The Honorable Michael A. Telesca

The Daily Record | March 11, 2020

In her monthly column as president of the Monroe County Bar Association, Rochester Complex Commercial Disputes partner Carolyn Nussbaum relates a story from early in her legal career that illustrates the impact of the late U.S. District Judge Michael Telesca.

Preparing for a lawsuit vs. your firm always a prudent idea

Rochester Business Journal | March 06, 2020

This article highlighting the steps management should take to protect a company’s brand during litigation features Rochester Complex Commercial Disputes partner Carolyn Nussbaum discussing the value of enlisting a public relations consultant to help with messaging.

This month at the MCBA: Initiatives, innovation and collaboration

The Daily Record | February 12, 2020

In her monthly Monroe County Bar Association President’s Message, Rochester Complex Commercial Disputes partner Carolyn Nussbaum discusses a new, voluntary and confidential process designed to provide area judges with valuable feedback and improve bench-bar relations.

MCBA President’s Message: Busy holiday season highlights MCBA’s importance

The Daily Record | January 08, 2020

Rochester Complex Commercial Disputes partner Carolyn Nussbaum, the president of the Monroe County Bar Association, wrote this column detailing the crucial role the MCBA played in managing the various complications resulting from the unexpected departure of a state Supreme Court justice.

MCBA President’s Message: On to 2020—a year of change and innovation

The Daily Record | December 11, 2019

As the current president of the Monroe County Bar Association (MBCA), Rochester Complex Commercial Disputes partner Carolyn Nussbaum authored this column about the MBCA’s accomplishments over the past year, upcoming member programming, and goals for 2020.

Gone but not forgotten: programs that make both Rochester and the MCBA special

The Daily Record | October 09, 2019

In her latest Monroe County Bar Association President’s Message, Rochester Complex Commercial Disputes partner Carolyn Nussbaum writes about the collegiality and traditions of the Rochester legal community, including the annual ceremony to honor lawyers and judges who have passed away.

MCBA president’s message: The collaboration between bench and bar, for the benefit of all

The Daily Record | September 11, 2019

Rochester Complex Commercial Disputes partner Carolyn Nussbaum wrote this contributed article outlining the collaboration between attorneys and judges to increase diversity in the courtroom.

MCBA president’s message: Are bar associations relevant?

The Daily Record | August 07, 2019

Rochester Complex Commercial Disputes partner Carolyn Nussbaum and president of the Monroe County Bar Association wrote this article emphasizing the many ways these local organizations contribute to individual lawyers, the legal profession and the community at large.

MCBA President’s Message: MCBA harnesses the power of the collective

The Daily Record | July 10, 2019

Rochester Complex Commercial Disputes partner Carolyn Nussbaum, who was sworn in last month as the new president of the Monroe County Bar Association, wrote this contributed article about why she wanted to lead the organization and how attorneys can maximize their impact by working together.

Carolyn Nussbaum leads MCBA

The Daily Record (Rochester) | June 26, 2019

Rochester Complex Commercial Disputes partner Carolyn Nussbaum discussed her role as president of the Monroe County Bar Association. Carolyn was sworn in earlier in June.

Carolyn G. Nussbaum sworn in as bar president

The Daily Record | June 13, 2019

Rochester Complex Commercial Disputes partner Carolyn Nussbaum was sworn in on Wednesday as the president of the Monroe County Bar Association.

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 was selected, through a peer-review survey, for inclusion in The Best Lawyers in America© 2022 in the fields of Arbitration; Bet-the-Company Litigation; Commercial Litigation; Corporate Governance Law; Litigation—Banking and Finance; Litigation—Labor and Employment; Litigation—Mergers and Acquisitions;and Litigation—Securities. She has been listed in Best Lawyers since 2003, and was named Rochester “Lawyer of the Year” in 2021 for Corporate Governance law, in 2020 for Arbitration, in 2019 and 2017 for  Litigation—Labor and Employment, in 2018 and 2015 for in Bet-the-Company Litigation, and in 2014 for Litigation—Securities.

Carolyn has also been recognized for exceptional standing in the legal community in Chambers USA: America’s Leading Lawyers for Business 2021 for Litigation: General Commercial (Upstate New York); she has also been recognized in previous years.

Carolyn has been recognized as an “Rochester, New York Super Lawyer” by the publishers of Super Lawyers magazine for consecutive years since 2007. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations, and peer evaluations.

In October 2016, Carolyn was honored as one of the “Top Women in Law” by the New York Law Journal, following her selection in January 2015 as an “ATHENA Awards” finalist and as a “Top Women in Law” award recipient by the Daily Record in May 2013. 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 Nussbaum has been appointed by Chief Judge DiFiore 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. 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 and member, Nominating Committee, past appointed member of Committee on Courts of Appellate Jurisdiction); 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 (past 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 she serves on the Committee on the Local Rules for the Western District of New York.

Carolyn is the secretary and member of the Executive Committee of the Rochester Area Community Foundation (past chair of the governance committee); founding and current board member of Cancer Connections, Inc.; member, board of governors and 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.

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