General Civil Litigation
This is the Firm’s core practice area in which clients have been represented across the country and around the globe at trial and appellate levels in both judicial and arbitral tribunals. The subject matter has been as broad as human endeavor, including claims involving accounting, banking, contract, copyright, corporate, partnership, securities, fraud, defamation, malpractice, wrongful death, Racketeer Influenced and Corrupt Organizations Act (“RICO”), asset forfeiture, and intellectual property, among others. The Firm has often been called upon to represent senior executive and investment banking clients in connection with claims arising within the scope of their employment, as well as related issues under applicable director and officers liability policies and other indemnification sources. During the course of its work for international clients and organizations, the Firm has regularly been asked to present issues of international law to US tribunals in order to resolve pending disputes.
- Morgenthau v. Avion Resources Ltd. Secured vacatur of criminal forfeiture order seeking to restrain assets in excess of $630 million on behalf of Brazilian depositors in the face of overlapping investigations into money laundering and currency and exchange control violations conducted by Brazilian, US federal and NY state authorities.
- Cranshire Capital Master Fund, Ltd. V. Advanced Cell Technology, Inc. Representation of pioneering stem cell technology concern in action in federal court in Manhattan to determine securities conversion price.
- Basell Poliolefine Italia S.r.l. (Italy) v. P.T. Polytama Propindo (Indonesia). Representation of largest Indonesian plastics manufacturer in patent royalty dispute in ICC arbitration in Amsterdam.
- 1680 Property Trust v. Ampton Investments, Inc. Representation of investment banking client in a jury trial in Superior Court in Los Angeles on a claim for aiding and abetting a breach of fiduciary duty arising from CMBS transaction.
- Parametric Capital Management, LLC v. Aundyr Trust Co., Ltd. Representation of hedge fund in a New York arbitration of a dispute with investors involving allocation of returns.
- Cello Holdings, LLC v. Lawrence-Dahl Cos. Representation of a cyberarbitrageur in federal court in Manhattan in the seminal case establishing standards for proving intent under the federal Anticybersquatting Consumer Protection Act.
- Sharpe v. Grassi. Representation of premier art restoration expert and dealer in a bench trial in New York Supreme Court on claims arising from disputed authenticity of a 19th century painting.
- Votano v. Chemical Bank. Representation of orphan on negligence claim in New York Supreme Court in Manhattan seeking recovery for inheritance stolen by infamous New York attorney—and subsequently convicted felon--Steven J. Romer.
- Whirlpool Financial Corp. v. Sevaux. Representation of French guarantor in connection with dispute arising from failed financing of Venezuelan oil industry concern in a federal action in Chicago, Illinois.
- Dumba v. Schmidt. Represented victim of fraudulent scheme perpetrated by prominent New York lawyer in securing recovery of stolen assets, criminal prosecution and restitution.
- Von Kageneck v. Cohen, Pontani, Leiberman & Pavane. Representation of inventor of early Boolean database search technology in patent malpractice litigation in both state and federal court in Manhattan.
- Semida v. Rice. Representation of a Somalian agent in a jury trial in federal court in Alexandria, Virginia, on defamation and tortious interference claims arising from a dispute with U.S.-based trading company over SBA-financed contracts administered by USAID.
- Silverston v. de Mattos. Representation of Brazilian international trading company in federal court in Manhattan in multi-million dollar partnership dispute over U.S.-based assets.
- Engel v. Cook. Representation of client in a bench trial in New York Supreme Court involving claims for attorney’s fees and alleged malpractice.
- Walton v. Secretary of Health and Human Services. Representation of petitioner in a bench trial before the US Court of Federal Claims seeking recovery under the National Vaccine Injury Compensation Act for damages for cardiac and other complications relating to measles, mumps and rubella (“MMR”) vaccination.
- Herrera v. Young. Representation of plaintiff pro bono publico in federal civil rights jury trial in White Plains, New York, arising from prison assault.
White Collar / Criminal Defense
Together with his two former federal prosecutor partners and as member of two AmLaw 100 White Collar Criminal Practice Groups, Mr. McCarney has been involved in numerous high profile criminal cases as well as grand jury and administrative investigations into white collar criminal charges. He has also counseled corporate clients in connection with internal investigations into alleged criminal conduct, and assisted in connection with compliance issues involving money laundering, bribery, the Foreign Corrupt Practices Act and related matters. His practice also extends to defense of state criminal charges, often involving plea negotiations with the Manhattan District Attorney’s Office as well as local prosecutors throughout the greater metropolitan area both in New York and New Jersey.
- People v. Avion Resources Ltd. Represented Brazilian depositors in connection with overlapping investigations into money laundering and currency and exchange control violations conducted by Brazilian and US federal and state authorities.
- In re Request for International Judicial Assistance (Letters Rogatory Brazil). Representation of Panamanian corporate depositor in landmark ruling by the US Appeals Court in New York denying Brazilian Government’s request to subpoena records at Morgan Guaranty Trust Company for accounts that were the subject of defalcations by bank officer and convicted felon Antonio Gebauer.
- United States v. Ritwegger. Representation of individual defendant on criminal appeal following conviction on securities and wire fraud and Travel Act charges in U.S. District Court in Manhattan.
- SEC v. Thrasher. Representation of defendant in insider trading case involving violations of the antifraud provisions of the Securities Exchange Act and Rules 10b-5 and 14e-3 thereunder in federal court in Manhattan arising from takeover of Motel 6 by French hotel and tourism conglomerate Accor S.A.
- SEC v. Naegeli. Representation of Swiss attorney in insider trading case in federal court in Manhattan arising from tender offer for the Delaware company, Combustion Engineering, Inc., by the Swedish-Swiss multinational, Asea Brown Boveri Ltd.
Employment / Non-Competes
The Firm has litigated all range of employment issues, including contract, discrimination, ERISA and enforceability of restrictive covenants, in federal and state courts as well as FINRA and other arbitral tribunals. As an adjunct to its trial work, and often to avert litigation, the Firm has developed a particular expertise in counseling clients in negotiation of employment and separation agreements and related non-competition and non-solicitation provisions. These negotiations often involve complex issues concerning interpretation of stock and other bonus plans as well as the continuing nature of commission, carry or other ongoing compensation arrangements. Mr. McCarney has personally reviewed and negotiated hundreds of these agreements and is well versed in the nuances of their terms across a spectrum of industries. His representation has extended to both employer and employee, right up to Chairmans of the Board of both start-up and Fortune 500 companies alike.
- Lambert v. Macy’s Inc. Secured summary dismissal of employee claims under state and municipal law for racial discrimination and harassment, constructive discharge, hostile work environment, retaliation and punitive damages in both Supreme Court and on appeal in Brooklyn.
- Jarvis v. CIGNA Corp. Represented California widow of deceased senior executive in federal bench trial in Manhattan to secure recovery under business travel life insurance policy.
- Murphy v. Gabelli. Representation of former managing director through jury selection and settlement in federal court in Manhattan in seminal case establishing standards for receipt of “evergreen” commissions for sourcing money management accounts.
- Brown v. Credit Suisse First Boston (USA), Inc. Representation of a departing investment banking group in both judicial and arbitral proceedings in New York involving enforcement of non-compete provisions.
- Lopez v. M. Castellvi, Inc. Defended New York-based steel mill supplier in a federal bench trial in Manhattan against employee claims for profit participation arising from Latin American operations.
- Wong v. Citigroup, Inc. Representation of registered representative in FINRA arbitration involving stock option dispute.
Real Estate Litigation
Many cases have been handled by the Firm involving real estate holdings, including disputes arising from real estate investments by foreign clients in Manhattan. The Firm has often been called upon to vindicate partnership or development rights and also to resolve claims to ownership, commissions or fees or for damages arising from construction or infringement of property rights.
- Marshall v. Stark. Secured summary dismissal of partnership claims at both trial and appellate levels in the New York State courts on behalf of Hawaiian developer of luxury condominium project on David’s Island off New Rochelle in Long Island Sound.
- Au Bon Pain, Inc. v. Fine. Secured summary dismissal of right of redemption claim in Housing Court in Manhattan brought by one of the infamous Village Voice “Top Ten Slumlords.”
- Snider v. Leibovitz. Represented owner of historic 19th Century Townhouse in Greenwich Village in Manhattan on claims against celebrity photographer arising from structural damage caused by construction malpractice on adjoining property.
- Sultan v. Connery. Represented owner of landmark condominium on the Upper East Side in Manhattan on claims arising from faulty construction commissioned for adjacent unit by famous “James Bond” actor.
- Penthouse Terraces, Inc. v. McGrath. Lead counsel in jury trial in New York Supreme Court vindicating Austrian purchaser’s right to convert rooftop maids’ rooms into luxury penthouse condominium atop landmark building on Fifth Avenue in Manhattan.
- Symphony Space, Inc. v. Pergola Properties, Inc. Represented Astor family interests in title dispute involving real estate used to develop The Symphony Space Theatre on the Upper West Side of Manhattan.
- Motjan N.V. v. Lebow. Represented Saudi interests in landlord tenant matter in Housing Court in Manhattan involving Dag Hammarskjold Plaza.
- Dumba v. Newmark. Represented plaintiff in federal bench trial in Manhattan on abuse of process claim arising from wrongful filing of lis pendens.
- Rudey v. Landmarks Preservation Commission. Represented owner of luxury Fifth Avenue condominium in proceedings in the New York State courts against the Landmarks Preservation Commission to uphold development rights.
- Kelly & Stone Architects, Inc. v. Brown. Representation in Denver arbitration of luxury homeowner in Copper Mountain, Colorado, in dispute over architectural services.
- Transport Properties, Inc. v. ABC Treadco, Inc. Secured summary dismissal in federal court in Manhattan on behalf of a nationwide trucking concern of a real estate brokerage commission claim arising from sale of a Mid-Atlantic trucking terminal.
Trust & Estates
The Firm is at home in Surrogate’s Court and in matters involving disputed legacies, defalcation or mismanagement by trustees or executors, and the like. As an adjunct to its litigation practice, the Firm is also frequently called upon to provide counsel in estate planning and probate matters.
- Valencia Bartels de Nunez v. Valencia Bartels. Representation of heir to multi-million dollar Panamanian corporation at trial in state court in Washington Parish, Louisiana, in legacy dispute involving Venezuelan and Panamanian law.
- In Re Estate of Minton. Representation heir to Bloomingdale estate in proceedings to remove trustee for malfeasance in Surrogate’s Court in White Plains, New York.
- Pro Bono Investments, Inc. v. Goldner. Representation of estate in federal bench trial in Manhattan on claims for unjust enrichment arising from defalcations by decedent’s investment advisor.
- Hallingby v. Hallingby. Represented former spouse in dispute over entitlement to decedent husband’s survivor annuity benefits in federal court in Manhattan.
The Firm has been a pioneer in the whistleblower arena, having handled such matters well before passage of Sarbanes-Oxley. On the prosecution side, the Firm has worked closely with the US Attorney’s Office to investigate and formulate claims and a strategy for recovery. This insight has proven invaluable in assisting clients on the defense side when confronted with whistleblower investigations or litigations.
- U.S. ex rel. Klimasewiski v. UnitedHealth Group. Representation of a whistleblower in obtaining a more than $20 million recovery on behalf of the US under the qui tam provisions of the Federal False Claims Act arising from fraudulent overbilling in the administration of the federal Medicare program.
- U.S. ex re. Thistlethwaite v. Dowty Woodville Polymer. Representation of whistleblower in landmark case extending application of the Federal False Claims Act overseas and securing multi-million dollar recovery arising from fraudulent overcharges in connection with the US Air Force’s F-111 and B-1B programs.
Breaches of Campus Security occur with greater frequency than the public is generally aware. Instances of violent and other crimes, including murder, rape and sexual assault, are now subject to mandatory annual disclosure by institutions of higher learning as a precondition to receipt of federal funding under the Jeanne Clery Campus Security Act (20 USC § 1092(f)). In an attempt to reduce liability for the large volume of cases, the universities defend these cases with inordinate vigor, often with little or no regard for the welfare of their students. The Firm’s experience in this area and working relationship with leading experts in campus security and Post-Traumatic Stress Syndrome (“PTSD”) serves to overcome these defenses. Invariably the perpetrators of the crimes are brought to justice, security at the universities is improved substantially, and monetary payments are made as some measure of compensation for the damage that has been done.
- Doe v. Columbia University. Represented victim of rape and sexual assault in action for damages for breach of campus security in U.S. District Court in Manhattan.
- Anonymous v. Anonymous. Represented victim of felony sexual assault in action for damages in New York Supreme Court and related Manhattan Criminal Court proceedings involving a leading university located in the New York metropolitan area.
- Doe v. Howard University. Represented victim of rape and sexual assault in actions for damages for breach of campus security in the U.S. District and Superior Courts in the District of Columbia.