August 24, 2018 News

David Saxe, Danielle Lesser and Michael Mix Author Article on Court of Appeals Ruling on Sole Remedy Clauses

August 24, 2018 – The Hon. David B. Saxe, (ret.) Danielle C. Lesser and Michael Mix authored the article “From 'Nomura' to 'Ambac': Where Does the Law on Sole Remedy Clauses Stand?” that appeared in the New York Law Journal on August 20, 2018.

The article examines recent rulings on plaintiffs’ seeking to use contractual remedies other than the sole remedies clause in connection with defendants’ contract breaches.  The authors analyze Ambac Assurance v. Countrywide Home Loan, No. 79, 2018 N.Y. LEXIS 1542 (Ct. App. June 27, 2018), where the Court of Appeals upheld a contractual sole remedy clause, adhering to long-standing precedent.  The court, quoting Nomura, re-emphasized that “[c]ontract terms providing for a sole remedy are sufficiently clear to establish that no other remedy was contemplated by the parties at the time the contract was formed, for purposes of that part of the transaction … especially when entered into at arm’s length by sophisticated contracting parties.”

Additionally, the article examines a recent case where a court applied a cumulative remedies clause in Fin. Guar v. Credit Suisse Sec. (USA) LLC, No. 651178/2013, 2015 N.Y. Misc. LEXIS 2850 (Sup. Ct. N.Y. Cty. Aug. 3, 2015).

Click here for a pdf of the article.