Tom is of counsel in RLR’s litigation group and handles a wide variety of complex business disputes, including disputes relating to contracts, real estate and construction, investments, employment, bankruptcy, fraud, accounting, insurance, tax, and fiduciary matters. Several recent cases exemplify the nature of Tom’s practice and RLR’s commitment to representing clients at the highest level:
The Case of the “Con(vent) Artist”
I recently served as the lead trial attorney in a five week jury trial representing an art dealer sued by a convent of nuns for fraudulently inducing the sale of a 19th Century painting by William Adolphe Bouguereau. The nuns sold the painting to our client for $450,000 and he soon re-sold it for $2.2 million. To complicate matters, our client had two criminal convictions that were unrelated to the lawsuit but were admissible as character evidence under New York’s liberal rule regarding admissibility of prior criminal convictions. The case received extensive media attention, all negative to our client, including an article in the New York Post under the headline “Con(vent) Artist.” The perception was that the nuns had a slam dunk case.
In developing our case, however, it became clear that one of our client’s competitors had actively encouraged the nuns to file their suit. The competitor had extraordinary personal animus towards our client and made numerous misrepresentations to the nuns about our client and his purchase and re-sale of the painting. At the trial, we presented evidence regarding this “back story” leading to the lawsuit. We established that from the time they filed the lawsuit through the date of the trial several years later, the nuns harbored material misconceptions about our client and the transaction upon which they were suing.
Once the nuns acknowledged their sustained and pervasive misconceptions about central issues in the case, their testimony regarding many other events was not credible. The jury denied all of the nuns’ claims against our client.
A Knotty Receivables Claim
We recently obtained a multi-million dollar recovery on an account receivable claim that our client purchased in a bankruptcy proceeding. The defendant asserted numerous defenses, including a “set-off” defense claiming that the debtor still owed the defendant significant amounts relating to other aspects of their complex commercial relationship and that such amounts should “set off” or reduce the amounts owed with respect to our client’s claim. Establishing the amount of the receivable was also a forensic challenge because the receivable related to thousands of individual transactions across numerous product lines and the out-of-business debtor’s accounting documents were in disarray.
Careful preparation carried the day. During discovery, we obtained loan documents relating to secured financing that the debtor obtained several years earlier. These documents contained a side agreement in which the defendant specifically waived the set-off defenses that it was asserting in our case. Uncovering this long-forgotten agreement enabled us to obtain dismissal of the defendant’s critical set-off defenses.
However, we still needed to establish the specific dollar amount of our client’s claim. To do so, we retained forensic accountants to recreate the debtor’s accounting ledgers for the thousands of transactions at issue. We painstakingly substantiated each transaction by matching it to the defendant’s own accounting records as well as to invoices, bills of lading, and other transaction documents. Ultimately, we substantiated almost 100% of the receivable.
An Unprecedented Claim of Employment Discrimination
Sometimes the most gratifying cases concern the representation of the most vulnerable clients. In 2011, we were contacted by a young woman whose life was in free fall. She had worked as an administrative assistant at a prominent bank but was summarily terminated after pleading guilty to driving under the influence. At the time, she was going through a difficult breakup with her boyfriend, was struggling with alcohol issues, and was under financial strain to maintain the mortgage on her home. Her employment was her primary source of stability, and the loss of it was devastating. We agreed to take her case on a contingency basis.
Incredibly, the bank was oblivious to, or unconcerned with, New York’s law prohibiting discrimination based on conviction status unless the conviction relates to the employee’s employment responsibilities. Our client had no driving responsibilities in her administrative position and the bank’s termination of her based on a driving conviction obviously violated the law. Less obvious was our client’s remedy. New York State law required employees to refer such claims to the New York State Division of Human Rights to prosecute. New York City’s nearly identical law, however, appeared to permit a private cause of action, although at that time there wasn’t a single reported case sustaining such a claim under City law. We determined that our client’s claims were strong but unprecedented.
The bank refused our demand that it reinstate our client, and we immediately filed suit. Discovery quickly established that the bank’s decision-maker fired our client in knowing disregard of New York law. We mediated our claims before a federal magistrate judge who recognized the merits of our client’s claims and procured a highly favorable settlement for our client. The settlement proceeds provided our client vital financial support during one of the worst periods of her life, making this one of the most gratifying cases I have handled.
Prior Employment, Education and Admissions
Prior to joining RLR in 2001, I worked as a litigation associate at Milbank Tweed Hadley & McCloy from 1994 to 1999 and at Bernstein Litowitz Berger & Grossman from 1999 to 2000. I graduated cum laude from the University of Wisconsin Law School in 1995, where I served as a Note & Comment Editor of the University of Wisconsin Law Review. He graduated from Bard College with a B.A. in Political Science in 1991. He is admitted to practice law in New York and New Jersey.
Please contact me if you would like to know more about my practice.
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“When Are Interns Employees?,” New York Law Journal, August 3, 2015
“Duty to Accommodate Disability by Providing Leave of Absence,” New York Law Journal, August 18, 2010
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“All Risks Insurance, Exceptions to Exclusions: Burden of Proof?,” New York Law Journal, April 28, 2005
“Law School Debt and the Practice of Law,” The Record of the Association of the Bar of the City of New York, Vol. 58, Nos. 3-4, 2003