New York

Elsberg Baker & Maruri is an elite commercial trial, litigation, and arbitration firm comprised of some of the nation’s top trial lawyers. We are consistently on the cutting edge of major commercial litigation and have acted as trial counsel in some of the most important and precedent-setting business trials and arbitrations, including matters arising from multibillion-dollar disputes involving busted M&A deals, corporate governance, complex contracts, energy, investment funds, violation of investment guidelines, computer hardware and software, breach of fiduciary duties, bond indentures, securities, fraudulent transfers, insolvency and major bankruptcy proceedings, and more. We are dedicated to achieving success for our clients and servicing their needs whenever and however they arise. We take pride in developing bold and creative strategies and relentlessly pursuing victory at all stages of the case.

EBM’s partners have won complete trial and arbitration victories on behalf of our clients in bet-the-company cases where the client’s survival was at stake. Our deep trial experience in such cases means our partners are called on not only to handle such cases from the outset—but also to come in shortly before trial. We have developed a process to work collegially and efficiently with existing counsel, and when appropriate, leverage our relationships with leading jury consultants to test key theories and trial presentation strategies. Some examples of our many trial and arbitration victories include:

• Won complete dismissal of all counts in a lawsuit against Sol Goldman Investments, LLC (“SGI”). The plaintiffs, who hold interests in SGI, sought to sell interests back to the company based on a valuation determined by a contractually mandated appraisal process. Unhappy with the $1.8 billion value ascribed to the company, the plaintiffs sued claiming SGI breached its own operating agreement. The Commercial Division of the New York Supreme Court granted SGI’s motion to dismiss, rejecting the plaintiffs’ argument that the company must be bound by its own operating agreement even though the company was not a signatory to it.
• Won complete defense jury verdict for Express Scripts against claims brought by New York City Transit Authority, claiming Express Scripts did not properly address “fraudulent, abusive or excessive” claims for compound drugs and seeking $100 million in damages. After an eight-day trial in the SDNY, the jury awarded $0.
• Won trial victory after one-week bench trial in Delaware Court of Chancery in the first COVID-era busted deal case in which the client sought to walk away from a $6 billion deal. In addition to being released from deal, client obtained full recovery of its $600 million+ deposit and was awarded its full attorneys’ fees and costs. Affirmed on appeal by the Delaware Supreme Court in an opinion setting the precedent on ordinary course covenants in deal documents.
• Won trial victory in the Delaware Court of Chancery in KCake v. Snow Phipps, a busted-deal case in which private equity buyer Kohlberg & Co. sought to terminate its $600 million agreement to purchase a cake decorating business from private equity seller Snow Phipps. Following a nine-day trial, the Court compelled Kohlberg & Co. to close the deal despite the lapse of its financing, ruling that Kohlberg had caused the failure of its financing and could not use that basis to excuse it from closing. This precedent-setting case established new law on the prevention doctrine.
• Won trial victory after a one-week trial in the Delaware Court of Chancery on behalf of Athilon Capital Corp. and its board of directors in Quadrant v. Vertin defeating breach of fiduciary duty, breach of contract, and fraudulent transfer claims which sought hundreds of millions of dollars in damages, as well as a court order that would have forced the client to liquidate its assets and close down the business entirely. The Court issued a post-trial decision that denied all the relief Quadrant requested and permitted Athilon to continue executing the long-term business strategy that Quadrant challenged at trial. The press described this trial victory as a “resounding win” in a “literal bet-the-company case” that set precedent concerning the test for insolvency under Delaware law and that was affirmed by the Delaware Supreme Court.
• Won trial victory after a six-day trial in the Delaware Court of Chancery on behalf of Crestview Partners against billionaire William Koch, defeating fiduciary duty claims and enforcing Crestview’s contractual put and exit-sale rights in connection with Crestview’s investment in Oxbow Carbon.
• Won trial victory in NY State court on behalf of American industrialist Len Blavatnik on his claims that JPMorgan violated its obligations under agreed-upon investment guidelines by misclassifying securities backed by risky subprime loans as “asset-backed” rather than “mortgage-backed” securities.
• Won arbitration victory on behalf of Rosen Capital on its claims against Bank of America/Merrill Lynch which wrongfully prevented Rosen Capital from executing its options volatility trading strategy. It was one of the largest investor awards on record.

Updated Sep 2024