Comments on Recent Cases: April 2026
.jpg)
Part of my work involves reading court decisions to keep abreast of how judges decide the types of cases I handle. Below, I share some thoughts on recent decisions.
Academic Journal Publishes My Article on Arbitration Law
The Corporate and Business Law Journal has published an article written by Meghan Warren and me about the differences between American and Australian law in permitting courts to correct legal errors made by arbitrators. It notes that the U.S. Supreme Court declined to settle the American law’s uncertainty on the issue in a case involving salesperson Mike Lindell (gift article here).
Court Enforces No Action Clause to Protect Non-Party to Agreement
Since litigation is burdensome and expensive, parties can agree to limit their exposure to a lawsuit. Courts may enforce “no action” clauses, putting up obstacles to opening a lawsuit, even when the lawsuit protects non-parties to the agreement.
For example, in a recent case before the state appeals court in Manhattan, a company sued a lender. The lender argued the case must be dismissed because the relevant agreement had a no action clause that allowed only parties with a minimum ownership of a trust to bring suit, and even then only on 60 days’ written notice to the trustee. The company argued the lender wasn’t a party to the agreement and so could not be protected by the no action clause. The court disagreed with the plaintiff and affirmed dismissal of the case.
Decisions like this illustrate how courts enforce no action clauses.
Court Refuses to Dismiss Negligence Claim For Lack of Duty
To prevail on a negligence claim, a plaintiff needs to establish that the defendant owed her a duty. This is a fact-specific inquiry, and a trial may decide disputed facts, so it is difficult to dismiss negligence claims before trial on the grounds that a duty did not exist.
For example, in a recent case before the state appeals court in Manhattan, a woman sued a Catholic diocese for abuse she suffered at a school. The diocese argued it did not owe her a duty since it did not own or operate the school. But the appeals court affirmed denial of summary judgment for the diocese, noting that there were disputed issues of fact that suggest the diocese did have “some degree of control.”
Decisions like this illustrate the challenges in litigating negligence claims.
Court Refuses to Take Judicial Notice of Disputes Issues Outside of Complaint
When a judge is deciding to dismiss a claim at the start of litigation, she will typically review only the complaint itself to make sure it is legally sufficient. A defendant who presents evidence to show her innocence may want the case dismissed sooner, but judges will often reject these arguments at the motion-to-dismiss phase. Evidence is weighed at a later stage of litigation.
For example, in a recent case before the federal district court in Miami, the president of the United States sued a newspaper; he claimed an article it wrote about his sending a birthday note to notorious monster Jeffrey Epstein was defamatory. The newspaper, in its motion to dismiss, asked the court to take “judicial notice” of evidence not in the complaint. These included the note itself, which the complaint describes, and documents from a congressional investigation into this matter. The court held that, since the President disputed the authenticity of the documents and information, it could not consider them on a motion to dismiss.
Decisions like this illustrate the limits courts place on relevant material for a motion to dismiss.