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Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
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“No Actions” Clause Barring Suit and Requiring Indemnification of Defense Costs If Suit Is Filed Does Not Extend to Attorneys’ Fees Incurred in Bringing Counterclaim

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From McKissick v. Gemstar-TV Guide Int’l, Inc., 2010 U.S. App. LEXIS 18753 (10th Cir. Sept. 8, 2010):

The *** "No Actions Clause" [provides]:

17. No Actions. Employee represents and warrants that she has not filed any complaints or charges or lawsuits against the Company with any governmental agency or any court, and has not assigned any cause of action to any third party, and that she will not file lawsuits against the Company for claims arising up to and including the Effective Date at any time hereafter; provided, however, that nothing in this Agreement shall be deemed to limit Employee from filing an action for the sole purpose of enforcing her rights under this Agreement. If Employee violates the Agreement by bringing or maintaining any charges, claims, grievances, or lawsuits contrary to this provision, she will pay all costs and expenses of the Company and/or related persons in defending against such charges, claims or actions brought by her or on her behalf, including reasonable attorney's fees, and will be required to refund, at the Company's sole discretion, the value of any amount paid by the Company in exchange for this Agreement.

***

Though she doesn't dispute that the No Actions Clause permits Gemstar to recover any fees and costs it incurred in defending contractually barred claims, she argues that the Clause makes no provision for expenses incurred by the company in prosecuting its own counterclaims.***

With this, we agree. Gemstar stakes its claim to attorney fees entirely on the language of the No Actions Clause, which provides that if Ms. McKissick brings barred claims against Gemstar, "she will pay all costs and expenses of the Company and/or related persons in defending against such charges, claims or actions brought by her or on her behalf, including reasonable attorney's fees." *** The plain language of the Agreement makes no mention of costs associated with prosecuting claims, only defending them. And to "defend" a claim is to "ward off, avert, repel, restrain, prevent" it. IV Oxford English Dictionary 376 (2d ed. 1989). It is not to pursue, prosecute, or push a (counter)claim. Neither has Gemstar supplied any reason why we should deny effect to the ordinary and popular meaning of the contractual terms the company itself chose. The parties were, of course, free to define their terms as they wished. And they were free to provide for recoupment of costs incurred in connection with counterclaims or the litigation generally. But this they didn't do. The part of the district court's order awarding Gemstar fees for "obtaining summary judgment on its counterclaim" simply doesn't find support in the express terms of the parties' agreement. And our job is to give voice to and enforce the autonomous will of the parties, as expressed in the plain language of their deal, not to rewrite or perfect that deal.

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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