Carolyn G. Nussbaum
Partner

Practice Areas

Experience

Carolyn Nussbaum serves as co-chair of the Financial Services and Securities Litigation Group’s Securities Litigation and Corporate Governance Team. Her background includes representation of clients in disputes arising out of various commercial relationships, particularly shareholder disputes and securities litigation. Ms. Nussbaum also handles complex contract litigation involving, among other commodities, financial interests, mortgage derivatives, distributorships, and franchises.

She has defended issuers, directors and officers, brokers, and brokerage houses against direct and derivative claims of fraud, negligence, racketeering, Sarbanes-Oxley violations, breaches of fiduciary duty, and related ERISA claims in federal and state courts, before arbitration panels, and in enforcement proceedings brought by the Securities and Exchange Commission. She has a proven track record of obtaining dismissal of complex claims on preliminary motions. She has substantial experience arbitrating and litigating broker-customer disputes, from motions through confirmation proceedings. She currently represents issuers and their directors and officers in the massive initial public offering litigation pending in the Southern District of New York. She has also successfully litigated stockholder derivative actions and partnership and corporate liquidations and dissolutions, in both state and federal courts.

As part of her representation of business clients, Ms. Nussbaum has litigated transactional controversies, including disclosure and fiduciary claims by shareholders as well as post-transaction valuation and indemnification controversies, and represents banks and other financial institutions in the defense of fraudulent transfers, preference and lender liability claims.

Ms. Nussbaum frequently counsels clients and lectures on issues of compliance, disclosure, directors’ and officers’ liability, and loss prevention. She has represented financial institutions in complex limited partnership litigation of national scope, including that arising out of the demises of VMS Realty, Colonial Realty Company, and Property Investors Corporation. These multifaceted disputes engendered bankruptcy and investor note litigation, with substantial lender liability claims, and were resolved with successful workout and restructuring negotiations. In each of these cases, Ms. Nussbaum successfully obtained dismissal of all federal securities claims against lenders on preliminary motions.

Ms. Nussbaum has also represented franchisors before arbitration panels and in the courts, successfully defending against claims by franchisees and obtaining relief to protect and enforce franchisors' rights, including obtaining emergency relief to restrain the post-termination use of intellectual property.

Ms. Nussbaum has lectured on federal litigation, discovery, procedure, and trial practice and before many chapters of the International Association for Financial Planning on risk management. She has spoken to the American Bar Association Forum on Franchising on the duties of disclosure in the franchise field and also served as an instructor for the National Institute of Trial Advocacy.

Ms. Nussbaum is the only woman selected as a Top 10 “Upstate Super Lawyer” based on a peer-review survey by New York Super Lawyers magazine (2008), and is recognized as a Super Lawyer in Securities Litigation (2009, 2008). She has also been elected by her peers to be included in the 2004 - 2009 editions of The Best Lawyers in America® for Commercial Litigation and for Bet Your Company Litigation.

Representative Cases

• In re Bausch & Lomb Inc. Securities Litigation, 2008 U.S. Dist. LEXIS 92034 (W.D.N.Y. Nov. 13, 2008) (granting defendants' motion and dismissing securities fraud claims, in their entirety and with prejudice, against company and eleven individual defendants alleging multiple false statements related to restatement of three years of financial reports and product recall)
• Novartis Pharmaceuticals Corp. v. Bausch & Lomb, Inc., 2008 U.S.Dist. LEXIS 92133 (D.N.J. Nov. 13, 2008) (granting defendant's motion and dismissing defamation, tortious interference and misappropriation claims against client)
• Pinchuck v. Zarrella (N.Y. Supreme Court, 2006/06377, March 30, 2007) (dismissing on motion shareholder derivative claims against Board alleging directors breached their fiduciary duties by failing to inform themselves of problems preceding product recall)
• In re Eastman Kodak Company Securities Litigation, 2006 U.S. Dist. LEXIS 79879 (WDNY 2006) (securities fraud claims against issuer and its directors and officers dismissed in their entirety on motion)
• Miller v. Allaire, 2006 Conn. Sup. LEXIS 1575 (Sup. Conn. 2006) (derivative claims against Xerox Corporation and its officers and directors dismissed on motion)
• In re Corning Incorporated Securities Litigation, 2004 U.S. Dist. LEXIS 8741 (WDNY 2004), aff'd, 2005 U.S. App. LEXIS 5259 (2d Cir. 2005) (granting defendants’ motion and dismissing securities fraud claims against company and its officers under the Securities Act and Securities Exchange Act in their entirety)
• United Republic Ins. Co. v. Chase Manhattan Bank, 2002 U.S. App. LEXIS 14426 (2d Cir. 2002) (successfully defended dismissal of multimillion fraudulent transfer, racketeering, and fraud claims)
• Crowley v. Corning, Inc., 234 F.Supp. 222 (WDNY 2002) (dismissing ERISA claims challenging continued offering of sponsor's stock as an investment option)
• John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48 (2d Cir. 2002) (litigated arbitrability of securities claims under NASD Code of Arbitration)
• Brimo v. Corporate Express, Inc., 2000 U.S. App. LEXIS 25381 (2d Cir. 2000) (successfully defended dismissal on motion of securities claims against public company)
• Lowe v. Salomon Smith Barney, 206 F.Supp. 2d442 (WDNY 2002) (obtained dismissal of securities fraud claim based on allegedly fraudulent analyst report)
• Pesino v. Atlantic Bank, 244 Conn. 85 (Sup. Ct. Conn. 1998) (upholding right of financial institution to multimillion-dollar settlement of securities fraud and lender liability claims)
• Dodds v. Cigna Securities, Inc., 12 F.3d 346 (2d. Cir. 1993), cert. denied, 1994 U.S. LEXIS 2709 (1994) (affirming dismissal of securities fraud claims on limitations grounds)

Publications
Ms. Nussbaum has published several articles and book chapters, including:

• “Two recent New York court decisions end litigation between New York Attorney General and Richard Grasso, former NYSE chairman,” Nixon Peabody Corporate Responsibility Alert, July 11, 2008
• “Good hygiene for special litigation committees,” Nixon Peabody Class Action Alert, July 10, 2008
• “Second Circuit holds that a plaintiff may plead corporate scienter in securities fraud suit without pleading scienter of any specific individual defendant,” Nixon Peabody Securities Litigation Alert, July 7, 2008
• “Supreme Court holds that parties may not agree to expand grounds for vacating or modifying an arbitration agreement under Federal Arbitration Act,” Nixon Peabody Alternative Dispute Resolution Alert, April 1, 2008
• “Supreme Court refuses to extend implied private right of action in Stoneridge v. Scientific Atlantic,” Nixon Peabody Securities Litigation Alert, January 16, 2008
• “Strong words: the Supreme Court defines the statutory requirement to plead a “strong inference” of scienter in securities fraud complaints,” Nixon Peabody Securities Litigation Alert, June 25, 2007
• “ADR Update,” 2008, 2007 and 2006 Annual Review of Developments in Business and Corporate Litigation, American Bar Association, Business Litigation Committee of the Business Law Section Practice Insights, UCC sections 2-602, 2-606, 2-607, 2-702, 2-703, 2-705, 2-708, NY Cons. Laws Serv., Mathew Bender & Co., Inc. (2006) (available on-line through Lexis)
• “Dabit Demystified: U.S. Supreme Court Rules on SLUSA,” The Daily Record, April 24, 2006
• “Finding Shelter in the Storm: Safe Harbor for Forward-Looking Statements,” Recent Developments in Shareholder Litigation and Related Government Enforcement Initiatives, New York State Bar Association, June 9, 2005
• “Decision in Walt Disney Shareholder Derivative Suit Criticizes But Protects Compensation Decisions of Directors under Business Judgment Rule,” Nixon Peabody Corporate Responsibility Alert, August 17, 2005
• “Alternative Business Structures for the Franchise System,” American Bar Association Forum on Franchising, October 2000
• “Duty to Disclose Purchase or Sale Activity,” co-author, American Bar Association Franchise Law Journal, Vol. 18, No. 2 (Fall 1998)

Speaking Engagements
Ms. Nussbaum is a regular speaker on securities litigation, corporate governance and ethical issues at industry and legal events, including:

• “Commercial Division Update,” New York State Bar Association, Commercial and Federal Litigation Section, April 2007
• “Privilege and Ethics – Developments in Corporate Law,” National Association of Women Lawyers Mid-Year Meeting, February 2007
• “Risk Management for Financial Professionals,” Financial Planners’ Association Convention, May 12, 2006
• “After Disney: Directors’ Duties,” Association of Corporate Counsel, Rochester Chapter, November 2005
• “Dissolution of Business Entities,” New York State Judicial Institute, September 29, 2005

Admissions

Ms. Nussbaum is admitted to practice in New York and the District of Columbia, and before many federal district courts, the courts of appeals for the Second and Sixth circuits, and the United States Supreme Court.

Education

George Washington University, J.D., with high honors
Smith College, B.A.

Affiliations

Ms. Nussbaum is a member of the American Arbitration Association (Securities Arbitration and Franchise panels); the New York State Bar Association (Fellow); the New York State Bar Association (former elected delegate and member, Nominating Committee, current appointed member of Committee on Courts of appellate Jurisdiction); the Monroe County Bar Association (former trustee and Co-Chair of the Litigation Section); the Volunteer Legal Services Project (past president); the Women’s Bar Association of the State of New York (past director); and the Greater Rochester Association for Women Attorneys (past president). She is also Co-Chair Elect of the ADR Sub-Committee of the Business and Corporate Litigation Committee of the Business Law Section of the American Bar Association. She was appointed by the Courts to the Character and Fitness Committee for the Seventh Judicial District; the Independent Judicial Qualifications Commission of the Seventh Judicial District and the Committee on the Local Rules for the Western District of New York.

Ms. Nussbaum’s community activities include: Cancer Wellness Spa of Rochester, Inc. (founding board member); Temple Beth El (board member and officer); Jewish Community Center of Rochester (board member and officer); Jewish Community Federation of Rochester, Inc. (board member and committee chair); and Foundation for the Jewish Community, Inc. (committee member).