Davis Polk Convinces Appellate Court To Uphold Successful Motion To Dismiss in Contract Dispute

On May 10, 2011, Davis Polk won a dismissal of claims brought by Creative Mobile Technologies, LLC (CMT) against SMART Modular Technologies, Inc. CMT's case, filed in the New York Supreme Court, Queens County, alleged damages resulting from a supposed breach of contract relating to the delivery of CPU's and displays for use in taxicabs. The trial court dismissed CMT's claims on the ground that CMT was prohibited from filing suit in New York based on a forum selection clause that was contained in the parties' contract.

On July 11, 2012, a unanimous panel of New York's Appellate Division, Second Judicial Department, affirmed the dismissal of CMT's complaint, rejecting CMT's contention that the forum selection clause was unenforceable. The court agreed with Davis Polk's contention that the forum selection clause "was expressly and fully incorporated into the parties'" agreement, and that the clause was valid.

The Davis Polk litigation team included partners Neal A. Potischman and Sharon Katz, counsel Lawrence E. Jacobs and associates Courtney A. Howard and J. Stan Barrett. The appeal was argued by Mr. Jacobs. Members of the Davis Polk team are based in the New York and Menlo Park offices.