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ASSURED GUAR. v. J.P. MORGAN

603755/08.

80 A.D.3d 293 (2010)

915 N.Y.S.2d 7

ASSURED GUARANTY (UK) LTD., in the Right of Itself and of ORKNEY RE II PLC, Appellant, v. J.P. MORGAN INVESTMENT MANAGEMENT INC., Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided November 23, 2010.

Attorney(s) appearing for the Case

Wollmuth Maher & Deutsch LLP, New York City ( William A. Maher , Vincent T. Chang and Randall R. Rainer of counsel), for appellant.

Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York City ( Richard A. Rosen , John F. Baughman , Farrah R. Berse and Jennifer K. Vakiener of counsel), for respondent.

Andrew M. Cuomo , New York City ( Richard Dearing , Barbara D. Underwood and Robert C. Weisz of counsel), for Attorney General of the State of New York, amicus curiae.

Wilmer Cutler Pickering Hale and Dorr, LLP, New York City ( Lori A. Martin of counsel), for Securities Industry and Financial Markets Association, amicus curiae.

ANDRIAS, J.P., SAXE and CATTERSON, JJ., concur.

OPINION OF THE COURT

SWEENY, J.

This appeal raises several issues, the most significant being whether common-law causes of action for breach of fiduciary duty and gross negligence are preempted by New York State's Martin Act (General Business Law §§ 352-359-h). This is a pure question of law and one that has generated a significant amount of discussion, both on the state and federal levels.

The...

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