Olshan Secures Appellate Victory for Client Affirming Decision Granting Dismissal of Claims of Alleged Oral Agreement as Barred by LLC Agreement

In March 2024, the Appellate Division, First Department, upheld a New York Supreme Court decision dismissing all claims against Olshan’s client in a lawsuit initiated by Albert Behler against Kai-Shing Tao over an alleged oral agreement regarding a $3 million investment in Digipac, LLC. Behler claimed Tao failed to honor an agreement allowing him to cash out within five years, but the trial court found this oral agreement to be overridden by the terms of Digipac’s LLC Agreement, which included a merger clause, and deemed the oral agreement vague. The Appellate Division affirmed, applying Delaware law, holding that the plaintiff was bound by the LLC Agreement’s terms even without his signature, and dismissing arguments against the agreement’s "unilateral" amendment by Tao. The dissent of two justices did not sway the court’s decision. The Appellate Division’s Decision and Order is available at Behler v. Tao, No. 2022-03237, 2024 WL 1098555 (1st Dep’t Mar. 14, 2024). The Olshan team representing the respondent was led by litigation partners Thomas Fleming and Kerrin Klein.