In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. write: The constellation of opinions in Myers reinforces historical statutes, cases, a State Task Force, and legislative activity that all come out in support of imposing criminal penalties in New York on individuals, including physicians, who intentionally act to aid a person in committing suicide.
In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul discuss a recent decision that examined the question of what jurisdictional contacts are necessary to obtain discovery from a nonparty through a subpoena served pursuant to 28 U.S.C. §1782, which authorizes a court to order discovery for use in a foreign proceeding.
In her Internet Issues/Social Media column, Shari Claire Lewis writes: We live in a world where cellphones are omnipresent. It is perhaps no coincidence, therefore, that cellphones are at the heart of a case currently pending before the U.S. Supreme Court, 'Carpenter v. United States,' that may result in a new 21st Century standard for searches and seizures under the Fourth Amendment.
In their Corporate and Securities Litigation, Mark D. Harris and Margaret A. Dale write: Some have expressed concerns that the SEC is not fully equipped to handle the host of cybersecurity issues that will continue to come its way. Nonetheless, the SEC appears focused on the mission of increasing cybersecurity and determined to address the growing threat to markets.
In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on several recent decisions: one involving a claim against a business for maintaining a website inaccessible to the blind, a second that made 'Fatico' findings against defendant in connection with purchasing material with military or nuclear uses for shipment to Iran, and a third denying defendants’ motion to dismiss.
The scope of non-party discovery obligations to which a New York branch bank remains subject are unclear, and this uncertainty points to actions the branches can take to minimize the exposure of their parents.
Corban Rhodes and Ross Kamhi write: We are at a pivotal moment with respect to how the law protects consumer personal information. The public, however, is largely unaware of the concerted opposition protection legislation faces from technology giants.
In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte discuss a September 2017 decision of the Court of Justice of the European Union, which set aside a 2014 General Court of the EU judgment that upheld a €1.06 billion fine imposed by the European Commission on Intel for abuse of its monopoly position.
In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: Recently, the Surrogate's Court and the Appellate Division had occasion to provide additional instruction on the impact of receipts and releases through the decisions in 'In re Salz' and 'Matter of Lee'.
Guy Allen writes: Because non-competition agreements are generally disfavored in New York, it is recommended that an employer, in order to put itself in the best position to protect itself against unscrupulous employees and competitors, and to protect the confidential information, trade secrets and customer relationships it worked so hard to develop, engage in the following practices from pre-hiring through post-employment.
In his Criminal Law and Procedure column, Barry Kamins presents a review of new legislation amending the Penal Law, Criminal Procedure Law and other related statutes. His discussion highlights key provisions of the new laws.
In their Privacy Matters column, Richard Raysman and Peter Brown discuss a recent SDNY decision premised on the reality that a "reasonable" Internet user would know that a blue highlighted hyperlink is the archetypal command to a user that the entirety of the referenced document can be viewed by clicking on the hyperlink.
In his Complex Litigation column, Michael Hoenig discusses rulings in 'Lyons v. Leatt Corp.' The rulings are lengthy and detailed, but the reader should not bail out on reviewing them. There are valuable lessons to be learned.
Paul J. Napoli and Tate J. Kunkle write: Are PFAS the next MTBE? Or, perhaps the next asbestos? Or, in the words of William Shakespeare, is it much ado about nothing? That is the question from both sides of the bar, as well as industry and the regulatory bodies.
In his Civil Rights and Civil Liberties column, Christopher Dunn writes: Roy Moore's Alabama primary win to become the Republican candidate for a U.S. Senate seat is big news for the world of constitutional law. Moore's defiant approach to the federal courts has surfaced most dramatically around two hot-button issues: a Ten Commandments monument and gay marriage.
In their Labor Relations column, David E. Schwartz and Risa M. Salins discuss recent decisions addressing what happens when an attorney uses confidential information to blow the whistle on a current or former client, and examine key considerations governing attorney conduct in whistleblower cases.
Vincent DiLorenzo writes: Real estate owners and developers often form limited liability companies to shield themselves from liability. Is this an effective means to accomplish this purpose? Curiously, the New York case law had little to say on this issue until a 2016 Second Department decision.
In his Evidence column, Michael J. Hutter discusses several practical takeaways from recent appellate decisions on New York’s "speaking agent" exception to the hearsay rule and establishing relevance of medical records for admissibility.
Gary Eisenberg writes: As the migratory trend in retail from in-person to online continues, unlike the case with past waves of retail bankruptcies, predictions do not abound for a "recovery" in traditional retailing. However, that seismic industry change is only part of the explanation why companies such as The Limited, Gordmans stores and hhgregg have not only filed for bankruptcy but have ceased operations with their cases proceeding rapidly. The legal regime and common practices of Chapter 11 are substantially different from those facing the large retailers such as Kmart and Caldor, whose filings shaped the course of retail Chapter 11 practice in the 1990s.
Ethan A. Brecher writes: The consequences to a Financial Industry Regulatory Authority registered representative for not paying an adverse arbitration award can be career-threatening, yet non-payment of arbitration awards is a significant on-going problem for FINRA. Thus, at its July Board of Governors meeting, FINRA's Board authorized new rules to remedy the problem.
In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas discuss some recent controversies involving employee speech and the laws governing employers’ ability to regulate and respond to disruptive speech in the workplace.
Craig Newman and Maren J. Messing write: A legal feud is currently playing out in New York state court between the world’s biggest hedge fund administrator and a former client, and it all started with an email from an address containing a single extra letter. At the center of the lawsuit is the question of responsibility for an email scam that resulted in hackers stealing millions in client funds, and it is a case study in the mounting problem of cyber wire fraud and allocating fault when funds go missing.
White-Collar Crime columnists Robert J. Anello and Richard F. Albert write: The lifelong collateral consequences of a criminal conviction, imposed by state and federal statutes and regulations, can make it nearly impossible for many to obtain gainful employment, support their families or otherwise live productive lives. Unfortunately, under today's federal legal framework, expungement is virtually impossible. Although a near-term legislative fix may be a long shot, recent bipartisan legislation proposed in both houses of Congress shows that the issue at least is on federal lawmakers' radar screen.
Andrea M. Alonso and Kenneth E. Pitcoff writes: The Court of Appeals has not revisited the area of the determination of what constitutes a "serious injury" as defined in Insurance Law §5102(d) since 2011, but some noteworthy cases have been handed down by the Appellate Divisions clarifying the definition of "serious injury."
Medical Malpractice columnists Thomas A. Moore and Matthew Gaier write: When someone is admitted to a hospital as the patient of a private attending physician, the hospital may still be subject to vicarious liability under the doctrine of ostensible agency for physicians who become involved in the patient's care during the admission. This question commonly arises with anesthesiologists and radiologists, although it may also apply where any physician is assigned by a hospital to provide a service or a consultation.
In his Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: 'Van Zant' is a reminder to parties of the expansive notion of control in the circuit and that behavior by parties or even non-parties with information in a company's legal control can have a potentially significant impact on the outcome of a matter. The decision also demonstrates that electronically stored information is more than just email and that parties should thoughtfully consider and manage information such as text messages as part of their preservation and e-discovery efforts.
Ethics and Criminal Practice columnist Joel Cohen writes: The consequences in the criminal courtroom regarding a proponent's offer of what is, or turns out to be, false testimony are different depending on which side proffers the testimony. After all, a prosecutor's duty is not simply to win, but to assure that justice prevails. So what if a prosecution witness lies?
Entertainment Law columnists Michael I. Rudell and Neil J. Rosini discuss agreements between authors and their agents, which are sometimes separate, but often their relationship is defined in the author's publishing agreement.
David F. Wertheimer and Justin S. Brenner write: Over the past few years, there has been a marked trend of corporate governance litigation involving Delaware corporations being filed outside of Delaware's Court of Chancery. New York is seeing its share of that exodus. Whether that share expands may depend, at least partly, on whether New York law on the award of mootness fees evolves to be more or less favorable than Delaware law.
Matthew T. McLaughlin writes: Litigants in disputes with public agencies have an opportunity to bring a two-front attack when obtaining documents. The CPLR and the FOIL statutes operate in tandem, and choosing one route does not preclude use of the other. The tandem operation of these two statutes brings, however, an often unappreciated twist. Under FOIL, public agencies enjoy certain exceptions to the obligation to produce documents. Several courts, including three of the Appellate Division departments, hold that the exceptions to production found in the FOIL statute may be used defensively in civil litigation, thereby permitting a public agency to withhold documents for FOIL-based reasons. Recent jurisprudence from the Appellate Division, Fourth Department, has opened a chasm in the intersection between the CPLR discovery devices and the operation of FOIL.
International Litigation columnists Lawrence W. Newman and David Zaslowsky write: A hallmark of arbitration awards issued by the International Center for the Settlement of Investment Disputes is that they cannot be reviewed by national courts of any member country. Yet, unless they are paid voluntarily, such awards still must be brought to a national court for recognition and enforcement. On July 11, 2017, the Second Circuit became the first circuit court to address enforcing such awards in the United States in a decision that rejected the summary procedures that had been followed by numerous courts in the Southern District of New York.
Thomas A. Dickerson reviews recent antitrust class actions involving the travel industry brought by or against airlines, in-flight Internet providers, hotels, tour bus companies, ride-sharing companies and online travel sellers and involving various types of alleged marketing misconduct such as resale price maintenance, parallel business behavior, misleading and unfair price guarantees, elimination of competitors and unfairly raising prices, substantial market foreclosures and price fixing.
Michael D. Capozzi writes: While the new home-sharing marketplace certainly has its benefits, there are also a number of issues that can arise when a homeowner or tenant decides to start renting out a property on a short-term basis. Homeowners should be aware of the laws and regulations governing short-term rentals. Landlords should also carefully monitor tenants to make sure they are abiding by those rules.
State Environmental Regulation columnist Charlotte A. Biblow writes: The decision issued at the end of August by the state Department of Environmental Conservation denying certain approvals in connection with a proposed natural gas pipeline that would fuel a major new power plant in Orange County may have been seen by environmental activists as a mechanism for local and state regulators to control greenhouse gases in place of a recalcitrant federal government. The euphoria of environmental activists statewide, however, may have been tempered by a subsequent order of the Federal Energy Regulatory Commission.
Anahita Thoms writes that on July 12, Germany tightened its control over acquisitions of domestic companies by foreign investors by introducing amendments to the Foreign Trade and Payments Ordinance. As a result the German Federal Ministry for Economic Affairs and Energy can now block certain acquisitions more easily based on security reasons, which aligns Germany more closely to the regime in the United States.
By David M. Banker, Wojciech F. Jung and Eric Jesse
David M. Banker, Wojciech F. Jung and Eric Jesse write that the benefits of directors and officers insurance policies have been curtailed by the breadth of some courts' broad application of the "insured vs. insured" exclusion, which is common to D&O policies. Some courts have expanded the exclusion's scope to reach claims brought by or on behalf of the bankruptcy estate against insured directors and officers. Nevertheless, there are certain steps that bankruptcy and insurance practitioners can take to avoid or minimize the pitfalls of the insured vs. insured exclusion.
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: Five of the U.S. Supreme Court's 71 merits decisions (resulting in 69 written opinions) last term arose out of the Second Circuit. One was affirmed and four were reversed or vacated, resulting in an 80 percent reversal rate.
Jed I. Bergman and Marissa E. Miller write: Even though in pari delicto is an affirmative defense, and case law suggests that a balancing of the parties' relative fault is required, New York courts often dismiss plaintiffs' claims on the face of the pleadings, without balancing and without discovery. The frequency of such dismissals has only increased since the Court of Appeals decided 'Kirschner v. KPMG' in 2010. Given this trend, surviving a motion to dismiss can significantly enhance a plaintiff's leverage.
In his Health Law column, Francis J. Serbaroli discusses an important new report by a federal cybersecurity task force on the dangers of cyberattacks in the health care industry. He summarizes the report's comprehensive recommendations, and warns that health care organizations that ignore or underestimate the dangers of cyberattacks face considerable financial and legal liabilities.
Julia Sands and Daniel Pollack write: Discrimination based on gender in many settings is illegal. However, because children in group homes are a particularly sensitive and vulnerable population to work with, there is a potentially tricky balance between steering clear of discrimination while hiring and/or assigning work shifts, and ensuring that children in the group home remain safe and comfortable.
Trial Practice columnists Robert S. Kelner and Gail S. Kelner write that even though the jury awards were reduced in the catastrophic 91st St. crane collapse case, the Appellate Division allowed very significant amounts for the decedents' preimpact terror as the giant crane collapsed, and for their conscious pain and suffering after sustaining catastrophic injuries. This decision should encourage more vigorous examination of damages for preimpact terror and conscious pain and suffering in future wrongful death cases.
In his Criminal Law column, Ken Strutin writes: Supercomputers can be groomed to find meaningful connections between the unstructured data of conviction and the lessons of exoneration. Given that these machines already exist, the only question is why they haven't been turned on?
James Blick and Erika Levin write: Whatever you may think about litigation finance, funders are out there and they are finding good quality, high-value cases in which to invest and charging big returns on the winners. But if litigation finance is booming, then why too aren't law firm profits, buoyed up by a rising tide of contingency fee revenue?
In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Many patent attorneys, having backgrounds in the hard sciences, can appreciate repeatable tests and bright-line rules. Patent law, however, is rarely clean. The Federal Circuit has illustrated this with a number of split decisions issued over the past few months.
Law Firm Marketing columnist Marcie Borgal Shunk writes: There is much to be learned from young companies and from taking a blank slate approach to the way we, as an industry, contemplate how best to structure, operate and compete in a rapidly changing and dynamic environment. Taking a cue from some of the organizations that have displaced traditional Fortune 500 companies, if we abandon all that we know to be true—the billable hour as the pinnacle of measuring performance, the pyramid structure comprised predominantly of trained lawyers, the adulation of sophisticated legal services—what's left?
Michael J. Willemin discusses lessons to be learned from a recent decision where the Second Circuit held that a defendant-employer's statement, issued in response to litigation, that the plaintiff-employee had "repeatedly tried to extort money from the company" and was "dismissed for gross misconduct," could serve as the basis for a claim for defamation.
Law Firm Partnership Law columnist Arthur J. Ciampi writes: As we all mourn the official end of summer, it may seem like an inopportune time to speak about vacations, which for many, in September, seem to be light-years away. But despite what may seem like bad timing, it is submitted that September is a very good time to examine how law firms treat vacations and sabbaticals even if only to rekindle the giddy hope of future time away from work.
William J. Giacomo discusses the statutes that control the calculation of a structured judgment in light of the 2003 amendment to CPLR 4111(d) and its effect on the court's role in calculating the appropriate judgment to enter upon a medical malpractice verdict.
In his Tax Litigation Issues column, Jeremy H. Temkin writes that whistleblowing is alive and well at the IRS, but, while attorneys are not precluded from participating, attorneys need to be mindful of the strict interpretation of what it means for an attorney to "reasonably believe" a disclosure is necessary to prevent a client from committing a crime under New York professional conduct rules.
Insurance Law columnist Jonathan A. Dachs discusses recent noteworthy changes including a new example illustrating the proper application of Supplementary Uninsured/Underinsured Motorists coverage, which is required to be included in the written notice sent by the insurer with all new and renewal policies, amendments to clarify the prescribed SUM endorsement, and more.
Christian Everdell writes: First, it was digital currencies like bitcoin. Then, it was distributed ledger technologies like blockchain. Now, another potentially groundbreaking innovation from this same community of technologists has vaulted to the forefront and taken center stage—the Initial Coin Offering. But all of the froth has spawned a Wild West atmosphere where investors are throwing money at what can be, at best, unproven technologies and, at worst, outright scams. Enter the SEC.
While the "Power Suit" was the uniform of choice for a generation of independent, career-minded women who fought for a "seat at the table," the modern woman must cast off the chains of patriarchal fashion and embrace the styles sported by her contemporaries. Assuming a masculine facade is an antiquated expectation of the modern woman, who can be both a member of the Bar and a Vogue subscriber.
Corporate Insurance Law columnists Howard B. Epstein and Theodore A. Keyes discuss a recent case where the Southern District ruled in favor of an insured that lost funds paid by an employee to a fraudster impersonating a company executive, finding coverage under both the Computer Fraud and the Funds Transfer Fraud sections within the Crime Coverage of the Executive Protection insurance policy.
Andrew Lavoott Bluestone writes: A recent Judiciary Law §487 case in the Western District has violently shaken the basic understanding of the elements of this common-law cause of action. We predict a Second Circuit case, and potentially a Certified Question to the New York Court of Appeals.
In his Appellate Practice column, Thomas R. Newman writes that a recent opinion in crane collapse litigation is to be complimented for describing in grisly detail horrific bodily injuries, which assist the trier of the facts in arriving at an award for conscious pain and suffering as the result of physical injuries based on a comparison of the award under scrutiny with recent cases involving comparable injuries. They are of no use in determining what is reasonable compensation for the "inconceivable" (the court's apt word) pre-impact terror that, it can be reasonably believed, both men must have felt.
Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg write: Neither practicing physicians nor defense attorneys have much spare time, and it is unlikely that an 'Arons' interview will become a high priority task for a non-party provider. Even where a letter request is accompanied by a properly executed authorization, it is unlikely to produce an interview without further effort. What makes the further effort worthwhile is the prospect that the non-party witness is one of the least biased sources of information on a broad list of topics which are relevant to the evaluation and presentation of the defendant's position.
In his Intellectual Property column, Stephen M. Kramarsky writes: In a recent case in the Southern District of New York against ride-hailing company Uber and its CEO, the court denied Uber's motion to compel arbitration, holding that its sign-up process did not adequately notify users of its terms of service (which contained the arbitration provision). The Second Circuit's review and vacatur of that decision examines these issues in the context of the "reasonable smartphone user," and it is worth a closer look.
Joseph I. Farca: Your commercial tenant went dark and dropped the keys off before the expiration of the lease, leaving you with back rent on the books and no tenant paying ongoing rent. Against a tenant who is no longer in possession a landlord-tenant summary proceeding is not an option to recover the back rent, and never could get future rent. But with an effective rent acceleration clause and good guy guaranty, there is a little-used legal procedure that could allow the landlord to quickly pursue the guarantor for lost back and future rents: a motion for summary judgment in lieu of complaint.
In his Tax Tips column, Sidney Kess discusses what can high-income taxpayers can do to maximize their tax-advantaged giving opportunities in this period of tax uncertainty resulting from Congressional goals of tax reform.
In his New York Practice column, Thomas F. Gleason writes: CPLR 5002 allows for interest to accrue after a decision establishing liability, even though the amount upon which the interest is running is not yet known and will not be determined until the damages phase of the case. Many cases have examined that which constitutes a "verdict, report or decision" under CPLR 5002. What about a stipulation that a defendant is liable on a personal injury claim, or a "high-low" agreement that fixes a range of liability?
By Joshua A. Sussberg, Christopher T. Greco and Patrick Venter
Joshua A. Sussberg, Christopher T. Greco and Patrick Venter write: The most common explanation for retail's recent market challenges has been a shift in consumer preferences to online sales. But online shopping only accounts for approximately 10 percent of the retail market share. So what gives?
International Environmental Law columnist Stephen L. Kass writes: The startling scenes of urban devastation in Texas following Hurricane Harvey and in Florida, Georgia and South Carolina following Hurricane Irma are a microcosm of what climate change holds for major cities throughout the world—and a wake-up call for the United States that it is time to get serious about climate adaptation both at home and abroad.
In his Section 1983 Litigation column, Martin A. Schwartz writes: For a §1983 claim based upon a law enforcement officer's perjurious testimony to succeed, the plaintiff will have to overcome the officer's absolute witness immunity, which applies regardless of how malevolent the officer's wrongdoing, or how injurious it was to the arrestee, and even if it caused a wrongful conviction.
Thomas A. Dickerson writes: Notwithstanding that recent empirical work suggests that disclosure-only settlements rarely, if ever, have any meaningful impact upon shareholder behavior, leading, perhaps, to the unfortunate conclusion that the only thing of any value which is exchanged is a general release running to defendants, there are circumstances under which such settlements may be viable. In fact, recently, several courts in New York, North Carolina and Delaware have carefully reviewed proposed disclosures and found them sufficiently material to warrant approval of a proposed disclosure-only settlement.
Michael A. Hardy writes: In a Sept. 1 perspective, Sol Wachtler, New York state's former Chief Judge, discussed his concern over the debate regarding statues, monuments and memorials that honored Confederate general's and the nation's founding fathers. While the topic is certainly worthy of speech and debate, Professor Wachtler strays far from the relevant argument when he attempts to equate Reverend Al Sharpton to the neo-Nazi marchers in Charlottesville.
James A. Brown writes: By issuing discovery protocols for its automatic referrals, the SDNY wisely recognized the value of pre-mediation disclosure, especially when no formal discovery precedes the mediation. Having established its discovery protocols, the SDNY took the necessary steps to create meaningful early intervention mediations.
In his Employment Issues column, Philip M. Berkowitz discusses a late-August decision with potentially far-reaching implications for foreign and multinational employers, in which the U.S. Department of Labor Administrative Review Board (ARB), held that SOX's whistleblower provisions have extraterritorial application—in apparent contradiction of appellate court and indeed prior ARB case law.
In their Environmental Law column, Michael B. Gerrard and Edward McTiernan write: Federal district courts are divided over whether the Clean Water Act prohibits discharges to groundwater when the subsurface receiving water is so closely connected to waters of the United States that it serves as a direct conduit to introduce pollutants to surface waters. Because the failure to have a permit for a regulated discharge can lead to significant compliance obligations, material fines and penalties and can be enforced by private citizens, this unresolved question has far-reaching consequences.
In her International Banking column, Kathleen A. Scott highlights some of the recent efforts by international organizations to attempt to address the increasing trend for some banks terminating their banking account relationships with banks in certain areas of the world.
Lewis R. Clayton and Eric Alan Stone report on the "Regeneron Pharmaceuticals v. Merus" case and other cases addressing whether litigation misconduct (as opposed to misconduct during prosecution) can render a patent unenforceable, and they provide guidance for practitioners.
By Barry Black and John B. Madden explore "Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos," where the court upheld the validity of a statutory exception to the prohibition against discrimination on the basis of religion contained in Title VII of the Civil Rights Act of 1964, and further discuss other examples of the law's special treatment of religious institutions and clergy members.
William M. Pinzler discusses "Masterpiece Cakeshop and Jack Phillips v. Colorado Civil Rights Commission and Craig and Mullins," a case the Supreme Court has granted certiorari which presents the question of whether applying Colorado's public accommodations law to compel a "cake artist" (a baker) to prepare a cake in honor of a customer's gay wedding violates his "sincerely held religious beliefs" about gay marriage and thus violates the Free Speech or Free Exercise clause of the First Amendment.
In their Technology Law column, Richard Raysman and Peter Brown write: Database analytics providers enter a nascent market without dominant legacy providers controlling vast swaths of market share and holding an iron grip over all forms of usable technology. This arguably creates a greater incentive for prospective providers to eschew contractual obligations and misappropriate confidential information as a means of immediately satisfying snowballing demand. In this environment, the possibility for circumvention of contractual obligations is heightened further when such purported obligations are memorialized merely in an oral agreement.
In their Trusts and Estate Law column, C Raymond Radigan and Jennifer Tillman discuss the situation when the proposed guardian of an alleged incapacitated person may not be suitable or appropriate to act as guardian, and they examine practical ways to tailor the guardianship to best protect the AIP.
Antitrust Trade and Practice columnists, Shepard Goldfein and James Keyte write: Big Data is a complex issue—different firms and individuals have different access to different sources of data, and want to use that data in different ways. This complexity means that the legality of some methods of culling and using Big Data remains unclear. A recent case signals a shift in the way courts may be viewing attempts to restrict one method of accumulating data that has sparked recent legal debate: data scraping.
Complex Litigation columnist Michael Hoenig writes: When a scholar of such superior mettle as Cornell Professor of Law Emeritus James A. Henderson Jr. warns against the law crossing the bounds of propriety in mass tort case handling, we ought to pay attention. He recently wrote that despite the legitimacy of punitive damages and mass torts when employed separately, "loud warning signals should sound when, as with drinking and driving, they are combined."
Tax Appeals Tribunal columnist Joseph Lipari writes that a recent decision that deals with the sales tax of "yellow pages" phone books, an industry with few participants, may seem irrelevant. But the particular issue in the case, whether certain commercial delivery services qualified as "common carriers," is of high importance to sellers and buyers of art. The narrow definition of the term advanced by the Tax Department and accepted by the ALJ is likely to dictate how art shipments will be arranged for the foreseeable future.
In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: From a procedural point of view, the real goal of jury selection for the trial attorney is to preserve peremptory challenges. Careful use of both leading and open-ended questions can pave the way for insightful answers and, ultimately, confirm the prejudice of a juror for a "cause" challenge.
Matrimonial Practice columnist Timothy M. Tippins writes: Justice Potter Stewart famously quipped that although he could not define pornography, "I know it when I see it." Bias presents the opposite problem. It can be readily defined but you do not necessarily know it when you see it. Given that custody evaluators are as susceptible to bias as anyone else and because bias can destroy the reliability of their conclusions, it is imperative that lawyers and judges be able to recognize its telltale signs.
By George W. Madison, Michael E. Borden and Michael D. Lewis
George W. Madison, Michael E. Borden and Michael D. Lewis write: It is appropriate to reconsider and adjust regulations enacted in the midst of a crisis. Even though Dodd-Frank has helped stabilize the financial system in many ways, it is no surprise that it has also led to unintended consequences. Importantly, a recent Treasury report seems to acknowledge this nuance.
Benjamin Dynkin and Barry Dynkin write: We live in a truly digital age, where we fill 250,000 Libraries of Congress per day. Naturally, this data has begun to seep into our legal system, but lawyers and litigants have not paid close enough attention to how that data can be used. With a clever forensic technician, an attorney can request access to and analyze a nigh unlimited amount of data, which can be used to impeach a witness's credibility to devastating effect.
Cooperatives and Condominiums columnists Eva Talel and Richard Siegler discuss the significant deterrents to converting co-ops to condominiums, in the hope that, for these co-op buildings which desire to do so, solutions can be found to remove the economic uncertainty (and therefore risk) which generally deters even consideration of such conversions.
In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty Jr. discuss the U.S. Supreme Court's decision in 'Microsoft v. Baker', which resolved an important jurisdictional issue concerning class action procedure, holding that a federal court of appeals does not have jurisdiction under 28 U.S.C. §1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.
By Mark Baghdassarian, John Dillon and Matthew Olinzock
Mark Baghdassarian, John Dillon and Matthew Olinzock write: The U.S. Supreme Court has continued its recent trend to enter the foray of patent litigation by granting certiorari in Oil States Energy Services v. Greene's Energy Group. This time the court will decide whether inter partes reviews, an adversarial process used by the U.S. Patent and Trademark Office to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury when the PTO invalidates patents using this process.
Jeffrey L. Schulman writes: As difficult as it is to imagine now, the waters in Houston and surrounding areas will eventually recede and the financial toll of the devastation will then begin to be tallied. That will undoubtedly include lawsuits faced by building owners, real estate development and management companies, and the directors and officers of buildings in Harvey's aftermath. For those businesses facing potential liability from negligence and breached duties claims, liability insurance may be an important asset to help offset defense costs and settlement or judgment payments.
White-Collar Crime columnists Elkan Abramowitz and Jonathan Sack discuss SDNY Judge Loretta Preska's recent decision in 'United States v. Davis', in which she analyzed the Second Circuit's "right to control" decisions and concluded that a guilty verdict should be set aside. The authors then address practical steps defense counsel can take when facing a mail or wire fraud prosecution premised on this sometimes elusive doctrine.
Professional Responsibility columnist Anthony E. Davis explores potential threats to lawyers whenever they travel internationally while carrying electronic devices containing client confidential information: official border searches, as well as either private- or state-sponsored hacking. What is the scope of the duty to protect client information when on the move, and what steps do lawyers need to take to comply?
In his State E-Discovery column, Mark A. Berman writes: A series of well-reasoned decisions recently issued by the New York County Supreme Court plumbed the nature of litigation holds and the preservation of electronically stored information (ESI), giving guidance to litigators with excellent practice tips.
Eve I. Klein and Christina Joy F. Grese write: Companies doing business in the Big Apple over the last few years have had to implement an ever-expanding array of employment law mandates not seen in many other jurisdictions, which can be daunting for new and seasoned New York City employers alike.
Insurance Fraud columnist Evan H. Krinick writes: Even clear proof of a false claim and a criminal defendant's guilt does not necessarily mean that a criminal insurance fraud case will proceed uneventfully to a conviction, or withstand a defendant's appeal. In some instances, a defendant who has filed a false claim with intent to defraud an insurance company will file a motion before or after the verdict, or will appeal the verdict (or guilty plea), resulting in some rather interesting—and potentially legally significant—court decisions.
Raymond C. Green reviews a recent case where a worker for a florist was injured falling from a ladder while disassembling a chuppah used in an earlier wedding ceremony. The court agreed with the worker that the chuppah was a "structure" under Labor Law §240(1), but did not address other elements requisite to constitute a valid claim.
In his Northern District Roundup, Adam R. Shaw discusses a case evaluating when a settlement is final for enforcement, and a decision exploring how service of process affects the timeliness of removal of a case to federal court.
Antonia M. Apps analyzes the Second Circuit's decision in 'U.S. v. Martoma', where the court held that the gloss of a "meaningfully close personal relationship" as part of the personal benefit test was "no longer good law," and that liability requires the government to prove that the tipper expected the tippee would trade on the information and the tip "resembled trading by the insider followed by a gift of the profits" to the tippee.
Cyberregulation and the meaning of reasonable cybersecurity measures are changing rapidly. Insurance companies are in the red zone for new regulatory schemes and heightening expectations of duties of care that are well beyond the responsibility of a company's CIO, such as the approach outlined in the NYDFS regulation.
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp analyze a recent case where the court wrestled with the modern world's reliance on foreign governments to help investigate and develop cases but declined to allow the government's investigatory needs to outweigh defendants' constitutional rights.
Jeffrey Sussman writes: Too many attorneys do not let the world know of important cases they have won, of successful deals they have negotiated, or challenges to judicial decisions that may result in new precedents. Such accomplishments should be touted not just to the legal community, but also to spheres of influence that can enhance one's professional reputation.
Franchising columnist Rupert M. Barkoff discusses the changing franchisee population, with the growth of multi-unit, and in some cases, multi-system franchisees; the changing values and business objectives as professional businesspersons take over; and of course, changing technology.
In his E-Communications column, Stephen Treglia writes: Data-protection methodology has been with humans for thousands of years, but only recently has it increasingly become a ubiquitous part of our technology-driven lives. Inevitably, legal issues have begun to arise regarding this form of technology. Least surprising, search-and-seizure issues regarding law enforcement's attempts to circumvent data-protection methods are at the forefront. The first-half of 2017 has produced some interesting results and court analyses
Albert J. Pirro Jr. writes that although challenges to spot zoning—zoning amendments which are not in accord with a comprehensive or well considered plan—are usually unsuccessful, some "outside the box" approaches should be considered.
Thomas G. Rohback and Brooke Oppenheimer write: The recent cyber-attack on HBO should be a wakeup call to both businesses and insurers. While the amount sought by the hackers called "Mr. Smith"—roughly $6 million in bitcoin—is not a huge amount for HBO, it is significantly more than the amounts that have typically been demanded in recent cyber extortion demands.
In his Estate Planning and Philanthropy column, Conrad Teitell reviews a recent case where a claimed $33 million charitable deduction—a remainder interest in real property given to a university—was disallowed because the donor failed to state the contributed property's cost on Form 8283, and according to the Tax Court, was about $29.5 million too high anyway.
F. Paul Greene writes: The day has finally arrived for the financial services industry in New York. The new cybersecurity regulations issued by the New York State Department of Financial Services are officially in force, and for the first time, a single state is regulating cybersecurity on a potentially global scale, and it has done so via the regulatory process, not legislative action.
Mediation columnists Abby Tolchinsky and Ellie Wertheim write that they are often regaled with stories of high conflict divorce cases where the parties "never could have mediated." But contrary to conventional wisdom, cases presenting deeply fraught dynamics and complex fact patterns are routinely resolved in direct negotiations.
Nicholas P. Hurzeler writes: The spread of fusion surgeries in personal injury cases in recent years, in New York and across the country, has been remarkable. More and more plaintiffs are undergoing cervical and lumbar fusion surgeries. Even in cases involving very minor motor vehicle collisions, and questionable causation claims, the odds of a verdict in plaintiff's favor is substantial.
In her Law Firms column, Helen Bertelli writes that while "Ready Player One" may be fiction, the virtual reality industry is not: it's projected to generate $30 billion in revenue by 2020; $150 billion if you count augmented reality. If that's not enough to keep VR on your radar, consider its potential to generate billable work, its use for marketing and its potential for use in the courtroom.
Dolores Gebhardt writes: For matrimonial attorneys, getting paid—rarely an easy feat—has become more difficult. An unintended consequence of the 2016 amendments to the Domestic Relations Law has rendered the common law and statutory right to a charging lien unenforceable in many matrimonial cases.
Robert D. Lang and Lenore E. Benessere write: Like Blockbuster succumbing to Netflix or Kodak film being replaced by digital, attorneys do not want their firm to become a case study for how the billable hour was replaced by alternative fee arrangements. While the complete rejection of the fee-for-service model is probably an overreaction, practitioners should learn from the paradigm shift at Microsoft how to successfully enter into, and profit from, AFAs.
Real Estate Securities columnist Peter M. Fass reviews new IRS regulations that will significantly limit a contributing partner's ability to be allocated a disproportionate share of a partnership's debt, thereby limiting the opportunity for such partner to receive tax-free cash distributions from a partnership related to a contribution of appreciated property.
By James Yellen, Barry R. Temkin and Atea Martin
James Yellen, Barry R. Temkin and Atea Martin write: Insurance issues often influence the outcome of securities arbitrations and mediations, yet the workings of errors and omissions insurance is not fully understood by many lawyers, arbitrators and mediators. In fact, insurance information is generally not disclosable in securities arbitration, and is considered confidential information by many broker-dealers and insurance industry professionals.
Antitrust columnist Elai Katz writes: In a thorough opinion evaluating the legality of a health insurance merger under antitrust law, the D.C. Circuit considered whether and when efficiencies may offset competitive concerns. Rejecting arguments that anticipated health care cost reductions should spare Anthem's proposed acquisition of Cigna from an antitrust challenge, a split panel upheld an injunction blocking the proposed merger because it was likely to lessen competition without offsetting benefits.
In his Cyber Crime column, Peter A. Crusco writes: Although Internet-based crime has grown exponentially, and the opportunity for conflict and cross-over among the various impacted sovereignties and their investigative and prosecutorial agencies exists, the courts' application of well established legal rules prevent unwarranted successive criminal prosecutions for the same criminal transactions unless established legal exceptions apply.
Condemnation and Tax Certiorari columnist Michael Rikon analyzes the Supreme Court's decision agreeing with the state's holding that two lots adjacent to the St. Croix River should be considered as one parcel for a regulatory takings analysis, a holding that unfortunately creates a vague multifactor balancing test.
Michael R. Marra writes: Although deals differ in emphasis, labor and employment issues tend to receive less attention in a fashion or retail acquisition than big-ticket items like financial statements, material contracts, intellectual property, etc. However, ignoring labor issues comes with meaningful risks, not only for buyers, but also for prospective targets thinking about "cleaning up" their profile prior to seeking acquisition partners.
In his Tax Tips column, Sidney Kess reviews the circumstances that allow a taxpayer to deduct the costs of moving, possible changes to deductions for state and local taxes, and the determination of residency for state income tax purposes.
Alan Behr writes: For a company used to being in a real place, employing real people to sell real things, virtual retailing can come as a legal and business shock at first. The competition is just as intense, and Amazon is out there, in front of everybody, but it expands your market from where you are to, potentially, anywhere that anyone can be. The key to legal success is the same as with traditional retailing, only more so: anticipate the likely problems and be ready with solutions before those problems arise.
In his Commercial Division Update, Thomas J. Hall discusses recent decisions evaluating claims for expenses and attorney fees that may be awarded, at the discretion of the court, when a plaintiff shareholder is successful in a derivative lawsuit brought on behalf of a corporation.
Elder Law columnist Daniel G. Fish writes: A recent column in the New York Times questioned the ethics of advising clients about Medicaid eligibility. The planning is pejoratively described as "the mini-industry of lawyers and others who help people arrange their financial lives so they don't spend every last dime on a nursing home." Once again, it is necessary to explain the circumstances that lead seniors to seek valid legal representation.
Steven L. Kessler writes that with the enactment of the Civil Asset Forfeiture Reform Act of 2000, Congress sought to steer federal prosecutors to criminal forfeiture over civil, believing that the risk of abuse would be reduced because a criminal conviction is required before a defendant's property can be forfeited. Unfortunately, it turned out that greater reliance on criminal forfeiture increased abuses in that area as well. The Roberts-led Supreme Court hinted at some dissatisfaction with the state of criminal forfeiture law in recent decisions, but the rifle shot came in its June 5 decision in 'Honeycutt v. United States'.
Franchising columnist David J. Kaufmann writes: It appears that, across the board, the "progressive" attempt to characterize franchisors as the joint employers of their franchisees' employees is suffering a decisive retreat at the hands of federal and state legislatures and the judiciary, and may be doomed altogether once Trump-appointed NLRB board members come to constitute a majority.
Adam Pollock and Randall Fox write that in a little-noticed provision at the end of New York's False Claims Act, the New York legislature provided for a lower pleading hurdle when asserting violations of New York's FCA in state court. Accordingly, whistleblowers should strongly consider filing separate federal and state qui tam actions (or seeking to remand improperly removed cases) in order to benefit from the New York FCA pleading standard at the dismissal stage.
Copyright Law columnists Robert W. Clarida and Robert J. Bernstein write: Appropriation artist Richard Prince is back in court this summer for alleged copyright infringement, and the initial proceedings do not augur well for his current efforts to defend his "recontextualizing" of another's photograph as a fair use.
Elizabeth A. Edmondson and Jenna E. Ross write: In March 2014, the Court of Appeals issued a 4-3 decision in 'Biotronik, A.G. v. Conor Medsys. Ireland' that—according to the dissent and considerable commentary—threatened to upend previously settled New York damages law. Three years later, however, no sea change in the New York law of lost profit damages appears to have occurred.
By Kara I. Schechter Rakowski and Alexa Englander
Kara I. Schechter Rakowski and Alexa Englander write: The development of multiple dwellings in Special Anti-Harassment zoning districts located in Manhattan has historically come along with its own special kind of red tape. In the last few decades, restrictions on demolition and material alterations have made it very difficult for development in certain special districts. Within the last two years, however, the NYC Department of Housing Preservation and Development has started to enforce a previously overlooked provision of the Zoning Resolution which has presented even more obstacles for developers to navigate in order to develop sites in the Special Hudson Yards, Clinton, West Chelsea and Garment Center districts in Manhattan.
In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: On May 12, 2017, the United States settled its asset forfeiture and money-laundering case against Prevezon Holdings just days before that case was scheduled to go to trial, with both sides claiming the $5.9 million settlement as a victory. The facts behind 'U.S. v. Prevezon Holdings' were the stuff of spy novels, but the far from headline-grabbing questions concerning application of the hearsay rule to foreign records the government intended to introduce at trial also led to a hearsay analysis of note.
In her Internet Issues/Social Media column, Shari Claire Lewis writes: Near the end of the U.S. Supreme Court's past term, the court issued a decision in which the majority opinion recognized the importance of social media in most people's lives. The ramifications of the court's statements about social media already are reverberating in New York courts.
Daniel Pilarski sees two important lessons from the Treasury Department's $2 million penalty against ExxonMobil for its dealings with a sanctioned officer of a Russian company, even though the company itself was not subject to these sanctions: Conduct diligence and get representations and covenants not only from counterparty companies, but also the company's officers and directors. And exercise caution in relying on informal guidance in dealing with sanctions.
David A. Koenigsberg writes that while six other circuits adopted what some call a "more lenient" pleading standard that permitted qui tam False Claims cases to go forward even when the complaint did not allege details of a false claim that was actually submitted, the Second Circuit had not directly addressed that issue until last month. The case provides guidance for how qui tam relators may satisfy the Rule 9(b) pleading standards in the absence of direct knowledge that false claims were actually submitted to the government.