Expert Analysis

Alton Abramowitz

Should There Be a Presumption That 'Equitable' Is 'Equal'?

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz writes: It is time for the Legislature to take a look at the Equitable Distribution Law and to ask itself whether it is time to enact a presumption of equal distribution of marital assets that puts the burden of proof on the party seeking an unequal division, usually the more economically powerful spouse, rather than on the spouse providing contributions that cannot be measured in dollars alone.

Lawrence T. Kass and Christopher E. Chalsen

'Teva' and Standard of Review for Patent Claim Construction

By Lawrence T. Kass and Christopher E. Chalsen |

Lawrence T. Kass and Christopher E. Chalsen write: High-stakes patent cases often turn on a claim construction and whether it can withstand appeal. For years, the Federal Circuit has reviewed claim construction determinations entirely de novo, without deference. But that standard of review has now been changed.

Nicholas M. De Feis and Philip C. Patterson

Foreign Corrupt Practices: The Global Trend

By Nicholas M. De Feis and Philip C. Patterson |

In their International Criminal Law and Enforcement column, Nicholas M. De Feis and Philip C. Patterson discuss the recent increase in international bribery enforcement. But apart from increasing global risks of investigations and prosecution, bribery imposes economic costs that further weigh in favor of anti-bribery vigilance.

Harry Sandick and Julia Stepanova

Proposed Amendments to Fraud Sentencing Guidelines

By Harry Sandick and Julia Stepanova |

Harry Sandick and Julia Stepanova write that on Jan. 9, the Sentencing Commission took a small but productive step in the right direction when it promulgated a series of proposed amendments to the section of the Guidelines that governs sentencing in fraud cases. While the individual impact of these revisions is small, together they amount to a welcome first step.

Lawrence W. Newman and David Zaslowsky

Judgment Enforcement Against Foreign Debtors

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky write that when a judgment debtor is foreign and has no ongoing business operations and no visible assets, the usual approach of enforcing a judgment against it by identifying assets and levying on them becomes more challenging. Two recent, related New York decisions illustrate the difficulties in pursuing certain foreign debtors.

Charlotte A. Biblow

Brownfields Cleanup Program at a Crossroads

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: Given the uncertainty in the Brownfield Cleanup Program resulting from the governor's veto of its extension with its existing generous tax credits, it seems to be an appropriate time to examine whether the BCP actually has boosted brownfield redevelopment throughout the state, or whether the program has been more about the tax credits than the cleanup.

Ken Strutin

Incarcerative Punishment: The Sentencing Never Ends

By Ken Strutin |

Ken Strutin, director of legal information services at the New York State Defenders Association, writes: While retribution is ever-present, new research, new thinking and new technologies demand revisiting punishments and the punished. So it is that the sentencing begun in the courthouse must never end.

Sandra Stern

Unique Provisions in New York's Omnibus UCC Bill

By Sandra Stern |

Sandra Stern writes that although the majority of the revisions in the Omnibus Bill modernizing Articles 1 (the overarching Article that provides the general rules for the remaining Articles), 7 (documents of title), and 9 (secured transactions) of the Uniform Commercial Code merely conform New York's UCC to the uniform text, a number are unique to New York.

Martin Flumenbaum and Brad S. Karp

Limiting Scope of 'Class Standing' Doctrine in RMBS Cases

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss a recent decision that resolved two matters relating to residential mortgage backed securities on which district courts have been divided: the scope of the Trust Indenture Act of 1939 and a named plaintiff's standing to assert breach-of-duty claims against an RMBS trustee on behalf of absent class members who had invested in trusts other than those in which the named plaintiff had invested.

Robert C. Scheinfeld

Supreme Court Addresses 'Claim Construction' and 'Tacking'

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld reviews two recent holdings that claim construction may not always be a pure question of law entitled to de novo review, but instead may involve underlying factual findings subject to "clear error" review; and that the issue of whether the use of an older mark in a different manner may be 'tacked on' to the use of a newer one for purposes of determining priority is a factual one for juries.

Robert S. Kelner and Gail S. Kelner

Wrongful Conviction Cases: An Introduction

By Robert S. Kelner, Gail S. Kelner and Joshua D. Kelner |

In their Trial Practice column, Robert S. Kelner, Gail S. Kelner and Joshua D. Kelner survey several of the most common concepts and issues that arise in cases where a wrongfully convicted individual seeks compensation.

Lee Spielmann

Bringing Nazi Criminals to Justice

By Lee A. Spielmann |

Lee A. Spielmann writes: The passage of time has largely halted prosecutions of those who perpetrated the crimes of the Holocaust. In the United States, the determined effort to expel Nazi perpetrators that began in 1979 has concluded. Its last chapter concerned an Auschwitz guard whose extradition Germany sought but who died this past July.

Francis J. Serbaroli

New Anti-Kickback Law 'Safe Harbors' Proposed

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli writes that as our payment systems have moved away from the fee-for-service model, which unfortunately offered the wrong incentives to dishonest or poor quality providers, a kind of Catch-22 has developed whereby certain types of incentive payments and business arrangements that would improve the quality of care and provide needed assistance to indigent patients could actually run afoul of the federal fraud and abuse laws.

Glen Banks

Liquidated Damages: Is the Law Changing?

By Glen Banks |

In his Contract Law column, Glen Banks writes that courts will enforce liquidated damage provisions if they were based on a reasonable estimate of the amount of loss that would be caused by a breach of contract, even if the actual loss caused by the breach turned out to be less. A recent decision may signal a change.

Michael Escue

Financial Sector Concentration Limits Become Effective

By Michael T. Escue |

In his Banking column, Michael T. Escue discusses the final rule implementing the financial sector concentration limit required by Section 622 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which may have impacts beyond purely strategic acquisitions.

Jonathan Honig

'Citigroup v. Abu Dhabi Investment': Can Arbitration Be Compelled?

By Jonathan Honig |

Jonathan Honig writes that the Second Circuit, in 'Citigroup v. Abu Dhabi Investment Authority' asked the wrong question in connection with an attempt to enjoin a multibillion-dollar arbitration and a cross-application to compel arbitration. That is, the court asked who should decide issues of res judicata rather than ask what did the parties agree to arbitrate.

Arthur Ciampi

The New Year: Time to Review Agreements in a Changing Marketplace

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi reviews some forecasts about the evolving nature of the practice of law and makes suggestions about implementing changes to your firm's partnership agreements and policies to best address them.

Can Government Find a Way Around 'Newman's' Personal Benefit Rule?

By Gary Stein |

Gary Stein writes: "Personal benefit," long considered the 97-pound weakling of insider trading defenses, is now looking much more muscular thanks to the Second Circuit's ruling last month in 'United States v. Newman.' Not surprisingly, federal prosecutors have already begun to explore ways of avoiding Newman's reinvigorated personal benefit rule.

Michael I. Rudell and Neil J. Rosini

The Turtles Speed Toward Performance Payments for Pre-1972 Recordings

By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini write: In denying a motion by defendant Sirius XM Radio for summary judgment in a suit over its transmitting of pre-1972 sound recordings, Southern District Judge Colleen McMahon's decision upends settled expectations of who must pay for what in the broadcast music industry.

Michael D. Patrick

H-1B Visa Process Begins as Annual Cap Continues to Stir Concern

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes that despite previous congressional and executive agency action, there is a further need to reform immigration law to resolve the lack of available H-1B visas for talented and qualified foreign nationals and to meet the needs of U.S. employers.

James G. Ryan and Hayley B. Dryer

Challenges in Conducting a Proper Investigation

By James G. Ryan and Hayley B. Dryer |

James G. Ryan and Hayley B. Dryer write: It is very likely that most employers, educational institutions, and governmental agencies will eventually face the need to conduct an investigation. When this time comes, there are a series of steps they can and should take in order to conduct a fair, complete and prompt investigation.

Jeremy H. Temkin

Internal Revenue Service Budget Cuts Spell Trouble

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes: While some have hailed IRS budget cuts as a just punishment for an agency that has been accused of unfairly targeting Tea Party organizations, the recent cuts are unlikely to ameliorate problems of unequal enforcement because they deny the agency the resources it needs to audit a fair sample of returns.

Roy L. Reardon and William T. Russell Jr.

Noteworthy Criminal Cases; Sovereign Immunity Issue

By Roy L. Reardon and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss two unusual criminal cases. In one case, the court overturned an almost 40-year-old rule limiting its review of certain discretionary orders denying motions to vacate judgments. In the other case, a highly divided court issued an unsigned memorandum decision determining whether an anonymous tip provided a sufficient basis to find reasonable suspicion for a police stop.

Eric I. Wrubel

Is My Child Mine? Parentage for Same-Gender Married Couples

By Eric Wrubel |

Eric Wrubel writes: Notwithstanding the U.S. Supreme Court's Windsor decision and New York State's passage of the Marriage Equality Act, same-gender married couples with children in New York face daunting challenges when their marriages end. In the absence of a statute permitting a de facto parent from seeking custody and visitation rights, courts are being forced to terminate parent-child relationships in direct contravention of the best interests of those children.

John L.A. Lyddane and Barbara D. Goldberg

Punitive Damages and the Medical Malpractice Claim

By John L.A. Lyddane and Barbara D. Goldberg |

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write: Punitive damage claims remain the rare exception rather than the rule in medical malpractice actions. The likely reason, as the Appellate Division has expressly recognized, is that "[a] doctor in a malpractice case is ordinarily not an actor who intends to inflict an injury on his patient."

Patrick M. Connors

Use of Affidavits on CPLR 3211(a)(7) Motion

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors writes: When a defendant makes a pre-answer motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action, what must the plaintiff include in her response to defeat the motion? Are evidentiary affidavits required to support the allegations of the complaint, or is it sufficient to simply rely on the detailed contents of the pleading? Unfortunately, there are no clear answers in this realm.

Scott D. Locke

Standard Essential Patents and Damages

By Scott D. Locke |

Scott D. Locke discusses a recent case in which the Federal Circuit considered how to calculate reasonable and nondiscriminatory royalty rates for standard essential patents.

Stephen M. Kramarsky

Crashed Hard Drives: When in Doubt, Don't Throw It Out

By Stephen M. Kramarsky |

In his column, Stephen M. Kramarsky discusses 'Dorchester', which presented the SDNY with a question of first impression: May a litigant dispose of a hard drive that might contain relevant, discoverable information if that hard drive has "crashed?" If not, what is the appropriate sanction for doing so?

Sidney Kess

Three After-Tax Savings Programs With Tax Advantages

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: Under the current tax system, most savings programs, such as IRAs, are incentivized by tax deductions for contributions. However, there are three important savings vehicles, one of which is new, that do not hinge on deductions for contributions; they rely on tax breaks for withdrawals and offer other benefits.

Thomas E.L. Dewey

Give Consideration to Income Tax When Negotiating a Settlement

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey analyzes a recent First Department decision that demonstrated the importance of considering tax consequences when negotiating settlements concerning a buyout of shares, and the associated considerations when drafting any accompanying release provisions.

E. Leo Milonas and Frederick A. Brodie

Business Judgment Rule, Privilege, Child Support, Animal Rights

By E. Leo Milonas and Frederick A. Brodie |

In their Appellate Division Review, E. Leo Milonas and Frederick A. Brodie summarize decisions from the last quarter of 2014 involving a shareholder challenge to a fashion house's going-private transaction, the common interest doctrine, the unauthorized use of a credit card number, the application of the "fugitive disentitlement doctrine" in child support cases, the the writ of habeas corpus for animals, and more.

Justin Y.K. Chu and Leah Quadrino

Fiduciary Exception to Privilege in Law Firm Communications Upheld

By Justin Y.K. Chu and Leah Quadrino |

Justin Y.K. Chu and Leah Quadrino write that last month, the Commercial Division in Manhattan broke with a nationwide trend among state courts, applying what is sometimes referred to as a "fiduciary exception" to the attorney-client privilege to permit a former client to take discovery relating to otherwise confidential internal communications between a lawyer and his firm's general counsel.

Michael B. Gerrard

New York Environmental Legislation and Regulations in 2014

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard writes: Governor Andrew Cuomo signed new laws in 2014 regarding climate change adaptation, invasive species, chemical regulation, wildlife, and hazardous substances. However, there was no comprehensive legislative reform of the Brownfield Cleanup Program.

Louis F. Eckert and Bari Shinbaum

Calculating and Defending Measure of Property Damages

By Louis F. Eckert and Bari Shinbaum |

Louis F. Eckert and Bari Shinbaum emphasize the importance of the party defending a case alleging damages to one's property to consider all available measures of damages available by law to determine the most cost-effective approach to making the injured party whole, without allowing for a windfall.

Lewis R. Clayton and Eric Alan Stone

Lanham Act Decisions; Profits and Obviousness in Patent Law

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone review recent Lanham Act decisions addressing the evolving post-eBay standards for granting an injunction, the distinction between advertising and protected statements of scientific opinion and the interplay between copyright and false endorsement law where an advertisement includes unauthorized music.

Kathleen A. Scott

Basel Committee Proposes Changes on Capital and Risk

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott discusses the highlights of the Basel Committee's proposed changes to the standardized approach for credit risk, in response to its concerns that there is a large variability in how asset risk weights are being calculated by banks.

Steven Pounian and Justin T. Green.

AirAsia Flight 8501 Disaster: Applying International Conventions

By Steven Pounian and Justin Green |

In their Aviation Law column, Steven Pounian and Justin Green write: It will be some months before we learn what caused Flight 8501 to crash. It is not too soon, however, to examine the different laws that may govern the rights of the victims' families against AirAsia.

Shepard Goldfein and James A. Keyte

Wrapping Up an Active 2014

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte write: The year 2014 was an active year in antitrust and competition law, both for governmental enforcement and private litigation. Governmental regulators continued to pursue a pattern of aggressive antitrust enforcement, ranging from merger challenges to criminal investigations. With respect to private litigation, key antitrust concepts continued to play out in federal district and appellate courts regarding the international reach of domestic antitrust law, liability for manipulating global financial benchmarks and the legality of reverse-payment settlement agreements.

Sue C. Jacobs

Two Interesting Appellate Decisions Involving Attorneys

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs reviews recent holdings that the failure to appeal a lower court decision in a legal malpractice action does not bar the suit unless the client was likely to have succeeded on the appeal and that a law firm in a personal injury matter was entitled to an additional percentage of the judgment after a successful appeal.

Kathryn Barcroft

Addressing Employer Responsibilities to Pregnant Workers

By Kathryn Barcroft |

Kathryn Barcroft discusses 'Young v. United Parcel Service,' which was argued before the Supreme Court on Dec. 3, 2014, and the question of whether a company that provides work accommodations to non-pregnant employees with work limitations must also provide work accommodations to pregnant employees who are "similar in their ability or inability to work."

Richard Raysman and Peter Brown

Analyzing Recent Decisions of Software Audit Disputes

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown explore when a software audit right will necessitate equitable relief for the auditor and how one court decided that an unaffiliated third party should conduct a software audit as a means of resolving a contract and trade secrets dispute.

Michael Hoenig

Protecting Privileged ESI: Sedona Commentary

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig discusses the recent "Commentary on Protection of Privileged ESI" issued by The Sedona Conference, which contains insights that can help catalyze a lawyer's strategic thinking to develop tactical steps useful in certain types of complex litigation.

Milton Springut

High on IP: Marijuana-Related Intellectual Property Law

By Milton Springut |

Milton Springut writes: The increasingly friendly legal environment for marijuana use has attracted significant business and investor interest in exploiting what promises to be a substantial revenue stream. This raises the issue of what type of intellectual property can be used to protect such business interests. To a great extent, IP protection for such business is no different than for any other business. However, the indeterminate state of the legality of marijuana has affected intellectual property law in some unexpected ways.

C. Raymond Radigan and David R. Schoenhaar

Statutory Inheritance Rights of a Posthumously Conceived Child

By C. Raymond Radigan and David R. Schoenhaar |

In their Trusts and Estates Law column, C. Raymond Radigan and David R. Schoenhaar provide a background to the unsettled inheritance rights of a posthumously conceived child, review the new law on this issue and discuss certain observations that flow from the passage of the new law.

Harvey M. Stone and Richard H. Dolan

Anonymous Jury, Inmate Actions, Pregnancy Discrimination Claims

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review decisions that granted the government's request to keep a trial jury anonymous and partially sequestered, rejected insurers' motions for reconsideration of an earlier order in the Hurricane Sandy litigation requiring them to turn over engineering reports and related materials, and more.

Anthony E. Davis

Meaning of 'Informed Consent' in New York

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis considers two recent New York decisions that examine the meaning of "informed consent" in the context of both disqualification motions and cases where the interests of clients and their lawyers become directly adverse.

Michael C. Miller and  Jill C. Maguire

Attorneys in Hot Water: When Prosecutors Turn Up the Heat

By Michael C. Miller and Jill C. Maguire |

Michael C. Miller and Jill C. Maguire discuss the results of their informal survey into the criminal convictions that have been obtained over the past few years against lawyers in New York's federal and state courts, and against New York lawyers who have run afoul of the law outside of New York State.

Stephen Kass

The Environmental Struggle Within the Trans-Pacific Partnership

By Stephen L. Kass |

In his International Environmental Law column, Stephen L. Kass writes that the tension between economists, investors and manufacturers favoring the elimination of most constraints on international trade and environmentalists (and labor advocates) fearful of a "race to the bottom" by countries competing for new factories has once again taken center stage in a struggle that is threatening to derail the proposed Trans-Pacific Partnership agreement.

Timothy M. Tippins

Forensic Disclosure: Times Are Changing!

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes that a new year begins with many old problems remaining unresolved in the custody arena. Of particular importance is the longstanding need for a uniform rule affording attorneys and their retained experts full access to the reports and files of court-appointed evaluators. Though 2014 saw no administrative or legislative breakthroughs, a hint of hope did appear on the judicial horizon by way of a scholarly decision by Justice Jeffrey Goodstein in 'J.F.D. v. J.D.'

Michael Pantalony

An End to Split Over Profit Awards in Trademark Cases?

By Michael Pantalony |

Michael Pantalony argues that the Second Circuit should rely on recent Supreme Court intellectual property jurisprudence and join the Third, Fourth, Fifth, Sixth, and Seventh Circuits to hold that willfulness is not a condition precedent to an accounting of profits pursuant to Section 35(a) of the Lanham Act, but rather, one of several equitable factors courts should consider.

Richard Siegler and Eva Talel

Board Members—Personal Liability After the Fletcher Case

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write: When the First Department issued its 2012 decision in 'Fletcher v. Dakota,' it sent a shock wave through the co-op and condominium community. At that time, many viewed the Fletcher decision as an alarming threat to protection from personal liability for board members and a marked departure from prior case law. Two years after 'Fletcher,' this column analyzes whether it has had the feared impact and is appropriately viewed as a departure from prior case law.

Thomas R. Newman and Steven J. Ahmuty Jr.

Imposing Sanctions for Frivolous Appeals

By Thomas R. Newman and Steven J. Ahmuty, Jr. |

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. write: Frivolous appeals impose a substantial and costly burden on courts and respondents, and judicial resources should not be diverted to the processing and disposition of such appeals or motions. To discourage such misconduct, appellate courts will not hesitate to award costs and impose sanctions in appropriate cases.

Elkan Abramowitz and Jonathan Sack

Implications of Reversal of Insider Trading Convictions

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack analyze the Second Circuit's recent reversal of the insider trading convictions of portfolio managers Todd Newman and Anthony Chiasson, focusing on how the court's discussion of "personal benefit" to the tipper may have the effect of limiting the scope of future tipper/tippee prosecutions generally, not just in the case of remote tippees, and a pointed criticism that may reflect a broader concern over the vagueness of white-collar criminal laws and prosecution theories.

Ronald S. Katz and Jeremy R. Lacks

Court Stops New Jersey's Effort to Legalize Sports Betting

By Ronald S. Katz and Jeremy R. Lacks |

Ronald S. Katz and Jeremy R. Lacks write: With its casino industry reeling, New Jersey breathed new life into an issue that has drawn nationwide attention and has pushed professional sports leagues to grapple with the ethical and legal boundaries of sports wagering in the United States. While New Jersey's latest loss in federal district court was not unexpected, the ruling sets up a renewed showdown in the Third Circuit where New Jersey hopes to break its losing streak once and for all.

John Rapisardi and Joseph Zujkowski

Chesapeake Energy Appeal Resolved in Favor of Noteholders

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: In 2013, the Southern District of New York held that Chesapeake Energy Corporation had the right to redeem certain unsecured notes at par value plus accrued interest because the period during which Chesapeake could redeem the notes on such terms had not expired. However, in a 2-1 panel decision, the Second Circuit in November reversed the district court's findings.

Mark A. Berman

Email Spoliation and Service of Process by Social Media

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman, a partner at Ganfer & Shore, discusses recent decisions regarding email spoliation and service of process over social media.

Evan H. Krinick

ERISA and Insurer Fraud Suits Against Health Care Providers

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick reviews a recent decision that reinforces the general rule in the Second Circuit that lawsuits brought in federal court by insurance companies against health care providers that allege fraud or fraudulent misrepresentation, among other things, will not be dismissed on ERISA preemption grounds.

Colleen Tracy James and Daniel Cooper

'Ordinary Skill in the Art' at Patent Jury Trials

By Colleen Tracy James and Daniel Cooper |

Colleen Tracy James and Daniel Cooper write: To help jurors distinguish the "normal or ordinary" from the "unusual or extraordinary," it seems that identifying a set of decision-making influences, practices, biases or tendencies of a "person of ordinary skill in the art" might be useful. An effort to identify such a matrix might provide a useful guide to jurors faced with the challenge of coming to an understanding of what, why and how a POSA would have made his or her choices at the time of the invention.

Jerry H. Goldfeder and Myrna Perez

Year-End Round Up on Elections and Voting Rights

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez present some of the more interesting highlights of 2014, including a spate of cases that challenged the results of several New York Supreme Court judicial nominating conventions, a nullified town election, the U.S. Supreme Court's holdings on restrictive voting statutes, and more.

Martin A. Schwartz

Using Section 1983 to Contest State Court Rulings

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz writes: In a series of decisions the Supreme Court and lower federal courts extended the Younger abstention doctrine, which generally bars the federal courts from interfering with state judicial proceedings, from state court criminal proceedings to a wide range of state court civil and even administrative proceedings. Last term, however, the Supreme Court rendered an important decision limiting the scope of the Younger doctrine.

James G. Ryan

Victory for Gay Marriage Doesn't Affect Workplace Rights

By James G. Ryan |

James G. Ryan writes that while Congress has been unsuccessful in addressing workplace sexual orientation discrimination, a number of states have enacted laws that prohibit discrimination based on gender identity and/or sexual orientation. But those who live in states without such laws may still be able to use existing federal law—specifically Title VII—to fill that void.

Martin Flumenbaum and Brad S. Karp

Limiting the Scope of Warrantless Searches

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss a decision that makes clear that the presence of illegal firearms in a high-crime area does not, on its own, justify a warrantless search of people and property protected by the Fourth Amendment.

Elai Katz

Justice Department Seeks to Block Cinema Advertising Merger

By Elai Katz |

In his Antitrust column, Elai Katz reviews recent developments, including Seventh Circuit's reaffirmation of its ruling that a domestic corporation could not assert price-fixing damages claims on behalf of its foreign subsidiaries, along with matters involving the regulatory process through which international airline fares are filed and monitored, anticompetitive ethical rules in professional associations' codes of conduct, and more.

Michael Rikon

Valuation of Condemned Property Subject to Wetlands Regulations

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon analyzes a recent a Second Department decision involving the valuation of Staten Island Wetlands. The decision is important to the consideration of all claims involving regulatory takings commonly referred to as inverse condemnation, and it is the first appellate court determination on the subject of wetlands valuation in a condemnation setting in over 25 years.

Karen H. Bromberg and Duane A. Cranston

The Sony Hack: Why Companies Must Review Network Security

By Karen H. Bromberg and Duane A. Cranston |

In their Cyber Security column, Karen H. Bromberg and Duane A. Cranston of Cohen & Gresser write: The Sony breach is a wake-up call, not only because the hack was carried out with the principal aim of harming Sony, but because the ongoing leaks are likely to raise unprecedented legal issues for the company.

Gerald M. Levine

Advantages and Approaches in Registering Trademarks

By Gerald M. Levine |

Gerald M. Levine writes: The value of trademarks in modern times accrues through use. They do not have to be registered with the U.S. Patent and Trademark Office to have statutory protection under the Lanham Act but there are distinct advantages to registration by small businesses and entrepreneurs when it comes to protecting and enforcing rights. These advantages are not well enough known or clearly understood.

Howard Epstein and Theodore Keyes

Direct Loss Requirement in Fidelity Insurance Bonds

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes of Schulte Roth & Zabel discuss a case in which primary and excess insurers denied coverage and ultimately commenced a lawsuit seeking an order confirming their disclaimer position.

Zlatko Hadzismajlovic

President's Move on Visa Modernization and Other Efforts to Fix the System

By Zlatko Hadzismajlovic |

Zlatko 'Zack' Hadzismajlovic of McCarter & English discusses the proposed changes to the L-1B specialized knowledge adjudication standards.

David M. Barshay

Collateral Estoppel Effect of a Declaratory Judgment Action

By David M. Barshay |

In his No Fault Insurance Law Wrap-Up, David M. Barshay writes: In the context of no-fault actions, the doctrine of collateral estoppel is usually raised with respect to a declaratory action or other such action in which a determination is made affecting the entire claim, and the insurer obtains a judgment relieving it from paying a particular claim.

Benjamin E. Rosenberg

Actual Innocence: the Curious Case of 'People v. Hamilton'

By Benjamin E. Rosenberg |

Benjamin E. Rosenberg, general counsel for the District Attorney of New York, discusses 'Hamilton', the first decision by a N.Y. appellate court to hold that a defendant might vacate his conviction if he could demonstrate that he was "actually innocent" of the crime of which he was convicted.

Alexis S. Axelrad

President's Immigration Accountability Executive Action

By Alexis S. Axelrad |

In her Immigration Law column, Alexis S. Axelrad, a partner at Barst Mukamal & Kleiner, highlights a number of immigration programs announced by President Barack Obama on Nov. 20, 2014, that impact both undocumented and documented individuals.

Edward Neiger and Dina Gielchinsky

When Reality Television Gets Real: Housewives in Bankruptcy

By Edward E. Neiger and Dina Gielchinsky |

Edward E. Neiger and Dina Gielchinsky of ASK LLP seek to set the record straight on the bankruptcies of Real Housewives Sonja Tremont-Morgan and Teresa Giudice.

Confronting Chinese Economic Cyber Espionage With WTO Litigation

By Stuart S. Malawer |

Stuart S. Malawer, Distinguished Service Professor of Law and International Trade at George Mason University writes: Chinese economic cyber espionage—government hacking into computer networks of companies to gain commercial advantages for Chinese firms—is one of the most complex issues confronting U.S. national security and foreign policy today. A creative legal response is available.

Rupert Barkoff

The Failure of Franchising and Academia to Intersect

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff writes: If law schools want to be relevant in the process of creating good lawyers with real world experience, they should consider offering a course in franchising law as one avenue to enhance the experience they provide to their students.

Peter A. Crusco

Does 'Riley' Portend the Demise of the Third Party Doctrine?

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco, executive assistant district attorney, investigations division, Office of the Queens County District Attorney, addresses 'Riley' and its impact in the digital era of Fourth Amendment search and seizure jurisprudence.

Conrad Teitell

In Wake of Ebola Crisis, Reviewing Donation Programs

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell reviews various donation programs in the wake of the Ebola crisis, and writes: "A deduction is a deduction is a deduction. Right? As you’ll see, it ain’t necessarily so."

Thomas A. Dickerson and Leonard B. Austin

New York State Class Actions 2014: CPLR 901(b) Clarified—Again

By Thomas A. Dickerson and Leonard B. Austin |

Thomas A. Dickerson and Leonard B. Austin discuss how the Court of Appeals clarified the circumstances under which class plaintiffs, particularly, tenants, may waive a statutory penalty pursuant to CPLR 901(b).

David I. Miller and Ryan D. Nassau

Changed Landscape in Insider Trading Law: Second Circuit's Newman Decision

By David I. Miller and Ryan D. Nassau |

David I. Miller and Ryan D. Nassau discuss the recent ground-breaking decision "United States v. Newman," where the U.S. Court of Appeals for the Second Circuit found that to be guilty of insider trading, a tippee of material non-public information must know that the insider who conveyed the information (on which trades were made) did so in exchange for a personal benefit.

George Bundy Smith and Thomas J. Hall

Lack of Marketability Discounts In Statutory Fair Value Proceedings

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update column, George Bundy Smith and Thomas Hall discuss the so-called “discount for lack of marketability” — when New York courts will discount the value of minority shares to account for the lack of marketability inherent in the sale of a close corporation— and review recent Commercial Division cases that refine its application.

Joseph E. Bachelder III

Tying Incentives of Executives to Long-Term Value Creation

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III examines the intrinsic value versus the market price of a publicly traded corporation and the current design of long-term incentives awarded to the management of such corporations.

Edward M. Spiro and Judith Mogul

Practical Observations by Judges on the Scope of Discovery

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup column, Edward M. Spiro and Judith L. Mogul discuss a number of rulings by Southern District judges on discovery disputes that offer instructive commentary on the scope of permissible discovery.

Roberta S. Karmel

Reviewing Definition of Accredited Investor

By Roberta S. Karmel |

In her Securities Regulation column, Roberta Karmel writes: Very generally, an accredited investor is a person (either an institution or a natural person) who is sufficiently sophisticated so as not to need the protections of the registration provisions of the federal securities laws. Yet, the accredited investor is normally defined in terms of wealth, on the theory that such an investor can hire knowledgeable and sophisticated advisors.

Jill Mariani

Grand Jury Calls for Reforms to Curb Fraud in State Program

By Jill Mariani |

Jill Mariani, senior investigative counsel in the Rackets Bureau of the New York County District Attorney’s Office, discusses the investigations that have uncovered widespread corruption in the use of minority-owned and women-owned business enterprises.

Marshall Fishman, David. J. Onorato and David Y. Livshiz

Separate Entity Rule and Extraterritorial Discovery

By Marshall Fishman, David J. Onorato and David Y. Livshiz |

Marshall Fishman, David J. Onorato and David Y. Livshiz discuss the Court of Appeals' recent ruling in 'Motorola Credit Corporation v. Standard Chartered Bank,' writing that now that the separate entity rule's existence has been expressly recognized by the Court of Appeals, attention will shift to the question of how far the rule will reach.

Roy L. Reardon and William T. Russell Jr.

Bankruptcy Case Involving Rent-Stabilized Lease

By Roy L. Reardon and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases addressing the reach of New York's long-arm jurisdiction statute and the question of whether a rent-stabilized lease represents a public benefit that is protected in a personal bankruptcy proceeding, along with a case in which the court affirmed the reversal of the first conviction for a hate crime murder involving a transgender victim on the basis of the inconsistency of the verdict.

Shari Claire Lewis

Court of Appeals Rejects Claim of Internet-Based Jurisdiction

By Shari Claire Lewis |

In her Internet Issues/Social Media, Shari Claire Lewis, a partner at Rivkin Radler, discusses a recent decision that undoubtedly will help clarify the long-arm jurisdiction rules in New York.

David J. Kaufmann

Menu Labeling Requirements of the Affordable Care Act

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann reviews which establishments and menu items are covered by the menu labeling requirements of the Patient Protection and Affordable Care Act of 2010, and what the impact of noncompliance would be.

John L.A. Lyddane and Barbara D. Goldberg

Hospital Liability for Private Patients

By John L.A. Lyddane and Barbara D. Goldberg |

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg discuss a series of cases that indicates that it is only where a hospital's employees, on the basis of their own common knowledge and experience, are aware that an intended course of treatment is "clearly contraindicated by normal practice" that they may be under an obligation to intervene in the care of patients of private attending physicians.

Jay Goldberg

Grand Jury Is Not Essential to our System of Justice

By Jay Goldberg |

Jay Goldberg writes: The bench and the bar overstate the importance of the grand jury in deciding whether there should be a criminal prosecution. In fact, the decisions of the grand jury in Ferguson, Mo., and in the case involving the death of Eric Garner in New York, raise the question of whether the criminal justice system can really function without the requirement of a grand jury proceeding altogether.

David C. Djaha, Laurie C. Nelson and Matthew J. Stoller

Violations of SPE Covenants After 2008: Borrowers Beware

By David C. Djaha, Laurie C. Nelson and Matthew J. Stoller |

David C. Djaha, Laurie C. Nelson and Matthew J. Stoller write that in the past several years, borrowers have witnessed a change: Lenders are more apt to require recourse liability in certain instances where the borrower has not committed voluntary "bad boy" acts.

Sidney Kess

Business Driving: Tax Rules and Consequences

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: While people in urban areas may rely on mass transit, taxis, and bicycles, the vast majority use their own vehicles. Generally, a taxpayer can choose between the IRS standard mileage rate or the actual expense method to figure the deduction for business driving.

Ben Rubinowitz and Evan Torgan

Cross-Examining the Mistaken Witness

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write that when a witness testifies falsely at trial there are generally only two reasons: Either the witness is mistaken or a liar. Too often, lawyers approach cross-examination of both the mistaken witness and the liar with a "one-size-fits-all" approach. This is a mistake.

Paul I. Marx

CPLR 321 Representation Conundrum

By Paul I. Marx |

Paul I. Marx writes: There are times when the CPLR does not provide a clear answer to even a straightforward question. One instance concerns the procedure for relieving counsel from representation when the client consents, but there is no incoming counsel. Under those circumstances, is it procedurally proper, or advisable, for an outgoing attorney to be allowed to simply file a Consent to Change Attorney signed by both the attorney and client indicating that the client will be self-represented?

Joseph Lipari

Financing Plan Did Not 'Sweep' Away Sales Tax Liability

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari Many business loan agreements contain provisions to protect the lender in the event the business of the debtor gets into trouble, such as "sweep" provisions under which the lender can move funds from a bank account controlled by the debtor to an account controlled by the lender. A recent Tax Appeals Tribunal decision demonstrates the risks inherent in these arrangements.

Harvey M. Stone and Richard H. Dolan

Relief in Hurricane Sandy Cases Over Insurer's Actions

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review decisions that vacated a petitioner's guilty plea in light of the government's misleading pre-plea disclosures, invited plaintiffs to apply for sanctions as compensation for a defendant insurer's deceptive engineering report on Hurricane Sandy damage to plaintiffs' house, and more.

Joel C. Haims, Jamie A. Levitt and James J. Beha II

Going-Private Transactions and Business Judgment Rule

By Joel C. Haims, Jamie A. Levitt and James J. Beha II |

Joel C. Haims, Jamie A. Levitt and James J. Beha II write: As a result of the more stringent review applied to interested-party transactions, going-private transactions and other controlling shareholder mergers usually have been subject to burdensome and expensive court challenges irrespective of their terms. Delaware courts sought to address this problem last year, and New York is now following their lead.

In 2014, Has the Workplace Improved?

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar writes: As 2014 comes to a close, employee rights have taken some unusual turns. Our year began with an increase in New York's minimum wage and ended with the Supreme Court's explosive decision in 'Burwell v. Hobby Lobby Stores,' where religious beliefs were introduced into the private workplace. Still, other decisions, agency proposals, and statutes may give employees a glimmer of hope that 2015 will be a better year.

Abby Tolchinsky and Ellie Wertheim

Do Separate Meetings Between Neutrals and Parties Help?

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim write: Unlike a judge, a conflict resolution neutral's take on the substance of a conflict is of little import. The work is to help the parties see the conflict as if stepping into the other's shoes, in order to arrive at a compromise solution. Therefore, as a baseline, we do not hold confidences of one party from another. But there are circumstances and types of mediations where caucus can be productive.

Kenneth N. Rashbaum, Jason M. Tenenbaum and Liberty McAteer

Cybersecurity: Business Imperative for Law Firms

By Kenneth N. Rashbaum, Jason M. Tenenbaum and Liberty McAteer |

Kenneth N. Rashbaum, Jason M. Tenenbaum and Liberty McAteer write: Stories of breaches of cybersecurity are viral, and the virus has spread to law firms. While banks have been auditing law firms' information safeguards for some time on a sporadic basis, review initiatives have gained significant urgency as a result of a recent letter from the New York State Department of Financial Services, and additional cybersecurity standards arise from myriad federal regulations.

Sarah S. Gold and Richard Spinogatti

Applying Delaware's Direct vs. Derivative Analysis

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti write that in a recent decision, the Second Circuit considered whether the usual direct/derivative test for stockholder suits should apply to a parent company suing for breach of a contract entered into for the benefit of a wholly owned acquisition subsidiary, but found itself unable to determine the proper analysis under governing Delaware law. The Delaware Supreme Court's answer to the question certified by the circuit may affect practitioners' structuring of merger transactions.