Expert Analysis

Martin A. Schwartz

Supreme Court Rules for Public Employee on First Amendment Claim

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz discusses 'Heffernan v. City of Paterson', where the U.S. Supreme Court held that a police officer who was demoted because his superiors mistakenly believed he had engaged in political association was entitled to assert a §1983 First Amendment retaliation claim, even though he had not in fact engaged in any First Amendment activity.

Conrad Teitell

Charitable Remainder Trust Checklist

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes: Inter vivos charitable remainder unitrusts and annuity trusts enable your clients to make significant gifts that go to charities at death while retaining income for life. When properly structured, income tax charitable deductions are allowed, and capital gains taxes on the sale of appreciated assets by the trusts are avoided, reduced or postponed. But the IRS doesn't forgive foot faults. Make a small mistake, and income, gift and estate tax charitable deductions are disallowed, and capital gains are taxable.

William K. Kirrane and Michael A. Savino

Narrowing Judgments Through Tort Reform Legislation

By William K. Kirrane and Michael A. Savino |

William K. Kirrane and Michael A. Savino write that the goal of our tort system is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred. But with the system providing plaintiffs future lost earnings awards not offset for taxes and a fixed interest rate far exceeding the prime rate on judgments, plaintiffs are instead profiting from their losses.

John L.A. Lyddane and Barbara D. Goldberg

'Learned Treatises' and Expert Opinion Testimony

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

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that in New York, an expert who advances an unreliable theory cannot be cross-examined with medical literature unless he or she accepts the literature as authoritative. It may nevertheless be possible for defense counsel to demonstrate that even though the plaintiff's expert will not acknowledge an article as "authoritative," the expert nevertheless treats a particular publication as "reliable" so as to permit cross-examination.

Carlos J. Cuevas

Pleading Aiding and Abetting Fraud in Ponzi Scheme Cases

By Carlos J. Cuevas |

Carlos J. Cuevas writes: One means of trying to recoup the losses for the defrauded investors of a Ponzi scheme is commencing a lawsuit for aiding and abetting fraud against a professional, such as an accountant or an attorney, who had actual knowledge of the Ponzi scheme and rendered substantial assistance to its effectuation. A potential, but not insurmountable, obstacle is CPLR 3016.

Christine A. Fazio and Ethan I. Strell

The Ongoing Water Crisis in New York

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell write: PFOA and PFOS pollution upstate has raised significant concerns about the overall safety of the state's water systems and the efficacy of the nation's industrial chemical regulation in general. The DEC's recent regulatory amendment is a needed step toward preventing contamination, but is narrow in scope.

Brian P. Heermance and Christopher P. Keenoy

Long-Term Care Liability—Analysis and Defense

By Brian P. Heermance and Christopher P. Keenoy |

Brian P. Heermance and Christopher P. Keenoy discuss the types of claims that arise over the care received at nursing homes and assisted living facilities (ranging from injuries associated with falls and development of bedsores, to allegations of the facility's failure to develop and update the patient/resident's individualized plan of care), the statutes governing long-term care facilities, and the complexities in defending these claims.

Jerry H. Goldfeder and Myrna Pérez

Re-Enfranchising People With Prior Convictions

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: A political fight over the use of executive authority to restore voting rights is not new. Nor is turning to the courts to decide whether state disenfranchisement laws are lawful. What is new in a current battle over Virginia Governor Terry McAuliffe's recent executive order is the use of state courts to adjudicate a largely political battle over the use of executive authority to restore voting rights.

John S. Siffert and Leigh Llewelyn

Insider Trading as Fraud: Economic Benefit as an Element

By John S. Siffert and Leigh Llewelyn |

John S. Siffert and Leigh Llewelyn write: The Supreme Court and Congress have settled on mail "fraud" as requiring either a property-based taking or, in cases involving honest services fraud, certain kinds of economic gain. Lesser known is the surprising fact that Congress already enacted a statute that perfectly covers the case of an insider trading tipper. As modified by the court, it also requires the fraudster obtain an economic benefit. There is no principled reason why the court's longstanding view of fraud as an economic crime should not govern the upcoming 'U.S. v. Salman'.

Edward M. Spiro and Judith Mogul

Requirements for Invoking the Common Interest Doctrine

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Although invocation of the common interest doctrine is seldom challenged through litigation in the Southern District, with only a handful of written decisions on the subject each year, its contours are not as well-defined as many lawyers assume. Two recent decisions narrowly construing the doctrine underscore the importance of understanding the common interest doctrine's requirements.

Robert L. Schonfeld

Decision Raises Questions About Standing in Fair Housing Cases

By Robert L. Schonfeld |

Robert L. Schonfeld writes that even though in 'Spokeo Inc. v. Robins' the Supreme Court remanded the case for reconsideration on the question of whether the plaintiff had adequately pleaded that he had incurred injuries that were "concrete" enough to give him standing, taking no position on whether the plaintiff actually did have standing, in failing to affirm the Ninth Circuit, the decision could have an impact on decisions on standing in lawsuits brought under federal laws other than the Fair Credit Reporting Act.

Shari Claire Lewis

FTC Issues Privacy Tool, Guidance for Health-Related Mobile Apps

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis writes: The FTC's well-organized Web-based tool and new guidance for mobile health app developers should serve as a reminder to them of the importance the agency places on protecting consumers' privacy. If regulators are interested in privacy, then developers should be interested in privacy.

Sidney Kess

Tax Breaks for Caring for the Elderly and Disabled

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: According to the Population Reference Bureau, the vast majority of caregivers in the United States for the ever-increasing elderly population are family members. Caring for someone who is elderly or disabled entails personal and financial costs. Whether acting under a moral or legal obligation to provide care, at least the tax law provides some assistance for the caregiver.

Shepard Goldfein and James A. Keyte

Donald Trump and Antitrust: Taking Stock of a Litigious Record

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write that although the now presumptive Republican presidential nominee has been outspoken on a variety of issues, he has largely remained silent on the issue of antitrust enforcement. As a businessman, Trump has had two run-ins with the antitrust laws. Taken together, what can his public comments and his experience in this fairly specialized area tell us about what a Trump presidency might mean for antitrust enforcement?

Hiring and Firing a Key Executive at Yahoo

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III discusses the recent case over the compensation/severance arrangement Yahoo! Inc. had with its chief operating officer, who was paid just under $100 million for 14 months work, and lessons companies should learn.

George Bundy Smith and Thomas J. Hall

Conditions Precedent and the Need for Unambiguous Terms

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: In light of the significant impact conditions precedent clauses can have, New York courts generally are strict in construing whether a contractual provision constitutes such a condition. When ambiguity creeps into the language, efforts to convince the court to construe it as a condition precedent may fail regardless of the availability of parol evidence, as several recent decisions demonstrate.

Lawrence Elbaum

Issues for Companies Under New Trade Secrets Law

By Lawrence Elbaum |

Lawrence Elbaum discusses the Defend Trade Secrets Act of 2016, which provides for multiple equitable and legal remedies, including ex parte orders that can result in seizure or isolation of misappropriated trade secret materials, as well as injunctions and monetary relief including damages for actual loss and unjust enrichment.

David J. Kaufmann

Guide to Evaluating Franchises: Review Disclosure Documents

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann writes: With the International Franchise Expo in town at the Javits Center, thousands of prospective franchisees will be evaluating hundreds of franchises being offered. But what is the most critical, indispensable and helpful step in evaluating whether to acquire franchise rights from any given franchisor? The answer is simple: a thorough review of the franchisor's Franchise Disclosure Document.

Roberta S. Karmel

Business and Financial Disclosure—The Concept Release on S-K

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: A mammoth 341-page Concept Release, posing 340 questions, on possible reforms to Regulation S-K, may prove the keystone for the Disclosure Effectiveness Project of the SEC, along with an earlier Release on Regulation S-X.

Jordan Greenberger

Trademark Disputes in Craft Beer Industry

By Jordan Greenberger |

Jordan Greenberger writes: As the craft beer industry continues to grow, nationally and in New York State, so too do trademark disputes amongst breweries. A recent suit between an established New York craft brewer and a California start-up brewer over the use of the mark "Black Ops" illustrates the type of arguments that are often raised in such disputes, and the ability of a trademark owner to enjoin the use of a confusingly similar mark even when the infringing mark is used on the other side of the country.

Robert J. Bernstein and Robert W. Clarida

Circuit Split Creates Uncertainty in Sampling of Sound Recordings

By Robert J. Bernstein and Robert W. Clarida |

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida write that on June 2, the Ninth Circuit held that a 0.23 second sample from a sound recording of three horns simultaneously playing the notes of a chord did not meet the de minimis standard for copyright infringement, rejecting the reasoning of the Sixth Circuit in a 2005 decision that any sampling, no matter how brief, was infringing.

Roy L. Reardon and William T. Russell Jr.

Business Judgment v. Entire Fairness; Judicial Salaries Litigation

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 in which the court addressed the standard of review for analyzing a "going-private" corporate transaction, approved the rejection of a class action settlement that did not afford non-resident class members an opportunity to opt out, and denied an effort by state judges to obtain damages for the Legislature's failure to enact judicial salary increases.

Joel Cohen and James L. Bernard

The Movie 'Spotlight' and Legal Ethics

By Joel Cohen and James L. Bernard |

Joel Cohen and James L. Bernard write: Like all good movies about an important and controversial event, the story told in the movie "Spotlight," about the role of the Boston Globe in uncovering the breadth of the clergy scandal that impacted the Boston diocese, was no doubt some combination of truth and dramatization. One startling and poignant scene is worth discussing from an ethics point of view.

Richard Raysman and Peter Brown

Illegal Telemarketing Cases Produce Interesting Decisions

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown analyze enforcement mechanisms that have been deployed to combat illegal telemarketing and how some have fared.

Joseph C. Savino and Stephanie Suarez

Definition of 'Applicant' in Equal Credit Opportunity Act

By Joseph C. Savino and Stephanie Suarez |

Joseph C. Savino and Stephanie Suarez discuss 'Hawkins v. Community Bank of Raymore,' in which the U.S. Supreme Court, asked to consider whether the provision of the Equal Credit Opportunity Act that makes it "unlawful for any creditor to discriminate against any applicant [for credit]…on the basis of…marital status" applied also to guarantors, affirmed the Eighth Circuit by an equally divided per curiam opinion after the death of Justice Scalia, leaving the circuits split.

Michael Hoenig

Some Practical Tips on Trial Preparation

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes that it is often said that what really happens in a trial is the product of intensive preparations beforehand. With that in mind, he poses eight questions to begin assessing your trial readiness.

Ilene Sherwyn Cooper

Issues Affecting Estate Litigation and Practice

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper discusses recent cases involving the production of the personal income tax returns of a fiduciary, scope of witness examination, a demand for a jury trial on the issue of a corporate trustee's alleged conversion of trust funds, and more.

Harvey M. Stone and Richard H. Dolan

Attorney Sanctions; Considerations in Sentencing

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions involving sentencing in light of the extensive collateral consequences of defendant's conviction, sanctions for attorneys' pattern of conduct including neglect of trial-related scheduling orders, and eligibility for a "safety-valve" exception to a ten-year mandatory minimum sentence after a previous driving while impaired conviction.

Joseph Lipari

Decisions Explain Capital Improvements Sales Tax Rules

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari writes: An owner of real property is not charged sales or use tax on "capital improvements," but contractors must pay use tax on the materials purchased by it to construct such improvements. For many taxpayers, the nuanced set of rules on this exemption leads to confusion, and a failure to understand the peculiarities can result in unexpected liabilities, as two recent decisions highlight.

Janis M. Meyer

The Panama Papers—An Incentive for 'Spring Cleaning'

By Janis M. Meyer |

Janis M. Meyer writes: Although a number of U.S. law firms conduct some form of such due diligence as part of their client intake procedures, it is not mandatory here. It is likely, however, that the legal profession will be under increased scrutiny as the Panama Papers revelations continue. Accordingly, lawyers and law firms should view the Panama Papers as an opportunity to do some internal review to ensure that they are protected against a Panama Papers or Global Witness-type incident.

David M. Barshay

Policy Exhaustion; Restoring Case to Trial Calendar

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay writes: If an insurer receives a bill for an earlier date of service, but does not pay it, and then receives and pays subsequent bills which exhaust the policy, is the insurer obligated to pay the earlier bill? Not surprisingly, there are several schools of thought as to whether an insurer must pay the earlier bill.

C. Raymond Radigan and John G. Farinacci

Law of Organ Donation and Transplantation

By C. Raymond Radigan and John G. Farinacci |

In their Trusts and Estates Law column, C. Raymond Radigan and John G. Farinacci discuss courts' balancing of the wishes of the deceased, the desires of the surviving family, and the need for bodies and organs for transplants, education and research in cases arising under the New York Anatomical Gifts Act or the right of sepulcher.

Eric Broutman and Carolyn Wolf

'Munsey' Changed Landscape of Involuntary Psychiatric Admissions

By Eric Broutman and Carolyn Wolf |

Eric Broutman and Carolyn Wolf write that since the deprivation of liberty is a significant impingement on one's rights, the Supreme Court requires regular access to courts for involuntarily confined psychiatric patients. Until recently, if a New York hospital failed to timely apply for a statutory hearing the court would not automatically release the patient, but conduct a hearing to see if the patient was indeed mentally ill and dangerous. This all changed in a 2015 Court of Appeals decision concluding that the only appropriate remedy is the patient's immediate release.

John Rapisardi and Joseph Zujkowski

'In re Sabine': Gathering Agreements and Real Covenants

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: In a number of recent chapter 11 cases filed by "upstream" energy and production companies, the debtor's rejection of "gathering agreements" or similar contracts with "midstream operators" has raised the issue of whether the debtor's mineral estate is free of obligations stemming from covenants that "run with the land" as either real covenants or equitable servitudes. A recent decision is an important reminder that whether such covenants are real covenants centers on a specific, fact-based analysis under state law.

Margaret A. Dale and Mark D. Harris

Federal Jurisdiction Over State Securities Claims

By Margaret A. Dale and Mark D. Harris |

In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris, write: In Merrill Lynch v. Manning, the Supreme Court affirmed a Third Circuit decision holding that the test for federal jurisdiction under the exclusive jurisdiction provision of the Securities Exchange Act of 1934 is the same as for "arising under" jurisdiction under 28 U.S.C. §1331, the general federal-jurisdiction statute. The court was not asked to apply §1331, however, and so it left open the question of whether and when a state-law claim may "arise under" federal law.

Marshall Fishman, Timothy Harkness and David Y. Livshiz

Personal Jurisdiction and Financial Transfers

By Marshall Fishman, Timothy Harkness and David Y. Livshiz |

Marshall Fishman, Timothy Harkness and David Y. Livshiz write that two recent Southern District decisions, taken together, create a risk that a foreign financial institution engaging in a dollar-denominated transaction anywhere in the world may wind up having to litigate claims arising out of those transactions in the United States, solely based on the fact that they were executed in dollars and involved U.S.-based correspondent bank accounts. This result is not only unprecedented, but conflicts with Supreme Court guidance.

Thomas A. Moore and Matthew Gaier

Second Circuit Decision on Damages With Broad Ramifications

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write: The Second Circuit recently issued a particularly noteworthy opinion addressing damages in an action involving malpractice at a VA medical center. That decision has important ramifications for cases stemming from care rendered at VA facilities, but also has portentous implications for damages-related issues in other federal and state malpractice actions.

Robert J. Anello and Richard F. Albert

White-Collar Practitioner's Guide to the Supreme Court's Term

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: The Supreme Court's 2015 Term promises significant developments for the white-collar bar. The court already has issued three decisions that are noteworthy for white-collar practitioners, with the most significant likely yet to come.

H. Christopher Boehning and Daniel J. Toal

Personal Devices Increasingly Part of New E-Discovery Normal

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss three recent decisions that help illustrate how the integration of personal devices and email into the corporate environment, whether authorized or not, is changing discovery in the corporate litigation context.

Barry Kamins

Court of Appeals Re-Examines the 'Wrong Person' Defense

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes: In a series of recent decisions, the New York Court of Appeals has revisited the 'wrong person' defense—an offer of evidence that a third party committed the crime. Stressing that the quality of proof of third-party culpability can vary depending on the nature of a case, the court held that, under certain circumstances, an offer of proof can consist of hearsay evidence with the understanding that the defendant will be prepared at a trial to present the evidence in admissible form.

Jeffrey S. Klein and Nicholas J. Pappas

Politics Not as Usual: Protection of Political Activities

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas write: Co-workers may frequently discuss politics in a perfectly amicable manner; however, circumstances may arise where employers may need to impose discipline for misconduct that an employee may claim constituted a form of protected political activity.

David G. Samuels

Nonprofit Compensation and Employment Law Update

By David G. Samuels |

David G. Samuels discusses developments relating to compensation of executives, loans to directors and officers and whistleblower protections at charitable organizations, along with changes to the minimum wage and right to overtime that may affect workers for nonprofits.

John P. Furfaro and Risa Salins

Supreme Court Review in Employment and Labor

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins review Supreme Court rulings from the 2015-16 term on class certification under the Fair Labor Standards Act; the viability of public-sector agency shop arrangements under the First Amendment; equitable relief, the duty of prudence and preemption under ERISA; and the validity of class-arbitration waivers.

Christopher Dunn

American Constitutional Regime From a German Perspective

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: As a representative democracy with a federal constitution and a well-developed judiciary, Germany has a general constitutional regime quite similar to ours. A closer comparison, however, highlights features of our regime that, for better or worse, distinguish it.

John G. Martin

Statistical Sampling in Health Care Litigation

By John G. Martin |

John G. Martin writes: Although the FCA and most provider contracts with insurance companies do not discuss statistical sampling and extrapolation, it has become routine for the government, whistleblowers and insurers to demand repayment of thousands of claims that they have not reviewed, by pointing to errors in a subset of claims that they have reviewed.

Michael J. Hutter

Judicial Notice of Website Information

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes: While a review of cases over the past 20 years reveals that New York courts, following the lead of the federal courts, are taking judicial notice of facts from websites, the cases do not set forth any analytical framework for determining when judicial notice is or is not appropriate. That absence s troubling as there is now uncertainty as to when a New York court will take judicial notice of a website-mentioned fact, and the distinct possibility of "facts" being noticed when they should not be.

Kenneth E. Pitcoff and Kevin G. Faley

When Same-Sex Harassment Creates a Hostile Work Environment

By Kenneth E. Pitcoff and Kevin G. Faley |

Kenneth E. Pitcoff and Kevin G. Faley write that the U.S. Supreme Court in 1998 made clear that a sex discrimination claim is not barred because the plaintiff and the harasser are members of the same sex, and provided three routes that create inferences of discrimination "because of…sex" in such circumstances. Every circuit has determined that those routes are not exhaustive, but their analysis of the "because of…sex" and "severe and pervasive" requirements are diverse.

Peter M. Fass

SEC Adopts Rules to Permit Crowdfunding

By Peter M. Fass |

Peter M. Fass discusses the SEC's final rules to permit companies to offer and sell securities through crowdfunding, rules that will assist smaller companies with capital formation and provide investors with additional protections.

Anna Murray

How Not to Be Victim of a Cyber-Attack: Security Rules for Lawyers

By Anna Murray |

Anna Murray writes: A few months ago, my software team received the following request from an attorney: "Please create a form on my WordPress website so potential clients can upload scans of important documents." He thought it would be an improvement over submitting through Gmail, without realizing the danger of his request.

Edward E. Neiger

Changes in Teen Spending Affect Once-Popular Brands

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger discusses filings in the teen apparel industry, which continues to decline as the shift in teen spending habits from fashion to technology becomes more pronounced and fast fashion companies that get new trends to the market quickly and cheaply draw sales over companies built on brand name logo appeal.

Martin Flumenbaum and Brad S. Karp

Applying Newly Announced Test for Proof of Pregnancy Discrimination

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Legg v. Ulster County,' in which the court, in an issue of first impression, found that the denial of a light-duty accommodation to the pregnant employee of a county correctional facility was sufficient to support an inference of discrimination under the Supreme Court's recently announced "significant burden" standard for proof of pregnancy discrimination under Title VII.

Ellen H. Greiper and Scott P. Eisenberg

Email and Continuous Treatment in Medical Malpractice Actions

By Ellen H. Greiper and Scott P. Eisenberg |

Ellen H. Greiper and Scott P. Eisenberg of Goldberg Segalla discuss the decision in 'Caesar v. Brookman', which answered the question of whether a medical provider can treat a patient by way of email.

Paul Bennett Marrow

Arbitrators Excluding Evidence as a Sanction

By Paul Bennett Marrow |

Paul Bennett Marrow argues that two recent decisions, 'Attia v. Audionamix' and 'NFL Management Council v. Tom Brady,' clarify that it's a good idea for an arbitrator to think twice before precluding evidence as a way to control party misconduct, but there should be room for a rule allowing an arbitrator who deals with misconduct to consider the impact of disruptive behavior as grounds for excluding evidence if the behavior prejudices the rights of other parties to a fundamentally fair hearing.

Rupert M. Barkoff

Franchise Documents Should Not Be Cookie Cutter Products

By Rupert M. Barkoff |

Rupert M. Barkoff while Franchise Documents can be easily prepared by copycatting existing documents used by other franchisors, this overlooks the fact that this cookie-cutter approach is not likely to be successful when the franchise systems are not virtually identical. Copycatting will be less effective when the franchise systems are in different industries, but even when the systems are similar, there are other reasons not to use a copycat approach.

Arthur J. Ciampi

Formulating Retirement Policies That Value Senior Lawyers

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi analyzes some of the issues concerning law firm partner retirement, including some interesting retirement statistics, and examines how other professions address issues regarding their senior members to discern whether their policies can be translated into law firm life.

Avi Weitzman and Jason P.W. Halperin

Curing Albany's Corruption Epidemic

By Avi Weitzman and Jason P.W. Halperin |

Avi Weitzman and Jason P.W. Halperin propose a three-part fix to reduce the incentives and opportunity for future corruption in New York State government.

Charlotte A. Biblow

Proposals on Solid Waste Management Rules

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: The Department of Environmental Conservation has proposed comprehensive revisions to its existing regulations governing solid waste management facilities that, when adopted, likely will affect every municipality across the state as well as businesses ranging from contractors, landscapers, and mulch facilities to hospitals and pharmacies, in addition, of course, to every aspect of the solid waste management industry.

Timothy M. Tippins

Recording, 'Vicarious Consent' and Judicial Overreach

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: A plethora of precedent previously made clear that a parent enjoys no special exemption from criminal liability under the eavesdropping provisions of the Penal Law, which do not allow a parent to consent to such recording on behalf of his or her child. In a recent decision, the Court of Appeals abandoned that precedential line and embraced the doctrine of "vicarious consent."

Robert C. Scheinfeld

Supreme Court Grants Patent-Related Petitions

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Recognizing the importance of patents to the U.S. economy, and keen on keeping the Federal Circuit in check, the U.S. Supreme Court has, just within the last two months, granted another two patent related petitions—one involving whether the laches defense applies to pre-filing damages claims in patent cases, and the other involving the damages calculation in design patent cases.

Jonathan M. Robbin, Adam M. Swanson and Frank Crowley

Affixation: In 'Askew,' Did First Department Get it Right?

By Jonathan M. Robbin, Adam M. Swanson and Frank Crowley |

Jonathan M. Robbin, Adam M. Swanson and Frank Crowley write: The First Department's recent decision in U.S. Bank v. Askew held that, regardless of issues relating to an allonge, or the validity of an allonge, a plaintiff in a foreclosure action proves its prima facie case by demonstrating physical delivery of the note prior to commencement of the action. The decision contradicts a Second Department dismissal of a plaintiff's foreclosure action because the allonge was not "firmly affixed" to the note.

Patrick M. Connors

Judiciary Law §470 Meets Temporary Practice Under §523

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors discusses the interplay between Judiciary Law section 470, as recently interpreted by the Second Circuit and Court of Appeals, and the new "temporary practice" allowed under Part 523 of the Rules of the Court of Appeals, along with the effect of a violation of Judiciary Law 470, and how it can lead to the dismissal of an action, the inability to recover legal fees, and discipline.

Francis J. Serbaroli

Court Refuses to Block Merger of Hospitals

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli discusses a recent decision by a federal court refusing to enjoin a hospital merger challenged by the Federal Trade Commission. The decision is important because the court considered more factors, such as the effect of health care reforms, than is usual in antitrust analysis of hospital mergers.

Scott M. Himes

'Modified' Business Judgment Rule for Going-Private Transactions

By Scott M. Himes |

Scott M. Himes writes that in its recent opinion in 'In re Kenneth Cole Productions, Inc., Shareholder Litigation', the New York Court of Appeals, following Delaware's lead, held that the board-friendly business judgment rule should apply to the challenge of a going-private merger if certain shareholder-protective conditions are met. The opinion sets forth a road map for how parties can structure such a merger to pass legal muster.

Stephen M. Kramarsky

Legal Limits of Customer Service for Technology Providers

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky discusses the 'TekVet' decision and writes: The instinct to "bend over backwards" to help the customer and retain the relationship is a commendable one, but it can create serious issues if decisions are made without sound legal advice.

Robert S. Kelner and Gail S. Kelner

Intersection Collisions Involving Pedestrians in Crosswalks

By Robert S. Kelner and Gail S. Kelner |

Robert S. Kelner and Gail S. Kelner discuss recent case law, most notably 'Quintavalle v. Perez' from the First Department, that address the proof necessary to impose liability as a matter of law where a driver strikes a pedestrian in a crosswalk who has the right of way in an intersection. The analysis is two-pronged. Plaintiff must show negligence of the operator and plaintiff's freedom from comparative fault.

Joseph D. Jean, David F. Klein and Benjamin D. Tievsky

'Viking Pump': Landmark Victory for Policyholders

By Joseph D. Jean, David F. Klein and Benjamin D. Tievsky |

Joseph D. Jean, David F. Klein and Benjamin D. Tievsky write: New York has developed a reputation as an unfavorable jurisdiction for policyholders facing "long-tail" claims involving gradually occurring property damage or bodily injury liabilities, such as environmental contamination, asbestos-related illness, and certain toxic tort and construction defect claims. On May 3, however, the Court of Appeals issued a landscape-changing decision.

Alton Abramowitz

Use of Assisted Reproductive Technologies

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz writes: As with any complex transaction, despite their common goals each of the third-party collaborating participants in the third-party reproduction process, which involves the use of donors or surrogates, has coextensive individual interests, many of which inherently conflict with one another and/or require and deserve unique consideration so as to avoid an otherwise significant potential for litigation, particularly in the event of divorce.

Jeremy H. Temkin

Accessing Records With Bank of Nova Scotia Summonses

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes: Through Bank of Nova Scotia summonses, the IRS seeks to compel U.S. branches of foreign banks to produce records held by their overseas branches, even when production would otherwise be proscribed by foreign bank secrecy laws. This law enforcement tool has been used rarely over the past three decades, but in today's regulatory climate, practitioners representing taxpayers need to be aware of their availability.

Maurice J. Recchia

Court of Appeals Addresses 'Storm in Progress' Doctrine

By Maurice Recchia |

Maurice Recchia discusses a recent decision that makes it clear that rain which follows without a temporal break from a snow or ice storm and which continues in time for several hours can be defined as a "storm in progress" such that a landowner's duty to clear the premises will not arise until the rain has ended. Time will tell whether the extra leeway seemingly granted by the majority will result in reduced vigilance by property owners.

Michael D. Patrick

Foreign National Graduates Face Immigration Realities

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick discusses alternative visa options, and potential pitfalls, for graduating university students seeking full-time jobs, given that the H-1B visa has become an increasingly less certain option as the odds of getting selected in the lottery has steadily declined.

Jeff S. Korek

Mitigating Potentially Damaging Evidence at Trial

By Jeff S. Korek |

The first and foremost principle of dealing with potentially negative evidence against a client is "do not attempt to mislead the jury and try to hide the evidence." But how do you approach effectively mitigating such evidence, in order to present your client in the most favorable light? The best practice is to move by motion in limine, prior to jury selection, to have the evidence excluded, but what if that fails?

Brendan Goodhouse and Andrew Schriever

Early Returns on Amended Rule Regarding Spoliation of ESI

By Brendan Goodhouse and Andrew Schriever |

Brendan Goodhouse and Andrew Schriever write that the first published cases to deal with the change to FRCP Rule 37(e) offer some interesting insights, such as that parties must demonstrate they have availed themselves of all avenues for discovering information before they can successfully claim prejudice for the opposing party's loss of that information, and leave some open questions.

Roy L. Reardon and William T. Russell Jr.

Lead Paint, Recording Conversation, Foundation for DNA Evidence

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. address cases in which the court found that there is no duty to remove lead paint from premises in which children only stay part-time, examined the requirements for establishing an evidentiary foundation for the introduction of DNA evidence, and found that parents or guardians may surreptitiously record interactions between their child and others if the child is deemed to have consented vicariously.

Jonathan A. Dachs

'Viking Pump': Allocation, Exhaustion, Policy Interpretation

By Jonathan A. Dachs |

In his Insurance Law column, Jonathan A. Dachs discusses an important insurance law decision recently rendered by the Court of Appeals, sure to have significant effects on insurers and insureds involved in asbestos and toxic exposure cases going forward.

Ken Strutin

Pleading Dignity: Alchemizing Form Into Substance

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Technology is moving due process away from the viability of self-representation for prisoners. For just as free people are information overloaded, the imprisoned are information starved.

Kingsley Osei

Monetizing Tax Credits for Investing in Renewable Energy Projects

By Kingsley Osei |

Kingsley Osei writes: The prolonged wait for the extension of the renewable energy tax credits throughout 2015 may have somewhat dimmed investor interest for backing renewable energy projects through the monetization of the tax credits. With the recent congressional extension of federal tax credits for renewable energy projects, investor interest is likely to soar again.

Sidney Kess

Five Top Tax Issues for Retirement

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: Retirement is life-changing in so many ways, and it is different for different people. It may mean ceasing work or reducing work, possibly downsizing and relocating, or changing careers or starting businesses. For many, there is an increased need for medical care and other assistance. Each of these areas entails tax rules.

Dani Schwartz

RPAPL §881: Litigating Access to Neighboring Property

By Dani Schwartz |

Dani Schwartz explores five hidden dangers to avoid when attempting to compel access to adjoining property to perform work on one's own property

Samuel Estreicher and David L. Noll

Justice Scalia's Impact on Federal Arbitration Law

By Samuel Estreicher and David L. Noll |

In their Arbitration column, Samuel Estreicher and David L. Noll write: In the immediate aftermath of Justice Antonin Scalia's death, many press accounts focused on his views on controversial matters such as the Second Amendment and LGBT rights. Scalia's most enduring contributions to federal law, however, may be in the workaday areas of civil and administrative procedure.

Ubiquitous but Complicated, Power of Attorney Needs Fixing

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes: While there are certainly reported cases of abuse of the power of attorney, it is not clear that increased complexity has resulted in a diminution of elder financial abuse. The complexity may have resulted in a diminution of the number of people who have been able to avail themselves of the power of attorney.

John Ho

Understanding the Cost of Proposed Overtime Regulations

By John Ho |

John Ho discusses the update to the Fair Labor Standards Act overtime regulations and practical and operational concerns for employers who may need to reclassify a position as non-exempt.

Michael B. Gerrard and Edward McTiernan

Role of Safe Drinking Water Act in Protecting Health

By Michael B. Gerrard and Edward McTiernan |

In their Environmental Law column, Michael B. Gerrard and Edward McTiernan review the major provisions of the Safe Drinking Water Act, discuss the EPA's approach to setting "maximum contaminant levels" and describe the framework for implementation and operator responsibility here in New York State.

Allison J. Schoenthal, J. Evans Rice and Lillian S. Hardy

Boundaries Unknown: CFPB in the Mortgage Industry

By Allison J. Schoenthal, J. Evans Rice and Lillian S. Hardy |

Allison J. Schoenthal, J. Evans Rice and Lillian S. Hardy The list of practices that the Consumer Financial Protection Bureau asserts are "unfair, deceptive or abusive acts or practices" is expansive, and still growing. This expansion impacts numerous industries regulated by the CFPB, and the mortgage industry is no exception.

Lewis R. Clayton and Eric Alan Stone

Broad Access to Federal Courts for Intellectual Property Plaintiffs

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone report on four recent decisions involving plaintiffs' access to federal courts, holding that: (i) the broad corporate-residence standard for venue continues to apply to patent cases; (ii) there is personal jurisdiction over an ANDA filer in every district in which it foresees selling its generic drug; (iii) owners of foreign trademarks may bring unfair competition claims against U.S. owners of the same marks; and (iv) dismissal on forum non conveniens grounds is improper where the foreign forum is not shown to provide redress for U.S. intellectual property law disputes.

Howard Wintner

Civil Seizure Remedies Under the Defend Trade Secrets Act

By Howard Wintner |

Howard Wintner discusses the Defend Trade Secrets Act of 2016, a significant advance in trade secret law and the prosecution of trade secret claims; remedies available under the act, particularly the ex parte civil seizure remedy, which had no comparable remedy in the Uniform Trade Secrets Act, where the trade secret owner was relegated to traditional injunctive remedies.

Shepard Goldfein and James A. Keyte

Judge Garland: Supreme Court Nominee and Antitrust Scholar

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: Though his confirmation seems far from a sure thing, many have wondered what we could expect in the antitrust domain if Merrick Garland were to take Justice Antonin Scalia's now-empty seat. One distinct possibility is an increase in the number of antitrust cases heard by the Supreme Court. Though his experience with the subject matter does not rival that of Justice Stephen Breyer, Garland has shown an affinity for the topic prior to his appointment to the D.C. Circuit.

Richard Raysman and Peter Brown

Recent Uses of Software and the Digital Millennium Copyright Act

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown analyze a case involving a dispute over circumvention of a website entry point between a software licensor and licensee, and another involving the insertion of the company name into the source code of its licensed software.

Brian J. Fischer and Justin O. Spiegel

Early Returns on Civil Procedure Amendments

By Brian J. Fischer and Justin O. Spiegel |

Brian J. Fischer and Justin O. Spiegel write that of the two most significant changes to the Federal Rules of Civil Procedure, the change to Rule 26(b)(1) appears to have done little but provide another tool for courts to limit patently overbroad discovery requests, but the amended spoliation standard has, at least for some courts, truly set the ESI sanctions bar higher, and for other courts, forced a heavier reliance on inherent judicial authority to justify the imposition of sanctions.

Anthony E. Davis

In-State Office Requirement: Gap Between Theory and Reality

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis writes: When Thomas Jefferson became President in 1801, the fastest means of communication on land was on horseback. If the Second Circuit is to be believed, nothing whatsoever has changed in the intervening centuries.

Michael Hoenig

When Experts 'Cherry-Pick' Among Competing Studies

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig discusses a recent First Circuit decision that tees up some critical tensions in toxic tort experts' methodologies. For example, experts can and do rely upon scientific and technical literature. But what if the articles relied upon are themselves partially or wholly unreliable? Or what if there is inconsistent technical literature? Does "cherry-picking" favorable articles sufficiently create a jury question, or does the problem of conflicting literature go to the heart of the threshold "reliability" question inherent in Daubert admissibility criteria?

Carlos J. Cuevas

Non-Domiciliaries and Intentional Fraudulent Conveyance Actions

By Carlos J. Cuevas |

Carlos J. Cuevas writes: Each day New Yorkers are engaged in innumerable interstate and international business transactions. An important legal issue that arises is whether a New York court can exercise personal jurisdiction over a non-domiciliary that has engaged in an intentional fraudulent conveyance against a New York domiciliary.

Neil J. Rosini and Michael I. Rudell

Musical Controversies in Presidential Elections

By Neil J. Rosini and Michael I. Rudell |

In their Entertainment Law column, Neil J. Rosini and Michael I. Rudell write that the strength of the legal theories on which artists objecting to the use of their songs by political campaigns rely—copyright, Lanham Act, and right of publicity—has received scant judicial attention. There is some legal precedent, however, as well as guidance from industry sources that concern the such use of music without express approval.

Steven Wolowitz, Melissa Francis and Matthew Bisanz

A Panama Papers Prophecy

By Steven Wolowitz, Melissa Francis and Matthew Bisanz |

Steven Wolowitz, Melissa Francis and Matthew Bisanz write: The U.S. government has been aggressively collecting information on U.S. taxpayers and their offshore financial institutions to go after entities and individuals who may have assisted criminal conduct. With the recent revelation of the so-called "Panama Papers," the government may have been handed the means to target not just the accountholders and their offshore banks, but a greater number of the professionals around the world who often link them.

Evan H. Krinick

Finding of 'Rehabilitation' After Insurance Fraud Sentence

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick writes: Generally speaking, once a prison sentence for insurance fraud is imposed, everyone moves on. Everyone, that is, except the defendant, who is tarred with the conviction forever. In an unusual and rare case decided by U.S. District Judge John Gleeson just days before leaving the bench, Judge Gleeson refused to simply "move on," instead fashioning a creative remedy to address the situation.

Elkan Abramowitz and Jonathan Sack

When Do Business Negotiations Cross the Line and Become Fraud?

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write: The federal mail and wire fraud statutes are among the most powerful prosecutors' tools because they are drafted in broad language designed to reach ever-changing methods of fraud. The outer boundary of those statutes has recently been tested in the context of arm's length business negotiations.

Patrick O'Sullivan

Enabling Public-Private Partnerships in New York

By Patrick O'Sullivan |

Patrick O'Sullivan writes: Public-private partnerships can provide real value to the public sector in addressing its overwhelming infrastructure needs. As a city that continues to grow with an infrastructure that continues to age, New York City would benefit significantly from such a tool to address needs ranging from repairing existing roads to expanding the transit network with streetcars and ferries to building out its technology infrastructure.

Richard Siegler and Eva Talel

Increased Vigilance for Secondhand Smoke

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write: Until the March 2016 decision in 'Reinhard v. Connaught Tower Corp.,' courts had generally afforded boards flexibility and tolerance in addressing secondhand smoke. The Connaught ruling, although it is currently being appealed, may mark a shift in such judicial forbearance, and therefore impact the obligations of boards to remediate secondhand smoke complaints.

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

Federal Appellate Review of Arbitration Awards

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. write that the Second Circuit's decision instructing the district court to confirm an arbitration award suspending New England Patriots quarterback Tom Brady for four games serves as a reminder of the very limited scope of judicial review of arbitration awards.

Brian J. Shoot

First Department's 3-2 Rulings: Fault Lines of the Law

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot discusses recent cases illustrating issues on which courts continue to disagree: availability of a "sole proximate cause" defense when defendants claim injured workers were provided alternative means of performing the elevated work, the burden of proof in a fall from an unsecured but non-defective ladder, and whether a plaintiff's deliberate use of an closed A-frame ladder is the "sole proximate cause" of an accident or mere comparative negligence.

Stephen Bergstein

Racial Discrimination Cases: Deferring to District Court Fact-Finding

By Stephen Bergstein |

Stephen Bergstein writes: A recent decision from the Second Circuit finds that a Long Island village violated the Fair Housing Act in rezoning property to make it more difficult to build multifamily housing. This decision reaffirms that intentional discrimination cases are often proven with subtle and circumstantial evidence; municipalities can be liable for the racist views of their constituents; and the Court of Appeals is loath to second-guess factual findings reached by the trial courts.

Mark A. Berman

New Decisions on Emails and Motion Practice

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman discusses various cases in which emails factored into the decisions of motions to dismiss and motions for summary judgment.

Martin A. Schwartz

Immunity Defenses to §1983 Fabrication of Evidence Claims

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz discusses qualified and absolute immunity as applied to various functions carried out by prosecutors, witnesses, and various law enforcement officers who are being sued for §1983 evidence fabrication claims for money damages.

Clifford G. Tsan and Michael D. Billok

Cybersecurity Insurance: Facing Hidden Risks and Uncertainty

By Clifford G. Tsan and Michael D. Billok |

Clifford G. Tsan and Michael D. Billok write: Due to the rapid evolution of cyber-attacks, cyber insurance underwriters, brokers, and consumers have struggled with configuring the optimal insurance product to manage an entity's unique risks. This has led to fluctuating policy coverages and configurations.

Kevin G. Faley and Andrea M. Alonso

Insurance Claims Files: How Privileged Are They?

By Andrea M. Alonso and Kevin G. Faley |

Andrea M. Alonso and Kevin G. Faley write that claims files are the hard-drive of an insurance carrier, with a record of all information about a claim: opinions, discovery, reserves, witness statements, etc. Insurance claims files are, in theory, protected from discovery by work-product doctrine as "material prepared in anticipation of litigation." But these protections are situational.

Thomas E.L. Dewey

Impact of 'Campbell-Ewald': Unanswered Questions

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey writes that the U.S. Supreme Court's decision in 'Campbell-Ewald Co. v. Gomez' denied class-action defendants the ability to moot an entire class action by making a settlement offer that would have completely satisfied the named plaintiff's claim. But a new split has already arisen: May a defendant who consents to entry of a judgment against it evade further litigation?

Steven R. Pounian and Justin T. Green

Third Circuit Limits Scope on Federal Preemption in Aviation Cases

By Steven R. Pounian and Justin T. Green |

In their Aviation Law column, Steven R. Pounian and Justin T. Green write: While state law historically provided the foundation for nearly all aviation injury and death suits, a 1999 Third Circuit decision on preemption dramatically shifted the landscape, forcing plaintiffs to undertake the often futile task of delineating a federal law basis for their actions. Last week, however, the court sharply limited the scope of its field preemption ruling, holding that it does not extend to state products liability claims.

Susan L. Pollet

Revenge Porn: Will Legislation Help to Prevent It?

By Susan L. Pollet |

Susan L. Pollet writes that despite the risks, people naively believe that their loved ones will never betray them, and they continue to share explicit images—some 80 percent of revenge porn victims took the images themselves. Victims have attempted to sue under tort claims, but such claims often fail. Many scholars believe criminalizing revenge porn would be a more effective deterrent.

Martin Flumenbaum and Brad S. Karp

Court Clarifies Classification of 'Hispanic' Under Title VII

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss a case involving a mayor's decision to promote one candidate over another for police chief in which the court explicitly addressed for the first time whether discrimination based on Hispanicity constituted racial discrimination under Title VII, or if it instead amounted exclusively to national-origin discrimination.

James J. Beha II, Jordan Eth and Craig D. Martin

Corporate Disclosure of Government Investigations

By James J. Beha II, Jordan Eth and Craig D. Martin |

James J. Beha II, Jordan Eth and Craig D. Martin write: While a company's decision whether to disclose an ongoing government investigation may implicate many different legal, public relations, and business concerns, decisions in the Southern District provide comfort that a company need not disclose an ongoing investigation under federal securities laws, unless and until the company determines that the investigation is "substantially certain" to lead to a formal government enforcement action, so long as the company's other disclosures are not rendered misleading by the omission.

Michael Rikon

Rezoning as Component of Highest and Best Use

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon writes: Ordinarily, the potential uses the court may consider in determining value of a property taken by eminent domain are limited to those uses permitted by the zoning regulations at the time of taking. When, however, there is a reasonable probability of rezoning, some adjustment must be made to the value of the property as zoned.

Nicholas M. De Feis and Philip C. Patterson

Limits in New FCPA Leniency Program May Hinder Effectiveness

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 write: On April 5, the Fraud Section of the DOJ announced a pilot program offering potential leniency to corporations that self-report Foreign Corrupt Practices Act violations. Although intended to incentivize self-reporting, the program has limits and collateral requirements for credit that should cause corporate counsel serious concerns.

Peter A. Crusco

Passcodes, Privacy and Public Safety: Apple vs. DOJ

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco discusses litigation on the issue of whether the All Writs Act may be used by the government to compel Apple to unlock an iPhone passcode by creating a program or so called "backdoor" for law enforcement access to it to obtain needed evidence of a crime on the phone.

Ben Rubinowitz and Evan Torgan

Use of Supporting Evidence With the IME Physician at Trial

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: While the theory behind the need for an independent medical examination makes perfect sense, the reality is that there has been a history of deceit and abuse on both sides of the fence. Some plaintiffs exaggerate injuries, some examining doctors minimize their findings. Regardless of whether one represents the plaintiff or the defendant, it is the responsibility of the trial lawyer to challenge the physician at trial to expose such deception.

Conrad Teitell

Clarification in PATH Act on Charitable Remainder Unitrusts

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell discusses a "clarification" in the PATH Act of 2015 that can be dangerous to your client's wealth.

Kenneth G. Schwarz

Mistakes in Identifying Parties and Possible Corrective Actions

By Kenneth G. Schwarz |

Kenneth G. Schwarz writes that using fictitious names when the identity of the party that should be sued is unknown is only of limited value. With looming deadlines, a party may find himself unable to sue someone when that person's identity becomes finally known. Further, if they use anonymous or incomplete names while ascertaining the actual identities, there are limited remedies to overcome the passing of the statute of limitations.