Expert Analysis

Arthur Ciampi

What's in a Name? Uses Are Governed by Contract, Ethics, Case Law

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi writes: A recent case from West Virginia presents an interesting fact pattern and the starting point for a discussion of some issues and limitations concerning law firm names.

Elizabeth McNamara and Samuel M. Bayard

Purging Emails Removes Ready Access to Government Actions

By Elizabeth McNamara and Samuel M. Bayard |

In their Media Law column, Elizabeth McNamara and Samuel M. Bayard write: Every March, proponents of government transparency celebrate "Sunshine Week," inspired by Justice Brandeis' famous adage that"[s]unlight is the best disinfectant." This March, it's hard to believe the occasion wasn't met with a collective shrug and eye roll, as transparency scandal piled upon transparency scandal at both the federal and state level.

Michael W. Ross

Certifying Damages Class Actions After 'Comcast'

By Michael W. Ross |

Michael W. Ross writes that in a pair of precedential opinions earlier this month the Second Circuit interpreted the U.S. Supreme Court's holding 'Comcast v. Behrend' narrowly and ruled that plaintiffs need not present class-wide proof of damages to certify a class action under Federal Rule of Civil Procedure 23(b)(3).

Justin T. Green and Anna Astrakhan

Air Passenger Rights and Protections

By Justin T. Green and Anna Astrakhan |

In their Aviation Law column, Justin T. Green and Anna Astrakhan write that long delays at airports are a familiar problem to any traveler, and passengers rarely know their rights when faced with unexpected delays, cancellations or overbooked flights.

'Omnicare' and Opinion Statements Liability in Securities Cases

By Kenneth M. Breen, John P. Nowak and Phara A. Guberman |

Kenneth M. Breen, John P. Nowak and Phara A. Guberman write: On Tuesday, the Supreme Court released its long-awaited opinion in 'Omnicare v. Laborers District Council,' which rejected the application of a solely objective standard in assessing whether a statement of opinion may be considered a false statement in the context of a claim pursuant to Section 11 of the Securities Act of 1933.

Lawrence W. Newman and David Zaslowsky

Location, Location, Location: It Matters in Litigation Too

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky look at two recent cases in which location was the key element: one involving whether 28 U.S.C. §1782 can be used to obtain evidence located outside the United States, the other, one that answers the question, "when is a U.S. citizen not a citizen?"

Charlotte A. Biblow

Court of Appeals Considers Challenge to Storm Water Discharge Permits

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: An important environmental regulatory case has been winding its way through the New York court system for several years, and now the Court of Appeals finally will decide whether the federal Clean Water Act was violated when a general permit governing discharges from municipal separate storm sewer systems was approved by the state.

Menachem J. Kastner and Ally Hack

Incurable Defaults in Commercial Leases: Can You Un-Ring the Bell?

By Menachem J. Kastner and Ally Hack |

Menachem J. Kastner and Ally Hack identifies the various types of commercial lease defaults that courts may find to be "incurable" as a matter of law, followed by a focus on what has been the most controversial of these defaults—the unauthorized assignment of its lease.

Robert C. Scheinfeld

Garmin Decision Offers Insights on Patent Application Drafting

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld analyzes a recent decision in which the Federal Circuit pondered whether a patent claim's preamble should act as a component of, and effectively limit the scope of, the claimed invention.

Martin Flumenbaum and Brad S. Karp

Clarifying Bounds of Protected Speech for Public Employees

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Matthews v. City of New York,' wherein the court concluded that, when a public employee engages in speech pertaining to a subject that does not fall within the employee's duties, and does so in a manner in which ordinary citizens would be expected to engage, the employee speaks as a citizen whose speech is protected, not as a public employee, whose speech may be unprotected.

Modular Prosthetic Limb

Rights of Cyborgs: Is Damage to Prosthetic a Personal Injury?

By Jon D. Lichtenstein |

Jon D. Lichtenstein writes: From time immemorial, our common law has provided one set of remedies for damage to one's property and another set for damage to one's person. Yet today, many of us depend on our devices to perform all the normal tasks of living, such as walking, talking, hearing and seeing.

Robert S. Kelner and Gail S. Kelner

Analyzing Elements of Zone of Danger Claim

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss the "zone-of danger" rule, under which New York law permits a cause of action to be brought for damages arising from the negligent infliction of emotional distress to a bystander who is exposed to "an unreasonable risk of bodily harm" in an accident when he or she witnesses a family member being injured or killed.

Francis J. Serbaroli

Supreme Court Rules State Licensing Board Violated Antitrust Laws

By Francis J. Serbaroli |

Francis J. Serbaroli in his Health Law column discusses a recent Supreme Court decision upholding a FTC decision against the anti-competitive actions of a state licensing board. The court added a new requirement of "active state supervision" in order for a state board to qualify for state action antitrust immunity.

Jason L. Shaw

'Platek' Raises Uneasy Questions About Insurance Exclusions

By Jason L. Shaw |

Jason L. Shaw explores a recent decision in which the Court of Appeals put limits on a policyholder's use of an insurance policy "exception" to avoid policy language coverage "exclusion" for a property loss.

Ken Strutin

Cognitive Sentencing and the Eighth Amendment

By Ken Strutin |

In his Criminal Law column, Ken Strutin of the New York State Defenders Association writes: Inhumane prison conditions make incarceration cruel (excessive) and unusual (torturesome). Thus, the missing element from incarcerative sentencing laws is how the sentence is carried out.

Ben Rubinowitz and Evan Torgan

Scaled Questions During Jury Selection

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write that one effective way of examining a potential juror is by calling for an answer on a spectrum. This technique helps to gain insight not only into reticent jurors, but also into those jurors who are willing to share their beliefs, concerns, and thoughts with the attorneys without hesitation.

Glen Banks

Court of Appeals Addresses Alleged Breach of a Swap Contract

By Glen Banks |

In his Contract Law column, Glen Banks writes: The Court of Appeals' decision in 'BDC Financial v. Barclays Bank' illustrates that when an agreement allows either party to demand a payment from the counter-party to address market changes during the life of a contract, years of litigation can result from the failure to clearly set forth what will happen when a demanded payment is disputed.

James G. Ryan and Hayley B. Dryer

What Should Court 'Deliver' in Pregnancy Discrimination Case?

By James G. Ryan and Hayley B. Dryer |

James G. Ryan and Hayley B. Dryer write: It is not every day that anti-abortion and pro-choice activists, evangelical Christians, the U.S. Women's Chamber of Commerce, and the Obama administration appear on the same side of an argument. That this unusual mix have become unlikely allies in the face of a pregnancy discrimination case currently pending before the U.S. Supreme Court, demonstrates just how significant this issue.

Joseph E. Bachelder III

A Say on 'Say-on-Pay': Assessing Impact After Four Years

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III offers comments supporting and opposing the propositions that Say-on-Pay causes shareholders to become better informed and more involved in the executive pay process, and that it results in better decision-making by boards of directors.

Daniel N. Arshack and Ria Rana

Accusatory Instruments and Jurisdictional Sufficiency

By Daniel N. Arshack and Ria Rana |

Daniel N. Arshack and Ria Rana write that applications challenging the jurisdictional sufficiency of an accusatory instrument are frequently made in misdemeanor cases. However, the confusion between the dual standards of review for a "complaint" and an "information" is often the cause of error.

Ilann Margalit Maazel

Liability Questions Where DNA Evidence Was Lost and Found

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel discusses exoneree civil rights cases when exonerative DNA is first lost, and then found—a case addressed in the recent Second Circuit opinion, 'Newton v. City of New York.'

Christopher A. Gorman

Mortgage Securitization and Lender's Ability to Foreclose

By Christopher A. Gorman |

Christopher A. Gorman writes: If a plaintiff-lender attaches a copy of an original promissory note to a mortgage foreclosure complaint, would the plaintiff have standing to foreclose? The answer, of course, would seem to be "yes," but that would ignore recent case law concerning whether a borrower can assert defenses founded upon alleged non-compliance with documents governing the securitization of the underlying loan.

Jeremy H. Temkin

Discharging Tax Debts in Bankruptcy

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes that last month, the First Circuit the Fifth and Tenth Circuits in concluding that tax filing deadlines are "filing requirements," and thus that the tax liabilities on an untimely return are not subject to discharge in bankruptcy.

Michael D. Patrick

Congressional Inaction on Immigration? States and President Step Up

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: There is overwhelming agreement among a diverse and broad assortment of pundits and commentators that the immigration system in our country is broken. Despite the consensus, there is little agreement between the Legislature, the executive branch and the states on how best to improve the system.

Jeff S. Korek and Michael A. Fruhling

Medical Malpractice Litigation in New York and New Jersey

By Jeff S. Korek and Michael A. Fruhling |

Jeff S. Korek and Michael A. Fruhling write: Based upon the line that divides the states of New York and New Jersey, a patient injured as a result of medical malpractice will see a dramatic difference in both the viability of their case and the way it will proceed to trial.

Roy L. Reardon and William T. Russell Jr.

Collateral Estoppel Not Applied in Attorney Discipline Action

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 applying the defamation privilege to pre-litigation statements and addressing the application of collateral estoppel in attorney disciplinary actions, along with a case construing an "ensuing loss" clause in an insurance coverage dispute concerning damage resulting from broken water pipes.

Abby Tolchinsky and Ellie Wertheim

Developing Communication Skills as Negotiators

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim write: In the midst of conflict, parties often express strong, entrenched positions. The communication skills of a mediator are designed to go beneath those positions, thereby creating progress in the negotiation process.

Francis Facciolo and Leland Solon

Sub-Adviser Fee Litigation: Will Section 36(b) Acquire Teeth?

By Francis Facciolo and Leland Solon |

Francis Facciolo and Leland Solon examine the current state of litigation in which creative plaintiffs have looked to the fees paid by mutual funds to advisers and sub-advisers of mutual funds as a measuring tool to argue that fees are excessive for services that are largely duplicative.

Stephen M. Kramarsky

Click Here to Waive a Jury Trial: 'Nicosia v. Amazon'

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, discusses a recent Eastern District case that demonstrates the difficult questions raised by "clickwrap" and "browsewrap" agreements.

Rupert M. Barkoff

Is It Time to Rebuild the U.S. Franchise Regulatory System?

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff writes that while the rest of the world, including franchising, has been dynamic and constantly changing, franchise regulation has been, essentially, static since 1979. Those favoring stability in regulation might argue that the absence of change has been good for franchising. A static environment is not, by its nature, bad. However, this assumes that the existing regulatory scheme is effective.

Thomas P. Higgins

Collecting Unpaid Condominium Common Charges

By Thomas P. Higgins |

Thomas P. Higgins writes: While it always makes sense for a condo board to file a lien against a unit owner who fails to pay common charges, sometimes the prospect of suing to foreclose is too lengthy, too expensive, or otherwise not advisable. If the unit owner in arrears is renting the unit to a tenant, the board has a viable alternative to the foreclosure route.

Thomas F. Gleason

Trial Court Discretion and Expert Testimony

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason writes: Because of the importance of expert testimony, substantial discretion is needed to adjudicate fair procedures for pretrial expert disclosure. Discretion is critical in managing the timing of expert disclosure, but no simple rule of timing will fit all cases, because there are so many variable considerations.

Sidney Kess

IRS-Provided Tax Relief for Small Businesses

By Sidney Kess |

In his Tax Tips column, Sidney Kess reviews recent Internal Revenue Service pronouncements that have created a number of new areas of relief specifically for small businesses.

Harvey M. Stone and Richard H. Dolan

Motion to Withdraw Plea in Drug Case Using Informant Denied

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions that denied a motion to withdraw a guilty plea where counsel's failure to file a government misconduct motion attacking the indictment would have been a reasonable tactic and, in any event, caused no discernible prejudice; prompted Governor Cuomo to expedite a special election; and more.

Joseph Lipari

'Expedia' Highlights Ambiguity of Corporate Allocation Rules

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari writes: Private state-tax advisors, particularly tax departments inside large corporations, devote much of their time looking for ways to reduce the income apportionable to high-tax jurisdictions. Some of these issues are apparent in the recent Division of Tax Appeals administrative law judge determination in 'Expedia, Inc.'

Lester M. Kirshenbaum and Alan E. Rothman

Judgment Recognizes Arbitral Award Against Foreign State

By Lester M. Kirshenbaum and Alan E. Rothman |

Lester M. Kirshenbaum and Alan E. Rothman write: A very recent Southern District decision contains a number of significant rulings, including some of apparent first impression, which should facilitate the recognition and enforcement within the United States of pecuniary international arbitration awards against foreign sovereigns related to private investments in foreign countries.

Shepard Goldfein and James A. Keyte

State Oversight Over Agencies for Antitrust Immunity

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte discuss the U.S. Supreme Court's decision finding North Carolina's Board of Dental Examiners capable of conspiring and lacking immunity under the state-action doctrine, writing that the decision may lead many industries, even the practice of law, to rethink their professional regulatory regimes currently in place nationwide.

Justice David Saxe

The Amorphous Concept of Finality in CPLR 5501 Jurisprudence

By David B. Saxe |

David B. Saxe discusses a procedural issue that can lead to possible pitfalls: When a pretrial order grants summary judgment in favor of some of the defendants, may the plaintiff wait until the appeal from the final judgment to challenge that order, and may the Appellate Division treat that order as brought up for review in the plaintiff's appeal from the final judgment after trial, dismissing the complaint in its entirety?

Michael B. Gerrard

Scale and Focus of Climate Litigation Outside of United States

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard writes: The large and growing volume of litigation in the U.S. courts about climate change has received an avalanche of analysis in the professional and academic literatures. In contrast, climate litigation outside the United States is little known on these shores and has gotten far less attention.

Kathleen A. Scott

Standards Mandating More Consistency in Regulatory Disclosures

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott reviews requirements, recently finalized by Basel Committee on Banking Supervision of the Bank for International Settlements, regarding certain uniform and consistent disclosures of a bank's compliance with bank regulatory requirements that will enable a more effective comparative review across a group of banks.

John Rapisardi and Joseph Zujkowski

Revel Asset Sale Raises Important Distressed Real Estate Issue

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: The proposed asset sale at the heart of the pending Revel AC chapter 11 cases has raised an interesting question about the extent to which sales can be approved under Bankruptcy Code section 363(f) free and clear of tenant interest in real property.

Jonah Knobler

Class Actions in Second Circuit: Do Plaintiffs Have Advantage?

By Jonah Knobler |

Jonah Knobler writes that an important recent Second Circuit decision not only held that classes may (sometimes) be certified even if the assessment of damages will require individualized fact-finding, but also contained an easy-to-miss sentence on the standard of review when a district court has denied class certification.

Avi Lew and Ronald D. Bratt

'Kapon' Resolves Inconsistency on Nonparty Subpoenas

By Avi Lew and Ronald D. Bratt |

Avi Lew and Ronald D. Bratt analyze 'Kapon v. Koch,' in which the New York State Court of Appeals clarified 30 years of ambiguity and division in the Appellate Departments as to CPLR 3101(a)(4), the provision governing nonparty subpoenas, and made it easier for parties to subpoena nonparties.

John L.A. Lyddane and Barbara D. Goldberg

What Remains of 'Wrongful Life' Damages?

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 the impact of the "collateral source rule" and the increasing availability of services for disabled persons have significantly limited the prospects for recovery in cases where it is claimed a failure to detect a fetal abnormality while a pregnancy could be legally terminated leads to the birth of a disabled child, and it is anticipated that with the advent of the Affordable Care Act, the range of recoverable damages will be further diminished.

Richard Raysman and Peter Brown

Judicial and Attorney Misuse of Social Media Can End Careers

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown discuss proceedings in which both lawyers and judges have been disciplined for remarks made via social media platforms.

Lewis R. Clayton and Eric Alan Stone

New Standard for Appellate Review of Claim Construction

By Lewis R. Clayton and Eric Alan Stone |

In his Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone write: In the past two months, the Supreme Court handed down a significant patent-law decision establishing the standard of appellate review for claim-construction decisions, and resolved a circuit split by holding that a jury, not the court, should decide whether modifications to a trademark change the commercial impression of the mark.

Michael Hoenig

'Crashworthiness' Rulings

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig reviews two recent rulings, one involving the potential interface of the so-called "eggshell plaintiff" rule with a crashworthiness/enhanced injury claim, the other, the reliability deficits in an expert's conclusions about certain crashworthiness features he claimed would have reduced the injuries.

Matthew Olsen and Gregory Johnson

Creditors' Rights Against Single-Member LLC Owners

By Matthew Olsen and Gregory Johnson |

Matthew Olsen and Gregory Johnson write: Commercial lenders understandably spend significant effort assessing the value of a borrower's or guarantor's assets, but they also need to consider how they will be able to enforce a prospective judgment, especially when the relevant assets are comprised of a borrower's or guarantor's interests in one or more limited liability companies.

Evan H. Krinick

Challenging Fraud by Employers in Workers' Compensation

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick explores some of the methods disreputable employers sometimes use to avoid their obligations under New York's Workers' Compensation Law and a recent Third Department decision that illustrates how the courts seek to balance the harm stemming from Workers' Comp fraud to limit burdens being placed on employees.

Wendi S. Lazar

Mandatory Arbitration: Searching for Fairness

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar writes: Arbitration, which lets employers contract around the procedural and substantive protections we enjoy in court, is an unfair system that disregards employees' civil rights and liberties in favor of an abbreviated, and at times perverse, form of justice.

Steven R. Paradise

Securities Fraud Loss Causation Pleading Standard

By Steven Paradise |

Steven Paradise writes that with a recently affirmed dismissal, the Ninth Circuit has joined the Fourth and Seventh circuits in holding that Rule 9(b) applies to pleading loss causation, deepening a circuit split. If the Supreme Court takes up the issue and affirms the Ninth Circuit's ruling, this would arm defendants nationwide with another arrow in their quiver.

Timothy M. Tippins

The Benighted Expert: Professional Literature in Court

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins examines the central position that professional literature occupies in the psychology expert's world and its crucial evidentiary role in providing the very basis underlying expert opinions.

Justice Kamins

The Constable Blunders: Mistakes of Law and Fact

In his Criminal Law and Procedure column, Barry Kamins writes: In New York, lower courts have been forgiving of reasonable factual mistakes by law enforcement officers while a mistake of law has normally led to suppression. The landscape may be changing, however, based on a recent decision by the U.S. Supreme Court and a case that will be decided shortly by the New York Court of Appeals.

Rong Kohtz

Forum Non Conveniens in International Matrimonial Litigation

By Rong Kohtz |

Rong Kohtz writes: In this era of globalization, many families maintain multiple residences in different countries and bear different nationalities. Consequently, family members may be subject to concurrent jurisdiction of multiple countries.

Richard Siegler and Eva Talel

Sufficiency of Email Notice of Board and Owner Meetings

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write: In New York, both the law and co-op and condominium governing documents continue to lag behind innovation in technology. Therefore, there is currently great uncertainty as to whether notices of board and apartment owner meetings sent by email are sufficient to fulfill the notice requirements imposed by co-op and condominium governing documents.

Thomas R. Newman and Steven J. Ahmuty Jr.

'Finality' of Multidistrict Litigation Dismissal Orders

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. analyze the U.S. Supreme Court's recent holding in 'Gelboim v. Bank of America' that a district court order dismissing the sole claim in a single-claim action that has been consolidated with other multiple-claim actions in multidistrict litigation is immediately appealable as a "final" order, even if claims remain unresolved in other consolidated actions in the MDL.

Andrea M. Alonso and Kevin G. Faley

Uber: Does New Ticket to Ride Carry Personal Risks?

By Andrea M. Alonso and Kevin G. Faley |

Andrea M. Alonso and Kevin G. Faley write: A look at the numbers for Uber seem to paint the picture of a brilliant business model, with a customer base growing exponentially. But, are some Uber customers taking on increased personal risks by using the ride-sharing service as opposed to the heavily regulated yellow cabs of New York City?

Thomas A. Dickerson and Jeffrey A. Cohen

Medical Malpractice on the High Seas

By Thomas A. Dickerson and Jeffrey A. Cohen |

Thomas A. Dickerson and Jeffrey A. Cohen write: Each year more than 10 million consumers purchase a cruise ship vacation departing from and returning to a U.S. port located primarily in the State of Florida. But while they may travel on 21st-century cruise ships, their rights and remedies for injuries sustained on or off the cruise ship are governed, in many cases, by 19th-century legal principles.

Howard Epstein and Theodore Keyes

Return to the Bear Stearns' D&O Insurance Dispute

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write that a lawsuit in which Bear Stearns sought indemnification from its insurers after settlements with the SEC, the New York Stock Exchange and private plaintiffs in related suits has already yielded five motion rulings in just over four years regarding disgorgement; public policy; and final adjudication requirements.

Elkan Abramowitz and Jonathan Sack

White-Collar Enforcement Under Attorney General Eric Holder

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack give their impressions of how the DOJ responded to the financial crisis, including some seeming innocuous choices that may have affected the nature and extent of its response; highlight key initiatives of the department beyond the financial crisis; and discuss what may be the priorities of the department going forward.

Mark A. Berman

Cases Address Use of ESI and Ethics Issues With the Cloud

By Mark A. Berman |

Mark A. Berman, a partner at Ganfer & Shore, writes: Recent decisions address the production of metadata, the detail required in an ESI privilege log, the use of emails on a motion to dismiss, the implication of changing a person's ESI password, and precautions used to safeguard confidential client information.

Anthony E. Davis

Battle Over Interviewing Corporate Employees Continues

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses New York County Lawyers' Association Formal Opinion 747, which discusses whether and when it may be appropriate for a corporation's attorney to offer representation to current or former corporate employees without violating the rules prohibiting in-person solicitation.

Ilene Sherwyn Cooper

Discovery Motions and the Statute of Limitations

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper reviews recent decisions addressed to the ramifications of a party's failure to timely comply with demands for discovery and the statute of limitations as applied to attorney-client relations.

Steven M. Christman and Adam C. Calvert

Federal Court Notice Standard in Premises Cases

By Steven M. Christman and Adam C. Calvert |

Steven M. Christman and Adam C. Calvert write: Defendants in personal injury cases sometimes remove a case to federal court because of several advantages: stricter discovery rules, more defense-friendly juries, and expert discovery, to name a few. But one seemingly advantageous reason is often overlooked, particularly by those defending retailers or other premises owners: the defendant-friendly federal court notice standard that applies to summary judgment motions.

Richard Strassberg and William Harrington

Collateral Consequences of Individual Liability

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington write: Where CEOs, CFOs, and other executives frequently find themselves as named defendants in federal civil enforcement actions, requiring admissions of wrongdoing in settlement may have broad-reaching consequences, very much akin to a finding of liability after trial in any civil fraud action.

Jerry H. Goldfeder and Myrna Pérez

Federal Actions Bring Election Matters to the Forefront

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez review two recent developments: a guilty plea in the DOJ's first criminal prosecution for illegal campaign finance coordination, and a decision ordering Governor Cuomo to call a special election six weeks after Representative Michael Grimm resigned.

John Higgitt

Avoiding the Conclusory When Preparing Expert Affidavits

By John R. Higgitt |

John R. Higgitt writes: The qualifications of the expert, the facts underlying the opinion, the basis of the opinion, and the opinion itself—these are the essential elements of an expert's affidavit. Given the stakes on a summary judgment motion, counsel must scrutinize her expert's affidavit to ensure that it contains each of these elements.

Montgomery L. Effinger

Winter Premises Liability: Describing the Color of Ice

By Montgomery L. Effinger |

Montgomery L. Effinger writes: Despite the sinister sound of accusations that hidden "black" or "transparent" ice conditions existed on a defendant's premises, use of such words to describe the presence of invisible ice may undermine a plaintiff's ability to establish either constructive or actual notice by limiting the potential for demonstrating a defendant's awareness of a hazardous condition.

Christine A. Fazio and Ethan I. Strell

Fracking Report Concludes More Health Studies Are Needed

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell write: Just before Christmas, the New York State Department of Health released its long-awaited report on the public health effects of hydrofracking, resulting in New York State's highly publicized decision to continue to ban the natural gas extraction process known as high volume hydraulic fracturing.

David J. Kaufmann

Franchisors as Joint Employers; Case Law Developments

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann writes: The general counsel of the National Labor Relations Board's charge that McDonald's Corporation is a "joint employer" of its franchisees' employees disregards 50 years of law and business principles. Fortunately, the courts continue to respect the economic realities of franchising and legal precedent reflecting same.

Michael Rikon

Will Affordable Housing Requirement Effect a Taking?

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon discusses regulatory takings, inclusionary zoning and New York City Mayor Bill de Blasio's pledge to create or preserve 200,000 affordable units of housing in the next decade.

Bridget Rohde and Aaron Tidman

Lessons from the OECD Foreign Bribery Report

By Bridget Rohde and Aaron Tidman |

Bridget Rohde and Aaron Tidman discuss the Organization for Cooperation and Economic Development's first-ever foreign bribery report, with its key findings regarding global enforcement, who is paying bribes and who is receiving them, as well as how companies should use the findings in evaluating and refining their compliance risk assessments.

Peter A. Mahler and Matthew D. Donovan

Complex Questions Addressed in Business Divorce Cases of 2014

By Peter A. Mahler and Matthew D. Donovan |

Peter A. Mahler and Matthew D. Donovan write: In the annals of business divorce litigation, 2014 will go down as the year in which New York courts issued some of the most important and interesting decisions in dissenting shareholder and buyout appraisal proceedings involving closely held corporations.

Peter A. Crusco

Threatening Web Speech and the True Threats Doctrine

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco of the Office of the Queens County District Attorney addresses the First Amendment true threats doctrine, the impact the doctrine has on speech of a threatening nature in general, and web-based speech, in particular.

Martin Flumenbaum and Brad S. Karp

Ruling Broadens Duty of Disclosure in Securities Filing

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp discuss 'Stratte-McClure v. Morgan Stanley,' in which the court concluded as a matter of first impression for this circuit that Item 303 of Regulation S-K imposes a duty of disclosure on a company filing a Form 10-Q which, under certain circumstances, may give rise to liability under Section 10(b) and Rule 10b-5.

Apparel Companies' Filings Follow Drops in Sales

By Edward E. Neiger |

In his Bankruptcy Update column, Edward E. Neiger looks at recent bankruptcy filings in the retail sector, particularly among teen and women's apparel companies. The young adult retail sector continues to experience severe drops in sales and stock prices, as brick-and-mortar retail stores lose consumers to e-commerce and face increasing competition from discount department stores.

Robert Clarida and Robert J. Bernstein

A Sirius Question of Sound Recording Rights

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein discuss a case, potentially momentous for the music industry, over whether the holders of common-law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance of those sound recordings.

Conrad Teitell

Charitable Deductions and Other Adjustments for 2015

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell reviews this year's charitable gift premium rules, tax tables, personal exemptions, standard deductions and other tax provisions.

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

Corporation Must Advance Defense Costs Despite Guilty Plea

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

Joel C. Haims, Jamie A. Levitt and James J. Beha II analyze a recent decision in which the Delaware Chancery Court required a corporation to advance a former director's costs of defending against an SEC insider trading lawsuit, despite the director's guilty plea in a related criminal case.

'Sweepstake Delusion' May Have Medical Explanation

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes that although victims of fraudulent lottery schemes are often given little sympathy out of a feeling that someone who fails to recognize the obviousness of the scam and cooperates with the perpetrators deserves the misfortune of losing their savings, there is now medical research suggesting that this condition is not a weakness of character but has an organic basis in damage to a specific portion of the brain.

George Bundy Smith and Thomas J. Hall

Merger Clauses and Parol Evidence Rule

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: In New York, the existence of a merger clause in a contract appears to have little effect on a court's willingness to admit parol evidence to clarify an ambiguity. But what if a party seeks to use extrinsic evidence, not to clarify an ambiguity, but to establish that a separate agreement exists and must be considered in deciding the dispute under the written contract in question?

Marc Ausfresser and Scott Ditman

Applying Tax Rules to Trusts in Real Estate Activity

By Marc Ausfresser and Scott Ditman |

Marc Ausfresser and Scott Ditman discuss a 2014 Tax Court opinion that provided some long-awaited guidance as to the application to trusts of the tax rules limiting losses incurred in passive activities.

A Critical Look at SEC Insider Trading Policies

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes that the contours of the crime of insider trading, which is neither defined nor specifically outlawed in federal securities laws, have been shaped by the courts.

Sanford J. Schlesinger and Ross S. Katz

A Wrinkle on 3-2 Discovery Rule in Surrogate's Practice

By Sanford J. Schlesinger and Ross S. Katz |

Sanford J. Schlesinger and Ross S. Katz write: A recent decision has added an interesting wrinkle that may broaden, at least initially, the scope of one area of the "3-2 rule" in Surrogate's Court: the production of prior wills and codicils of a decedent.

George M. Heymann

Is the 'Vicious Propensities' Rule Losing its Bite?

By George M. Heymann |

George M. Heymann writes: Ten years ago, the Court of Appeals set the bar for the ability to sue for personal injuries caused by domestic animals, which required a plaintiff to prove that the animal had "vicious propensities" at the time of, or prior to, the incident. In the past decade, there has been an erosion of this strict liability rule trending toward causes of action on the theory of negligence.

Edward M. Spiro and Judith Mogul

Recurring Challenges to Privilege and Work Product Doctrine

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul analyze three recent decisions that expose some common misconceptions regarding the attorney-client privilege and the work product doctrine and offer valuable guidance on how to establish and preserve those protections.

Douglas J. Pepe

Liability Under Alien Tort Statute in the Second Circuit

By Douglas J. Pepe |

Douglas J. Pepe writes: Given the continued state of uncertainty surrounding the question of corporate liability under the Alien Tort Statute in the Second Circuit, it may well be time for the court to address the question head-on, and say what the law is in this circuit once and for all.

Martin A. Schwartz

Police Deadly Force and Section 1983 Litigation

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz writes that the legal principles employed by the Supreme Court last term in 'Plumhoff v. Rickard' often make it very difficult for §1983 excessive force claimants to prevail, and that this is true even in deadly force cases.

Sidney Kess

Developments on Donations of Conservation Easements

By Sidney Kess |

In his Tax Tips column, Sidney Kess analyzes two recent cases illustrating that one of the biggest stumbling blocks to nailing down a charitable deduction for the donation of a qualified conservation easement is the requirement that the transfer be in perpetuity.

Shari Claire Lewis

Tech Tools Are Increasingly Used to Disseminate Notice

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis, a partner at Rivkin Radler, discusses two cases that illustrate how Internet-enabled technology and social media may play a role in satisfying the notice requirements of FRCP 23.

Uber Can't Wait: New Liability for Distracted Drivers

By Robert D. Lang |

Robert D. Lang writes that Uber will cost more than a yellow cab, or negotiating a cash deal with an idle black car, but its benefits, at least judged by its popularity, outweigh any drawbacks—unless you are involved in accident caused by an Uber driver's distraction due to the receiving and acknowledging trip requests while still driving.

Harvey M. Stone and Richard H. Dolan

Motion to Vacate Default Judgment Over Service of Process Denied

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan discuss cases in which Judge Joanna Seybert relied on the good faith exception to the exclusionary rule in denying a motion to suppress where the search warrant lacked particularity, Judge Jack B. Weinstein discussed the need for legal assistance in cases brought by pro se plaintiffs and the current efforts to fill that need, and more.

Labor Law §200: Commonly Invoked But Frequently Misunderstood

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot writes: Many of the injured workers who seek recovery under Sections 240 or 241[6] of the Labor Law also plead violations of Section 200 of that law. Much has been written about the so-called "scaffold statute" and §241[6], which imposes vicarious liability for certain Industrial code violations. Yet there has been comparatively little analysis concerning the even more frequently invoked provisions of Labor Law §200.

David M. Barshay

Attorney Fee Provisions in No-Fault Regulations Updated

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay discusses the Department of Financial Services' amendment of the attorney fee provisions of the No-Fault Regulations, which may make prosecution of files on behalf of providers that submit larger claims somewhat more palatable, but will likely have a devastating effect on small providers.

Sarah S. Gold and Richard Spinogatti

Delaware Independent Director Liability in Control Buyout Cases

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti write: In two cases that will be watched closely by corporate law practitioners, the Delaware Supreme Court will consider whether, in the context of a controlling shareholder buyout subject to entire fairness review, independent directors subject to exculpation for duty of care violations must await a fully developed factual record at trial before their liability is determined.

Elliot E. Polebaum and Helene Gogadze

Abusive Reorganization of Investments

By Elliot E. Polebaum and Helene Gogadze |

Elliot E. Polebaum and Helene Gogadze write: It is perfectly legitimate for an investor to seek to protect itself from the general risk of future disputes with a state in which it invests, and to do so by structuring the investment in a way that the investor considers beneficial. However, corporate reorganizations that change the nationality of an investor to manufacture International Centre for Settlement of Investment Disputes jurisdiction can be problematic.

Richard Raysman and Peter Brown

Updates on Data Breach and Anonymous Online Speech Issues

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown discuss recent issues stemming from the disclosure of confidential information in data breaches, as well as "commercial defamation."

Michael Hoenig

Corporate 'Death' and Attorney-Client Privilege

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: In 1998, the U.S. Supreme Court held that the attorney-client privilege survives the death of the client. However, that case, which dealt with the death of a natural person, did not answer questions regarding survival of the attorney-client privilege when a corporation becomes defunct. Surprisingly, the case law is relatively scant on this issue and clear boundaries have not been set.

Shepard Goldfein and James A. Keyte

FTC Study Signals Fresh Changes to Merger Remedy Negotiations

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte write that retrospective studies of merger remedy orders provide a wealth of information to the conducting agency, but also give businesses the crucial opportunity to interact informally with agencies as the agencies look to identify the market trends that will inform future policy. A new study's scope suggests that the FTC may be considering changes beyond just the divestiture process.

John T. McManus

Submetering in Wake of Amendments to Part 96

By John T. McManus |

John T. McManus discusses the new and evolving regulatory landscape of submetering electricity in multifamily residential buildings, focusing on some of the key regulations of which property owners must be aware.