In his Criminal Law column, Ken Strutin writes: Without membership in the Information Society, people become irrelevant, their search for knowledge hopeless.
In his Criminal Law column, Ken Strutin writes: Without membership in the Information Society, people become irrelevant, their search for knowledge hopeless.
In their Corporate Insurance Law column, Howard Epstein and Theodore Keyes discuss 'Kokesh v. SEC,' where the U.S. Supreme Court held that the SEC's use of disgorgement of profits as a remedy in an enforcement action constitutes a penalty that is subject to the federal five-year statute of limitations. They write: The question at issue for the Kokesh court was whether SEC disgorgement is a penalty. The question for the insurance community is whether it is insurable. The question for us is whether these two issues may overlap.
In their International Criminal Law and Enforcement column, Nicholas De Feis and Philip Patterson use the Eastern District case 'U.S. Gasperini' to illustrate the global reach of U.S. computer intrusion laws. They write that the opinion demonstrates how, as technological innovation increasingly blurs any remaining lines between a computer and other electronic devices, U.S. computer anti-intrusion laws may eventually come to cover conduct involving virtually every electronic device in the world.
Jesse B. Schneider of Davis & Gilbert writes: If attorneys were already hesitant to advise commercial landlord clients to exercise peaceable self-help, legislation enacted Sept. 26, 2016 by New York City Mayor Bill de Blasio may have just ended any lasting uncertainly. But courts are still struggling with how and when to enforce the new statute.
In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith report on decisions involving whether a telephone company is a utility for tax purposes, a manufacturer's liability for failing to install "optional" safety features on a product being sold to a company that intends to rent it to consumers, regulation of charter schools, discovery of 911 call records, and more.
Arbitration columnists Samuel Estreicher and Holly H. Weiss review a recent Southern District decision where the court departed from a recent trend of enforcing "clickwrap" agreements by declining to enforce the arbitration provision contained within Lyft's "clickwrap" agreement but nonetheless compelling arbitration based on Lyft's subsequent "scrollwrap" agreement.
Jordan A. Thomas writes: We don't say this often, and we haven't heard it lately, but with the SEC Whistleblower Program, the United States government got it right. Really right.
Tax Litigation Issues columnist Jeremy H. Temkin writes that the Second and Third Circuits have recently concluded that the 90-day deadline to challenge the denial of innocent spouse status constitutes a jurisdictional "adjudicatory rule" and that the failure to comply with that deadline will preclude judicial review.
Bill Moran writes: The First Amendment details bedrock principles in the United States that counter the "right to be forgotten" movement proceeding in Europe and elsewhere. But a debate is needed over where to find the proper balance between our inherent privacy rights concerning at least some of our personal online data on the one hand, and the constitutional rights to freedom of speech and freedom of the press on the other. A more focused approach might strike the balance and thereby advance a foundation for Internet privacy regulation.
Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg discuss continuous treatment and exploring the intent and beliefs of the patient at deposition to establish whether the statute of limitations should be tolled.
In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. write that at the end of last month, the Court of Appeals addressed once again the issue of adequate state funding for public education, dismissing plaintiffs' statewide challenges to the system, but permitting certain claims to proceed solely to the extent that they relate to circumstances in Syracuse and New York City.
Insurance Law columnist Jonathan A. Dachs reports on recent legislative and regulatory amendments pertaining to "transportation network companies," such as Uber, Lyft, Gett, and the like, which include amendments to the SUM Endorsement set forth in Regulation 35-D.
Edward W. De Barbieri writes: The recent Court of Appeals decision in 'Avella v. City of New York' prevents a major economic development project in northern Queens from moving ahead. Known as the "Valley of Ashes" in The Great Gatsby, the site of the project includes a polluted brownfield where small auto repair shops have repaired vehicles for decades. Those same business owners, primarily immigrant entrepreneurs, have thrived without passable streets, sewers, sidewalks, and other infrastructure. For decades government has tried unsuccessfully to redevelop Willets Point.
Antitrust Trade and Practice columnists Shepard Goldfein and James Keyte write: Just before the U.S. Supreme Court's most recent term expired, the justices set the stage for a potential test of the Trump administration's ideological vigor. By inviting Acting Solicitor General Jeffrey Wall's office to "file a brief ... expressing the views of the United States" regarding 'In re Vitamin C Antitrust Litigation,' the court has offered President Donald Trump and his government an opportunity to expound on one of the president's most popular talking points pre- and post-campaign—the issue of China's abuses of international trade.
In his Intellectual Property column, Stephen M. Kramarsky writes: Though once chaotic, the legal environment for sampling (at least in the U.S. music industry) has settled into a well-understood legal regime, with rigorous clearance and licensing practices becoming the industry norm. Nevertheless, as a recent case involving musician Drake shows, there are always edge cases, and litigation does arise. With the meteoric rise of shared and repurposed content in social media and other digital contexts, those cases are likely to be more and more common.
Alan R. Levy writes: Do "out-of-possession" commercial landowners, who have transferred possession and control of premises to a commercial tenant, retain the non-delegable duty to remove snow/ice from their abutting sidewalks? Can they be liable for injuries arising from an alleged failure to do so? The courts appear to be struggling with this question, as there appears to be a split among the First and Second Departments.
Trial Advocacy columnists Ben Rubinowitz and Evan Torgan write: Too often trial lawyers fail to maximize key points that, if fully developed during cross, will serve not only to discredit the witness, but to anger the jurors so that they begin to question and doubt your adversary's entire case. A thorough line of attack with respect to a lie does not simply prove that a witness was dishonest, but explores the thought process that went into concocting the lie in the first instance, the motives behind that lie, and the ultimate goal that the witness hoped to achieve by engaging in such deception.
In his Tax Tips column, Sidney Kess discusses important considerations that arise after the death of an employee, such as the taxation of retirement benefits paid to a surviving spouse or other beneficiary, notification of COBRA coverage, and more.
Gary J. Mennitt and Jeff Masters write: Email and other forms of electronic communication have been commonplace for years, and people will likely increasingly rely on email for the transmission of statutory and contractual notices as well as other documents that affect legal rights. With the typical office worker receiving more than 90 emails every day on average, it is certain that disputes will continue to arise concerning whether such emails constitute actual and constructive notice.
In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review Judge Glasser's holding that an alleged inconsistency between a guilty verdict on count one and the jury's answers to special interrogatories on the verdict sheet did not require a new trial; Judge Weinstein's finding that two legally distinct entities were "joint employees" under the Fair Labor Standards Act, thus requiring employee work hours to be assessed cumulatively in determining overtime pay; and Judge Feuerstein's opinion that the labeling on packages for Kellogg's "Cheez-It Whole Grain" crackers was not misleading.
Susan L. Pollet writes: A major hurdle for children impacted by immigration proceedings is access to representation, either of their legal interests or of their best interests. Only a small portion of unaccompanied migrant children who are victims of trafficking do have legal representation through legislation. Moreover, currently, U.S. immigration law does not recognize children's interests as a valid factor in immigration decisions.
Civil Rights Litigation columnist Ilann M. Maazel writes: Most lawyers have some familiarity with 42 U.S.C. §1983, which provides a private cause of action against state officers who violate, inter alia, the U.S. Constitution. Less familiar, though no less important, is the judicially-created private cause of action against federal officers who violate the Constitution, under 'Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics'—a decision that has now sustained a significant blow by the U.S. Supreme Court.
Environmental Law columnists Michael B. Gerrard and Edward McTiernan write that for only the second time since this annual survey began in 1991, no court overturned any agency decision where an environmental impact statement had been prepared. In sum, 2016 was a bad year for plaintiffs in SEQRA cases.
Brenda Pomerance discusses the current law regarding patent-eligible software and how patent applications should be written to maximize the chance of presenting patent-eligible subject matter.
International Banking columnist Kathleen A. Scott writes that there is something for banks large and small in Treasury Secretary Steven Mnuchin's report on the extent to which current U.S. financial regulatory requirements promote and support seven "core principles" set out in Executive Order 13772.
In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone write that following the Google Books case, which, according to the Second Circuit, "tests the boundaries of fair use," two cases pending at the Eleventh and Federal Circuits may further test these boundaries.
Lanier Saperstein and Carol Lee discuss the upcoming U.S. Supreme Court decision on the long-awaited issue of whether corporations can be liable under the Alien Tort Statute, a statute enacted by the First Congress more than 225 years ago.
White-Collar Crime columnists Elkan Abramowitz and Jonathan Sack discuss the Crime Victim Rights Act, writing: To be sure, advocacy by putative victims can exert influence on prosecutors and courts in a manner that complicates defense of a white-collar case. At the same time, the rights of putative victims may, on occasion, give rise to disclosures that assist the defense.
In his Section 1983 Litigation column, Martin A. Schwartz writes that the U.S. Supreme Court recently overturned the Ninth Circuit's "provocation doctrine" on the ground that it was inconsistent with Fourth Amendment excessive force jurisprudence. The court held that whether officers who conduct an unconstitutional search are liable for injuries from their subsequent use of force depends upon the application of traditional proximate cause principles—but applying proximate causation in these circumstances is easier said than done.
In their Technology Law column, Richard Raysman and Peter Brown write: In some cases, strategic partnerships go wrong and invariably litigation ensues. In 'Kortright Capital Partners', litigation ensued and one claim survived a motion to dismiss in part on the rationale that a strategic partnership sufficiently creates a "special relationship" between the partners that requires a greater degree of candor and fair dealing when contemplating the prospective strategic alliance with an unrelated third party.
Brian P. Heermance and Christopher P. Keenoy write: New York's Economic Loss Rule is purportedly a simple common law principle. However, its evolution and application have proven to be quite the opposite. A clear understanding of this rule is essential as it can significantly minimize exposure in many cases and in some instances result in the complete dismissal of a claim.
In his Complex Litigation column, Michael Hoenig analyzes the Supreme Court's recent decisions on general and specific jurisdiction, which must be regarded by litigators and courts as pivotal rulings going to the heart of a state court's ability to adjudicate a case.
Trusts and Estates Law columnist C. Raymond Radigan updates practitioners on the recommendation that New York adopt its own New York Trust Code, and discusses guardianship of individuals with different disabilities.
Harry Sandick and George LoBiondo write that in June, the Supreme Court granted certiorari in a case that will test whether the justices are again willing to break new ground in the cell phone privacy context. The court will decide whether the government needs a search warrant to obtain historical records of a suspect's cell phone location, or whether it may do so under the Stored Communication Act, which requires the government to show only that there are reasonable grounds to believe that the records are "relevant and material to an ongoing criminal investigation."
Joseph D. Nohavicka writes: In 2015, when the First Department handed down its decision in 'Burlington Insurance Company v. NYC Transit Authority', insurance law mavens noted that the court was continuing on a course of expansion of additional insured coverage. Recently, that course of expansion has reached its terminus at the Court of Appeals, which reversed the First Department by rejecting the argument that any additional insured obligation is owed under the language of the 'Burlington' endorsement at issue when the named insured is without fault.
Matrimonial Practice columnist Timothy M. Tippins writes: Although sometimes called a standard, "best interests of the child" is not. It is in no way an operationally defined specification. It is at best a legal construct representing an aspiration, one laden with personal, social, cultural and moral value judgments.
Insurance Fraud columnist Evan H. Krinick writes: There seems to be no limit to the kinds of schemes that people create to defraud insurance companies and, by extension, the public, through higher premiums. Now, however, the New Jersey Supreme Court has issued a unanimous decision that certainly will help to reduce insurance fraud in New Jersey—and that, if its reasoning is adopted by other jurisdictions, likely will have the same effect in states across the country.
Wallace Collins writes: An option agreement at its most basic is a contract whereby the writer grants to a producer, production company or studio, for a period of time and for a payment, the right to make a film of the writer's book, story or screenplay. The three main material issues that usually arise in negotiating such a deal are the length of the option period, the amount of the option payment and the purchase price if the project comes to fruition. How each of these issues will be resolved will vary depending on the negotiating leverage of the respective parties.
In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler examine the duty of care, the business judgment rule, the definition of an interested director and safe harbor provisions that can save a transaction from being successfully challenged when a co-op/condo board director brokered a transaction for the sale of an apartment in the building, which transaction the board is evaluating.
Appellate Practice columnists Thomas R. Newman and Steven J. Ahmuty Jr. use two recent cases to remind practitioners that it cannot be counted a victory if a favorable verdict is set aside by the trial or appellate court after a lengthy trial and the case must be retried at considerable expense, loss of time and renewed mental and emotional strain on the injured party or his or her survivors—all because of counsel's avoidable error.
Michael C. Rakower and Melissa Yang write: Not all benefit plans are treated equally under ERISA. Some are regulated less closely than others, such as "top-hat plans," unfunded employee benefit plans established principally to provide deferred compensation for "a select group of management or highly compensated employees." Although excluded from some requirements, top-hat plans are subject to ERISA's civil enforcement provisions.
Michael N. Rader and Jason W. Balich write that while fact witnesses lay foundation, establish case themes, and can generate sympathy for one side or the other, it is usually the experts who give the jurors the raw material they need to reach an ultimate decision on liability and damages. The credibility and thoroughness of an expert's testimony can thus have a significant impact on the outcome of a patent case that makes it to trial. A few best practices can help parties find the right experts and prepare them to deliver a standout performance.
In his Professional Responsibility column, Anthony E. Davis discusses two cases while exploring an issue critical to lawyers’ and law firms’ professional and business interests: What information about a new client does a lawyer need to obtain in order to make sensible decisions about whether or not to proceed?
Jennifer Cona writes: The imposition of unwanted medical treatment still happens today in the context of incapacitated patients who reside in hospitals and nursing homes due to an apparent conflict between limitations placed on the powers of a guardian in some court jurisdictions versus the standards set forth under the Family Health Care Decisions Act.
Thomas A. Dickerson writes: Although subject to criticism, there are occasions when a non-cash settlement of coupons, in whole or in part, for the purchase of good and services from the defendant may be appropriate. The courts must be particularly careful and make certain that a proposed coupon settlement is nearly as good as a cash settlement as possible.
In his International Arbitration column, John Fellas writes: The growth of third-party funding has raised certain novel issues in international arbitration. These issues relate to the disclosure obligations of arbitrators who may have some connection to a funder, the impact of the use of third-party funding on the attorney-client privilege, and the award of costs. This article will focus on costs.
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss the circuit's recent decision in 'United States v. Bodouva', which addressed whether restitution offsets could be used to lower, or even eliminate, criminal forfeiture orders.
In their Federal Civil Enforcement column, Richard Strassberg and William Harrington write: The eClinicalWorks settlement and OIG report will likely prompt a significant increase in enforcement activity related to electronic health records incentive payments. The authors review these developments, their ramifications, and steps EHR companies and health care providers can take to protect themselves from liability related to EHR incentive payments below.
Gary J. Mennitt, Dennis H. Hranitzky, Debra D. O'Gorman and Selby P. Brown discuss the U.S. Supreme Court's new trio of civil procedure cases which confront issues of venue, general personal jurisdiction, and specific personal jurisdiction, and summarize the impact they are likely to have on forum choice.
In her Litigation 101 column, Shira Forman provides guidelines and strategies for drafting an answer that will serve your client well as litigation moves forward.
Dani Schwartz writes: There is presently a putative split between the First and Second Departments as to whether a tenant in a leasehold dispute lacking interest in title to real property may properly file a notice of pendency. The author explores the statutory history and case law to address the question of whether a tenant may do so.
In his Admiralty Law column, James E. Mercante examines the test for federal maritime jurisdiction, writing: The current admiralty jurisdiction test has caused confusion, expense and inconsistent results. It is time to bring back the “bright line” rule, and apply maritime jurisdiction to all torts that originate on a vessel in navigable waters.
In his Condemnation and Tax Certiorari column, Michael Rikon discusses the recent decision in 'Matter of Avella v. City of New York', which enjoined the proposed development of parkland in Willets Point, Queens as a shopping mall and movie theater on Citi Field's parking lot.
Bradley M. Wanner and Andrew J. Orenstein discuss a unanimous Second Department decision which overturned the dismissal of a lawsuit against three police officers who were not named in the Notices of Claim. With departments now split, it will only be a matter of time before the Court of Appeals is asked whether claimants are required to name individual municipal employees in their Notices of Claim.
In his Cyber Crime column, Peter A. Crusco discusses implications of the recent Second Circuit decision in 'Ulbricht', in which Internet routing data was obtained via pen register. The evidence provided a key link connecting defendant's online activity to a massive Bitcoin criminal enterprise scheme that thrived through a website called Silk Road. 'Ulbricht' is example of why courts proceed with care when considering changes, however slight, to the Fourth Amendment's concept of privacy expectations in communications and records in the digital age.
In his Estate Planning and Philanthropy column, Conrad Teitell discusses 'McGrady', T.C. Memo, 2016-233, a case in which a donor claimed $4.7 million in charitable deductions for conservation easement gifts. The IRS found that the donor lacked donative intent, and the Tax Court held otherwise.
Craig M. Notte writes that by upholding license fees for access to a non-critical, lifestyle portion of an apartment, the First Department has blurred the mandatory work/new construction distinction, thereby adding a new dimension to parties' negotiations for mandatory work access under RPAPL §881. Without a clear distinction, parties may find themselves at an impasse on whether compensation is in order and how much, resulting in delays in performance of critical repairs and requiring more judicial intervention to sort out the parties' rights.
Richard Link writes: You've found the right person for your job opening, but you suspect there's going to be one little catch: She's not a U.S. citizen. In fact, you're pretty sure she doesn't have any kind of legal status in the United States. Is there any way to hire this person? The short answer is maybe, and it won't be easy. But with enough advance planning, it is possible for you as the employer to obtain for certain workers the right to live and work in the United States, either temporarily or permanently.
Government and Election Law columnists Jerry H. Goldfeder and Myrna Pérez discuss recent rulings and pending cases involving gerrymandering, writing that these cases should serve as a cautionary note for elected officials thinking about using partisanship as a tool for job security.
Christopher Simone writes: In the recent year, the First Department has turned over a more lenient leaf for post-note of issue discovery for plaintiffs and defendants alike, slowly relaxing the stringent and somewhat draconian requirements of 22 NYCRRR 202.21(d).
Carlos J. Cuevas discusses an important issue that arises in intentional fraudulent conveyance litigation—the application of the crime-fraud exception to the attorney-client privilege.
In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida discuss the recent decision in 'Kaseberg v. Conaco', wherein plaintiff claimed that five jokes he wrote and published on his blog or Twitter feed were infringed by jokes told by Conan O'Brien. In denying defendants' motion for summary judgment on three of the five jokes at issue, the judge considered arguments on copying versus independent creation, protected expression, and scope of protection. Serious issues indeed!
In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell discuss how New York and other states have filled the void in federal climate leadership and are introducing their own methane programs.
In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. discuss an appeal arising out of the proposed development at the former Shea Stadium site. The majority ruled that the development known as "Willets West" cannot proceed because the legislature has not clearly and expressly provided that the parkland underlying the development site can be freed from serving as a park space, as is required under the public trust doctrine, while Chief Judge Janet DiFiore reached the opposite conclusion.
Bernard D'Orazio writes: As any seasoned litigator knows, statute of limitations issues can be difficult and complex—and statute of limitations rules governing fraudulent transfer cases, which in New York arise under Article 10 of the Debtor and Creditor Law, are even more complex than those encountered in garden variety civil litigation.
Skip Short and Ioanna Olivia Zevgaras write: New York is part of a movement that has seen a majority of the states provide for some form of medical marijuana, with the number expanding in recent years. On a federal level, however, marijuana remains illegal. As a result, marijuana reimbursement by insurers is unsettled.
In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Although a party or witness in civil litigation may invoke the Fifth Amendment, such invocation often comes at a high price, because, in contrast to the criminal context, the finder of fact in a civil case may draw an adverse inference against the party or witness who declines to provide evidence based on the Fifth Amendment privilege against self-incrimination. Recent decisions from the Southern District address when and how the Fifth Amendment can be invoked in civil litigation, and the ramifications to litigants when parties and non-party witnesses avail themselves of that privilege.
Corporate and Securities Litigation columnists Margaret A. Dale and Mark D. Harris write: For nearly a half-century, when bringing enforcement proceedings for violations of federal securities laws, the SEC has sought a sanction which forces defendants to fork over ill-gotten gains, regardless of how long before the initiation of the proceeding the wrongful conduct generating those gains occurred. Now a unanimous U.S. Supreme Court has put a stop to the SEC's end-run around the limitations period otherwise applicable to agency enforcement proceedings.
Paul F. Millus looks at Gretchen Carlson's suit against Roger Ailes, which attempted to avoid the imposition of mandatory arbitration by not also naming Fox News. How would that argument have fared if the case hadn't settled?
In her Internet Issues/Social Media column, Shari Claire Lewis writes: There is a growing consensus in the U.S. Court of Appeals for the Second Circuit that recovery of certain forms of damages under the CFAA simply is not permitted—making it difficult to bring causes of action under the CFAA that are able to withstand motions to dismiss.
David Salter and Gerry Wendrovsky write that it is well established in New York that pension rights earned during a marriage "are properly considered marital property subject to equitable distribution." But what happens when a New York matrimonial litigant's pension benefits are foreign, administered by a plan administrator outside the jurisdiction of a New York court?
Sidney Kess writes: According to the last census, nearly one in five people in the U.S. has a disability. Whether a physical, mental, or emotional disability results at birth or arises later from an accident, service-related event, or otherwise, the financial cost of care can be substantial. The tax law provides some relief for various costs related to having special needs, and there are some favorable rules for certain types of income received on account of disability.
Jonathan Bach and Reed A. Smith write that a high-profile insider trading prosecution, currently pending in the Southern District of New York, has yielded the first indications that the tide may have turned against a questionable prosecutorial practice of using superseding indictments to channel certain criminal cases around the district's system of random judicial assignment.
In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: When a claimant commences arbitration, an initial focus may be to ensure that the arbitral award ultimately will be enforceable. CPLR §7502(c) provides an arbitral party the means of achieving this, petitioning the court for preliminary injunctions or orders of attachment in aid of arbitration. Despite the relative paucity of recent cases, there has been a recent shift as to how some applications under §7502(c) are resolved.
Law Firm Management columnists Jamie Diaferia and Andrew Longstreth write: In our 24-7, live-tweeting, alternate-fact-saturated, Instagrammed, Snapchatted, Facebooking news environments, the narratives in the court of public opinion can be as influential as the narrative unfolding on the quiet side of the courthouse doors. Clients get the best results when their legal and PR teams work closely together with clear established lines of communication toward a common goal.
John Curran and Marc J. Armas write: With the increased visibility and impact of cyber-attacks on financial institutions, regulators and other enforcement authorities are enhancing the cybersecurity requirements for the financial services industry. The New York State Department of Financial Services has taken a leadership role by imposing specific "minimum standards" for regulated institutions.
Chris Moschovitis writes that even with a good cybersecurity program in place, insider threats require special attention. You need to go above and beyond in order to be protected from them.
Immigration Law columnist Lisa M. Koenig writes: Given the renewed enforcement focus by both ICE and DOJ on immigration compliance, the nearly doubled civil fines available to both agencies, and the potential criminal liability for employment verification misconduct, employers are well advised to establish or strengthen their immigration compliance programs, and to ensure that regular I-9 audits are a feature of such programs.
David Bass and Mark Tsukerman write: Two long-standing controversial areas of bankruptcy law have recently intersected in a bankruptcy case out of the District of Delaware: a bankruptcy court's adjudicative authority consistent with Article III of the Constitution, and the propriety of what are referred to in bankruptcy parlance as "third-party releases."
Daniel A. Cohen and Adam P. Cohen write that the U.S. Supreme Court held that attorney-client privilege covers communications between all employees and the corporation's attorneys. English courts, however, have rejected this central tenet of 'Upjohn'. In both this and other respects, English law has taken a restrictive approach to protecting "internal investigation" documents from disclosure, as a pair of recent decisions of the High Court illustrate.
Professional Liability Insurance columnist Sue C. Jacobs writes: Courts recently have been more liberal in holding that causes of action for both legal malpractice and breach of fiduciary duties may exist in the same action. The courts assume a fiduciary duty between attorney and client but look at the timing of the alleged offending actions and the sources of damages to determine if they are distinct from the damages allegedly sustained for the legal malpractice.
Kevin G. Faley and Kenneth E. Pitcoff write that the Court of Appeals has recognized only two exceptions to the statutory requirement of prior written notice of roadway and sidewalk defects, the first of which is where the locality created the defect through an affirmative act of negligence, which is limited to work that immediately results in a dangerous condition. Two recent cases clarified what is necessary to defeat a claim of immediate creation of a dangerous condition.
In his Ethics and Criminal Practice column, Joel Cohen writes: Some defense attorneys (usually on the fringe and more so years ago) have been willing to "bait" judges. They engage the (prosecution-friendly?) judge and cause him to react, creating a palpable bias against counsel and client—a deliberate ploy to create sympathy, or justify recusal. Or these attorneys try their case, in part, by confronting the judge, particularly when the jury is seated, in a manner designed to induce error. But what about when recusal is warranted—can a failure to move constitute "ineffective assistance"? Consider the disturbing facts of a recent Third Circuit case.
Antitrust Trade and Practice columnists Shepard Goldfein and James Keyte write that pricing algorithms present a number of unique opportunities to businesses to improve their processes and efficiency. Sellers can automatically adjust their conduct with the demands of the market, increasing efficiency and saving resources and money. However, critics worry that because algorithms have become so advanced, they may enable new forms of anticompetitive coordination that were not possible before.
In their Privacy Matters column, Richard Raysman and Peter Brown write: Pressure on social media sites to thwart facilitation of terrorism is likely to increase in upcoming months, given intrinsic philosophical, public relations, logistical and technological challenges. In numerous instances, social media sites succeeded in defending against legal claims of providing "material support" to terrorists, principally by invoking the CDA immunity provision.
George M. Heymann writes: How often have trial judges been confronted with a rule of law that seems out of touch with the realities of the facts before them but are "constrained" to abide by it because of appellate court decisions. One such situation is the ongoing debate regarding the strict liability "vicious propensities" rule with respect to injuries caused by domestic animals, as a direct result of the owner's conduct, which prohibits recovery on the theory of negligence.
Jeffrey Alberts and Dustin Nofziger write: Attorneys who do not work in the banking space are often shocked to learn that federal banking regulators use regulations governing confidential supervisory information to prevent banks and their officers and directors from consulting with outside counsel and to monitor that communication when it occurs. While it is not possible to prevent regulators' interference with the attorney-client relationship, it is critical for any attorney representing financial institutions to understand what options are available to minimize it.
Complex Litigation columnist Michael Hoenig writes: In case readers haven't noticed, the U.S. Supreme Court has been busy issuing recent rulings that can affect litigation practice. In the last month, the justices issued a significant decision rejecting general jurisdiction over a defendant in a state where that defendant was neither incorporated nor headquartered; held that service of process of a foreign defendant by mail is permitted by the terms of the Hague Service Convention, provided the foreign country has not objected to such service by mail; and ruled that a nursing home's arbitration agreement had to be enforced as preempting tort claims for injuries filed in Kentucky courts.
In her Trusts and Estate Update, Ilene Sherwyn Cooper write that Surrogate's Court decisions on the question of duress, though sporadic, have utilized the approach taken in 2011 by the New York County Surrogate's Court in 'Matter of Rosasco' and the Restatement [Third] Property in analyzing the issue. Recently, the opinions in 'In re Young' and 'In re Alini' have followed suit, each addressing the question of duress, but with differing results.
Julian D. Ehrlich analyzes the Court of Appeals recent decision in 'Burlington Ins. v. NYC Transit Auth.', which interpreted coverage in commonly found additional insured endorsements and will have a major impact on those purchasing and issuing liability insurance.
In his Tax Appeals Tribunal column, Joseph Lipari writes: One of the topics often addressed in this column (and not coincidently the subject of much litigation) is residency. Statutory residence is largely mechanical—a taxpayer has a "permanent place of abode" in the state and is physically present here for at least 183 days per year. In contrast, since where one is domiciled is largely a reflection of the individual's intent, that determination requires a broader analysis of the facts and circumstances concerning his or her life.
In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review Judge Johnson's granting, in part, a new trial motion in a criminal case because there was no substantial evidence of specific intent to violate the statute in question dealing with export controls, Judge Cogan's declining to exercise supplemental jurisdiction over state and city claims for monetary damages in a suit brought under the Americans with Disabilities Act, and Judge Bianco's denying a joint habeas petition claiming ineffective assistance of counsel in the failure to advise petitioners of deportation as a "presumptively mandatory" consequence of their guilty pleas.
Jonathan Marcus and David Meister write that to date, the U.S. Commodity Futures Trading Commission has issued three whistleblower awards, only one of which was for a substantial amount. Recent changes seek to incentivize more whistleblowers to come forward by enhancing anti-retaliation protections and expanding the eligibility requirements.
Antonia M. Apps writes that recent charges brought in the Southern District against a "political intelligence" consultant, the government employee who had been his alleged source of inside information, and three hedge fund analysts whom he tipped marks the second time the government has brought insider trading charges against a "political intelligence" consultant. The case also signals that the government is confident that the recent Supreme Court decision in 'Salman v. United States' has overruled the Second Circuit's personal benefit holding in 'Newman' in its entirety.
In his No-Fault Insurance Law Wrap-Up, David M. Barshay reviews recent cases involving an expert witness of a different specialty than the prescribing or treating physician, requests for adjournment or continuance due to unavailability of expert medical witnesses, and no fault coverage for a pedestrian that was not hit by the insured vehicle.
In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: At the end of last year, the Third Circuit added to several recent decisions addressing whether a creditor was entitled to payment of a "make whole" premium in connection with a Chapter 11 case. The opinion is the most creditor-friendly decision issued to date on this issue, as the court found that the refinancing of certain first and second lien notes after the Chapter 11 cases were commenced triggered payment of a "make whole" premium.
Jeff S. Korek and Abraham Z. Melamed write that although the theory is rooted in a U.S. Supreme Court decision more than 130 years old, it is a decision that has never been overturned, and is aged like a fine wine, ready to be trotted out and showcased in an argument that attorneys should be bound at trial by their opening statements.
Bill Maguire, Sarah Cave and Ken Katz discuss the U.S. Supreme Court's decision this week that resolved a circuit split over whether the five-year statute of limitations that applies to any "action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise," covers claims for disgorgement imposed as a sanction for violating a federal securities law.
Employment Law columnists Jeffrey S. Klein and Nicholas J. Pappas write: Halloween could become a very scary day for New York City employers, when the city ordinance restricting an employer from inquiring into an employee's salary history becomes effective.
Medical Malpractice columnists Thomas A. Moore and Matthew Gaier write: In addition to delays in diagnosing cancer, cases involving delays in diagnosing or treating cerebral vascular accidents such as strokes or bleeds commonly give rise to claims for loss of chance.
White-Collar Crime columnists Robert J. Anello and Richard F. Albert write: Recent investigative actions, including a highly-unusual raid on the Munich office of Jones Day by German authorities, as well some notable European court rulings suggest an erosion of protections for attorney communications and work product in the corporate context. As a result, corporations operating globally face significant uncertainty regarding their ability to maintain confidentiality, especially in the context of internal investigations.
Carrie H. Cohen writes that the digital age's proliferation of communication options has come with increased exposure to claims in litigation of withholding, hiding, destroying, and losing evidence.
In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss 'Hsueh v. N.Y. State Dep't of Fin. Servs.', a decision that adds to a growing body of law supporting an application of a court's inherent power to sanction. In endorsing a circuit-specific test for the applicability of an adverse inference sanction for failure to preserve ESI, the decision may contribute to uncertainty around sanctions that Rule 37(e) was intended to remove and may reopen the circuit court split that the rule was designed to resolve.
Benjamin Dynkin, Barry Dynkin and Daniel Garrie write: Whether an action amounts to an Act of War under the international law of cyber warfare is a complex, intricate, legal question with serious political and military implications. It is not a vague, abstruse general term that can be filled with any meaning that might be politically expedient.
Criminal Law and Procedure columnist Barry Kamins writes: Long before the term "wrongful conviction" became commonplace, the U.S. Supreme Court in 1967 noted the conclusion by one commentator that "the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is responsible for more such errors that all other factors combined." Fifty years later, New York is about to embark on a new era of eyewitness identification.
In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini look at the contractual relationship between an artist and a personal manager, who provides advice and guidance in creative matters.
John Zaremba, Michael Jaffe, Nick Gjelaj and Daniel O'Toole write: While ladders and scaffolds clearly fall within Labor Law §240(1)'s protections as specifically enumerated devices, the Court of Appeals has now made clear that so do staircases and other devices which serve as the functional equivalent of protected devices. This is a refreshing reaffirmation of the protective principles of the labor law.
Labor Relations columnists David E. Schwartz and Risa M. Salins discuss U.S. Supreme Court decisions from the 2016-17 term pertaining to protections for transgender individuals; the standard of review of a district court's decision to enforce or quash an EEOC subpoena; whether priority rules for WARN Act creditors apply in the context of a structured dismissal of a bankruptcy proceeding; and whether a state court rule that disfavors arbitration agreements violates the Federal Arbitration Act.
Insurance Law columnist Jonathan A. Dachs reports on the State of New York Department of Financial Services' most recently published "Auto Insurance Complaint Ranking."
Alan D. Zuckerbrod and Eric B. LaMons write: As demonstrated in a recent First Department decision, pre-judgment interest, whether statutory or contractual, could significantly add to the amount at stake, especially in a complex commercial matter that may take many years to resolve. With statutory interest rates varying greatly among jurisdictions, choice of forum also becomes significant.
In his Civil Rights and Civil Liberties column, Christopher Dunn writes: The litigation surrounding the sanctuary city executive order highlights the Trump administration's ignorance of or disregard for basic constitutional principles, the awkward position in which Justice Department lawyers find themselves, and the impact of public statements by government officials on federal judges.
Michael J. Hutter, in his Evidence column, analyzes a recent First Department decision that held an employee has no expectation of confidentiality, and therefore no privilege protection (attorney-client or spousal), when using an employer's monitored email system, provided the employee was adequately warned of such monitoring. However, attorney work product protection may still be available for such emails.
Matthew S. Brett discusses the First Department's explosive 2015 rent regulation decision in 'Altman,' how it has been since applied—or not—by the Appellate Term, and the arguments that will soon be heard by the Court of Appeals.
In his Bankruptcy Update, Edward E. Neiger delves into the bankruptcy proceedings of Gander Mountain Company, Eastern Sports Outfitters, Luke's Locker and Michigan Sports.
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss the court's attempt to clarify what types of conduct strip an employee of protection under the National Labor Relations Act as employee speech spreads beyond the physical workplace to social media.
Judd A. Lindenfeld writes that the Second Circuit's statement that LLCs practicing law "run afoul" of New York law puts law firms organized as LLCs in a difficult position. While state courts are not bound by a federal court's interpretation of an unsettled state law, a clear pronouncement by the Second Circuit is persuasive precedent for lower courts.
In his E-Communications column, Stephen Treglia writes: Granted, the future regarding how various cybersecurity laws and regulations will be enforced against lawyers and law firms is not yet completely certain. But if early history is any indication, the legal profession must awaken and start taking notice and action before it becomes too late.
Franchising columnist Rupert M. Barkoff writes: There are many situations today where a group or a constituency wants to make sure that it has a voice at the decision-making table by having a representative on its franchisor's board of directors—a so-called "constituency director." Is this a good or bad idea?
In his Real Estate Securities column, Peter Fass discusses temporary and proposed IRS regulations that change the rules regarding allocation of partnership liabilities.
Thomas A. Dickerson compares Florida and New York law regarding the enforceability of hotel and resort forum selection clauses.
Law Firm Partnership Law columnist Arthur J. Ciampi reviews the Second Circuit's recent holding on to what extent freedom of speech, the right "peaceably to assemble," and the right to "petition the Government for a redress of grievances" pertain to commercial law firms that represent clients for a fee.
Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg write: In an appropriate case, a patient's culpable conduct, as for example a failure to provide an accurate medical history or heed instructions for follow-up care, can result in an apportionment of fault against the plaintiff and a corresponding reduction in the damages recoverable, or at a minimum, provide the basis for a jury instruction on mitigation of damages. In addition, negligent conduct by the plaintiff which contributed to the condition for which treatment was sought may potentially be treated as culpable conduct.
Andrea M. Alonso and Kevin G. Faley write: On March 30, the Court of Appeals decided 'O'Brien v. Port Authority,' a case where two experts disagreed on whether a temporary metal staircase or scaffold—a safety device under the Labor Law—provided proper protection as required by the statute.
State Environmental Regulation columnist Charlotte A. Biblow writes that there is good news for property owners, developers, and local government officials—the state's brownfield cleanup program revised guidelines are nearly finalized, and once they are approved, there will be a clearer roadmap for the application process, often a significant stumbling block for applicants.
International Litigation columnists Lawrence W. Newman and David Zaslowsky write: A recent case in England shows how deeply into the arbitral weeds an English court can still go.
Anthony Michael Sabino writes that the recent Chapter 11 filing of Westinghouse Electric is virtually assured of being no ordinary bankruptcy case: It is one of the few builders of nuclear reactors in the world. The critical technology that Westinghouse holds, while ostensibly devoted to peaceful purposes, could, in the wrong hands, be perverted to dreadful ends.
Patent and Trademark Law columnist Robert C. Scheinfeld writes that it has been tough sledding of late for some pharmaceutical patent owners in the Federal Circuit, which invalidated three patents in recent cases. But these cases give insight on some important issues: how the circuit reviews evidence and determinations of obviousness by the Patent Trial and Appeal Board in post-grant proceedings governed by the America Invents Act, and whether the AIA changed the law regarding the "on-sale" bar by overruling prior case law as to so-called "secret sales."
Section 1983 Litigation columnist Martin A. Schwartz writes that the U.S. Supreme Court recently held that an arrestee's §1983 Fourth Amendment unreasonable seizure claim may challenge his pretrial detention, including detention after the issuance of legal process, such as a judicial determination of probable cause. The court, however, sidestepped the major issue of whether a §1983 malicious prosecution claim can be premised on a violation of Fourth Amendment rights.
Howard Wintner writes: Although normally associated with copyright laws, there is also a doctrine of fair use under the trademark laws, which prevents a monopoly of a descriptive term which anyone should have right to use.
In his Health Law column, Francis J. Serbaroli analyzes a recent Appellate Division decision that should send a warning to providers of physician practice management services. The court affirmed lower court determinations that exercising too much control over a medical practice can result in a finding that the medical practice is fraudulently incorporated, and thereby void the practice's bills for medical services.
In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss a Court of Appeals decision that addressed the circumstances under which multiple landowners could be held liable for an accident on a sidewalk abutting the property of only one such owner.
In his Intellectual Property column, Stephen M. Kramarsky discusses a recent case in which an ISP essentially asked the court to give it legal advice: whether the DMCA applied to it, and whether it was required to respond to certain kinds of DMCA take-down notices. The court grappled with the question of whether it had the power to grant this kind of relief, and its carefully considered opinion provides some interesting insight into the current landscape of copyright protection under the DMCA.
Michael Braverman and Christopher Ekimoff write that to triers of fact adjudicating audit malpractice cases, understanding the rules governing how auditors practice, Generally Accepted Auditing Standards, can seem like trying to decipher a foreign language. Armed with an understanding of GAAS and how they are applied in practice, attorneys can focus their strategy on elements of audit malpractice claims that will ring true with judges and juries.
Ioanna Olivia Zevgaras of Short & Billy, P.C. writes: While the bottom line is that statutes and regulation may not always explicitly impose upon a physician the duty to warn his/her patient, the physician may still be subject to legal exposure. Health care providers need to know the statutory laws and regulations that apply to their work so that they can meet those responsibilities and not compromise public safety.