In her Trusts and Estates Update column, Ilene Sherwyn Cooper focuses on Surrogate's Court opinions. Toward that end, the final months of 2016 were distinguished by decisions involving joint bank accounts, probate proceedings and the scope of discovery, and removal.
Kimberly Zelnick and Stephanie Brown Cripps, of Freshfields' New York office, examine the current state of play and possible changes that the president-elect can make to U.S. sanctions laws on Iran, including the continued viability of the Iran nuclear deal. The article also examines strategies that companies that have already entered the market and those that may be looking to enter can employ to best position themselves in the potentially shifting landscape.
In his Tax Appeals Tribunal column, Joseph Lipari discusses the innocent spouse rule, and circumstances when requiring both spouses to be liable for tax manifests injustice. When spouses file joint New York Personal Income Tax Returns, they are jointly and severally liable for the entire tax due, regardless of which spouse earned the income. As a remedial measure, the "innocent spouse" rule (incorporating an analogous federal provision) is meant to relieve certain taxpayers from their spouse's adverse tax consequences. The recent administrative law judge determination in 'Peter Gerace, Sr.' is a demonstration of the utility of this rule for the equitable administration of tax.
In their Eastern District of New York column, Harvey M. Stone and Richard H. Dolan report on significant decisions involving peremptory challenges to potential jurors, categories of damages that could be presented to the jury in a legal malpractice case and Truth in Lending Act claims.
Anita Bernstein, a professor at Brooklyn Law School, analyzes the Appellate Division, First Department's "adjectival criteria" in legal malpractice cases. She writes: while all the adjectives in the statute are either neutral or plaintiff-favoring, the First Department has written adjectival criteria that make it hard for plaintiffs to win. There's more: First Department cases say that plaintiffs must show a "pattern" of attorney misconduct, and assert that redress for this wrong must be "not lightly given." These hurdles, she writes, do not appear anywhere in the statute. "Chronic, extreme," "egregious." Redress for injured people "not lightly given." The "pattern" criterion. Where did the First Department's discouraging-to-plaintiffs words come from?
In his Debtor-Creditor Rights Wrap-up, David M. Barshay surveys cases dealing with consumers' standing to sue for "procedural" violations under consumer protection statutes, particularly the Fair Debt Collections Practices Act, particularly after 'Spokeo, Inc. v. Robins', in which the U.S. Supreme Court considered whether a violation of a statutory right granted by the Fair Credit Reporting Act was a sufficient injury in fact to maintain an action in federal court. The court determined that if such injury is both "particularized" and "concrete," standing is present.
A. Jonathan Trafimow and Julia Gavrilov, of Moritt Hock & Hamroff, address questions surrounding settlements in employment actions, particularly after 'Cheeks v. Freeport Pancake House', in which the Second Circuit affirmed the Eastern District of New York holding that parties cannot enter into settlements of individual FLSA claims without either the approval of the district court or the Department of Labor. The article discusses certain district court decisions construing 'Cheeks' and strategies employers have utilized in response to it.
In their Mediation column, Abby Tolchinsky and Ellie Wertheim lay out tools mediators routinely use when parties arrive at positions that seem intractable and incompatible. Among them, to brainstorm in as unhampered a manner as possible, without judgment or restraint. "Indeed, we even encourage the parties to suggest options that they knowingly would reject," they write. Looking at aspects of an idea one does not want sharpens one's thinking. What is wrong with that idea?
Trial attorneys Richard B. Ancowitz and Sanford Rosenblum address what they call the damage to the Constitution inflicted by President Barack Obama in his pursuit of an Iran nuclear deal, the Joint Comprehensive Plan of Action and how he was aided and abetted by Congress. Given the national security importance of the JCPOA, many in Congress strongly indicated that any agreement with Iran on the nuclear issue and sanctions needed to be submitted to the Senate for advice and consent as a treaty.
In this White-Collar Crime column, Robert J. Anello and Richard F. Albert discuss "taint teams" which the government often sets up when it seizes electronically stored documents by means of a search warrant. The taint team tries to segregate out materials protected by the attorney-client privilege to avoid later claims that it improperly accessed such documents. Over the years, a number of courts and practitioners have criticized this "fox guarding the chicken coop" procedure as inherently ill designed to protect the privilege. A recent case from the Eleventh Circuit illustrates just what these skeptical courts and counsel have been concerned about. In that case, privileged information was provided to the trial team without notice to the defendant in violation of the terms of a stipulation providing for a taint team.
In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier review some of the principles that may be divined from the decisions interpreting CPLR 3101(d)(1)(i) relating to preclusion of expert testimony based upon untimely or insufficient disclosure, and discuss some Appellate Division decisions applying those principles in malpractice actions.
In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison discuss a recent decision which determined that counsel's failure to reasonably supervise an electronic document search by its client's employee was a sanctionable violation of Federal Rule of Civil Procedure 26(g).
Justin Sher, of Sher Tremonte, writes that investment advisers may rely on confidentiality agreements to protect against the disclosure of an investment thesis or algorithm or simply as a means of keeping investors' affairs private. Indeed, Regulation S-P requires registered investment advisers to take steps to "insure the security and confidentiality of customer records and information." However, in light of recent enforcement measures taken by the SEC, advisers should review their confidentiality agreements—including those with investor clients—to make sure these agreements do not violate SEC Rule 21F-17(a), which prohibits the use of confidentiality agreements to deter whistleblowers.
In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas analyze two cases where plaintiffs challenged revenue-sharing arrangements under the Employee Retirement Income Security Act. "Revenue sharing" refers to an arrangement where a mutual fund, offered as an investment option in a 401(k) plan, pays either the plan's sponsor (usually the employer) or a plan service provider (a third-party vendor) a fee for performing administrative or record-keeping services for the plan. This concerns plan participants because mutual funds typically pay such revenue-sharing fees to the employer or service provider by periodically deducting the fees from the retirement plan's invested assets.
In his Criminal Law and Procedure column, Barry Kamins explores suppression where the People have not sustained their initial evidentiary burden. While in the overwhelming number of suppression hearings, prosecutors are able to satisfy their burden of going forward with testimony that is found to be credible by the suppression court, in two recent cases suppression courts did not credit the testimony of police officers who testified that they were able to smell the odor of marijuana emanating from a vehicle that they had stopped.
Kevin Schlosser, of Meyer, Suozzi, English & Klein, writes that recent cases show that courts are extremely reluctant to allow fraud claims in the face of well-crafted contractual disclaimers and provisions disavowing reliance on representations or other information in complex transactions. The cases illustrate the key role lawyers can and should play in both preserving and preventing claims of fraud and breach of representations and warranties in complex commercial transactions involving sophisticated parties.
In his Divorce Law column, Alton L. Abramowitz discusses the evolving definition of a "parent" in child custody and access, with a focus on the Aug. 30 New York Court of Appeals ruling in 'Brooke S.B. v. Elizabeth A.C.C.', which has been widely hailed for recognizing the rights to child custody and access of non-biological partners in same-sex relationships regardless of whether those relationships are marriages, civil unions, life partnerships, or other seemingly less permanent affiliations. Often overlooked by those cheering the issuance of the Brooke S.B. decision are the facts that the precedent it established applies to heterosexual couples as well, that it is a victory for all non-biological parents regardless of gender, sexual orientation or marital status, and that the ultimate victors are the children themselves.
In their Labor Relations column, John P. Furfaro and Risa M. Salins focus on significant 2016 decisions of the National Labor Relations Board which may or may not survive under a new administration. The NLRB has taken a number of actions during the term of President Barack Obama considered favorable to unions in the organizing process. Notably, there are two vacancies the authors expect the new president to fill promptly.
Geoffrey A. Mort, of Kraus & Zuchlewski, examines prospects for the federal circuit courts of appeals to ban sexual orientation discrimination with a particular look at the Seventh Circuit decision in 'Hively v. Ivy Tech Community College'. The Hively decision ultimately concluded that sexual orientation claims are not cognizable under Title VII, but only after an unusually long and painstaking analysis of this issue in which the court opined that its finding "will not hold up under future rigorous analysis" and that "[i]t seems unlikely that our society can continue to condone a legal structure in which employees can be fired...and otherwise discriminated against solely based on how they date, love, or marry." Approximately 10 weeks later, however, the Seventh Circuit on Oct. 11 surprisingly vacated its prior ruling in a two-sentence order and granted the plaintiff's motion for an en banc rehearing.
In his Evidence column, Michael J. Hutter discusses 'People v. Smith', in which the Court of Appeals provided clear guidance to the bench and bar as to how the "bad acts" impeachment rule is to be applied by the trial court. That rule emerged from a long-held belief of the New York courts is that witnesses "whose lives indicate an abandonment or lack of moral principles, and show them to be lewd and debased characters, void of shame or decency, have not usually a great respect for the truth, or the sanctity of an oath."
In his Civil Rights and Civil Liberties column, Christopher Dunn discusses the civil rights philosophy that President-Elect Donald Trump brings to the presidency and examines the ways in which Trump will be able to affect civil rights on the federal and local level.
Howard Wintner, director of litigation at the Abramson Law Group, discusses copyright ownership, with an emphasis on joint ownership. A joint work is one "prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'GAMCO Investors v. Vivendi Universal', where the court discussed one of the key issues in securities litigation—how to rebut the fraud-on-the-market presumption of reliance. The circuit found the defendants in the case had successfully rebutted the presumption by demonstrating that certain opt-out plaintiffs would have purchased the securities at issue even if they had known of the fraud.
Franchising columnist Rupert M. Barkoff discusses prospects for joint employer liability for franchisors after the Obama era, the hottest issue in franchise law over the last few years. Joint employer liability could occur when an employee could claim that he or she had not one, but two, employers -- one begin the franchisor and the other the franchisee.
Maurice J. Recchia, of Russo & Toner, examines the standard for negligence on summary judgment motions in medical malpractice matters. The Court of Appeals recent addressed this standard in 'Pullman v. Silverman', which includes an interesting concurrence.
Kristen B. Weil, senior managing associate at Dentons in New York, writes: Even though the social media landscape is rapidly changing and can feel more casual than in-person communication, attorneys must remember that their ethical obligations do not disappear online. She provides some tips, drawn from the NYSBA Social Media Ethics Guidelines, to help New York attorneys ethically engage online.
Harry Sandick and Helen P. O'Reilly of Patterson Belknap Webb & Tyler examine the decision in 'U.S. v. Rosemond', in which the Second Circuit clarified how and when certain defense tactics at trial can open the door to the introduction of protected proffer statements. Although securing a cooperation agreement after proffering to the government can lead to enormous benefits for those who successfully navigate the process, the negative consequences of a failed proffer are profound. The agreements typically involve a partial waiver of the protections that evidence of any "statement made during the course of plea discussions with an attorney for the prosecuting authority" is inadmissible against the defendant.
In his Law Firm Partnership Law column, Arthur J. Ciampi reflects decisions and viewpoints in 2016 particularly in the area of competition such as non-compete agreements and non-lawyer ownership of law firms.
In his Tax Tips column, Sidney Kess discusses the tax issues involved when adult children provide financial help to their aging parents. He examines ways of gaining authority over a parent's finances, tax breaks available, and ways to reduce costs without diminishing the parent's lifestyle.
In his Insurance Law column, Jonathan Dachs restates the "general, well-settled and widely known" rules for interpreting insurance policy provisions and uses case law to show how the courts are often called upon to repeat and restate these rules to support their interpretations of the various policy provisions before them.
Gregg Weiner and Adam Harris explain why the "registration" theory for gaining jurisdiction over corporations is no longer viable under modern precedent and principles of due process, and further explores how courts have grappled with the issue.
Patent and Trademark columnist Robert C. Scheinfeld examines the Federal Circuit's findings in 'Apple vs. Samsung.' Practitioners will find particularly helpful guidance in the majority's analysis—especially what qualifies as "substantial evidence" upon which a jury may rely in finding on the merits and whether a patented invention should be deemed obvious and unworthy of protection.
International Litigation columnists Lawrence W. Newman and David Zaslowsky look at three recent decisions concerning the enforcement of foreign arbitral awards. Two of the decisions reached opposite results on the issue of enforcing awards that were annulled at the place of arbitration.
State Environmental Regulation columnist Charlotte A. Biblow explores efforts in New York state on sustainable development. The state government is strongly promoting sustainable development, with regional conferences, various resources, and opportunities for entities across the state to apply for and obtain state grants and other financing. The state has released a 92-page guide to sustainable resources in the state, including more than 100 funding programs.
By Thomas A. Dickerson and Sylvia O. Hinds-Radix
Thomas A. Dickerson and Sylvia O. Hinds-Radix, associate justices of the Appellate Division, Second Department, discuss legislation addressing advertising for multiple dwelling units and the response of apartment-sharing service Airbnb. Airbnb, as it has in San Francisco and Santa Monica, Calif., filed a lawsuit in New York federal court, challenging the act.
In their Trial Practice column, Robert S. Kelner and Gail S. Kelner explore 'Rivera v. Montefiore Medical Center', in which the Court of Appeals addressed the push and pull between an inadequate expert witness disclosure, the timeliness of an objection to such a disclosure, and the proper exercise of discretion by the trial court. An examination of the result in this case highlights the importance of vigilance in the examination of an expert witness disclosure and prompt action in conveying objections to any lack of sufficiency. Rivera makes it clear that the scope of judicial discretion in resolving these issues at trial is very broad.
In his Health Law column, Francis J. Serbaroli discusses the Interstate Medical Licensure Compact, which has been enacted into law by 18 states and is intended to facilitate the licensure process for physicians who wish to practice in multiple states. He notes that, while the Compact has the support of many prominent medical organizations, there is some opposition to the Compact's requirement that a physician have specialty board certification, and its supersession of state medical licensing laws.
In his Criminal Law column, Ken Strutin writes: Peering behind the concrete curtain of the prison experience, informed sentencing courts can muster the moral authority to preserve humanity before it is lost to incarceration.
In his New York Practice column, Thomas F. Gleason discusses stipulations, specifically addressing possible risks that arise with the requirement in CPLR 2104 that the party or counsel "subscribe" the out-of-court agreement.
Michael H. Reed and Fran L. Rudich of Klafter Olsen & Lesser discuss a recent First Department decision in '2138747 Ontario v. Samsung C&T', which they describe as a cautionary tale about how much law choice-of-law clauses actually choose when it comes to statutes of limitations.
Northern District Roundup columnist Adam R. Shaw examines two rulings, one on whether an agreed to, but unsigned, settlement agreement was binding, and another that offers a reminder that failing to follow the Local Rules can be fatal to your claim. The cases are "H&R Block Tax Services v. Strauss," and "Stubby Strips v. Food Market Merchandising."
Jeffrey S. Sunshine discusses an array of statutes and court rules that were proposed and enacted in the past two years that will provide significant change in both the practice and process of matrimonial law in New York State.
In his Elder Law column, Daniel G. Fish writes: In light of the various cases in which Medicaid has postulated a scenario that would fit within the "under any circumstance" language, drafters of inter-vivos trusts must exercise caution.
Robert S. Smith and Alexander D. Levi of Friedman Kaplan Seiler & Adelman seek to help practitioners avoid confusion associated with utilizing CPLR 3213, under which plaintiffs can begin an action by filing a summary judgment motion instead of a complaint.
In his Tax Litigation Issues column, Jeremy Temkin discusses Internal Revenue law 2 6 U.S.C. §7212(a) which criminalizes attempts to interfere with the administration of the internal revenue laws, and he explains how the recent Second Circuit case 'United States v. Marinello' — which held that Section 7212(a) can be violated without proof that there was a pending IRS investigation or proceeding, let alone that the defendant was aware of the IRS’s activity —
is an example of the continued expansion of Section 7212(a).
The L-1 intracompany transfer visa has been widely used by multinational companies to transfer qualified employees to the United States for a prescribed period of time. In her Immigration Law column, Lisa Koenig discusses the L-1 program and also the Blanket L-1 program which is an expedited version of the L-1 program, allowing employers to deploy talent to the United States more quickly and efficiently.
New York Court of Appeals columnists Roy L. Reardon and William T. Russell Jr. analyze the court's decision dismissing a case based on the doctrine of champerty, in 'Justinian Capital SPC v. WestLB AG', a concept dating back to French feudal times. It is essentially a prohibition on the buying and selling of litigation claims and provides a defense to the party against whom the purchased or sold claim is asserted. The majority decision upholds the principles behind champerty, but recognizes that New York is a leading commercial center and center of commercial litigation and, accordingly, preserves the ability of sophisticated parties to engage in large-scale transactions that might otherwise run afoul of the prohibition on champerty.
Condemnation and Tax Certiorari columnist Michael Rikon and partner Joshua H. Rikon explain advance payments in condemnation cases and problems that arise. New York is what is known as a "quick take" state. This means that title to property is transferred immediately when a condemnor exercises its power of eminent domain. The condemnor owes the condemnee just compensation once the property is taken. The measure of this just compensation is the fair market value of the property taken on the date of acquisition. Because the money is due on the title vesting date, interest accrues for any delay in payment. This is different from a "slow take" acquisition where a just compensation claim is resolved before title to property is transferred to a condemner.
Eric L. Lewis and A. Katherine Toomey, partners in Lewis Baach, write: The Appellate Division, First Department, recently affirmed the dismissal of various claims brought by New Greenwich Litigation Trustee, successor to the claims of two feeder funds in the Bernard Madoff affair, against various third-party fund administrators, accountants and auditors. The court relied on the Court of Appeals' decision in 'Kirschner v. KPMG LLP' to reaffirm the broad application of the in pari delicto doctrine to all situations involving equal or mutual fault, and to construe narrowly the recognized exceptions to this doctrine. The in pari delicto doctrine—"in pari delicto potior est conditio defendentis" means "in a case of equal or mutual fault, the position of the [defending party] is the better one,"—precludes the courts from interceding to resolve a dispute between two wrongdoers.
Complex Litigation columnist Michael Hoenig explores questions relating to experts when they make mistakes or are found unreliable, including: If a claim has been thrown out because an expert botched his assignment or because the expert was found unreliable in key areas, does that open the expert to being sued for professional malpractice, negligence or breach of contract? In turn, could permitting such a claim expose the lawyers who retained that expert to direct suit by frustrated clients or to third-party claims by experts who are sued by losing litigants?
Jeffrey Gross, of Reid Collins & Tsai, discusses a significant decision relating to application of New York's borrowing statute. The decision, '2138747 Ontario, Inc. v. Samsung C&T Corp.', reflects the latest decision in New York's confusing jurisprudence at the intersection of conflict-of-laws principles, the borrowing statute, and contractual choice-of-law provisions.
In his Intellectual Property column, Stephen M. Kramarsky of Dewey Pegno & Kramarsky analyzes a decision involving a claim of fair use claim of the famous Abbot and Costello routine 'Who's on First?' He writes: Practitioners should examine the opinion and keep an eye out, as this area continues to evolve rapidly, even after 20 years of development.
Eastern District Roundup columnists Harvey M. Stone and Richard H. Dolan report on decisions in the U.S. District Court for the Eastern District of New York involving three separate cases regarding arbitration clauses and one that held that the Organic Food Production Act of 1990 preempted state law claims alleging improper labeling of infant formula. In another case involving a defendant who had served his sentence for receiving child pornography, Judge Jack B. Weinstein vacated as unconstitutional a condition of supervised release that defendant not attend church services with minors present.
Federal Civil Enforcement columnists Richard Strassberg and William Harrington write that court decisions in the last six months provide several new grounds for defendants to challenge the viability of False Claims Act suits. These include a potential strengthening of the FCA materiality requirement, the need for particularity in describing why a claim was objectively false, and greater scrutiny of statistical sampling evidence.
Patrice P. Jean and Vanessa Ann Woods, of Hughes Hubbard & Reed, examine estate planning considerations for "digital assets" including personal email accounts, personal websites, social media accounts, and other electronic accounts. The failure to consider how to dispose of digital assets in an individual's estate plan could result in later complexities following the individual's death. California and New York recently joined 19 other states in implementing laws to govern the administration of digital assets after death.
Environmental Law columnists Michael B. Gerrard and Edward McTiernan detail what they call a remarkable set of developments in the past month at the international level in controlling greenhouse gas emissions—the entry into force of the Paris Climate Agreement, and major new agreements on controlling hydrofluorocarbon emissions and pollution from airplanes. They also provide comments on how the stunning election of Donald Trump on Tuesday casts the future of some but not all of these efforts into doubt.
Maranda Fritz and Brian Waller, of Thompson Hine, continue to examine the government's practice of "overseizure" in light of the FBI's accessing Huma Abedin's emails even though its warrant authorized a search for and seizure of the communications of Anthony Weiner. The FBI investigation of Hillary Clinton's handling of emails may be closed—again—and the next president chosen, but in the process, troubling aspects of the criminal justice system became the subject of intense scrutiny and continuous commentary. Even as the media moves on to post-election coverage, the issues arising from the government's overseizure practices, and the actions of the FBI, remain crucial concerns for the legal community.
Intellectual Property Litigation columnists Lewis R. Clayton and Eric Alan Stone report on the current state of the law relating to the threshold decision by the U.S. Patent and Trademark Office on whether to "institute" a proceeding as required under the 2011 America Invents Act which created procedures to challenge the validity of an issued patent before the U.S. Patent and Trademark Office, including inter partes review, post-grant review, and covered business method review. By statute, Congress declared that institution decisions are nonappealable. There has nevertheless been significant litigation, including in the Supreme Court, about whether and when an institution decision may be appealed.
Carlos J. Cuevas, a solo practitioner in Yonkers, discusses the issue of the ownership of a legal claim which can become the most important legal issue in a Chapter 7 case. The issue of standing has to be resolved so that the claim can be prosecuted. The case law is muddled because the courts have taken various approaches.
Construction Accident Litigation columnist Brian J. Shoot revisits the issue arising in the law concerning Labor Law §240 on "falling object" liability and what, precisely, qualifies as an object that "requires securing for the purposes of the undertaking."
In their Technology Law column, Richard Raysman and Peter Brown discuss three cases that involve: whether the duration of rights to a work extend past the relevant license; if and when source code provided, or promised to be provided, to a licensee can sustain either contract or tort claims; and the assignability of copyrighted architectural renderings via an implied license.
Dorothy Auth and Howard Wizenfeld of Cadwalader, Wickersham & Taft examine two recent Federal Circuit cases regarding patent eligibility for computer- and life-science- related technologies. Many district court judges have dismissed cases based on patent ineligibility even before the claim language has been construed or any facts considered. Similarly, life science patents have been held invalid as covering laws of nature or natural phenomena. The recent decisions provide clues on how to draft claims that can survive a §101 challenge thereby allowing stakeholders to obtain and enforce patent claims that comport with the Supreme Court's jurisprudence under §101.
Lloyd Winans and Kurt Kicklighter, of Dentons, discuss new the New York State Department of Financial Services cybersecurity regulation for financial services companies, which takes effect on Jan. 1, 2017. The requirements set out in the regulation impose significant new ongoing operational, documentation and reporting obligations.
Professional Responsibililty columnist Anthony E. Davis addresses the ethical and risk management implications of two insidious consequences of our dependence on technology. The first concerns lawyers' duties when they first become (or should become) aware that hackers are trying to misdirect a settlement payment. The second arises from the ability of email users to attach "beacons" to emails that allow senders to learn whether and when an email has been opened by the recipient without informing the recipient that the beacon is in place.
Insurance Fraud columnist Evan H. Krinick discusses ways in which whistleblowers, in actions brought under the False Claims Act, play a vital role in the fight against fraud involving federal health insurance programs such as Medicare and Medicaid. Of the $48 billion recovered by the federal government under the FCA from 1987 to 2015 (including health-care-related recoveries), over $33 billion resulted from whistleblower-initiated litigation, also known as "qui tam" lawsuits.
Judith L. Poller and Colleen L. Caden, partners at Pryor Cashman, discuss the effects of divorce on families where one or both spouses has temporary immigration status. They note the spouse and minor children of the foreign national who is transferring to the U.S. are eligible for dependent visas. Under this type of visa, the consequences of a divorce are harsh for the dependent spouse—when the couple's divorce becomes final, the dependent spouse will immediately lose his or her immigration status and be required to leave the U.S. or explore options to remain in another visa status.
Section 1983 Litigation columnist Martin A. Schwartz examines the court's clarification of the undue burden test in abortion litigation as addressed by the U.S. Supreme Court in 'Whole Woman's Health v. Hellerstedt', which struck down two Texas statutory abortion policies because they violated a woman's substantive due process right to choose to have an abortion. The "admitting privileges" provision required physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the abortion facility. The "surgical center" policy required abortion facilities to meet the minimum standards for ambulatory surgical centers. Schwartz notes that how the undue burden test operates as a standard of judicial review was arguably the most important aspect of and will almost certainly play a vital role in pending and future §1983 abortion litigation.
Joshua D. Rievman, of Hoguet Newman Regal & Kenney, writes that participants in arbitration proceedings held abroad may seek an order in a U.S. court to obtain documents and testimony in the United States for use in that arbitration, pursuant to 28 U.S.C. §1782. Most U.S. courts approve of assistance to participants in arbitrations conducted pursuant to rules agreed to among member states, such as UNCITRAL or NAFTA. When the foreign arbitration proceeding is purely private, however, the result is less clear. Several federal district courts have granted Section 1782 discovery applications for such private arbitrations, while a narrow minority of courts have denied them. The application of Section 1782 and the circumstances under which requests for assistance with private arbitrations are granted remain in flux.
Appellate Practice Columnists Thomas R. Newman and Steven J. Ahmuty, Jr. discuss filing a motion for permission to appeal to the Court of Appeals. Such motions, they point out, are rarely granted. The Court of Appeals exclusively focuses on cases that present legal issues with broad precedential significance. The main objective is to persuade the court that the case presents questions of law that are "leaveworthy," i.e., sufficiently important to merit review, not simply to demonstrate that the Appellate Division's decision was erroneous.
Cooperatives and Condominiums columnists Eva Talel and Richard Siegler examine cases on the statutory warranty of habitability which is non-waivable and requires that residential tenants be provided with the essential functions of a residence and not be exposed to conditions that are dangerous, hazardous or detrimental to their life, health or safety. Their column analyzes how secondhand smoke, mold, bedbugs and other circumstances impact the courts' application of the warranty of habitability.
Albert J. Pirro, Jr., a land use and zoning attorney in White Plains, explores the intricacies of municipal estoppel, which is often invoked when a local building inspector, making an honest mistake, issues a building permit that is contrary to, or in violation of, a local building code. The developer, in reliance on the permit, proceeds with construction only to be served with a stop work order. Municipal estoppel—a doctrine which states that rights may not be conferred upon a municipality which acts in contravention of zoning laws—does not apply in the absence of governmental fraud, misrepresentation, deception or other misconduct on the part of the municipality.
White-Collar Crime columnists Elkan Abramowitz and Jonathan Sack examine the U.S. Supreme Court's decision into a thorny issue concerning "omissions" in the context of the civil False Claims Act, which prohibits false and fraudulent monetary claims for payment made to the federal government. In 'Universal Health Services v. United States', decided in June 2016, the Supreme Court extended the FCA to a new category of omissions by adopting the "implied certification theory"—roughly, that claims for payment from the government can, in certain circumstances, implicitly certify that the payee has satisfied the legal requirements for payment. They explain how the implied certification theory might also apply to mail and wire fraud cases.
Maranda Fritz, of Thompson Hine, analyzes the the law surrounding government 'overseizure' of data in investigations involving electronic data in light of the government's investigation into emails linked to Huma Abedin, Hillary Clinton's aide. She points out that any warrant that would have been sought in the Weiner investigation would have allowed for seizure of electronic files relating to him—not the communications of his wife. The clear danger presented by this Anthony Weiner seizure, and the seizures in many cases, is that the consideration that was extended to the government—to allow the initial overseizure for the purpose of complying with the warrant—is being used by the government to seize and retain any confidential, personal or even intimate communications that happen to reside on the seized computer.
Mark A. Berman of Ganfer & Shore discusses three recent decisions that demonstrate how electronic communications, including social media, can be extremely powerful tools in a litigation and, concomitantly, the wrongful loss or destruction of such electronically stored information can be equally as devastating in a legal dispute.
Settlement and Compromise columnist Thomas E.L. Dewey examines the Second Circuit's decision in 'Rothstein v. American International Group', on the definition of a settlement class in a securities class action settlement. As is common in such settlements, the settlement agreements contained a provision excluding the defendant's "affiliates" from recovering settlement proceeds. Although class-action settlement agreements frequently exclude defendants' affiliates from the settlement class, this case presented an unusual question: Are employee benefit plans sponsored by the settling defendant its affiliates such that they are excluded from the settlement class?
Admiralty Law columnist James E. Mercante explores the myths and the legal challenges surrounding the Bermuda Triangle, a triangle shaped by a line drawn from Bermuda to Miami to Puerto Rico and considered a haunted part of the sea claiming ships without a trace. Instead of being gone forever, ships that go down in the Bermuda Triangle are not forgotten. Federal court, in admiralty, is where the mysterious disappearances and sinkings surface to eerily re-create the voyage and the cause of loss.
Rahul Mukhi, a counsel at Cleary Gottlieb Steen & Hamilton, examines the effect of 'McDonnell v. United States' on Foreign Corrupt Practices Act cases. In 'McDonnell', a unanimous Supreme Court vacated former Virginia Governor Robert McDonnell's convictions on bribery-related charges, based on its interpretation of the term "official act" under the domestic federal bribery statute. Although McDonnell did not mention the FCPA by name, the striking similarities between certain of the FCPA's anti-bribery provisions and the statute cabined by 'McDonnell' raise significant questions about whether several activities previously thought to run afoul of the FCPA remain violative of the statute.
Western District Roundup columnist Sharon M. Porcellio examines cases touching on litigation issues including employment and defamation claims, arbitration agreements, and class-action claims, with important takeaways for plaintiffs' and defendants' attorneys.
International Criminal Law and Enforcement columnists Nicholas M. De Feis and Philip C. Patterson offer practical strategies for companies facing raids of their offices overseas. They note that although most foreign jurisdictions have begun to impose limits and oversight on these raids, the raids remain aggressive by U.S. standards. They are also increasing in frequency and not confined to any particular types of industries. Among the concerns they discuss is that employees caught unprepared may act in ways detrimental to both the corporation's and their own interests. Moreover, U.S. and foreign prosecutors are increasingly sharing investigative materials. U.S. law provides only limited protections against the use of evidence seized by foreign agents, even when seized in ways that would violate U.S. law.
James P. Power, of Kramer Levin Naftalis & Frankel, reviews Article I, Chapter 5, of the Zoning Resolution, which allows, under certain circumstances, the conversion of a building to residential use without regard to the generally applicable residential bulk regulations. The city has recently considered policy changes to make Article I, Chapter 5 applicable citywide.
Domestic Environmental Law columnists Christine A. Fazio and Ethan I. Strell examine the environmental issues arising from the U.S. Coast Guard's proposed rulemaking to establish several new Hudson River anchorage locations between Yonkers and Kingston. In recent years, shipping traffic on the Hudson has expanded, most notably from crude oil shipments from North Dakota arriving by rail to the Port of Albany that are then transferred to barges and ships for delivery along the east coast. The shipping industry asserts that new anchorages are needed for safety, supply chain management, and environmental protection, while environmental groups and municipalities that oppose the proposal dispute the industry's assertions and have requested a full environmental review.
Second Circuit Review columnists Martin Flumenbaum and Brad S. Karp note that two recent decisions by the Second Circuit demonstrate the court's increasing hesitation to apply U.S. law to foreign jurisdictions. In 'Waldman v. PLO' and 'In re Vitamin C Antitrust Litigation', the court relied upon recent Supreme Court jurisprudence to continue the trend of narrowing the extension of U.S. law to foreign jurisdictions. In each case, the court vacated a nine-figure jury award, relying on jurisdictional precedents and international comity to limit the reach and application of U.S. law.
Corporate and Securities Litigation columnists Margaret A. Dale and Mark D. Harris examine the effect of in 'In re Trulia, Inc. Stockholder Litigation' on "disclosure-only" settlements, in which the parties agreed to a broad release of claims against the companies in exchange for limited additional disclosures regarding the transaction. Shareholders do not receive any direct economic benefit from these types of settlements; the only money that changes hands is a fee paid to the plaintiffs' counsel in exchange for obtaining the supplemental disclosures. The article highlights several of the key decisions criticizing disclosure-only settlements and considers how the corporate bar may react.
Manhattan attorney Andrew Lavoott Bluestone discusses the importance of the "but for" element in legal malpractice litigation. As he puts it, the "but for" element of legal malpractice is a place where otherwise great legal malpractice cases founder and sink; a black hole in law is a place where cases disappear without a trace. Legal malpractice cases in which the attorney mistake is obvious and even admitted can still disappear without a trace when the "but for" element of legal malpractice is considered.
Tax Tips columnist Sidney Kess writes: In its annual release in 2016, the Federal Trade Commission noted that reports of identity theft increased more than 47 percent from 2014 to 2015 and that tax-related identity theft is a big part of this fraud. The article discusses the tax consequences of identity theft and when one's tax returns become the subject of identity theft.
Antitrust columnist Elai Katz explores antitrust issues arising from litigation over mergers in 2016: the Federal Trade Commission's challenge to a hospital merger in Pennsylvania and the Department of Justice lawsuits to block a pair of health insurance mergers. The antitrust agencies also brought enforcement actions directed at corporate entanglements, alleging violations of premerger notification and interlocking directorate statutes.
In his Cyber Crime column, Peter A. Crusco of the Office of the Queens County District Attorney discusses cases that illuminate the challenges courts face in warrant litigation concerning jurisdiction of interception of cell phone communications, and their methodology in resolving these matters involving evolving digital communications technologies.
Michael R. Huttenlocher, of McDermott Will & Emery, discusses the movement toward appraisal actions. Recently, Delaware corporations have experienced an increase in appraisal actions, a tool of activist shareholders who believe their shares have been undervalued in a merger transaction. Given the success that shareholders have had enforcing their appraisal rights in Delaware courts, New York-based companies may also be targeted for appraisal actions. The article examines the law in New York and Delaware.
Copyright Law columnists Robert J. Bernstein and Robert W. Clarida examine the law of statutory damages, in light of the Ninth Circuit's decision in 'Friedman v. Live Nation Merchandise', which considered, inter alia, two issues greatly affecting the amount of statutory damages: willfulness, and the number of separate awards available for downstream infringements.
Estate Planning and Philanthropy columnist Conrad Teitell takes a cue from the presidential election headlines to explore tax deductions for charitable giving. Suppose a donor had paid $5 million to a charity if Donald Trump released his tax returns or if Secretary Hillary Clinton released transcripts of her speeches. Answer: Trump and Clinton would each have $5 million includible in gross income for services rendered. The donor made an offer, and the offer was accepted by performance of the act.
F. Paul Greene, of Harter Secrest & Emery, explains the draft regulations published by the New York State Department of Financial Services addressing cybersecurity in the financial sector. Described as "first in the nation," the draft regulations are sweeping in scope and reach well beyond core financial institutions, such as banks and lenders.
Commercial Division Update columnists George Bundy Smith and Thoms J. Hall discuss spoliation and recent Commercial Division cases clarifying the scope of a litigant’s duty in the electronic discovery context and the sanctions imposed for a failure to preserve electronically stored information.
Allison Schoenthal and Gregory Lisa, of Hogan Lovells, analyze the D.C. Circuit's sweeping ruling on Oct. 11 against the Consumer Financial Protection Bureau, holding that the independent single-director model was constitutionally impermissible. While they note the circuit court's constitutional holding was noteworthy—the CFPB director will now serve at the direction of the president, and the next president will be able to immediately choose the next bureau director rather than wait until the current term expires in 2018—they also point out that the court's separation of powers ruling may not have a far-reaching impact on bureau proceedings in the short term. In fact, the court's other substantive rulings may more dramatically shape future and pending CFPB enforcement actions.
Appellate Division Review columnists E. Leo Milonas and Andrew C. Smith highlight two insurance law decisions addressing issues of first impression, as well as a case finding that pistol permit holders' names and addresses are public records and subject to disclosure of identity under the Freedom of Information Law absent individualized exceptions.
Securities Regulation columnist Roberta S. Karmel provides perspective on the Securities and Exchange Commission's use of administrative proceedings. The administrative proceeding as in-house forum has been in existence since the SEC was created, she writes, but until very recently was used only for cases against registered entities in the securities business, and their associated persons, and accountants and lawyers. However, the Dodd-Frank Wall Street Reform and Consumer Protection Act gave the SEC expanded authority to impose civil monetary penalties against persons associated with unregistered entities so that such proceedings could be brought before a SEC ALJ.
Christopher A. Gorman, of Westerman Ball Ederer Miller Zucker & Sharfstein in Uniondale, points out that a number of recent decisions of the Appellate Division, Second Department, may cause lenders to re-think the arrangement by which a loan servicer that is not a party to the foreclosure action acts on behalf of a lender in overseeing and managing mortgage foreclosure litigation. Indeed, the court has held that documents and information attached to an affidavit of a representative of a loan servicer are inadmissible unless the loan servicer’s representative can attest to being familiar with the record-keeping practices and procedures of the lender (i.e., the plaintiff in the foreclosure action).
New York Court of Appeals Roundup columnists Roy L. Reardon and William T. Russell Jr. discuss the significance of the Court of Appeals' decision that brings New York State in line with an increasing number of states in expanding the rights of single-sex parents with respect to child custody and visitation rights and in recognizing the evolution in the concept of "family" that has occurred in recent decades. The decision is a rare instance in which the court overturned its own earlier interpretation of a statute—something the court generally does only when the precedent was "contrary to the legislative purpose underlying the statute unworkable or impose[d] hardship on litigants or the trial courts."
Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg offer practical insights into defenses under CPLR Article 16, which substantially changed the consequences of joint and several liability 30 years ago. The change meant that the liability for non-economic loss of a "deep pocket" defendant found 50 percent or less at fault could be limited to that defendant's equitable share as determined by the jury. In terms of strategy, Article 16 should be asserted as an affirmative defense in the Answer in order to ensure the hospital's right to seek the apportionment at trial, and prevent any claim of surprise by the plaintiff and an argument that the defendant should be prevented from proving the defense at trial.
Southern District Civil Practice Roundup columnists Edward M. Spiro and Judith L. Mogul discuss a decision earlier this year by Southern District Judge Katherine B. Forrest ordering disclosure of litigation-related communications with a public relations firm. That decision surveys the relevant case law and underscores both the substantive and procedural requirements for maximizing the chances that such communications will not be delivered into the hands of a litigation adversary.
In her Internet Issues/Social Media column, Shari Claire Lewis discusses the recent Sixth Circuit decision in 'Galaria', which adopted a broad view of "injury-in-fact" for purposes of standing under Article III of the U.S. Constitution to bring privacy claims under diverse theories of recovery. It remains to be seen whether the Second Circuit will agree, but plaintiffs' lawyers are likely to argue that 'Galaria' opened the door to standing, which could result in the courts being flooded with privacy claims.
Frances K. Browne, a partner with Brody & Browne, examines a significant Second Circuit decision related to the "cat's paw" doctrine—a theory of liability whereby an employee may prevail on a discrimination claim if the decision-maker harbors no unlawful animus but unwittingly relies on input from an employee with such intent. The Second Circuit has now extended the doctrine to retaliation claims under Title VII and the New York State Human Rights Law and to situations in which a co-worker, rather than a supervisor, is the bad actor. In so doing, the court addressed issues of first impression and adopted a negligence-based approach to "cat's paw" liability.
Complex Litigation columnist Michael Hoenig brings to light an article examining the results of two sizable studies gauging the relative effectiveness of Daubert motions challenging the reliability of proffered experts. 'Daubert v. Merrell Dow Pharmaceuticals' ushered in a robust era of judicial "gatekeeping" and required that scientific expert testimony had to be "not only relevant but reliable."
Franchising columnist David J. Kaufmann offers a look at judicial decisions promulgated over the past year (two involving cases of first impression) clarifying and addressing: the rights and responsibilities of franchisees under the Americans with Disabilities Act; the antitrust implications of a franchisor heeding a franchisee's request that another franchise not be renewed; and how a New York Franchise Act statutory fraud claim must be addressed.
Joshua Sohn and Shauneida Navarrete, of Watson Farley & Williams, take note of two recent orders of the SEC signaling that it is paying particular attention to attempts by companies to prevent former employees from whistleblowing and reporting securities violations through restrictive covenants contained in severance agreements. These agreements do not prevent an employee from contacting a government agency, but effectively remove the financial incentives for doing so.
International Arbitration columnist John Fellas discusses the recent decision of 'Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v. Pemex-Exploración Y Producción' in which the Second Circuit affirmed a judgment of the Southern District of New York confirming an arbitration award rendered in Mexico, even though that award had been vacated by a Mexican court. In doing so, the Second Circuit articulated a cogent analytical framework for courts addressing the question of whether to confirm awards that have been vacated at the arbitral seat.
Yulian Shtern and Elizabeth Kase, of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, take a close look at the Department of Health's August 2016 report on the progress and challenges of the state's medical marijuana program nearly two years after it was enacted into law. The report points to several successes such as 5,000 patients who have been served while recommending measures to increase physician participation, among other things.
No-Fault Insurance Law Wrap-Up Columnist David M. Barshay examines key decisions relating to the tolling of interest, where misrepresentation of military status is a precludable defense and policy cancellation.
Chaim A. Levin, the Americas General Counsel of the Tradition Group, discusses the new Department of Labor regulations that will take effect on Dec. 1, 2016, pointing out that they do not precisely resolve the present overtime eligibility debate; the absence of clarity remains a material issue especially with respect to highly compensated individuals or large groups of employees that are not easily classified.
Arbitration columnists Samuel Estreicher and Holly H. Weiss discuss the sexual harassment lawsuit by Fox News personality Gretchen Carlson in New Jersey state court against Roger Ailes, then chairman and CEO of Fox News, in terms of how the case raised issues regarding the enforcement of arbitration agreements by non-signatories to those agreements.
Real Estate Securities columnist Peter M. Fass describes "best efforts" offerings, in which the broker-dealer acts as the agent of the issuer in attempting to sell the units directly from the issuer to the investors. Best efforts offerings frequently are made on an "all or none" or "part or none" (minimum-maximum) basis. In an "all or none" offering, all of the units must be sold during the specified offering period or the subscriptions must be promptly returned to the investors by the issuers. In a "part or none" offering, the designated minimum amount must be sold within the specified time or subscriptions returned to investors by the issuers.
Paul M. Hellegers and Wojciech Jackowski, partners at Menaker & Herrmann, explore the expanding liability for damage during excavation activities, where historically only an owner/developer and the excavator were at risk of being held strictly liable. Recent case law developing in the First and Second Departments, however, has dangerously broadened the range of project participants on whom such liability may be imposed—regardless of their fault or negligence—to encompass various design professionals involved with the construction project where excavation is performed, e.g., architect of record, structural engineer, excavation engineer.
Ethics and Criminal Practice columnist Joel Cohen examines cases, strategies and ethical considerations related to prosecutorial discretion, pointing out that cases that actually find the government abused its authority are rare in large part because the U.S. Supreme Court has set a very high bar.
George M. Heymann, of counsel to Finz & Finz and director of the Housing Legal Clinic at Woodside on the Move, addresses the question of the meaning of the word 'reside' in determinations of liability for lead-based paint. In 'Yaniveth R. v. LTD Realty Co.', the Court of Appeals had to decide whether a child who spends at least 50 hours per week with a caregiver, in an apartment containing lead-based paint, but does not live there full-time, "resides" in the apartment to "trigger" a duty on the owner/landlord to protect the child from lead poisoning and be held liable for damages if such poisoning occurs.
In their Privacy Matters column, Richard Raysman and Peter Brown write: Given the recency of the Part 107 Rules—which are designed to expand drone use—pertinent precedents are nonexistent. However, prior to the Rules, the opinion issued in 'Huerta' confirmed that the beginning of the intersection between the law and the seemingly infinite potential of drones is in its infancy.