Expert Analysis

Thomas A. Dickerson and Leonard B. Austin

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

By By Thomas A. Dickerson and Leonard B. Austin |
Conrad Teitell

In Wake of Ebola Crisis, Reviewing Donation Programs

By Conrad Teitell |

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

Joseph E. Bachelder III

Tying Incentives of Executives to Long-Term Value Creation

By Joseph E. Bachelder III |

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

David I. Miller and Ryan D. Nassau

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

By David I. Miller and Ryan D. Nassau |

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

George Bundy Smith and Thomas J. Hall

Lack of Marketability Discounts In Statutory Fair Value Proceedings

By George Bundy Smith and Thomas J. Hall |

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

Roberta S. Karmel

Reviewing Definition of Accredited Investor

By Roberta S. Karmel |

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

Edward M. Spiro and Judith Mogul

Practical Observations by Judges on the Scope of Discovery

By Edward M. Spiro and Judith L. Mogul |

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

Jill Mariani

Grand Jury Calls for Reforms to Curb Fraud in State Program

By Jill Mariani |

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

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

Separate Entity Rule and Extraterritorial Discovery

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

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

Roy L. Reardon and William T. Russell Jr.

Bankruptcy Case Involving Rent-Stabilized Lease

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

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

Jay Goldberg

Grand Jury Is Not Essential to our System of Justice

By Jay Goldberg |

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

David J. Kaufmann

Menu Labeling Requirements of the Affordable Care Act

By David J. Kaufmann |

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

Shari Claire Lewis

Court of Appeals Rejects Claim of Internet-Based Jurisdiction

By Shari Claire Lewis |

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

John L.A. Lyddane and Barbara D. Goldberg

Hospital Liability for Private Patients

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

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

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

Violations of SPE Covenants After 2008: Borrowers Beware

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

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

Ben Rubinowitz and Evan Torgan

Cross-Examining the Mistaken Witness

By Ben Rubinowitz and Evan Torgan |

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

Sidney Kess

Business Driving: Tax Rules and Consequences

By Sidney Kess |

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

Paul I. Marx

CPLR 321 Representation Conundrum

By Paul I. Marx |

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

Joseph Lipari

Financing Plan Did Not 'Sweep' Away Sales Tax Liability

By Joseph Lipari |

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

Harvey M. Stone and Richard H. Dolan

Relief in Hurricane Sandy Cases Over Insurer's Actions

By Harvey M. Stone and Richard H. Dolan |

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

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

Going-Private Transactions and Business Judgment Rule

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

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

In 2014, Has the Workplace Improved?

By Wendi S. Lazar |

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

Abby Tolchinsky and Ellie Wertheim

Do Separate Meetings Between Neutrals and Parties Help?

By Abby Tolchinsky and Ellie Wertheim |

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

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

Cybersecurity: Business Imperative for Law Firms

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

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

Sarah S. Gold and Richard Spinogatti

Applying Delaware's Direct vs. Derivative Analysis

By Sarah S. Gold and Richard L. Spinogatti |

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

Joel Cohen

Constraining Opinions and the Ethics of 'I Believe'

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Whether couched in "I am telling you" or "I know" or "I guarantee" or other similar language, the fundamental rule—that a lawyer must not insert her opinion into the proceedings—is found not only in civil and criminal case law, but is a matter of black letter pronouncement. But can't an argument be made that is precisely what lawyers should do in order to fiercely advocate for the client? In a word, "no," and for myriad reasons.

Randall M. Fox

Presenting a False Claims Act Case: Back to Basics

By Randall M. Fox |

Randall M. Fox writes: With the growing number of False Claims Act filings and the scarce resources of the government, there is a premium on presenting whistleblower cases effectively so government attorneys can quickly recognize the strength of the case and pursue it promptly. Whistleblowers' counsel are well advised to do the up-front work to make their cases more attractive to the government, thereby increasing the likelihood of intervention.

Shepard Goldfein and James A. Keyte

Merger Review at FTC and Department of Justice

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write that with both Houses of Congress under Republican control, commentators are predicting that the SMARTER Act is likely to pass, harmonizing the FTC's authority to review and challenge mergers with that exercised by the DOJ.

Richard Raysman and Peter Brown

Recent Legal Consequences for Spyware Users

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman, a partner at Holland & Knight and Peter Brown, the principal at Peter Brown & Associates, discuss cases involving spyware in which plaintiffs allege a distinct variety of causes of action.

Michael Hoenig

Product Warnings Litigation: Fixing What's Wrong

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: A law review article by professors Aaron D. Twerski and James A. Henderson Jr. is about to be published in the Indiana Law Journal, and it merits serious attention by the bench and litigation bar. Provocatively titled, "Fixing Failure to Warn," the noted authors once again reveal serious ills in the current system of warnings litigation and provide a logical, simple "fix" that is analogous to a widely accepted construct in product design litigation.

Ilene Sherwyn Cooper

Revisiting 2014: Cases That Shaped Surrogate's Court Practice

In her Trusts and Estates Update, Ilene Sherwyn Cooper discusses a myriad of decisions over the past 12 months involving fees incurred by multiple fiduciaries, the presumption of due execution accorded an attorney-supervised will execution, the removal of a fiduciary, the meaning of "tangible personal property," and more.

Geoffrey Sant

'Aerospatiale' Factors on Discovery in Violation of Foreign Laws

By Geoffrey Sant |

Geoffrey Sant writes: What could be worse for a litigant than being ordered by a court in one country to violate the law in another country? This strange scenario has become surprisingly common within the Second Circuit over the past decade.

Richard Strassberg and William Harrington

Challenges to Administrative Adjudication of Fraud Claims

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington discuss two lawsuits filed in October that challenge the SEC's use of administrative courts. In both cases the plaintiffs complain at length about the advantages the SEC enjoys in the administrative process and imply that their particular case involves an example of the SEC overreaching. But their legal arguments focus on the extraordinary authority and discretion that SEC administrative law judges enjoy.

John P. Furfaro and Risa Salins

Important Developments for Federal Contractors

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins write: With a recent string of Executive Orders signed by President Barack Obama and new rules published by the Department of Labor regarding employment practices of federal government contractors and subcontractors, it may seem overwhelming to keep track of all the new requirements.

Lainie R. Fastman

Trusts' Principal and Income: An Attempt at Fairness

By Lainie R. Fastman |

Lainie R. Fastman writes: Notwithstanding New York's careful guidance to trustees in delineating which items such as dividends and rents are to be defined as "income" and which are to be defined as "principal," a trustee may be faced with baffling choices, because the administration of a trust concerns parties with differing interests, income beneficiaries and remainder beneficiaries. Counsel's task in giving client and accountant suitable instructions is considerably more difficult than adherence to the simple and straightforward principles of principal and income.

Christopher Dunn

Police Killings of Unarmed Black Men: Why So Few Federal Prosecutions?

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: Time and again, local grand juries decline or refuse to indict police officers who have killed or severely injured unarmed black men. Against that background, the Brown, Garner, and Gurley deaths have prompted repeated calls for the federal government to prosecute the responsible officers.

Maureen A. Ruane and David M. Wissert

Listening to Employees to Lessen Government Scrutiny

By Maureen A. Ruane and David M. Wissert |

Maureen A. Ruane and David M. Wissert write: While companies may feel helpless to stem the tide of suits by whistleblowers, there are steps that companies can and should take to lessen the chances of being named as a defendant in a qui tam suit and thereby lessen the chances of being subjected to the glare of government scrutiny.

Michael J. Hutter

Admissibility of Prior Consistent Statement

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter discusses the difference in treatment of a witness' prior consistent statement under New York law, where it is admissible solely for rehabilitative purposes, and even then only when the witness' trial testimony has been attacked as a recent fabrication and the statement predated the charged motive to falsify, and federal law, which treats such statements more liberally for admissibility purposes.

Peter M. Fass

Proposed Amendments on Regulation 506 Offerings

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass writes: In a series of changes intended to enhance the SEC's ability to evaluate market practices in Rule 506 offerings and to address issues that may arise with general solicitations and general advertising the SEC has proposed rule and form amendments

Robert J. Anello and Richard F. Albert

Missing Fish, Obstruction Statute and Prosecutorial Discretion

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert discuss 'Yates v. United States', the peculiar case of a fisherman prosecuted for obstruction of justice under Section 1519 of the Sarbanes-Oxley Act for throwing undersized fish back into the sea, and the questions it raised in the Supreme Court about prosecutorial discretion in making charging decisions, often against the backdrop of broad and uncertain criminal statutes.

David I. Miller and Brianna Abrams

Combating Terrorist Financing

By David I. Miller and Brianna Abrams |

David I. Miller and Brianna Abrams outline the laws and regulations that govern financial institutions often-unwitting role in terrorist financing, discusses recent civil and criminal action in this area, and offers suggestions to try and avoid the crosshairs of government authorities and private litigants.

Thomas A. Moore and Matthew Gaier

Recent Decisions on Liability to Non-Patients

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write that generally, there must be a physician-patient or a hospital-patient relationship for a legal duty of care to exist, upon which liability may be founded. However, the courts have found that under certain circumstances a duty may exist to persons who are not patients.

Peter E. Bronstein

Sealing a Leaky Domestic Relations Law 235

By Peter E. Bronstein |

Peter E. Bronstein writes: It is time that we expand the protection of parties' privacy in matrimonial actions beyond the duty of the clerks to seal the files. It is impossible to get divorced without commencing a court proceeding. Since only a judge can pronounce a divorce and the rules require extensive financial disclosure, the court should also undertake to preserve the privacy of that material.

H. Christopher Boehning and Daniel J. Toal

Proportionality: Rarely Used, Primed for a Return?

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss a rare written decision limiting discovery under the proportionality rule set forth in Fed. R. Civ. P. 26(b)(2)(C)(iii) and proposed amendments that involve moving the proportionality rule up from its current position in 26(b)(2) to 26(b)(1).

Elizabeth McNamara and Samuel M. Bayard

FAA Should Step Aside and Let Drone Journalism Take Off

By Elizabeth McNamara and Samuel M. Bayard |

In their Media Law column, Elizabeth McNamara and Samuel M. Bayard write: Without doubt, drones can create legitimate safety concerns, but those concerns need to be balanced with, and should not obstruct, legitimate newsgathering. Yet federal regulations severely hamper this potential method of newsgathering without substantial justification or public input. The Federal Aviation Administration should not act with a club, but instead with a chisel.

Robert B. Gibson and Jesse D. Capell

Social Media and Jury Trials: Where Do We Stand?

By Robert B. Gibson and Jesse D. Capell |

Robert B. Gibson and Jesse D. Capell write: Social media research of potential and empaneled jurors is an area of the law that is constantly evolving. A succession of ethical opinions and trial court decisions have answered some questions and raised new ones.

Jeffrey S. Klein and Nicholas J. Pappas

Employment Law Implications of the Ebola Threat

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas examine the specific legal issues employers may face in industries with a higher risk of exposure to Ebola, when employees travel to areas with widespread Ebola infections, or when employees take adverse action against coworkers based on national origin- or race-based stereotypes.

Martin Flumenbaum and Brad S. Karp

Attempts to Intervene in Stop-and-Frisk Case Rejected

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp discuss 'Floyd v. City of New York', in which the circuit affirmed a district court order denying a motion by a group of police unions to intervene in New York City's "stop-and-frisk" settlement.

Charlotte A. Biblow

Agency Proposes Plan to Manage Aquatic Invasive Species

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow addresses the New York State Department of Environmental Conservation's draft of a plan seeking to prevent the introduction and spread of aquatic invasive species (AIS) in the state. The author discusses the extent of the AIS problem in New York and then explores the most significant strategies contained in the draft plan, especially its proposed legislative and regulatory aspects.

Robert S. Kelner and Gail S. Kelner

Discovery of Social Media Accounts—Current Case Law

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss the two-prong analysis courts generally use in determining whether to compel the production of the contents of social media accounts, the frequent need for an in camera review to limit disclosure to what is material and relevant, and court reactions to overly broad demands.

Robert C. Scheinfeld

U.S. Supreme Court Takes on More Intellectual Property Cases

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: The U.S. Supreme Court had a busy 2013-14 term, especially when it came to patent cases, granting a record-breaking six writs of certiorari, and this year's term promises to be even busier.

Daniel B. Goldman and Adam W. Braveman

'Motorola,' the Separate Entity Rule and 'Koehler'

By Daniel B. Goldman and Adam W. Braveman |

write: Pursuant to the Court of Appeals' recent ruling in 'Motorola', New York law is now settled, and the separate entity rule is here to stay. The decision, however, may result in a significant limitation of 'Koehler v. Bank of Bermuda,' despite the court's attempt to distinguish its holding in 'Motorola', particularly with respect to funds held in foreign bank accounts.

Francis J. Serbaroli

New York Revises Certificate-of-Need Review Requirements

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli discusses the Department of Health's recent revisions to New York's Certificate-of-Need regulations. He notes that these revisions should assist hospitals and other licensed facilities in their efforts to consolidate and modernize.

Lawrence Jay Braunstein, Lyn R. Greenberg and Arnold T. Shienvold

Role of Mental Health Professionals in Child Custody Cases

By Lawrence Jay Braunstein, Lyn R. Greenberg and Arnold T. Shienvold |

Lawrence Jay Braunstein, Lyn R. Greenberg and Arnold T. Shienvold write: Mental health professionals have long been involved with divorcing families, but recent years have seen an increase of sophisticated service models, along with some controversy about them. It is important for attorneys to be familiar with qualified professionals, the benefits they can offer to clients, ethical obligations of such professionals and potential controversies.

Adam R. Shaw

Attorney Disqualification and Opposing Summary Judgment

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw discusses a pair of recent decisions that address thorny issues that often confound even seasoned practitioners: the rules for attorney disqualification and the role of evidentiary rules in summary judgment.

Ken Strutin

The Odyssey of Truth: Actual Innocence and Reinvestigation

By Ken Strutin |

In his Criminal Law column, Ken Strutin, the director of legal information services at the New York State Defenders Association, writes: A wrongful conviction can be concealed by a plea, a trial and especially the unforgiving barriers to post-conviction review. The U.S. Supreme Court's tentativeness in recognizing actual innocence illustrates the slow pace of progress. But the landscape has begun to change. The newest information channels in pursuit of justice are free standing actual innocence and reinvestigation.

Glen Banks

Court of Appeals Addresses Meaning of 'Affiliate'

By Glen Banks |

In his Contract Law column, Glen Banks writes: A contract may provide that a right or obligation will be triggered by an action of, or receipt by, an "affiliate" of a signatory. Should the term "affiliate" mean only those affiliates that exist at the time of contracting? Or, does it include affiliates that come into existence after the execution of the contract?

Lawrence W. Newman and David Zaslowsky

Refusing to Enforce Foreign Judgments

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky write: Although the United States is not a party to any judgment enforcement treaty, courts in this country regularly enforce foreign judgments. Indeed, if jurisdiction in the foreign court is proper and service of process was accomplished appropriately, the expectation should be that the foreign judgment will be enforced. In the past few months, however, there have been two noteworthy cases in which enforcement of foreign judgments was refused.

Howard S. Jacobowitz and Diane K. Kanca

'Grace v. Law' Sets New Standard in Legal Malpractice Cases

By Howard S. Jacobowitz and Diane K. Kanca |

Howard S. Jacobowitz and Diane K. Kanca discuss the background of and decision in 'Grace v. Law', where the Court of Appeals held that failure of the plaintiff to appeal an underlying adverse ruling does not bar a subsequent legal malpractice claim, unless the attorney-defendant can prove that plaintiff would have been "likely to succeed" in his appeal.

Developments in 2014 on Dissolutions and Sales

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi analyzes some of 2014's important determinations involving "claw-back" claims against former partners by the trustee in the bankruptcy of Dewey & LeBoeuf, the tensions between the rule allowing the sale of a law practice and the one limiting the sharing of attorney fees among attorneys who are not associated, and more.

Norma B. Levy and Elisabeth R. Curzan

HUD's Disparate Impact Rule for Homeowners Insurance

By Norma B. Levy and Elisabeth R. Curzan |

Norma B. Levy and Elisabeth R. Curzan discuss the ongoing battle between the insurance industry and the Department of Housing and Urban Development over HUD's authority to adopt a disparate impact rule for the provision of homeowners insurance, which the U.S. Supreme Court seems likely to take up in the not too distant future.

Jeremy H. Temkin

Redefined Role of Profit in Economic Substance Doctrine

By Jeremy H. Temkin |

In his Tax LItigation Issues column, Jeremy H. Temkin writes that the IRS has long challenged attempts by taxpayers to reduce their tax liability by executing transactions that lack economic substance, a doctrine that has been applied by many courts to transactions that carry no reasonable possibility of generating a profit. A recent decision suggests that courts are changing their views.

Detroit, Mich.

Detroit, General Motors and Other High-Profile Cases

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger discusses the historic confirmation of the City of Detroit's plan of reorganization and the status of litigation that brought General Motors back before the bankruptcy court, along with the potential sale of Energy Future Holdings' stake in Oncor Electric and the successful sale of substantially all of Natrol Inc.'s assets.

Richard A. Klass and Elisa S. Rosenthal

Enforcing Judgments Against Bank Accounts Held Outside N.Y.

By Richard A. Klass and Elisa S. Rosenthal |

Richard A. Klass and Elisa S. Rosenthal discuss factors that both federal and state courts in New York have considered in determining whether or not assets held in another state can be used to satisfy a New York judgment, including the separate entity rule, jurisdiction and the type of proceeding.

Steven R. Schindler and Katherine Wilson-Milne

Questioning 'Cariou' Rationale on Transformative Fair Use

By Steven Schindler and Katherine Wilson-Milne |

Steven Schindler and Katherine Wilson-Milne write: On Sept. 15, the Seventh Circuit in 'Kienitz v. Sconnie Nation' delivered a rebuff to the Second Circuit's controversial copyright "fair use" holding in 'Cariou v. Prince'. As the Kienitz court suggested, the Cariou holding diverges substantially from the language of the Copyright Act of 1976, expands the reach of the precedents on which the holding relies, and directly conflicts with one of the exclusive rights granted to a copyright holder—the right to make derivative works.

Roy L. Reardon and William T. Russell Jr.

Legal Malpractice Claim, Defamation, Separate Entity Rule

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

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases involving the preservation of a legal malpractice claim and when a statement represents an assertion of fact or opinion for purposes of a defamation claim, along with a recent decision with implications for New York's status as a global financial center.

Paul F. Millus

Executive Orders: Constitutional Underpinnings and Legality

By Paul F. Millus |

Paul F. Millus discusses the history of executive orders and the issues associated with the president's power to issue executive orders mandating inaction in deportation decisions, which have never been more pronounced than they are today.

Treatment of Income for Married Individuals Receiving Home Care

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish discusses "spousal impoverishment protection" and "pooled income trust," the two methods of calculating the treatment of income for a married Medicaid applicant who is seeking home care.

Stephen M. Kramarsky

'Fox News v. TVEyes': Exploring the Limits of Fair Use

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, discusses a recent case in the Southern District of New York that shows just how critical transformative use can be. The decision came down to one issue: Was the service innovative enough to be transformative?

Michael D. Patrick

Crisis of Unaccompanied Immigrant Minors Moves to the Courts

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: Months after the border surge has abated somewhat, the need for counsel extends far beyond detention centers. Unaccompanied immigrant children populate large cities across the United States, and increasingly the need for counsel has moved to the nation's immigration courts, where the backlogs that have plagued that system for many years have been exacerbated by the growing docket of deportation cases involving juveniles.

Steven Kobre and Leanne Bortner

Internal Investigations and Multinational Organizations

By Steven Kobre and Leanne Bortner |

Steven Kobre and Leanne Bortner write: A corporate entity operating in multiple countries and regions is constantly confronted by conflicting rules in various jurisdictions. Particularly with respect to privilege and attorney work-product protections, what may be beyond the scope of discovery in one country can be discoverable in another.

Sidney Kess

Looking Ahead to 2015's Changing Tax Landscape

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes that while the midterm election gave the majority of the Senate to the Republicans, who also retained control of the House, this won't automatically bring tax certainty for 2014 and the coming year. Congress must address expired tax rules for 2014 as well as tax reform.

Thomas F. Gleason

New Rule Requires Redaction or Omission of Information

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason writes: Hardly a day goes by without a new hacking or computer intrusion news story. Identity thieves exercise extraordinary ingenuity to obtain personal information, and court files, with detailed information on the parties and others, remain a logical target. A new section of the Uniform Civil Rules of the Supreme and County Courts will address this risk.

Max W. Gershweir

Choice of Law Uncertainty in Additional-Insured Disputes

By Max W. Gershweir |

Max W. Gershweir writes: While the New York courts adopted choice-of-law rules governing liability insurance policies that seemed to offer an easy way of determining which state's law applies where an insured business operates in multiple states, two recent cases from the First Department have thrown that conclusion into doubt, at least where the party seeking coverage is an additional insured covered for liability arising out of work performed for it by the named insured.

Myth of the Intoxicated but Victorious Plaintiff

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot writes: Myth is often more compelling than fact, particularly when the myth plays to our misconceptions. So, is it true, as New York Labor Law §240 reformers have claimed, that "several courts have held that a plaintiff's intoxication at the time of the incident cannot constitute a defense to a Scaffold Law claim"? The answer is, in a word, No.

John Rapisardi and Joseph Zujkowski

Revisiting Key Issue for Directors of Insolvent Entities

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: Earlier this month, the Delaware Chancery Court further clarified its position on the fiduciary duties of officers and directors of insolvent Delaware corporations. Specifically, in 'Quadrant Structured Products Company v. Vertin,' the Chancery Court dismissed certain derivative claims brought by a creditor on behalf of Athilon Capital Corp. alleging breach of fiduciary duties by the company's non-independent directors.

Joseph F. Donley and Michael M. Rosenberg

Vagaries of Particularity: New York CPLR 3016(b)

By Joseph F. Donley and Michael M. Rosenberg |

Joseph F. Donley and Michael M. Rosenberg write that in federal practice, the familiar FRCP 9(b) provides a reliable bulwark against the "in terrorem or stigmatizing effect on defendants and their reputations" of loosely pleaded fraud claims. But its state counterpart, CPLR 3016(b), has been applied inconsistently, and some leading commentators have even questioned the viability of a heightened pleading standard on fraud claims.

New Statute Requires State Agencies to Consider Climate Risks

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard writes that New York has moved into the front rank of states in legally mandating that future climate change be considered in decisions by state agencies. The Community Risk and Resiliency Act merely requires consideration of climate change; it does not demand any particular outcome. However, it makes climate impacts an important part of the decision-making process, much as nearly 40 years ago SEQRA made environmental considerations an important part of many state and local processes.

Kathleen A. Scott

OCC Approach to Supervision of U.S. Offices of Non-U.S. Banks

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott discuss a recent paper from the Office of the Comptroller of the Currency that provides an overview of its approach to regulating federal branches and agencies of non-U.S. banks, and another OCC issuance regarding its revised process for managing supervisory issues of concern arising out of examinations, including those of federal branches and agencies of non-U.S. banks.

Congress Exempts Condominiums From Interstate Land Sales Act

By Vincent Di Lorenzo |

Vincent Di Lorenzo discusses the law, enacted on Sept. 26, that exempts condominium developers from the registration and disclosure requirements of the Interstate Land Sales Full Disclosure Act, although it is unclear whether the new law will be interpreted as exempting developers from compliance with the act's contractual requirements.

Lewis R. Clayton and Eric Alan Stone

Business Methods, Fair Use, Patent Evidence, Lanham Act

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone review recent cases involving the Supreme Court's test for patentable subject matter and how it has led to dismissal of infringement claims based on business method patents; when post-invention evidence can demonstrate an invention is not obvious; and whether the flavor of eggplant parmesan or its plating can acquire secondary meaning under trademark law.

C. Raymond Radigan, John G. Farinacci and Jennifer F. Hillman

The Right of Election and Tax Apportionment

By C. Raymond Radigan, John G. Farinacci and Jennifer F. Hillman |

In their Trusts and Estates Law column, C. Raymond Radigan, John G. Farinacci and Jennifer F. Hillman write that at a minimum in New York, a surviving spouse is entitled to elect to receive $50,000 or one-third of the net estate outright by exercising what is known as the right of election. The public policy is fairly straightforward; however, the logistics of calculating the elective share and the correlating tax consequences of that election can be complex.

Joel C. Haims, James J. Beha II and Jonathan Rothberg

Applying Anti-Discrimination Law to Public Accommodations

By Joel C. Haims, James J. Beha II and Jonathan Rothberg |

Joel C. Haims, James J. Beha II and Jonathan Rothberg discuss a notable recent decision in which Southern District Judge Denise Cote held that the U.S. Tennis Association was not obligated to adjust the schedule for an amateur tennis tournament to accommodate the religious observance of Orthodox Jewish competitors.

Hal R. Lieberman

Recent Developments in Disciplinary Case Law

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman comments on a number of noteworthy disciplinary decisions from the past year, including an unusual indefinite suspension for a lawyer who disregarded his biennial registration obligations, and two decisions noteworthy for their leniency with respect to conduct which that court had traditionally treated far more harshly.

Lorca Morello

Troubling Interpretation of Sex Offender Registration Statute

By Lorca Morello |

Lorca Morello writes that the Court of Appeals, in 'People v. Gillotti', held that anyone convicted of possessing multiple images of child pornography has multiple "victims" under the Sex Offender Registration Act and therefore presents the same future risk to public safety as someone who has sexually assaulted multiple children, a view which, as the dissent said, "is more likely to produce emotional satisfaction than to protect any children."

Shepard Goldfein and James A. Keyte

Auto Parts and Antitrust: A Cautionary Tale

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: In September 2011, the Department of Justice formally announced the first settlement in its investigations into an international automobile parts price-fixing and bid-rigging conspiracy. In the three years since, the DOJ has continued the auto parts investigations, charging more than 30 individuals and 27 companies with antitrust violations, collecting more than $2.3 billion in fines, and demonstrating its resolve in ferreting out bid-rigging, customer allocation and price-fixing across a wide range of industries.

Evan H. Krinick

State Legislatures Tackle Insurance Fraud

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick reviews laws state legislatures across the country have passed this year defining insurance fraud, prohibiting payments to "steer" clients or patients for the purposes of obtaining benefits under an insurance policy, allowing insurers to cancel policies if the applicant misrepresented certain information, and more.

Benjamin Zelermyer and Jeffrey G. Steinberg

An Insured's 'Right' to 'Independent' Counsel

By Benjamin Zelermyer and Jeffrey G. Steinberg |

Benjamin Zelermyer and Jeffrey G. Steinberg write: If an insurer reserves its right to deny coverage, even while agreeing to defend an insured against a third party's claim, or denies coverage for a loss while accepting the duty to defend the insured, the insured has the right to be represented by defense counsel chosen by the insured and paid by the insurance carrier. While that principle may be simply stated, its application, not surprisingly, is more complex.

David J. Kaufmann

Disclaimers of Reliance Do Not Violate Franchise Act

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann analyzes a recent decision in which Southern District Chief Judge Loretta A. Preska held that franchisee disclaimers of non-reliance on purported financial performance representations allegedly furnished outside of a franchisor's Franchise Disclosure Document do not violate the "anti-waiver" provision of the New York Franchise Act.

Timothy M. Tippins

Child's Attorney as Hearsay Conduit in Custody Litigation

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: Standing at the very core of evidentiary doctrine is the rightly vaunted rule against hearsay, an essential bulwark against the incursion of unreliable information into the fact-finding process. Yet, sadly, in practice, fidelity to the rule banning hearsay is far less than it ought to be.

'Abercrombie' and Title VII's Broad Definition of Religion

By Debbie Kaminer |

Debbie Kaminer discusses a case in which the U.S. Supreme Court recently granted certiorari involving a Muslim teenager's application to work at Abercrombie & Fitch and their refusal to hire her based on her wearing a hijab without notifying Abercrombie that it was for religious reasons.

Richard Siegler and Eva Talel

Flip Tax: Reducing Exposure to Federal Income Tax Liability

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write that transfer fees have become an important source of revenues for many co-ops. As such, the federal income tax treatment of such fees raises an important issue: Are these fees to be characterized and treated as income derived from shareholders or as contributions to the co-op's capital?

Thomas R. Newman and Steven J. Ahmuty Jr.

'Multiple Claims' for Federal Partial Final Judgments

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. review the Second Circuit's recent decision in 'Acumen Re Management Corp. v. General Security National Insurance Co.,' which contains a very informative analysis of the "multiple claims" requirement for partial final judgments pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

How To Get Out of Jail (If You're Innocent)

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel reports that a recent study found a 4.1 percent wrongful conviction rate for defendants sentenced to death. If that rate applied to all prisoners, then almost 100,000 people are wrongfully imprisoned in this country. These extraordinary numbers perhaps explain a recent legal trend, relaxing the burden for criminal defendants to vacate their convictions, as in a recent Second Department decision.

Mark A. Berman

iPhones, Twitter, Deleted Emails and ESI Under CPLR 3211(A)(1)

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman writes about recent decisions that tackle an employer's remote "wiping" of an employee's personal iPhone; discovery of social media; affidavits attesting to the purported unavailability of relevant emails; and whether emails are proper "documentary evidence" under CPLR 3211(a)(1).

Elkan Abramowitz and Jonathan Sack

Corporations and Mandatory Disclosures to Government

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack discuss two trends that may make the already constrained position of companies even more difficult in terms of increased exposure to liability and reduced opportunities to mitigate the terms of settlement: expanded self-reporting obligations and increased interest by the DOJ in using the false statement statute against companies.

Interstate Land Sales Act, Fraud and Specific Disclaimers

By Thomas D. Kearns |

Thomas D. Kearns explores the benefits to condominium purchaser plaintiffs of the Interstate Land Sales Act's anti-fraud provisions over claims under New York law, and discusses potential defenses to such claims including New York's law of specific disclaimers.

Public Employees' Testimony and the First Amendment

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz writes that in 'Lane v. Franks' the U.S. Supreme Court last term held that a public employee's truthful testimony pursuant to subpoena, on a matter of public concern, given outside of his ordinary job responsibilities, was protected speech for the purpose of his §1983 First Amendment retaliatory firing claim.

Geoffrey A. Mort

NLRB McDonald's Ruling and Franchisors

By Geoffrey A. Mort |

Geoffrey A. Mort discusses the National Labor Relations Board general counsel's July ruling that McDonald's is a joint employer of those who work for its roughly 14,000 franchised restaurants in the United States, which continues to send ripples through both the legal and business worlds.

Anthony E. Davis

Internet Investigation of Jurors

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses two recent ethics opinions that address the existence and scope of a duty to conduct research about jurors, and the limitations on that duty particularly when the research is conducted online.