Expert Columns

Expert Analysis

Mark A. Berman

Decisions Address Relevance, Scope, Email and Privacy Issues

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman writes: State courts are savvy to issues concerning the discovery of ESI, and recent trial decisions offer practical and pragmatic rulings, particularly with regard to scope and relevance of discovery sought; email discovery; and privacy concerns.

Elkan Abramowitz and Jonathan Sack

Bank Secrecy Act: Why Few Individuals Are Charged

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write: In recent years white-collar criminal enforcement has been marked by a string of high-profile prosecutions of banks for violations of the Bank Secrecy Act. Notwithstanding a series of multi-billion dollar settlements, the government's enforcement efforts have met with criticism.

Derrelle M. Janey

Parallel Proceedings: Staying the Civil Action

By Derelle Janey |

Derelle Janey writes: Courts have long held there is a particular threat to a defendant's due process rights where a criminal prosecutor and a government civil enforcement agency might share information during a parallel proceeding, thereby working together to undermine a defendant's due process. Nevertheless, a stay of the civil proceeding is hardly a foregone conclusion.

Adam R. Shaw

Decisions Address Need for Precision and Promptness

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw discusses an opinion evaluating whether a forum selection clause precludes removal to federal court; another delineating when a settlement is final and enforceable; and a third discussing waiver of the affirmative defense of insufficient service of process.

Stephen Gassman and David A. Martindale

Use and Misuse of Mental Health Professionals in Custody Cases

By Stephen Gassman and David A. Martindale |

Stephen Gassman and David A. Martindale discuss a recent custody case and issues it raised involving litigant preparation by mental health professionals, the tactical problems and opportunities such preparation presents, and the ethical obligations of mental health professionals who offer such services.

Edward E. Neiger

City of Detroit Moves Ahead on Reorganization Plan

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger writes that in the months that followed the landmark December 2013 decision declaring Detroit eligible for Chapter 9 relief despite vehement opposition, Detroit engaged in discussions with its various creditor constituencies and worked to develop its plan of reorganization.

Jonathan Cooper

Decisions Spur Confusion as to Non-Competes

By Jonathan Cooper |

Jonathan Cooper writes: For several decades, New York's courts have read the seminal state Court of Appeals decision in 'Post v. Merrill Lynch' to mean that once an employee is terminated without cause from her job, her non-compete is rendered unenforceable as a matter of law. In the last two years, however, a trend has emerged where some courts in New York have pointedly declined to read 'Post' in this fashion.

Martin Flumenbaum and Brad S. Karp

Court Potentially Expands Asylum Criteria

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Paloka v. Holder,' in which the court vacated and remanded a decision by the Board of Immigration Appeals that rejected the petitioner's appeal of denial of her application for asylum, a claim that was based on her inclusion in a "particular social group."

Elai Katz

Grocery Wholesalers' Asset Swap Scrutinized

By Elai Katz |

In his Antitrust column, Elai Katz reviews developments of interest, including the Second Circuit's decision that an alleged breach of contracts to supply generic drug companies with an unbranded version of a drug did not state a monopolization claim under a duty to deal theory, an Eighth Circuit ruling involving an asset swap agreement between grocery wholesalers, and more.

Andrea M. Alonso and Kevin G. Faley

Tort Liability When Bystanders Are in the 'Zone of Danger'

By Kevin G. Faley and Andrea M. Alonso |

Kevin G. Faley and Andrea M. Alonso write that in New York, the general rule is that bystanders cannot assert a claim for negligent infliction of emotional distress. However, New York recognizes an exception to this principle: the "zone of danger" rule, which is commonly associated with automobile accidents, but has been applied in cases involving house fires, assaults and elevator accidents.

Ben Rubinowitz and Evan Torgan

Videotaping IMEs: a Corollary to Defense Surveillance

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: Our first article on the topic of secretly taping so-called "independent medical examinations" was met with wide criticism by certain members of the defense bar. However, if we are to achieve fairness in the adversarial process, and if trials are to remain reliable means of discovering the truth, then both sides must be permitted to use covert video surveillance where appropriate.

Edward M. Spiro and Judith Mogul

Shrinking Grounds for General Jurisdiction After 'Daimler'

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write that the Supreme Court's recent decision in 'Daimler v. Bauman,' calls into question whether certain long-held assumptions about the reach of New York's general jurisdiction statute are consistent with due process, and its impact is already evident in decisions from the U.S. District Court for the Southern District of New York.

Bruce M. DiCicco

Inheritance by Wrongdoers in Victims' Estates

By Bruce M. DiCicco |

Bruce M. DiCicco examines approaches taken around the country to the question of denying inheritance rights to wrongdoers who are mentally incompetent.

Peter A. Crusco

Email Searches, the SCA and the Hybrid Search Warrant

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco, executive assistant district attorney, investigations division, Office of the Queens County District Attorney, writes: Third-party entities storing treasure troves of information have been on the front line in litigation concerning the legality of disclosure of such information, and email evidence as expected has been at the center of the controversy. Recurring questions include what legal standards apply to the disclosure of customer emails stored by ISPs? Does the Fourth Amendment's particularity command prevent the seizure of a customer's entire email account?

Nativ Winiarsky

Commercial Tenants and Waiver of Real Property Law §227

By Nativ Winiarsky |

Nativ Winiarsky writes: Hidden in most standard form leases for commercial tenants is a seemingly innocuous sentence in a typically lengthy paragraph dealing with destruction to a leased space. That sentence waives the provisions of Section 227 of the New York Real Property Law—seemingly innocent enough, until one fully understands the ramifications.

Conrad Teitell

Charitable Gifts of Artworks—Report of IRS Panel

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes that charitable gifts of artworks almost always present valuation issues. An appraisal by a respected, unbiased qualified expert is key to substantiating a charitable deduction for a donated work of art. IRS has its own experts—the Art Advisory Panel.

Martin A. Schwartz

The Supreme Court's Qualified Immunity Quintet

By Martin A. Schwartz |

In his Section 1983 Litigation, Martin A. Schwartz reviews the five decisions concerning qualified immunity the U.S. Supreme Court rendered this past term, writing that while the court did not break new ground, it applied numerous important qualified immunity principles that make the decisions required reading for all §1983 litigators.

Wallace Collins

Judicial Approval of Contracts With Minors

By Wallace E.J. Collins III |

Wallace E.J. Collins III writes: Technology start-ups and other computer software companies often employ teenage whiz kids to write code or create new apps, but a minor's ability to disaffirm a contract at any time during minority or upon reaching majority may seriously jeopardize the employer's financial investment, and the "work for hire" doctrine is an uncertain path.

Robert Clarida and Robert J. Bernstein

Functionality Rulings Are Nothing to Cheer About

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein write: What do cheerleading uniforms and laminated faux-maple flooring have in common? Both have recently been the subject of dubious rulings about the copyrightability of useful articles that could, if not reversed, further muddy the already murky doctrinal waters the courts have created around this issue.

Lisa Gerson

Summer of Rule Changes in the Commercial Division

By Lisa Gerson |

Lisa Gerson writes: The past four months have seen the most changes to the Commercial Division rules of any year since the initial adoption of Section 202.70 in 2006. These changes include amendments to the jurisdictional requirements, changes to procedure, and additions to rules of discovery.

Michael Rikon

Applying Project Influence Rule in Condemnation

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon reviews a case in which the Court of Claims ordered an award on an appropriation claim which was lower than the advance payment, and the Third Department, in reversing, discussed the burden of proof when a change of zoning occurred to the property prior to the taking.

Asher B. White and Menachem White

Pitfalls of the Matrimonial Retainer Agreement

By Asher B. White and Menachem White |

Asher B. White and Menachem White write: The retainer agreement is a contract between an attorney and the client. However, in matrimonial cases, it is a force of its own. There are countless rules regarding matrimonial retainers that an attorney needs to prove were followed if he wants fees from the opposing side or from his own client.

Shari Claire Lewis

Court Addresses Bitcoin, Other Novel Online Technology Issues

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis, a partner in the Long Island office of Rivkin Radler, writes: 'United States v. Ulbricht' appears to be the first New York case to directly address Bitcoin currency—a form of virtual payment that recently has been in the news and, with other virtual currencies, is the subject of a recent advisory by the U.S. Consumer Financial Protection Bureau.

Roberta S. Karmel

Changing Face of Judicial Oversight of the SEC

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: For many years, the SEC led a charmed existence in the federal courts, rarely losing cases or having its rules invalidated. During the last quarter of the 20th century, the attitude of the federal courts changed.

Chaim A. Levin

Dodd-Frank, 'Morrison' and Global Securities Transactions

By Chaim A. Levin |

Chaim A. Levin writes: With greater frequency our courts are asked to evaluate the competing interests of foreign jurisdictions and our own ideals of what disclosure and accountability procedures need to be undertaken in a myriad of increasingly complex multinational transactions—a particularly thorny evaluation in circumstances when at least one of the principals to the transactions under review endeavored to avoid the reach of U.S. regulations.

Richard S. Fries

Commercial Division's 'Rocket Docket'

By Richard S. Fries |

Richard S. Fries describes the new rule providing for the accelerated adjudication of disputes in the Commercial Division, the manner in which it can be used, the restrictions on discovery, the agreed-upon mutual waiver of important traditional rights and protections, certain potential strategies that may come into play, and the implications on the commercial case.

Sidney Kess

Affordable Care Act Reporting and Other Developments

By Sidney Kess |

In his Tax Tips column, Sidney Kess provides an overview of new tax forms relating to the Affordable Care Act, draft versions of which have been revealed, and advises readers on who must file them.

Daniel G. Fish

Decision Expands Hardship Exception to Medicaid Denial

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes that many practitioners had dismissed as a mirage the undue hardship exception, under which Medicaid assistance will be available to a nursing home resident despite the transfer of funds within the five-year look back period. A recent decision should lead to a reexamination of the situations in which the exception is applicable.

Linda Riefberg and Joseph Dever

Compliance Officers Beware: A Firm's Failure Can Get Personal

By Linda Riefberg and Joseph Dever |

Linda Riefberg and Joseph Dever write that the SEC and FINRA currently have different approaches to Compliance Officers. The SEC requires as a threshold matter supervisory responsibility over other individuals. FINRA, on the other hand, is satisfied if the compliance professional has supervisory responsibilities over businesses or program areas that had failures, even if the person was not an actual supervisor.

George Bundy Smith and Thomas J. Hall

The Wrongful Act Requirement for Piercing the Corporate Veil

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall review recent decisions that make it clear that abuse of the corporate form is not enough to impose a corporation's liabilities on its shareholders. A party seeking to pierce the corporate veil needs to prove a wrong committed against it, and must also establish a causal connection between the abuse of the corporate form and the wrongful conduct for which relief is sought.

Shepard Goldfein and James A. Keyte

Antitrust and Conditional Pricing Practices

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte discuss a recent joint workshop held by the Antitrust Division of the DOJ and the FTC that was prompted by the recognition, at both agencies, that the economic complexities surrounding conditional pricing practices are quite complex and that the legal framework for analyzing such practices remains in flux.

Peter M. Fass

General Solicitation and Advertising in Rule 506 Offerings

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass reviews SEC amendments to Rule 506 of Regulation D and to Rule 144A under the Securities Act of 1933 that will permit sponsors of real estate offerings to more broadly solicit investors and publicize their offerings.

Robert L. Schonfeld

Fair Housing Decision Tests Previous Notion of Standing

By Robert L. Schonfeld |

Robert L. Schonfeld writes that while contrary to traditional notions of standing, persons and entities not within a protected class have standing to challenge discriminatory housing practices under the Fair Housing Act. A recent Second Circuit decision demonstrates the strength of that statute.

Sarah S. Gold and Richard Spinogatti

Fiduciary Exception to Privilege in Books and Records Case

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti discuss the Garner exception to attorney-client privilege and a recent Delaware decision that reminds corporate managers and directors of the breadth of discovery available in Section 220 books and records proceedings.

Paul Bennett Marrow

Judicial Supervision of an Ongoing Arbitration

By Paul Bennett Marrow |

Paul Bennett Marrow writes: Even though the FAA does not mention a judicial power to supervise, some courts justify intervention to overturn interim arbitral decisions, claiming authority in equity, i.e. to assure the fairness and efficiency of the arbitration process. But while it is possible to enlist the assistance of a court, it isn't easy to do so.

Thomas A. Dickerson and Sylvia O. Hinds-Radix

Apartment and Car Sharing: A Disruptive Internet Revolution

By Thomas A. Dickerson and Sylvia O. Hinds-Radix |

Thomas A. Dickerson and Sylvia O. Hinds-Radix discuss Airbnb, Uber and Lyft; tax issues presented by such "digital clearinghouses"; and recent actions by the New York State Attorney General to control the onslaught of these Internet-based companies.

Joel Cohen

When Prosecutors Treat Counsel Differently

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes that although no defendant is entitled to "open file" discovery—where prosecutors completely open their case files to the defense attorney, wheat, chaff and all—some prosecutors, particularly if they trust the defense lawyer on the other side, actually do informally engage in it. But are there any ethical restrictions that frown the practice, which can result in disparate treatment to defendants (or their lawyers)?

Richard Raysman and Peter Brown

Courts Conflict on Anonymous, Allegedly Defamatory Online Speech

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, write: Anyone spending 10 minutes on the Internet reading content is often assaulted by angry and coarse language supporting frequently outrageous opinions. The First Amendment concepts of free speech have reached either new highs, or discouraging lows, when dealing with opinions and blogs on the Internet. In this unrestricted environment, can individuals or businesses protect their reputations?

Ilene Sherwyn Cooper

Discovery Proceedings: Recovering Assets

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: The duty to marshal estate assets is a fundamental responsibility of a fiduciary. When a third party refuses to relinquish an asset belonging to an estate, or possesses information as to an asset's whereabouts, proceedings for the recovery, or discovery, of the asset may be utilized by the fiduciary to fulfill this task.

Tax Department Reads Taxpayer Residency Victory Narrowly

By Mark E. Berg |

Mark E. Berg reviews the Court of Appeals' recent holding that in order for a dwelling to be considered a permanent place of abode maintained by the taxpayer, it must be "utilized as the taxpayer's residence" and "the taxpayer must, himself, have a residential interest in the property"; along with recent changes to guidelines in the wake of that decision.

Michael Hoenig

Expert's Causation Opinion Excluded by 'Zoloft' MDL Judge

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig analyzes a recent decision that demonstrates how painstaking the "gatekeeping" task of a judge is when an expert, even one well qualified in the scientific field, expresses opinions and uses methods that depart from accepted principles and methodology recognized by the relevant scientific community.

Christopher Dunn

Is U.S. Supreme Court Living in the 18th or 21st Century?

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: The role that colonial practices should play in constitutional jurisprudence has long been debated, with Justice Scalia serving as the most prominent supporter of the view that the guarantees of the Bill of Rights must be grounded in the original intentions of the "Founding Fathers." Yet, with nearly 250 years separating contemporary American society from the Declaration of Independence, the tenuousness of this position becomes increasingly evident.

Oleg Rivkin

Foreign Judiciaries Through the Eyes of U.S. Courts

By Oleg Rivkin |

Oleg Rivkin writes that American courts are frequently asked by litigants to render decisions concerning the adequacy and integrity of other countries' judicial systems, usually in foreign judgment recognition proceedings or forum non conveniens applications.

Harvey M. Stone and Richard H. Dolan

Two Cases Revisit Criminal Convictions

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent cases involving the Real Estate Settlement Procedures Act, allegations of pregnancy discrimination, a successful attempt to vacate a conviction in the interests of justice and an unsuccessful attempt to win expungement of a conviction, denied for lack of jurisdiction.

Dennis J. Dozis

Establishment Clause Extended to Non-Ordained Clergy Member

By Dennis J. Dozis |

Dennis J. Dozis writes: As a result of the prohibition against secular entanglement in religious beliefs, the courts of this state have undertaken the arduous task of defining the Establishment Clause's scope in sexual affair and abuse cases and identifying which individuals are protected thereunder. In so doing, the courts have published tense decisions and engendered precedent contracting and expanding the constitutional proscription.

Michael J. Hutter

Excited Utterances and Present Sense Impressions: Time to Reevaluate?

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes that in a recent garden variety case in which a 911 call was admitted under the hearsay exceptions for present sense impressions and excited utterances, the Seventh Circuit expressed its view that those exceptions do not necessarily rest on a sound foundation.

Richard D. Winsten and Paul F. Millus

Cannabis Conundrum: Medical Marijuana Law and Employers

By Richard D. Winsten and Paul F. Millus |

Richard D. Winsten and Paul F. Millus discuss cases in other states relating to an employee's use of medical marijuana and an employer's rights as stated in a written drug policy, and what those cases bode in terms of how local courts will handle New York's Compassionate Care Act in an employment setting.

Jerry H. Goldfeder and Myrna Perez

The Governor Challenges His Opponent's Residency

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write that although Governor Cuomo's allegation that Zephyr Teachout has not continuously resided in New York for the past five years is somewhat sensational given the parties involved, election trials such as this are fairly common during late July and August.

H. Christopher Boehning and Daniel J. Toal

Court Praises Predictive Coding, But Ultimately Rejects It

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal, litigation partners at Paul, Weiss, Rifkind, Wharton & Garrison, discuss 'Progressive Casualty Ins. v. Delaney', in which the court sheds light on the reasons why parties have been reluctant to accept predictive coding and highlights a key debate over best practices.

Thomas A. Moore and Matthew Gaier

Opening Statements: A Critical Juncture

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier address the components of an effective opening for the jury, as well as the potential legal implications that may lead to the rare dismissal based upon an opening statement.

Robert J. Anello and Richard F. Albert

When the Government Searches Your Hard Drives

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert review recent decisions that provide reason for hope that, in the digital age, the courts may breathe a bit more life back into the Fourth Amendment after years of cutting back on its protections.

Walter P. Loughlin

Tinkering With the Machinery of Death

By Walter P. Loughlin |

Walter P. Loughlin writes: Whether or not botched execution procedures will continue to plague the lethal injection regime, other refinements to the machinery of death are readily available to be implemented with the aim of reducing unconstitutional unfairness and the risk of the wrongful conviction and execution of the innocent.

Jeffrey S. Klein and Nicholas J. Pappas

Succession Planning: Avoiding Age Discrimination Claims

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas write that with 25 million Baby Boomers poised to leave the work force in the coming years, many employers are facing the need to plan for the loss of experienced employees. Although courts have long recognized the legitimate interest in succession planning, it should be undertaken with an eye toward potential legal issues.

Modernizing New York's Uniform Commercial Code

By Janet M. Nadile, Lawrence Safran, and Stanley R. Simon |

Janet M. Nadile, Lawrence Safran, and Stanley R. Simon review the revisions to the New York Uniform Commercial Code contained in the recently passed Assembly Bill 9933, which will bring Articles 1, 7, and 9 of the code up to date with comparable revisions enacted in other states.

Brian Trust, Joel Moss and Monique Mulcare

Key Court Holds Trademark License Survives Bankruptcy

By Brian Trust, Joel Moss and Monique Mulcare |

Brian Trust, Joel Moss and Monique Mulcare review an Eighth Circuit decision where the court found that a license agreement was part of a single integrated agreement and not executory, joining the Third Circuit in allowing a trademark licensee to continue to use its licensed trademarks free from the tactical threat by the debtor that it will reject its licenses pursuant to section 365 of the Bankruptcy Code.

John P. Furfaro and Risa Salins

Supreme Court Review: NLRB, ERISA, Affordable Care Act

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins address this term's Supreme Court rulings on the validity of the 2012 recess appointments to the NLRB, the constitutionality of state "fair share" laws, the enforceability of contractual limitations periods in benefit plans governed by ERISA, whether a special presumption of prudence applies to fiduciaries of ESOPs and religious exemptions to the contraceptive mandate imposed under the Affordable Care Act.

Brian J. Shoot

Repair or Routine Maintenance; Sole Proximate Cause Defense

By Brian J. Shoot |

In his Construction Accident Litigation, Brian J. Shoot discusses distinguishing a "repair," which is expressly covered by the so-called scaffold statute, from "routine maintenance," which is not; and the "sole proximate cause" defense, which will bar a plaintiff-worker's recovery when there was no statutory violation and the accident was solely caused by the plaintiff.

Harold P. Weinberger, Jonathan M. Wagner and Norman C. Simon

Supreme Court Opinions Augur Increased Lanham Act Litigation

By Harold P. Weinberger, Jonathan M. Wagner, and Norman C. Simon |

Harold P. Weinberger, Jonathan M. Wagner, and Norman C. Simon write: Since its enactment in 1947, Section 43(a) of the Lanham Act—the federal false advertising statute—has rarely been addressed by the Supreme Court. This term, however, the Supreme Court issued two unanimous Lanham Act decisions that make it easier for plaintiffs to bring false advertising suits.

Elizabeth McNamara and Samuel M. Bayard

The Right to Be Forgotten or Not Exposed

By Elizabeth McNamara and Samuel M. Bayard |

In their Media Law column, Elizabeth McNamara and Samuel M. Bayard write that New York legislators, in taking aim at websites that make a business of publishing people's mug shots and demanding payment to take them down, are considering a solution that would block access to booking photos until after a conviction is obtained, unnecessarily burdening journalists' ability to report the news and the public's right to receive it.

Nicholas M. De Feis and Philip C. Patterson

End Run: Using Search Warrants to Obtain Foreign Records

By By Nicholas M. De Feis and Philip C. Patterson |

In their International Criminal Law and Enforcement column, Nicholas M. DeFeis and Philip C. Patterson of De Feis O'Connell & Rose, write about the authority of the Justice Department to compel a domestic corporation to produce emails stored on an overseas server.

Warren H. Richmond

Amendment to Teacher Evaluation Regulations Creates Further Confusion

By Warren H. Richmond |

Warren H. Richmond, a partner of Harris Beach, writes: On June 24, 2014, the Board of Regents adopted an amendment to §30-2.1(d) of its rules to provide guidance to New York school districts regarding the termination of probationary teachers. Unfortunately, both the amendment and the circumstances leading to its adoption have succeeded only in creating further confusion in an area that had already been extremely murky.

Michael I. Rudell and Neil J. Rosini

Aereo Decision's Narrow Breadth Leaves Questions Unanswered

By By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini of Franklin, Weinrib, Rudell & Vassallo, discuss the recent ruling of the U.S. Supreme Court that the Aereo service, which allowed its subscribers access via the Internet to local broadcasts of television programs on their home and mobile devices, violates copyright law. The authors further examine what questions were left unanswered for other automated systems.

David Hammer and Richard Maltz

Escrow Accounts After 'Galasso': You Are Your Brother's Keeper

By David S. Hammer and Richard M. Maltz |

David S. Hammer, a former assistant U.S. Attorney, and Richard M. Maltz, counsel to Frankfurt, Kurnit, Klein & Selz, explain that a lawyer who steals escrow funds commits a crime, ethical violation and a tort. If the lawyer is a partner in the firm, the firm itself may be liable for damages and disciplinary sanctions. The authors then explore the question: What of partners in the firm who were not complicit in the theft but made it possible by failing to supervise the firm's escrow accounts?

Samuel Estreicher and Holly H. Weiss

Anti-Arbitration Provisions and Dodd-Frank Act

By Samuel Estreicher and Holly H. Weiss |

In their Arbitration column, Samuel Estreicher, the Dwight D. Opperman Professor of Law at New York University School of Law and of counsel to Schulte Roth & Zabel, and Holly H. Weiss, a partner at Schulte Roth discuss arbitration developments in light of Dodd-Frank's anti arbitration provisions.

Steven V. Treglia

Decisions Limit Government's Access to Stored Digital Data

By Stephen Treglia |

In his E-Communications column, Stephen Treglia, legal counsel at Absolute Software Corporation, writes: In its latest decision, 'Riley v. California', the Supreme Court ruled that law enforcement may not utilize the warrant exception of search incident to a lawful arrest to justify a warrantless search of the contents of a cell phone. What makes Riley particularly interesting is that its holding flies in the face of lengthy historical precedent merely because the item being seized from the arrested individual is a miniature computer.

Alton L. Abramowitz

It's 'My' House…or Is It? Equitable Distribution of Marital Residences

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz a senior partner at Mayerson Abramowitz & Kahn, writes: The battle over how to distribute the "profits" due to appreciation, as well as the underlying initial investment at the time of purchase of a marital residence, can become one of the most difficult and important financial issues confronting the attorneys for a divorcing couple, oftentimes bringing to the forefront anger that has built up for many years over real and imagined slights, all revolving around the questions of: "Whose house is it?" or "What contributions did my spouse make?"

Glen Banks

Court of Appeals Addresses Clauses, Negotiations, Damages

By Glen Banks |

In his Contract Law column, Glen Banks discusses recent decisions on contract law issues from the Court of Appeals, including Quadrant Structured Products Company v. Vertin, and IDT Corp. v. Tyco Group, and also offers an additional thought about Biotronik v. Conor Medsystems Ireland, which was a subject of his prior columns.

Menachem J. Kastner and Ally Hack

'Colorable Indicia of Fraud': Not So 'Grimm' Anymore

By Menachem J. Kastner and Ally Hack |

Menachem J. Kastner and Ally Hack of Cozen O'Connor discuss 'Boyd v. DHCR' and other relevant case law, and address the question: Has the four-year rule been all but totally eviscerated, or is 'Boyd' the beginning of the four-year rule's revitalization?

Abby Tolchinsky and Ellie Wertheim

Balancing Reason and Emotion to Resolve Conflict in Mediation

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim, partners at Family Mediation, write: The extent to which emotion—be it fear of mistake on the global stage or mistrust rooted in family betrayals—is engaged and taken into account is an essential task of the mediator. Failure to do so limits the mediator's connection to the parties and impedes the possibility for resolution.

Rory Lancman and Daniel Pearlstein.

Clamping Down on Chokeholds

By Rory I. Lancman and Daniel Pearlstein |

Rory I. Lancman and Daniel Pearlstein of the New York City Council write: The Eric Garner tragedy represents not merely the New York Police Department's operational failure to stamp out the use of chokeholds during arrests 21 years after the NYPD patrol guide banned the technique, but our legal system's failure to effectively deter chokeholds even after such high-profile tragedies as the Anthony Baez case in 1994 exposed the legal gaps that allow such conduct to go unprosecuted in state courts. The authors then examine the existing legal road map that investigators and prosecutors must navigate in determining whether criminal liability might attach to the conduct of the officers involved.

Arthur Ciampi

Time Runs Out, in Hourly Matters, for 'Unfinished Business'

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi, the coauthor of the treatise 'Law Firm Partnership Agreements' and the managing member of Ciampi LLC, analyzes the Court of Appeals decision in 'Geron v. Seyfarth Shaw' ('In re Thelen') and discusses some of the decision's immediate and long-term implications.

Sharon M. Porcellio

Discrimination Claim Against School; Restrictive Covenant at Work

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio, a partner at Bond, Schoeneck & King, discusses a decision issued in January involving the denial of a motion to dismiss a student's race discrimination claim under 42 U.S.C. §1981; a decision denying a request for injunctive relief seeking to enforce a restrictive covenant; and a decision denying an employer's motion for summary judgment in a sexual harassment claim.

U.S. District Judge J. Paul Oetken during his nomination hearing in 2011.

Judge Upholds Class Action Against ITT Educational Services

By Jan Wolfe |

ITT Educational Services Inc.'s courtroom woes expanded when a judge refused to dismiss most of a shareholder class action alleging that the for-profit education company duped investors about its troubles coping with rising student loan default rates.

Sean J. Doolan and Jeffrey M. Adams.

Understanding Protections for Assisted Living Residents

By Sean J. Doolan and Jeffrey M. Adams |

Sean J. Doolan, a member of Doolan Platt & Setareh, and Jeffrey M. Adams, a member of Adams Law Firm, write about statutory protections for residents at assisted living residences and what practitioners need to know when litigating claims on behalf of residents.

Charlotte A. Biblow

Laws, Regulations and Incentives Power Solar Energy's Growth

By Charlotte A. Biblow |

In her State Environmental Regulation, Charlotte A. Biblow, a partner in the environmental, land use and municipal law and litigation departments of Farrell Fritz, discusses some of the more significant steps that New York state has been taking recently to promote the use of solar energy.

Lawrence W. Newman and David Zaslowsky

Revisiting Hot Issues in International Dispute Resolution

By And David Zaslowsky By Lawrence W. Newman of Baker & McKenzie |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky discuss issues of international dispute resolution in the context of recent decisions relating to the Alien Tort Statute, the Foreign Sovereign Immunities Act,enforcement of arbitral awards vacated abroad and manifest disregard of the law.

Robert C. Scheinfeld

The Supreme Court's Push for Clarity in Patent Cases

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Arguably, the Federal Circuit, the sole court of appeals for patent cases, has become less predictable and more divisive, and the Supreme Court's six unanimous patent decisions this term signal that the court's role has evolved to "prime resolver and clarifier" in the patent space, resolving ambiguities and providing clearer legal standards for lower courts, patent applicants, and litigants.

Ronald E. Richman

ERISA Presumption of Prudence in 'Stock Drop' Cases Rejected

By Ronald E. Richman |

Ronald E. Richman writes: What the Supreme Court in 'Dudenhoeffer' gives to plaintiffs in "stock drop" litigation with one hand—rejecting the special presumption of prudence favoring ESOP fiduciaries—it appears to take away with the other, by offering a road map of suggestions that, if honored by the lower courts, will make it difficult to maintain such litigation in the future.

Martin Flumenbaum and Brad S. Karp

Court Reverses Jury Verdict for SEC in Market Timing Case

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'SEC v. O'Meally', in which the court overturned a jury verdict in favor of the SEC against a mutual fund broker for using an allegedly deceptive market timing strategy.

Robert S. Kelner and Gail S. Kelner

Preservation and Spoliation of Audio and Video Recordings

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss the importance of early service by counsel of a notice on a property owner to preserve any security recordings of a fall or other accident, and the need for the demand to be broad enough to preserve all potentially relevant recordings.

Francis J. Serbaroli

A Primer on New York's Medical Marijuana Law

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli summarizes New York's new law permitting the use of medical marijuana. He notes that while this complex, carefully drafted law addresses most of the medical, social, economic and law enforcement aspects of the medical marijuana issue in New York, the roll-out of the new law may be complicated by existing federal laws that criminalize the manufacture, sale and use of marijuana.

Andrew Lavoott Bluestone

Is Legal Malpractice Still a Tort?

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone writes that legal malpractice is commonly said to be both a tort as well as breach of a retainer agreement contract. Whether it is a "tort" or a "contract" generally is decided by the nature of the damages sought. However, a closer look at whether legal malpractice is really a tort anymore raises questions.

Ken Strutin

DNA and the Double Helix of Constitutional Rights

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: As DNA analysis progresses from surveillance to John Doe indictments to standalone evidence, the heart of a case will come to be litigated in a database before it ever reaches a courtroom. Therefore, the sampling, profiling and testing continuum must become the constitutional focal point.

Sidney Kess

Roundup of Tax Developments Impacting Small Businesses

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the federal tax credit for small businesses that pay at least half of health insurance premiums for employees, deferred compensation plans, recently released final regulations clarifying the treatment of 'disregarded entities' for certain tax purposes, and legislation on expensing the purchase of equipment.

Jeff S. Korek

Obtaining Cell Phone Records in Civil Litigation

By Jeff S. Korek |

Jeff S. Korek writes that with studies showing as much as 23 percent of all car accidents involved distracted drivers using their cell phones, it would seem logical that civil litigants involved in motor vehicle accident cases should be able to obtain the cell phone records of an opposing driver in order to help prove fault. Yet, surprisingly, it is very difficult to obtain such records.

Patrick M. Connors

Impact of U.S. Supreme Court Decisions on Practice

In his New York Practice column, Patrick M. Connors writes: The New York Court of Appeals' prior interpretation of CPLR 302(a)(3)(ii), the most unwieldy provision in the longarm statute and the source of abundant case law, appears to be on a collision course with the Supreme Court's recent decision in 'Walden.'

Stephen Bergstein

Supreme Court Rules on Rights of Public Whistleblowers

By Stephen Bergstein |

Stephen Bergstein writes: In ruling that the First Amendment prohibits the retaliatory termination of public employees who testify truthfully about public corruption, the Supreme Court recently clarified the principles governing the rights of whistleblowers in a unanimous ruling that may also undermine settled Second Circuit authority.

Norman H. Dachs and Jonathan A. Dachs

Individual Coverage Under Policies for Entities

By Norman H. Dachs and Jonathan A. Dachs |

In their Insurance Law column, Norman H. Dachs and Jonathan A. Dachs discuss longstanding issues and debates regarding the rights of individuals associated with a corporation to make claim under an insurance policy issued in the name of the corporation, as well as more recent questions about whether the same or similar rules apply when the named insured entity is not a corporation, but, rather a partnership, an LLC, or even a trade name ("d/b/a").

E. Leo Milonas and Frederick A. Brodie

Waiver of Right to Counsel; Defamation; Identity Theft

By E. Leo Milonas and Frederick A. Brodie |

In their Appellate Division Review, E. Leo Milonas and Frederick A. Brodie discuss recent decisions involving whether a prisoner's cell phone could be considered "dangerous contraband," what happens when a deliberating jury asks questions but reaches a verdict before receiving answers, defamation by implication, and more.

Thomas E. L. Dewey

Unexecuted Settlement Agreements—Enforceable or Not?

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey writes: New York courts often enforce unsigned settlement agreements when a party merely swears in open court that it agrees to settle the dispute. But there are other, less common situations in which a party may be bound by an unexecuted settlement, examples of which have arisen recently in New York federal court.

Alan R. Friedman, Brendan M. Schulman and Samantha V. Ettari

Conviction Overturned Based on Government Retention of ESI

By Alan R. Friedman, Brendan M. Schulman and Samantha V. Ettari |

Alan R. Friedman, Brendan M. Schulman and Samantha V. Ettari discuss a recent Second Circuit decision overturning a criminal tax evasion conviction because the government had retained electronically stored information for too long after the execution of a search warrant and then improperly searched and used that ESI in a case unrelated to the warrant from which it was procured.

Michael D. Patrick

The H-1B Rush Is Over: No Easy Next Steps

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick addresses what petitioning employers who were fortunate enough to make it through USCIS's cap selection lottery can expect as their H-1B cases are adjudicated, along with possible options for U.S. employers whose H-1B petitions were not selected.

Hal R. Lieberman

Is New York's Disciplinary System Truly Broken?

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman discusses a troubling recently published law review article, and addresses the article's conclusions that the system is plagued with unreasonable delays, unjustifiable disparities and irrational punishments.

Nativ Winiarsky

Attorney Fees and Real Estate: Discretion Has its Limits

By Nativ Winiarsky |

Nativ Winiarsky writes that however important '433 Sutton Corp. v. Broder' is to the landlord-tenant community as one of the relatively few such cases addressed per year by the Court of Appeals, it unfortunately provides little in the way of guidance in terms of the circumstances in which a court may use its discretion to deny attorney fees in the face of a valid lease clause allowing for same.

Roy L. Reardon and William T. Russell Jr.

Sugary Drinks, Hydrofracking, 'Unfinished Business'

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 a decision that struck down New York City's limits on the sale of soda and other sugary drinks in large containers, upheld the use of local zoning laws to effectively ban "hydrofracking" and ruled that a dissolved law firm is not entitled to post-dissolution profits earned on work performed on a non-contingency fee basis.

Stephen M. Kramarsky

A Closer Look at 'Aereo': The Court's Technology Philosophy

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, writes about the U.S. Supreme Court's decision in 'Aereo', which relies on a broad interpretation of the Copyright Act and an interpretive philosophy that may present practical challenges to technology lawyers and their clients.

Ilann Margalit Maazel

Wrongful Convictions and Prosecutorial Immunity

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel writes: Wrongful convictions are in the news these days. We know about the Central Park Five, the Bronx Six and the allegedly corrupt Brooklyn detective whose cases are now under review by the Brooklyn D.A. But what happens after the exoneration? Federal civil rights cases arising out of wrongful convictions can be tricky. Cases against prosecutors are a legal minefield. Why? The doctrine of prosecutorial immunity.

Howard Epstein and Theodore Keyes

Related Claims Are in the Eye of the Beholder

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: Under the terms of typical professional liability and directors' and officers' insurance policies, multiple claims that arise out of interrelated wrongful acts are treated as a single claim deemed to have been first made at the time the first of the related claims was made against the insured. Whether the treatment of multiple related claims as a single claim benefits the insured or the insurer depends on the circumstances.

Myron Rumeld and Russell Hirschhorn

Supreme Court Resets the Standard in ERISA Stock-Drop Suits

By Myron Rumeld and Russell Hirschhorn |

Myron Rumeld and Russell Hirschhorn discuss 'Fifth Third Bancorp v. Dudenhoeffer,' in which the Supreme Court breathed new life into what was previously seen as a dying breed of litigation. But while eliminating the presumption of prudence, the court imposed substantial new obstacles to recovery on stock-drop claims.

Michael Hoenig

Attorney Profanities, Surreptitious Recordings

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: Assume heated, contentious litigation ensues between opposing counsel. During a squabble over discovery, Attorney A, in an e-mail, calls her adversary a rather common, vulgar profanity that describes a portion of the anatomy. She also uses the crude words "sh--" and "fu--" in an admonition to him not to build a record for filing some unmeritorious motion, and that she has "everything taped" so that the recordings will be used to blunt such a tactic. Does such conduct justify court intervention?