Expert Analysis

Elai Katz

Essential Facilities and Natural Gas Pipelines

By Elai Katz |

Antitrust columnist Elai Katz reviews recent developments, including the Tenth Circuit's affirming the dismissal of antitrust claims asserting concerted denial of access to an essential facility in the natural gas market in western Colorado and a district court's acceptance of a narrow relevant market proposed by the U.S. Department of Justice, ensuring the government's successful challenge to Aetna's proposed acquisition of rival health insurer Humana.

Conrad Teitell

Charitable Deduction and Other Indexed Tax Adjustments for 2017

By Conrad Teitell |

Estate Planning and Philanthropy columnist Conrad Teitell reviews IRS key charitable figures for 2017, including a safe harbor for insubstantial donor benefits for charitable contributions, the mileage rate for a volunteer's use of an automobile for charity, and a reduction for some itemized deductions for high earners.

George M. Heymann

Proximate Cause and Intervening Acts: 'Hain v. Jamison'

By George M. Heymann |

George M. Heymann discusses the Court of Appeals' recent holding in 'Hain v. Jamison,' where the court said it could not be determined, as a matter of law, whether the farm's negligence in allowing a calf to escape merely furnished the occasion for the accident that killed a woman who was struck after she exited her car to help the calf, or that the accident did not flow from farm's negligent conduct. Accordingly, the issues of "substantial cause" and "foreseeability," under these circumstances, should be made by the fact finder.

Richard Strassberg and William Harrington

Under Sessions-Led Justice Department, FCA Enforcement Likely to Continue Apace

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington write that False Claims Act enforcement has increased dramatically under every president since Ronald Reagan. Practitioners have nevertheless wondered whether we can expect a similarly robust FCA agenda from President Donald Trump. The recent confirmation of Sen. Jefferson Beauregard Sessions III as attorney general and nomination of Rod J. Rosenstein, the U.S. Attorney for the District of Maryland, for deputy AG may suggest a comparably aggressive approach to FCA enforcement.

Jerry H. Goldfeder and Myrna Pérez

Real Solutions for Real Problems

By Jerry H. Goldfeder and Myrna Pérez |

Government and Election Law columnists Jerry H. Goldfeder and Myrna Pçrez write: Apart from the inherent problem of having a president making unsubstantiated claims about illegal voting, the drumbeat that there is widespread voter fraud saps the energy and attention of those who wish to improve our election systems.

Benjamin Zelermyer and Jeffrey G. Steinberg

Special Interrogatories in Coverage Disputes: the Hidden Risk

By Benjamin Zelermyer and Jeffrey G. Steinberg |

Benjamin Zelermyer and Jeffrey G. Steinberg write: When insurance coverage disputes turn on answers to questions of fact or the nature of the claim for which an insured may be held liable, a special verdict or answers to special interrogatories should be considered. Besides potential gains of obviating the need for a separate trial and avoiding the risk of inconsistent determinations, there are serious risks in not moving to intervene.

Christine A. Fazio and Ethan I. Strell

Judge Gorsuch's Environmental Record

By Christine A. Fazio and Ethan I. Strell |

Domestic Environmental Law columnists Christine A. Fazio and Ethan I. Strell write that while Judge Gorsuch has questioned judicial deference of agency decisions, his few written opinions on environmental matters actually show a tendency to rule in favor of the federal agency. However, the outcomes of these cases have less to do with the environment than with Judge Gorsuch's judicial and constitutional philosophy.

Stephen Plotnick and Alexander Malyshev

New York's LLC Law Fosters Greater Certainty for Members and Their Rights

By Stephen M. Plotnick and Alexander G. Malyshev |

Stephen M. Plotnick and Alexander G. Malyshev write: The LLC form is often favored because it offers a great deal of flexibility in how a business is to be governed and operated day-to-day. That flexibility can and should be taken advantage of, and the best practice is to reduce the members' mutual understandings to writing. However, when business partners determine to forgo this important step, jurisdictions like New York offer a degree of certainty for members and their governance rights that jurisdictions like Delaware are potentially lacking.

A ship discharging ballast water

From Sea to Shining Sea: Admiralty Reigns

By James Mercante |

Admiralty Law columnist James Mercante writes that maritime law, which one judge found predated the birth of Christianity by 900 years and is one of only two practice areas mentioned in the Constitution, has come a long way from the wooden sailing ship days.

Martin Flumenbaum and Brad S. Karp

Recent Decision Clarifies the 'Chevron' Doctrine

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: In spite of its reputation as a natural and architectural wonder, the system that provides New York City's tap water has been the subject of a series of lawsuits over the past two decades brought by environmental organizations that fear pollution in New York's waters. A recent decision likely puts to rest this protracted legal battle, as well as clarifies the circuit's jurisprudence on 'Chevron' deference.

Zach Olsen and Andrew Longstreth

Getting Ready to Talk About Your Firm’s Upcoming Data Breach

By Zach Olsen and Andrew Longstreth |

Despite the forecast that more cyberattacks are on the way, few law firms, even among those who specialize in privacy and data security matters, have plans in place that detail how they'd respond internally and publicly to a cyber event. Being able to respond quickly and decisively will preserve your firm's public image and brand; a professional and measured response will signal to the market that you are in control and taking the appropriate steps.

Sidney Kess

Long-Term Care and Tax Rules: Understanding the Financial Picture

By Sidney Kess |

Tax Tips columnist Sidney Kess discusses the tax treatment of long-term care insurance premiums and proceeds, along with the treatment of continuing care facility expenses.

Edward M. Spiro and Judith Mogul

Stricter Standards for Standing

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Following the U.S. Supreme Court's May 2016 decision in 'Spokeo v. Robins', courts have been re-examining whether plaintiffs seeking statutory damages, particularly under various consumer protection laws, have Article III standing to pursue their claims. With guidance from the Second Circuit's post-'Spokeo' decision in 'Strubel v. Comenity Bank', courts in the Southern District of New York are beginning to flesh out the new approach to standing in such cases.

Shari Lewis - Rivkin Radler.12/13/2016

Online and Social Media Defamation in Today's Age

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis of Rivkin Radler writes: Social media's emerging role, combined with the extreme divisions so evident in our country, have caused the courts to consider application of pre-Internet legal standards to defamation and other torts brought in response to tweets, Facebook posts, and content on other social media platforms. Recently, a number of courts have considered the context provided by social media and how online forums impact the reader's expectation of truth and the distinction between fact and opinion.

Atif Khawaja

An Ounce of Prevention: Accidental Destruction of ESI Is Serious Business

By Atif Khawaja |

Atif Khawaja writes: The legal standard for spoliation is clearer in some jurisdictions than it is in others. But wherever one happens to be litigating, decisions on the destruction of ESI are often highly fact-specific, nuanced, and technical. As a result, those decisions can also be unpredictable. A recent Court of Appeals decision is a case study in the consequences of technological mishaps and corporate miscommunications.

A coal burning electrical power plant

A Carbon Tax Plan Proposal: What Are Its Prospects?

By Jeff Salinger |

writes that on Feb. 9, a group of prominent Republicans and business leaders from the Climate Leadership Council released a carbon tax proposal entitled "The Conservative Case for Carbon Dividends," a four-pronged proposal that would impose a tax on carbon for oil, gas and coal use, which together comprise nearly 80 percent of total U.S. greenhouse gas emissions.

George Bundy Smith and Thomas J. Hall

Continuing Breach and Statutes of Limitations

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall discuss how courts in the Commercial Division recently have applied the doctrine of continuing breach—where a contract imposes a duty of continuing performance over a period of time, "each successive breach may begin the statute of limitations running anew"—illustrating the doctrine's scope.

David J. Kaufmann

Brand Standards: How Far Will the Courts Let Franchisors Go?

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann writes that every franchise agreement vests in the franchisor the ability to promulgate and modify from time to time "brand standards," allowing consumers to associate franchisors' marks with certain standards of quality, product offerings, unit appearance, no matter where the franchise is. But some franchisees have pushed back on brand standards.

Jason L. Shaw

The Time Has Come for the Court of Appeals to Resolve Reinsurance Issue

By Jason L. Shaw |

Jason L. Shaw writes: The Second Circuit's reinsurance decision last month in 'Global Reinsurance of America v. Century Indemnity' will finally lead to resolving the unsettled question about whether reinsurers will have limitless liability for an underlying insurer's legal costs.

Lee Spielmann

'Simon' Shows FSIA's Importance to Holocaust Survivors Seeking Civil Justice

By Lee Spielmann |

Lee Spielmann writes: Legal proceedings against the perpetrators of Nazi Germany's murder of six million Jews have almost concluded, with German criminal prosecutions quickly winding down and American efforts to expel those who assisted in Nazi persecutions having ended. Holocaust survivors have also initiated civil suits under the Foreign Sovereign Immunities Act to obtain redress. One such recent case in the D.C. Circuit, 'Simon v. Republic of Hungary', demonstrates the complexity of these proceedings, the significance of the issues and their importance in promoting Holocaust awareness.

Margaret A. Dale and Mark D. Harris

Due Process Rights in Multi-Jurisdiction Shareholder Derivative Actions

By Mark D. Harris and Margaret A. Dale |

Corporate and Securities Litigation columnists Mark D. Harris and Margaret A. Dale write: In several recent cases, the Delaware Court of Chancery has addressed due process issues arising out of shareholder derivative actions. The Delaware Supreme Court has now taken up the baton in a case that raised the question of when a court in a subsequent action is obligated to honor an earlier dismissal of a shareholder derivative action for failure to plead demand futility.

An Update on Pre-Dispute Arbitration in Nursing Home Admission Agreements

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish reviews recent developments in the U.S. Supreme Court, Department of Health and Human Services, a Mississippi district court, and the New York Appellate Division pertaining to mandatory arbitration in nursing home agreements.

Defining the 'Practice of Law' After 'Matter of Brandes'

By Chris McDonough |

Chris McDonough discusses Joel Brandes' recent attempts to be reinstated to the New York bar and whether his performing paralegal services for attorneys from his home in Florida during his disbarment constituted the practice of law.

Peter A. Mahler and Matthew D. Donovan

Courts Address Key Issues in Business Divorce Cases of 2016

By Peter A. Mahler and Matthew D. Donovan |

Peter A. Mahler and Matthew D. Donovan write an annual review featuring analysis of a number of significant decisions from Second Department trial and appellate courts concerning partnership dissolution and valuation, tie-breaker authority and liability, and LLC member fiduciary duty.

Robert W. Clarida and Robert J. Bernstein

N.Y. Court of Appeals Determines Common Law Rights in Sound Recordings

By Robert J. Bernstein and Robert W. Clarida |

Copyright Law columnists Robert J. Bernstein and Robert W. Clarida write: The treasure trove of pre-1972 hits has spawned a multitude of civil actions, appeals to the Second, Ninth and Eleventh Circuits, certifications to the highest courts of New York and Florida, and a complex class action settlement agreement with multiple contingencies depending primarily on whether the pending actions ultimately recognize a public performance right.

Jeremy M. Creelan

Class Certification: Will Gorsuch Pick Up Where Scalia Left Off?

By Jeremy M. Creelan |

Jeremy M. Creelan writes: For two decades leading up to Justice Antonin Scalia's death, the U.S. Supreme Court's class certification jurisprudence took shape as a dialogue between Justices Scalia and Ruth Bader Ginsburg over the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and (b)(3), respectively. With Scalia's passing, the court has hinted that it will embrace Ginsburg's pragmatic approach in future cases. But a surprisingly few clues indicate whether Judge Neil Gorsuch of the Tenth Circuit will follow in Scalia's footsteps in this area.

Joel Cohen

When Lawyers and Judges Criticize Jury Verdicts

By Joel Cohen |

Ethics and Criminal Practice columnist Joel Cohen writes: It's completely fair game for commentators to criticize a jury verdict—after all, why shouldn't journalists write that O.J.'s acquittal was out of line, or that Rubin "Hurricane" Carter's conviction was unjust? But do the same rules apply when the prosecutor, defense attorney or even the judge chooses to lash out publicly against a jury verdict, even if the disagreement is in good faith?

Shepard Goldfein and James A. Keyte

Dancing Without a Partner: ABA Antitrust Section's Advice to the New Administration

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: By the time President Trump was inaugurated, professional and business communities had spilled a lot of ink over his statements on antitrust, as well as the implications of choosing Josh Wright to lead the FTC transition team. Now, the Section of Antitrust Law of the ABA has issued a Presidential Transition Report that, perhaps more than ever before, may offer the best picture of where antitrust may move over the next four years or more.

Paul Shechtman

'Patterson' Raises Complex Questions About Hearsay Evidence

By Paul Shechtman |

Paul Shechtman reviews the Court of Appeals' recent decision in 'People v. Patterson' which upheld the admission of cell phone subscriber information as non-hearsay evidence. Did the court get it right?

Richard Raysman and Peter Brown

A 'Loss' Under the CFAA Does Not Require Interruption of Service

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown focus on what federal appellate courts actually agree upon with regard to the text of the Computer Fraud and Abuse Act, even though there presently exists a circuit split over the meaning of the word "authorization" as used in the statute.

Alton Abramowitz

Essential Foundations of Preparedness for Procedures in the Divorce Process

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz of Mayerson Abramowitz & Kahn, prompted by the recent release of the January 2017 Report of the Chief Administrative Judge's Matrimonial Practice Advisory & Rules Committee, reflects on the manner in which divorce lawyers process their client's case matters from the moment that the potential client first walks through the office door.

Harvey M. Stone and Richard H. Dolan

Decisions on Life Insurance Provision, Motions to Remand and Jail Sentence

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan of Schlam Stone & Dolan discuss several significant, representative decisions handed down recently, including decisions on: the incontestability provision of a life insurance policy; two motions to remand to state Supreme Court; and reasons for a prison sentence.

Brian Murphy

Maximizing Confidentiality of Settlements of Individual Claims Under the FLSA

By Brian D. Murphy |

Brian D. Murphy of Sheppard, Mullin, Richter & Hampton writes: Employers often prioritize preserving the confidentiality of the terms of a settlement of a pending or threatened litigation. Given that confidentiality is frequently a key incentive to enter into a settlement, with respect to a great many claims, it is respected and permitted by the courts. Where a settlement concerns individual claims under the Fair Labor Standards Act, however, an employer faces steep challenges in securing confidentiality.

David M. Barshay

Decisions Address Physician Fee Justification and Arbitration Awards

By David M. Barshay |

In his No-Fault Insurance Wrap-Up, David M. Barshay analyzes a recent decision in which a physician established a relative value to bill for services but did not provide a supporting report justifying that value, along with recent decisions that involved vacating arbitration awards.

Michael Hoenig

Improper Argument at Trial: Scrutinizing Counsel's Conduct

By Michael Hoenig |

Complex Litigation columnist Michael Hoenig writes that with current levels of docket congestion, a proliferation of multi-party cases and some tendencies towards lengthier trials, the problem of reluctance to grant a mistrial has worsened—which can leave improper and prejudicial arguments unpunished.

Danielle Nicholson, Richard Ziegler

Challenges to Arbitral Awards Based on Arbitrator Bias

By Danielle Nicholson and Richard Ziegler |

Danielle Nicholson and Richard Ziegler write: The efficacy of international arbitration relies on arbitrators, irrespective of the source of their appointment, being—and being perceived as—independent and impartial throughout the proceedings. The assertion of challenges to arbitration awards alleging bias by an arbitrator highlights the need for clarity in the obligation of arbitrators to disclose promptly and continuously their professional and other connections to the parties and their counsel.

Ilene Sherwyn Cooper

Year in Review: Highlights From the Four Appellate Departments

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper of Farrell Fritz discusses several notable appellate division opinions from the past year that tackled a myriad of issues, including undue influence, power of attorney, gift my implication, and gift of investment account.

Fighting Overzealous Agency Enforcement: Employers Have Rights

By Maureen M. Stampp |

Maureen M. Stampp, a partner at Kaufman Dolowich & Voluck, writes: Long-standing court decisions and federal rules of procedure allow companies to recover their attorney fees and costs upon prevailing in a lawsuit against a government agency. She discusses cases in which companies have successfully opposed overzealous agencies.

Thomas A. Moore and Matthew Gaier

In 'Pullman', Court Once Again Addresses MedMal Summary Judgment Standards

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier analyze the Court of Appeals' holding in 'Pullman v. Silverman', which emphatically confirmed the necessity for an expert affidavit to adequately refute the specific allegations in the bills of particulars to be sufficient to establish a moving defendant's entitlement to summary judgment.

Robert J. Anello and Richard F. Albert

SEC's View on Statute of Limitations Faces Another Test

By Robert J. Anello and Richard F. Albert |

White-Collar Crime columnists Robert J. Anello and Richard F. Albert write that given the SEC's increasing reliance on civil disgorgement actions to secure financial recoveries and the expansive breadth of rulings delineating what a defendant can be required to disgorge, the Supreme Court's upcoming decision in 'Kokesh v. SEC' on whether disgorgement is a punitive remedy and covered by the five-year limitations period or an equitable remedy and beyond the statute will have a significant impact on the the agency's enforcement practice and defendants' financial exposure in such cases.

H. Christopher Boehning and Daniel J. Toal

Non-US Subsidiaries' E-Discovery Is Out of Scope, Court Finds

By Daniel J. Toal and H. Christopher Boehning |

In their Federal E-Discovery column, Daniel J. Toal and H. Christopher Boehning write: While there have been a number of court decisions that have interpreted the new language of Rule 26(b)(1), some practitioners—and courts—still continue to cite to the old version of the Rule. A recent decision applied the new version in finding requested e-discovery from a party's non-U.S. subsidiaries to be out of scope, and reminded the bench and bar that the Rule changed on Dec. 1, 2015 and that they should not rely on the old version of the Rule.

Court Confirms Hedge Funds Did Not Act in Bad Faith, Affirms Large Judgment

By Stephen P. Younger, Muhammad U. Faridi and Gabriela Bersuder |

Stephen P. Younger, Muhammad U. Faridi and Gabriela Bersuder discuss a recent First Department decision with potentially broad implications for participants in the credit default swap market.

Neil J. Rosini and Michael I. Rudell

Star Trek Copyright Suit Is Settled but Fan-Filmmakers Get Guidance

By Neil J. Rosini and Michael I. Rudell |

Entertainment Law columnists Neil J. Rosini and Michael I. Rudell analyze a recent decision offering an object lesson in how fan films (as well as fan novels and any other unauthorized fan-created derivative of a popular work) court legal disaster.

Barry Kamins

Community Caretaking: New Doctrine for Court of Appeals

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes: The New York Court of Appeals has recently upheld the towing, impoundment and inventory search of an automobile, holding that these actions were, under the facts of the case, consistent with a "community caretaking function." This is the first time the court has adopted this theory, although it has made oblique references to it in the past. What is the origin of this doctrine and, more importantly, what are its boundaries and scope?

Doron P. Kenter

Second Circuit Rules on TIA §316(b), Overturns 'Marblegate' (and 'Caesars')

By Doron P. Kenter |

Doron P. Kenter writes: On January 17, in the latest chapter in the ongoing debate over §316(b) of the Trust Indenture Act, the Second Circuit reversed the district court's decision in 'Marblegate', concluding that the TIA does not prohibit out-of-court restructurings that deprive non-consenting noteholders of their substantive right to payment on account of their notes.

Brian J. Shoot

Two Labor Law Rulings in Miniature

By Brian J. Shoot |

Construction Accident Litigation columnist Brian J. Shoot considers the Court of Appeals' two most recent rulings in the field, both of which left unanswered questions.

John P. Furfaro and Risa Salins

Anticipated Changes Under President Trump: NLRB, DOL, EEOC

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins discuss two controversial National Labor Relations Board rulings on class arbitration waivers and the joint employer standard that may be revisited once the vacant seats on the board have been filled, the possible fates of the Department of Labor's overhaul of overtime pay regulations and finalization of the persuader rule, and executive orders issued by President Obama that may be scrutinized.

Montgomery L. Effinger

No Time to React: Summary Judgment for the Motorist Faced With Sudden Danger

By Montgomery L. Effinger |

Montgomery L. Effinger writes that vehicle operators whose time to respond to unpredictable behaviors of other drivers or pedestrians is mere seconds or less may obtain summary judgment prior to trial under the common law "emergency doctrine." But even when a time lapse of one to two seconds establishes that the driver played no role in creation of the underlying accident, other factors may be found to raise a question of fact as to the reasonableness of the driver's response, thereby resulting in denial of summary judgment.

Christopher Dunn

Police-Provoked Shootings by the Police: Excessive Force?

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn previews the Supreme Court arguments in an excessive force case where police entered a residence without knocking or identifying themselves and, finding one of the residents pointing what appeared to be a rifle at them, fired 15 shots. In fact, it was a a BB gun that the resident was in the process of moving when officers entered.

Michael J. Hutter

Admissibility of Business Records Containing Out-of-Court Statements

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes: Court of Appeals Judge Stein's conclusion, and her analysis in support, that the Sprint subscriber information offered in a burglary and robbery trial to establish phone calls between the defendant and an accomplice was not barred by the hearsay rule is certainly valuable on that difficult issue. The true value of her opinion, however, lies in how she reached that admissibility conclusion in the context of the offered evidence, the cell phone records, which involved two out-of-court statements.

Katherine Bajuk

Regarding Mental and Cognitive Issues, Criminal Justice System Must Catch Up

By Katherine Bajuk |

Katherine Bajuk of the New York County Defender Services writes that while society at large has progressed commendably on the understanding of and approach to mental health issues, one segment, the criminal justice system, has been slow to adapt.

Peter M. Fass

Best Efforts Private Offerings: Advice on Promptly Transmitting Subscriptions

By Peter Fass |

In his Real Estate Securities column, Peter Fass writes that a key issue in broker-dealer compliance in a best efforts offering is the interpretation of 'promptly transmit' or 'promptly forward' subscription proceeds. He discusses SEC and FINRA interpretive advice touching on this issue.

Jonathan A. Dachs

The Applicability (Inapplicability) of New York's Disclaimer Statute

By Jonathan A. Dachs |

Insurance Law columnist Jonathan A. Dachs provides a brief historical background of Insurance Law §3420(d)(2), which says that liability insurers must give notice as early as reasonably possible if they are disclaiming liability or denying coverage, and discusses one of the express limitations on the applicability of the statute—that the policy at issue be one that is "issued or delivered" in New York.

Thomas A. Dickerson

New York State Class Actions: a Very Good Year

By Thomas A. Dickerson |

Thomas A. Dickerson reviews cases involving the premature evaluation of the merits of a proposed "disclosure only" settlement; the approval, preliminarily, of the Metropolitan Museum of Art's "Pay what you wish, but you must pay something" class action; the certification of a tenant's class action alleging improper deregulation of apartments notwithstanding the landlord's receipt of J-51 tax benefits; and the decertification, in part, of a class action brought by credit card terminal lessees alleging unreasonable fees and a failure to reveal the full terms of the lease.

Howard Epstein and Theodore Keyes

Case Law Suggests Counsel Should Advise Clients About Available Insurance

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: Over the years, we have often reminded insureds of the importance of promptly placing their insurance carrier on notice of new claims. Based on recent case law, defense counsel are advised to raise the issue of available insurance with their clients when counsel are retained to defend a new claim.

Jeffrey S. Klein and Nicholas J. Pappas

Recent Developments in Non-Compete Law

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas survey recent legislation aimed at narrowing the scope of interests that will legally support judicial enforcement of restrictive covenants and/or limiting the enforceability of non-compete agreements, examine several specific government investigations into non-compete practices, and outline suggestions for employers to consider when reviewing their use of non-compete agreements.

Stephen Treglia

Whither Breach Notification Laws?

By Stephen Treglia |

In his E-Communications column, Stephen Treglia writes: What sense can businesses that possess their customers' or clients' personal data make of the new administration's unclear stance on cybersecurity regulations? Many entities have either already invested heavily in developing internal policies and security staff to avoid regulatory penalties or civil lawsuits or are planning to do so in the very near future. Should they continue to do so or should they dismantle or halt the process?

Andrew Lavoott Bluestone

The Statute of Limitations in Legal Malpractice

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone writes: Missed statutes of limitation are the subject matter of many legal malpractice cases—and ironically, late malpractice cases themselves come up far more regularly than expected.

Thomas E.L. Dewey

Challenging Settlement Agreements Via 'Retention of Jurisdiction' Provisions

By Thomas E.L. Dewey |

Settlement and Compromise columnist Thomas E.L. Dewey writes that a recent holding in the 'Patton Boggs v. Chevron' case demonstrates that "retention of jurisdiction" provisions in stipulations of dismissal can lead to litigation with non-parties over underlying settlement agreements. At the same time, it signals to would-be intervenors in such cases that they must show not only that they have legally protected interests in the settlement agreements, but also that there are proceedings in the dismissed actions in which they seek to intervene.

Gregory J. Bautista

Managing Your Company's Cybersecurity Risks

By Gregory J. Bautista |

Gregory J. Bautista lays out some steps to implementing a cybersecurity plan that's right for your organization, writing that starting with cost-effective preventative and educational measures such as employee awareness training can be the best investment you can make.

Evan T. Barr

SCOTUS to Decide Joint and Several Liability for Criminal Forfeiture

By Evan T. Barr |

Evan T. Barr writes: Federal courts in the past have generally required convicted co-conspirators must be held jointly and severally liable for all proceeds that were at least "reasonably foreseeable." An influential appellate court recently held, however, that a co-conspirator's forfeiture liability instead should be limited to the amount that he personally obtained from the criminal conduct, setting up a circuit split to be resolved by the high court.

Sharon M. Porcellio

Two Decisions Address FOIL, FOIA Issues and a Motion to Disqualify a Firm

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio explores some of the nuances and interplay of the Freedom of Information Act and Freedom of Information Law in relation to New York's various public authorities, and discusses the court's finding that plaintiff filed a motion to disqualify defendants' counsel for tactical reasons.

Arthur J. Ciampi

Ethical Guidelines for Non-Equity Partner Positions

By Arthur J. Ciampi |

Law Firm Partnership Law columnist Arthur J. Ciampi writes: Despite the prevalence of non-equity partner positions and the substantial benefit they bring to the profession and to the careers of many lawyers, some uncertainty remains as to what the title means and how to ensure that firms and their non-equity partners are operating within the ethical norms.

Charlotte A. Biblow

New Draft Guidance Issued on Marine District Permits

By Charlotte A. Biblow |

State Environmental Regulation columnist Charlotte A. Biblow reviews draft guidance released by the New York State Department of Environmental Conservation in December on the issuance of permits for "living shorelines techniques," which encourage the use of green or natural infrastructure rather than engineered erosion protections such as bulkheads and seawalls.

Lawrence W. Newman and David Zaslowsky

CPLR 7502(c): An Underused Weapon

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky write that Section 7502(c) of the CPLR authorizes provisional remedies in aid of arbitration. It can be used in aid of arbitrations that take place both in and outside of New York, thus making the statute broader than its sister statute governing attachments in aid of litigation. Perhaps the most interesting question about the statute is how come it is not used more?

Anita Bernstein

Vicarious Liability for Judiciary Law §487 Violations

By Anita Bernstein and Lauren Boulbol |

Anita Bernstein and Lauren Boulbol of Brooklyn Law School writes: Violating New York Judiciary Law §487 can be memorably costly for an errant attorney, but successful plaintiffs may have to worry about collecting on §487 judgments they receive. Lawyers' assets are not always in ready reach of prevailing parties. How can plaintiffs collect their judgments when defendants' assets and malpractice insurance are both limited?

Robert C. Scheinfeld

The Supreme Court's Impact on Patentable Subject Matter

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Twenty patents. That's how many were invalidated in only three decisions in the last few weeks alone. Patent practitioners cannot be blind to the enormous impact the U.S. Supreme Court's decision in 'Alice Corp.' has had on narrowing the scope of available patentable subject matter, rendering quite uncertain whether patents directed to computerized business methods or ways of conducting transactions over the Internet, by way of example only, will ever survive scrutiny.

Martin Flumenbaum and Brad S. Karp

Contracting in the Digital Age: The Second Circuit and Arbitration Clause Enforceability

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: Over the past year and a half, the circuit, along with the Southern District, have issued three important decisions interpreting arbitration clause enforceability in both the consumer and employment contexts. At first glance, these decisions all seem to turn on practical considerations, tracking factors like the prominence of the arbitration clause. But arbitration enforceability is not merely an empirical inquiry. In fact, the recent opinions analyze these practical factors to underscore a more fundamental judicial concern: preserving the integrity of contractual bargaining.

Julian D. Ehrlich

An Opening in Labor Law §240

By Julian D. Ehrlich |

Julian D. Ehrlich writes: Recently, a long-simmering rift has widened within the Appellate Divisions regarding the application of the Scaffold Law to the common worksite accident scenario where a portion, but not all, of a worker's body falls through an opening.

Robert S. Kelner and Gail S. Kelner

Applications for Leave to Serve a Late Notice of Claim Under 'Newcomb'

By Robert S. Kelner and Gail S. Kelner |

Trial Practice columnists Robert S. Kelner and Gail S. Kelner analyze the Court of Appeals' recent decision in 'Newcomb v. Middle Country Central School' and the profound impact it will have on a motion court's discretion to extend the time to serve a notice of claim on a public corporation.

Francis J. Serbaroli

Revising the 2013 Reforms to the Not-For-Profit Corporation Law

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli of Greenberg Traurig summarizes recently enacted revisions to the Nonprofit Revitalization Act of 2013. He notes that most not-for-profit organizations not only will have to revise their corporate documents, policies and procedures to comply with this new law's requirements, but also will have to educate their governing boards, management and employees.

Carlos J. Cuevas

Intentional Fraudulent Conveyance and the Badges of Fraud: 'Messer v. Chu'

By Carlos J. Cuevas |

Carlos J. Cuevas reviews a recent Eastern District case where a trustee commenced an adversary proceeding to avoid two transfers by a debtor to his significant other at a time when the defendant was being sued in a civil action in Texas. Judge Nancy Hershey Lord wrote a thoughtful opinion concerning the application of the badges of fraud to establish fraudulent intent.

Blank, Bonaccorsi

Amended DFS Regulations Answer Some but Not All Questions

By Timothy C. Blank and Hilary Bonaccorsi |

Timothy C. Blank and Hilary Bonaccorsi of Dechert write: The amended cybersecurity regulations issued by the New York State Department of Financial Services resolve certain issues, but key questions remain. This article explains why the changes in the amended regulations are important to "Covered Entities," and identifies important questions that still need to be resolved.

Michael Hoenig

Guarding Against Improper Argument at Trial: Courts, Counsel Are Instrumental

By Michael Hoenig |

Complex Litigation columnist Michael Hoenig writes: That courts exercise heightened vigilance in criminal cases when prosecutorial arguments cross the lines of prejudice should not be surprising. The strong court response to inflammatory comments in the recent 'People v. Brisco' criminal case had me wondering whether courts generally tend to exercise the same degree of vigilance and firepower in civil trials. It seems that, while ample lip service is paid by courts to established high-road principles, each case, so to speak, sits on its own bottom and outcomes are not predictable with certainty.

Nicholas M. De Feis and Philip C. Patterson

The Perils of Resisting Extradition to the United States

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

In their International Criminal Law and Enforcement column, Nicholas M. De Feis and Philip C. Patterson reviews 'United States v. Tuzman', where a defendant was subjected to "provisional arrest" in Colombia at the United States' request and sent to the notorious La Picota prison in Bogota, and then had to fight to be extradited.

Risks of Changing Professional Liability Insurers

By Jeffrey G. Steinberg |

Jeffrey G. Steinberg writes that unlike homeowner, automobile or other general liability insurance, a switch in carriers for professional liability policies exposes the insured to a potential gap in coverage, notwithstanding the fact that continuous policies may be maintained. Nevertheless, there are two ways that the risk of a coverage gap from switching claims-made carriers may be minimized.

Thomas F. Gleason

Implementation of Litigation Holds for Nonparties

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason discusses the obligations of a nonparty that is requested to implement a litigation hold, and considerations for the demanding party before it issues a discovery request.

E. Leo Milonas and Andrew C. Smith

Departments Addressed Matters of First Impression in the Fourth Quarter

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith report on recent decisions involving shareholders' common law right to inspect books and records and whether that extends to a corporation's wholly-owned subsidiaries, the in pari delicto doctrine as applied to Madoff feeder funds, personal jurisdiction, the taxation of fiber optic cables as real property, subject matter jurisdiction of family court, and more.

Justice Saliann Scarpulla

Commercial Division Rules Facilitate the Efficient Resolution of Disputes

By Saliann Scarpulla |

Justice Saliann Scarpulla highlights some new and evolving features of the Commercial Division Rules, including refinements to the division's jurisdiction, changes to the privilege log rule, corporate deposition rule, the rule concerning the submission of orders to show cause, and the addition of a new rule concerning settlement conferences, and outlines additional proposals under consideration.

Timothy M. Tippins

Syndrome Testimony: Angels and Pinheads

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: Because sexual abuse typically occurs in secret and leaves no trail of physical evidence, much depends upon the credibility of the complainant. Enter the mental health professional and the Child Sexual Abuse Accommodation Syndrome.

Jeremy H. Temkin

Tax Enforcement, John Doe Summonses and Digital Currency

By Jeremy H. Temkin |

Tax Litigation Issues columnist Jeremy H. Temkin writes: With the advent of virtual currencies, the IRS faces a new threat that has the potential of rendering assets effectively untraceable. In tackling the challenge presented by 21st century transactions, the IRS has turned to a tried-and-true method that has been an integral part of its enforcement program for decades.

Debbie Kaminer

Second Circuit to Hear Case on Sexual Orientation Discrimination

By Debbie N. Kaminer |

Debbie N. Kaminer previews 'Christiansen v. Omnicom', a case addressing whether Title VII's prohibition of discrimination "because of sex" includes a prohibition on discrimination based on "sexual orientation" that will soon be heard by the Second Circuit.

Roy L. Reardon and William T. Russell Jr.

'Stonehill Capital' Clarifies When an Agreement Is Binding and Enforceable

By Roy Reardon and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Roy Reardon and William T. Russell Jr. review a decision where the court found a defendant had entered into a binding agreement and was liable for breach despite the fact that its acceptance of a bid was expressly subject to the execution of a final agreement and despite the fact that the defendant expressly reserved the right, in its sole and absolute discretion, to withdraw from sale any or all of the assets it had offered to sell.

Sue C. Jacobs

The Possible Consequences of Pursuing Outstanding Legal Fees

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs writes: The action for attorney fees is one in which all the parties' dirty laundry is aired. An attorney who sues for fees can expect to litigate a malpractice claim, along with breach of contract, breach of fiduciary duty and other possible causes of action a creative lawyer conceives.

Eric Tirschwell

Criminal Justice Reform at a Crossroads: U.S. Sentencing Commission Weighs In

By Eric Tirschwell |

Eric Tirschwell of Kramer, Levin, Naftalis & Frankel writes that following the election of Donald Trump and the nomination of a vocal opponent of federal criminal sentencing reform as Attorney General, optimism among proponents of criminal justice reform has been dramatically diminished, if not extinguished altogether. Enter the U.S. Sentencing Commission.

John L.A. Lyddane and Barbara D. Goldberg

Importance of Non-Party Depositions to the Defense of Med Mal Cases

By John L.A. Lyddane and Barbara Goldberg |

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara Goldberg write: Non-party depositions will add time and expense to the preparation of the defense for trial, and a corresponding benefit may not initially be obvious. The challenge is to determine in advance which non-party should be deposed.

Sidney Kess

Tax Concerns for Starting a Business From Home

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the two tests for being eligible for a home office deduction, calculating costs for deduction and the simplified method of calculation, the gross income requirement, and special considerations for owner-employees if the business is incorporated.

Stephen M. Kramarsky

Old Songs, New Technologies: Digital Rights for Pre-1972 Recordings

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky examines a case tackling the issue of digital rights for pre-1972 recordings, writing: 'Flo & Eddie v. Sirius XM Radio' provides an in-depth examination of a complex area of copyright law that rarely gets that kind of treatment, and the policy questions are worth thinking about.

Bruce Maffeo

One Step Over the Line: Second Circuit Revisits Limitations on Proffer Agreements

By Bruce Maffeo |

Bruce Maffeo discusses 'U.S. v. Rosemond,' where the Second Circuit provided much needed guidance on the limits on the government's ability to restrict defense counsel from mounting an effective defense that is inconsistent with statements provided by their clients in earlier plea negotiations.

Harvey M. Stone and Richard H. Dolan

Challenging Expert Reliability, Vacating a Default, Discovery in Criminal Cases

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on Judge Spatt's rejection of a coram nobis petition challenging, in light of post-trial developments, the reliability of a government expert witness in a coin fraud case, also his vacating a default judgment in a bankruptcy proceeding, and Judge Matsumoto's denial of a defendant's request for discovery and a bill of particulars in a criminal case.

Issa Kohler-Hausmann, Avery P. Gilbert and Christopher Seeds

Children Sentenced to Life: A Struggle for the N.Y. Board of Parole

By Issa Kohler-Hausmann, Avery P. Gilbert and Christopher Seeds |

Issa Kohler-Hausmann, Avery P. Gilbert and Christopher Seeds write: In accordance with recent U.S. Supreme Court Eighth Amendment jurisprudence, persons sentenced to life as juveniles now must be provided a "meaningful opportunity" for release based on demonstrated maturity and rehabilitation. New York is particularly challenged in its efforts to come into compliance with this new constitutional law, given its status as one of two states automatically prosecuting teenagers 16 and up as adults, and its parole hearing practices.

Michael B. Gerrard and Edward McTiernan

New York Environmental Legislation: 2016 in Review

By Michael B. Gerrard and Edward McTiernan |

Environmental Law columnists Michael B. Gerrard and Edward McTiernan write: While 2016 did not bring major environmental legislation in New York state, laws were enacted that could have significant impacts in coming years, including a law that allows plaintiffs to bring toxic tort claims in connection with newly designated Superfund sites that might otherwise be barred by existing statutes of limitations. Gov. Andrew M. Cuomo also signed laws requiring lead testing of drinking water in schools, establishing a task force to study ocean acidification, and creating a program to fund local climate change mitigation and adaptation projects.

A. Michael Weber

Mandatory Arbitration Agreements: To Be or Not to Be

By A. Michael Weber |

A. Michael Weber discusses steps employers can take in drafting mandatory arbitration policies to help protect against challenges to their enforceability.

Kathleen A. Scott

Report on U.S. Anti-Money Laundering Compliance

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott writes: The Financial Action Task Force, an international organization of regulators that develops recommendations on anti-money laundering and anti-terrorism financing, recently issued its latest evaluation of the United States. It was found mostly compliant with the 40 recommendations, but there are still are some deficiencies to be addressed.

Lewis R. Clayton and Eric Alan Stone

Claim Amendments: Who Should Bear the Burden of Proving (Un)patentability?

By Lewis R. Clayton and Eric Alan Stone |

Intellectual Property Litigation columnists Lewis R. Clayton and Eric Alan Stone write: Given the infrequency with which patent owners succeed in amending or substituting for challenged claims, shifting the burden of proving (un)patentability to the petitioner, as was argued before the Federal Circuit on Dec. 9, might have a significant effect on Inter Partes Review practice. We therefore report here on the pending appeal in 'Aqua Products' and the current state of the law, and we offer suggestions for practitioners.

Shira Scheindlin

A Judge's Empirical Experience in Class Action Litigation

By Shira A. Scheindlin |

Shira A. Scheindlin, in preparation for a recent symposium, reviewed all of the class action cases she handled during her years on the Southern District bench, and here shares elementary statistical information that she found to be of interest and might be of interest to those lawyers who toil, have toiled, or plan to toil in the class action arena.

Costantino P. Suriano and Daniel Markewich

Are Contractually-Agreed Prevailing Party Attorney Fees Covered Under a CGL Policy?

By Costantino P. Suriano and Daniel Markewich |

Costantino P. Suriano and Daniel Markewich discuss the circumstances under which contractual legal fees in a lawsuit brought by a building owner against an insured contractor might be covered under a CGL policy in New York.

Shepard Goldfein and James A. Keyte

Antitrust Yearly Wrap-Up: 'Unbuckle' for 2017?

By Shepard Goldfein and James Keyte |

Antitrust Trade and Practice columnists Shepard Goldfein and James Keyte write: The past year was a tumultuous one, and to some degree antitrust developments necessarily lag behind events and may take years to manifest changes. Hence, in the coming year, observers curious about antitrust developments should take note of who the Trump administration appoints to the leadership positions within the DOJ and FTC and the antitrust experience of the new junior Justice of the Supreme Court.

Wendi Lazar

Will Trump Companies' Employment Lawsuits Be Barometer for Presidency?

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar writes: Since 2009, the Labor Department's Wage and Hour Division has sued companies to collect nearly $2 billion in back wages for American workers with claims similar to the ones Trump employees have brought. Trump's nominee to head the department, Andrew Pudzer, seems unlikely to follow suit.

Richard Raysman and Peter Brown

Broadly Drafted Software Licenses and Their Enforcement

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown discuss the recent Southern District decision in 'PaySys International', in which, because the license broadly defined potential licensees and granted expansive rights under both exclusive and non-exclusive license periods, all of the licensor's copyright infringement claims failed.

Anthony E. Davis

Changes to NY RPCs and an Ethics Opinion on Withdrawing for Non-Payment of Fees

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis reviews changes to the New York Rules of Professional Conduct as adopted by the New York State Bar Association's Committee on Standards and Attorney Conduct

C. Raymond Radigan and Jennifer F. Hillman

Fiduciaries and Settlements: SCPA 2102 Is an Important, Under-Utilized Tool

By C. Raymond Radigan and Jennifer F. Hillman |

In their Trusts and Estates Law column, C. Raymond Radigan and Jennifer F. Hillman discuss SCPA 2102(4), which can be effectively used to compel the payment of a claim or a legacy and then (later) compel compliance with a settlement agreement—a tactic which was recently shown in 'Estate of Petschek', a case out of New York County Surrogate's Court.

Ernest Edward Badway

SEC's 'Obey-the-Law' Injunction: Is it Ever Possible to Vacate?

By Ernest Edward Badway |

Fox Rothschild partner Ernest Edward Badway writes that "obey-the-law" injunctions, favored by regulators such as the SEC, are incredibly powerful devices that create an albatross hanging over the head of any defendant subjected to them. But when they are no longer equitable due to changes in decisional law, factual circumstances, or the passage of time, a court in its discretion may vacate such a permanent injunction.

Evan H. Krinick

Insurers Using Technology to Fight Insurance Fraud

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick discusses new tools such as social media and data analytics that insurance companies are using to help stop fraudulent policies from being issued or renewed based on false representations of fact and to block false, inflated, or otherwise fraudulent claims from being paid.

Shmuel Vasser

Conflicting Needs of International Bankruptcy Cases and Internet Privacy

By Shmuel Vasser |

Shmuel Vasser writes: Can a court compel an email service provider like Yahoo to turn over a user's email account content without that user's involvement or consent? The Bankruptcy Court for the District of Delaware recently decided it cannot, at least on the specific facts facing it in the Irish Bank case.

Elkan Abramowitz and Jonathan Sack

'Salman': Addressing Vagueness in Insider Trading Law

By Elkan Abramowitz and Jonathan Sack |

White-Collar Crime columnists Elkan Abramowitz and Jonathan Sack discuss 'Salman v. United States', where the U.S. Supreme Court restated what most commentators saw as the pre-existing law of tipper/tippee liability. However, the court broke new ground in its discussion of the vagueness doctrine: the principle that criminal laws must provide clear notice of the conduct they prohibit.

Rahul Mukhi and Martha Vega-Gonzalez

Ethics of Using Hacked Information to Prosecute Criminal and Civil Claims

By Rahul Mukhi and Martha Vega-Gonzalez |

Rahul Mukhi and Martha Vega-Gonzalez write: The documents contained in WikiLeaks, the Panama Papers and other troves of information never meant for public consumption have no doubt piqued the interest of prosecutors and plaintiffs' lawyers. However, there are significant legal and ethical pitfalls in taking information illegally obtained by hackers and using it in litigation, whether criminal or civil.

Eva Talel and Richard Siegler

Delinquent Payments: Addressing Usury Defenses and Public Notice Claims

By Eva Talel and Richard Siegler |

In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler examine the legal ramifications of imposing monetary charges, such as late fees, interest and the like, for non-payment or late payment of proprietary rent (maintenance) or common charges. They also discuss the statute and case law relating to New York criminal usury, as they may apply to such charges, and analyze recent case law addressing potential defamation claims if the names of owners in default are published, made public or otherwise disclosed.

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

Appellate Review of Exercise of Discretion by Trial Court

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. discuss appellate review of the exercise of discretion by the trial court. While CPLR §5501, Scope of Review, states in subsection (c) that "The appellate division shall review questions of law and questions of fact on an appeal from a judgment or order," it does not mention that court's power to review an exercise of discretion by the trial court. Nevertheless, the Appellate Division unquestionably possesses all of the powers of the Supreme Court. Its authority "is as broad as that of the trial court," and one often sees an Appellate Division decision and order (one paper) reversing or modifying an order or judgment of the Supreme Court "on the law, the facts and in the exercise of discretion."

Mark A. Berman

Forensic Computer Reviews and Emails as Documentary Evidence

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman examines the implications of recent decisions that addressed forensic reviews of an opposing party's computer to obtain electronically stored information, as well as decisions on motions to dismiss predicated upon "documentary evidence" in which emails were offered as support for dismissal.

Martin A. Schwartz

Officer's Accidental Use of Deadly Force Held Violation of Fourth Amendment

By Martin A. Schwartz |

In his Section 1983 column, Martin A. Schwartz examines how the courts have addressed questions of seizure under the Fourth Amendment in accidental shootings by police officers. Unlike intentional police shootings, which are clearly seizures, accidental police shootings can raise sticky Fourth Amendment "seizure" issues. Accidental police shootings do not come within a "one size fits all" constitutional model. On the contrary, some accidental police shootings are held to be Fourth Amendment seizures, while others are not.

Jason P. Gottlieb and Michael Mix

Registration and Jurisdiction After 'Daimler': Awaiting Clarity

By Jason P. Gottlieb and Michael Mix |

Jason P. Gottlieb and Michael Mix, of Morrison Cohen, write: New York state law requires an out-of-state corporation doing business in New York to register with the Secretary of State. For years, New York courts held that such registration constituted "consent" to personal jurisdiction in New York for all purposes. However, since the U.S. Supreme Court’s landmark 2014 decision in 'Daimler AG v. Bauman', which severely restricted the paradigm forums in which a corporation is subject to general jurisdiction, New York courts have disagreed regarding whether the doctrine of consent by registration survives 'Daimler'. New York law has become confused, and clarity is needed for plaintiffs and defendants alike.

Elai Katz

Information Sharing and Negotiations for Baseball Broadcast Rights

By Elai Katz |

In his Antitrust column, Elai Katz analyzes two recent developments that have brought attention to information exchanges, a complex and subtle area of U.S. antitrust law. In a simple information exchange case subject to antitrust review, competitors have shared commercially sensitive information with one another without agreeing on a common course of competitive conduct (such as pricing, output, or strategy). Information exchanges, even among direct rivals, can sharpen competition and, unless accompanied by an agreement not to compete, must be shown to have anticompetitive effects in a properly defined market before they can be deemed unlawful.

Roy L. Reardon and William T. Russell Jr.

Correspondent Bank Accounts and Personal Jurisdiction

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

In their New York Court of Appeals Roundup column, Roy L. Reardon and William T. Russell Jr. discuss the court's decision addressing the circumstances in which a foreign bank’s use of a correspondent bank account in New York will subject it to personal jurisdiction. In a 4-3 decision, the court ruled that the manner in which the defendant used the services of New York correspondent bank accounts subjected it to personal jurisdiction in New York. The dissent in the case warned that the decision represents an “about-face” from a prior rule on which foreign banks have relied for four decades, but the majority and a concurring opinion by Judge Michael Garcia took great pains to reconcile their ruling with existing precedent. At the end of the day, the decision provides additional clarity as to the circumstances in which the use of a correspondent account will subject a foreign bank defendant to personal jurisdiction.

Appointing a Cyber Point Person to Minimize Impact of the Inevitable

By Rob Rosenzweig and Uri Gutfreund |

Rob Rosenzweig and Uri Gutfreund, of Risk Strategies Company, offer strategies for minimizing the impact of data breaches. Whether the proper insurance is in place or not, the costs to deal with a data breach can be significant and the type of liabilities can be varied. At the onset of a breach it is crucial to retain a law firm to serve as a "Data Breach Coach." The Data Breach Coach really serves as the quarterback and makes recommendations based on the universe of potentially exposed data at hand; retaining the other necessary vendors such as forensics, public relations, and firms that specialize in notification and credit monitoring.

Julie Muniz

Business Immigration Under Trump: Upcoming Changes and How to Prepare

By Julie Muniz |

In her Immigration Law column, Julie Muniz provides insight into potential immigration initiatives under President-elect Donald Trump who has stated that his immigration plan will focus on increased enforcement and protecting U.S. workers. She explains that the extent to which these two initiatives impact business immigration will depend on how the Trump administration reconciles its desire to attract and retain the best and brightest foreign talent with its pledge to protect the interests of middle and working class Americans. As a result, employers who hire foreign workers will need to adapt quickly in order to remain compliant and meet business objectives.

Daniel M. Lehmann

N.J. Court Rejects 'Manifest Abuse of the Eminent Domain Power'

By Daniel M. Lehmann |

Daniel M. Lehmann, who practices eminent domain law and real property valuation, discusses a decision in New Jersey where the court did not automatically approve the governmental attempt to exercise eminent domain without legitimate consideration. The case highlights for the practitioner the difference between New York's and New Jersey's judicial treatment of a private property owner challenging the use of eminent domain. This case also alerts the practitioner to the possibility that New Jersey courts, unlike New York courts, are on a path toward providing the private property owner with greater constitutional protection.

Michael Rikon

Does a Regulatory Taking Claim Have an Expiration Date?

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon discusses the Dec. 7 decision by the Second Department, in 'Monroe Equities v. State of New York'. The decision addressed the contention that the application of watershed regulations constituted a per se taking under 'Lucas v. South Carolina Coastal Council', 505 U.S. 1003, requiring compensation under the Takings Clause of the U.S. Constitution because claimant was deprived of all economically beneficial use of its property.

Martin Flumenbaum and Brad S. Karp

Electronic GPS Tracking and the Fourth Amendment

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp examine two decisions which appear to reflect the court's growing interest in the constitutionality of the government's use of location information obtained by GPS. In both 'U.S. v. Caraballo' and 'U.S. v. Gilliam', the Second Circuit considered whether a defendant's Fourth Amendment right is violated when law enforcement determines his location by acquiring GPS information from a cellular phone provider, and then uses this information to carry out an arrest.

Zack Hadzismajlovic

Disclosure of Export Control Violations May Disqualify Defense Contractors

By Zack Hadzismajlovic |

Zack Hadzismajlovic, of McCarter & English, discusses proposed and final rules issued by the Directorate of Defense Trade Controls and the Department of Defense. As it presently stands, contractors interacting with export-controlled information could face ruinous consequences if they act too reflexively in addressing cybersecurity incidents and events.

Jerry H. Goldfeder and Myrna Pérez

Challenges to Candidates: Residency and Timing

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez focus on two cases that are significant to voters and practitioners in New York. The first significant case involves a candidate's residency, and how it affects his eligibility to run for office. The second case involved a candidate for U.S. Congress who was declared eligible to run but was, nevertheless, denied a place on the ballot—because the state Supreme Court rendered its decision only four days before the scheduled primary election.

Peter A. Crusco

Search Engine Evidence and the 'Aguilar-Spinelli' Test

By Peter A. Crusco |

In his Cyber Crime article, Peter A. Crusco writes: New technologies inspire clever criminals, requiring more advanced law enforcement crime fighting methodologies. Arguments against arrest usually include the application of long-established legal rules to challenge these new government investigative methodologies. The article demonstrates how one such rule, the 'Aguilar-Spinelli' test, has been asserted in an attempt to undermine search engine evidence used in search warrant applications.

Brian D. Koosed, Anthony P. Badaracco and Erica R. Iverson

New York Judges, Not Juries, Should Decide Whether to Pierce the Veil

By Brian D. Koosed, Anthony P. Badaracco and Erica R. Iverson |

Brian D. Koosed and Anthony P. Badaracco, of K&L Gates, and Erica R. Iverson, formerly with the firm, examine the critical question of who should decide whether to pierce the corporate veil, judge or jury, noting that the question is anything but settled. Indeed, they write, it would be hard to find a question on which federal and state courts are more widely split. This is in large part because the historical roots of veil piercing reach into courts of both law and equity.