Expert Columns

Expert Analysis

Public Employees' Testimony and the First Amendment

By Martin A. Schwartz |

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

Anthony E. Davis

Internet Investigation of Jurors

By Anthony E. Davis |

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

Geoffrey A. Mort

NLRB McDonald's Ruling and Franchisors

By Geoffrey A. Mort |

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

Thomas E.L. Dewey

Oral Settlement Agreement: Read It Into the Record

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey writes: The Second Circuit, in 'Winston v. Mediafare Entertainment', has recognized that an unexecuted settlement agreement may still be enforceable. Although this rule certainly allows for an oral settlement agreement to be binding on the parties to a litigation, a recent New York district court case suggests that the hurdle remains high for an oral settlement agreement to satisfy the Winston standard.

Sue C. Jacobs

Indemnity Agreements in the Commercial World

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs discusses indemnity agreements, emphasizing that courts will strictly construe the obligation. If the document does not specifically require indemnity for defense costs the courts will not find one. If the parties intend to indemnify the indemnitee for its own negligence, the parties should use explicit language mandating that obligation.

Lester M. Kirshenbaum and Alan E. Rothman

State High Court Limits Attachment of Foreign Bank Accounts

By Lester M. Kirshenbaum and Alan E. Rothman |

Lester M. Kirshenbaum and Alan E. Rothman analyze 'Motorola Credit Corp. v. Standard Chartered Bank', a recent Court of Appeals decision that adversely impacts on New York judgment creditors' rights to collect on judgments against defendants' funds located outside of the United States.

John D. Carlin and Fiona E. Darkin

Supreme Court Narrows Scope of Induced Patent Infringement

By John D. Carlin and Fiona E. Darkin |

John D. Carlin and Fiona E. Darkin review the U.S. Supreme Court's decision in 'Limelight Networks v. Akamai Technologies', which held there can be no liability for induced infringement of a patented method under 35 U.S.C. §271(b) unless direct infringement has occurred under Section 271(a) or another statutory provision. The decision has important implications for process patents, especially those in which the required individual steps can be divided among two or more actors to avoid direct infringement liability.

Nicholas M. De Feis and Philip C. Patterson

U.S. No Longer Has Monopoly on Antitrust Enforcement

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 write: Historically, the United States was virtually alone in the world in treating anticompetitive conduct as a criminal offense. Increasingly, however, other countries are criminalizing such conduct and aggressively pursuing antitrust enforcement, indicating that antitrust offenses are on the way to being treated worldwide as seriously as any other international financial crime.

Alton Abramowitz

Service By Facebook: 'Like' or Dislike?

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz discusses a recent decision in which a Support Magistrate authorized the petitioner in a support proceeding to serve the respondent with the summons and petition via Facebook, perhaps signaling the dawn of a new era in the often frustrating realm of serving process on evasive defendants in matrimonial and other family law proceedings.

Jason L. Shaw

Flood Insurance Decisions Create Conflict in Circuit

By Jason L. Shaw |

Jason L. Shaw writes: Three recent federal district court decisions create a conflict within the Second Circuit about whether private insurance companies selling federal flood insurance are immune from liability to the policyholder beyond the policy limits for their bad faith handling of flood insurance claims.

Elai Katz

Sports Leagues Restrictions Under Antitrust Scrutiny

By Elai Katz |

In his Antitrust column, Elai Katz reviews recent decisions on use of student athletes' names and likenesses in video games and telecasts, territorial restrictions for broadcasting professional baseball and hockey games and price-fixing of polyurethane products.

Michael Rikon

A Park Is a Park Unless It's Not

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon discusses the public trust doctrine and the First Department's recent decision allowing NYU to proceed with a building project on land that includes three parcels the lower court had found to be public parkland,

Javier Bleichmar and Cynthia Hanawalt

'IndyMac' Leaves Uncertain Landscape for Opt-Out Litigation

By Javier Bleichmar and Cynthia Hanawalt |

Javier Bleichmar and Cynthia Hanawalt write: The U.S. Supreme Court recently declined to resolve a circuit split on whether its ruling in 'American Pipe & Constr. Co. v. Utah', that the statute of limitations is tolled during the pendency of a purported class action, also applies to the statute of repose under the Securities Act of 1933, leaving lower courts to face ongoing jurisdictional conflicts.

Shari Claire Lewis

Circuit's Decision Clarifies Law of Contributory Cybersquatting

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis, a partner of Rivkin Radler, discusses a case in which the Ninth Circuit rejected contentions that a contributory cybersquatting claim should be permitted to proceed under the ACPA.

Martin Flumenbaum and Brad S. Karp

Oil-for-Food Program Claims Yield RICO and FCPA Rulings

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss the background and implications of 'Republic of Iraq v. ABB,' in which the court affirmed a decision that dismissed Foreign Corrupt Practices Act, Racketeer Influenced and Corrupt Organizations Act, and state law claims brought by the Republic of Iraq against two individuals and numerous business entities based around the world.

Conrad Teitell

Beauty Pageant: Exemption Revoked and Scholarships Taxable

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes: While beauty may be in the eye of the judges, a beauty pageant's qualification as an IRC §501(c)(3) charity is in the eye of the IRS. A recent letter ruling held that monetary awards in a pageant were inextricably linked with services performed in conjunction with pageant operations and thus were not scholarships.

Ben Rubinowitz and Evan Torgan

Wrongful Death Case: Voir Dire as a Bridge to Summation

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write that obtaining a just and proper award from a jury for pain and suffering in a wrongful death case can be challenging. An effective trial attorney must thoroughly prepare for all stages of the trial, including a voir dire that explores the feelings and beliefs of the potential jurors, and a strong summation that relates those feelings and beliefs to the evidence.

John C. Ertman and Richard D. Marshall

Big-Dollar Mortgage Cases on Appeal: Decisions Expected

By John C. Ertman and Richard D. Marshall |

John C. Ertman and Richard D. Marshall write that investors in residential mortgage loan trusts that were created in the real estate boom years have incurred billions of dollars of losses since 2008. In the coming months, decisions regarding statute of limitations and the approval of global trust settlements under New York trust law are expected in two lawsuits over those losses that will have a major impact on the direction mortgage litigation will take.

Stephen Sonnenberg and Emily Pidot

Representative Evidence in Wage and Hour Class Litigation

By Stephen Sonnenberg and Emily Pidot |

Stephen Sonnenberg and Emily Pidot write:During the last year, several decisions nationwide have focused on the use and misuse of representative evidence in wage and hour class actions and have provided litigants with guidance regarding some critical questions.

Sharon M. Porcellio

Sanctions Imposed for Failure to Preserve Surveillance Video

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio discusses a decision concerning the defendant's destruction of a surveillance video which showed a slip and fall accident in a negligence case and its ultimate impact on the plaintiffs' motion for summary judgment.

Jerry H. Goldfeder and Myrna Perez

Voting Restrictions: From Statehouses to Courts

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: Thousands of eligible voters are at risk of having a more difficult time casting their ballots this November than in past years. Since the 2010 legislative elections, new voting restrictions have been passed by legislators in no fewer than 22 states. And voters have fewer protections against discrimination at the ballot box than in prior years.

Christine A. Fazio and Ethan I. Strell

Precautionary Principle: a Rational Approach to Climate Change

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell write: New Yorkers have generally embraced the bulk of scientific evidence that supports the view that the Earth's climate is warming faster than expected due primarily to human activity. However, many people still are unsure that climate change is occurring at all or question the reason for it, and lack enthusiasm for policies that may raise energy prices. Therefore, examples of real-world, local experiences from those adversely impacted by climate change is an important method to engage New Yorkers to support climate change mitigation policies.

Steven Pounian and Justin T. Green.

Unmanned Flight: Legal Challenges of Drones

By Steven Pounian and Justin Green |

In their Aviation Law column, Steven Pounian and Justin Green write: The FAA estimates that roughly 7,500 commercial drone operations will be viable within the next five years. This dramatic increase in air traffic raises safety concerns, including the increased risk of mid-air collisions between drones and manned aircraft, and requires smart and effective regulation to address the risks.

Bruce M. DiCicco

The Fiduciary Duty to Account

By Bruce M. DiCicco |

Bruce M. DiCicco writes: One of the most common issues arising in the context of estate and trust administration in my experience is the refusal or failure of a fiduciary to account to the beneficiaries and/or the cestui que trust. Related to that issue are demands for an accounting when there is no right to request an accounting.

Michael T. Escue

Guidelines Establish Heightened Standards for Banks

By Michael T. Escue |

In his Banking column, Michael T. Escue discusses the Office of the Comptroller of the Currency's recently finalized "guidelines" to establish minimum standards for the design and implementation of risk governance frameworks by certain large banks and minimum standards for the boards of directors of those banks in overseeing the frameworks' design and implementation

Sidney Kess

Challenges for Taxpayers and Tax Practitioners

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: The tax law presents a challenge to individuals and businesses that must comply with rules and regulations and pay what is owed. It is becoming increasingly difficult for tax practitioners to advise clients and comport with their professional responsibilities. While the tax law and practice related to it have always been fluid, the changes of late have come at increased rapidity and volume.

Peter A. Crusco

Compelled Decryption and the Fifth Amendment

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, reviews recent case law in which the courts tackled some of the anticipated questions that a new Apple phone raises, including in what circumstances the government may compel a user to decrypt his or her own digital files.

Edward M. Spiro and Judith Mogul

Recent Rule 45 Developments: Notice and Geographic Limits

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: As several recent decisions make clear, failure to observe even the most technical aspects of FRCP 45 can result in a subpoena being quashed, and the more substantive provisions may require parties to make important tactical decisions about how to present evidence at trial.

John R. Casey

Replacement Cost Insurance Coverage

By John R. Casey |

John R. Casey writes: Replacement cost property insurance coverage for real and personal property is the standard coverage offered in today's insurance market. However, there are significant exceptions and limitations on an insured's ability to recover the replacement cost of his property following a covered loss.

Robert Clarida and Robert J. Bernstein

Use of 'Deep Throat' Film Scenes Found to Be Fair Use

By Robert J. Bernstein and Robert W. Clarida |

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida analyze a recent decision in which Southern District Judge Thomas P. Griesa, weighing the alleged re-creation of three scenes from the infamous pornographic film "Deep Throat" as part of a 2013 film, "Lovelace," produced by The Weinstein Company, upheld the defense of fair use and granted Weinstein's motion for judgment on the pleadings.

C. Evan Stewart

Privilege: Misunderestimated or Misunderstood?

By C. Evan Stewart |

C. Evan Stewart writes: For almost 25 years, I have been writing about the eroding status of the attorney-client privilege. Practitioners, legal academics, and judges seem either not to understand the privilege, or believe that the purposes it serves are overstated or not important. One recent case—which purports to strengthen the privilege—further documents this disheartening state of affairs.

Michael Hoenig

Experts in Crashworthiness; 'Fixodent' Cases

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig reviews recent developments in three cases: the opinion of a plaintiff's crash injury causation expert was deemed "unreliable" by the Eleventh Circuit, four experts' opinions that plaintiff's zinc-induced copper-deficiency myelopathy was caused by using Fixodent denture adhesive were excluded, and the Fourth Department found a defendant's attorney in a motor vehicle accident case should have been allowed to question plaintiff regarding possible tax fraud in her tax returns.

E. Leo Milonas and Frederick A. Brodie

Navigating Uncharted Legal Waters

By E. Leo Milonas and Frederick A. Brodie |

In their Appellate Division Review, E. Leo Milonas and Frederick A. Brodie report on recent decisions involving a shareholder's common-law right to corporate information, whether a murderer may indirectly inherit from his or her victim, the "knowing, intelligent and voluntary" standard for criminal defendants' waivers of appellate rights, and sealing of criminal records after completion of a judicial diversion or drug treatment program.

George Bundy Smith and Thomas J. Hall

General Jurisdiction in New York After 'Daimler'

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 the new standard set by the U.S. Supreme Court in 'Daimler v. Bauman' has reduced the reach of New York courts' general jurisdiction over non-domiciliary corporations by providing only a "limited set of affiliations" that can now confer general jurisdiction.

Milton Springut

Insurance Coverage in Trademark Disputes

By Milton Springut |

Milton Springut analyzes a recent opinion upholding an insurer's denial of coverage to indemnify judgments in two trademark counterfeiting cases. The case provides insight to trademark practitioners about insurance coverage and provides information about strategies for trademark owners' enforcement efforts.

James Worthington and Brendan M. Goodhouse

'Peculiar Knowledge' Doctrine in Credit Crisis Litigation

By James Worthington and Brendan M. Goodhouse |

James Worthington and Brendan M. Goodhouse write that what was previously something of a backwater in New York law—the "peculiar knowledge" doctrine—has seen rapid development in the past couple of years. The authors examine the history of the doctrine, how New York courts have applied it to fraud claims in cases arising out of the financial crisis involving sophisticated entities, and potential strategic considerations that litigants may face.

Roberta Karmel

Disclosure of Metrics on Sustainability

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: In the past, the SEC disclosure policy was used only infrequently for the purpose of advancing societal good. One example is corporate disclosure of environmental infractions. A similar issue is whether the SEC should compel companies to disclose the effects of climate change on their businesses. Today, however, some activists are attempting to utilize the federal securities laws to implement political policies in order to compel large multinationals to behave as better corporate citizens.

Justice Kamins

New Criminal Justice Legislation

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins reviews criminal justice legislation enacted in the last session, including three substantive pieces designed to strengthen New York's laws relating to public corruption, address the dramatic increase in heroin trafficking and abuse, and permit the use of marijuana for medical purposes.

David L. Hall and Claire Coleman

Banking and Bombs: What the 'Linde' Verdict Portends

By David L. Hall and Claire Coleman |

David L. Hall and Claire Coleman write that the recent verdict in 'Linde v. Arab Bank,' should serve as a warning to international financial institutions: The consequences of ineffective monitoring of financial transactions for suspicious activity are potentially dire, and reliance upon automated AML screening procedures consistent with banking industry practices is not enough.

Richard Raysman and Peter Brown

Can an Email Account Be Searched Without Probable Cause?

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown describe two leading cases that reject the government's petitions for unfettered access to a target's email accounts; a case that reaches a contrary conclusion, even after concluding that the government's request lacked probable cause; and a series of opinions analyzing the same warrant request that came to diametrically opposite conclusions.

Shepard Goldfein and James A. Keyte

Dairy Sellers Case Addresses Causation at Summary Judgment

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte review the history of 'Dean Foods Co. v. Food Lion,' in which milk wholesalers defending themselves against price-fixing allegations have asked the U.S. Supreme Court to decide whether a plaintiff "must produce evidence of causation to defeat a motion for summary judgment, or whether a court may instead presume causation at summary judgment and permit the case to proceed to trial based on that presumption."

David B. Rosenbaum and Brian D. Graifman

'Branic': Shelter Occupant Entitled to Rent-Stabilized Lease

By David B. Rosenbaum and Brian D. Graifman |

David B. Rosenbaum and Brian D. Graifman write: Imagine a gas explosion on Park Avenue causes the city to temporarily relocate residents to a nearby hotel while their building undergoes repairs. Some of them enjoy their temporary accommodations, claim a permanent tenancy and demand rent-stabilized leases and benefits. Are people truly entitled to rent stabilization because they happened to have spent time at a temporary shelter as their homes are rebuilt?

Harvey M. Stone and Richard H. Dolan

Challenge to Sex Offender Registration Dismissed

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions which involved employer status and aiding and abetting in a discrimination case, sex offender registration and residency requirements, and more.

Peter M. Fass

Bad Actors Disqualified From Rule 506 Offerings

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass discusses the amendments to Rule 506 of Regulation D under the Securities Act of 1933 that prevent certain felons and other bad actors to more broadly solicit investors and publicize their real estate offerings.

Michael I. Rudell and Neil J. Rosini

Decision on TVEyes Service Extends Fair Use for Databases

By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini discuss the recent decision in 'Fox News v. TVEyes,' which allowed a searchable database to incorporate copyrighted works in their entirety and provide users with excerpts as a fair use. In approving these key features, the court followed the trail blazed by 'Authors Guild v. Hathi Trust' and 'Authors Guild v. Google' which held that electronic libraries of books created to allow users to search for keywords or terms were protected by fair use.

David M. Barshay

Post-IME Demands for an Examination Under Oath

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay asks: What happens when an insurer denies all future benefits based on the results of an independent medical examination, but subsequently demands the injured person submit to an examination under oath? Must an insurer have a reasonable basis for requesting an EUO?

Andrew N. Vollmer

Need for Narrower Subpoenas in SEC Investigations

By Andrew N. Vollmer |

Andrew N. Vollmer writes: Unduly broad requests by the SEC for electronic documents slow the production process, extend investigations, and significantly increase the associated costs. Without sacrificing enforcement goals, the staff of the Division of Enforcement could use more specifically tailored document requests, which would allow the agency to allocate its resources more efficiently, reduce costs for recipients of the requests, and treat those recipients more fairly.

Sarah S. Gold and Richard Spinogatti

Demand Futility in Delaware Derivative Actions

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti write that application of demand futility has often been confusing as trial courts have attempted to analyze particular fact patterns. Recently, however, courts have focused on the central concept that a substantial likelihood of personal liability compromises the directors' ability to consider a demand impartially.

Gregory R. Alvarez

Law Brings Climate Risks Within Land Use Process

By Gregory R. Alvarez |

Gregory R. Alvarez writes: Ensuring that the memories of Hurricane Sandy are ingrained into the brains of state decision-makers when they must consider approving major new development projects is a laudable legislative goal. However, buried in the new Community Risk and Resiliency Act is a separate requirement which could have a similarly far-reaching impact on all municipal decisions being rendered on new projects to be constructed within the state's borders.

Robert J. Anello and Richard F. Albert

Statute of Limitations in SEC Enforcement Actions

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: The last arrow in the SEC's quiver to avoid a strict five-year limitation has been its argument that when it seeks so-called "equitable" remedies, like injunctions and disgorgement, the limitations period contained in Section 2462 is inapplicable. This final effort to avoid statutory time constraints may be doomed, however.

Thomas A. Moore and Matthew Gaier

Scope of Liability for Drug Testing

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier discuss the Second Department's recent assessment of the scope of the duty of reasonable care owed by laboratories that perform drug testing to the subjects of the testing.

H. Christopher Boehning and Daniel J. Toal

Microsoft Paves the Way for Data Privacy Battle

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison write: Microsoft Corporation has found itself at the center of an intense legal battle regarding the ability of the United States government to subpoena data stored abroad. In addition to drawing the attention of constitutional law scholars, technology companies, and lawmakers, the case has also implicated some emerging areas of e-discovery practice.

Jeffrey S. Klein and Nicholas J. Pappas

Claims Against Franchisors as Alleged 'Employers'

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas analyze franchisors' defenses to claims by franchisee employees under the Fair Labor Standards Act and some recent cases which illustrate the steps franchisors may take to protect themselves against such claims.

Paul Bennett Marrow and Craig E. Penn

Policing Unfair Arbitration Clauses

By Paul Bennett Marrow and Craig E. Penn |

Paul Bennett Marrow and Craig E. Penn write that a "war" has broken out between those who believe 'AT&T Mobility v. Concepcion' delivers a near death blow to the application of unconscionability under the Federal Arbitration Act and those who believe unconscionability is still viable. As the Supreme Court may not resolve this issue for years, if ever, the authors suggest two viable alternatives available for evaluating the fairness of an arbitration clause.

John P. Furfaro and Risa Salins

Balancing Employee Rights and Confidentiality

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins write: Employers have long maintained confidentiality policies to restrict employees from disseminating classified company information. The need for confidentiality is imperative today in light of the widespread use of social media and recent online security breaches. However, employees have the right to discuss their terms and conditions of employment, and the National Labor Relations Board has thus wrestled with protecting company confidentiality and preserving employee rights.

Dodd-Frank and International Whistleblower Claims

By J. Gregory Lahr and Ryan C. Chapoteau |

J. Gregory Lahr and Ryan C. Chapoteau analyze the Second Circuit's recent opinion in 'Liu Meng-Lin v. Siemens,' which held that whistleblowers who are noncitizens working for a foreign company are not afforded protection by the anti-retaliation provision of Dodd-Frank, and affirmed that listing a company's securities on the New York Stock Exchange is a fleeting connection that does not overcome a presumption against a statute's extraterritoriality reach.

Ilene Sherwyn Cooper

A Matter of Interpretation: Construction of Wills

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: The construction of a testamentary instrument can play an important role in ascertaining the disposition of an estate, the interests of its beneficiaries, and the duties and responsibilities of its fiduciary. The intent of the testator, the meaning of the words used, and extrinsic evidence all may affect the interpretation of the document, as recent cases demonstrate.

Michael J. Hutter

Admissibility of Habit Evidence in Negligence Actions

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes that while habit evidence is admissible under FRE 406 in negligence actions to show what occurred on the occasion of a person's injury, or careful or careless conduct on the issue of the person's negligence or comparative fault without any limitations, present New York law is restrictive regarding the admissibility of habit evidence in negligence actions.

Christopher Dunn

Justice Department and New York Civil Rights Cases

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: The disclosure of Holder's planned departure spawned broad discussion about his legacy, which includes controversies in New York. For the most part, the DOJ's involvement here has come in terrorism cases and national security challenges. But although the department's participation in civil rights litigation is far less frequent, that participation can have a major impact on civil rights litigation, for better or for worse.

John H. Bae

Third-Party Protections in Mass Tort Chapter 11 Cases

By John H. Bae |

John H. Bae writes that an important component to successful mass tort restructurings is shielding the parties willing to settle with the debtor from further litigation by tort victims. Historically, courts have addressed this problem by approving third-party releases of claims against the settling parties and implementing channeling injunctions, redirecting claims against the settling parties to a trust that is established to address those claims.

Lawrence W. Newman and David Zaslowsky

Avoiding Time Bar for Enforcing International Arbitral Awards

By Lawrence W. Newman and David Zaslowsky |

In their International Dispute Resolution column, Lawrence W. Newman and David Zaslowsky write: The statute of limitations for enforcing international arbitration awards in the United States is shorter than that for enforcing judgments. If the former period has run, can one turn an arbitration award into a judgment outside the United States and then use the longer period to enforce the award that has now metamorphosed into a foreign judgment?

Alexis S. Axelrad

U.S. Immigration Law: Barometer for Recovering Economy

By Alexis S. Axelrad |

In her Immigration Law column, Alexis S. Axelrad discusses some of the most frequently used visa categories accessed by U.S. employers for the temporary hiring of foreign nationals, including key concepts, requirements, and limitations of those categories, while complying with U.S. immigration laws whether in boom or bust economic conditions.

Steven V. Treglia

NSA's Successes and Hurdles Caused by Snowden's Revelations

By Stephen Treglia |

In his E-Communications column, Stephen Treglia, legal counsel for the Investigations Section at Absolute Software Corporation, analyzes litigation stemming from the National Security Agency's program authorizing the bulk collection of cellphone metadata, a program revealed to the public in June 2013 as a result of information Edward Snowden had turned over to the media.

Jeffrey G. Steinberg

Lawyers Professional Liability Insurance: Coverage Issues

By Jeffrey G. Steinberg |

Jeffrey G. Steinberg writes: Although insured lawyers and their insurers are sophisticated groups, many of the former seem willing to purchase their professional liability insurance solely on the basis of price and without regard to subtle but important differences between policies, and many of the latter seem willing to accept the determination of the New York State Insurance Department that Insurance Law §3420(a) applies to such policies.

Eric Dinnocenzo

Legal Fees in Declaratory Judgment Actions Against Insurers

By Eric Dinnocenzo |

Eric Dinnocenzo writes: It's not often that judges encourage litigants to appeal their decisions so they will be reversed. But Justice Shirley Kornreich did just that in a recent decision denying an attorney fee award to a prevailing plaintiff in a declaratory judgment action against its insurer, due to its wrongful refusal to provide it with a defense in a third-party action.

Howard Epstein and Theodore Keyes

Hurricane Sandy: Courts Begin Issuing Insurance Rulings

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: As we approach the two-year anniversary of Hurricane Sandy, we review the impact that policy provisions concerning flood and water damage and physical damage requirements have had on insurance disputes concerning Sandy-related claims.

Thomas F. Gleason

Affirmations and Declarations in New York Practice

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason discusses a recent amendment to CPLR 2106, which previously allowed unsworn affirmations instead of affidavits only by certain professionals, but now allows New York courts to consider unsworn affirmations by any person physically outside the United States, where there may be no clear analog of the notary, or where there are religious, social or bureaucratic impediments to obtaining a sworn statement for extraterritorial use.

Jennifer H. Rearden and Seema Gupta

Commercial Division's New Approach to Privilege Logs

By Jennifer H. Rearden and Seema Gupta |

Jennifer H. Rearden and Seema Gupta write that although the new Commercial Division discovery rule expresses a preference for categorical privilege logs, it provides little insight into the form those logs should take. This issue likely will be addressed by courts in the coming months and years. In the meantime, judicial interpretations of similar rules in other jurisdictions may be instructive.

Arthur Ciampi

Good Things Come in Small Packages

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi writes: As the old maxim goes, "good things come in small packages." Recently, the Appellate Division, First Department, issued a one-page decision, 'Le Bel v. Donovan,' which, despite its pithiness, addresses a number of fundamental and interesting issues that affect law firm partnerships and their partners.

Andrew Lavoott Bluestone

Judiciary Law §487 Cases on the Rise After 'Amalfitano'

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone discusses the recent history of Judiciary Law §487 which until 2009 was thought of as a quirky subset of legal malpractice and a fringe theory of law, but the Court of Appeals decision in 'Amalfitano v. Rosenberg' gave such causes of action newfound recognition and acceptance.

Charlotte A. Biblow

DEC Proposing Changes to Bulk Storage Regulations

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: The state Department of Environmental Conservation has proposed changes to update and consolidate its petroleum and chemical bulk storage regulations that will, if adopted, affect as many as 40,000 facilities in the state. According to the DEC, the proposed changes will make compliance easier and less expensive. Whether these new rules live up to this promise will be tested during their implementation.

Martin Flumenbaum and Brad S. Karp

The Second Circuit in the Supreme Court

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp conduct their 30th annual review of the performance of the U.S. Court of Appeals for the Second Circuit over the past term, and briefly discuss the Second Circuit decisions scheduled for review during the new term.

Debbie Kaminer

Mental Illness in the Workplace and the ADA Amendments

By Debbie Kaminer |

Debbie Kaminer writes: The Americans with Disabilities Act Amendments Act has made it significantly easier for employees who are suffering from mental illness to meet the statutory definition of disabled under the ADA. However, this does not necessarily mean that mentally ill employees will ultimately prevail.

Robert C. Scheinfeld

Changing Climate for 'Green' Trademarks

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes that in response to the propagation of misleading claims on products' eco-friendliness, the FTC and the Trademark Trial and Appeal Board have taken stronger stances against greenwashing, and recent U.S. Supreme Court jurisprudence has given non-competitors standing to bring a Lanham Act claim.

Francis J. Serbaroli

Feds Target Untimely Repayments to Medicare and Medicaid

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli discusses the Affordable Care Act's requirement that any overpayments from Medicare or Medicaid must be refunded within 60 days of identification. He reports on a recent False Claims Act lawsuit filed by the U.S. Attorney and New York’s Attorney General against some prominent New York hospitals that allegedly took two years to refund payments owed to Medicaid, and cautions that anyone who identifies or is otherwise notified of overpayments by Medicare or Medicaid must move quickly to refund the money or face the False Claims Act's draconian penalties.

Robert S. Kelner and Gail S. Kelner

'Barney-Yeboah': Summary Judgment Under Res Ipsa Loquitur

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner write that in considerations over applying the doctrine of res ipsa loquitur in negligence cases, exclusive control has generally been the most difficult of the necessary elements to prove, especially where the injury-causing instrumentality was accessible to parties other than the defendant. A recent decision demonstrates that the possibility of other causes need not be totally ruled out, but that the greater probability was that defendant's negligence caused the event.

Chaim A. Levin

New Complex High-Frequency Trading Creates Vexing Issues

By Chaim A. Levin |

Chaim A. Levin writes: In just the past several weeks, multifaceted debates over new concepts in high-frequency trading of various instruments have emerged rapidly. HFT firms are developing new technology so fast that regulators are uncertain what, if anything, to do. Widening probes by government and self-regulatory authorities are barely scratching the surface and, instead, highlight the confusion extant.

Ken Strutin

Justice Without 'Bounds' and the Poverties of Confinement

By Ken Strutin |

In his Criminal Law column, Ken Strutin, the director of legal information services at the New York State Defenders Association, writes: Technological, physical and psychological barriers burden the incarcerated in significant ways: (1) legal illiteracy and inferior research media; (2) impaired learning and thinking due to stress of confinement; and (3) cognitive disadvantage engendered by the gap between print and electronic research.

Alexander D. Widell

Pleading Demand Futility: He Who Does Not Hesitate Is Lost

By Alexander D. Widell |

Alexander D. Widell writes that a books and records demand can provide a specialized shareholder law firm with access to the information it needs to adequately plead "demand futility" and defeat a motion to dismiss a derivative lawsuit. Unfortunately, because of the potential for significant legal fees, such firms often race to the courthouse upon the announcement of a government investigation without investigating whether a pre-suit demand on the board of directors is excused as futile.

Sidney Kess

Recent Cases on Taxes Related to Employment

By Sidney Kess |

In his Tax Tips column, Sidney Kess recent cases impacting employers that involve worker classification as an employee or independent contractor, wages paid to a business owner's children, and liability for trust fund taxes if employers willfully fail to collect and pay them to the U.S. Treasury.

Glen Banks and Anibal Sabater

'Flintlock': Precluding Punitive Damages in Arbitration

By Glen Banks and Anibal Sabater |

In their Contract Law column, Glen Banks and Anibal Sabater write: Arbitration is a creature of contract. Parties may structure their agreement to preclude a tribunal from awarding punitive damages. The question is what contractual language is necessary to implement that result.

Joseph E. Bachelder III

What Has Happened to Stock Options?

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III examines the 100-year history of stock options, including periods of extraordinary popularity (e.g., the 1990s) and less popularity when the stock markets were in the doldrums, and takes a look at where options are today.

Richard Strassberg, William Harrington and Benjamin P. Saul

Dodd-Frank's New Deputies—States

By Richard Strassberg, William Harrington and Benjamin P. Saul |

In their Federal Civil Enforcement column, Richard Strassberg, William Harrington and Benjamin P. Saul write: In the wake of the Financial Crisis, the federal government has invigorated its civil fraud enforcement. The DOJ has dominated the headlines in this area with a series of significant lawsuits and resolutions involving mortgage lenders. Yet, behind the headlines, a curious, new category of enforcers is emerging to target violations of federal civil consumer financial protection laws: state agencies and attorneys general.

Matthew E. Fishbein

Why Individuals Aren't Prosecuted for Conduct Companies Admit

By Matthew E. Fishbein |
Michael D. Patrick

Delay in Executive Action Impedes Business Interests

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: If the president plans to invoke his executive authority to implement immigration reform, his proposal must include business immigration provisions. Although the humanitarian crisis at the border rightfully must take precedence, the immigration needs of the business community also deserve to be addressed because of the immediate economic benefits that would be brought about.

Jeremy Temkin

IRS Summons Enforcement After 'United States v. Clarke'

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes that while the U.S. Supreme Court this past term resolved a circuit split as to what showing a party must make to obtain an evidentiary hearing as to whether a IRS summons was improper, it left open other potentially significant questions that counsel representing recipients of summonses must consider.

Lee Spielmann

Denaturalization of Nazi Perpetrators: What Have We Learned?

By Lee Spielmann |

Lee Spielmann writes: Given the importance of citizenship, and because the prosecution of Nazi denaturalization cases has ended, it is appropriate to ask what these proceedings achieved. What were the tangible, symbolic and historical accomplishments of America's efforts?

C. Raymond Radigan and Peter K. Kelly

Filing a Bond by a Preliminary Executor

By C. Raymond Radigan and Peter K. Kelly |

In their Trusts and Estates Law column, C. Raymond Radigan and Peter K. Kelly write that despite a 50-year history of dispensing with a bond for preliminary letters testamentary, courts continue to require a bond for a variety of reasons. Some Surrogate Courts have apparently adopted as a policy the requirement that every preliminary executor post a bond, vitiating the "extraordinary circumstances" of the relevant statute.

Joel Cohen

'Let Right Be Done': When Prosecutors Have a Higher Duty

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Most prosecutors believe that a defendant who has been convicted is guilty and that defense counsel does little more than look for loopholes to get their (guilty) client off, or at least, the best deal possible. I certainly did! And, typically, prosecutors proceed with this professional mind-set in good faith. The rules of professional conduct don't require otherwise. Maybe.

Stephen L. Kass

Presidential Action on Climate Change

By Stephen L. Kass |

In his International Environmental Law column, Stephen L. Kass suggests a number of approaches that the president might pursue if he is serious about finally addressing climate change while it is still possible for him to do so.

Stephen M. Kramarsky

Tracking Down the 'Anonymous' Wrongdoer

By Stephen M. Kramarsky |

Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, writes: The rise of anonymous social media communications has caused courts to look carefully at a unique procedure that requires them to balance the aggrieved party's right to sue against the speaker's right to remain anonymous. 'Lemon Juice v. Twitter' is the representative case discussed.

John L.A. Lyddane and Barbara D. Goldberg

Applying the Emergency Doctrine in Medical Malpractice Cases

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

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write: Because medical care providers are more attuned to medical emergencies than laypeople are, a notion has crept into New York law to the effect that the emergency doctrine is somehow less available in the context of evaluating the response of a nurse or doctor faced with a medical emergency.

Scott Edelman and Daniel Perry

Strategic Use of Settlement Tenders and Offers Under CPLR

By Scott Edelman and Daniel Perry |

Scott Edelman and Daniel Perry explore the tender and offer provisions of New York's CPLR and the strategic considerations implicated by each provision. Developing law in New York suggests that defendants should seriously consider whether these provisions can be used to obtain leverage and facilitate settlement early in a case.

Steven R. Schindler and Katherine Wilson-Milne

Role of Judges in Authenticating Art in U.S. and Europe

By Steven R. Schindler and Katherine Wilson-Milne |

Steven R. Schindler and Katherine Wilson-Milne write: When the authenticity of a work of art is at issue, judges must make authenticity determinations based on the facts and opinions of experts presented to them, just as in other specialized subject matters. Unlike in a patent or medical malpractice case, however, written opinions of judges affirming the authenticity of an artwork will carry little weight in the actual art market where a recognized art market player or industry expert has declared that work inauthentic.

Rupert Barkoff

Is the Franchising Business Model in Serious Trouble?

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff writes: Today, with the multiple recent legislative and judicial non-franchisor favorable developments relating to franchising, many are saying that the franchise model is headed for trouble. But others disagree. Some recent developments could mark the beginning of a period of change, and one that will clearly not be beneficial for franchisors; it may not be so favorable to some franchisees in the long run, either.

Michael Hoenig

When Experts Contradict Their Own Party's Testimony

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig focuses on a seemingly "exquisite" question in the law and lore of expert admissibility battles, namely, what happens when a party's factual testimony under oath contradicts his own expert's theory as to how the accident happened and how the alleged defect in the product could have caused the injury?

Harvey M. Stone and Richard H. Dolan

Sentence Reduced to Remedy Injustice

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent holdings in which Judge John Gleeson applauded the government for agreeing to a sentence reduction in an old case where the court had been statutorily constrained to impose an overly harsh prison term, Judge Arthur D. Spatt held that, despite a related pending state-court proceeding, abstention did not apply in light of recent U.S. Supreme Court authority, and more.

Joshua S. Bauchner

Let Them Plead in the Alternative

By Joshua S. Bauchner |

Joshua S. Bauchner writes: The right to plead claims in the alternative is well established in New York state practice and jurisprudence. Yet, courts often seek to "streamline" cases at the very nascent stages of a litigation by dismissing so-called "duplicative" claims seeking alternative forms of relief.

Joseph Lipari

Sales Tax Refund Cases Show no Sympathy for Sellers

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari writes: Who is liable for tax is often irrelevant to buyers and sellers—until they want a refund. Two recent Division of Tax Appeals administrative law judge determinations work through some of these issues.

Dennis Boshnack

First Department Supports Dismissing Parking Tickets

By Dennis Boshnack |

Dennis Boshnack discusses the recent decision in 'Nestle', which required strict compliance with the Vehicle and Traffic Law provision that "the plate type as shown by the registration plates" of the vehicle shall be inserted in the ticket, and questions three current adjudication policies of the New York City Parking Violations Bureau.