Expert Analysis

Conrad Teitell

Slain Officer Support Act

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell discusses the Slain Officer Family Support Act of 2015, which provides an exception to the well-settled law that gifts to individuals, no matter how worthy, aren't deductible as charitable contributions, along with rulings on otherwise deductible gifts to charities that raise questions on whether they were earmarked for a specific individual.

Lawrence B. Friedman

Damages for Breach of Exclusive Forum Selection Clauses

By Lawrence B. Friedman |

Lawrence B. Friedman writes that New York courts have disagreed about the availability under New York law of a damage remedy for breach of a contractual exclusive forum selection clause. But such breaches are common, and the absence of a damage remedy may encourage them and leave the non-breaching party uncompensated, even if it wins specific performance in the form of the dismissal of a lawsuit filed in the wrong forum.

Sharon M. Porcellio

Confirming the Importance of Adhering to Procedure

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio writes: This quarter's docket was rife with interesting cases, exploring a myriad of procedural and factual issues. Among them was a subset of cases that stood out due to the common theme: Even the strongest substantive argument can be rendered ineffective as a result of a seemingly minor procedural defect.

Sue C. Jacobs

Expansive Pleadings and the Risk of Sanctions

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs writes: A lawyer may be reasonably concerned that a case could be dismissed because she failed to include sufficient factual matter to meet the Supreme Court's plausibility standard articulated in 'Iqbal' and 'Twombly'. But, the pleading should be simple, concise and direct. It is time for practitioners to realize judges are not impressed with quantity, but rather quality.

Janis Cowhey and David H. Glusman

'Innocent Spouse' Tax Relief in Same-Sex Married Couples

By Janis Cowhey and David H. Glusman |

Janis Cowhey and David H. Glusman write: The issues that are likely to arise when contemplating use of innocent spouse relief available under the Internal Revenue Code are just as likely to occur in same-sex couples as in heterosexual couples. In many cases, there are additional areas of concern that may need to be addressed if the IRS has attempted collection efforts on the innocent spouse due to alleged or actual underpayment of tax by the other spouse.

Martin Flumenbaum and Brad S. Karp

New York's Wage Parity Law Upheld as Constitutional

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Concerned Home Care Providers v. Cuomo,' in which the court ruled that New York's Wage Parity Law is not preempted by the National Labor Relations Act or ERISA; nor does it violate the Fourteenth Amendment's Equal Protection Clause or Due Process Clause.

Harvey M. Stone and Richard H. Dolan

Judge Takes Significant Deviation From Sentencing Guidelines

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan discuss Judge Weinstein's explanation for granting leniency in sentencing a mother whose young daughter suffered from sickle cell disease and other impairments, Judge Dearie's conclusions on several issues relating to an insurance company's assertion of an "auto exclusion" defense, and more.

Joseph D. Nohavicka

Court of Appeals Offers Guidance on Police 'Mistake of Law'

By Joseph D. Nohavicka |

Joseph D. Nohavicka discusses People v. Guthrie, a constitutional stop case recently decided by the New York State Court of Appeals, which held that mistakes of law by police in New York can provide the basis for a valid traffic stop so long as the mistake is objectively reasonable.

C. Raymond Radigan and Jennifer F. Hillman

Third-Party Miscellaneous Proceedings in Surrogate's Court

By C. Raymond Radigan and Jennifer F. Hillman |

In their Trusts and Estates Law column, C. Raymond Radigan and Jennifer F. Hillman write: While the intrigue surrounding a lawsuit over the return of Klimt paintings stolen by Nazis makes for a good story in the new movie "Woman in Gold," the Surrogate's Court is replete with precisely these types of tales—third-party replevin actions to determine the true ownership of property.

Ira Brad Matetsky

Ensuring Effectiveness of Forum Selection Clauses

By Ira Brad Matetsky |

Ira Brad Matetsky writes: Crafting a binding provision that disputes will be resolved in New York is not a simple matter of throwing boilerplate choice-of-forum language into an agreement.

Edward M. Spiro and Judith Mogul

Class Action Attorney Fee Applications Under Closer Scrutiny

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Relying on his 20 years on the bench and 24 years in private practice, U.S. Southern District Judge Lewis A. Kaplan issued two decisions this year commenting on the lack of effective adversarial testing of proposed fee applications following securities class action settlements, and stressing the fiduciary obligation of the court to exercise stewardship over settlement funds in that circumstance.

Andrea M. Alonso and Kevin G. Faley

Timing of Expert Disclosure Under CPLR 3101(d)

By Kevin G. Faley and Andrea M. Alonso |

Kevin G. Faley and Andrea M. Alonso review relevant decisions to conclude that neither the First nor Second Department seems inclined to draw a "bright-line" rule on whether expert disclosure after the Note of Issue and Certificate of Readiness have been filed is considered untimely.

Shari Claire Lewis

'Sign-in Wraps' Face the Judicial Microscope in New York

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis discusses a recent decision that involved the enforceability of a sign-in wrap, a type of online agreement that couples assent to the terms of a website with signing up for use of the site's services.

Sidney Kess

Charitable Contributions: New Developments for 2015

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes that the income tax deduction for charitable giving, which totaled $335.17 billion in the United States in 2013, dates back to 1917. However, the tax rules regarding charitable giving are continually in flux.

Gregory B. Reilly

Can LinkedIn Postings Violate Non-Compete Agreements?

By Gregory B. Reilly |

Gregory B. Reilly writes: The growth in membership and use of LinkedIn raises legal questions about how it interacts with an employee's legal obligations under pre-existing restrictive covenant agreements that prohibit or restrict disclosure of confidential and proprietary information, competition and solicitation of customers or suppliers.

George Bundy Smith and Thomas J. Hall

Binding Contracts Despite Continuing Negotiations

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write that previously, courts often have found that where parties to an alleged contract engaged in subsequent negotiations over material terms of the agreement, no meeting of the minds was reached, and there was no enforceable contract. Courts may now be less inclined to find as such after two recent decisions.

E. Leo Milonas and Andrew C. Smith

Jurisdiction, Employment Law, Smoking Restrictions in State Parks

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith write: As the last shovel-full of snow melts from our memories, we review some of the quarter's leading decisions rendered by the state's intermediate appellate judges, during which the Appellate Division justices exercised measured deference to trustees, administrative agencies and the Legislature, while also expanding access to the courts to redress commercial and tortious wrongs.

Brett A. Scher and Amanda R. Gurman

Is Statute Governing Law Practice on Its Way Out?

By Brett A. Scher and Amanda R. Gurman |

Brett A. Scher and Amanda R. Gurman write that with the Court of Appeals' interpreting New York Judiciary Law §470 to indisputably require a nonresident attorney to "maintain a physical law office here," and with the Second Circuit already telegraphing its opinion as to the constitutionality of the statute, it appears that even the ease of obtaining a "physical law office" will not save New York's long-standing law.

Roberta S. Karmel

Liability for Non-Disclosure of Line-Items in SEC Filings

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: Two recent cases, one in the Ninth Circuit, and one in the Second Circuit, questioned whether a failure to include information allegedly required by the Management Discussion and Analysis under Item 303 of Regulation S-K1 of the SEC can support a fraud action under Section 10(b) of the Securities Exchange Act of 1934, and came to conflicting conclusions.

Steven J. Fink and Alvin Y. Lee

First Department Broadens Common Interest Privilege

By Steven J. Fink and Alvin Y. Lee |

Steven J. Fink and Alvin Y. Lee analyze the First Department's recent rejection of a litigation requirement for the application of the common interest doctrine in 'Ambac Assur. Corp. v. Countrywide Home Loans'.

Roy L. Reardon and William T. Russell Jr.

In-State Law Office Requirement for Non-Resident Attorneys

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

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss two cases addressing questions certified by the Second Circuit, one responding to a question as to whether a non-resident lawyer must maintain a physical office in the state in order to practice here and one responding to a question of contractual interpretation of an oil and gas lease in the context of the 2008 moratorium on "fracking."

Tamar S. Wise

Updates on Privilege Issues for In-House Counsel in New York

By Tamar S. Wise |

Tamar S. Wise analyzes recent cases that demonstrate New York courts' unwillingness to push the boundaries of the privilege extended in 'Upjohn', guide corporate counsel in protecting from discovery certain sensitive HR-related material, and highlight the limitations of privilege where foreign in-house counsel are involved.

Joel Cohen

Your Client's Intractable Demands—And Your Effort to Withdraw

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Balancing legal and ethical obligations—to a client, an adversary, the court and ourselves—is not easy. When confronted with a client who wants to do something you know he can't legally do, or who wants you to do something you know you can't legally or ethically do, sitting by idly is not an option.

Shepard Goldfein and James A. Keyte

Patent Assertion Entities—Market Participants or Trolls?

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write that while the potential anticompetitive effects of Patent Assertion Entities in broad terms may not be discernable until an FTC study is released at the end of this year, there is a growing body of individual actions addressing the viability of antitrust principles to restrict the power of these entities.

Leslie M. Mauro and Thomas M. Tuori

DEC Initiative Targets Hazardous Waste at Pharmacies, Other Entities

By Leslie M. Mauro and Thomas M. Tuori |

Leslie M. Mauro and Thomas M. Tuori write that a recently announced compliance initiative will focus on pharmacies, grocery stores, and big-box retail stores' handling of materials regulated as hazardous wastes. But rather than just relying on traditional enforcement strategies, the DEC has undertaken significant outreach and is making a concerted effort to work collaboratively to help the regulated community achieve compliance.

Richard Raysman and Peter Brown

Courts Continue to Fracture Over Anti-Hacking Issue

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown highlight recent cases that diverge on which approach—narrow or broad—hews closest to the purpose of the Computer Fraud and Abuse Act.

Ilene Sherwyn Cooper

Surrogates Tackle Good Faith, Post-Nuptial Waiver, Capacity

By Ilene Sherwyn Cooper |

In her Trusts and Estates column, Ilene Sherwyn Cooper reviews a proceeding instituted by a surviving spouse to determine the validity of her exercise of her right of election against decedent's estate given the post-nuptial agreement she had signed, an application by a decedent's parents to remove his estranged spouse as administrator of his estate on the grounds that she had neglected her fiduciary duties and was hostile, and more.

Andrew Kratenstein

Getting the Most Out of Deposition Defense

By Andrew Kratenstein |

Andrew Kratenstein writes: Many lawyers treat defending a deposition as if the lawyer and witness had each taken the Hippocratic Oath to "do no harm." They train their witnesses to say as little as possible, and ask the witness no questions to avoid inadvertently damaging answers. Such a conservative approach to deposition defense can be short-sighted.

Samuel Estreicher and Kristina A. Yost

'Jock': Employment Class Arbitration Allows Disparate Impact Claims

By Samuel Estreicher and Kristina A. Yost |

In his Arbitration column, Samuel Estreicher and Kristina A. Yost write: Despite the Second Circuit panel ruling in Jock, it is not clear under what circumstances arbitration agreements will be interpreted to allow for class arbitration, especially if they contain express class or collective action waiver provisions.

Jerry H. Goldfeder and Myrna Pérez

Alabama and Albany Minority Voters Get Wins

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez discuss two decisions that required the reviewing court to assess plans of redrawn legislative lines under certain provisions of the Voting Rights Act. In both instances the courts maintained the unbroken line of cases upholding the constitutionality of the implicated provisions.

Stewart D. Aaron

No Formal Contract? No Problem

By Stewart D. Aaron |

Stewart D. Aaron writes: A recent decision from the Appellate Division, First Department, reminds lawyers, and their clients, that informal communications, including emails, may establish an enforceable contract, even where certain terms remain to be negotiated.

David M. Barshay

State Enacts Regulation on Actions of Debt Collectors

By David M. Barshay |

In his Debtor-Creditor Law Wrap-Up, David M. Barshay writes: in addition to following federal statutory requirements, debt collectors in New York City have been required to follow somewhat more stringent rules with respect to the collection of consumer debt. Now, the New York State Department of Financial Services has joined in.

Andrew Lavoott Bluestone

Are the Courts Punishing Legal Malpractice Plaintiffs?

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone writes: Legal malpractice litigation is subjected to controls and limitations not found in other areas of the law. These judge-made controls and limitations make professional claims against attorneys much more difficult than those against any other profession.

Sarah S. Gold and Richard Spinogatti

Constitutional Challenges to SEC Administrative Proceedings

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti write that in response to constitutional challenges to SEC administrative proceedings against defendants not associated with regulated entities, the commission has argued, successfully in most instances, that the district court lacked subject matter jurisdiction. The authors discuss one notable exception and another case that is being appealed.

Gerald M. Levine

Garnishing Domain Names: Are They Contracts or Property?

By Gerald M. Levine |

Gerald M. Levine writes: It is obvious that domain names play two different roles in the Internet ecology. If they are simply and no more than contracts for services enabling Internet connections, they would not be garnishable. But if they are property, they are. The role that elevates them to property results from their range of economic activity in that ecology.

Robert J. Anello and Richard F. Albert

New Counterattack on SEC's Home Court Advantage

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write that defendants' efforts to enlist the federal courts to resist SEC administrative proceedings have had difficulty overcoming procedural hurdles requiring them to exhaust avenues of review within the agency before any federal court review. A new line of counterattack seeks to avoid those procedural hurdles with a facial challenge to the constitutionality of the SEC's administrative mechanism.

Thomas A. Moore and Matthew Gaier

Recent Decision on Continuous Treatment

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier analyze a First Department's decision that upheld a jury verdict finding continuous treatment following Lasik surgery to treat the plaintiff's myopia, based in large part on the defendant's assurance of a lifetime guarantee.

C. Evan Stewart

Judge Gets Common Interest Privilege Spot-On!

By C. Evan Stewart |

C. Evan Stewart writes: While judges often make rulings on the attorney-client privilege and work product doctrine that are wide of the mark, every so often they get one spot-on. Happily, the First Department (per Judge Karla Moskowitz), recently did just that in reversing a trial court order that held that documents relating to a merger were not protected by the "common interest" privilege.

H. Christopher Boehning and Daniel J. Toal

Court Opens Dangerous Door to Compulsory 'Quick Peek'

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 discuss "quick peek" agreements, which can speed up discovery because parties can reduce the amount of privilege review they conduct before a production, knowing that any privileged documents disclosed will be returned to the producing party without objection.

Jeffrey S. Klein and Nicholas J. Pappas

Maintaining Privileges in Workplace Investigations

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas write: When employers seek advice from outside counsel regarding internal investigations, quite understandably, they would like the certainty that those communications will be viewed just as any other attorney-client communication. A recent case, however, suggests that under certain circumstances, at least some courts will view employers' assertions of privilege with skepticism, and place unexpected limits on their claims of privilege.

John Higgitt

The Perfect Ending to a Jury Trial: a Perfected Verdict

By John R. Higgitt |

John R. Higgitt writes: Any notion that the steps in the refinement process of a jury verdict—the open-court announcement of the verdict by the foreperson, the polling of the jury, and the entry of the verdict—are mere minutiae was dispelled by the Court of Appeals in 'Duffy v. Vogel', where the court concluded that the failure of a trial court to poll the jury may require a new trial.

John P. Furfaro and Risa Salins

Independent Contractor Update

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins review the requirements of the New York Commercial Goods Transportation Industry Fair Play Act and other developments regarding independent contractors over the course of the last year, including the National Labor Relations Board's new test for independent contractor misclassification, and notable rulings by New Jersey and California courts.

Ruth D. Raisfeld

Mediation of Class Actions on Wage-and-Hour Matters

By Ruth D. Raisfeld |

Ruth D. Raisfeld writes: Given the high stakes of class wage-and-hour disputes, the complexity of the litigation, and the criteria for court approval of wage-and-hour class settlements, many of these claims are submitted to mediation as a way to facilitate complicated negotiations and help to insure the fairness of the negotiations.

Michael J. Hutter

Proposed Evidence Rules Cover Privilege, Experts, Hearsay

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter discusses the 2015 Report from the Advisory Committee on Civil Practice, which offers proposals to address the issue of waiver when otherwise privileged communications are disclosed, the admissibility of hearsay statements made by an employee or agent against his/her employer, and the admissibility of expert testimony which is based upon reports or data that are not themselves in evidence.

Christopher Dunn

Voter-Identification Laws and the 2016 Elections

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn discusses the challenges to photo identification voting requirements in Indiana and Wisconsin, which are interesting not only because of their rulings but also because of the judicial dynamics surrounding them.

Christopher A. Bacotti and Eyal S. Eisig

Right of Sepulcher: Reconciling Changing Views and Standards

By Christopher A. Bacotti |

Christopher A. Bacotti writes: The common law right of sepulcher is the right of the surviving next of kin to find "solace and comfort" in the ritual of undisturbed burial, and permits recovery for solely emotional damages that arise from interference with their loved one's body after death. Recently, however, the appellate courts have diverged from these entrenched principles, and the right of sepulcher has decayed.

MV Rena, which ran aground off New Zealand in 2011

Arbitrating Seamen's Personal Injury Claims

By James E. Mercante |

In his Admiralty Law column, James E. Mercante writes that while arbitration to resolve commercial maritime disputes is quite common, an injured seaman typically enjoys a trial by jury, a right codified by the Jones Act. Some vessel owners are advancing new arguments to replace antiquated notions with current realities.

Peter M. Fass

Definition of Real Property for REITs Proposed by IRS

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass writes that in May 2014, the IRS released proposed regulations revising and clarifying the definition of real property for the purposes of the real estate investment trust provisions of the Internal Revenue Code. The proposed regulations generally are consistent with previously issued letter rulings and published guidance, and specifically list assets that will qualify as real property.

Mark Fang

Interactive Process in Housing and Public Accommodations

By Mark C. Fang |

Mark C. Fang writes: When an employee with a disability makes a request for a reasonable accommodation, the employer is obligated under New York law to initiate a dialogue with the employee called an interactive process. Although that step is not required in the context of housing for a resident with a disability, it may be a prudent way to address such requests and prevent a frustrated tenant or patron from taking the matter to court or his state or local human rights commission.

Alexis S. Axelrad

Spring Weddings: Beautiful Beginnings and a 'Green Card'

By Alexis S. Axelrad |

In her Immigration Law column, Alexis S. Axelrad writes: Love may be a many splendored thing but the process of obtaining a green card through marriage to a U.S. citizen can be fraught with obstacles and confusion even for couples who believe their case is very simple.

Cara Greene, Deirdre A. Aaron and Shirley Lin

Supreme Court Considers Pregnancy Discrimination Claims

By Cara Greene, Deirdre A. Aaron and Shirley Lin |

Cara Greene, Deirdre A. Aaron and Shirley Lin write that while the U.S. Supreme Court ultimately did not decide whether the plaintiff in a pregnancy discrimination case against UPS had created a genuine issue of material fact as to pretext, remanding the case back to the Fourth Circuit for consideration of that issue, it did discuss the evidence presented at length.

Steven V. Treglia

A New Standard in Data Breach Lawsuits?

By Stephen Treglia |

In his E-Communications column, Stephen Treglia examines how recent case law has tackled data breach litigation and investigates whether any definitive standard has yet emerged.

Arthur Ciampi

What's in a Name? Uses Are Governed by Contract, Ethics, Case Law

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi writes: A recent case from West Virginia presents an interesting fact pattern and the starting point for a discussion of some issues and limitations concerning law firm names.

Elizabeth McNamara and Samuel M. Bayard

Purging Emails Removes Ready Access to Government Actions

By Elizabeth McNamara and Samuel M. Bayard |

In their Media Law column, Elizabeth McNamara and Samuel M. Bayard write: Every March, proponents of government transparency celebrate "Sunshine Week," inspired by Justice Brandeis' famous adage that"[s]unlight is the best disinfectant." This March, it's hard to believe the occasion wasn't met with a collective shrug and eye roll, as transparency scandal piled upon transparency scandal at both the federal and state level.

Michael W. Ross

Certifying Damages Class Actions After 'Comcast'

By Michael W. Ross |

Michael W. Ross writes that in a pair of precedential opinions earlier this month the Second Circuit interpreted the U.S. Supreme Court's holding 'Comcast v. Behrend' narrowly and ruled that plaintiffs need not present class-wide proof of damages to certify a class action under Federal Rule of Civil Procedure 23(b)(3).

Justin T. Green and Anna Astrakhan

Air Passenger Rights and Protections

By Justin T. Green and Anna Astrakhan |

In their Aviation Law column, Justin T. Green and Anna Astrakhan write that long delays at airports are a familiar problem to any traveler, and passengers rarely know their rights when faced with unexpected delays, cancellations or overbooked flights.

'Omnicare' and Opinion Statements Liability in Securities Cases

By Kenneth M. Breen, John P. Nowak and Phara A. Guberman |

Kenneth M. Breen, John P. Nowak and Phara A. Guberman write: On Tuesday, the Supreme Court released its long-awaited opinion in 'Omnicare v. Laborers District Council,' which rejected the application of a solely objective standard in assessing whether a statement of opinion may be considered a false statement in the context of a claim pursuant to Section 11 of the Securities Act of 1933.

Lawrence W. Newman and David Zaslowsky

Location, Location, Location: It Matters in Litigation Too

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky look at two recent cases in which location was the key element: one involving whether 28 U.S.C. §1782 can be used to obtain evidence located outside the United States, the other, one that answers the question, "when is a U.S. citizen not a citizen?"

Charlotte A. Biblow

Court of Appeals Considers Challenge to Storm Water Discharge Permits

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: An important environmental regulatory case has been winding its way through the New York court system for several years, and now the Court of Appeals finally will decide whether the federal Clean Water Act was violated when a general permit governing discharges from municipal separate storm sewer systems was approved by the state.

Menachem J. Kastner and Ally Hack

Incurable Defaults in Commercial Leases: Can You Un-Ring the Bell?

By Menachem J. Kastner and Ally Hack |

Menachem J. Kastner and Ally Hack identifies the various types of commercial lease defaults that courts may find to be "incurable" as a matter of law, followed by a focus on what has been the most controversial of these defaults—the unauthorized assignment of its lease.

Martin Flumenbaum and Brad S. Karp

Clarifying Bounds of Protected Speech for Public Employees

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Matthews v. City of New York,' wherein the court concluded that, when a public employee engages in speech pertaining to a subject that does not fall within the employee's duties, and does so in a manner in which ordinary citizens would be expected to engage, the employee speaks as a citizen whose speech is protected, not as a public employee, whose speech may be unprotected.

Robert C. Scheinfeld

Garmin Decision Offers Insights on Patent Application Drafting

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld analyzes a recent decision in which the Federal Circuit pondered whether a patent claim's preamble should act as a component of, and effectively limit the scope of, the claimed invention.

Modular Prosthetic Limb

Rights of Cyborgs: Is Damage to Prosthetic a Personal Injury?

By Jon D. Lichtenstein |

Jon D. Lichtenstein writes: From time immemorial, our common law has provided one set of remedies for damage to one's property and another set for damage to one's person. Yet today, many of us depend on our devices to perform all the normal tasks of living, such as walking, talking, hearing and seeing.

Robert S. Kelner and Gail S. Kelner

Analyzing Elements of Zone of Danger Claim

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss the "zone-of danger" rule, under which New York law permits a cause of action to be brought for damages arising from the negligent infliction of emotional distress to a bystander who is exposed to "an unreasonable risk of bodily harm" in an accident when he or she witnesses a family member being injured or killed.

Francis J. Serbaroli

Supreme Court Rules State Licensing Board Violated Antitrust Laws

By Francis J. Serbaroli |

Francis J. Serbaroli in his Health Law column discusses a recent Supreme Court decision upholding a FTC decision against the anti-competitive actions of a state licensing board. The court added a new requirement of "active state supervision" in order for a state board to qualify for state action antitrust immunity.

Ken Strutin

Cognitive Sentencing and the Eighth Amendment

By Ken Strutin |

In his Criminal Law column, Ken Strutin of the New York State Defenders Association writes: Inhumane prison conditions make incarceration cruel (excessive) and unusual (torturesome). Thus, the missing element from incarcerative sentencing laws is how the sentence is carried out.

Jason L. Shaw

'Platek' Raises Uneasy Questions About Insurance Exclusions

By Jason L. Shaw |

Jason L. Shaw explores a recent decision in which the Court of Appeals put limits on a policyholder's use of an insurance policy "exception" to avoid policy language coverage "exclusion" for a property loss.

Ben Rubinowitz and Evan Torgan

Scaled Questions During Jury Selection

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write that one effective way of examining a potential juror is by calling for an answer on a spectrum. This technique helps to gain insight not only into reticent jurors, but also into those jurors who are willing to share their beliefs, concerns, and thoughts with the attorneys without hesitation.

Glen Banks

Court of Appeals Addresses Alleged Breach of a Swap Contract

By Glen Banks |

In his Contract Law column, Glen Banks writes: The Court of Appeals' decision in 'BDC Financial v. Barclays Bank' illustrates that when an agreement allows either party to demand a payment from the counter-party to address market changes during the life of a contract, years of litigation can result from the failure to clearly set forth what will happen when a demanded payment is disputed.

James G. Ryan and Hayley B. Dryer

What Should Court 'Deliver' in Pregnancy Discrimination Case?

By James G. Ryan and Hayley B. Dryer |

James G. Ryan and Hayley B. Dryer write: It is not every day that anti-abortion and pro-choice activists, evangelical Christians, the U.S. Women's Chamber of Commerce, and the Obama administration appear on the same side of an argument. That this unusual mix have become unlikely allies in the face of a pregnancy discrimination case currently pending before the U.S. Supreme Court, demonstrates just how significant this issue.

Joseph E. Bachelder III

A Say on 'Say-on-Pay': Assessing Impact After Four Years

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III offers comments supporting and opposing the propositions that Say-on-Pay causes shareholders to become better informed and more involved in the executive pay process, and that it results in better decision-making by boards of directors.

Daniel N. Arshack and Ria Rana

Accusatory Instruments and Jurisdictional Sufficiency

By Daniel N. Arshack and Ria Rana |

Daniel N. Arshack and Ria Rana write that applications challenging the jurisdictional sufficiency of an accusatory instrument are frequently made in misdemeanor cases. However, the confusion between the dual standards of review for a "complaint" and an "information" is often the cause of error.

Ilann Margalit Maazel

Liability Questions Where DNA Evidence Was Lost and Found

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel discusses exoneree civil rights cases when exonerative DNA is first lost, and then found—a case addressed in the recent Second Circuit opinion, 'Newton v. City of New York.'

Jeremy H. Temkin

Discharging Tax Debts in Bankruptcy

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes that last month, the First Circuit the Fifth and Tenth Circuits in concluding that tax filing deadlines are "filing requirements," and thus that the tax liabilities on an untimely return are not subject to discharge in bankruptcy.

Michael D. Patrick

Congressional Inaction on Immigration? States and President Step Up

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: There is overwhelming agreement among a diverse and broad assortment of pundits and commentators that the immigration system in our country is broken. Despite the consensus, there is little agreement between the Legislature, the executive branch and the states on how best to improve the system.

Christopher A. Gorman

Mortgage Securitization and Lender's Ability to Foreclose

By Christopher A. Gorman |

Christopher A. Gorman writes: If a plaintiff-lender attaches a copy of an original promissory note to a mortgage foreclosure complaint, would the plaintiff have standing to foreclose? The answer, of course, would seem to be "yes," but that would ignore recent case law concerning whether a borrower can assert defenses founded upon alleged non-compliance with documents governing the securitization of the underlying loan.

Jeff S. Korek and Michael A. Fruhling

Medical Malpractice Litigation in New York and New Jersey

By Jeff S. Korek and Michael A. Fruhling |

Jeff S. Korek and Michael A. Fruhling write: Based upon the line that divides the states of New York and New Jersey, a patient injured as a result of medical malpractice will see a dramatic difference in both the viability of their case and the way it will proceed to trial.

Roy L. Reardon and William T. Russell Jr.

Collateral Estoppel Not Applied in Attorney Discipline Action

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

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases applying the defamation privilege to pre-litigation statements and addressing the application of collateral estoppel in attorney disciplinary actions, along with a case construing an "ensuing loss" clause in an insurance coverage dispute concerning damage resulting from broken water pipes.

Abby Tolchinsky and Ellie Wertheim

Developing Communication Skills as Negotiators

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim write: In the midst of conflict, parties often express strong, entrenched positions. The communication skills of a mediator are designed to go beneath those positions, thereby creating progress in the negotiation process.

Francis Facciolo and Leland Solon

Sub-Adviser Fee Litigation: Will Section 36(b) Acquire Teeth?

By Francis Facciolo and Leland Solon |

Francis Facciolo and Leland Solon examine the current state of litigation in which creative plaintiffs have looked to the fees paid by mutual funds to advisers and sub-advisers of mutual funds as a measuring tool to argue that fees are excessive for services that are largely duplicative.

Stephen M. Kramarsky

Click Here to Waive a Jury Trial: 'Nicosia v. Amazon'

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, discusses a recent Eastern District case that demonstrates the difficult questions raised by "clickwrap" and "browsewrap" agreements.

Rupert M. Barkoff

Is It Time to Rebuild the U.S. Franchise Regulatory System?

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff writes that while the rest of the world, including franchising, has been dynamic and constantly changing, franchise regulation has been, essentially, static since 1979. Those favoring stability in regulation might argue that the absence of change has been good for franchising. A static environment is not, by its nature, bad. However, this assumes that the existing regulatory scheme is effective.

Thomas P. Higgins

Collecting Unpaid Condominium Common Charges

By Thomas P. Higgins |

Thomas P. Higgins writes: While it always makes sense for a condo board to file a lien against a unit owner who fails to pay common charges, sometimes the prospect of suing to foreclose is too lengthy, too expensive, or otherwise not advisable. If the unit owner in arrears is renting the unit to a tenant, the board has a viable alternative to the foreclosure route.

Sidney Kess

IRS-Provided Tax Relief for Small Businesses

By Sidney Kess |

In his Tax Tips column, Sidney Kess reviews recent Internal Revenue Service pronouncements that have created a number of new areas of relief specifically for small businesses.

Thomas F. Gleason

Trial Court Discretion and Expert Testimony

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason writes: Because of the importance of expert testimony, substantial discretion is needed to adjudicate fair procedures for pretrial expert disclosure. Discretion is critical in managing the timing of expert disclosure, but no simple rule of timing will fit all cases, because there are so many variable considerations.

Harvey M. Stone and Richard H. Dolan

Motion to Withdraw Plea in Drug Case Using Informant Denied

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions that denied a motion to withdraw a guilty plea where counsel's failure to file a government misconduct motion attacking the indictment would have been a reasonable tactic and, in any event, caused no discernible prejudice; prompted Governor Cuomo to expedite a special election; and more.

Joseph Lipari

'Expedia' Highlights Ambiguity of Corporate Allocation Rules

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari writes: Private state-tax advisors, particularly tax departments inside large corporations, devote much of their time looking for ways to reduce the income apportionable to high-tax jurisdictions. Some of these issues are apparent in the recent Division of Tax Appeals administrative law judge determination in 'Expedia, Inc.'

Lester M. Kirshenbaum and Alan E. Rothman

Judgment Recognizes Arbitral Award Against Foreign State

By Lester M. Kirshenbaum and Alan E. Rothman |

Lester M. Kirshenbaum and Alan E. Rothman write: A very recent Southern District decision contains a number of significant rulings, including some of apparent first impression, which should facilitate the recognition and enforcement within the United States of pecuniary international arbitration awards against foreign sovereigns related to private investments in foreign countries.

Michael B. Gerrard

Scale and Focus of Climate Litigation Outside of United States

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard writes: The large and growing volume of litigation in the U.S. courts about climate change has received an avalanche of analysis in the professional and academic literatures. In contrast, climate litigation outside the United States is little known on these shores and has gotten far less attention.

Justice David Saxe

The Amorphous Concept of Finality in CPLR 5501 Jurisprudence

By David B. Saxe |

David B. Saxe discusses a procedural issue that can lead to possible pitfalls: When a pretrial order grants summary judgment in favor of some of the defendants, may the plaintiff wait until the appeal from the final judgment to challenge that order, and may the Appellate Division treat that order as brought up for review in the plaintiff's appeal from the final judgment after trial, dismissing the complaint in its entirety?

Shepard Goldfein and James A. Keyte

State Oversight Over Agencies for Antitrust Immunity

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte discuss the U.S. Supreme Court's decision finding North Carolina's Board of Dental Examiners capable of conspiring and lacking immunity under the state-action doctrine, writing that the decision may lead many industries, even the practice of law, to rethink their professional regulatory regimes currently in place nationwide.

Kathleen A. Scott

Standards Mandating More Consistency in Regulatory Disclosures

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott reviews requirements, recently finalized by Basel Committee on Banking Supervision of the Bank for International Settlements, regarding certain uniform and consistent disclosures of a bank's compliance with bank regulatory requirements that will enable a more effective comparative review across a group of banks.

John Rapisardi and Joseph Zujkowski

Revel Asset Sale Raises Important Distressed Real Estate Issue

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: The proposed asset sale at the heart of the pending Revel AC chapter 11 cases has raised an interesting question about the extent to which sales can be approved under Bankruptcy Code section 363(f) free and clear of tenant interest in real property.

Jonah Knobler

Class Actions in Second Circuit: Do Plaintiffs Have Advantage?

By Jonah Knobler |

Jonah Knobler writes that an important recent Second Circuit decision not only held that classes may (sometimes) be certified even if the assessment of damages will require individualized fact-finding, but also contained an easy-to-miss sentence on the standard of review when a district court has denied class certification.

Avi Lew and Ronald D. Bratt

'Kapon' Resolves Inconsistency on Nonparty Subpoenas

By Avi Lew and Ronald D. Bratt |

Avi Lew and Ronald D. Bratt analyze 'Kapon v. Koch,' in which the New York State Court of Appeals clarified 30 years of ambiguity and division in the Appellate Departments as to CPLR 3101(a)(4), the provision governing nonparty subpoenas, and made it easier for parties to subpoena nonparties.

John L.A. Lyddane and Barbara D. Goldberg

What Remains of 'Wrongful Life' Damages?

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

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that the impact of the "collateral source rule" and the increasing availability of services for disabled persons have significantly limited the prospects for recovery in cases where it is claimed a failure to detect a fetal abnormality while a pregnancy could be legally terminated leads to the birth of a disabled child, and it is anticipated that with the advent of the Affordable Care Act, the range of recoverable damages will be further diminished.

Richard Raysman and Peter Brown

Judicial and Attorney Misuse of Social Media Can End Careers

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown discuss proceedings in which both lawyers and judges have been disciplined for remarks made via social media platforms.

Lewis R. Clayton and Eric Alan Stone

New Standard for Appellate Review of Claim Construction

By Lewis R. Clayton and Eric Alan Stone |

In his Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone write: In the past two months, the Supreme Court handed down a significant patent-law decision establishing the standard of appellate review for claim-construction decisions, and resolved a circuit split by holding that a jury, not the court, should decide whether modifications to a trademark change the commercial impression of the mark.

Matthew Olsen and Gregory Johnson

Creditors' Rights Against Single-Member LLC Owners

By Matthew Olsen and Gregory Johnson |

Matthew Olsen and Gregory Johnson write: Commercial lenders understandably spend significant effort assessing the value of a borrower's or guarantor's assets, but they also need to consider how they will be able to enforce a prospective judgment, especially when the relevant assets are comprised of a borrower's or guarantor's interests in one or more limited liability companies.

Michael Hoenig

'Crashworthiness' Rulings

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig reviews two recent rulings, one involving the potential interface of the so-called "eggshell plaintiff" rule with a crashworthiness/enhanced injury claim, the other, the reliability deficits in an expert's conclusions about certain crashworthiness features he claimed would have reduced the injuries.