Expert Columns

Expert Analysis

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 |
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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

Kathleen A. Scott

Proposed Identification of 'Beneficial Owners'

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott discusses proposed regulations from FinCEN, the U.S. agency tasked with issuing anti-money laundering regulations, that would require that a covered financial institution identify the beneficial owners of its legal entity customers.

Michael B. Gerrard

Legal Challenges to Obama Administration's Clean Power Plan

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard reviews the three major theories that are being advanced by industries and states opposing the Clean Power Plan, which would use an existing section of the Clean Air Act to reduce emissions from existing coal-fired power plants.

Lewis R. Clayton

Patent Law Intersections With Antitrust

By Lewis R. Clayton |

In his Intellectual Property Litigation column, Lewis R. Clayton of Paul, Weiss, Rifkind, Wharton & Garrison writes: Antitrust is hostile to restraints of trade, while patent law creates them. The decision of a split appellate panel in 'Tyco Healthcare', which rejected certain antitrust claims while sustaining others, is the Federal Circuit's latest effort to balance these competing interests.

John Rapisardi and Joseph Zujkowski

Second Circuit Expected to Address Key Issue for Distressed Bondholders

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski of O'Melveny & Myers write: Distressed bondholders should pay careful attention to a decision expected this fall from the U.S. Court of Appeals for the Second Circuit in 'Chesapeake Energy Corp. v. Bank of New York Mellon Trust Company'.

Ben Barnett and Rebecca Kahan

Judicial Battles Over Criminal Subpoenas for Online Data

By Ben Barnett and Rebecca Kahan Waldman |

Ben Barnett and Rebecca Kahan Waldman of Dechert write: Federal courts continue to struggle—and sharply disagree—over the scope of Fourth Amendment protections for ESI. One especially contentious issue has been whether the Fourth Amendment mandates certain restrictions on government search warrants for ESI controlled by third-parties.

Dennis Glascott and Lisa Diaz-Ordaz

As 30th Anniversary Approaches, Time to Revisit Articles 50-A and 50-B

By Dennis P. Glascott and Lisa Diaz-Ordaz |

Dennis P. Glascott of Goldberg Segalla, and Lisa Diaz-Ordaz , counsel at Liberty Mutual Insurance, discuss CPLR Articles 50-A and 50-B, the statutes that mandate future damages be paid in periodic payments, and write: While the Legislature intended CPLR articles 50-A and 50-B to benefit both plaintiffs and defendants, the end result has been confusion and discontent to all parties, including judges.

Norman H. Dachs and Jonathan A. Dachs

Individual Coverage Under Policies Issued to a Trade Name or 'd/b/a'

By Norman H. Dachs and Jonathan A. Dachs |

In their Insurance Law column, Norman H. Dachs and Jonathan A. Dachs of Shayne, Dachs, Sauer & Dachs discuss the issue of insurance policies which are issued under a trade name and discuss the Third Circuit case ‘Hartford Accident & Indemnity,’ where the court held that “where an insured purchases a policy in a trade name, the policy will be viewed as if issued in his given name.”

Richard Raysman and Peter Brown

Recent Disputes Between Parties to Joint Ventures

By Richard Raysman and Peter Brown |

Richard Raysman, a partner at Holland & Knight, and Peter Brown, the principal at Peter Brown & Associates, feature two prominent disputes that resulted in decisions at the federal level: One case deals with the legal implications of a conflict between two agreements signed by joint venturers on the same day, and in the other, a federal appellate court confronts a question of first impression in copyright law after a joint venture goes awry.

Shepard Goldfein and James A. Keyte

Cartel Deterrence at U.S. Sentencing Commission

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte of Skadden, Arps, Slate, Meagher & Flom, discuss the sufficiency of the antitrust sentencing guidelines for achieving optimal cartel deterrence ,and write that “broader questions arise about whether increased antitrust sanctions are truly the most effective way to deploy government resources in pursuit of improved cartel deterrence.”

Laura F. Redman

Perspectives From Europe: Balancing Same-Sex and Religious Rights

By Laura F. Redman |

Laura F. Redman, a senior attorney with the National Center for Law and Economic Justice, writes: The Supreme Court's decision in 'Hobby Lobby' and the amendment to Executive Order 11246 have brought questions of intersecting individual rights into the forefront of U.S. debate.

Anthony E. Davis

Alternative Structures Offer Other Visions of the Future

By Anthony E. Davis |

In his Professional Responsibility Column, Anthony E. Davis, a partner of Hinshaw & Culbertson, discusses recent developments in the legal profession and considers whether they will prompt a positive approach to providing legal services more effectively&and in more diverse ways& in the 21st century.

Evan H. Krinick

Courts Permit Mallela Claims Against 'Article 28' Facilities

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick of Rivkin Radler, focuses on the application of 'State Farm v. Mallela' to "Article 28" facilities — facilities that are permitted to be owned by non-physicians and are subject to other requirements and regulations enacted by the state's Department of Health.

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

Differing U.S. and Chinese Financial Disclosures Enough to Plead Fraud?

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

Joel C. Haims, Jamie A. Levitt and James J. Beha II, of Morrison & Foerster, discuss securities fraud litigation based on alleged discrepancies between U.S. and Chinese regulatory filings.

Timothy M. Tippins

'Sykes v. Sykes': War of the Roses Reprised

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: In an era when all too many decisions are so sparse on facts, issue delineation and legal analysis as to be quite meaningless, the recent 'Sykes' decision is a refreshing and an important read that provides a virtual primer on the law of equitable distribution and spousal maintenance.

William M. Pinzler

'Hobby Lobby' and Piercing the Corporate Veil

By William M. Pinzler |

William M. Pinzler writes: The universal requirement for piercing the corporate veil is that the creditor must show that the owners exercised complete domination of the corporation in its operations, in other words, the corporation is the "alter ego" of its owners. Surely, the owners of Hobby Lobby, Mardel and Conestoga Wood demonstrate that they are exercising such domination by asserting their individual religious beliefs and imposing them on their employees.

Thomas R. Newman and Steven J. Ahmuty Jr.

CPLR 5601(a)—Appellate Division Dissent

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. examine 'Reis v. Volvo,' which was appealed as of right based on two dissents in the Appellate Division on a question of law in favor of the appellant. Although the Court of Appeals disagreed with the Appellate Division dissent concerning the impropriety of one aspect of the jury instructions, it nevertheless reversed and ordered a new trial on the basis of its further disagreement with the majority concerning another aspect of the charge.

Matthew C. Kesten and Edward Lewand

Methods of Valuation in Matrimonial Appraisals

By Matthew C. Kesten and Edward Lewand |

Matthew C. Kesten and Edward Lewand write that typically, attorneys will seek a Fair Market Value appraisal of property. However, in a matrimonial situation, the FMV may differ depending on the nature of the assignment, the type of property being appraised, and the market in which the property might be sold. Marketable Cash Value is often the correct valuation method for matrimonial disputes.

Richard Siegler and Eva Talel

Warranty of Habitability in 2014

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel discuss recent case law applying the warranty of habitability to secondhand smoke, noise, mold, lead-based paint and bedbug conditions, as well as the availability of punitive damages in connection with uninhabitability claims.

Mark A. Berman

Decisions Address Relevance, Scope, Email and Privacy Issues

By Mark A. Berman |

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

Derrelle M. Janey

Parallel Proceedings: Staying the Civil Action

By Derelle Janey |

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

Elkan Abramowitz and Jonathan Sack

Bank Secrecy Act: Why Few Individuals Are Charged

By Elkan Abramowitz and Jonathan Sack |

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

Stephen Gassman and David A. Martindale

Use and Misuse of Mental Health Professionals in Custody Cases

By Stephen Gassman and David A. Martindale |

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

Edward E. Neiger

City of Detroit Moves Ahead on Reorganization Plan

By Edward E. Neiger |

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

Adam R. Shaw

Decisions Address Need for Precision and Promptness

By Adam R. Shaw |

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

Martin Flumenbaum and Brad S. Karp

Court Potentially Expands Asylum Criteria

By Martin Flumenbaum and Brad S. Karp |

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

Jonathan Cooper

Decisions Spur Confusion as to Non-Competes

By Jonathan Cooper |

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

Elai Katz

Grocery Wholesalers' Asset Swap Scrutinized

By Elai Katz |

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

Andrea M. Alonso and Kevin G. Faley

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

By Kevin G. Faley and Andrea M. Alonso |

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

Ben Rubinowitz and Evan Torgan

Videotaping IMEs: a Corollary to Defense Surveillance

By Ben Rubinowitz and Evan Torgan |

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

Edward M. Spiro and Judith Mogul

Shrinking Grounds for General Jurisdiction After 'Daimler'

By Edward M. Spiro and Judith L. Mogul |

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

Bruce M. DiCicco

Inheritance by Wrongdoers in Victims' Estates

By Bruce M. DiCicco |

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

Peter A. Crusco

Email Searches, the SCA and the Hybrid Search Warrant

By Peter A. Crusco |

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

Conrad Teitell

Charitable Gifts of Artworks—Report of IRS Panel

By Conrad Teitell |

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

Nativ Winiarsky

Commercial Tenants and Waiver of Real Property Law §227

By Nativ Winiarsky |

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

Martin A. Schwartz

The Supreme Court's Qualified Immunity Quintet

By Martin A. Schwartz |

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

Wallace Collins

Judicial Approval of Contracts With Minors

By Wallace E.J. Collins III |

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

Robert Clarida and Robert J. Bernstein

Functionality Rulings Are Nothing to Cheer About

By Robert W. Clarida and Robert J. Bernstein |

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

Lisa Gerson

Summer of Rule Changes in the Commercial Division

By Lisa Gerson |

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

Michael Rikon

Applying Project Influence Rule in Condemnation

By Michael Rikon |

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

Asher B. White and Menachem White

Pitfalls of the Matrimonial Retainer Agreement

By Asher B. White and Menachem White |

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

Roberta S. Karmel

Changing Face of Judicial Oversight of the SEC

By Roberta S. Karmel |

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

Chaim A. Levin

Dodd-Frank, 'Morrison' and Global Securities Transactions

By Chaim A. Levin |

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

Shari Claire Lewis

Court Addresses Bitcoin, Other Novel Online Technology Issues

By Shari Claire Lewis |

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

Richard S. Fries

Commercial Division's 'Rocket Docket'

By Richard S. Fries |

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

Sidney Kess

Affordable Care Act Reporting and Other Developments

By Sidney Kess |

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

Daniel G. Fish

Decision Expands Hardship Exception to Medicaid Denial

By Daniel G. Fish |

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

Linda Riefberg and Joseph Dever

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

By Linda Riefberg and Joseph Dever |

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

George Bundy Smith and Thomas J. Hall

The Wrongful Act Requirement for Piercing the Corporate Veil

By George Bundy Smith and Thomas J. Hall |

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

Peter M. Fass

General Solicitation and Advertising in Rule 506 Offerings

By Peter M. Fass |

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

Shepard Goldfein and James A. Keyte

Antitrust and Conditional Pricing Practices

By Shepard Goldfein and James A. Keyte |

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

Robert L. Schonfeld

Fair Housing Decision Tests Previous Notion of Standing

By Robert L. Schonfeld |

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

Paul Bennett Marrow

Judicial Supervision of an Ongoing Arbitration

By Paul Bennett Marrow |

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

Sarah S. Gold and Richard Spinogatti

Fiduciary Exception to Privilege in Books and Records Case

By Sarah S. Gold and Richard L. Spinogatti |

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

Thomas A. Dickerson and Sylvia O. Hinds-Radix

Apartment and Car Sharing: A Disruptive Internet Revolution

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

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

Joel Cohen

When Prosecutors Treat Counsel Differently

By Joel Cohen |

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

Richard Raysman and Peter Brown

Courts Conflict on Anonymous, Allegedly Defamatory Online Speech

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman, a partner at Holland & Knight, and Peter Brown, the principal at Peter Brown & Associates, write: Anyone spending 10 minutes on the Internet reading content is often assaulted by angry and coarse language supporting frequently outrageous opinions. The First Amendment concepts of free speech have reached either new highs, or discouraging lows, when dealing with opinions and blogs on the Internet. In this unrestricted environment, can individuals or businesses protect their reputations?

Ilene Sherwyn Cooper

Discovery Proceedings: Recovering Assets

By Ilene Sherwyn Cooper |

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

Tax Department Reads Taxpayer Residency Victory Narrowly

By Mark E. Berg |

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

Michael Hoenig

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

By Michael Hoenig |

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