Expert Analysis

Michael Hoenig

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

By Michael Hoenig |

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

Nicholas M. De Feis and Philip C. Patterson

The Perils of Resisting Extradition to the United States

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

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

Risks of Changing Professional Liability Insurers

By Jeffrey G. Steinberg |

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

Thomas F. Gleason

Implementation of Litigation Holds for Nonparties

By Thomas F. Gleason |

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

E. Leo Milonas and Andrew C. Smith

Departments Addressed Matters of First Impression in the Fourth Quarter

By E. Leo Milonas and Andrew C. Smith |

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

Justice Saliann Scarpulla

Commercial Division Rules Facilitate the Efficient Resolution of Disputes

By Saliann Scarpulla |

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

Timothy M. Tippins

Syndrome Testimony: Angels and Pinheads

By Timothy M. Tippins |

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

Jeremy H. Temkin

Tax Enforcement, John Doe Summonses and Digital Currency

By Jeremy H. Temkin |

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

Debbie Kaminer

Second Circuit to Hear Case on Sexual Orientation Discrimination

By Debbie N. Kaminer |

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

Roy L. Reardon and William T. Russell Jr.

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

By Roy Reardon and William T. Russell Jr. |

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

Sue C. Jacobs

The Possible Consequences of Pursuing Outstanding Legal Fees

By Sue C. Jacobs |

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

Eric Tirschwell

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

By Eric Tirschwell |

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

John L.A. Lyddane and Barbara D. Goldberg

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

By John L.A. Lyddane and Barbara Goldberg |

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

Sidney Kess

Tax Concerns for Starting a Business From Home

By Sidney Kess |

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

Bruce Maffeo

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

By Bruce Maffeo |

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

Stephen M. Kramarsky

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

By Stephen M. Kramarsky |

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

Harvey M. Stone and Richard H. Dolan

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

By Harvey M. Stone and Richard H. Dolan |

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

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

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

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

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

Michael B. Gerrard and Edward McTiernan

New York Environmental Legislation: 2016 in Review

By Michael B. Gerrard and Edward McTiernan |

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

A. Michael Weber

Mandatory Arbitration Agreements: To Be or Not to Be

By A. Michael Weber |

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

Lewis R. Clayton and Eric Alan Stone

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

By Lewis R. Clayton and Eric Alan Stone |

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

Kathleen A. Scott

Report on U.S. Anti-Money Laundering Compliance

By Kathleen A. Scott |

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

Shira Scheindlin

A Judge's Empirical Experience in Class Action Litigation

By Shira A. Scheindlin |

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

Costantino P. Suriano and Daniel Markewich

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

By Costantino P. Suriano and Daniel Markewich |

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

Wendi Lazar

Will Trump Companies' Employment Lawsuits Be Barometer for Presidency?

By Wendi S. Lazar |

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

Shepard Goldfein and James A. Keyte

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

By Shepard Goldfein and James Keyte |

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

Richard Raysman and Peter Brown

Broadly Drafted Software Licenses and Their Enforcement

By Richard Raysman and Peter Brown |

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

C. Raymond Radigan and Jennifer F. Hillman

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

By C. Raymond Radigan and Jennifer F. Hillman |

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

Anthony E. Davis

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

By Anthony E. Davis |

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

Ernest Edward Badway

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

By Ernest Edward Badway |

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

Evan H. Krinick

Insurers Using Technology to Fight Insurance Fraud

By Evan H. Krinick |

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

Shmuel Vasser

Conflicting Needs of International Bankruptcy Cases and Internet Privacy

By Shmuel Vasser |

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

Elkan Abramowitz and Jonathan Sack

'Salman': Addressing Vagueness in Insider Trading Law

By Elkan Abramowitz and Jonathan Sack |

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

Rahul Mukhi and Martha Vega-Gonzalez

Ethics of Using Hacked Information to Prosecute Criminal and Civil Claims

By Rahul Mukhi and Martha Vega-Gonzalez |

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

Eva Talel and Richard Siegler

Delinquent Payments: Addressing Usury Defenses and Public Notice Claims

By Eva Talel and Richard Siegler |

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

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

Appellate Review of Exercise of Discretion by Trial Court

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

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

Martin A. Schwartz

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

By Martin A. Schwartz |

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

Mark A. Berman

Forensic Computer Reviews and Emails as Documentary Evidence

By Mark A. Berman |

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

Jason P. Gottlieb and Michael Mix

Registration and Jurisdiction After 'Daimler': Awaiting Clarity

By Jason P. Gottlieb and Michael Mix |

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

Elai Katz

Information Sharing and Negotiations for Baseball Broadcast Rights

By Elai Katz |

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

Roy L. Reardon and William T. Russell Jr.

Correspondent Bank Accounts and Personal Jurisdiction

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

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

Appointing a Cyber Point Person to Minimize Impact of the Inevitable

By Rob Rosenzweig and Uri Gutfreund |

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

Julie Muniz

Business Immigration Under Trump: Upcoming Changes and How to Prepare

By Julie Muniz |

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

Daniel M. Lehmann

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

By Daniel M. Lehmann |

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

Michael Rikon

Does a Regulatory Taking Claim Have an Expiration Date?

By Michael Rikon |

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

Martin Flumenbaum and Brad S. Karp

Electronic GPS Tracking and the Fourth Amendment

By Martin Flumenbaum and Brad S. Karp |

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

Zack Hadzismajlovic

Disclosure of Export Control Violations May Disqualify Defense Contractors

By Zack Hadzismajlovic |

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

Jerry H. Goldfeder and Myrna Pérez

Challenges to Candidates: Residency and Timing

By Jerry H. Goldfeder and Myrna Pérez |

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

Peter A. Crusco

Search Engine Evidence and the 'Aguilar-Spinelli' Test

By Peter A. Crusco |

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

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

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

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

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

Scott Balber, John O'Donnell and Benjamin Mills

Protecting the Attorney-Client Privilege in Internal Investigations

By Scott Balber, John O'Donnell and Benjamin Mills |

Scott Balber, John O'Donnell and Benjamin Mills, of Herbert Smith Freehills. discuss key considerations for establishing and maintaining privilege over materials generated in the course of an internal investigation. An internal investigation will typically generate potentially sensitive materials, including notes of witness interviews, chronologies and spreadsheets compiling key facts, and written memoranda from counsel providing their advice to the company. The most effective way to keep those materials privileged is to establish that the investigation was conducted at the direction of legal counsel, and to be wary of waiving the privilege by disclosing privileged materials generated in the course of the investigation to regulators or the public.

Robert W. Clarida and Robert J. Bernstein

'We Shall Overcome'—Is It Free at Last?

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein examine litigation related to copyright in the song "We Shall Overcome." In a putative class-action suit against the copyright holder, plaintiffs claimed that the copyright was invalid because of defects in the registration for the song, fraudulent procurement of the registration, and publication of the song without proper copyright notice. Plaintiffs also asserted four claims under New York state law.

Edward M. Spiro and Judith Mogul

Attorneys Beware—Limited Immunity From Defamation Suits

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup column, Edward M. Spiro and Judith L. Mogul discuss a pair of recent cases that shed light on the parameters of the litigation privilege, and the narrow exceptions that litigants have been able to exploit. As they note, "when civil litigation turns ugly, it sometimes devolves into allegations of defamation not just between the parties, but against their lawyers as well. In light of the broad privilege cloaking statements made in the litigation process, the incidence of defamation allegations against lawyers is surprising."

Karl A. Groskaufmanis and Samuel P. Groner

Salman Insider Trading Decision: Lessons for Buy-Side Advisors

By Karl A. Groskaufmanis and Samuel P. Groner |

Karl A. Groskaufmanis and Samuel P. Groner, of Fried, Frank, Harris, Shriver & Jacobson, examine the U.S. Supreme Court decision in 'Salman v. United States' on the test for tipper/tippee liability in insider trading law. They explain that it sets a line that separates fundamental investment research from fraudulent and potentially criminal conduct. While the case marks a clear victory for federal insider trading enforcement, they note that it also multiplies the challenges for lawyers and compliance officers advising buy-side investors.

Sidney Kess

Charitable Giving: Bequests, Gift Annuities, Conservation Easements

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses three of the popular strategies that can be used by wealthy individuals for charitable giving: bequests, gift annuities and conservation easements.

Joshua D. Bernstein and Steven M. Cordero

Defending Against Revocation of §421-a Tax Benefits

By Joshua D. Bernstein and Steven M. Cordero |

Joshua D. Bernstein and Steven M. Cordero, of Akerman, examine Real Property Tax Law §421-a tax benefits after developers receiving such benefits decide to convert their projects to rentals. In doing so, however, they have jeopardized receipt of those incentives as provided by law for eligible projects. By altering the scope of their plans and failing to abide by New York's rent regulations, some of them have lost their favorable tax treatment, which was the very economic engine that made those projects viable. Now, the New York City government is seeking to rein in the granting of benefits to owners who do not meet the statute's requirements.

Peter M. Fass

Best Efforts Private Securities Offerings: Rule 10b-9

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass discusses a "best efforts" offering, in which the broker-dealer acts as the agent of the issuer (generally, the limited partnership or limited liability company) in attempting to sell the units directly from the issuer to the investors. The broker-dealer is paid commissions from the issuer for sales made. Best efforts offerings frequently are made on an "all or none" or "part or none" (minimum-maximum) basis. In an "all or none" offering, all of the units must be sold during the specified offering period or the subscriptions must be promptly returned to the investors. In a "part or none" offering, the designated minimum amount must be sold within the specified time or subscriptions returned to investors.

Shari Lewis - Rivkin Radler.12/13/2016

Self-Proclaimed Publisher of Fake News Sites Loses Circuit Appeal

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis discusses a recent Second Circuit decision in 'FTC v. LeadClick Media', which upheld a challenge by the FTC to certain kinds of fake news under the FTC Act, ruling that the FTC's complaint had not run afoul of §230 of the Communications Decency Act.

Gary J. Mennitt and Debra D. O'Gorman

Bondholder Litigation: Covenant-Light Indentures and Affiliate Transactions

By Gary J. Mennitt and Debra D. O'Gorman |

Gary J. Mennitt and Debra D. O'Gorman, of Dechert, examine a closely watched case of particular importance to bond lawyers, in which the Delaware Supreme Court provides guidance on questions that often arise in bondholders' rights cases, including the interpretation of the indenture, an issuer's repurchase of notes from an affiliate, the ability to repurpose an issuer's business, the scope of the implied covenant of good faith and fair dealing, and solvency in the context of avoidance claims. The Delaware Supreme Court affirmed the post-trial judgment of the Chancery Court in 'Quadrant Structured Products Company v. Vertin'.

Neil J. Rosini and Michael I. Rudell

Interpretation of Digital Millennium Copyright Act Alarms Service Providers

By Neil J. Rosini and Michael I. Rudell |

In their Entertainment Law column, Neil J. Rosini and Michael I. Rudell analyze a Second Circuit decision regarding the Digital Millennium Copyright Act, designed to give them a means of eliminating infringing content uploaded by users to Internet sites while providing eligible online service providers a safe harbor from infringement liability if they dutifully respond to takedown notices and bar repeat infringers. The decision may broaden the ways in which online service providers can lose the DMCA's safe harbor protection either by not implementing a repeat infringer policy with a sufficiently wide net or by demonstrating willful blindness to infringing activity involving entire categories of copyrighted works.

Conrad Teitell

Charitable Deductions for Clients Who Are Volunteers

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell discusses tax deductions for unreimbursed expenses volunteers incur in helping charitable organizations. Costs incurred in going from home to the charity's office (or other places where they render services), phone calls, postage stamps, stationery, and similar out-of-pocket costs are deductible as charitable donations.

Jeff S. Korek

Drawing Negative Inference When Civil Defendant Invokes Fifth Amendment

By Jeff S. Korek |

Jeff S. Korek, of Gersowitz Libo & Korek, examines the ramification if a civil defendant invokes the Fifth Amendment right to remain silent. Can a plaintiff's attorney in the civil action use the defendant's silence to draw a negative inference for the jury about the defendant's liability? These are just a few of the questions that arise in this complicated intersection between criminal and civil law.

Shareholder Challenges Apple Pay Practice

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III examines a challenge by an Apple Inc. shareholder to the company's executive compensation. The shareholder has proposed in his resolution "that Apple Inc. engage multiple outside independent experts or resources from the general public to reform its executive compensation principles and practices." In a no-action letter, the SEC concurred with the shareholder that the proposed resolution be included in Apple’s proxy statement for the 2017 meeting.

George Bundy Smith and Thomas J. Hall

Application of Forum Selection Clauses to Non-Parties

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update column, George Bundy Smith and Thomas J. Hall discuss the grounds under which non-parties to a contract may enforce or be bound by a forum selection clause, and review 'Gottwald v. Sebert', a New York County Commercial Division case addressing the well-publicized contentious dispute between the popular recording artist Kesha and her former producer "Dr. Luke." The column also reviews other recent Commercial Division cases that address and clarify the standards for applying these exceptions.

Anahita Thoms

Reducing Sanctions Risk: Complying Without Over-Complying

By Anahita Thoms |

Anahita Thoms, of Freshfields Bruckhaus Deringer, points out that while an effective and dynamic compliance program is essential for companies to navigate around legal pitfalls successfully, the complexity of current sanctions regimes need not always chill investment in risky jurisdictions. Companies should take all necessary steps to comply with applicable sanctions rules, but they need not over-comply by subjecting themselves to a standard stricter than what those regimes themselves impose. The article discusses the commonly recognized elements of an effective sanctions compliance program, some of the ways in which the global sanctions system can create complex issues, and how to reduce risk in complicated jurisdictions.

Roberta S. Karmel

Financial Choice Act: Limiting the Independence of the SEC

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel examines legislation now pending in Congress known as the Financial Choice Act, and writes: While it is too early to predict the effect of a Trump presidency on the SEC, some sense of Republican ideas for reversing the Dodd-Frank Wall Street Reform and Consumer Protection Act can be gleaned from the Financial Choice Act authored by Representative Jeb Hensarling, Chair of the House Committee on Financial Services.

New Cybersecurity Regulations: Impact on Representing Financial Institutions

By Barry R. Temkin |

Barry R. Temkin, of Mound Cotton Wollan & Greengrass, provides insights on the new New York Department of Financial Services cybersecurity regulations that become effective Jan. 1, 2017, particularly for lawyers who represent insurance companies, banks, insurance agents and other financial institutions in New York. The new DFS cybersecurity regulations require covered entities, including insurance companies, mortgage brokers, insurance agents and banks, to appoint a chief information security officer and to develop a comprehensive cybersecurity program in order to prevent hacking and other data breaches. In addition, the new DFS regulations will require the filing of an annual cybersecurity report, which must explain the state of the company's compliance with the new regulations, identify any soft spots or potential areas for improvement, and be signed and certified by the company's board chair or CEO.

Margaret A. Dale and Mark D. Harris

The Business Judgment Rule and Corporate Data Breaches

By Margaret A. Dale and Mark D. Harris |

In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris examine a case in which a district court in Georgia dismissed one of the first shareholder derivative actions that challenged the adequacy of a corporation's data-breach prevention strategy. They note that while that court held that the business judgment rule shielded the company's actions, it remains to be seen whether that position becomes the majority one.

Timothy M. Tippins

No Contribution, No Distribution: The Indicia of Economic Partnership

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins posits the question relating to the economic partnership theory based on the premise that marriage is, at least in part, an economic partnership, upon the dissolution of which the marital partners should equitably share in the fruits of their labors. While the economic partnership theory is a legitimate legislative rationale for equitable distribution, does it necessarily follow that any given marriage that comes before the divorce court was, in fact, such a partnership?

U.S. Labor Department in Washington, D.C.

Not So Fast: Death of Labor Department Fiduciary Rule May Not Be Imminent

By Jeff Kern |

Jeff Kern, of Sheppard Mullin, explores the considerations that may not spell the imminent death of the Department of Labor rule that imposes a fiduciary standard on those who provide investment advice in connection with employer retirement plans and Individual Retirement Accounts following the election of Donald Trump to the presidency. He writes that reports of the rule's demise may be premature. Whether its death knell is sounded depends on how the new administration chooses to navigate certain political, legislative, and regulatory obstacles.

Shepard Goldfein and James A. Keyte

Creative Destruction, Uber and Antitrust

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte examine the antitrust implications raised by two recent decisions involving Uber. In one, Uber is fighting against a local agency that has sought to prevent it from operating in St. Louis. In another, Uber is working to justify its business model and pricing algorithms against charges of anticompetitive price-fixing.

Joel Cohen

When a Detective Deceives—And the Lawyer Knows It

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen explores the ethical rules surrounding lawyers' oversight of investigators who use deceit. Most recently, a decision by Judge Jed Rakoff in ‘Meyer v. Kalanick’ put the import of ABA Rule 5.3 well into perspective for lawyers who hire or supervise investigators who would use deception to gain helpful or even essential information. Rakoff used the opportunity to remind counsel that, beyond the Rules, litigation requires truth-seeking, coupled with zealous advocacy.

Richard Raysman and Peter Brown

The Constitutionality of Using Cell-Site Simulators

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown discuss two recent cases that reach differing opinions on whether a cell-site simulator was used in a way consonant with the Fourth Amendment protection against unreasonable search and seizures. The opinions do not agree, although this may be due to specific factual circumstances. As such, the legal landscape regarding cell-site simulators remains largely unexplored.

Milton Springut

Second Circuit Strengthens Grey Goods Enforcement Law

By Milton Springut |

Milton Springut, of Springut Law, discusses a Second Circuit decision that sheds light on several issues involving grey goods—genuine goods that are intended for sale abroad, which the manufacturer has never authorized for domestic sale. The court recently summarily affirmed a preliminary injunction order in 'Abbott Laboratories v. H&H Wholesale Services' involving importation of diabetes test strips designed for sale internationally.

Ilene Sherwyn Cooper

The Close of 2016 Provides Useful Instruction

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update column, Ilene Sherwyn Cooper focuses on Surrogate's Court opinions. Toward that end, the final months of 2016 were distinguished by decisions involving joint bank accounts, probate proceedings and the scope of discovery, and removal.

Kimberly Zelnick and Stephanie Brown Cripps

Trump and the Implications for U.S. Sanctions on Iran

By Kimberly Zelnick and Stephanie Brown Cripps |

Kimberly Zelnick and Stephanie Brown Cripps, of Freshfields' New York office, examine the current state of play and possible changes that the president-elect can make to U.S. sanctions laws on Iran, including the continued viability of the Iran nuclear deal. The article also examines strategies that companies that have already entered the market and those that may be looking to enter can employ to best position themselves in the potentially shifting landscape.

Harvey M. Stone and Richard H. Dolan

Peremptory Challenges; Legal Malpractice Damages

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District of New York column, Harvey M. Stone and Richard H. Dolan report on significant decisions involving peremptory challenges to potential jurors, categories of damages that could be presented to the jury in a legal malpractice case and Truth in Lending Act claims.

Joseph Lipari

Common Sense Prevails in Innocent Spouse Case

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari discusses the innocent spouse rule, and circumstances when requiring both spouses to be liable for tax manifests injustice. When spouses file joint New York Personal Income Tax Returns, they are jointly and severally liable for the entire tax due, regardless of which spouse earned the income. As a remedial measure, the "innocent spouse" rule (incorporating an analogous federal provision) is meant to relieve certain taxpayers from their spouse's adverse tax consequences. The recent administrative law judge determination in 'Peter Gerace, Sr.' is a demonstration of the utility of this rule for the equitable administration of tax.

Anita Bernstein

First Department Rolls Own Criteria for a Judiciary Law §487 Claim

By Anita Bernstein |

Anita Bernstein, a professor at Brooklyn Law School, analyzes the Appellate Division, First Department's "adjectival criteria" in legal malpractice cases. She writes: while all the adjectives in the statute are either neutral or plaintiff-favoring, the First Department has written adjectival criteria that make it hard for plaintiffs to win. There's more: First Department cases say that plaintiffs must show a "pattern" of attorney misconduct, and assert that redress for this wrong must be "not lightly given." These hurdles, she writes, do not appear anywhere in the statute. "Chronic, extreme," "egregious." Redress for injured people "not lightly given." The "pattern" criterion. Where did the First Department's discouraging-to-plaintiffs words come from?

David M. Barshay

Post-Spokeo Standing and Fair Debt Collection Practices Act

By David M. Barshay |

In his Debtor-Creditor Rights Wrap-up, David M. Barshay surveys cases dealing with consumers' standing to sue for "procedural" violations under consumer protection statutes, particularly the Fair Debt Collections Practices Act, particularly after 'Spokeo, Inc. v. Robins', in which the U.S. Supreme Court considered whether a violation of a statutory right granted by the Fair Credit Reporting Act was a sufficient injury in fact to maintain an action in federal court. The court determined that if such injury is both "particularized" and "concrete," standing is present.

A. Jonathan Trafimow and Julia Gavrilov

'Cheeks': Restricting Private Settlements Under Fair Labor Standards Act

By A. Jonathan Trafimow and Julia Gavrilov |

A. Jonathan Trafimow and Julia Gavrilov, of Moritt Hock & Hamroff, address questions surrounding settlements in employment actions, particularly after 'Cheeks v. Freeport Pancake House', in which the Second Circuit affirmed the Eastern District of New York holding that parties cannot enter into settlements of individual FLSA claims without either the approval of the district court or the Department of Labor. The article discusses certain district court decisions construing 'Cheeks' and strategies employers have utilized in response to it.

Abby Tolchinsky and Ellie Wertheim

Guiding Parties Through Impasse: Tools and Approaches for Mediators

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim lay out tools mediators routinely use when parties arrive at positions that seem intractable and incompatible. Among them, to brainstorm in as unhampered a manner as possible, without judgment or restraint. "Indeed, we even encourage the parties to suggest options that they knowingly would reject," they write. Looking at aspects of an idea one does not want sharpens one's thinking. What is wrong with that idea?

Richard B. Ancowitz and Sanford Rosenblum

President's Pursuit of Iran Deal: Treaty or Executive Power Run Amok?

By Richard B. Ancowitz and Sanford Rosenblum |

Trial attorneys Richard B. Ancowitz and Sanford Rosenblum address what they call the damage to the Constitution inflicted by President Barack Obama in his pursuit of an Iran nuclear deal, the Joint Comprehensive Plan of Action and how he was aided and abetted by Congress. Given the national security importance of the JCPOA, many in Congress strongly indicated that any agreement with Iran on the nuclear issue and sanctions needed to be submitted to the Senate for advice and consent as a treaty.

Thomas A. Moore and Matthew Gaier

Expert Disclosures: Timely Objections and Preclusion

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier review some of the principles that may be divined from the decisions interpreting CPLR 3101(d)(1)(i) relating to preclusion of expert testimony based upon untimely or insufficient disclosure, and discuss some Appellate Division decisions applying those principles in malpractice actions.

Robert J. Anello and Richard F. Albert

Government Searches: The Trouble With Taint Teams

By Robert J. Anello and Richard F. Albert |

In this White-Collar Crime column, Robert J. Anello and Richard F. Albert discuss "taint teams" which the government often sets up when it seizes electronically stored documents by means of a search warrant. The taint team tries to segregate out materials protected by the attorney-client privilege to avoid later claims that it improperly accessed such documents. Over the years, a number of courts and practitioners have criticized this "fox guarding the chicken coop" procedure as inherently ill designed to protect the privilege. A recent case from the Eleventh Circuit illustrates just what these skeptical courts and counsel have been concerned about. In that case, privileged information was provided to the trial team without notice to the defendant in violation of the terms of a stipulation providing for a taint team.

Justin M. Sher

Investment Advisers: Beware the Broad Confidentiality Clause

By Justin Sher |

Justin Sher, of Sher Tremonte, writes that investment advisers may rely on confidentiality agreements to protect against the disclosure of an investment thesis or algorithm or simply as a means of keeping investors' affairs private. Indeed, Regulation S-P requires registered investment advisers to take steps to "insure the security and confidentiality of customer records and information." However, in light of recent enforcement measures taken by the SEC, advisers should review their confidentiality agreements—including those with investor clients—to make sure these agreements do not violate SEC Rule 21F-17(a), which prohibits the use of confidentiality agreements to deter whistleblowers.

H. Christopher Boehning and Daniel J. Toal

A Harsh Reminder of Counsel's Need for 'Reasonable Inquiry'

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 a recent decision which determined that counsel's failure to reasonably supervise an electronic document search by its client's employee was a sanctionable violation of Federal Rule of Civil Procedure 26(g).

Barry Kamins

Reviewing Credibility of Police Officer Testimony

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins explores suppression where the People have not sustained their initial evidentiary burden. While in the overwhelming number of suppression hearings, prosecutors are able to satisfy their burden of going forward with testimony that is found to be credible by the suppression court, in two recent cases suppression courts did not credit the testimony of police officers who testified that they were able to smell the odor of marijuana emanating from a vehicle that they had stopped.

Jeffrey S. Klein and Nicholas J. Pappas

ERISA Liability From 401(k) Plan Revenue Sharing

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas analyze two cases where plaintiffs challenged revenue-sharing arrangements under the Employee Retirement Income Security Act. "Revenue sharing" refers to an arrangement where a mutual fund, offered as an investment option in a 401(k) plan, pays either the plan's sponsor (usually the employer) or a plan service provider (a third-party vendor) a fee for performing administrative or record-keeping services for the plan. This concerns plan participants because mutual funds typically pay such revenue-sharing fees to the employer or service provider by periodically deducting the fees from the retirement plan's invested assets.

Kevin Schlosser

Lawyers' Role Key to Preserving and Preventing Fraud Claims

By Kevin Schlosser |

Kevin Schlosser, of Meyer, Suozzi, English & Klein, writes that recent cases show that courts are extremely reluctant to allow fraud claims in the face of well-crafted contractual disclaimers and provisions disavowing reliance on representations or other information in complex transactions. The cases illustrate the key role lawyers can and should play in both preserving and preventing claims of fraud and breach of representations and warranties in complex commercial transactions involving sophisticated parties.

Alton Abramowitz

Evolving Definition of 'Parent' in Child Custody and Access

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz discusses the evolving definition of a "parent" in child custody and access, with a focus on the Aug. 30 New York Court of Appeals ruling in 'Brooke S.B. v. Elizabeth A.C.C.', which has been widely hailed for recognizing the rights to child custody and access of non-biological partners in same-sex relationships regardless of whether those relationships are marriages, civil unions, life partnerships, or other seemingly less permanent affiliations. Often overlooked by those cheering the issuance of the Brooke S.B. decision are the facts that the precedent it established applies to heterosexual couples as well, that it is a victory for all non-biological parents regardless of gender, sexual orientation or marital status, and that the ultimate victors are the children themselves.

John P. Furfaro and Risa Salins

Changing Trends and Developments at the National Labor Relations Board

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins focus on significant 2016 decisions of the National Labor Relations Board which may or may not survive under a new administration. The NLRB has taken a number of actions during the term of President Barack Obama considered favorable to unions in the organizing process. Notably, there are two vacancies the authors expect the new president to fill promptly.

Geoffrey A. Mort

'Hively' Signals Shift Toward Banning Sexual Orientation Discrimination

By Geoffrey A. Mort |

Geoffrey A. Mort, of Kraus & Zuchlewski, examines prospects for the federal circuit courts of appeals to ban sexual orientation discrimination with a particular look at the Seventh Circuit decision in 'Hively v. Ivy Tech Community College'. The Hively decision ultimately concluded that sexual orientation claims are not cognizable under Title VII, but only after an unusually long and painstaking analysis of this issue in which the court opined that its finding "will not hold up under future rigorous analysis" and that "[i]t seems unlikely that our society can continue to condone a legal structure in which employees can be fired...and otherwise discriminated against solely based on how they date, love, or marry." Approximately 10 weeks later, however, the Seventh Circuit on Oct. 11 surprisingly vacated its prior ruling in a two-sentence order and granted the plaintiff's motion for an en banc rehearing.

Michael J. Hutter

'People v. Smith' and 'Bad Acts' Impeachment

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter discusses 'People v. Smith', in which the Court of Appeals provided clear guidance to the bench and bar as to how the "bad acts" impeachment rule is to be applied by the trial court. That rule emerged from a long-held belief of the New York courts is that witnesses "whose lives indicate an abandonment or lack of moral principles, and show them to be lewd and debased characters, void of shame or decency, have not usually a great respect for the truth, or the sanctity of an oath."

Christopher Dunn

Civil Rights and Liberties in The Age of Trump

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn discusses the civil rights philosophy that President-Elect Donald Trump brings to the presidency and examines the ways in which Trump will be able to affect civil rights on the federal and local level.


Copyright Ownership: Joint Authors and Other Topics

By Howard Wintner |

Howard Wintner, director of litigation at the Abramson Law Group, discusses copyright ownership, with an emphasis on joint ownership. A joint work is one "prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."

Martin Flumenbaum and Brad S. Karp

Rebuttal of Fraud-on-the-Market Presumption Post 'Halliburton II'

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'GAMCO Investors v. Vivendi Universal', where the court discussed one of the key issues in securities litigation—how to rebut the fraud-on-the-market presumption of reliance. The circuit found the defendants in the case had successfully rebutted the presumption by demonstrating that certain opt-out plaintiffs would have purchased the securities at issue even if they had known of the fraud.

Rupert M. Barkoff

Joint Employer Liability for Franchisors After the Obama Era

By Rupert M. Barkoff |

Franchising columnist Rupert M. Barkoff discusses prospects for joint employer liability for franchisors after the Obama era, the hottest issue in franchise law over the last few years. Joint employer liability could occur when an employee could claim that he or she had not one, but two, employers -- one begin the franchisor and the other the franchisee.

Maurice J. Recchia

Addressing Standard for Summary Judgment in Medical Malpractice Cases

By Maurice J. Recchia |

Maurice J. Recchia, of Russo & Toner, examines the standard for negligence on summary judgment motions in medical malpractice matters. The Court of Appeals recent addressed this standard in 'Pullman v. Silverman', which includes an interesting concurrence.

Harry Sandick and Helen P. O'Reilly

Second Circuit Clarifies Scope of Proffer Agreement Waivers

By Harry Sandick and Helen P. O'Reilly |

Harry Sandick and Helen P. O'Reilly of Patterson Belknap Webb & Tyler examine the decision in 'U.S. v. Rosemond', in which the Second Circuit clarified how and when certain defense tactics at trial can open the door to the introduction of protected proffer statements. Although securing a cooperation agreement after proffering to the government can lead to enormous benefits for those who successfully navigate the process, the negative consequences of a failed proffer are profound. The agreements typically involve a partial waiver of the protections that evidence of any "statement made during the course of plea discussions with an attorney for the prosecuting authority" is inadmissible against the defendant.

Six Ethics Tips for Attorneys Using Social Media

By Kristen B. Weil |

Kristen B. Weil, senior managing associate at Dentons in New York, writes: Even though the social media landscape is rapidly changing and can feel more casual than in-person communication, attorneys must remember that their ethical obligations do not disappear online. She provides some tips, drawn from the NYSBA Social Media Ethics Guidelines, to help New York attorneys ethically engage online.

Arthur J. Ciampi

2016 Round Up: Issues Surrounding Competition

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi reflects decisions and viewpoints in 2016 particularly in the area of competition such as non-compete agreements and non-lawyer ownership of law firms.

Edward E. Neiger

Filings by Casual Restaurants as Consumer Spending Decreases

By Edward E. Neiger |

Bankruptcy Update columnist Edward E. Neiger focuses on bankruptcy filings in the casual restaurant sector where restaurants struggle to operate as consumer spending decreases and labor costs rise.

Sidney Kess

Tax Issues for Helping Your Parents

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the tax issues involved when adult children provide financial help to their aging parents. He examines ways of gaining authority over a parent's finances, tax breaks available, and ways to reduce costs without diminishing the parent's lifestyle.

Jonathan A. Dachs

Decisions Reaffirm Rules of Policy Construction and Interpretation

By Jonathan A. Dachs |

In his Insurance Law column, Jonathan Dachs restates the "general, well-settled and widely known" rules for interpreting insurance policy provisions and uses case law to show how the courts are often called upon to repeat and restate these rules to support their interpretations of the various policy provisions before them.

Gregg L. Weiner and Adam M. Harris

'Consent by Registration' Theory of Jurisdiction: Are Its Days Numbered?

By Gregg L. Weiner and Adam M. Harris |

Gregg Weiner and Adam Harris explain why the "registration" theory for gaining jurisdiction over corporations is no longer viable under modern precedent and principles of due process, and further explores how courts have grappled with the issue.

Lawrence W. Newman and David Zaslowsky

Foreign Arbitral Awards: To Enforce or Not to Enforce?

By Lawrence W. Newman and David Zaslowsky |

International Litigation columnists Lawrence W. Newman and David Zaslowsky look at three recent decisions concerning the enforcement of foreign arbitral awards. Two of the decisions reached opposite results on the issue of enforcing awards that were annulled at the place of arbitration.

Robert C. Scheinfeld

'Apple v. Samsung': The Battle Continues

By Robert C. Scheinfeld |

Patent and Trademark columnist Robert C. Scheinfeld examines the Federal Circuit's findings in 'Apple vs. Samsung.' Practitioners will find particularly helpful guidance in the majority's analysis—especially what qualifies as "substantial evidence" upon which a jury may rely in finding on the merits and whether a patented invention should be deemed obvious and unworthy of protection.

Charlotte A. Biblow

How Sustainable Development Works in New York

By Charlotte A. Biblow |

State Environmental Regulation columnist Charlotte A. Biblow explores efforts in New York state on sustainable development. The state government is strongly promoting sustainable development, with regional conferences, various resources, and opportunities for entities across the state to apply for and obtain state grants and other financing. The state has released a 92-page guide to sustainable resources in the state, including more than 100 funding programs.

Thomas A. Dickerson and Sylvia O. Hinds-Radix

Ramping Up the Penalties for Apartment Sharing in New York City

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

Thomas A. Dickerson and Sylvia O. Hinds-Radix, associate justices of the Appellate Division, Second Department, discuss legislation addressing advertising for multiple dwelling units and the response of apartment-sharing service Airbnb. Airbnb, as it has in San Francisco and Santa Monica, Calif., filed a lawsuit in New York federal court, challenging the act.

Robert S. Kelner and Gail S. Kelner

Expert Disclosure Under CPLR 3101(d): 'Rivera v. Montefiore Medical Center'

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner explore 'Rivera v. Montefiore Medical Center', in which the Court of Appeals addressed the push and pull between an inadequate expert witness disclosure, the timeliness of an objection to such a disclosure, and the proper exercise of discretion by the trial court. An examination of the result in this case highlights the importance of vigilance in the examination of an expert witness disclosure and prompt action in conveying objections to any lack of sufficiency. Rivera makes it clear that the scope of judicial discretion in resolving these issues at trial is very broad.

Francis J. Serbaroli

The Interstate Medical Licensure Compact

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli discusses the Interstate Medical Licensure Compact, which has been enacted into law by 18 states and is intended to facilitate the licensure process for physicians who wish to practice in multiple states. He notes that, while the Compact has the support of many prominent medical organizations, there is some opposition to the Compact's requirement that a physician have specialty board certification, and its supersession of state medical licensing laws.

Ken Strutin

Unfit for Incarceration: Taking Stock of Punishment's Inhumanity

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Peering behind the concrete curtain of the prison experience, informed sentencing courts can muster the moral authority to preserve humanity before it is lost to incarceration.

Thomas F. Gleason

CPLR 2104 Stipulations: Meeting the Writing Requirement

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason discusses stipulations, specifically addressing possible risks that arise with the requirement in CPLR 2104 that the party or counsel "subscribe" the out-of-court agreement.

Choice-of-Law Clause and Borrowing Statute

By Michael H. Reed and Fran L. Rudich |

Michael H. Reed and Fran L. Rudich of Klafter Olsen & Lesser discuss a recent First Department decision in '2138747 Ontario v. Samsung C&T', which they describe as a cautionary tale about how much law choice-of-law clauses actually choose when it comes to statutes of limitations.

Justice Sunshine

2015-2016 Changes in Legislation and Rules for Matrimonial Matters

By Jeffrey S. Sunshine |

Jeffrey S. Sunshine discusses an array of statutes and court rules that were proposed and enacted in the past two years that will provide significant change in both the practice and process of matrimonial law in New York State.

Daniel G. Fish

Drafting Suggestions for Medicaid Trusts in Light of 'Flannery v. Zucker'

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes: In light of the various cases in which Medicaid has postulated a scenario that would fit within the "under any circumstance" language, drafters of inter-vivos trusts must exercise caution.

Adam R. Shaw

Settlement Agreement Not Binding; Dismissal After Violating Local Rules

By Adam R. Shaw |

Northern District Roundup columnist Adam R. Shaw examines two rulings, one on whether an agreed to, but unsigned, settlement agreement was binding, and another that offers a reminder that failing to follow the Local Rules can be fatal to your claim. The cases are "H&R Block Tax Services v. Strauss," and "Stubby Strips v. Food Market Merchandising."