Expert Analysis

Stephen Treglia

Increasing Cybersecurity Requirements for Lawyers

By Stephen Treglia |

In his E-Communications column, Stephen Treglia writes: Granted, the future regarding how various cybersecurity laws and regulations will be enforced against lawyers and law firms is not yet completely certain. But if early history is any indication, the legal profession must awaken and start taking notice and action before it becomes too late.

Rupert M. Barkoff

Franchisees Sitting on My Board? Never!

By Rupert M. Barkoff |

Franchising columnist Rupert M. Barkoff writes: There are many situations today where a group or a constituency wants to make sure that it has a voice at the decision-making table by having a representative on its franchisor's board of directors—a so-called "constituency director." Is this a good or bad idea?

Peter M. Fass

IRS Issues Regulations on Allocation of Partnership Liabilities

By Peter Fass |

In his Real Estate Securities column, Peter Fass discusses temporary and proposed IRS regulations that change the rules regarding allocation of partnership liabilities.

Thomas A. Dickerson

In Hotel Law, the Best Defense Is an Enforceable Forum Selection Clause

By Thomas A. Dickerson |

Thomas A. Dickerson compares Florida and New York law regarding the enforceability of hotel and resort forum selection clauses.

Arthur J. Ciampi

The First Amendment Rights of Law Firms

By Arthur J. Ciampi |

Law Firm Partnership Law columnist Arthur J. Ciampi reviews the Second Circuit's recent holding on to what extent freedom of speech, the right "peaceably to assemble," and the right to "petition the Government for a redress of grievances" pertain to commercial law firms that represent clients for a fee.

John L.A. Lyddane and Barbara D. Goldberg

The Culpable Conduct Defense in Medical Malpractice Actions

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

Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg write: In an appropriate case, a patient's culpable conduct, as for example a failure to provide an accurate medical history or heed instructions for follow-up care, can result in an apportionment of fault against the plaintiff and a corresponding reduction in the damages recoverable, or at a minimum, provide the basis for a jury instruction on mitigation of damages. In addition, negligent conduct by the plaintiff which contributed to the condition for which treatment was sought may potentially be treated as culpable conduct.

Andrea M. Alonso and Kevin G. Faley

The Elevation of the Expert

By Andrea M. Alonso and Kevin G. Faley |

Andrea M. Alonso and Kevin G. Faley write: On March 30, the Court of Appeals decided 'O'Brien v. Port Authority,' a case where two experts disagreed on whether a temporary metal staircase or scaffold—a safety device under the Labor Law—provided proper protection as required by the statute.

Charlotte A. Biblow

Brownfield Cleanup Program Guidance Is Nearly Final

By Charlotte A. Biblow |

State Environmental Regulation columnist Charlotte A. Biblow writes that there is good news for property owners, developers, and local government officials—the state's brownfield cleanup program revised guidelines are nearly finalized, and once they are approved, there will be a clearer roadmap for the application process, often a significant stumbling block for applicants.

Lawrence W. Newman and David Zaslowsky

Second-Guessing Arbitral Tribunals

By Lawrence W. Newman and David Zaslowsky |

International Litigation columnists Lawrence W. Newman and David Zaslowsky write: A recent case in England shows how deeply into the arbitral weeds an English court can still go.

Anthony Michael Sabino

The Upcoming Role of CFIUS in the Westinghouse Bankruptcy

By Anthony Michael Sabino |

Anthony Michael Sabino writes that the recent Chapter 11 filing of Westinghouse Electric is virtually assured of being no ordinary bankruptcy case: It is one of the few builders of nuclear reactors in the world. The critical technology that Westinghouse holds, while ostensibly devoted to peaceful purposes, could, in the wrong hands, be perverted to dreadful ends.

Robert C. Scheinfeld

The Federal Circuit Strikes Several Pharma Patents

By Robert C. Scheinfeld |

Patent and Trademark Law columnist Robert C. Scheinfeld writes that it has been tough sledding of late for some pharmaceutical patent owners in the Federal Circuit, which invalidated three patents in recent cases. But these cases give insight on some important issues: how the circuit reviews evidence and determinations of obviousness by the Patent Trial and Appeal Board in post-grant proceedings governed by the America Invents Act, and whether the AIA changed the law regarding the "on-sale" bar by overruling prior case law as to so-called "secret sales."

Martin A. Schwartz

SCOTUS Upholds Pretrial Detention Seizure Claim, Sidesteps 'Malicious Prosecution'

By Martin A. Schwartz |

Section 1983 Litigation columnist Martin A. Schwartz writes that the U.S. Supreme Court recently held that an arrestee's §1983 Fourth Amendment unreasonable seizure claim may challenge his pretrial detention, including detention after the issuance of legal process, such as a judicial determination of probable cause. The court, however, sidestepped the major issue of whether a §1983 malicious prosecution claim can be premised on a violation of Fourth Amendment rights.

U.S. Court of Appeals for the Second Circuit.

Fair Use Under the Trademark Laws

By Howard Wintner |

Howard Wintner writes: Although normally associated with copyright laws, there is also a doctrine of fair use under the trademark laws, which prevents a monopoly of a descriptive term which anyone should have right to use.

Francis J. Serbaroli

A Warning to Physician Practice 'Managers'

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli analyzes a recent Appellate Division decision that should send a warning to providers of physician practice management services. The court affirmed lower court determinations that exercising too much control over a medical practice can result in a finding that the medical practice is fraudulently incorporated, and thereby void the practice's bills for medical services.

Robert S. Kelner and Gail S. Kelner

Landowner Sidewalk Liability Under 'Sangaray v. West River Associates'

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss a Court of Appeals decision that addressed the circumstances under which multiple landowners could be held liable for an accident on a sidewalk abutting the property of only one such owner.

Stephen M. Kramarsky

Court Denies ISP Declaratory Relief on DMCA Protection

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky discusses a recent case in which an ISP essentially asked the court to give it legal advice: whether the DMCA applied to it, and whether it was required to respond to certain kinds of DMCA take-down notices. The court grappled with the question of whether it had the power to grant this kind of relief, and its carefully considered opinion provides some interesting insight into the current landscape of copyright protection under the DMCA.

Technical to a T: Explaining Audit Malpractice to Triers of Fact

By Michael Braverman and Christopher Ekimoff |

Michael Braverman and Christopher Ekimoff write that to triers of fact adjudicating audit malpractice cases, understanding the rules governing how auditors practice, Generally Accepted Auditing Standards, can seem like trying to decipher a foreign language. Armed with an understanding of GAAS and how they are applied in practice, attorneys can focus their strategy on elements of audit malpractice claims that will ring true with judges and juries.

Ioanna Olivia Zevgaras

How Far Will the Law Go in Extending a Physician's Duty to Warn Patients?

By Ioanna Olivia Zevgaras |

Ioanna Olivia Zevgaras of Short & Billy, P.C. writes: While the bottom line is that statutes and regulation may not always explicitly impose upon a physician the duty to warn his/her patient, the physician may still be subject to legal exposure. Health care providers need to know the statutory laws and regulations that apply to their work so that they can meet those responsibilities and not compromise public safety.

Mary Jo White and Andrew J. Ceresney

Individual Accountability: Not Always Accomplished Through Enforcement

By Mary Jo White and Andrew J. Ceresney |

Mary Jo White and Andrew J. Ceresney, in their inaugural Federal and State Securities Enforcement column, write that several provisions passed into law under Sarbanes-Oxley were intended to advance individual accountability for senior executives and yield valuable lessons about the effectiveness of such provisions. In recent years, however, a different route has also emerged: a market-driven remedy where some companies have taken steps to reduce the compensation of senior executives after being caught in regulatory and reputational crosshairs.

Thomas F. Gleason

New York Discovery in Our Non-Sanctuary Courthouses

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason writes that the raging controversy over sanctuary cities shows no sign of abating as efforts to implement sanctuary city status in New York City and elsewhere advance. This public policy debate has deep implications for how we attorneys conduct discovery, and how we treat undocumented persons in the courthouse.

Alan Vinegrad

The Sessions Memo: Back to the Past?

By Alan Vinegrad |

Alan Vinegrad writes that given the Attorney General's public statements on crime and his experience as the U.S. Attorney in a staunchly conservative state, his charging and sentencing policy was not much of a surprise. But how his policy will affect the federal criminal justice landscape will depend in large measure on how it is actually implemented by federal prosecutors throughout the country and how other constituents in the federal criminal justice community respond.

Roger L. Stavis

Computer Searches: A 'General' Warrant Can No Longer Satisfy Requirements

By Roger L. Stavis |

Roger L. Stavis writes: With so much of our modern lives contained within our computers, what is the distinction between a "general warrant" authorizing a "rummaging" search through someone's residence and a warrant authorizing a "rummaging" search of the entire contents of someone's computer? As is becoming clearer to courts in New York and around the country, there is absolutely no difference between the two.

Is New York Ready for the Remote Electronic Notary?

By Daniel G. Fish |

Elder Law columnist Daniel G. Fish writes: The signing of estate planning documents before a notary can be challenging, given the age of clients, mobility issues, and the difficulty of travel. With electronic legal research the norm and electronic filing mandatory in many cases, it should come as no surprise that the role of the notary is also subject to Internet innovation.

Richard Emery

Demystifying the Operations of the Commission on Judicial Conduct

By Richard Emery |

Judicial Conduct columnist Richard Emery attempts to demystify for the Bar and beyond the otherwise opaque arms of New York state government, the New York State Commission on Judicial Conduct and the Advisory Committee on Judicial Ethics.

Robert L. Schonfeld

Federal FHA Actions: Municipalities, Transgender Persons, Same-Sex Couples

By Robert L. Schonfeld |

Robert L. Schonfeld writes: One generally does not think of municipalities, who are often sued under the Federal Fair Housing Act, as being plaintiffs in actions under that statute. Similarly, as the FHA does not prohibit discrimination on the basis of sexual orientation, one does not think of transgender persons and same-sex couples successfully bringing actions under that law. However, in two recent decisions, courts have held that municipalities, transgender persons and same-sex couples can bring viable claims under the FHA.

Donald Trump

Remove the President? Read This First.

By Jerry H. Goldfeder |

Jerry H. Goldfeder writes: Whatever one thinks of a president's policies, temperament or competence, removing him from office before the next election is an extraordinary act. In our 230-year electoral history, no president has ever been ousted except at the ballot box. And now that a special prosecutor with impeccable credentials has been appointed, and an independent investigatory commission is perhaps on the way, it is time to take a deep breath. The jury is still out as to what facts will actually surface. That said, there are two ways to remove a president.

Jeremy H. Temkin

Reading Tea Leaves: Justice Gorsuch and Criminal Tax Cases

By Jeremy H. Temkin |

Tax Litigation Issues columnist Jeremy H. Temkin writes: The legal commentariat seems to have settled on the view that Justice Neil Gorsuch will fill the seat left by the late Justice Antonin Scalia both literally and as a like-minded successor in jurisprudential spirit. But will Justice Gorsuch, acolyte of originalism, defy easy assumptions on issues of criminal law as Justice Scalia did? A 2008 decision offers a few clues while posing some interesting issues for tax prosecutions.

Elliott Scheinberg

'Powell v. City of New York': CPLR 4404(a), Preservation of Issues

By Elliott Scheinberg |

Elliott Scheinberg writes: The recent First Department decision in 'Powell v. City of New York' is a brow furrowing lesson to the unwary would-be appellant that within the fundamental appellate principles of preservation of issues and aggrievement, perceived as absolute and immutable, lurks a potential trap.

Lynn K. Neuner and William T. Russell Jr.

A Review of 'People v. Bushey'

By Lynn K. Neuner and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. examine a case in which the court ruled that law enforcement officers may check a vehicle's license plate number and access any information in a DMV database regarding whether the vehicle's registration is in compliance with the law, without any other suspicion regarding the car or its driver.

Andrew Hutcheon and Mark Lee

Choice-of-Law Considerations in Transatlantic Transactions

By Andrew Hutcheon and Mark Lee |

Andrew Hutcheon and Mark Lee write: There are subtle differences between the approaches of New York and English law as to whether the courts will step in to "complete" preliminary or incomplete agreements where material terms are left to be agreed. One such difference is whether a preliminary agreement creates a duty to negotiate any remaining open terms in good faith.

Samuel Estreicher and Holly H. Weiss

Second Circuit to Decide If 'Sign-in Wrap' Agreements to Arbitrate Are Enforceable

By Samuel Estreicher and Holly H. Weiss |

Arbitration columnists Samuel Estreicher and Holly H. Weiss write that "clickwrap" agreements have been enforced by the courts, while "browsewrap" have encountered greater resistance. Next up in the Second Circuit are "sign-in wrap" agreements, where the user is notified of the existence of the terms and conditions when signing in or logging on, but does not have to affirmatively agree to the terms and conditions.

Marcie Borgal Shunk

What Law Firms Can Learn From Corporate Venture Funds

By Marcie Borgal Shunk |

Law Firm Management columnist Marcie Borgal Shunk writes: Rather than wait on the sidelines as new technologies disrupt their industries, large corporations across a wide variety of sectors have found ways to encourage, explore and integrate game-changing advances into their portfolios. A handful of law firms to date have tiptoed into these waters, housing incubators for startups or acquiring technology upstarts to augment their ability to deliver legal services more efficiently or effectively.

Ken Strutin

The Information Curtain of Prison Walls

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Lawyers are surrounded by automation, but not the incarcerated. An Information Curtain lies between the far-points of actual innocence and artificial intelligence, making access to the courts a technology issue.

Scott D. Locke and Laura-Michelle Horgan

Double Entendres, Intentional Misspellings, and Descriptive Marks

By Scott D. Locke and Laura-Michelle Horgan |

Scott D. Locke and Laura-Michelle Horgan write: Marketers are often tempted to use descriptive or laudatory words and phrases in brand names, which are not a basis for strong trademark rights. Appreciating this problem, some clients are tempted to use double entrendres or clever misspellings, which can elevate an otherwise descriptive mark to a higher status. However, as Calphalon Corp. recently learned, not all double entendres are created equal.

Sidney Kess

Tax Laws by Birthday

By Sidney Kess |

Sidney Kess writes: Attorneys are used to working with tickler systems and calendars to ensure that key deadlines for certain actions are timely met. The same methods should be used to ensure that age-related tax rules are observed.

Onya Brinson

Needlework: Did the Second Circuit Err in 'Stevens v. Rite Aid'?

By Onya Brinson |

Onya Brinson discusses the Second Circuit's reversal of a district trial court verdict that found a Rite Aid pharmacist had been the victim of disability discrimination when his employer terminated him for refusing to administer vaccinations because of his fear of needles. Was administering vaccinations an essential function, and could the defendant could have provided the pharmacist with a reasonable accommodation?

Harvey M. Stone and Richard H. Dolan

Court Rules on Civil Rights, Severance of a Criminal Case and VARA Claims

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review the dismissal of civil rights and related claims by international airline passengers because they were preempted by the Montreal Convention, an order for severance in a two-defendant criminal case to prevent the risk of severe prejudice to one, and a ruling on various claims in an action for damages under the Visual Artists Rights Act of 1990.

R Randy Lee

The Problems Landlords Face When Renting Illegal Apartments

By R. Randy Lee |

R. Randy Lee writes: Those navigating these waters should understand New York state's Multiple Dwelling Law and its impact on residential realty, because an owner who fails to obtain a certificate of occupancy or comply with building registration requirements will lose regardless of a booming economy.

Michael B. Gerrard and Edward McTiernan

N.Y.'s New Laws Protecting Drinking Water From Emerging Contaminants

By Michael B. Gerrard and Edward McTiernan |

Michael B. Gerrard and Edward McTiernan write: New York's budget this year was adopted against the backdrop of continuing drinking water challenges in Flint, Mich. and across New York state. As a result, significant changes in the way drinking water will be protected, monitored and mitigated emerged from this year's budget process.

Death, Taxes and Driving Uncertainty

By Elizabeth Cooper, Joshua A. Liebman and Christopher Ziemba |

Elizabeth Cooper, Joshua A. Liebman and Christopher Ziemba discuss New York Tax Law 171-v, which gives the state's Department of Taxation and Finance the power to suspend the driver's license of anyone who owes $10,000 or more in state taxes. For those New Yorkers who are already struggling to meet their basic living expenses, the sanction has proven to be devastating.

Lewis R. Clayton and Eric Alan Stone

Recent Cases Address Scope of Copyright Protection for Pre-1972 Recordings

By Lewis R. Clayton and Eric Alan Stone |

Intellectual Property Litigation columnists Lewis R. Clayton and Eric Alan Stone writes that a series of recent lawsuits in New York, Florida, and California have brought increased focus on the existence and scope of state-law copyright protection for pre-1972 sound recordings.

C. Evan Stewart

The Fork in the Road: The SEC and Preemption

By C. Evan Stewart |

C. Evan Stewart writes: Since 2003, I have been predicting a test case/showdown between lawyers who follow the dictates of the states in which they are licensed to practice law versus the conflicting dictates of the rules and regulations promulgated by the SEC after the Sarbanes-Oxley Act of 2002 went into effect. And while I thought I knew how such a test case/showdown would (should) end up, a recent judicial development has shaken my certitude (but only a little, because—as we will see—the ruling is wrong).

Shepard Goldfein and James A. Keyte

So Long, 'Net Neutrality'?

By Shepard Goldfein and James Keyte |

Antitrust Trade and Practice columnists Shepard Goldfein and James Keyte write: On April 26, 2017, FCC Chairman Ajit Pai explicitly confirmed what we all presumed, all but declaring war on the regulation that enabled the FCC to adopt the net neutrality rules. For all practical purposes, practitioners and their clients should prepare themselves for a world without net neutrality regulatory framework—i.e., one in which antitrust and the courts will police the Internet highway.

Elkan Abramowitz and Jonathan Sack

How the FCPA Applies to Private Companies

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack discuss recent Foreign Corrupt Practices Act enforcement activity involving private companies and their employees—notably, agreements between the DOJ and two private companies in the fall of 2016 in which prosecution was declined but disgorgement of ill-gotten profits required.

Richard Raysman and Peter Brown

Rulings on Trade Secrets Taken From an Employer's Cloud

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown discuss two different cases that reached different conclusions when deciding whether former employee use of cloud-based services as a conduit for the transfer of former employer information can be actionable.

Joshua Bernstein and Vanessa Garcia

Co-Branding a Boutique Hotel and Restaurant With a Celebrity Chef

By Joshua Bernstein and Vanessa Garcia |

Joshua Bernstein and Vanessa Garcia write that celebrity chefs and signature restaurants have become an essential component of any successful high-end hotel, but there are potential pitfalls in co-branding. Savvy business owners will make sure to include reasonable and enforceable non-compete clauses among the terms of employment for the chefs with whom they co-brand any of these business ventures.

Michael Hoenig

U.S. Supreme Court Speaks on Discovery Sanctions

By Michael Hoenig |

Although the Supreme Court's decision in 'Goodyear' mandates that a court's award of monetary discovery sanctions must be causally-proportional to the misbehavior, it also may stimulate a rush by some litigators to assert so-called "discovery tort" claims, even after settlements are believed to have ended the litigation.

C. Raymond Radigan and Jennifer F. Hillman

Practical Concerns When Settling a Wrongful Death Action

By C. Raymond Radigan and Jennifer F. Hillman |

Settling wrongful death actions involves a specific procedure between the trial court and the Surrogate's Court which must be complied with. This article seeks to provide practical advice concerning the potentially tricky process.

John F. Parker and Rosa Forrester

Up in the Air: The Evaporating Confidence of New York Property Owners

By John F. Parker and Rosa Forrester |

Recent changes in New York's environmental guidelines and practices have led to the reopening of previously closed environmental spill sites to further investigate the presence of volatile organic compounds that have infiltrated existing structures. Sites that have been reopened have been mired in detailed investigation, public scrutiny, and confusion amongst ever-changing regulatory policies, stymying owners' attempts to recoup the value of their property for the foreseeable future.

Evan H. Krinick

Rulings Obtained by Preet Bharara Highlighted Insurance Fraud Problem

By Evan H. Krinick |

Insurance Fraud columnist Evan H. Krinick writes: Over nearly eight years as U.S. Attorney for the Southern District of New York, Preet Bharara became recognized as a powerful prosecutor in many areas, including government corruption and white-collar crime. Another subject for which he certainly deserves mention is his strong record helping to fight insurance fraud in New York.

Andrew S. Kaufman

How to Handle Hindsight Bias When Defending Radiology Claims

By Andrew S. Kaufman |

Andrew S. Kaufman writes that suits against radiologists have become ubiquitous in our society, and the potential monetary exposure tends to be high. The vast majority of such claims are based on a radiologist's not appreciating an abnormality, a claim that is susceptible to a pernicious and insidious form of bias on the part of plaintiff's expert as well as the jury.

Anthony E. Davis

Tales of Woe: An Update on Two Disturbing Issues

By Anthony E. Davis |

Anthony E. Davis, in his Professional Responsibility column, revisits the topics of the differing office requirements for New York admitted lawyers who reside outside New York and the rules governing identically qualified lawyers who do reside in the state, and inadvertent disclosure, particularly the duties of lawyers who, through no fault of their own, receive messages or documents that were not intended for their eyes.

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

Interest of Justice Jurisdiction

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

Appellate Practice columnists Thomas R. Newman and Steven J. Ahmuty Jr. write: As Justice Felix Frankfurter aptly observed, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." With certain limited exceptions, however, issues raised for the first time on appeal will not be considered as grounds for a reversal or modification.

Paul F. Millus

The Government's Answer to Bridging the Gender Wage Gap

By Paul F. Millus |

Paul F. Millus writes: There are a multitude of arguments and talking points both for and against laws prohibiting employers from asking job candidates about their salary histories, but the fundamental question is: Does a law prohibiting this particular inquiry violate the employer's right to free speech under the First Amendment?

A Primer on New York's Impending Paid Family Leave: Are Employers Prepared?

By Michael Marra and Melissa Osipoff |

Michael Marra and Melissa Osipoff of Fisher Phillips discuss the New York Paid Family Leave Benefits Law (PFLBL), which guarantees job protected, paid family leave for virtually all private sector employees, effective Jan. 1, 2018. On Feb. 22, 2017, the NYS Workers' Compensation Board published proposed regulations that explain and clarify key elements of the PFLBL, which were open to public comment until April 8, 2017. Though subject to potential revision, the proposed regulations offer insight about implementation of the PFLBL.

Eva Talel and Richard Siegler

Co-op Capital Expenditures: Apartment Tax Basis Adjustments

By Eva Talel and Richard Siegler |

In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler write: One common mistake made by co-op apartment owners when they sell their apartments is not adjusting the apartment's tax basis to account for payments made by the owner to the co-op (typically, by a special assessment imposed by the corporation) which is used for capital improvements to the building. These adjustments can significantly reduce shareholders' tax bills in the event of a sale, especially for those who have owned their apartments for a long time.

For Lawyers and Law Firms: Mitigating Cyber Risks With Right Security Controls

By Chris Moschovitis |

Chris Moschovitis writes: Unfortunately, many lawyers are becoming tone-deaf to the constant narrative of "it's not a matter of if you'll be hacked—it is a matter of when" and are being seduced by vendors that promise "peace of mind." These promises are dangerous and expensive fantasies that deliver a false sense of security. That said, business must go on, and lawyers are all responsible for taking pragmatic steps to mitigate cyber security risk.

Brian J. Shoot

'O'Brien': A Sea Change ... or Not?

By Brian J. Shoot |

Construction Accident Litigation columnist Brian J. Shoot writes: The Court of Appeals ended March with a 4-to-3 ruling that at least some defense advocates are already heralding as having effected a sea change in the jurisprudence concerning the so-called "scaffold statute." I think it far more likely that the case was, at bottom, just about exterior stairs and the impossibility of keeping them dry when it rains.

Wendi Lazar

The Gig Economy: A Threat to Basic Employment Rights

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar writes: The facts reveal a striking difference between the way Madison Avenue portrays gig workers—as young, hip entrepreneurs who use the applications to make extra money—and reality. A recent study of contingent workers in the United States reveals a person who has a distinct lack of bargaining power.

Mark A. Berman

ESI Evidence: Authentication and Hearsay Issues

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman writes: It is remarkable how few New York state court decisions exist addressing the authentication of and hearsay objections to ESI, and that may be because litigators do not appreciate how vulnerable ESI can be to attack and how to properly frame and then support opposition to its use when it has been relied upon as a basis for a dispositive motion. He discusses recent cases that may serve as a starting point for New York litigators when arguing evidentiary issues concerning ESI.

Benjamin Rosenberg and Amanda Rios

The Slow Decline of 'People v. LaFontaine'

By Benjamin Rosenberg and Amanda Rios |

Benjamin Rosenberg and Amanda Rios write: It is abundantly clear that 'People v. LaFontaine' is an unfortunate case in that it reached a result that no one (not even the court that announced it) thought was efficient or wise. As a consequence, it has been limited in ways that are welcome but unclear.

Austin R. Graff

General Municipal Law §51 Should Be Amended

By Austin Graff |

Austin Graff argues that the New York State Legislature should amend N.Y. General Municipal Law §51 to add special improvement districts and all other agencies of government to the types of entities that are subject to taxpayer actions, making it a tool in the toolbox for fighting against corruption in government.

Philip E. Karmel and J. Kevin Healy

Scallops vs. Wind Energy: Consideration of Alternative Sites for Off-Shore Wind Farms

By Philip E. Karmel and J. Kevin Healy |

Philip E. Karmel and J. Kevin Healy discuss a recent lawsuit brought by the scallop industry and its allies to challenge the Bureau of Ocean Management's lease to Statoil of a designated Wind Energy Area off the south shore of Long Island in an attempt to keep offshore turbines from being located in the vast ocean areas they claim to be important fishing grounds for scallops and squid.

Martin A. Schwartz

Seventh Circuit Holds DOJ Report Admissible on Municipal Liability Claim

By Martin A. Schwartz |

Section 1983 Litigation columnist Martin A. Schwartz writes that a municipality sued under §1983 may not be held liable solely because it employed a constitutional wrongdoer. Rather, the plaintiff must demonstrate that the violation of her constitutional rights was attributable to the enforcement of a municipal policy or practice. Recently, the admissibility of U.S. Department of Justice reports on the issue of municipal liability has been central to several cases.

Sharon M. Porcellio

In Two Cases, Court Addresses Bankruptcy and Arbitration Provisions

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio writes that the court, in the context of a Title VII reverse-race discrimination claim, analyzed whether a corporation is an individual under a bankruptcy provision excepting plaintiff's claim from discharge. In another case, a judge refused to compel arbitration, finding the arbitration provisions substantively unconscionable in a decision chock full of interesting footnoted related discussions.

Jerry H. Goldfeder and Myrna Pérez

President Trump and the 25th Amendment

By Jerry H. Goldfeder and Myrna Pérez |

Government and Election Law columnists Jerry H. Goldfeder and Myrna Pérez write that any attempt to remove a sitting president is obviously an extraordinary and constitutionally fraught act—especially pursuant to a provision whose central term is so opaque. What does it mean to be "unable" to discharge one's duties?

Michael Rader

Rising to the Challenge: Junior Attorneys in the Courtroom

By Michael Rader |

Michael Rader writes: Creating opportunities for young lawyers to take an active role in today's trials is not just a way of preparing the legal profession for the future. It is also an important strategy for serving clients in the present. Young lawyers often work more closely than senior lawyers with the witnesses who will testify and invariably bring an outstanding level of preparation in their eagerness for trial experience. Moreover, advocacy by young lawyers can be refreshing—and most importantly, persuasive—to judges and juries.

Joseph Facciponti and Joseph Moreno

So You've Been Hacked: The Changing Landscape of Post-Data Breach Liability

By Joseph Facciponti and Joseph Moreno |

Joseph Facciponti and Joseph Moreno discuss the potential for regulatory and civil liability for corporations in the aftermath of a data breach.

Stephen Kass

A Two-Step Climate Plan for Trump to Address U.S. Obligations

By Stephen L. Kass |

International Environmental Law columnist Stephen L. Kass reviews the legal and "moral" obligations of the United States under the 1992 U.N. Framework Convention on Climate Change and the Paris Agreement and summarizes the multiple reasons why the United States must not simply walk away from those obligations. It then proposes a two-part climate plan that the Trump administration could undertake to meet those commitments without relying on the Obama Clean Power Plan that Trump pledged to rescind and without asking for continuing Congressional appropriations to help developing countries adapt to climate change.

Thomas E.L. Dewey

Oral Settlements in Open Court Enforceable Without Follow-On Writing

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey writes: An agreement to settle a case is generally not binding until it is put into writing and either signed or entered as a court order. But as a recent case in the U.S. District Court for the Southern District of New York illustrates, there is an important exception: Agreements made between counsel in open court are enforceable, even if one party changes her mind before an anticipated written agreement is complete.

David B. Saxe and Danielle C. Lesser

Streaming of Appellate Arguments at the First Department

By David B. Saxe and Danielle C. Lesser |

David B. Saxe and Danielle C. Lesser write: The First Department's reluctance to provide the level of transparency other state appellate courts and federal courts in New York provide sets it apart and, given its commercial prominence in resolving high profile disputes, its refusal to provide live streaming is an unfortunate loss for the legal community.

Martin Flumenbaum and Brad S. Karp

A Step Toward Protection From Sexual Orientation Discrimination Under Title VII

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss a recent decision that indicates the court's willingness to expand Title VII to prohibit sexual orientation discrimination, or at least to view gender stereotyping more broadly, an issue the Supreme Court is likely to take up soon.

Marc J. Gottridge and Lisa J. Fried

A.5918: Unconstitutional, Unwise and Futile Effort to Expand N.Y. Courts' Jurisdiction

By Marc J. Gottridge and Lisa J. Fried |

Marc J. Gottridge and Lisa J. Fried argue: Assembly bill A.5918 would codify the hoary fiction that applying for registration to do business in New York "constitutes consent to the jurisdiction of the courts of this state for all actions against such corporation." This proposal is a legal fool's errand, almost certain to be held unconstitutional, that undermines Albany's boast that the "climate for doing business in New York has never been better."

Michael Rikon

Partial Takings and the Permanent Easement: Underline the Word 'Permanent'

By Michael Rikon |

Condemnation and Tax Certiorari columnist Michael Rikon writes that a partial taking is a frequent occurrence in street widenings or takings for sewer, electrical or gas lines. Partial takings are more complicated than full takings—not only are we concerned with the value of the part taken, we must also look into whether or not the part not taken has had its value affected negatively.

Elai Katz

Parallel Bundling in Surgical Products

By Elai Katz |

Elai Katz, in his Antitrust column, reviews a Tenth Circuit decision affirmed the dismissal of claims that leading medical-surgical product distributors violated antitrust laws by offering bundled package deals. While typical bundling and tying cases examine conduct by a single dominant firm, this decision tackles parallel tying and bundling by two competitors. The opinion also sets forth an analytic framework to evaluate tying claims under the rule of reason rather than the more commonly applied per se tying rule.

Peter A. Crusco

Notice of Surveillance to Non-Target, Non-Defendant Interceptees

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco addresses an interesting yet rarely litigated legal issue: whether individuals whose communications are intercepted, but are non-targets and never prosecuted, are entitled to notification and copies of the documents upon which the order for electronic surveillance was based.

Thomas A. Dickerson

Hotel Law: Cybersecurity and Resort Fees

By Thomas A. Dickerson |

Thomas A. Dickerson reviews recent data breaches, and resulting lawsuits, where hotel guests' personal information was stolen, as well as an FTC report on undisclosed resort fees.

Joseph S. Bavaro and Daniel Justus Solinsky

The Spoliation Cause of Action: A Vampire in the Court System

By Joseph S. Bavaro and Daniel Justus Solinsky |

Joseph S. Bavaro and Daniel Justus Solinsky write that despite the Court of Appeals seemingly driving a stake through the heart of the spoliation cause of action in 'Ortega v. City of New York,' like any good movie monster, somehow it appears to have mutated and survived, as a common law claim of tortious interference by an employer with an employee's cause of action against a third party.

Conrad Teitell

Charitable Vehicle Donations: Basic Information to Assure Tax Benefits

By Conrad Teitell |

Estate Planning and Philanthropy columnist Conrad Teitell reviews the basics of donating a car or other vehicle to charity—an area where, after years of inflated claimed deductions, Congress and the IRS have tightened the rules.

Steven Andersen and Andrew Longstreth

The Evolution of Fake News, and How It Affects Lawyers

By Steven Andersen and Andrew Longstreth |

Law Firm Management columnists Steven Andersen and Andrew Longstreth write that real identities, including those of lawyers or firms, lend credence to spurious sites and help trick search engines, social media users and media monitoring services into driving traffic. Fortunately, most fake news sites that affect lawyers receive minimal views—but you should still stay on your toes.

Yonatan Levoritz

How Matrimonial Courts Can Better Handle Litigants' Fraud

By Yonatan Levoritz |

Yonatan Levoritz writes that client tax fraud is a problem, and one more common than many attorneys realize. In 'A.S. v. K.S.', a matrimonial case where counsel had reported to the court that both parties had committed tax fraud, Justice Jeffrey Sunshine took the admirable step of addressing the issue of "clean hands," but arguably applied the wrong approach to resolve the issue of the economically dependent spouse's entitlement to an award of pendente lite maintenance.

E. Leo Milonas and Andrew C. Smith

From Procedural to Property Issues, It's Full Steam Ahead for Four Departments

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith report on cases involving a condominium owner's eviction, a criminal witness who suddenly developed amnesia while on the stand, whether a guilty plea bars an "actual innocence" claim, whether a citizen review board had standing to sue the police department it was charged with reviewing, and more.

George Bundy Smith and Thomas J. Hall

Personal Jurisdiction Based on Digital Presence

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: Reacting to the rapid expansion of digital transactions, the Commercial Division has creatively interpreted New York's long-arm statute when considering a party's digital presence in New York. While a defendant's digital communications may now be a plaintiff's ticket to access New York courts, the Commercial Division may not permit a plaintiff to take advantage of this interpretation as a means to manufacture jurisdiction.

Shmuel Vasser and Andrew C. Harmeyer

'Millennium Lab': the Death Knell for Non-Consensual, Third-Party Releases?

By Shmuel Vasser and Andrew C. Harmeyer |

Shmuel Vasser and Andrew C. Harmeyer write that the D.C. District Court potentially has upended an assumption in bankruptcy courts, suggesting that in many cases, they lack that authority under Article III of the U.S. Constitution to enter a final order granting non-debtor, third-party releases, at least without the affected party's consent.

Margaret A. Dale and Mark D. Harris

SCOTUS to Address Circuit Split Regarding Securities Fraud and Duty to Disclose

By Margaret A. Dale and Mark D. Harris |

In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris discuss the circuit split over whether a company may be sued for securities fraud for omitting from its public filings information required to be disclosed by an SEC regulation

David J. Kaufmann

Due Diligence in Franchise Acquisitions

By David J. Kaufmann |

Franchising columnist David J. Kaufmann writes: Perhaps the greatest skill set possessed by franchise counsel which will prove integral to a contemplated acquisition is the knowledge and ability to conduct meaningful due diligence of the target franchisor and its franchise network. Ironically, even though franchising is at the very core of franchisor acquisitions, quite typically the investment banks and very large law firms guiding the transaction are more concentrated on mechanics and finances.

Milton Springut

Fastener Case Gives SCOTUS Opportunity to Resolve Trademark Remedies Issue

By Milton Springut |

Milton Springut discusses a recent Connecticut case that presents the U.S. Supreme Court with an opportunity to resolve a longstanding dispute in trademark law: whether a prevailing trademark plaintiff must show willfulness to obtain disgorgement of the infringer's profits. This issue has split federal courts for decades.

Lynn K. Neuner and William T. Russell Jr.

Court Declines Opportunity to Provide Greater Privacy to Social Media Accounts

By Lynn K. Neuner and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. discuss Facebook's challenge to the ability of a state prosecutor's office to obtain information concerning its subscribers' social media accounts.

Robert J. Bernstein and Robert W. Clarida

SCOTUS Holds Designs on Cheerleading Uniforms Are Copyrightable

By Robert W. Clarida and Robert J. Bernstein |

Copyright Law columnists Robert W. Clarida and Robert J. Bernstein write: Some eminent U.S. Supreme Court watchers have speculated that the court's temporary 4-4 ideological stalemate in 2016 led it to avoid cases involving hot-button issues. One case that arguably lends credence to this theory is 'Star Athletica v. Varsity Brands', which raised no contentious political issues, to put it mildly, but did give the court an opportunity to standardize an uncommonly chaotic body of case law surrounding the application of copyright law's "conceptual separability doctrine" to useful articles, including garments.

Justice Saxe

Making Prenuptial Agreements 'Bulletproof'

By David B. Saxe |

David B. Saxe writes that no prenuptial agreement is entirely immune from the challenges and vagaries of litigation, but with certain precautions, many of those agreements can be made more invulnerable.

Marcie Borgal Shunk

The Project Management Craze: Are We Solving the Right Problem?

By Marcie Borgal Shunk |

Marcie Borgal Shunk, president and founder of The Tilt Institute, writes: For some firms approaching the concept of efficient service delivery holistically, the results can be impressive. Yet for others the improvements are isolated, limited or non-existent. Conventional wisdom cites the billable hour or lawyers' inherent reluctance to change as the primary obstacles. But what if the proposed solution—the need for systematic project management and process improvement—is simply solving a misdiagnosed problem?

Edward M. Spiro and Judith Mogul

Under 'Daubert', It Isn't Getting Easier to Find a 'Reliable' Expert Witness

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul, write: Almost 25 years after the Supreme Court's decision in 'Daubert v. Merrill Dow Pharmaceuticals', recent cases in the Southern District of New York continue to demonstrate the wide latitude that the Daubert standard affords to judges ruling on the admissibility of expert testimony, even on subjects previously accepted as valid grounds for expert opinion.

Shari Lewis - Rivkin Radler.12/13/2016

Second Circuit Rejects Secret-Cookie Suit

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis of Rivkin Radler discusses the ruling in 'Mount v. PulsePoint', which made clear that companies that circumvent web browser privacy features to place cookies on computers to gather information about Internet use are not subject to liability for the typical legal claims that might be asserted under New York law.

Michael Pasinkoff

Reaffirming Authority for Judicial Scrutiny of Insurance Company Bail Bonds

By Michael Pasinkoff |

Michael Pasinkoff explores the authority of courts to reject insurance company bail bonds based upon a determination that the collateral which secures the bond provides an insufficient financial incentive to compel a defendant's return to court.

Richard L. Reiter and Adam L. Sheps

Internet of Things to Make Discovery Significantly More Expensive

By Richard L. Reiter and Adam L. Sheps |

Richard L. Reiter and Adam L. Sheps write: As the Internet of Things continues to mature, the sheer magnitude and complexity of information will become more difficult to govern. As a result, it is important that businesses properly manage their data to avoid incurring unnecessary litigation costs that can consume valuable employee time, funds and other corporate resources.

Sidney Kess

Tax Issues in Changing Jobs

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: The jobs market has heated up and many workers are voluntarily changing jobs to obtain better positions. There are a lot of practical and tax issues to consider when changing jobs, including deducting moving expenses and changes to health coverage and retirement benefits.

Nicholas M. De Feis and Philip C. Patterson

Will Tech Firms Be Compelled to Produce Overseas Emails?

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

International Criminal Law and Enforcement columnists Nicholas M. De Feis and Philip C. Patterson discuss the government's authority to seek warrants under the Stored Communications Act, a hotly contested issue that appears to be settled in the Second Circuit—but courts in other circuits don't appear to be following its lead.

Kenneth E. Pitcoff and Andrea M. Alonso

Proprietary Capacity and Substantial Prejudice in Municipal Liability Cases

By Kenneth E. Pitcoff and Andrea M. Alonso |

Kenneth E. Pitcoff and Andrea M. Alonso write: On Dec. 22, the Court of Appeals decided two significant cases in the area of Municipal Law, further defining when a municipality is acting in its "proprietary capacity" and clarifying the burden of proof in determining "substantial prejudice" to a public corporation in a late notice of claim petition.

John P. Campo and Susan F. Balaschak

Structured Dismissals: Alive and Well After 'Jevic'

By John P. Campo and Susan F. Balaschak |

John P. Campo and Susan F. Balaschak analyze a recent U.S. Supreme Court decision that, while not putting an end to so-called "structured dismissals" in bankruptcy, restricts the dismissal of a Chapter 11 case when combined with a final distribution to creditors that skips over a class of creditors without the latter's consent.

Harvey M. Stone and Richard H. Dolan

Due Process Challenge, Two Discharge Exceptions and a Copyright Claim

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent decisions finding no due process violation by the government in taking brief control, for investigative purposes, of a website that gave users anonymous access to child pornography; dismissing a copyright claim alleging unlawful copying of the design for a private residence; and affirming two bankruptcy court decisions.

Maurice J. Recchia

Court of Appeals' 'Facebook' Decision Leaves Many Questions Open

By Maurice J. Recchia |

Maurice J. Recchia writes: Despite the potential for addressing broad substantive issues of privacy and freedom from unreasonable search and seizure, and issues of federalism and the applicability of a federal statute which establishes procedures a government body can use to compel information, the Court of Appeals in its recent Facebook decision hewed to the narrow procedural framework of the case and declined to address the broader issues.

Anita Bernstein

Treble Damages in New York: A Field Guide

By Anita Bernstein |

Anita Bernstein writes: Depending how you count, there are approximately 62 statutory provisions for treble damages in New York law. Read together, most of them share an interest in vulnerable people.

David M. Barshay

Decisions Address Policy Exhaustion, Attorney Fees and Conformity Certificates

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay reviews recent holdings, one of which saw the Appellate Term, Second Department, in contrast with the Appellate Term, First Department, reject the argument that an insurer's denial of a claim permits it to pay subsequent claims, which can lead to policy exhaustion before the contested earlier claim is litigated or arbitrated.

Thomas T. Janover and David E. Blabey Jr.

Recent Court of Appeals Case Sheds Light on Scope of Champerty Doctrine

By Thomas T. Janover and David E. Blabey Jr. |

Thomas T. Janover and David E. Blabey Jr. write: The New York Court of Appeals recently issued an important new opinion on the reach of New York Judiciary Law §489, which bars certain forms of trading in litigation claims. The decision, in the Justinian Capital case, breathes new life into what is known as champerty, a doctrine many had thought to be largely dormant in New York.

Abby Tolchinsky and Ellie Wertheim

Revisiting Agreements After Unforeseen Changes Occur

By Abby Tolchinsky and Ellie Wertheim |

Mediation columnists Abby Tolchinsky and Ellie Wertheim discuss how mediators can help parties achieve their mutual and thoughtful goals while the ground beneath them has changed unpredictably, whether it's a discussion between business partners when one wants to retire early, or between co-parents when one has a job opportunity overseas. How does a mediator address the shifting circumstances, if not the shifting goals and values?

Dove Burns

EEOC Guidance on Mental Health Disorders and the Resulting Ramifications

By Dove Burns |

Dove Burns writes that while an EEOC December publication on mental health in the workplace largely interprets existing law, its announcement pushes the limits of the ADA and signals the agency is likely to expand protections via a focus on enforcement. The increased scrutiny and enforcement effort will have significant ramifications for New York employers.

Steven R. Pounian and Justin T. Green

General Personal Jurisdiction in Aviation Cases After 'Daimler'

By Steven R. Pounian and Justin T. Green |

Aviation Law columnists Steven R. Pounian and Justin T. Green write: A typical aviation accident case may involve a crash in one jurisdiction, a pilot from a second, passengers from a third, an aircraft maintenance outfit from a fourth and an aircraft manufacturer from a fifth. Even before 'Daimler' it was frequently impossible to join all defendants in one action, but post-Daimler aviation cases invariably require plaintiffs to file multiple "protective actions" to guard against jurisdictional dismissals.

Shepard Goldfein and James A. Keyte

Why Antitrust Has Little or No Role in the Sports Carriage Fights

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte review two recent disputes offer a window into whether and when antitrust regulators, to protect downstream consumers, will police negotiations between broadcast distributors and Regional Sports Networks that have exclusive rights to content for a team or a group of teams.

Richard Raysman and Peter Brown

Don't Send the Same Text to a Debtor Repeatedly

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown focus on the recent 'Flores' decision, a case in which the plaintiff received the same text message multiples times despite replying "Stop".

Joseph D. Nohavicka

Silence (or Evasion) Implies Sanction: 'People v. Vining'

By Joseph D. Nohavicka |

Joseph D. Nohavicka discusses the recent Court of Appeals holding that broadly imposes an affirmative duty on individuals to speak when confronted with an accusation.

Michael Hoenig

PowerPoints and Other Persuasion Tools

By Michael Hoenig |

Complex Litigation columnist Michael Hoenig discusses the recent Court of Appeals holdings on jury presentations, writing that the boundary lines drawn by the court are broad enough so they don't stifle or handcuff lawyer creativity but they are sufficiently admonitory to put trial counsel and judges on notice that prejudice must be avoided and, if unfairness seeps into the case, it must be cured promptly and effectively.

Ilene Sherwyn Cooper

The Eligibility of a Fiduciary

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: While deference is accorded to the testator's selection of a fiduciary, there are circumstances when judicial intervention is required in order to safeguard the interests of the estate and satisfy statutory dictates. Recently, Surrogate's Courts have had the opportunity to consider this issue.

Robert G. Brody and Katherine M. Bogard

EEOC's Proposed Enforcement Guidance on Harassment: Should You Care?

By Robert G. Brody and Katherine M. Bogard |

Robert G. Brody and Katherine M. Bogard discuss the EEOC's proposed guidance on unlawful workplace harassment, issued in January. It enumerates five core principles which have proven effective in preventing and addressing harassment: committed and engaged leadership; consistent and demonstrated accountability; strong and comprehensive harassment policies; trusted and accessible complaint procedures; and regular interactive training tailored to the audience and the organization.

David E. Schwartz and Risa M. Salins

Labor-Related Legislative Developments

By David E. Schwartz and Risa M. Salins |

Labor Relations columnists David E. Schwartz and Risa M. Salins discuss the Obama-era labor regulations that have been targeted by Congress and current legislative initiatives regarding unions, class actions and family leave.

Joel Cohen

The Ethics of 'Holding Out' on Your Client

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen discusses a hypothetical: What if your adversary—perhaps someone you know professionally for years—pulls you aside with information about their case, that he or she will only tell you if you promise not to tell your client. Isn't your client better off if you hear something "his side" wouldn't otherwise learn at this stage, even if you will be honor-bound to keep it to yourself? Is this scenario all that different from an "Attorney's Eyes Only" document production?

Bill Greenberg

Potential Constitutional Implications of Bifurcation in Personal Injury Cases?

By Bill Greenberg |

Bill Greenberg writes: Jurors in bifurcated personal injury trials know that if they find for the defendant on liability, their jury service ends and they go home. Likewise, every juror knows that a liability finding in favor of the plaintiff brings with it their required participation in the damages phase, without knowing how long this second proceeding may last. In these circumstances, does a jury have a personal stake in the outcome of the liability portion of the trial?

Christopher Dunn

Trump, Russia, and the Fifth Amendment

By Christopher Dunn |

Civil Rights and Civil Liberties columnist Christopher Dunn writes: Disputes about the standards governing the interaction between the Fifth Amendment's protection against compelled testimony and statutes compelling witness testimony were settled in the aftermath of the Communist "witch hunts"—a term President Trump ironically invoked last week—of the 1950s, but the burgeoning contemporary Russia investigations provide a good opportunity to review those standards and the history behind them, which implicate some of our most fundamental constitutional values.

Michael J. Hutter

'People v. Vining': Adoptive Admissions by Silence

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter analyzes an Court of Appeals decision that is instructive on what is necessary to show a defendant's silence or evasive responses to an accusation are considered assent to the statement, thereby placing it within the adoptive admissions exception to the hearsay rule.

Adam J. Safer

Forum Selection: An Important Tool for Non-Competes

By Adam J. Safer |

Adam J. Safer writes: What happens when a New York company employs personnel in California? Are the employees subject to the law in New York, which enforces reasonable employee agreements not to compete, or the law in California, which does not? The answer is surprisingly uncertain.

John L.A. Lyddane and Barbara D. Goldberg

The 'Noseworthy' Doctrine in Medical Malpractice Actions

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

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg discuss the Noseworthy doctrine, that a plaintiff in a wrongful death action is not held to as high a burden of proof as in other actions because the deceased plaintiff is not available to recount his/her version of the relevant events, and its application in medical malpractice actions, where the decedent, even if he or she had survived, often would not have been in a position to provide any relevant information as to how the injury was caused, or whether there was a departure from accepted practice.

Jeffrey S. Klein and Nicholas J. Pappas

New Restrictions on Using Earnings History to Set Compensation

By Jeffrey S. Klein and Nicholas J. Pappas |

Employment Law columnists Jeffrey S. Klein and Nicholas J. Pappas discuss the circuit split on whether the Equal Pay Act prohibits sole reliance on prior earnings to explain a wage differential challenged under the Act, summarize recent measures in California, Massachusetts, and Philadelphia restricting the use of prior earnings, and provide guidance for employers seeking to maintain compliant hiring and pay practices.

Bruce A. Cholst and Deborah B. Koplovitz

Want to Put Up a Building in NY? Put Up Money to Cover Construction Defects

By Bruce A. Cholst and Deborah B. Koplovitz |

Bruce A. Cholst and Deborah B. Koplovitz write: New York state offers purchasers of residential units in newly built or rehabilitated developments where construction is rife with material defects a wide array of legal remedies. However, these avenues of redress often lack practical viability because by the time money judgments are obtained, the offending builders and design professionals are insolvent, and therefore judgment proof.

Robert J. Anello and Richard F. Albert

Coming Changes to Federal Criminal Discovery Rule?

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: After years of expressing frustration with the barriers to trial preparation in complex criminal cases, with little to show for it, the organized defense bar has again called for revisions to the main rule governing pretrial discovery, Rule 16 of the Federal Rules of Criminal Procedure. While it now appears likely that an amendment will result, whether the changes will effectively address the real difficulties counsel face in preparing for trial in complex white-collar cases remains to be seen.

Thomas A. Moore and Matthew Gaier

Revisiting New York Case Law on Loss of Chance: Part 1

By Thomas A. Moore and Matthew Gaier |

Medical Malpractice columnists Thomas A. Moore and Matthew Gaier write that recovery for loss of chance—the diminution of an opportunity for a better outcome after a failure to diagnose—has long been a part of the fabric of malpractice actions in New York, but surprisingly, a question has been raised in recent years as to whether New York recognizes such recovery.

H. Christopher Boehning and Daniel J. Toal

Courts Warn of Sanctions for Future FRCP 34 Violations

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: The changes to Rule 34 have not received much attention from practitioners and judges, especially when compared to other changes, such as those to Rules 26 and 37. Recently, though, two judges who have had it with boilerplate responses and objections garnered attention by releasing fiery decisions promising sanctions for any future discovery response that fails to comply with amended Rule 34 or other Federal Rules of Civil Procedure.

Supreme Court Misapplies VTL 238

By Dennis Boshnack |

Dennis Boshnack argues that a recent decision incorrectly denied an Article 78 petition, that a parking summons must set forth the particular place where the violation occurred, and that, regardless of whether the same parking restriction covers two addresses, the summons is fatally defective if the vehicle is parked at only one of those addresses and the summons misdescribes the place of occurrence as the other address.

Bruce M. DiCicco

Health, Education, Maintenance, Support: How to Avoid Distribution Problems

By Bruce M. DiCicco |

Bruce M. DiCicco writes: Designating distributions from trusts for the "health, education, maintenance and support" (HEMS) of the beneficiary are "magic" tax words in that they establish a special power of appointment rather than a general power. But whereas the tax results of such standards are well known, how is that familiar tax standard interpreted in New York for purposes of distributions? How can estate planners avoid construction proceedings in order to determine the intent of a grantor when HEMS is the standard for distribution?

Neil J. Rosini and Michael I. Rudell

Comparing Contingent Compensation in Entertainment Contracts

By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini provide a general overview of basic provisions covering contingent compensation structures in literary publishing, live theater, television and theatrical motion picture agreements.

Barry Kamins

Court of Appeals Expands the Co-Conspirator Exception

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins discusses a case of first impression in which the New York Court of Appeals expanded the co-conspirator's exception to the hearsay rule. The court held that, subject to certain conditions, a statement made by a co-conspirator of a defendant, prior to the defendant's joining the conspiracy or after the defendant's active involvement has ceased, is admissible when offered to prove the conspiracy or the object crime.

Howard Epstein and Theodore Keyes

Court of Appeals Clarifies Anti-Subrogation Rule

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes discuss 'Millennium Holdings', a decision issued by the Court of Appeals which clarified that, except for rare public-policy driven exceptions, in order for the anti-subrogation rule to apply, the party seeking the protection of the rule must be insured under the insurance policy.

Thomas M. O'Brien

Pretrial Release by Speedy-Trial Law: An Underused Device

By Thomas M. O'Brien |

Thomas M. O'Brien writes: The vast majority of long-term detainees, all presumed innocent, are too poor to pay the bail that enables other accused persons to live and prepare for trial outside of jail. Yet even for those so confined by poverty, there is a mechanism to achieve freedom while the criminal process moves at its glacial pace toward resolution of a case. It is the law of speedy-trial. Both state law and the federal constitution present paths to release pending trial.

Traumatic Brain Injury as a 'Grave Injury': An Examination of 'Rubeis' and Its Progeny

By Kevin G. Faley and Christopher R. Invidiata |

Kevin G. Faley and Christopher R. Invidiata discuss the grave injury threshold of the Workers Compensation Law, writing: The courts are not finders of fact, nor are they generally permitted to make subjective assessments of a witness' abilities. An objective assessment of a claimant's absolute employability provides a clear bright-line rule upon which the courts may rely. The prior subjective approach effectively mandated a jury trial in many traumatic brain injury matters which otherwise could be disposed of as a matter of law.

Edward E. Neiger

'Avaya' and Other Noteworthy Bankruptcy Filings in the Tech Industry

By Edward E. Neiger |

In his Bankruptcy Update column, Edward E. Neiger discusses recent high profile tech sector bankruptcy filings of Avaya, Lily Robotics and Aquion Energy.

John Fellas

Using Section 1782 to Obtain Evidence for International Arbitration Proceedings

By John Fellas |

International Arbitration columnist John Fellas writes that Section 1782 is routinely used by parties to foreign lawsuits to obtain evidence located in the United States, but its use in international arbitration proceedings is under debate. Recently, the Southern District weighed in.

Patrick M. Connors

For Whom the Statute Tolls

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors writes: Calculating the statute of limitations should not be thought of as a single question, but rather a determination on four separate issues. A mistake on any one can lead to disaster for the plaintiff, and concomitant celebration for the defendant.

Benjamin F. Jackson and Muhammad U. Faridi

Court Dismisses Claim Against Chinese Firm Due to Lack of Personal Jurisdiction

By Benjamin F. Jackson and Muhammad U. Faridi |

Benjamin F. Jackson and Muhammad U. Faridi analyze 'Lantau Holdings v. Orient Equal International Grp.,' in which a Commercial Division judge weighed allegations that one of China's largest securities businesses never told a New York lender that shares of equity pledged as collateral by several defendant-borrowers were subject to a lock-up period. Despite the Chinese business' New York-based subsidiary, the court said it lacked personal jurisdiction, and that even if it had jurisdiction, the misrepresentation claims could not stand.

Martin Flumenbaum and Brad S. Karp

Enforcing Foreign Arbitral Awards Against Alleged Alter-Egos

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp review a recent decision where the court clarified the procedure that applies to enforcement proceedings under §207 of the FAA against named award-debtors, but failed to address the procedure when an award-creditor seeks to enforce a foreign arbitral award against an alleged alter-ego that is not named on the award.

Julie Muniz

What Employers Need to Know About Site Visits

By Julie Muniz |

Immigration Law columnist Julie Muniz discusses what to expect in a Fraud Detection and National Security visit, generally made to verify information in a specific immigration petition, and best practice recommendations for employers.

James G. Ryan

Federal Discovery Sanctions Are Real and Prevalent

By James G. Ryan |

James G. Ryan writes: Although it is actually well known that lower courts hold the statutory and inherent power to impose sanctions on noncompliant parties or their attorneys, the frequency of how often it is exercised is less recognized.

Robert S. Kelner and Gail S. Kelner

Re-Evaluating Residential Window Cleaning Under Labor Law §240(1)

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner write: Among the enumerated tasks in Labor Law §240(1), the scope of "cleaning" as a covered task has proven to be the most difficult to define. Unlike other activities specified in the statute, cleaning is, by its very nature, a type of maintenance.

Ken Strutin

The Science of Innocence and the Silence of Innocents

By Ken Strutin |

In his Criminal Law column, Ken Strutin discusses the report of the President's Council of Advisors on Science and Technology (PCAST), writing: The PCAST Report, and its Jan. 6, 2017 Addendum, aimed to move courtroom forensics from subjective human judgments, errors and biases to objective, empirically validated evidence. Yet, without a place to be heard, the momentum of science comes to halt.

What Constitutes 'Proper' Notice?

By Bruce Buechler |

Bruce Buechler writes: Proper notice is a hallmark of all bankruptcy proceedings. If a creditor or party-in-interest has no notice of a particular matter, many courts have ruled that the creditor or party-in-interest will not be bound by a particular court's determination. He discusses what "notice reasonably calculated" to apprise interested parties, whether known or unknown, of an action means.

Francis J. Serbaroli

Momentum Building for Changes to Fraud and Abuse Laws

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli of Greenberg Traurig LLP discusses a recent report by the U.S. Department of Health and Human Services acknowledging that the broad wording of some of the federal fraud and abuse laws is actually hindering legitimate reforms to the Medicare and Medicaid programs that the federal government is trying to encourage. He notes that there may be some movement towards refining the broad wording of these laws in order to remove obstacles to these reforms.

Steven Cash and Michael Baker

Evolution of a Valuable Tool for Attorneys: Business Intelligence Practitioners

By Steven Cash and Michael Baker |

Steven Cash and Michael Baker write: As the need for sophisticated investigatory and information services has grown, the industry serving these needs has changed and grown. Recently, traditional investigative skills have been augmented by increasing sophistication in the collection and exploitation of "big data" sources and open-source data.

Samuel Estreicher and Holly H. Weiss

Is State Law Rule About Power of Attorney Agreements Preempted by the FAA?

By Samuel Estreicher and Holly H. Weiss |

Arbitration columnists Samuel Estreicher and Holly H. Weiss discuss 'Kindred Nursing Centers Limited Partnership v. Clark,' which presents the U.S. Supreme Court with an opportunity either to reinforce that arbitration agreements are to be enforced to the same extent as other agreements or to take a different tack, permitting state courts to make decisions that limit the enforceability of arbitration agreements, perhaps giving special recognition to the nursing home context and the limits of powers of attorney agreements in that context.

Shira Forman

Drafting Complaints: Start Off on the Right Foot

By Shira Forman |

In her Litigation 101 column, Shira Forman writes: A complaint—the introductory pleading that triggers most lawsuits—leaves an irrevocable first impression on judges and adversaries, and sets the tone for the litigation that will follow. Although it may seem like a simple, straightforward task, drafting a complaint requires strategic decision-making and attention to detail, and many of us get no formal instruction in how to do it.

New FINRA Rules Address Financial Exploitation of Senior Investors

By Evan Charkes |

Evan Charkes writes: In recent years the SEC and FINRA have taken leadership roles in seeking to help senior investors become more cognizant of the dangers of financial exploitation and fraud. In a further effort to better protect vulnerable investors, the SEC recently approved two FINRA rules: an amendment that requires a "trusted contact" be sought for every retail client account, and a rule that permits member firms to temporarily delay the disbursement of funds or securities where there is a reasonable belief that customers have been, are being, or will be subject to financial exploitation.