Expert Analysis

Anthony E. Davis

Amendments to Rules of Professional Conduct Are Mixed Bag

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses some of the more noteworthy amendments, including new comments addressing lateral attorney movement and updated rules and comments addressing modern technology. Although many of the changes are a helpful step forward, he writes, some of the amendments may only serve to complicate and confuse attorneys' and law firms' efforts to comply with the rules.

Joseph V. DeMarco and Urvashi Sen

Strategies for Navigating Business-to-Business Data Breaches

By Joseph V. DeMarco and Urvashi Sen |

Joseph V. DeMarco and Urvashi Sen write that with all the media and legislative focus on data breaches affecting consumers, it is easy to understand why such breaches generally receive companies' best thinking and resources. But data privacy breaches that are not directly consumer-facing privacy concerns—so-called "business to business" breaches—are also sources of potential damage, and companies can go a long way toward protecting themselves from them by implementing two simple, yet critical, measures.

Evan H. Krinick

Court of Appeals Continues to Extend No-Fault 'Preclusion' Rule

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick writes: A decision issued by the New York Court of Appeals early in June extends application of the court-created "preclusion" rule in no-fault insurance cases, which provides that an insurer's failure to timely pay or deny a claim results in an insurer being precluded from interposing a defense against payment of the claim, except where the defense raised is lack of coverage. The opinion has important practical implications for consumers, health care providers, and automobile insurance carriers in the state.

Timothy Tippins

Peer-Review Experts in Custody Litigation

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins discusses peer-review experts, whose purpose is to educate the court with respect to methodological deficiencies that threaten the reliability of a custody evaluation, and the parameters that circumscribe that role.

Richard Siegler and Eva Talel

Tax Treatment of Condominiums—Under and Outside IRC §528

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel discuss the conditions that a condominium association must meet in order to qualify as a homeowners association under IRC §528, the tax-motivated reasons why a condominium association or board may choose not to elect §528 treatment, and what the tax consequences may be for a condominium association or board electing to be outside of (or not eligible for) the benefits of §528.

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

Issue Selection and the Applicable Standard of Review

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. write: With some nuances, there are two basic standards of appellate review: de novo (literally, "from the beginning") and deferential. In reviewing the record, appellate counsel should search for legal errors subject to de novo review since such errors, if outcome determinative, generally are the best candidates for a reversal.

Elizabeth McNamara and Camille Calman

N.Y. Proposed Right of Publicity Statute for Deceased Celebrities Appears Dead

By Elizabeth McNamara and Camille Calman |

Elizabeth McNamara and Camille Calman of Davis Wright Tremaine write that the right of publicity for the deceased looks destined to die in committee as New York's Legislature struggles to reach the end of its extended 2015 session.

Steven V. Treglia

Recent Challenges to the FTC's Data Regulation Authority

By Stephen Treglia |

In his Cross-Border Concerns column, Stephen Treglia of Absolute Software Corporation writes: The litigation in both 'Wyndham' and 'LabMD' may be a long way from done, but one or both have the fascinating potential of setting a major precedent in the manner in which commercial entities in this country must maintain sensitive data protection.

Thomas A. Dickerson and Colleen D. Duffy

'Borden': a Welcome Sea Change on New York State Class Actions

By Thomas A. Dickerson and Colleen D. Duffy |

Thomas A. Dickerson and Colleen D. Duffy discuss CPLR Article 9, which provides for the aggregation of similar claims in a class action if certain prerequisites are met and write: "While there is still more to do in expanding the use of Article 9 to areas in which it was intended to be used [i.e., mass environmental, property and personal injury torts], the Court of Appeals has over the last three years breathed new life into New York State’s underutilized class action statute."

Martin A. Schwartz

Police Use of Force to Restrain the Mentally Ill

By Martin A. Schwartz |

Martin A. Schwartz uses case law to discuss how claims of excessive police force arise from the use of force against individuals suffering from mental illnesses and also under circumstances when an individual is being arrested for a criminal offense.

Joseph E. Bachelder III

'Pay Versus Performance' Rule Proposed by SEC Under Dodd-Frank

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III of McCarter & English discusses a new proposed rule under which registrants would be required to show the relationship over a period of years between the pay of certain senior-level executives and the total shareholder return for the registrant.

Steven Pounian and Justin T. Green.

Legal Challenges Faced by Victims of Plane Shootdown Over Ukraine

By Steven R. Pounian and Justin T. Green |

In their Aviation Law column, Steven R. Pounian and Justin T. Green of Kreindler & Kreindler write: Since the advent of the Montreal Convention, the victims of major airline disasters have generally been able to recover damages without any arbitrary limitation. The circumstances of the Flight 17 disaster raise the possibility that damages in a major aviation accident may be limited without any other avenue for recovery.

Jeffrey D. Neuburger

Broadening the Scope of Privacy Under Video Protection Statute

By Jeffrey D. Neuburger |

Jeffrey D. Neuburger of Proskauer Rose discusses 'Yershov v. Gannett Satellite Information Network,' which has reopened the debate over what constitutes "personally identifiable information" (PII) for purposes of violating the Video Privacy Protection Act.

Christine A. Fazio and Ethan I. Strell

Green Infrastructure, Stormwater and Water Quality

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law column, Christine Fazio and Ethan Strell discuss examples of emerging green infrastructure programs across the country, as well as some of the challenges posed by integrating green infrastructure into the legal structure of the Clean Water Act, which traditionally relies on quantifiable, technical pollution solutions.

Richard B. Ancowitz

False Claims Act: Are Businesses' Worst Fears Being Realized?

By Richard B. Ancowitz |

Richard B. Ancowitz discusses the federal False Claims Act, which allows citizen-whistleblowers to bring matters to the attention of the Justice Department, and to share in the funds ultimately recovered from those who have made false claims against the government and concludes that the act remains a vital and important weapon in the governments' fight to recoup taxpayer monies wrongfully paid out.

Thomas P. Higgins

Condominium Foreclosures: Taking the First Steps Against Unit Owners

By Thomas P. Higgins |

Thomas P. Higgins of Higgins & Trippett discusses the preliminary steps that need to be taken by a condominium board when a tenant is behind in paying common charges and has not responded to the property manager's "gentle nudge" letter.

Martin Flumenbaum and Brad S. Karp

Government Collection of Telephone Metadata Exceeds Statute's Authority

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'American Civil Liberties Union v. Clapper,' in which the U.S. Court of Appeals for the Second Circuit found that the collection of telephone metadata by the National Security Agency exceeded the authority granted to it by the Foreign Intelligence Surveillance Act as amended by Section 215 of the Patriot Act.

Jennifer Hurley McGay and Sujata M. Tanikella

Implications of Relying on Advice of Counsel in the Second Circuit

By Jennifer Hurley McGay and Sujata M. Tanikella |

Jennifer Hurley McGay and Sujata M. Tanikella discuss the assertion of advice of counsel as a defense, either explicitly in a pleading or implicitly through a party's actions, and the implications to the attorney-client privilege and the attorney work-product doctrine.

Michael Rikon

How Much Time Do I Have To File My Condemnation Claim?

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon discusses the question of how much time a condemnee has to file a condemnation claim, and finds that the answer depends on many variables such as: Who was the condemnor? How did the condemnee learn of the taking? Was the taking de jure or de facto? The author concludes with this take-away: “If a condemnor has taken your property without a formal condemnation, you should move immediately to protect your rights.”

Peter A. Crusco

Mapp Hearings, ISP Terms of Service, and User Privacy

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco of the Office of the Queens County District Attorney writes: With the ubiquitous use of Internet-based communications, courts now face the question of whether an Internet service contract agreed to by a user with their Internet service provider constitutes sufficient legal basis for consent to search the customer's Internet account not only by the service provider but by government agents.

Conrad Teitell

Charitable Lead Trust—Correcting Botched Election of IRC §7520 Rate

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes: Most mess-ups with charitable remainder and lead trusts involve defectively drafted trusts. Sometimes a defect can be cured by a statutory reformation or by a Hail Mary Pass—the scrivener's-error doctrine. But what about a perfectly drawn split-interest charitable trust where the mess up involves ineffectively choosing the most favorable IRC §7520 month for maximizing the charitable deduction?

Philip T. Besirof and James J. Beha II

Deference When Board Refuses Shareholder Litigation Demand

By Philip T. Besirof and James J. Beha II |

Philip T. Besirof and James J. Beha II discuss a recent Delaware Chancery Court decision that turned on the distinction between the standards for pleading shareholder derivative standing in a "demand-excused" case, when the plaintiff argues that demanding the board to take action should be excused as futile, and a "demand-refused" case, where a shareholder seeks to proceed derivatively after a demand has been made and refused.

George Bundy Smith and Thomas J. Hall

'At-Issue' Waiver of Attorney-Client Privilege

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write that a number of recent cases demonstrate that if reliance on privileged materials is needed to prove a claim or defense, the courts usually will find that the privilege has been waived. However, the relevance of privileged materials is not the determining factor in at-issue waivers; rather, the privileged materials must be directly at issue in the case.

Richard M. Strassberg and Valerie A. Haggans

The Benefit of a Bargain: When a Lie Is Not a Fraud

By Richard M. Strassberg and Valerie A. Haggans |

Richard M. Strassberg and Valerie A. Haggans write: Don't lie. Not a very controversial statement. It is considered particularly good advice in the white collar world, where lies can lead to fraud charges that can result in all sorts of bad consequences. But not all lies are the same. And not all lies can support federal criminal convictions. Two cases before the Second Circuit may help define the contours of when lies are not frauds.

Roberta S. Karmel

A Look Back at the Flash Crash and Regulatory Initiatives

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel discusses HFT, direct electronic access, and dark pools, three developments that were publicly identified as possible causes of the 2010 Flash Crash before the arrest of a man trading from his parents' home in England for market manipulation, and the SEC's extensive rule-making initiative since the Flash Crash to alleviate some of the perceived dysfunctional aspects of the structure of the equity markets.

Christopher A. Gorman

Road Map to Complying With RPAPL Pre-Foreclosure Notice

By Christopher A. Gorman |

Christopher A. Gorman writes: Few legislative enactments applicable to residential mortgage foreclosure proceedings have engendered as much litigation as Real Property Actions and Proceedings Law §1304, the 90-day pre-foreclosure notice rule. More than six years after it first went into effect, there has been a recent spate of decisions evidencing that lenders, in many instances, remain ill-equipped to comply with the statute.

Roy L. Reardon and William T. Russell Jr.

Statute of Limitations Rulings in Two Cases

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

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases in which the court overturned the dismissal of a $120 million lawsuit against Goldman Sachs arising out of the subprime mortgage crisis, determined when a prior action terminates for purposes of the tolling provisions of CPLR 205(a), and found the statute of limitations inapplicable to an action to cancel an interest in real property based on an allegedly forged deed.

Robert Clarida and Robert J. Bernstein

Ninth Circuit Holds Actor Has No Copyright in Her Performance

By Robert J. Bernstein and Robert W. Clarida |

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida discuss Cindy Lee Garcia's attempt to have "The Innocence of Muslims," which contains blasphemous statements dubbed over her actual words, removed from YouTube, and the Ninth Circuit's en banc holding that an actor's performance in a motion picture is not separately copyrightable, but instead is merged into the copyright for a film.

Edward M. Spiro and Judith Mogul

Two Decisions Highlight the Perils of Witness Contact

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: In recent weeks, Judges J. Paul Oetken and Paul A. Engelmayer each issued decisions addressing different ethical dimensions of contact between attorneys and witnesses, in one case finding that the proposed contact was impermissible, and in the other finding that counsel's lack of witness contact was problematic.

Hal R. Lieberman

'Dunn': Collateral Estoppel and Attorney Discipline

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman discusses 'Matter of Dunn,' in which the Court of Appeals found that an attorney had not been provided a full and fair opportunity to litigate before a magistrate judge the issue of whether she made false statements in a declaration, therefore the Appellate Division that censured her should not have given preclusive effect to the magistrate's sanctions order.

Shari Claire Lewis

'Threat' Conviction Overturned; Mens Rea Standard Unclear

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis, writes: In 'Elonis', the U.S. Supreme Court overturned a defendant's criminal conviction for communicating threats on Facebook and ruled that a mens rea standard of negligence was insufficient to allow the conviction to stand, but it did not explain what standard should be applied.

Pierre Ciric and Thomas Vandenabeele

French Big Brother: Wiretapping Raises Privilege Concerns

By Pierre Ciric and Thomas Vandenabeele |

Pierre Ciric and Thomas Vandenabeele write: At first glance, France's criminal wiretapping requirements may seem similar to those in the United States. A magistrate must authorize the criminal wiretap order, the identity of the person to be intercepted and the crime alleged; the duration of the wire must be identified in the order. However, the similitude stops here.

Sidney Kess

Looking Ahead to 2016: Changes and Uncertainties

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: Tax planners typically like to take a multi-year view of a taxpayer's situation in order to advise on strategies for minimizing tax exposure. However, tax uncertainties about 2016 make it challenging to do this. He discusses provisions that will be new in 2016 and can be factored into tax planning, as well as the tax issues up in the air for 2016.

Stephanie Braunstein

Uniform Guardianship Act Enables Transfers Between States

By Stephanie Braunstein |

Stephanie Braunstein discusses the the Uniform Adult Guardianship Protective Proceedings Jurisdiction Act, the factors a court will consider when determining whether to issue an order granting a petition to transfer a guardianship, and notice requirements under Article 83 of the state's Mental Hygiene Law.

Harvey M. Stone and Richard H. Dolan

Judge Cites 'Undue Hardship' in Ordering Conviction Expunged

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan analyze recent decisions in which Judge Gleeson, pointing to extraordinary circumstances, granted petitioner's motion to expunge her conviction; Judge Cogan imposed sanctions on plaintiff's counsel for bad-faith comments at a conference, and denied plaintiff's motion for recusal based on the court's alleged "financial interests" and "bias"; and others.

Michael I. Rudell and Neil J. Rosini

Will Talent Agency Defense Overcome Idea Theft Claim?

By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini write that when major talent agencies appear in the fact patterns of idea theft and copyright infringement claims, it's usually to establish how the plaintiff's property got into the hands of an agency client, such as the producer or writer of the infringing production. But in a current case, an elite agency was also named as a defendant, accused of breaching an implied-in-fact contract with a screenplay writer, as well as contributory copyright infringement.

Stephen Sonnenberg and Shaira Sithian

Mental Stability At Work: an Assessment

By Stephen Sonnenberg and Shaira Sithian |

Stephen Sonnenberg and Shaira Sithian write: According to the EEOC, the "job-related" and "consistent with business necessity" standard for employer inquiries or exams regarding mental disabilities, and their nature and severity, is met when an employer has a reasonable belief, based on objective evidence, that an employee's ability to perform essential job functions is impaired by a medical condition, or an employee will pose a direct threat due to a medical condition.

David M. Barshay

Fees for Office-Based Surgical Facilities

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay reviews 'GEICO v. Avanguard Med. Group,' where the issue presented on appeal was whether a no-fault insurer was required to pay no-fault medical benefits to an office-based surgical facility not accredited under Public Health Law Article 28.

Marshall Fishman and David Y. Livshiz

Do Recent Southern District Decisions Undo 'Daimler'?

By Marshall Fishman and David Y. Livshiz |

Marshall Fishman and David Y. Livshiz write: Two recent decisions demonstrate the reluctance of lower courts to apply the restrictive approach to general jurisdiction articulated by the U.S. Supreme Court in 'Daimler v. Bauman' and the Second Circuit in 'Gucci v. Li' and raise questions as to what contacts courts will deem sufficient to exercise general jurisdiction.

Sarah S. Gold and Richard Spinogatti

Delaware Clarifies Application of Exculpatory Charter Provisions

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti write: Although the common law of Delaware has "rightly emphasized the need for independent directors to be willing to say no to interested transactions proposed by controlling stockholders," the Delaware Supreme Court has recently clarified that "it does not follow that it is prudent to create an invariable rule that any independent director who says yes to an interested transaction subject to entire fairness review must remain a defendant until the end of the litigation, regardless of the absence of any evidence suggesting that the director acted for an improper motive."

Eric Dinnocenzo

Keeping the Faith in Insurance Bad Faith

By Eric Dinnocenzo |

Eric Dinnocenzo writes: When an insurance denial seems completely wrong on its face, it is common for both lawyers and laypersons to assert that it was due to "bad faith," entitling the policyholder to some form of extra-contractual damages. But the reality in New York is much more complex.

Shepard Goldfein and James A. Keyte

Examining Two-Sided Markets

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column,Shepard Goldfein and James Keyte discuss an increasingly important issue at the forefront of antitrust law: two-sided markets. These are markets in which a single firm or platform connects two separate but related groups of consumers at the same time—such as credit card networks serving both cardholders and merchants who accept the cards—and they complicate the traditional framework employed to analyze antitrust claims.

Joel Cohen

Disclosure of Information: Is Complying With 'Brady' Enough?

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Does Rule 3.8(b) of the New York Rules of Professional Conduct coexist with 'Brady', or does it require more from a prosecutor? In other words, are a prosecutor's ethical responsibilities greater than his constitutional obligations?

Michael J. Berey

Step Transaction Doctrine Applied to New York City Transfer Tax

By Michael J. Berey |

Michael J. Berey analyzes a recent determination in which an administrative law judge found that a transaction was structured in steps to avoid payment of New York City's Real Property Transfer Tax, ruling that RPTT was due when title was transferred to a new entity in which there was initially no change in any beneficial interest followed by the transfer of less than a 50 percent beneficial interest in the transferee entity.

Richard Raysman and Peter Brown

How Has Digital Ubiquity Affected Fourth Amendment Law?

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman of Holland & Knight and Peter Brown of Peter Brown & Associates focus on how and when law enforcement can utilize the "fruits" of a warrantless search of a digital storage device.

Ilene Sherwyn Cooper

Surrogate's Court Practice: Appellate Courts Weigh In

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper examines recent opinions addressing such issues as the scope of discovery proceedings and the statute of limitations, jurisdiction, due execution, and the termination of trusts.

Stephen P. Forrester

Interplay Between Child Abuse Reporting System and the Courts

By Stephen P. Forrester |

Stephen P. Forrester writes: The child abuse and neglect reporting system, child protective services and the courts each have a crucial role to play in ensuring the safety of children. These systems work most effectively when the professionals who operate in them understand the purpose and goals of each system, the rules governing their operations, and how their interrelationship serves to ensure child safety while respecting the rights of families.

Ben Rubinowitz and Evan Torgan

From Opening to Summation, Making First Impressions Count

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: There is an old adage that every trial lawyer should accept as gospel: "You don't get a second chance to make a first impression." Keeping this maxim in mind, attorneys must strive to make a winning impression early on in the trial so they can use that impression to set the tone for each phase of the remainder of the trial.

John P. Furfaro and Risa Salins

Supreme Court Review in Labor and Employment

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins discuss rulings from the 2014-2015 term of the U.S. Supreme Court pertaining to an employer's fiduciary duty to monitor plan investments, judicial review of the EEOC's efforts at conciliation prior to litigation, compensation for time spent waiting to undergo security screenings, and whether an administrative agency's changes to its interpretive rules are subject to notice-and-comment rulemaking.

New York Attorney General: Last Call for Unpaid Shifts

By J. Gregory Lahr and Ryan C. Chapoteau |

J. Gregory Lahr and Ryan C. Chapoteau discuss the New York Attorney General's interpretation of "call-in pay" regulations for on-call shifts as outlined in a recent letter to major retailers, along with a comparable regulation covering hotel and restaurant operations, which has faced more legal analysis.

Christopher Dunn

The Disappearing Public Square of Transit Systems

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: Transit systems have been a First Amendment flashpoint for decades, but many transit agencies have adopted a commendable free-speech approach. But as in many walks of life, victories in the civil liberties world are often fragile, and the free-speech protections in our nation's transit systems are now unraveling.

Michael J. Hutter

Expert Testimony: Necessity or Helpfulness Standard

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes that as articulated, New York and federal rules on the admissibility of expert testimony are in sharp conflict. New York's standard is one of strict necessity—to explain only that which is beyond the ken of the typical juror—while under federal law "helpfulness" supplies the ground for admission. But is that really the standard New York's courts are applying?

Peter M. Fass

SEC Adopts Final Rules to Update Regulation A

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass reviews amendments to Regulation A, which will offer issuers and selling shareholders two options for relying on the exemption from registration: Tier 1 for offerings that do not exceed $20 million in a 12-month period and Tier 2 for offerings that do not exceed $50 million in a 12-month period.

Norman N. Kinel and Philip J. Gross

Does Bankruptcy Court Have Authority to Disband an Official Committee?

By Norman N. Kinel and Philip J. Gross |

Norman N. Kinel and Philip J. Gross write: In two recent high-profile bankruptcy cases, 'In re City of Detroit, Michigan' and 'In re Caesars Entertainment,' bankruptcy courts reached opposite and conflicting conclusions regarding whether a court has the authority to disband or vacate the appointment of an official committee of creditors appointed by the U.S. Trustee.

Thomas A. Moore and Matthew Gaier

Additional Recent Decisions on Continuous Treatment

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write that where applicable, the continuous treatment doctrine permits medical malpractice actions to be brought beyond the statutory two-and-a-half year period after the malpractice. Recent decisions demonstrate that whether the ongoing treatment is related to the original condition remains a significant factor in determining the applicability of the doctrine.

Robert J. Anello and Richard F. Albert

Convicted Corporations Aren't Really Bad Boys

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: Insofar as corporate entities cannot be jailed, "bad boy" provisions imposed after a felony conviction normally impose collateral consequences that have a significant impact on large corporations. The recent plea deals in the Forex investigations demonstrate the lengths the government will go to avoid a repeat of the 2002 Arthur Andersen debacle, and highlight just why criminal law concepts designed to punish human beings are ill-suited to corporate beings.

H. Christopher Boehning and Daniel J. Toal

Third-Party Subpoena Extended to Overseas Affiliates

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: A recent federal court decision should serve as a wake-up call to companies that find themselves on the receiving end of a subpoena, as courts may very well hold them to the same standard as parties and require prompt and complete compliance with such subpoenas.

Melanie I. Wiener

Navigating Creditors' Rights in the Surrogate's Courts

By Melanie I. Wiener |

Melanie I. Wiener writes: Brave creditors who venture into Surrogate's Court often face costly and practical obstacles (i.e., proving a debtor's genealogy) and ineffective enforcement mechanisms (i.e., motions to compel accountings), but there is an array of tools they can use to recover a debt from an estate, estate representative, or the estate beneficiaries.

Barry Kamins

Does 'DeBour' Permit a Fifth Level of Police-Citizen Encounter?

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes that despite 'People v. DeBour's' clear delineation of four tiers of street encounters initiated by police officers, lower courts have occasionally permitted an additional type, somewhere between the common-law right of inquiry and the forcible stop, that has not yet been fully addressed by the Court of Appeals.

Jeffrey S. Klein and Nicholas J. Pappas

Assessing Employee Impairments

By Jeffrey S. Klein and Nicholas J. Pappas |

Jeffrey S. Klein and Nicholas J. Pappas write that the recent Germanwings tragedy is an extreme example, but it serves as an apt reminder of an important question: When faced with an employee or job applicant who has displayed troubling behavior, raising concerns of mental health issues, what should an employer do?

Anthony Michael Sabino and Michael A. Sabino

Applying Rule 68 on Offers of Judgment to Class Actions

By Anthony Michael Sabino and Michael A. Sabino |

Anthony Michael Sabino and Michael A. Sabino write that Rule 68 is one of the more innocuous provisions of the FRCP, permitting a defendant, prior to trial, to make an offer to have a judgment entered against it to avoid the risks of trial yet conclude the litigation on terms acceptable to both sides. Yet notwithstanding its goal of amity, today Rule 68 is the eye of a storm brewing between at least two directly conflicting decisions.

Kathleen A. Scott

Affiliate Transactions Involving Non-U.S. Banks

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott writes: A banking organization may wish to involve some of its affiliates as participants in a particular transaction, but may find itself hindered by Regulation W, a U.S. statute that restricts and in some cases prohibits a U.S. bank from engaging in a transaction with its non-U.S. affiliate.

Edward E. Neiger

Oil and Gas Companies Seek Chapter 11 Protection

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger writes: As U.S. oil prices plunged to below $50 a barrel, an over 50 percent decrease as compared to prices a year ago, numerous oil and gas firms, particularly within the upstream and oil field services sectors, were forced to seek protection under chapter 11 of the Bankruptcy Code. Struggling oil and gas companies cite an overall industry slowdown coupled with difficulties in obtaining financing as common precipitating factors to seeking bankruptcy relief.

James R. Hays and Shira Forman

Government Reviews Work Shift and Overtime Requirements

By James R. Hays and Shira Forman |

James R. Hays and Shira Forman write that if the retail world can be said to operate in seasons, then, for New York retailers, this one could be characterized as the season of uncertainty, with the state Attorney General investigating the use of "on-call scheduling," calls to raise the minimum wage for fast-food workers, increased scrutiny of the work conditions of local nail salon employees, and an upcoming announcement from the Department of Labor on changes to long-established federal overtime laws.

Charlotte A. Biblow

Significant Changes to New York Brownfield Cleanup Program

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes that with the adoption of this year's budget on April 1, the BCP has been extended and given renewed life. This extension, however, also includes new rules affecting deadlines, changing many key definitions, adding hurdles for New York City properties, and more.

Lawrence W. Newman and David Zaslowsky

The Yukos Case: More on the Fourth Arbitrator

By Lawrence W. Newman and David Zaslowsky |

In their International Dispute Resolution column, Lawrence W. Newman and David Zaslowsky write that in connection with the largest arbitration award ever issued, questions of the extent and influence of tribunal secretaries on arbitrators' decisions recently have been brought to the fore.

Gregg L. Weiner and Israel David

Securities Fraud Cases Brought Under Item 303

By Gregg L. Weiner and Israel David |

Gregg L. Weiner and Israel David analyze 'Stratte-McClure v. Morgan Stanley,' a decision that confirms that issuers and other market participants must be vigilant of disclosure obligations under Item 303 of SEC Regulation S-K, but also confirms that there are significant limits to the extent to which liability should be imposed on this basis.

Robert C. Scheinfeld

Is Bar on Registering Disparaging Marks Unconstitutional?

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld discusses the case of 'In re Simon Shiao Tam,' which the Federal Circuit has agreed to rehear en banc, and Federal Circuit Judge Kimberly Moore's "additional views" from the panel decision in that case proclaiming that it "is time for this Court to revisit McGinley's holding on the constitutionality of §2(a) of the Lanham Act."

Martin Flumenbaum and Brad S. Karp

Bringing Third-Party Claim to Forfeited Property

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'United States v. Watts,' in which the circuit reversed the district court's dismissal of a petition by the lawyers for a criminal defendant who asserted a third-party interest in forfeited property, based on a pre-trial assignment of the property in exchange for legal services.

Kenneth G. Schwarz

Collateral Estoppel and Administrative Agency Determinations

By Kenneth G. Schwarz |

Kenneth G. Schwarz writes: Res judicata, or claim preclusion, is frequently used in the same breath as collateral estoppel, or issue preclusion. But while the two doctrines arise out of a desire to impose finality on claims and issues that have been fully and finally decided, they part ways in some important respects.

Brian Mardon & Stephen Iannacone

Discovery of Medical Records in the Age of HIPAA Protections

By By Brian C. Mardon and Stephen A. Iannacone |

Brian C. Mardon and Stephen A. Iannacone discuss the contentious issue of disclosure of privileged, or unrelated medical records and conclude: "the ongoing struggle between liberal disclosure and protection of privacy rights will continue to cause new and unusual problems for the personal injury litigator into the foreseeable future."

Stephen M. Kramarsky

Facebook Filings: Social Media and Service of Process

By Stephen M. Kramarsky |

Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, writes: A recent decision tackled the issue of service of process through a private Facebook message, and did so in a surprisingly direct and uncompromising manner.

Francis J. Serbaroli

New Law Addresses 'Surprise' Billing for Medical Services

By Francis J. Serbaroli |

Francis J. Serbaroli, in his Health Law column, analyzes New York's new "Emergency Medical Services and Surprise Bills" law, which recently went into effect. The law imposes new requirements on insurers, hospitals, physicians and other providers, and patients with respect to emergency medical services, or medical services furnished by out-of-network providers. It also establishes a dispute resolution process for contested medical charges.

Robert S. Kelner and Gail S. Kelner

Use, Scope and Limitations of the Notice to Admit

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner of Kelner and Kelner discuss the permissible scope of a notice to admit and the safeguards the statute provides if a demand contains improper items.

Richard Strassberg and William Harrington

Where Rules Collide: the Problem of Confidentiality and Whistleblowers

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington discuss two recent cases which illustrate how practices around confidentiality agreements and data protection are evolving.

Lawyer Non-Competes: A Perilous Path

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi discusses how although lawyer non-competes "deprive clients of choice of counsel, hamper lawyer mobility, and are unenforceable and unethical," some law firms continue to include them in their partnership agreements.

Jill Backer

How Does Section 342 of Dodd-Frank Affect Legal Recruiting?

By Jill Backer |

Jill Backer, assistant dean for career and professional development at Pace Law School, writes: Section 342 will likely have a large impact on recruiting and diversity practices within the financial industry, and will also impact the legal industry as a vendor of the financial industry.

Jeremy H. Temkin

The Government's Use of Tax Returns at Trial

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin, a principal in Morvillo Abramowitz Grand Iason & Anello, addresses the government's ability to access the defendant's returns for use in non-tax cases, as well as the evidentiary issues surrounding the admissibility of both "other year returns" in tax cases and any returns in non-tax cases.

Eric Tirschwell and Arielle Warshall Katz

CFPB Investigations: What's Different, What's the Same

By Eric Tirschwell and Arielle Warshall Katz |

Eric Tirschwell and Arielle Warshall Katz of Kramer Levin Naftalis & Frankel writes: While the Consumer Financial Protection Bureau's investigative tools are similar to those used by other regulators, the procedures surrounding the bureau's broad investigative authority present new and unique challenges for companies receiving demands for information relating to a CFPB investigation.

Michael D. Patrick

H-1B and L-1B: Staying Nimble in Times of Unprecedented Change

By Michael D. Patrick |

In his Immigration Law column,Michael D. Patrick, a partner at Fragomen, Del Rey, Bernsen & Loewy writes: As employers continue to experience a shortage of highly skilled workers to meet their business needs, the low odds of having an H-1B considered will likely require employers to make significant changes to their business immigration strategies, unless Congress provides relief by adding more visas.

Roy L. Reardon and William T. Russell Jr.

Decision to Rescind Law School Admission Upheld

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

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases in which the court affirmed the dismissal of an Article 78 proceeding challenging the decision of St. John's University School of Law to rescind the admission of one of its students, upheld a police stop based on the officer's reasonable but mistaken understanding of the law, and affirmed the dismissal of a challenge to New York's regulatory system for stormwater discharges.

Lanier Saperstein, Geoffrey Sant and T. Augustine Lo

New York State Legislature Seeks to Overturn 'Daimler'

By Lanier Saperstein, Geoffrey Sant and T. Augustine Lo |

Lanier Saperstein, Geoffrey Sant and T. Augustine Lo write: On April 28, 2015, a controversial proposal to eviscerate a landmark U.S. Supreme Court decision slipped through the New York State Senate Standing Committee on the Judiciary with one minute and 30 seconds of debate. The bill purports to clarify a supposed ambiguity created by the U.S. Supreme Court in 'Daimler v. Bauman,' arguably the most important Supreme Court ruling on general personal jurisdiction in 70 years.

Ken Strutin

Coram Nobis: The Human Ink of Unredressed Grievances

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Justice is nourished by open channels of information. But every posthumous appeal is a reminder of the procedures and prejudices that have obstructed the flow. Recently, the New York Court of Appeals refocused the eyepiece of post-conviction review.

Howard Epstein and Theodore Keyes

Subrogation: Primer and Recent Environmental Cleanup Cases

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write that in the last few years, insurance disputes concerning subrogation rights related to claims under the Comprehensive Environmental Response Compensation Liability Act have yielded several interesting decisions.

Glen Banks

Addressing Consumer Assent in Internet Transactions

By Glen Banks |

In his Contract Law column, Glen Banks analyzes three recent decisions concerning consumers in Internet transactions where the seller's terms contained in "clickwrap" or "browsewrap" agreements included an arbitration clause.

Michael N. DiCanio

Preparing for the Inevitable: Insurance for Data Breaches

By Michael N. DiCanio |

Michael N. DiCanio writes that a 2014 study found that the average cost of a corporate data breach in the United States increased 15 percent in the last year to $5.9 million, and can run much higher. Despite these known risks, it is estimated that only one in three companies now has insurance specifically to protect against such losses.

Sidney Kess

Tax Perspectives on Non-Public Education

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the tax consequences of choosing home schooling or private school, along with special savings programs such as Coverdell Education Savings Accounts and Achieving a Better Life Experience accounts.

Patrick M. Connors

Back to Basics: Careful Pleading Under CPLR Article 30

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors analyzes a recent decision from the First Department that highlights the importance of pleading affirmative defenses with some precision, and provides guidance to plaintiffs on how to combat a defendant's sloppy pleading.

Timothy J. Coleman and Emily B. Holland

Touching and Concerning 'Kiobel': Continuing Implications

By Timothy J. Coleman and Emily B. Holland |

Timothy J. Coleman and Emily B. Holland write: Although it did not bar all extraterritorial claims, the U.S. Supreme Court's decision in 'Kiobel v. Royal Dutch Petroleum' shut the door to most Alien Tort Statute suits brought by foreign plaintiffs against foreign defendants for conduct occurring on foreign soil. But as to how courts should confront claims not involving Kiobel's "foreign-cubed" fact pattern, the legal community continues to debate. Recent rulings offer a fresh opportunity to assess what remains of the ATS and suggest an emerging circuit split.

Medicaid Planning by Non-Lawyers

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes: Despite the specialized legal knowledge needed to give proper counsel, many for-profit entities of non-lawyers in New York openly advertise that they can give advice on Medicaid planning.

Michael Escue

FDIC Guidance on Brokered Deposits

By Michael T. Escue |

In his Banking column, Michael T. Escue discusses FAQ guidance issued by the FDIC that answers a wide range of questions regarding the classification of certain deposits as "brokered," which in some cases would appear to represent a departure from industry understanding and/or practice, and the implications of such a classification.

James Dowden, Christopher Conniff and Carly Baratt

Fraud Amendments to U.S. Sentencing Guidelines

By James Dowden, Christopher Conniff and Carly Baratt |

On April 9, 2015, the U.S. Sentencing Commission voted to adopt changes for fraud-related offenses, most notably to the definition of "intended loss." While the DOJ has opposed several of these amendments as overly lenient, in our view, they are a positive step toward bringing greater structure and reason to sentences for fraud-related convictions.

Michael B. Gerrard

Energy Efficiency Improvement Act of 2015: Trend or Oddity?

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard reviews the recently enacted Energy Efficiency Improvement Act of 2015 and other pending energy-efficiency legislation, including some that would worsen energy efficiency, such as the House appropriations bill for the Department of Energy, the Army Corps of Engineers and other agencies for fiscal year 2016.

Zlatko Hadzismajlovic

L-1B Specialized Knowledge and the Slow Road to Adjudication

By Zlatko Hadzismajlovic |

Zlatko Hadzismajlovic discusses current challenges involving the L-1B visa, created to facilitate the intracompany transfer of qualifying employees from a foreign entity to its U.S. affiliate; responding USCIS policy memoranda; and the effect, if any, of such pronouncements on adjudications.

Taleah E. Jennings and Mark D. Richardson

Options When a Competitor Raids the Company

By Taleah E. Jennings and Mark D. Richardson |

Taleah E. Jennings and Mark D. Richardson write that courts recognize an employee's freedom to make employment decisions, and one or two employees departing for a competitor does not cause a stir. However, the lift-out of an entire team may be indicative of unfair or improper conduct, and targeted companies may have legal remedies available.

John Rapisardi and Joseph Zujkowski

Revisiting 'Rede' and Recent Brazilian Restructuring Issues

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski discuss issues facing bond investors in distressed Brazilian entities using a case study of the recent judicial reorganization of Rede Energia S.A.

Richard Raysman and Peter Brown

Courts Continue to Acknowledge Increasing Prominence of TAR

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown provide an in-depth discussion of 'Da Silva Moore'; analysis of a recent case that illustrates the intersection between Technology-Assisted Review and privacy concerns; and an examination of a case that hinted that the increased adoption of TAR may fundamentally alter the constitutionality of universally accepted search warrants for seizure of electronically stored information.

Shepard Goldfein and James A. Keyte

EU and Google: Study in Divergence for Antitrust Enforcement

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte discuss the FTC's and European Commission's investigations into Google's search practices and the differences in U.S. and EU approaches to antitrust enforcement.

Lewis R. Clayton and Eric Alan Stone

Fifty Percent Royalty Rate Affirmed Against Generic Manufacturer

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone review the U.S. Supreme Court's recent decision on when a Trademark Trial and Appeal Board decision regarding likelihood of confusion can have issue-preclusive effect in an infringement lawsuit, along with appellate decisions regarding reasonable royalty rates and the "entire market value" rule in generic-pharmaceutical cases, application of the new test for patent indefiniteness, and more.

Henry J. Cernitz

Litigating the Common Driveway Case

By Henry J. Cernitz |

Henry J. Cernitz writes: With increasing frequency, cases involving falls on "common driveways" are tying up litigants on both sides with enormous amounts of paperwork and discovery. Common driveway cases involve issues that can be dealt with early so as to avoid unnecessary discovery and time-consuming court appearances.