Jared B. Stamell and Andrew R. Goldenberg analyze recent decisions in two cases in the Southern District addressing whether lack of unanimous holder consent in an out-of-court debt restructuring violates §316(b).
Jared B. Stamell and Andrew R. Goldenberg analyze recent decisions in two cases in the Southern District addressing whether lack of unanimous holder consent in an out-of-court debt restructuring violates §316(b).
In his New York Practice column, Thomas F. Gleason discusses how the scope of review provided by CPLR 5501 on an appeal from the final judgment has some "less-than-clear limitations" and offers that the words used such as "non-final judgment or order" and "necessarily affects" are not as clear as would be desirable for determining such a critical issue as reviewability on appeal.
In his Admiralty Law column, James E. Mercante of Rubin, Fiorella & Friedman discusses a recent case in which a U.S. government data buoy detached from its mooring anchor at sea and was discovered by the captain of a fishing vessel. As the vessel owner quickly learned, sea rights are determined by federal maritime law and "finders" are rarely "keepers".
In his Law Firm Partnership Law column, Arthur J. Ciampi discusses a recent case from a Colorado state court, which illustrates how the absence of an agreement led to litigation among lawyers and suggests how the existence of an agreement may have avoided such disputes.
The appeals court reversed itself Tuesday in a case that's been closely watched by media organizations and users of stock photos.
Amid mounting allegations of bias in its home-sharing platform, Airbnb Inc. has hired former U.S. Attorney General Eric Holder Jr. to help craft a “stronger” anti-discrimination policy aimed at eliminating “explicit racism and implicit biases,” the company said Wednesday.
In her Western District Roundup column, Sharon M. Porcellio discuss several "novel and interesting cases this quarter, including "Lombardi v. United States Postal Service," where newlyweds sued the Postal Service pro se in small claims court claiming damages in connection with the Postal Service's alleged failure to inform the plaintiffs that their wedding invitations required additional postage resulting in their invitations being either undelivered or significantly delayed.
Joseph D. Nohavicka of Pardalis & Nohavicka discusses 'Mazella v. Beals', in which the court determined that it was improper to admit a consent agreement between the defendant doctor and the Office of Professional Medical Conduct, which contained evidence of the doctor's negligent treatment of 12 unrelated patients.
In his Immigration Law column, Michael D. Patrick writes: I have had the great fortune of practicing immigration law for the past 35 years, the first five of which were with the government. Over this time, I have observed both periods of revolutionary immigration legislation and extensive congressional gridlock. The most successful immigration reforms have been a direct result of bipartisan support of a common cause.
In his Tax Tips column, Sidney Kess discusses various exclusions that transform some recoveries into tax-free income, steps that can minimize taxes, and some long-term considerations when your client has come into sudden wealth.
Amber Wessels-Yen and Karl Geercken write: On June 20, the Supreme Court issued its much-anticipated decision in 'RJR Nabisco v. European Community,' applying its new extraterritoriality analysis to RICO claims. The result is an opinion that addresses some disputes among the lower courts, leaves others unaddressed, and breaks new ground to limit the availability of U.S. courts to decide intrinsically foreign civil disputes.
In their Insurance Law column, Jonathan A. Dachs writes: One of the more interesting insurance law questions posed to the courts in recent years involves whether an "SUM" carrier is entitled to a reduction in coverage for the amount(s) received from non-motor vehicle tortfeasors, such as municipalities, bars or medical providers. A recent Second Department decision has created a division in authority.
Stephen A. Helman discusses Subordination, Non-disturbance and Attornment Agreements, which achieve the subordination of the tenant's lease to the mortgage on the landlord's fee estate and the contemporaneous protection of the tenant against the foreclosure of such mortgage, and recommends provisions to be included if the lease contains a right of first refusal or offer.
In their Arbitration column, Samuel Estreicher and Holly H. Weiss write that in May, the Seventh Circuit issued the first appellate decision to agree with the National Labor Relations Board that §7 of the NLRA bars employers from requiring as a condition of employment that employees agree to an arbitration provision precluding class or collective actions, a decision that sets up a circuit split.
Scott W. Doyle and Jonathan R. DeFosse write that in June, the Supreme Court issued its first decision addressing inter partes review proceedings before the PTO. In a defeat for those who believe the process allows accused infringers to unfairly harass patent owners, the court upheld the claim construction standard and confirmed that appeals may only be taken from the board's final written decisions.
In his Criminal Law column, Ken Strutin writes: Criminal justice inflicts pain as punishment even as excessive suffering is constitutionally proscribed. But how far can the conventional metrics of pain go in setting the boundaries of due process and due punishment?
In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases in which the court addressed the application of the common interest doctrine to communications shared between companies in the process of merging, affirmed the denial of summary judgment to two former AIG executives in a case brought by the Attorney General, and determined that a trial court's failure to meaningfully respond to a note from a deliberating jury does not require reversal as long as counsel had been given notice of the note's content.
Andrew W. Stern and Benjamin F. Burry write: The New York Court of Appeals has expressly adopted the standard from Delaware's highest court governing transactions in which a controlling shareholder proposes to take a public company private. But perhaps not enough attention has been paid to these two influential courts' having put the proverbial nail in the coffin of the proposition that ad hoc judicial inquiry provides better protection of shareholder rights than a properly run corporate process, overseen by independent fiduciaries.
In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith review recent decisions on satisfying the "demand" requirement for a derivative shareholder suit, the appraisal of shares of a minority partner who has wrongfully dissolved a partnership, parole considerations for persons who were juveniles at the time they committed their crimes, a state agency's mandate to investigate reports of neglect at a care facility, and more.
In his Northern District Roundup, Adam R. Shaw discusses noteworthy decisions, including one addressing when it is proper to maintain a lawsuit anonymously and another remanding contempt proceedings to state court.
Kenneth E. Pitcoff and Andrea M. Alonso write that in 2011, the Court of Appeals drastically undercut the protection afforded to emergency responders under New York Vehicle and Traffic Law, holding that the "reckless disregard" liability standard only applied when emergency vehicle drivers were engaged in one of four categories of privileged conduct. Since then, appellate courts have greatly broadened the stringent 'Kabir' criteria in an attempt to fashion a realistic and workable model.
In his Matrimonial Practice column, Timothy M. Tippins writes: Centuries before the computer whiz kids made the phrase "Garbage In, Garbage Out" part of our national lexicon, the common law judges and barristers of Westminster Hall understood the principle it embodies. In the adjudicative context relevant to lawyers and judges it is as simple as it is critical: A true decision must rest upon true facts, and true facts emerge only from reliable proof.
In their Environmental Law column, Michael B. Gerrard and Edward McTiernan review the Court of Appeals' correcting a longstanding flaw in some lower courts' application of the standing doctrine to restrict access to the courts by environmental plaintiffs, along with other SEQRA decisions.
Lila Ayers writes: Anyone practicing landlord-tenant law in recent years, at some point, was likely to be informed "you can't collect rent on an 'illegal apartment,'" usually a basement space. This is no longer true, at least with regard to a one-family building.
In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone report on two Supreme Court decisions emphasizing the district courts' discretion in awarding enhanced damages in patent cases and attorney fees in copyright cases; a Supreme Court decision upholding the PTO's standard of review in inter partes review proceedings; and a Second Circuit decision discussing nominative trademark fair use.
In her International Banking column, Kathleen A. Scott writes that the Basel Committee of the Bank for International Settlements sets international capital standards but those standards must be adopted by individual countries to have any legal effect. A recent evaluation of the higher loss absorbency requirement in the United States, China, European Union, Japan and Switzerland shows how some jurisdictions deviate from the standard, either falling short or exceeding it.
Jonathan Honig writes: After several years in which every court found the Federal Arbitration Act trumps the National Labor Relations Act bar on class action waivers, the Seventh Circuit came out with its 'Lewis v. Epic' decision recently, with the revolutionary, but correct, holding that the NLRA is not in conflict with the FAA and proscribes class action waivers in arbitration of employment disputes.
In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: The FTC has litigated three merger-related preliminary injunction applications during the last two months, winning one—which joins what can now fairly be called a "string" of victories in cases involving highly concentrated industries within relatively static marketplaces—and losing two.
In their Technology Law column, Richard Raysman and Peter Brown take a look at the differing results reached in recent cases involving defendants' motions to compel arbitration, including: the Seventh Circuit's refusal to enforce an arbitration provision absent adequate notice to the consumer, and the opposite holding in a federal district court opinion issued in late June.
Russell Penzer writes: Recently, several federal district courts and circuit courts of appeals have rendered decisions uncharacteristically protective, or some have argued paternalistic, toward plaintiffs in Fair Labor Standards Act cases.
C. Raymond Radigan and Jennifer F. Hillman examine the historic reasons for mortmain, statutes ostensibly meant to protect testators and their families from overreaching religious or charitable groups, and the reasons why the legal system has embraced free will over regulation.
In his Complex Litigation column, Michael Hoenig writes: Presentation of the defendant's case in the modern products liability trial is the major opportunity to set the record straight and demonstrate to the jury that a perhaps catastrophically injured plaintiff is not entitled to recover. Counsel early on urged jurors to keep an open mind, promising them another side of the story. Now he or she must deliver.
Daniel J. Buzzetta writes: Although most people would prefer not to be faced with the threat of anticipated or actual litigation, the state's highest court recently ruled that such threat is necessary before a party may share attorney-client privileged information with another party with whom it shares a common interest.
Harvey M. Stone and Richard H. Dolan review a decision that a plaintiff's reassignment from his position as an armed ATF Special Agent to another job within the agency did not amount to discrimination, another that held the company designated by plaintiffs' counsel as the proper plaintiff at the close of all evidence was not the real party in interest, and a third rejecting petitioner's challenge to his state murder conviction based on the use of digital imaging to show his palm print on duct tape that had been recovered from his wife's body.
In her Professional Liability Insurance column, Sue C. Jacobs discusses the recent decision reaffirming New York state's long-held precedent that the common interest doctrine applies to communications with a third party having a shared interest only if there is pending or reasonably anticipated litigation, a narrower view of the doctrine than that held by a number of federal circuits.
Elliott Scheinberg writes: The absence of a statutory right to either a direct appeal from a sua sponte order or any form of immediate review therefrom, akin to CPLR 5704, constitutes a void in appellate jurisprudence that imposes onerous consequences on the party who, perhaps due to no wrongdoing on his part, finds himself on the wrong side of the order.
In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write that prosecutors tend to extend the reach of white-collar criminal statutes until the judiciary, at some point, pushes back. The Supreme Court's vacating the conviction of former Virginia Governor Robert McDonnell is the most recent high-profile example, but the government's expansive interpretation of federal statutes was narrowed by judicial interpretation in the Second Circuit recently as well, in 'United States ex rel. Edward O'Donnell v. Countrywide'.
Frank Taddeo Jr. writes: Many devoted fathers are knocked senseless by the legal system when spousal strife prevents amicable resolution of custody disputes during divorce proceedings. On custody, she usually wins and he usually loses, becoming a mere visitor in his children's lives. Might there be some recourse to be found in the law, some concept or theory he might grab onto? The answer is a tentative, guarded, but perhaps inevitable "yes."
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'United States v. Bohannon', in which the court vacated an order suppressing evidence seized pursuant to the arrest of a defendant, who was apprehended while a guest in the residence of a third party.
In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty Jr. discuss the sometimes overlooked limitation on the very liberal right to appeal—the requirement that only an "aggrieved party or a person substituted for him [or her] may appeal from an appealable judgment or order except one entered upon the default of the aggrieved party."
In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler discuss the rights of apartment owners to access business records; common law requirement that an owner's request for inspection must be made in good faith and for a proper purpose; and implications and recommendations for boards and managers in addressing apartment owner requests for access to records.
Yee Wah Chin writes: While there is no general law in the United States regarding abuse of superior bargaining position, the concern exists and is addressed in many states for specific industries in which there is a conclusion that a superior bargaining position is common.
In their Federal Civil Enforcement column, Richard Strassberg and William Harrington of Goodwin Procter analyze the U.S. Supreme Court's decision in 'Luis v. United States', which shed light on the limits to the, at times, seemingly limitless breadth of the forfeiture laws, but raises a series of questions with which courts will now have to grapple.
In his State E-Discovery column, Mark A. Berman of Ganfer & Shore discusses recent decisions that cite or interpret the New York Court of Appeals decision in 'Pegasus', which sustained the concept that spoliation of ESI may be predicated upon negligence.
In his Professional Responsibility column, Anthony E. Davis discusses New York State Bar Association Committee on Professional Ethics Opinion 1092 and he notes: “Although Opinion 1092 is titled “Duty to Disclose Malpractice of Co-Counsel,” it actually reviews both lawyers’ duty to reveal their own malpractice as well as the situation where a lawyer becomes aware of the malpractice of the lawyer’s co-counsel."
Irish law firms could be poised to pick up additional work after last week’s surprising vote by U.K. voters to leave the European Union. That leaves Ireland as the only remaining English-speaking country with a common law tradition in the Eurozone.
In his Insurance Fraud column, Evan Krinick discusses the recent case 'Iowa v. Rimmer,' and writes: "Defendants will bemoan the ruling, but prosecutors and courts in other states undoubtedly will rely on its analysis when considering whether they may prosecute a multistate criminal insurance fraud action in their own courts."
In their Entertainment Law column, Neil J. Rosini and Michael I. Rudell write: "'Sarver v. Chartier' and 'Hicks v. Casablanca Records' present relatively straightforward guidelines for deciding whether fictional works portraying real people violate publicity rights. New York decisions, however, usually apply statutory interpretation that seems to depend on whether readers and viewers know what they're reading or watching is fiction or fact."
Harry Sandick of Patterson Belknap Webb & Tyler discusses the recent Second Circuit decision in 'Rowland', a case involving falsifying records, and writes: Given the Supreme Court's longstanding interest in limiting the breadth of the statutes that prohibit obstruction of justice, 'Rowland' may warrant further appellate review.
Michael Kahn discusses what some would say is a “disturbing trend,” — narrowing the scope of patentable subject matter. He writes that this trend “has seen many otherwise valuable and groundbreaking inventions dedicated to the public and denied patent protection. In the wake of this trend, alternative forms of intellectual property protection are becoming more appealing.”
In their Corporate Insurance Column, Howard Epstein and Theodore Keyes write: Earlier this year, in 'Templo Fuente De Vida Corp. v. National Union Fire Insurance Co.,' the Supreme Court of New Jersey extended the Zuckerman ruling to hold that the notice prejudice rule does not apply and the insurer is not required to demonstrate prejudice to deny coverage for late notice of claim under a claims-made policy, even where the claim was reported during the policy period.
In his Antitrust column, Elai Katz discusses recent antitrust developments of note including a class action complaint which sufficiently alleged that Uber's pricing algorithm amounted to price-fixing among drivers, according to a district court in Manhattan.
In their Aviation Law column, Steven R. Pounian and Justin T. Green discuss 'Joshi v. National Transportation Safety Bd.,' where the U.S. Court of Appeals for the D.C. Circuit ruled that the National Transportation Safety Board's probable cause determinations are not subject to judicial review. The authors write that the decision highlights the conflict of interest in the National Transportation Safety Board's investigation process, which relies on the participation of potential defendants in civil litigation that frequently follows aviation accidents.
Daniel A. Cohen of Walden Macht & Haran discusses the recent 'Ambac' decision, in which the Court of Appeals held that the existence of a joint legal strategy is a necessary, but not sufficient, condition for applying the common interest doctrine and that the existence of actual or anticipated litigation is additionally required in order for the doctrine to apply.
In his Condemnation and Tax Certiorari column, Michael Rikon writes: A trial court is charged with making all the legal determinations in an eminent domain case. But as the trier of the facts, it also has broad discretion to decide many critical issues which determine the amount of "just compensation." In this article, he discusses a few of the areas that are said to be within the sound discretion of the trial court.
Samuel N. Fraidin and Douglas J. Pepe of Joseph Hage Aaronson write: The Second Circuit should adopt a single statement of the doctrine concerning whether a court may consider documents attached to a motion to dismiss, define its terms, and warn against the use of the doctrine for any purpose other than determining if a document may be considered without converting a motion to dismiss into a motion for summary judgment.
In his Cyber Crime column, Peter A. Crusco of the Office of the Queens County District Attorney discusses recent litigation concerning government seizures of email accounts using search warrants resulting in the seizure of voluminous digital records, and the legality of the lengthy retention of non-responsive emails for an indefinite period.
Cybersecurity risks brought on by high employee turnover and file sharing are easy fixes with proactive information governance.
In his Estate Planning and Philanthropy column, Conrad Teitell writes: Inter vivos charitable remainder unitrusts and annuity trusts enable your clients to make significant gifts that go to charities at death while retaining income for life. When properly structured, income tax charitable deductions are allowed, and capital gains taxes on the sale of appreciated assets by the trusts are avoided, reduced or postponed. But the IRS doesn't forgive foot faults. Make a small mistake, and income, gift and estate tax charitable deductions are disallowed, and capital gains are taxable.
In his Section 1983 Litigation column, Martin A. Schwartz discusses 'Heffernan v. City of Paterson', where the U.S. Supreme Court held that a police officer who was demoted because his superiors mistakenly believed he had engaged in political association was entitled to assert a §1983 First Amendment retaliation claim, even though he had not in fact engaged in any First Amendment activity.
William K. Kirrane and Michael A. Savino write that the goal of our tort system is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred. But with the system providing plaintiffs future lost earnings awards not offset for taxes and a fixed interest rate far exceeding the prime rate on judgments, plaintiffs are instead profiting from their losses.
In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that in New York, an expert who advances an unreliable theory cannot be cross-examined with medical literature unless he or she accepts the literature as authoritative. It may nevertheless be possible for defense counsel to demonstrate that even though the plaintiff's expert will not acknowledge an article as "authoritative," the expert nevertheless treats a particular publication as "reliable" so as to permit cross-examination.
Carlos J. Cuevas writes: One means of trying to recoup the losses for the defrauded investors of a Ponzi scheme is commencing a lawsuit for aiding and abetting fraud against a professional, such as an accountant or an attorney, who had actual knowledge of the Ponzi scheme and rendered substantial assistance to its effectuation. A potential, but not insurmountable, obstacle is CPLR 3016.
Brian P. Heermance and Christopher P. Keenoy discuss the types of claims that arise over the care received at nursing homes and assisted living facilities (ranging from injuries associated with falls and development of bedsores, to allegations of the facility's failure to develop and update the patient/resident's individualized plan of care), the statutes governing long-term care facilities, and the complexities in defending these claims.
In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell write: PFOA and PFOS pollution upstate has raised significant concerns about the overall safety of the state's water systems and the efficacy of the nation's industrial chemical regulation in general. The DEC's recent regulatory amendment is a needed step toward preventing contamination, but is narrow in scope.
In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: A political fight over the use of executive authority to restore voting rights is not new. Nor is turning to the courts to decide whether state disenfranchisement laws are lawful. What is new in a current battle over Virginia Governor Terry McAuliffe's recent executive order is the use of state courts to adjudicate a largely political battle over the use of executive authority to restore voting rights.
John S. Siffert and Leigh Llewelyn write: The Supreme Court and Congress have settled on mail "fraud" as requiring either a property-based taking or, in cases involving honest services fraud, certain kinds of economic gain. Lesser known is the surprising fact that Congress already enacted a statute that perfectly covers the case of an insider trading tipper. As modified by the court, it also requires the fraudster obtain an economic benefit. There is no principled reason why the court's longstanding view of fraud as an economic crime should not govern the upcoming 'U.S. v. Salman'.
In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Although invocation of the common interest doctrine is seldom challenged through litigation in the Southern District, with only a handful of written decisions on the subject each year, its contours are not as well-defined as many lawyers assume. Two recent decisions narrowly construing the doctrine underscore the importance of understanding the common interest doctrine's requirements.
In her Internet Issues/Social Media column, Shari Claire Lewis writes: The FTC's well-organized Web-based tool and new guidance for mobile health app developers should serve as a reminder to them of the importance the agency places on protecting consumers' privacy. If regulators are interested in privacy, then developers should be interested in privacy.
Robert L. Schonfeld writes that even though in 'Spokeo Inc. v. Robins' the Supreme Court remanded the case for reconsideration on the question of whether the plaintiff had adequately pleaded that he had incurred injuries that were "concrete" enough to give him standing, taking no position on whether the plaintiff actually did have standing, in failing to affirm the Ninth Circuit, the decision could have an impact on decisions on standing in lawsuits brought under federal laws other than the Fair Credit Reporting Act.
In his Tax Tips column, Sidney Kess writes: According to the Population Reference Bureau, the vast majority of caregivers in the United States for the ever-increasing elderly population are family members. Caring for someone who is elderly or disabled entails personal and financial costs. Whether acting under a moral or legal obligation to provide care, at least the tax law provides some assistance for the caregiver.
In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write that although the now presumptive Republican presidential nominee has been outspoken on a variety of issues, he has largely remained silent on the issue of antitrust enforcement. As a businessman, Trump has had two run-ins with the antitrust laws. Taken together, what can his public comments and his experience in this fairly specialized area tell us about what a Trump presidency might mean for antitrust enforcement?
In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: In light of the significant impact conditions precedent clauses can have, New York courts generally are strict in construing whether a contractual provision constitutes such a condition. When ambiguity creeps into the language, efforts to convince the court to construe it as a condition precedent may fail regardless of the availability of parol evidence, as several recent decisions demonstrate.
In his Executive Compensation column, Joseph E. Bachelder III discusses the recent case over the compensation/severance arrangement Yahoo! Inc. had with its chief operating officer, who was paid just under $100 million for 14 months work, and lessons companies should learn.
Lawrence Elbaum discusses the Defend Trade Secrets Act of 2016, which provides for multiple equitable and legal remedies, including ex parte orders that can result in seizure or isolation of misappropriated trade secret materials, as well as injunctions and monetary relief including damages for actual loss and unjust enrichment.
In his Franchising column, David J. Kaufmann writes: With the International Franchise Expo in town at the Javits Center, thousands of prospective franchisees will be evaluating hundreds of franchises being offered. But what is the most critical, indispensable and helpful step in evaluating whether to acquire franchise rights from any given franchisor? The answer is simple: a thorough review of the franchisor's Franchise Disclosure Document.
In her Securities Regulation column, Roberta S. Karmel writes: A mammoth 341-page Concept Release, posing 340 questions, on possible reforms to Regulation S-K, may prove the keystone for the Disclosure Effectiveness Project of the SEC, along with an earlier Release on Regulation S-X.
Jordan Greenberger writes: As the craft beer industry continues to grow, nationally and in New York State, so too do trademark disputes amongst breweries. A recent suit between an established New York craft brewer and a California start-up brewer over the use of the mark "Black Ops" illustrates the type of arguments that are often raised in such disputes, and the ability of a trademark owner to enjoin the use of a confusingly similar mark even when the infringing mark is used on the other side of the country.
In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida write that on June 2, the Ninth Circuit held that a 0.23 second sample from a sound recording of three horns simultaneously playing the notes of a chord did not meet the de minimis standard for copyright infringement, rejecting the reasoning of the Sixth Circuit in a 2005 decision that any sampling, no matter how brief, was infringing.
In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases in which the court addressed the standard of review for analyzing a "going-private" corporate transaction, approved the rejection of a class action settlement that did not afford non-resident class members an opportunity to opt out, and denied an effort by state judges to obtain damages for the Legislature's failure to enact judicial salary increases.
Joel Cohen and James L. Bernard write: Like all good movies about an important and controversial event, the story told in the movie "Spotlight," about the role of the Boston Globe in uncovering the breadth of the clergy scandal that impacted the Boston diocese, was no doubt some combination of truth and dramatization. One startling and poignant scene is worth discussing from an ethics point of view.
In their Privacy Matters column, Richard Raysman and Peter Brown analyze enforcement mechanisms that have been deployed to combat illegal telemarketing and how some have fared.
Joseph C. Savino and Stephanie Suarez discuss 'Hawkins v. Community Bank of Raymore,' in which the U.S. Supreme Court, asked to consider whether the provision of the Equal Credit Opportunity Act that makes it "unlawful for any creditor to discriminate against any applicant [for credit]…on the basis of…marital status" applied also to guarantors, affirmed the Eighth Circuit by an equally divided per curiam opinion after the death of Justice Scalia, leaving the circuits split.
In her Trusts and Estates Update, Ilene Sherwyn Cooper discusses recent cases involving the production of the personal income tax returns of a fiduciary, scope of witness examination, a demand for a jury trial on the issue of a corporate trustee's alleged conversion of trust funds, and more.
In his Complex Litigation column, Michael Hoenig writes that it is often said that what really happens in a trial is the product of intensive preparations beforehand. With that in mind, he poses eight questions to begin assessing your trial readiness.
In his Tax Appeals Tribunal column, Joseph Lipari writes: An owner of real property is not charged sales or use tax on "capital improvements," but contractors must pay use tax on the materials purchased by it to construct such improvements. For many taxpayers, the nuanced set of rules on this exemption leads to confusion, and a failure to understand the peculiarities can result in unexpected liabilities, as two recent decisions highlight.
In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions involving sentencing in light of the extensive collateral consequences of defendant's conviction, sanctions for attorneys' pattern of conduct including neglect of trial-related scheduling orders, and eligibility for a "safety-valve" exception to a ten-year mandatory minimum sentence after a previous driving while impaired conviction.
Janis M. Meyer writes: Although a number of U.S. law firms conduct some form of such due diligence as part of their client intake procedures, it is not mandatory here. It is likely, however, that the legal profession will be under increased scrutiny as the Panama Papers revelations continue. Accordingly, lawyers and law firms should view the Panama Papers as an opportunity to do some internal review to ensure that they are protected against a Panama Papers or Global Witness-type incident.
In their Trusts and Estates Law column, C. Raymond Radigan and John G. Farinacci discuss courts' balancing of the wishes of the deceased, the desires of the surviving family, and the need for bodies and organs for transplants, education and research in cases arising under the New York Anatomical Gifts Act or the right of sepulcher.
In his No-Fault Insurance Law Wrap-Up, David M. Barshay writes: If an insurer receives a bill for an earlier date of service, but does not pay it, and then receives and pays subsequent bills which exhaust the policy, is the insurer obligated to pay the earlier bill? Not surprisingly, there are several schools of thought as to whether an insurer must pay the earlier bill.
Eric Broutman and Carolyn Wolf write that since the deprivation of liberty is a significant impingement on one's rights, the Supreme Court requires regular access to courts for involuntarily confined psychiatric patients. Until recently, if a New York hospital failed to timely apply for a statutory hearing the court would not automatically release the patient, but conduct a hearing to see if the patient was indeed mentally ill and dangerous. This all changed in a 2015 Court of Appeals decision concluding that the only appropriate remedy is the patient's immediate release.
In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris, write: In Merrill Lynch v. Manning, the Supreme Court affirmed a Third Circuit decision holding that the test for federal jurisdiction under the exclusive jurisdiction provision of the Securities Exchange Act of 1934 is the same as for "arising under" jurisdiction under 28 U.S.C. §1331, the general federal-jurisdiction statute. The court was not asked to apply §1331, however, and so it left open the question of whether and when a state-law claim may "arise under" federal law.
In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: In a number of recent chapter 11 cases filed by "upstream" energy and production companies, the debtor's rejection of "gathering agreements" or similar contracts with "midstream operators" has raised the issue of whether the debtor's mineral estate is free of obligations stemming from covenants that "run with the land" as either real covenants or equitable servitudes. A recent decision is an important reminder that whether such covenants are real covenants centers on a specific, fact-based analysis under state law.
Marshall Fishman, Timothy Harkness and David Y. Livshiz write that two recent Southern District decisions, taken together, create a risk that a foreign financial institution engaging in a dollar-denominated transaction anywhere in the world may wind up having to litigate claims arising out of those transactions in the United States, solely based on the fact that they were executed in dollars and involved U.S.-based correspondent bank accounts. This result is not only unprecedented, but conflicts with Supreme Court guidance.
In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write: The Second Circuit recently issued a particularly noteworthy opinion addressing damages in an action involving malpractice at a VA medical center. That decision has important ramifications for cases stemming from care rendered at VA facilities, but also has portentous implications for damages-related issues in other federal and state malpractice actions.
In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: The Supreme Court's 2015 Term promises significant developments for the white-collar bar. The court already has issued three decisions that are noteworthy for white-collar practitioners, with the most significant likely yet to come.
In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss three recent decisions that help illustrate how the integration of personal devices and email into the corporate environment, whether authorized or not, is changing discovery in the corporate litigation context.
In his Criminal Law and Procedure column, Barry Kamins writes: In a series of recent decisions, the New York Court of Appeals has revisited the 'wrong person' defense—an offer of evidence that a third party committed the crime. Stressing that the quality of proof of third-party culpability can vary depending on the nature of a case, the court held that, under certain circumstances, an offer of proof can consist of hearsay evidence with the understanding that the defendant will be prepared at a trial to present the evidence in admissible form.
In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas write: Co-workers may frequently discuss politics in a perfectly amicable manner; however, circumstances may arise where employers may need to impose discipline for misconduct that an employee may claim constituted a form of protected political activity.
David G. Samuels discusses developments relating to compensation of executives, loans to directors and officers and whistleblower protections at charitable organizations, along with changes to the minimum wage and right to overtime that may affect workers for nonprofits.
In their Labor Relations column, John P. Furfaro and Risa M. Salins review Supreme Court rulings from the 2015-16 term on class certification under the Fair Labor Standards Act; the viability of public-sector agency shop arrangements under the First Amendment; equitable relief, the duty of prudence and preemption under ERISA; and the validity of class-arbitration waivers.
In his Civil Rights and Civil Liberties column, Christopher Dunn writes: As a representative democracy with a federal constitution and a well-developed judiciary, Germany has a general constitutional regime quite similar to ours. A closer comparison, however, highlights features of our regime that, for better or worse, distinguish it.
John G. Martin writes: Although the FCA and most provider contracts with insurance companies do not discuss statistical sampling and extrapolation, it has become routine for the government, whistleblowers and insurers to demand repayment of thousands of claims that they have not reviewed, by pointing to errors in a subset of claims that they have reviewed.
In his Evidence column, Michael J. Hutter writes: While a review of cases over the past 20 years reveals that New York courts, following the lead of the federal courts, are taking judicial notice of facts from websites, the cases do not set forth any analytical framework for determining when judicial notice is or is not appropriate. That absence s troubling as there is now uncertainty as to when a New York court will take judicial notice of a website-mentioned fact, and the distinct possibility of "facts" being noticed when they should not be.
Kenneth E. Pitcoff and Kevin G. Faley write that the U.S. Supreme Court in 1998 made clear that a sex discrimination claim is not barred because the plaintiff and the harasser are members of the same sex, and provided three routes that create inferences of discrimination "because of…sex" in such circumstances. Every circuit has determined that those routes are not exhaustive, but their analysis of the "because of…sex" and "severe and pervasive" requirements are diverse.
Peter M. Fass discusses the SEC's final rules to permit companies to offer and sell securities through crowdfunding, rules that will assist smaller companies with capital formation and provide investors with additional protections.
Anna Murray writes: A few months ago, my software team received the following request from an attorney: "Please create a form on my WordPress website so potential clients can upload scans of important documents." He thought it would be an improvement over submitting through Gmail, without realizing the danger of his request.
In his Bankruptcy Update, Edward E. Neiger discusses filings in the teen apparel industry, which continues to decline as the shift in teen spending habits from fashion to technology becomes more pronounced and fast fashion companies that get new trends to the market quickly and cheaply draw sales over companies built on brand name logo appeal.
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Legg v. Ulster County,' in which the court, in an issue of first impression, found that the denial of a light-duty accommodation to the pregnant employee of a county correctional facility was sufficient to support an inference of discrimination under the Supreme Court's recently announced "significant burden" standard for proof of pregnancy discrimination under Title VII.
Paul Bennett Marrow argues that two recent decisions, 'Attia v. Audionamix' and 'NFL Management Council v. Tom Brady,' clarify that it's a good idea for an arbitrator to think twice before precluding evidence as a way to control party misconduct, but there should be room for a rule allowing an arbitrator who deals with misconduct to consider the impact of disruptive behavior as grounds for excluding evidence if the behavior prejudices the rights of other parties to a fundamentally fair hearing.
Ellen H. Greiper and Scott P. Eisenberg of Goldberg Segalla discuss the decision in 'Caesar v. Brookman', which answered the question of whether a medical provider can treat a patient by way of email.
Rupert M. Barkoff while Franchise Documents can be easily prepared by copycatting existing documents used by other franchisors, this overlooks the fact that this cookie-cutter approach is not likely to be successful when the franchise systems are not virtually identical. Copycatting will be less effective when the franchise systems are in different industries, but even when the systems are similar, there are other reasons not to use a copycat approach.
In his Law Firm Partnership Law column, Arthur J. Ciampi analyzes some of the issues concerning law firm partner retirement, including some interesting retirement statistics, and examines how other professions address issues regarding their senior members to discern whether their policies can be translated into law firm life.
Avi Weitzman and Jason P.W. Halperin propose a three-part fix to reduce the incentives and opportunity for future corruption in New York State government.
In his Matrimonial Practice column, Timothy M. Tippins writes: A plethora of precedent previously made clear that a parent enjoys no special exemption from criminal liability under the eavesdropping provisions of the Penal Law, which do not allow a parent to consent to such recording on behalf of his or her child. In a recent decision, the Court of Appeals abandoned that precedential line and embraced the doctrine of "vicarious consent."
In her State Environmental Regulation column, Charlotte A. Biblow writes: The Department of Environmental Conservation has proposed comprehensive revisions to its existing regulations governing solid waste management facilities that, when adopted, likely will affect every municipality across the state as well as businesses ranging from contractors, landscapers, and mulch facilities to hospitals and pharmacies, in addition, of course, to every aspect of the solid waste management industry.
In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Recognizing the importance of patents to the U.S. economy, and keen on keeping the Federal Circuit in check, the U.S. Supreme Court has, just within the last two months, granted another two patent related petitions—one involving whether the laches defense applies to pre-filing damages claims in patent cases, and the other involving the damages calculation in design patent cases.
Jonathan M. Robbin, Adam M. Swanson and Frank Crowley write: The First Department's recent decision in U.S. Bank v. Askew held that, regardless of issues relating to an allonge, or the validity of an allonge, a plaintiff in a foreclosure action proves its prima facie case by demonstrating physical delivery of the note prior to commencement of the action. The decision contradicts a Second Department dismissal of a plaintiff's foreclosure action because the allonge was not "firmly affixed" to the note.
In his New York Practice column, Patrick M. Connors discusses the interplay between Judiciary Law section 470, as recently interpreted by the Second Circuit and Court of Appeals, and the new "temporary practice" allowed under Part 523 of the Rules of the Court of Appeals, along with the effect of a violation of Judiciary Law 470, and how it can lead to the dismissal of an action, the inability to recover legal fees, and discipline.
In his Health Law column, Francis J. Serbaroli discusses a recent decision by a federal court refusing to enjoin a hospital merger challenged by the Federal Trade Commission. The decision is important because the court considered more factors, such as the effect of health care reforms, than is usual in antitrust analysis of hospital mergers.
In his Intellectual Property column, Stephen M. Kramarsky discusses the 'TekVet' decision and writes: The instinct to "bend over backwards" to help the customer and retain the relationship is a commendable one, but it can create serious issues if decisions are made without sound legal advice.
Scott M. Himes writes that in its recent opinion in 'In re Kenneth Cole Productions, Inc., Shareholder Litigation', the New York Court of Appeals, following Delaware's lead, held that the board-friendly business judgment rule should apply to the challenge of a going-private merger if certain shareholder-protective conditions are met. The opinion sets forth a road map for how parties can structure such a merger to pass legal muster.
Robert S. Kelner and Gail S. Kelner discuss recent case law, most notably 'Quintavalle v. Perez' from the First Department, that address the proof necessary to impose liability as a matter of law where a driver strikes a pedestrian in a crosswalk who has the right of way in an intersection. The analysis is two-pronged. Plaintiff must show negligence of the operator and plaintiff's freedom from comparative fault.
Joseph D. Jean, David F. Klein and Benjamin D. Tievsky write: New York has developed a reputation as an unfavorable jurisdiction for policyholders facing "long-tail" claims involving gradually occurring property damage or bodily injury liabilities, such as environmental contamination, asbestos-related illness, and certain toxic tort and construction defect claims. On May 3, however, the Court of Appeals issued a landscape-changing decision.