Expert Analysis

Robert C. Scheinfeld

Split Decisions Bring Variety of Opinions From the Federal Circuit

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Many patent attorneys, having backgrounds in the hard sciences, can appreciate repeatable tests and bright-line rules. Patent law, however, is rarely clean. The Federal Circuit has illustrated this with a number of split decisions issued over the past few months.

Marcie Borgal Shunk

Are Consultants Making Law Firms Worse?

By Marcie Borgal Shunk |

Law Firm Marketing columnist Marcie Borgal Shunk writes: There is much to be learned from young companies and from taking a blank slate approach to the way we, as an industry, contemplate how best to structure, operate and compete in a rapidly changing and dynamic environment. Taking a cue from some of the organizations that have displaced traditional Fortune 500 companies, if we abandon all that we know to be true—the billable hour as the pinnacle of measuring performance, the pyramid structure comprised predominantly of trained lawyers, the adulation of sophisticated legal services—what's left?

Michael J. Willemin is a senior associate at Wigdor.

Crafting a Media Response to a Lawsuit Without Inviting Further Litigation

By Michael J. Willemin |

Michael J. Willemin discusses lessons to be learned from a recent decision where the Second Circuit held that a defendant-employer's statement, issued in response to litigation, that the plaintiff-employee had "repeatedly tried to extort money from the company" and was "dismissed for gross misconduct," could serve as the basis for a claim for defamation.

Arthur J. Ciampi

Summer Is Over—Now It's Time for Vacation

By Arthur J. Ciampi |

Law Firm Partnership Law columnist Arthur J. Ciampi writes: As we all mourn the official end of summer, it may seem like an inopportune time to speak about vacations, which for many, in September, seem to be light-years away. But despite what may seem like bad timing, it is submitted that September is a very good time to examine how law firms treat vacations and sabbaticals even if only to rekindle the giddy hope of future time away from work.

William J. Giacomo - Supreme Court Justice - Westchester..Rec'd 0606

Interplay of CPLR 4111 and 5031 With Awards in Med Mal Lawsuits

By William J. Giacomo |

William J. Giacomo discusses the statutes that control the calculation of a structured judgment in light of the 2003 amendment to CPLR 4111(d) and its effect on the court's role in calculating the appropriate judgment to enter upon a medical malpractice verdict.

Jeremy H. Temkin

Lawyers: Blow the Whistle at Your Own Risk

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes that whistleblowing is alive and well at the IRS, but, while attorneys are not precluded from participating, attorneys need to be mindful of the strict interpretation of what it means for an attorney to "reasonably believe" a disclosure is necessary to prevent a client from committing a crime under New York professional conduct rules.

Jonathan A. Dachs

Recent Legislative, Regulatory Amendments Pertaining to Auto Insurance: Part II

By Jonathan A. Dachs |

Insurance Law columnist Jonathan A. Dachs discusses recent noteworthy changes including a new example illustrating the proper application of Supplementary Uninsured/Underinsured Motorists coverage, which is required to be included in the written notice sent by the insurer with all new and renewal policies, amendments to clarify the prescribed SUM endorsement, and more.

Wrangling the Wild West: SEC Steps in to Regulate Initial Coin Offerings

By Christian Everdell |

Christian Everdell writes: First, it was digital currencies like bitcoin. Then, it was distributed ledger technologies like blockchain. Now, another potentially groundbreaking innovation from this same community of technologists has vaulted to the forefront and taken center stage—the Initial Coin Offering. But all of the froth has spawned a Wild West atmosphere where investors are throwing money at what can be, at best, unproven technologies and, at worst, outright scams. Enter the SEC.

Women

The Rewritten Rules of Power Dressing

By Danielle J. Schivek |

While the "Power Suit" was the uniform of choice for a generation of independent, career-minded women who fought for a "seat at the table," the modern woman must cast off the chains of patriarchal fashion and embrace the styles sported by her contemporaries. Assuming a masculine facade is an antiquated expectation of the modern woman, who can be both a member of the Bar and a Vogue subscriber.

Howard Epstein and Theodore Keyes

SDNY Finds Coverage for Payment Instruction Fraud Loss

By Howard B. Epstein and Theodore A. Keyes |

Corporate Insurance Law columnists Howard B. Epstein and Theodore A. Keyes discuss a recent case where the Southern District ruled in favor of an insured that lost funds paid by an employee to a fraudster impersonating a company executive, finding coverage under both the Computer Fraud and the Funds Transfer Fraud sections within the Crime Coverage of the Executive Protection insurance policy.

Andrew Lavoott Bluestone

Judiciary Law §487 Suffers an Earthquake

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone writes: A recent Judiciary Law §487 case in the Western District has violently shaken the basic understanding of the elements of this common-law cause of action. We predict a Second Circuit case, and potentially a Certified Question to the New York Court of Appeals.

a large crane lies in an intersection after it collapsed on the East Side of Manhattan in May 2008.

Pre-Impact Terror Damage Awards

By Thomas R. Newman |

In his Appellate Practice column, Thomas R. Newman writes that a recent opinion in crane collapse litigation is to be complimented for describing in grisly detail horrific bodily injuries, which assist the trier of the facts in arriving at an award for conscious pain and suffering as the result of physical injuries based on a comparison of the award under scrutiny with recent cases involving comparable injuries. They are of no use in determining what is reasonable compensation for the "inconceivable" (the court's apt word) pre-impact terror that, it can be reasonably believed, both men must have felt.

John L.A. Lyddane and Barbara D. Goldberg

Making the Best Use of 'Arons' Authorizations

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

Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg write: Neither practicing physicians nor defense attorneys have much spare time, and it is unlikely that an 'Arons' interview will become a high priority task for a non-party provider. Even where a letter request is accompanied by a properly executed authorization, it is unlikely to produce an interview without further effort. What makes the further effort worthwhile is the prospect that the non-party witness is one of the least biased sources of information on a broad list of topics which are relevant to the evaluation and presentation of the defendant's position.

Browser Beware: Second Circuit Sizes Up 'Reasonable Smartphone User' in Uber Dispute

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky writes: In a recent case in the Southern District of New York against ride-hailing company Uber and its CEO, the court denied Uber's motion to compel arbitration, holding that its sign-up process did not adequately notify users of its terms of service (which contained the arbitration provision). The Second Circuit's review and vacatur of that decision examines these issues in the context of the "reasonable smartphone user," and it is worth a closer look.

Expediting Recovery of Accelerated Rents From Commercial Lease Guarantor

By Joseph I. Farca |

Joseph I. Farca: Your commercial tenant went dark and dropped the keys off before the expiration of the lease, leaving you with back rent on the books and no tenant paying ongoing rent. Against a tenant who is no longer in possession a landlord-tenant summary proceeding is not an option to recover the back rent, and never could get future rent. But with an effective rent acceleration clause and good guy guaranty, there is a little-used legal procedure that could allow the landlord to quickly pursue the guarantor for lost back and future rents: a motion for summary judgment in lieu of complaint.

Sidney Kess

Charitable Contributions for High-Income Taxpayers

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses what can high-income taxpayers can do to maximize their tax-advantaged giving opportunities in this period of tax uncertainty resulting from Congressional goals of tax reform.

Thomas F. Gleason

Pre-Judgement Interest and Stipulations of Liability Under CPLR 5002

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason writes: CPLR 5002 allows for interest to accrue after a decision establishing liability, even though the amount upon which the interest is running is not yet known and will not be determined until the damages phase of the case. Many cases have examined that which constitutes a "verdict, report or decision" under CPLR 5002. What about a stipulation that a defendant is liable on a personal injury claim, or a "high-low" agreement that fixes a range of liability?

Hitting a Moving Target: Why Brick and Mortar Retail Is Alive and Well

By Joshua A. Sussberg, Christopher T. Greco and Patrick Venter |

Joshua A. Sussberg, Christopher T. Greco and Patrick Venter write: The most common explanation for retail's recent market challenges has been a shift in consumer preferences to online sales. But online shopping only accounts for approximately 10 percent of the retail market share. So what gives?

Houston’s flooded streets due to Hurricane Harvey.

Harvey, Irma and the World

By Stephen L. Kass |

International Environmental Law columnist Stephen L. Kass writes: The startling scenes of urban devastation in Texas following Hurricane Harvey and in Florida, Georgia and South Carolina following Hurricane Irma are a microcosm of what climate change holds for major cities throughout the world—and a wake-up call for the United States that it is time to get serious about climate adaptation both at home and abroad.

group of police officers

The Absolute Immunity of Police Officer Witnesses

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz writes: For a §1983 claim based upon a law enforcement officer's perjurious testimony to succeed, the plaintiff will have to overcome the officer's absolute witness immunity, which applies regardless of how malevolent the officer's wrongdoing, or how injurious it was to the arrestee, and even if it caused a wrongful conviction.

Disclosure-Only Settlements in State Courts

By Thomas A. Dickerson |

Thomas A. Dickerson writes: Notwithstanding that recent empirical work suggests that disclosure-only settlements rarely, if ever, have any meaningful impact upon shareholder behavior, leading, perhaps, to the unfortunate conclusion that the only thing of any value which is exchanged is a general release running to defendants, there are circumstances under which such settlements may be viable. In fact, recently, several courts in New York, North Carolina and Delaware have carefully reviewed proposed disclosures and found them sufficiently material to warrant approval of a proposed disclosure-only settlement.

Al Sharpton addressing media outside the U.S. Supreme Court after arguments in the case Fisher v. University of Texas at Austin, on December 9, 2015.  Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Words Matter, Facts Matter and So Does Leadership

By Michael A. Hardy |

Michael A. Hardy writes: In a Sept. 1 perspective, Sol Wachtler, New York state's former Chief Judge, discussed his concern over the debate regarding statues, monuments and memorials that honored Confederate general's and the nation's founding fathers. While the topic is certainly worthy of speech and debate, Professor Wachtler strays far from the relevant argument when he attempts to equate Reverend Al Sharpton to the neo-Nazi marchers in Charlottesville.

Philip Berkowitz

DOL Flip-Flop: SOX's Anti-Retaliation Provisions Apply to Overseas Conduct After All

By Philip M. Berkowitz |

In his Employment Issues column, Philip M. Berkowitz discusses a late-August decision with potentially far-reaching implications for foreign and multinational employers, in which the U.S. Department of Labor Administrative Review Board (ARB), held that SOX's whistleblower provisions have extraterritorial application—in apparent contradiction of appellate court and indeed prior ARB case law.

James A Brown

SDNY Automatic Referrals and Pre-Mediation Discovery

By James A. Brown |

James A. Brown writes: By issuing discovery protocols for its automatic referrals, the SDNY wisely recognized the value of pre-mediation disclosure, especially when no formal discovery precedes the mediation. Having established its discovery protocols, the SDNY took the necessary steps to create meaningful early intervention mediations.

Michael B. Gerrard and Edward McTiernan

Uncertainty About Hydrologically Connected Groundwater Has Implications in New York

By Michael B. Gerrard and Edward McTiernan |

In their Environmental Law column, Michael B. Gerrard and Edward McTiernan write: Federal district courts are divided over whether the Clean Water Act prohibits discharges to groundwater when the subsurface receiving water is so closely connected to waters of the United States that it serves as a direct conduit to introduce pollutants to surface waters. Because the failure to have a permit for a regulated discharge can lead to significant compliance obligations, material fines and penalties and can be enforced by private citizens, this unresolved question has far-reaching consequences.

MAdden

Exceptions and Exclusions Benefit Religious Institutions and Clergy

By Barry Black and John B. Madden explore "Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos," where the court upheld the validity of a statutory exception to the prohibition against discrimination on the basis of religion contained in Title VII of the Civil Rights Act of 1964, and further discuss other examples of the law's special treatment of religious institutions and clergy members. |
Lewis R. Clayton and Eric Alan Stone

Should Patent Holder's Misconduct Be Relevant to Inequitable Conduct?

By By Lewis R. Clayton and Eric Alan Stone |

Lewis R. Clayton and Eric Alan Stone report on the "Regeneron Pharmaceuticals v. Merus" case and other cases addressing whether litigation misconduct (as opposed to misconduct during prosecution) can render a patent unenforceable, and they provide guidance for practitioners.

Kathleen A. Scott

Correspondent Banking Update

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott highlights some of the recent efforts by international organizations to attempt to address the increasing trend for some banks terminating their banking account relationships with banks in certain areas of the world.

William M. Pinzler

'Masterpiece Cakeshop' and Sincerity of Beliefs: the Aftermath of 'Hobby Lobby'

By William M. Pinzler |

William M. Pinzler discusses "Masterpiece Cakeshop and Jack Phillips v. Colorado Civil Rights Commission and Craig and Mullins," a case the Supreme Court has granted certiorari which presents the question of whether applying Colorado's public accommodations law to compel a "cake artist" (a baker) to prepare a cake in honor of a customer's gay wedding violates his "sincerely held religious beliefs" about gay marriage and thus violates the Free Speech or Free Exercise clause of the First Amendment.

Richard Raysman and Peter Brown

In Growing Analytics Market, Verbal Agreements Can Backfire

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown write: Database analytics providers enter a nascent market without dominant legacy providers controlling vast swaths of market share and holding an iron grip over all forms of usable technology. This arguably creates a greater incentive for prospective providers to eschew contractual obligations and misappropriate confidential information as a means of immediately satisfying snowballing demand. In this environment, the possibility for circumvention of contractual obligations is heightened further when such purported obligations are memorialized merely in an oral agreement.

C. Raymond Radigan and Jennifer F. Hillman

Considerations When the Proposed Article 17-A Guardian May Not Be Suitable

By C. Raymond Radigan and Jennifer F. Hillman |

In their Trusts and Estate Law column, C Raymond Radigan and Jennifer Tillman discuss the situation when the proposed guardian of an alleged incapacitated person may not be suitable or appropriate to act as guardian, and they examine practical ways to tailor the guardianship to best protect the AIP.

Shepard Goldfein and James A. Keyte

Big Data, Web 'Scraping' and Competition Law: The Debate Continues

By Shepard Goldfein and James Keyte |

Antitrust Trade and Practice columnists, Shepard Goldfein and James Keyte write: Big Data is a complex issue—different firms and individuals have different access to different sources of data, and want to use that data in different ways. This complexity means that the legality of some methods of culling and using Big Data remains unclear. A recent case signals a shift in the way courts may be viewing attempts to restrict one method of accumulating data that has sparked recent legal debate: data scraping.

Michael Hoenig

'The Impropriety of Punitive Damages in Mass Torts': Highlights, Observations

By Michael Hoenig |

Complex Litigation columnist Michael Hoenig writes: When a scholar of such superior mettle as Cornell Professor of Law Emeritus James A. Henderson Jr. warns against the law crossing the bounds of propriety in mass tort case handling, we ought to pay attention. He recently wrote that despite the legitimacy of punitive damages and mass torts when employed separately, "loud warning signals should sound when, as with drinking and driving, they are combined."

Joseph Lipari

Sales Tax Case on Phone Books Reminder to Taxpayers Shipping Art

By Joseph Lipari |

Tax Appeals Tribunal columnist Joseph Lipari writes that a recent decision that deals with the sales tax of "yellow pages" phone books, an industry with few participants, may seem irrelevant. But the particular issue in the case, whether certain commercial delivery services qualified as "common carriers," is of high importance to sellers and buyers of art. The narrow definition of the term advanced by the Tax Department and accepted by the ALJ is likely to dictate how art shipments will be arranged for the foreseeable future.

Ben Rubinowitz and Evan Torgan

Confronting the Immigration Bias in Jury Selection

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: From a procedural point of view, the real goal of jury selection for the trial attorney is to preserve peremptory challenges. Careful use of both leading and open-ended questions can pave the way for insightful answers and, ultimately, confirm the prejudice of a juror for a "cause" challenge.

Daniel Walfish

Other People's Money: SEC Disgorgement After 'Kokesh'

By Daniel R. Walfish |

Daniel Walfish analyzes an important but little-discussed consequence of the SCOTUS decision 'Kokesh v. SEC.'

Andrea M. Alonso and Kevin G. Faley

Capacity of Infants to Testify

By Andrea M. Alonso and Kevin G. Faley |

Andrea M. Alonso and Kevin G. Faley discuss cases illustrative of the determination a court makes in weighing whether to accept a child's testimony.

Timothy M. Tippins

Identifying Bias in Custody Evaluations

By Timothy M. Tippins |

Matrimonial Practice columnist Timothy M. Tippins writes: Justice Potter Stewart famously quipped that although he could not define pornography, "I know it when I see it." Bias presents the opposite problem. It can be readily defined but you do not necessarily know it when you see it. Given that custody evaluators are as susceptible to bias as anyone else and because bias can destroy the reliability of their conclusions, it is imperative that lawyers and judges be able to recognize its telltale signs.

U.S. Treasury Department in Washington.

Trump Treasury's Blueprint for Financial Regulation in the Banking World

By George W. Madison, Michael E. Borden and Michael D. Lewis |

George W. Madison, Michael E. Borden and Michael D. Lewis write: It is appropriate to reconsider and adjust regulations enacted in the midst of a crisis. Even though Dodd-Frank has helped stabilize the financial system in many ways, it is no surprise that it has also led to unintended consequences. Importantly, a recent Treasury report seems to acknowledge this nuance.

Benjamin Dynkin and Barry Dynkin

Crossing With Digital Forensic Evidence

By Benjamin Dynkin and Barry Dynkin |

Benjamin Dynkin and Barry Dynkin write: We live in a truly digital age, where we fill 250,000 Libraries of Congress per day. Naturally, this data has begun to seep into our legal system, but lawyers and litigants have not paid close enough attention to how that data can be used. With a clever forensic technician, an attorney can request access to and analyze a nigh unlimited amount of data, which can be used to impeach a witness's credibility to devastating effect.

Eva Talel and Richard Siegler

Obstacles to Converting Co-ops to Condominiums

By Eva Talel and Richard Siegler |

Cooperatives and Condominiums columnists Eva Talel and Richard Siegler discuss the significant deterrents to converting co-ops to condominiums, in the hope that, for these co-op buildings which desire to do so, solutions can be found to remove the economic uncertainty (and therefore risk) which generally deters even consideration of such conversions.

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

SCOTUS Rejects Tactic Used to Secure Immediate Review of Class Cert. Denials

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty Jr. discuss the U.S. Supreme Court's decision in 'Microsoft v. Baker', which resolved an important jurisdictional issue concerning class action procedure, holding that a federal court of appeals does not have jurisdiction under 28 U.S.C. §1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.

U.S. Patent & Trademark Office in Washington, D.C.

Deep Dive: Does the PTO's Inter Partes Review Violate the Constitution?

By Mark Baghdassarian, John Dillon and Matthew Olinzock |

Mark Baghdassarian, John Dillon and Matthew Olinzock write: The U.S. Supreme Court has continued its recent trend to enter the foray of patent litigation by granting certiorari in Oil States Energy Services v. Greene's Energy Group. This time the court will decide whether inter partes reviews, an adversarial process used by the U.S. Patent and Trademark Office to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury when the PTO invalidates patents using this process.

Jeffrey L. Schulman

Insurance Coverage Considerations in the Wake of Harvey

By Jeffrey L. Schulman |

Jeffrey L. Schulman writes: As difficult as it is to imagine now, the waters in Houston and surrounding areas will eventually recede and the financial toll of the devastation will then begin to be tallied. That will undoubtedly include lawsuits faced by building owners, real estate development and management companies, and the directors and officers of buildings in Harvey's aftermath. For those businesses facing potential liability from negligence and breached duties claims, liability insurance may be an important asset to help offset defense costs and settlement or judgment payments.

Elkan Abramowitz and Jonathan Sack

The 'Right to Control' Theory in Mail and Wire Fraud Prosecutions

By Elkan Abramowitz and Jonathan Sack |

White-Collar Crime columnists Elkan Abramowitz and Jonathan Sack discuss SDNY Judge Loretta Preska's recent decision in 'United States v. Davis', in which she analyzed the Second Circuit's "right to control" decisions and concluded that a guilty verdict should be set aside. The authors then address practical steps defense counsel can take when facing a mail or wire fraud prosecution premised on this sometimes elusive doctrine.

Anthony E. Davis

Threading the Needle: Protecting Client Information From U.S. Border Searches

By Anthony E. Davis |

Professional Responsibility columnist Anthony E. Davis explores potential threats to lawyers whenever they travel internationally while carrying electronic devices containing client confidential information: official border searches, as well as either private- or state-sponsored hacking. What is the scope of the duty to protect client information when on the move, and what steps do lawyers need to take to comply?

Mark A. Berman

Litigation Holds and Preservation

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman writes: A series of well-reasoned decisions recently issued by the New York County Supreme Court plumbed the nature of litigation holds and the preservation of electronically stored information (ESI), giving guidance to litigators with excellent practice tips.

Eve I. Klein and Christina Joy F. Grese

NYC Employers: If You Can Make It Here, You Can Make It Anywhere!

By Eve I. Klein and Christina Joy F. Grese |

Eve I. Klein and Christina Joy F. Grese write: Companies doing business in the Big Apple over the last few years have had to implement an ever-expanding array of employment law mandates not seen in many other jurisdictions, which can be daunting for new and seasoned New York City employers alike.

Evan Krinick

Diverse Legal Issues Can Arise in Insurance Fraud Prosecutions

By Evan H. Krinick |

Insurance Fraud columnist Evan H. Krinick writes: Even clear proof of a false claim and a criminal defendant's guilt does not necessarily mean that a criminal insurance fraud case will proceed uneventfully to a conviction, or withstand a defendant's appeal. In some instances, a defendant who has filed a false claim with intent to defraud an insurance company will file a motion before or after the verdict, or will appeal the verdict (or guilty plea), resulting in some rather interesting—and potentially legally significant—court decisions.

Raymond C. Green

A Chuppah and the Scaffold Law: Not a Match

By Raymond C. Green |

Raymond C. Green reviews a recent case where a worker for a florist was injured falling from a ladder while disassembling a chuppah used in an earlier wedding ceremony. The court agreed with the worker that the chuppah was a "structure" under Labor Law §240(1), but did not address other elements requisite to constitute a valid claim.

Adam R. Shaw

Court Decides Finality of Settlement and Service of Process Issue

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw discusses a case evaluating when a settlement is final for enforcement, and a decision exploring how service of process affects the timeliness of removal of a case to federal court.

Antonia Apps

'U.S. v. Martoma': The End of the 'Newman' Personal Benefit Test

By Antonia M. Apps |

Antonia M. Apps analyzes the Second Circuit's decision in 'U.S. v. Martoma', where the court held that the gloss of a "meaningfully close personal relationship" as part of the personal benefit test was "no longer good law," and that liability requires the government to prove that the tipper expected the tippee would trade on the information and the tip "resembled trading by the insider followed by a gift of the profits" to the tippee.

House, car and family protected with an umbrella by an insurer - insurance concept

5 Things Insurers' GCs and Their Boards Must Know for Cybersecurity

By Joshua A. Mooney and Richard Borden |

Cyberregulation and the meaning of reasonable cybersecurity measures are changing rapidly. Insurance companies are in the red zone for new regulatory schemes and heightening expectations of duties of care that are well beyond the responsibility of a company's CIO, such as the approach outlined in the NYDFS regulation.

Martin Flumenbaum and Brad S. Karp

Fifth Amendment Prohibits Testimony Compelled by Foreign Sovereign

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp analyze a recent case where the court wrestled with the modern world's reliance on foreign governments to help investigate and develop cases but declined to allow the government's investigatory needs to outweigh defendants' constitutional rights.

Edward E. Neiger

Food for Thought: Supermarket, Grocer and Distributor Chapter 11 Filings

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger reports on filings in the grocery and food distribution sector as companies struggle in the face of pricing fluctuations and increasing online competition.

Jeffrey Sussman

How to Market and Promote Your Law Practice

By Jeffrey Sussman |

Jeffrey Sussman writes: Too many attorneys do not let the world know of important cases they have won, of successful deals they have negotiated, or challenges to judicial decisions that may result in new precedents. Such accomplishments should be touted not just to the legal community, but also to spheres of influence that can enhance one's professional reputation.

Rupert M. Barkoff

The Changing Face of Franchising

By Rupert M. Barkoff |

Franchising columnist Rupert M. Barkoff discusses the changing franchisee population, with the growth of multi-unit, and in some cases, multi-system franchisees; the changing values and business objectives as professional businesspersons take over; and of course, changing technology.

Stephen Treglia

Data Shielding Methods Attracting Court Attention

By Stephen Treglia |

In his E-Communications column, Stephen Treglia writes: Data-protection methodology has been with humans for thousands of years, but only recently has it increasingly become a ubiquitous part of our technology-driven lives. Inevitably, legal issues have begun to arise regarding this form of technology. Least surprising, search-and-seizure issues regarding law enforcement's attempts to circumvent data-protection methods are at the forefront. The first-half of 2017 has produced some interesting results and court analyses

Albert J. Pirro, Jr.

Improving Spot Zoning Challenges

By Albert J. Pirro Jr. |

Albert J. Pirro Jr. writes that although challenges to spot zoning—zoning amendments which are not in accord with a comprehensive or well considered plan—are usually unsuccessful, some "outside the box" approaches should be considered.

Thomas G. Rohback and Brooke Oppenheimer

Cyber Ransoms: Mr. Smith Attacks HBO's Loot Train

By Thomas G. Rohback and Brooke Oppenheimer |

Thomas G. Rohback and Brooke Oppenheimer write: The recent cyber-attack on HBO should be a wakeup call to both businesses and insurers. While the amount sought by the hackers called "Mr. Smith"—roughly $6 million in bitcoin—is not a huge amount for HBO, it is significantly more than the amounts that have typically been demanded in recent cyber extortion demands.

Conrad Teitell

Chutzpah Charitable Gift Valuation Case of the Decade

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell reviews a recent case where a claimed $33 million charitable deduction—a remainder interest in real property given to a university—was disallowed because the donor failed to state the contributed property's cost on Form 8283, and according to the Tax Court, was about $29.5 million too high anyway.

F. Paul Greene

Grace Period Expires for Cybersecurity Regulations in NY: What Comes Next?

By F. Paul Greene |

F. Paul Greene writes: The day has finally arrived for the financial services industry in New York. The new cybersecurity regulations issued by the New York State Department of Financial Services are officially in force, and for the first time, a single state is regulating cybersecurity on a potentially global scale, and it has done so via the regulatory process, not legislative action.

Abby Tolchinsky and Ellie Wertheim

Strategies for Handling High Conflict in Negotiations

By Abby Tolchinsky and Ellie Wertheim |

Mediation columnists Abby Tolchinsky and Ellie Wertheim write that they are often regaled with stories of high conflict divorce cases where the parties "never could have mediated." But contrary to conventional wisdom, cases presenting deeply fraught dynamics and complex fact patterns are routinely resolved in direct negotiations.

Strategies for Defending Low-Impact Collisions With Fusion Surgeries in NY

By Nicholas P. Hurzeler |

Nicholas P. Hurzeler writes: The spread of fusion surgeries in personal injury cases in recent years, in New York and across the country, has been remarkable. More and more plaintiffs are undergoing cervical and lumbar fusion surgeries. Even in cases involving very minor motor vehicle collisions, and questionable causation claims, the odds of a verdict in plaintiff's favor is substantial.

Helen Bertelli

Three Ways Virtual Reality Is Already Shaping the Legal Industry

By Helen Bertelli |

In her Law Firms column, Helen Bertelli writes that while "Ready Player One" may be fiction, the virtual reality industry is not: it's projected to generate $30 billion in revenue by 2020; $150 billion if you count augmented reality. If that's not enough to keep VR on your radar, consider its potential to generate billable work, its use for marketing and its potential for use in the courtroom.

Dolores Gebhardt

Charging Liens in Matrimonial Actions: A Vanishing Right

By Dolores Gebhardt |

Dolores Gebhardt writes: For matrimonial attorneys, getting paid—rarely an easy feat—has become more difficult. An unintended consequence of the 2016 amendments to the Domestic Relations Law has rendered the common law and statutory right to a charging lien unenforceable in many matrimonial cases.

Robert D. Lang and Lenore E. Benessere

Alternative Fee Arrangements' Challenge to the Billable Hour

By Robert D. Lang and Lenore E. Benessere |

Robert D. Lang and Lenore E. Benessere write: Like Blockbuster succumbing to Netflix or Kodak film being replaced by digital, attorneys do not want their firm to become a case study for how the billable hour was replaced by alternative fee arrangements. While the complete rejection of the fee-for-service model is probably an overreaction, practitioners should learn from the paradigm shift at Microsoft how to successfully enter into, and profit from, AFAs.

Peter M. Fass

IRS Issues Regulations on Disguised Sale Rules

By Peter M. Fass |

Real Estate Securities columnist Peter M. Fass reviews new IRS regulations that will significantly limit a contributing partner's ability to be allocated a disproportionate share of a partnership's debt, thereby limiting the opportunity for such partner to receive tax-free cash distributions from a partnership related to a contribution of appreciated property.

James Yellen, Barry R. Temkin and Atea Martins

Understanding Insurance Issues in Securities Arbitration and Mediation

By James Yellen, Barry R. Temkin and Atea Martin |

James Yellen, Barry R. Temkin and Atea Martin write: Insurance issues often influence the outcome of securities arbitrations and mediations, yet the workings of errors and omissions insurance is not fully understood by many lawyers, arbitrators and mediators. In fact, insurance information is generally not disclosable in securities arbitration, and is considered confidential information by many broker-dealers and insurance industry professionals.

Elai Katz

Efficiencies Defenses to Merger Challenges

By Elai Katz |

Antitrust columnist Elai Katz writes: In a thorough opinion evaluating the legality of a health insurance merger under antitrust law, the D.C. Circuit considered whether and when efficiencies may offset competitive concerns. Rejecting arguments that anticipated health care cost reductions should spare Anthem's proposed acquisition of Cigna from an antitrust challenge, a split panel upheld an injunction blocking the proposed merger because it was likely to lessen competition without offsetting benefits.

Michael Rikon

More on 'Murr v. Wisconsin'

By Michael Rikon |

Condemnation and Tax Certiorari columnist Michael Rikon analyzes the Supreme Court's decision agreeing with the state's holding that two lots adjacent to the St. Croix River should be considered as one parcel for a regulatory takings analysis, a holding that unfortunately creates a vague multifactor balancing test.

Peter A. Crusco

Beyond Borders: Competing Sovereigns and Double Jeopardy

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco writes: Although Internet-based crime has grown exponentially, and the opportunity for conflict and cross-over among the various impacted sovereignties and their investigative and prosecutorial agencies exists, the courts' application of well established legal rules prevent unwarranted successive criminal prosecutions for the same criminal transactions unless established legal exceptions apply.

Michael Marra

M&A in the Fashion Industry: An Employment Law Perspective

By Michael R. Marra |

Michael R. Marra writes: Although deals differ in emphasis, labor and employment issues tend to receive less attention in a fashion or retail acquisition than big-ticket items like financial statements, material contracts, intellectual property, etc. However, ignoring labor issues comes with meaningful risks, not only for buyers, but also for prospective targets thinking about "cleaning up" their profile prior to seeking acquisition partners.

Sidney Kess

Moving to Another State

By Sidney Kess |

In his Tax Tips column, Sidney Kess reviews the circumstances that allow a taxpayer to deduct the costs of moving, possible changes to deductions for state and local taxes, and the determination of residency for state income tax purposes.

Hightailing to Better Retailing Options

By Alan Behr |

Alan Behr writes: For a company used to being in a real place, employing real people to sell real things, virtual retailing can come as a legal and business shock at first. The competition is just as intense, and Amazon is out there, in front of everybody, but it expands your market from where you are to, potentially, anywhere that anyone can be. The key to legal success is the same as with traditional retailing, only more so: anticipate the likely problems and be ready with solutions before those problems arise.

Thomas J. Hall

Attorney Fee Awards in Shareholder Derivative Actions

By Thomas J. Hall |

In his Commercial Division Update, Thomas J. Hall discusses recent decisions evaluating claims for expenses and attorney fees that may be awarded, at the discretion of the court, when a plaintiff shareholder is successful in a derivative lawsuit brought on behalf of a corporation.

Steven L. Kessler

SCOTUS Limits Criminal Forfeiture in 'Honeycutt'

By Steven L. Kessler |

Steven L. Kessler writes that with the enactment of the Civil Asset Forfeiture Reform Act of 2000, Congress sought to steer federal prosecutors to criminal forfeiture over civil, believing that the risk of abuse would be reduced because a criminal conviction is required before a defendant's property can be forfeited. Unfortunately, it turned out that greater reliance on criminal forfeiture increased abuses in that area as well. The Roberts-led Supreme Court hinted at some dissatisfaction with the state of criminal forfeiture law in recent decisions, but the rifle shot came in its June 5 decision in 'Honeycutt v. United States'.

In Defense of Elder Law

By Daniel G. Fish |

Elder Law columnist Daniel G. Fish writes: A recent column in the New York Times questioned the ethics of advising clients about Medicaid eligibility. The planning is pejoratively described as "the mini-industry of lawyers and others who help people arrange their financial lives so they don't spend every last dime on a nursing home." Once again, it is necessary to explain the circumstances that lead seniors to seek valid legal representation.

David J. Kaufmann

Franchisors as 'Joint Employers': An Update

By David J. Kaufmann |

Franchising columnist David J. Kaufmann writes: It appears that, across the board, the "progressive" attempt to characterize franchisors as the joint employers of their franchisees' employees is suffering a decisive retreat at the hands of federal and state legislatures and the judiciary, and may be doomed altogether once Trump-appointed NLRB board members come to constitute a majority.

Adam Pollock and Randall Fox

FCA Cases: Protect Claims by Relying on NY's Favorable Pleading Standard

By Adam Pollock and Randall Fox |

Adam Pollock and Randall Fox write that in a little-noticed provision at the end of New York's False Claims Act, the New York legislature provided for a lower pleading hurdle when asserting violations of New York's FCA in state court. Accordingly, whistleblowers should strongly consider filing separate federal and state qui tam actions (or seeking to remand improperly removed cases) in order to benefit from the New York FCA pleading standard at the dismissal stage.

Robert W. Clarida and Robert J. Bernstein

Of Fair Use, Rastafarian Photos, and Rule 12(b)(6)

By Robert W. Clarida and Robert J. Bernstein |

Copyright Law columnists Robert W. Clarida and Robert J. Bernstein write: Appropriation artist Richard Prince is back in court this summer for alleged copyright infringement, and the initial proceedings do not augur well for his current efforts to defend his "recontextualizing" of another's photograph as a fair use.

Elizabeth A. Edmondson and Jenna E. Ross

Lost Profit Damages Three Years After 'Biotronik'

By Elizabeth A. Edmondson and Jenna E. Ross |

Elizabeth A. Edmondson and Jenna E. Ross write: In March 2014, the Court of Appeals issued a 4-3 decision in 'Biotronik, A.G. v. Conor Medsys. Ireland' that—according to the dissent and considerable commentary—threatened to upend previously settled New York damages law. Three years later, however, no sea change in the New York law of lost profit damages appears to have occurred.

Kara I. Schechter Rakowski and Alexa Englander

Restrictions in Certain Anti-Harassment Districts Could Impede Development

By Kara I. Schechter Rakowski and Alexa Englander |

Kara I. Schechter Rakowski and Alexa Englander write: The development of multiple dwellings in Special Anti-Harassment zoning districts located in Manhattan has historically come along with its own special kind of red tape. In the last few decades, restrictions on demolition and material alterations have made it very difficult for development in certain special districts. Within the last two years, however, the NYC Department of Housing Preservation and Development has started to enforce a previously overlooked provision of the Zoning Resolution which has presented even more obstacles for developers to navigate in order to develop sites in the Special Hudson Yards, Clinton, West Chelsea and Garment Center districts in Manhattan.

Edward M. Spiro and Judith Mogul

Russian Intrigue Meets the Hearsay Rule

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: On May 12, 2017, the United States settled its asset forfeiture and money-laundering case against Prevezon Holdings just days before that case was scheduled to go to trial, with both sides claiming the $5.9 million settlement as a victory. The facts behind 'U.S. v. Prevezon Holdings' were the stuff of spy novels, but the far from headline-grabbing questions concerning application of the hearsay rule to foreign records the government intended to introduce at trial also led to a hearsay analysis of note.

Shari Lewis - Rivkin Radler.12/13/2016

Social Media Grabs the U.S. Supreme Court's Attention

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis writes: Near the end of the U.S. Supreme Court's past term, the court issued a decision in which the majority opinion recognized the importance of social media in most people's lives. The ramifications of the court's statements about social media already are reverberating in New York courts.

Daniel Pilarski

ExxonMobil Sanctions Penalty: Lessons for Companies and Practitioners

By Daniel Pilarski |

Daniel Pilarski sees two important lessons from the Treasury Department's $2 million penalty against ExxonMobil for its dealings with a sanctioned officer of a Russian company, even though the company itself was not subject to these sanctions: Conduct diligence and get representations and covenants not only from counterparty companies, but also the company's officers and directors. And exercise caution in relying on informal guidance in dealing with sanctions.

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

Inability to Identify Invoices Does Not Mandate Dismissal of FCA Complaints

By David A. Koenigsberg |

David A. Koenigsberg writes that while six other circuits adopted what some call a "more lenient" pleading standard that permitted qui tam False Claims cases to go forward even when the complaint did not allege details of a false claim that was actually submitted, the Second Circuit had not directly addressed that issue until last month. The case provides guidance for how qui tam relators may satisfy the Rule 9(b) pleading standards in the absence of direct knowledge that false claims were actually submitted to the government.

Ilene Sherwyn Cooper

Variety Fare: Counsel Disqualification, Directed Accounting, Sua Sponte Review

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper: The past several months have witnessed significant decisions on a multitude of issues affecting the field of trusts and estates.

Conflict Between CPLR and Bankruptcy Code: A Dilemma for Lenders

By Nicole E. Schiavo |

Nicole E. Schiavo discusses the conflict between New York's legislation requiring mandatory settlement conferences in foreclosure actions and the Bankruptcy Code's prohibition against a creditor taking any act that can be construed as trying to collect a discharged debt from a debtor. Thus, if a foreclosure action is commenced against a borrower who previously received a discharge on their mortgage loan debt, the lender is left with a "Catch 22": comply with the CPLR and risk violating the Discharge Injunction, or vice versa.

Harvey M. Stone and Richard H. Dolan

Court Addresses Sentencing Issues and Suits Arising From State Proceedings

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review Judge Weinstein's imposition of a sentence of time served, well under the Guidelines range, in a narcotics case where defendant would be deported on completing his term of incarceration; Chief Judge Irizzary's grant of a §2255 petition where, under recent Supreme Court rulings, petitioner's prior offenses did not support a sentencing enhancement under the Armed Career Criminal Act; and more

Thomas A. Dickerson

New York State Class Actions: Taking a Stand for Labor

By Thomas A. Dickerson |

Thomas A. Dickerson writes: I have been writing about New York state class actions under CPLR Article 9 since 1979, and although the proper utilization of Article 9 has on occasion been problematic, there are moments when decisions can, indeed, be inspiring. The First Department's decision in 'Gold v. New York Life Insurance Company' is one of them.

Marcie Borgal Shunk

Future-Proofing the Law Firm

Law Firm Management columnist Marcie Borgal Shunk writes: As with any other attempt to prognosticate, the very premise of "future-proofing" a law firm is wrought with caveats and "what-if" scenarios. There is no magic bullet, no one size fits all solution. There are, however, a set of fundamental, intertwined elements that together will combine to determine the market position, financial health and, ultimately, sustainability of a law firm.

David M. Barshay

Written Notice of Accident

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay discusses what qualifies as "timely written notice" of an accident beyond a No-Fault Application N-F 2 form, and the continuing hot topic of the examination under oath/independent medical exam no-show defense.

Carrie Cohen

Recent Trials Show Importance of Investigating Cooperating Witnesses

By Carrie H. Cohen |

Carrie H. Cohen writes: Cooperation agreements long have offered defense lawyers a potentially powerful avenue of attack. But the typical line of attack on cross-examination of cooperating witnesses, using his or her own crimes and desire to avoid a long prison sentence to undermine the witness's credibility, should be part of a much broader strategy. Everything—employment history, prior convictions, marital records, litigation history—should be open for scrutiny.

Michael Hoenig

Class Arbitration: Who Decides, The Arbitrator or the Court?

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: The preemptive effect of valid arbitration agreements to preclude lawsuits in court, even class actions via arbitration clause class action waivers, has been reinforced by the U.S. Supreme Court time and again in recent years. But, what if there is an arbitration clause in the contract and the provision is silent about class arbitration? Is it an issue the arbitrator can decide or is viability of class arbitration an issue for a court to decide? That question was decided by the Eighth Circuit on July 28 as an issue of first impression in that circuit.

Margaret A. Dale and Mark D. Harris

The SEC Concludes That Digital Tokens May Be Securities

By Margaret A. Dale and Mark D. Harris |

In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris write: The flurry of recent Initial Coin Offerings have raised questions as to whether, and in what circumstances, virtual currencies and digital tokens may be considered securities whose offer and sale are subject to federal registration requirements. A recent report by the SEC cautioning investors that digital assets may be securities is a turning point for the token marketplace and other blockchain-based mechanisms of alternative fundraising.

Kevin G. Faley and Andrea M. Alonso

Consent, I Presume? VTL §388 and Permissive Use

By Kevin G. Faley and Andrea M. Alonso |

Kevin G. Faley and Andrea M. Alonso write that Vehicle and Traffic Law §388 establishes a rebuttable presumption that a vehicle owner consented to the operation of her vehicle by another party, and is therefore vicariously liable for the acts of the permitted driver, once a plaintiff meets the threshold requirement of proving a defendant's ownership of a vehicle. The burden then shifts to the defendant to offer "substantial evidence" that consent was neither given expressly or impliedly. While this seems pretty straightforward, this burden is fairly difficult to meet.

Shepard Goldfein and James A. Keyte

'A Better Deal' on Antitrust Enforcement: Can Democrats Catch the Populist Wave?

By Shepard Goldfein and James Keyte |

Antitrust Trade and Practice columnists Shepard Goldfein and James Keyte write: Although there was no meaningful proposal by Congress during the Obama administration to re-write the antitrust laws to make big "bad" once again, to regulate the pricing of lawful monopolists, or to use the antitrust laws as a tool for social and economic engineering, harkening back to the trust-busting days of old, the 2018 midterm elections beckon, and Congressional Democrats do not want to miss the populist wave a second time.

Joel Cohen

May the Government Communicate With a Represented Client?

By Joel Cohen |

Ethics and Criminal Practice columnist Joel Cohen writes: The question itself seems ridiculous, doesn't it? Of course, the answer has to be "no." Except … not really.

Richard Raysman and Peter Brown

Duped Into Wiring $5 Million? Cyber Insurance Could Cover It

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown write: Courts have begun to encounter a growing number of disputes over cyber insurance coverage, mostly relating to the scope of coverage, not to its existence. One recent example is the Southern District of New York's decision in 'Medidata Solutions v. Federal Insurance Co.'

Nominative Fair Use Under the Trademark Laws

By Howard Wintner |

Howard Wintner writes: The Second Circuit, and the district courts within it, have recognized the nominative fair use doctrine and used it for numerous years, including several district court decisions adopting the Ninth Circuit's test. However, prior to 2016, the Second Circuit had not endorsed either the Ninth or Third Circuit's test for nominative fair use.

Lawrence W. Newman and David Zaslowsky

SCOTUS Decisions Address a Lower Court Split, the FSIA and Personal Jurisdiction

By Lawrence W. Newman and David Zaslowsky |

International Litigation columnists Lawrence W. Newman and David Zaslowsky discuss two recent U.S. Supreme Court decisions in the area of international litigation and a personal jurisdiction decision that re-enforced earlier holdings that make it more difficult to assert jurisdiction over foreign parties.

Barry Kamins

Expanding the 'Wade' Hearing: New Police Identification Protocols

By Barry Kamins |

Criminal Law and Procedure columnist Barry Kamins reviews the new best practices for identification procedures by witnesses, which reflect the results of substantial scientific research in the area of memory, perception and recall.

New York Vacates Arbitral Award With Manifest Disregard Doctrine

By Claudia Salomon |

Claudia Salomon writes: In 'Daesang v. The NutraSweet Co.' (May 2017), the New York State Supreme Court partially vacated a $100 million International Chamber of Commerce arbitral award on the grounds of manifest disregard of the law. The decision has strategic implications for how parties will invoke that doctrine when contesting future awards, and it could also potentially affect New York's reputation as a seat for the reliable enforcement of international arbitral awards, and as a venue with courts that respect and support this alternative dispute resolution process.

David E. Schwartz and Risa M. Salins

NLRB's Acting GC, ERISA-Exempt Church Plans, FCA Seal Requirements

By David E. Schwartz and Risa M. Salins |

Labor Relations columnists David E. Schwartz and Risa M. Salins review U.S. Supreme Court decisions regarding whether the former acting general counsel of the National Labor Relations Board properly served in that role after his nomination to serve as its general counsel on a permanent basis; whether pension plans maintained by certain church-affiliated employers, but not established by a church, qualify for the church plan exemption under the ERISA; and whether qui tam whistleblower suits brought under the False Claims Act are subject to mandatory dismissal when the FCA's requirement to keep such complaints under seal is violated.

Brian J. Shoot

The Homeowners' Exemption

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot discusses who, precisely, are "owners" of "one and two-family dwellings" for the purposes of exemption from Labor Law §§240 and 241, and the two principal exceptions to the exemption.

Recent Decision Limits Liability of Condo Sponsor's Principal

By Joseph I. Farca |

Joseph I. Farca reviews Board of Managers of '125 North 10th Condominium v. 125North10', where the Second Department extended to a condominium sponsor's principals and members the rule which precludes claims against sponsors (construction defect, in the instant case) based on their alleged violations of the offering plan, merely by reason of those individuals' certification of the offering plan in accordance with the requirements of the Martin Act.

Drawing Fifth Amendment Adverse Inferences Against Corporate Defendants

By Jed I. Bergman and Cynthia M. Jordano |

Jed I. Bergman and Cynthia M. Jordano summarize the key principles courts generally apply in deciding whether to permit Fifth Amendment adverse inferences in civil suits against corporate defendants. To support drawing such adverse inferences, a plaintiff must satisfy three prerequisites. First, there must be independent evidence corroborating the inference. Second, the plaintiff must persuade the court to impute that inference to the corporate defendant. Third, the probative value of the inference must outweigh any unfair prejudice.

Christopher Dunn

The Coming Religion Wars

By Christopher Dunn |

Civil Rights and Civil Liberties columnist Christopher Dunn writes: Amid the tumult engulfing the White House and Congress, one easily loses sight of ominous developments emanating from the third branch of government. But the judiciary has been busy, and civil rights and civil liberties are under assault on many fronts. One of those fronts is the separation of church and state.

Michael J. Hutter

Notable Decisions From the 2016-2017 Court Term

By Michael J. Hutter |

Evidence columnist Michael J. Hutter takes a look at some of the less-heralded decisions from Court of Appeals and the four Appellate Division departments that will have a practical impact upon the trial of civil and criminal cases.

Closing Time: Protecting Your Interests When Your Hotel Purchase Fails to Close

By Joshua D. Bernstein and Kathleen M. Prystowsky |

Joshua D. Bernstein and Kathleen M. Prystowsky write: After putting so much time and resources into negotiating a purchase agreement, and recognizing that deposits for the sale of hotels can run in the millions of dollars, it is important to put significant effort into protecting the seller's rights throughout the implementation of the agreement. Such steps are crucial to lessen exposure should the transaction fail.

Jeffrey S. Klein and Nicholas J. Pappas

U.S. Supreme Court Clarifies ERISA's 'Church Plan' Exemption

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas review the debate in lower courts regarding the scope of the "church plan" exemption from ERISA and whether it applies to plans established by church-affiliated entities, such as hospitals and schools; explain the Supreme Court's holding in 'Advocate Health'; and offer some suggestions for church-affiliated employers to navigate the legal terrain of the "church plan" exemption.

CSX Attracts New CEO and Stock Price Rises Sharply

By Joseph E. Bachelder III |

Executive Compensation columnist Joseph E. Bachelder III writes: In 2017, CSX Corporation, a leading railroad company, paid or committed to pay (subject to certain conditions) over $200 million (including grant-date value of a stock option) to attract as its new chief executive officer E. Hunter Harrison, who has an extraordinary record in leading three major companies in the railroad industry.

George M. Heymann

Is The Scaffold Law's 'Strict Liability' Taking a 'Step' Down?

By George M. Heymann |

George M. Heymann writes: 'O'Brien v. Port Authority' appears to be an outlier among the numerous Court of Appeals decisions on the Scaffold Law. Although the majority notes that this case is one of limited application, because the staircase at issue was immovable and not subject to collapsing as are other protective devices, its determination that defendants' expert raised questions of fact sufficient to defeat a motion for summary judgment may have the unintended effect of opening a floodgate of defense experts in subsequent Labor Law §240(1) cases

Robert J. Anello and Richard F. Albert

Executing Search Warrants in the Digital Age: 'United States v. Wey'

By Robert J. Anello and Richard F. Albert |

White-Collar Crime columnists Robert J. Anello and Richard F. Albert look at a recent high-profile Fourth Amendment victory for the defense in 'U.S. v. Wey' in light of the Second Circuit's final opinion in 'U.S. v. Ganias,' as well as a recent decision in 'In re 650 Fifth Avenue and Related Properties,' which declined suppression despite agents' reliance on a search warrant having constitutional infirmities strikingly similar to those in 'Wey.'

Thomas A. Moore and Matthew Gaier

The Emergency Room Exception for Vicarious Liability

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write: While it has long been recognized that a hospital is vicariously liable for the physicians it assigns to patients where a patient seeks treatment not from a particular physician, but from the hospital, some decisions have strictly imposed all of the requirements of ostensible agency. However, this circumstance is not purely one of ostensible agency. Rather, it is a distinct exception that involves aspects of both ostensible agency and agency-in-fact.

H. Christopher Boehning and Daniel J. Toal

TAR Should Be Applied Before Keyword Searching, Court Says

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: Technology-assisted review, or TAR, is undoubtedly gaining traction in e-discovery practice in complex civil litigations and regulatory investigations. However, practitioners and judges still grapple with inconsistencies and unresolved issues regarding its use and applicability, in no small part due to a shortage of legal opinions on the topic and a lack of consistency in the decisions that do exist.

Alex Lakatos and Marc R. Cohen

Bringing Non-U.S. Defendants Into NY Court, Just Because They Wired Dollars?

By Alex Lakatos and Marc R. Cohen |

Alex Lakatos and Marc R. Cohen write: Most of the world's dollar transactions flow through correspondent bank accounts in New York. Thus, it is important to understand how using a New York correspondent account can subject a non-U.S. defendant to the jurisdiction of a New York court.

Hal R. Lieberman

The First Department's New Rules for Attorney Discipline

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman reports on the First Department's amended procedural rules, which incorporate by reference the new statewide rules set forth in Part 1240, but also contain important additions that either effectuate or amplify the statewide rules.

Thomas E.L. Dewey

'Standard' Provisions Not Implied Into Settlement Agreement

By Thomas E.L. Dewey |

Settlement and Compromise columnist Thomas E.L. Dewey writes: A recent Southern District of New York case offers the lesson that a writing other than a formal settlement agreement may constitute an enforceable agreement—even if one of the parties expects that additional "standard" provisions will be added to the agreement.

W. Todd Hicks

New York Takes the Lead on Cybersecurity Regulation

By W. Todd Hicks |

W. Todd Hicks writes: New York's groundbreaking cybersecurity rules offer a viable model for other jurisdictions to adopt, particularly as global cyberattacks make cyber defense an urgent matter.

Sharon M. Porcellio

Discovery of Mental Health Records, and Complex Issues Regarding Standing

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio reviews Magistrate Judge Marian Payson's consideration of whether a claim limited to garden variety emotional distress precludes discovery of the claimant's mental health records, and District Judge Lawrence Vilardo facing an array of substantive and procedural issues worthy of a law school exam in deciding whether a corporation not named in a contract had standing to proceed with its suit.

Arthur J. Ciampi

Partner Buy-Outs

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi discusses a Ninth Circuit decision that presents a number of useful criteria to apply in determining a "shareholder's" or "partner's" status and provides insight into the nature of transitions from equity to non-equity positions and the ramifications of such transitions for both the law partner and the law firm.

Hervé Gouraige

Federal Courts Lack Authority to Decide Insider Trading Criminal Cases

By Hervé Gouraige |

Hervé Gouraige writes: The federal courts since the 1960s have imposed criminal sanctions for insider trading violations, based on a statute that authorizes criminal sanctions for violations of rules promulgated by the SEC and an SEC regulation that prohibits, without defining, conduct we have come generally to call "insider trading." Yet, in 1812 the U.S. Supreme Court held that federal courts lack constitutional authority to define criminal conduct and decide common-law criminal cases. It is time for the federal courts to get out of the business of enforcing an administrative agency's rule as a crime.

Patrick M. Connors

Federal Courts' Compulsory Counterclaim Rule vs. New York's Permissive Rule

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors writes that a plaintiff might elect to sue in a federal court hoping to compel the defendant to interpose as a counterclaim any claim arising out of the transaction on which the plaintiff's claim is based. This would, in effect, deny the defendant an independent choice of forum on the counterclaim. This proposition was recently tested in 'Paramount Pictures Corp. v. Allianz Risk Transfer AG,' which is currently before the New York Court of Appeals.

Charlotte A. Biblow

Agency Proposes New Regulation on Perc Use by Dry Cleaners

By Charlotte A. Biblow |

State Environmental Regulation columnist Charlotte A. Biblow writes that about 70 percent of the dry cleaners located in the state still use perc as their solvent of choice, despite a 1997 regulation encouraging them to switch to alternate solvents. A new proposal would impose significant financial and management costs on dry cleaners, and have significant implications for their suppliers, workers, landlords and neighbors.

Andrea M. Alonso and Kevin G. Faley

Settlement Techniques: High-Low Agreements

By Andrea M. Alonso and Kevin G. Faley |

Andrea M. Alonso and Kevin G. Faley write: High-low agreements in tort cases are underutilized and often misunderstood, but they are an effective way to prevent a runaway verdict with potential exposure of personal and corporate assets while guaranteeing plaintiff a recovery in the event of a defense verdict.

Martin Flumenbaum and Brad S. Karp

Court Applies Different Principles When Interpreting Injury in Fact

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: Although it is "first and foremost of standing's three elements," in the words of the Supreme Court, injury in fact is not always analyzed consistently: Two opinions handed down in May and June by the circuit appear to apply different principles in interpreting injury in fact. Perhaps as a result of their different analyses, the opinions ordered different appellate dispositions.

Robert C. Scheinfeld

Be Sure You Have a Rational Basis: Federal Circuit Addresses Attorney Fees

By Robert C. Scheinfeld |

Patent and Trademark Law columnist Robert C. Scheinfeld reviews the Federal Circuit's recent examination of three cases to determine whether each was exceptional such that an award of attorney fees was merited in the wake of a 2014 Supreme Court decision that the Federal Circuit's standard for an exceptional case was too rigorous.

Carlos J. Cuevas

Continuing Concealment Doctrine and Bankruptcy Code Section 727(a)(2)(A)

By Carlos J. Cuevas |

Carlos J. Cuevas discusses the continuing concealment doctrine, which extends the statute of limitations period beyond one-year if a debtor has engaged in concealing assets.

Ken Strutin

Technological Inequality and the Information Poor

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Without membership in the Information Society, people become irrelevant, their search for knowledge hopeless.

Jacob Inwald

Residential Foreclosures: Reverse Mortgages Now Covered in New York

By Jacob Inwald |

Jacob Inwald of Legal Services NYC writes: Important changes governing pre-foreclosure notices and settlement conferences for reverse mortgages were signed into law on April 20, 2017, requiring 90-day pre-foreclosure notices in all reverse mortgage foreclosures and requiring settlement conferences in many reverse mortgage cases.

Francis J. Serbaroli

A Primer on Senior Living Facilities

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli of Greenberg Traurig reviews the various types of supportive housing and assisted living facilities licensed and regulated in New York state. He notes that these types of facilities enable more and more senior citizens to “age in place” in their own homes with appropriate medical and social support, rather than spending their remaining years in nursing homes.

Robert S. Kelner and Gail S. Kelner

An Analysis of 'O'Brien v. Port Authority'

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert Kelner and Gail Kelner discuss ‘O’Brien v. Port Authority,’ where a divided Court of Appeals stepped into a battle of the experts in a construction site accident case. They conclude this to be a case narrowly limited to its facts and “not a game changer in any way.”

Nicholas M. De Feis and Philip C. Patterson

The Global Reach of the U.S. Computer Intrusion Law

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

In their International Criminal Law and Enforcement column, Nicholas De Feis and Philip Patterson use the Eastern District case 'U.S. Gasperini' to illustrate the global reach of U.S. computer intrusion laws. They write that the opinion demonstrates how, as technological innovation increasingly blurs any remaining lines between a computer and other electronic devices, U.S. computer anti-intrusion laws may eventually come to cover conduct involving virtually every electronic device in the world.

Non-Residential Tenant Harassment Law Makes 'Self-Help' Eviction Even Riskier for NYC Commercial Landlords

By Jesse B. Schneider |

Jesse B. Schneider of Davis & Gilbert writes: If attorneys were already hesitant to advise commercial landlord clients to exercise peaceable self-help, legislation enacted Sept. 26, 2016 by New York City Mayor Bill de Blasio may have just ended any lasting uncertainly. But courts are still struggling with how and when to enforce the new statute.


Howard Epstein and Theodore Keyes

SEC Disgorgement: Is It Insurable?

By By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard Epstein and Theodore Keyes discuss 'Kokesh v. SEC,' where the U.S. Supreme Court held that the SEC's use of disgorgement of profits as a remedy in an enforcement action constitutes a penalty that is subject to the federal five-year statute of limitations. They write: The question at issue for the Kokesh court was whether SEC disgorgement is a penalty. The question for the insurance community is whether it is insurable. The question for us is whether these two issues may overlap.