Expert Analysis

Jeffrey S. Klein and Nicholas J. Pappas

Class Action Waivers in Arbitration Agreements

By Jeffrey S. Klein and Nicholas J. Pappas |

Employment Law columnists Jeffrey S. Klein and Nicholas J. Pappas address the question of whether class-action and collective-action waivers in employment arbitration agreements violate the National Labor Relations Act or are enforceable under the Federal Arbitration Act and how that question has split the federal circuits.

Barry Kamins

Key Provisions of New Criminal Justice Legislation

By Barry Kamins |

Criminal Law and Procedure columnist Barry Kamins reviews new criminal justice legislation enacted in the last session, amending the Penal Law, Criminal Procedure Law and other related statutes as well as new laws that amend the definition of certain crimes and increase penalties for others.

Erika Collins

U.S. Employers Offer Cutting-Edge Family Benefits to Stay Competitive

By Erika Collins |

Erika Collins, of Proskauer Rose, discusses cutting-edge employment benefits—another opportunity for U.S. companies to compete for talent. The article discusses egg-freezing, adoption, and surrogacy as well as the underlying challenges that U.S.-based multinational companies face when rolling out these programs globally.

Robert C. Scheinfeld

Federal Circuit Addresses Inventorship and Patent-Eligible Subject Matter

By Robert C. Scheinfeld |

Robert C. Scheinfeld, in his Patent and Trademark Law column, discusses two precedential decisions issued by the U.S. Court of Appeals for the Federal Circuit within the last several weeks, on the topics of inventorship (how does one qualify as an inventor?) and patent-eligible subject matter (what is too abstract to qualify for a patent?).

David Wirtz and Orit Goldring

Back and Front Pay Under Title VII and State, City Laws: for Judge or Jury?

By David Wirtz and Orit Goldring |

David Wirtz, of Littler Mendelson, and Orit Goldring, of The Goldring Firm, analyze questions in employment litigation relating to awards of back pay and front pay. What kinds of claims for relief go to the judge and what claims go to the jury depends on what substantive law is at issue, what relief is sought, and whether the relief is being sought in federal or state court.

Hal R. Lieberman

New Rules for Attorney Disciplinary Matters: Informal Proceedings

By Hal R. Lieberman |

Hal R. Lieberman, in his Attorney Discipline column, explores informal proceedings, which he writes is simply another way of saying that a committee has determined, after investigation, to impose a private, confidential sanction upon a lawyer who violated, or came close to violating, a Rule of Professional Conduct, but the infraction was not so serious as to warrant charges, a formal proceeding, and potential public discipline.

Martin Flumenbaum and Brad S. Karp

The Second Circuit in the Supreme Court

By Martin Flumenbaum and Brad S. Karp |

Martin Flumenbaum and Brad S. Karp review the performance of the U.S. Court of Appeals for the Second Circuit in the Supreme Court. Six of the Supreme Court's 80 merits decisions this term arose out of the Second Circuit, and the column explores those cases and compares the reversal rates with other circuits.

Thomas A. Dickerson and Leonard B. Austin

New York State Class Actions in 2016

By Thomas A. Dickerson and Leonard B. Austin |

Second Department Justices Thomas A. Dickerson and Leonard B. Austin review a number of trial court and appellate court decisions rendered in 2016 interpreting CPLR Article 9, New York State's class action statute.

Ilann Margalit Maazel

Malicious Prosecution and Fair Trial Claims in a Section 1983 Case

By Ilann M. Maazel |

Civil Rights Litigation columnist Ilann M. Maazel analyzes 'Rentas v. Ruffin', where the Second Circuit took the highly unusual step of ordering a new trial in light of the district court's erroneous exclusion of evidence in a case brought by a Rikers prison inmate alleging he was assaulted by corrections officers, who then made false statements leading to the inmate's conviction.

Scott D. Locke and Laura-Michelle Horgan

Use of Foreign Language Words and Phrases as Trademarks

By Scott D. Locke and Laura-Michelle Horgan |

Scott D. Locke and Laura-Michelle Horgan of Dorf & Nelson in Rye tackle the issue of using foreign words and phrases in trademarks. A threshold issue is when and under what conditions, the foreign words and phrases will be deemed generic or descriptive because, if translated literally, the English equivalent would be categorized as either generic or descriptive.

Robert S. Kelner and Gail S. Kelner

Late Disclosure of Self-Serving Material

By Robert S. Kelner and Gail S. Kelner |

Trial practice columnists Robert S. Kelner and Gail S. Kelner address the manner in which the courts have addressed the untimely disclosure of fact witnesses and party submissions which conflict with existing evidence and are introduced for the first time in opposition to a summary judgment motion. They also discuss a recent change to CPLR 3212(b) which clarifies the consideration by the court of expert affidavits in summary judgment motions.

Francis J. Serbaroli

The Duties of Governing Board Members

By Francis J. Serbaroli |

In his Health law column, Francis J. Serbaroli discusses the duties of care, loyalty and obedience that members of the governing boards of not-for-profit organizations are obligated to follow. He also analyzes laws and regulations that address potential or actual conflicts of interests involving governing board members and their organizations.

Ken Strutin

Cognitive Independence in Judicial Decision-Making

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: The heightened scrutiny of capital punishment has drawn much needed attention to ghostwritten opinions that can mean the difference between life and death.

Neil J. Rosini and Michael I. Rudell

Legal and Business Basics for Documentary Filmmakers

By Neil J. Rosini and Michael I. Rudell |

In their Entertainment Law column, Neil J. Rosini and Michael I. Rudell discuss how documentary filmmakers and their attorneys can avoid common pitfalls by being aware of basic legal and business concepts such as appearance releases, defamation claims, rights issues, insurance matters and funding, to name a few.

David J. Rowland, Julius Niesert .Rowland & Petroff

Restoration of German Citizenship for Holocaust Victims and Descendants

By David J. Rowland and Julius Niesert |

David J. Rowland and Julius Niesert discuss restoring citizenship for Holocaust victims and their descendants. Former German citizens who had to leave Germany due to racial, political or religious persecution between 1933 and 1945 and their descendants may be able to obtain German citizenship and take advantage of EU membership.

Arthur J. Ciampi

How Not to Deal With Lawyer Mobility

By Arthur J. Ciampi |

Law Firm Partnership Law columnist Arthur J. Ciampi analyzes some of the relevant rules and law governing lawyer mobility and client choice of counsel and discusses a recent decision from the U.S. District Court for the Eastern District of Virginia, which addresses this issue.

What Is the Real Value of an Incentive Compensation Award When It Is Made?

By Joseph E. Bachelder III |

Joseph E. Bachelder III writes in his Executive Compensation column: The value of an incentive compensation award to an executive often is significantly less than the award's "target value." Target value for this purpose means the amount "targeted" for payout at the end of an award period if conditions to which the award is subject are satisfied. These conditions may be based on achievement of performance targets or simply based on continued employment during a stipulated period of time.

Mark Kornfeld, Jessie Gabriel and David Choi

Administrative Proceedings Remain Likely for SEC Enforcement Actions

By Mark Kornfeld, Jessie Gabriel and David Choi |

Mark Kornfeld, Jessie Gabriel and David Choi explore challenges to the SEC's practice of seeking to adjudicate enforcement actions in its own administrative courts, rather than in federal district courts. Critics have argued that the in-house proceedings, which are heard before an Administrative Law Judge hired by the SEC, are unfairly advantageous to the commission.

Charlotte A. Biblow

Addressing Concerns Over Chemicals in Drinking Water

By Charlotte A. Biblow |

Charlotte Biblow, of Farrell Fritz, discusses important regulatory steps by state and federal environmental protection agencies this year to limit environmental and human exposure to the chemicals PFOS and PFOA in drinking water. Exposure to such chemicals has been associated with adverse health effects.

Jonathan A. Dachs

'Use or Operation' and 'Danger Invites Rescue' Doctrine

By Jonathan A. Dachs |

Jonathan A. Dachs, in the Insurance Law column, examines recent case law that has made clear that the "danger invites rescue doctrine" is alive and well in New York—at least in the context of supplementary uninsured/underinsured motorist coverage and the critical issue of whether it can be said that an injury to a rescuer arose out of the ownership, maintenance or use of a motor vehicle.

Gary Tsirelman and Stefan Belinfanti

Policy Issues and Attorney Fees in No-Fault Litigation and Arbitration

By Gary Tsirelman and Stefan Belinfanti |

Gary Tsirelman and Stefan Belinfanti discuss attorney fees as they relate to no-fault litigation and arbitration initiated by a medical provider, where the insurance carrier denied the claim or otherwise failed to pay the claim based on the defense that the injured party violated a policy condition by failing to attend a duly scheduled Examination Under Oath or Independent Medical Examination.

Anthony E. Davis

Developments: In-Firm Privilege and Billing for Work by Unpaid Interns

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses the issues of how law firms handle ethical problems and disputes with clients, and whether it is permissible to bill clients for the work of unpaid interns.

Amy Barasch and Kim Susser

Court of Appeals Recognizes New Frontiers in Parenting

By Amy Barasch and Kim Susser |

Amy Barasch and Kim Susser share their views on the Sept. 1 Court of Appeals decision on two cases considered together on appeal—'Brooke M.' and 'Estrellita X.'—which received attention for the victory the decision represents for gay and lesbian parents. The authors write, however, that the decision should be appreciated also as a decision about parenting in its myriad forms and for the fact that meeting the standard of the best interests of the child need not be exclusively about biology.

Stephen M. Kramarsky

SDNY Reaffirms 'Volitional Conduct' Element of Infringement

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky writes: The volitional conduct test with regard to copyright infringement is controversial, especially in light of recent U.S. Supreme Court jurisprudence, and in particular the context of Internet service providers, but a recent decision from the Southern District of New York makes it clear that the doctrine is alive and well, at least for the time being.

Sidney Kess

Tax Aspects of Disasters: Recovering After Loss

By Sidney Kess |

Sidney Kess provides tips on tax breaks stemming from disasters and casualties. As he notes, insurance may not adequately compensate individuals and businesses for property damage and destruction. Tax breaks may provide some economic help.

Bruce A. Langer.McLaughlin & Stern.rec'd 0912/2016

Beware What You Click On: Website Arbitration Clauses

By Bruce A. Langer |

Bruce A. Langer, a litigation partner with McLaughlin & Stern, examines a recent U.S. Eastern District decision that compelled arbitration of a dispute based on language contained in the "terms of use" on an Internet access provider's website. The language contained an operative arbitration clause that the court found binding on the plaintiffs.

Todd J. Krouner. .Law Office of Todd J. Krouner.09/14/2016..Chappaqua

Title IX Remedies for Student-on-Student Sexual Assault

By Todd J. Krouner |

Todd J. Krouner examines remedies available to victims of sexual assault on campus under Title IX of the Education Amendments of 1972. He writes: Although Title IX does not explicitly mention sexual violence, the Supreme Court and the Department of Education’s Office of Civil Rights have interpreted Title IX to protect against sexual harassment, including sexual violence, in the university setting. Rape constitutes a form of "sexual harassment" in the most extreme form, and "any allegations of rape or sexual assault reported on campus" must be investigated under Title IX.

Lisa Koenig.Fragomen, Del Rey, Bernsen & Loewy.09/15/2016

Provisional Waiver Offers New Options for Mixed-Status Families

By By Lisa Koenig and Julie Muniz |

Immigration Law columnists Lisa Koenig and Julie Muniz, of Fragomen, Del Rey, Bernsen & Loewy, explain recent regulations relating to “mixed status” families, where one spouse is a U.S. citizen or permanent resident, i.e., green card holder, and the other is undocumented, while also pointing out that in most cases the reality is that immigration has become more and more difficult over the past 20 years as Congress has passed laws that have made the “path to citizenship” more difficult and complicated than ever before.

Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit. (2014)

DC Circuit Judge Assails NLRB for 'Cavalier' Approach

Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit criticizes the National Labor Relations Board for its "too-often cavalier and enabling approach" to racially and sexually demeaning misconduct by employees on strike. "It is 2016, and 'boys will be boys' should be just as forbidden on the picket line as it is on the assembly line," Millett writes.

Kathleen A. Scott

Work Continues on Addressing Correspondent Banking Decline

By Kathleen A. Scott |

Kathleen Scott, International Banking columnist, writes: There has been a troubling trend toward some banks terminating their correspondent banking account relationships with banks in certain areas of the world, and potentially to all the banks in particular countries, essentially isolating them from accessing the international financial system and adversely affecting that country’s own local banking system.

CGs Say Warner Bros. Blunder Shows Flaws in Copyright System

Critics of the Digital Millennium Copyright Act got some ammunition—not to mention a laugh—last month, when Warner Bros. Entertainment embarrassingly asked Google to take down hundreds of copyright-infringing websites, only to later realize that it had included legitimate sites and some of the company's own official pages.

Elliott Scheinberg

CPLR 5501 and Interim Support Awards, Orders in Post-Trial Decisions

By Elliott Scheinberg |

Elliott Scheinberg examines Maddaloni v. Maddaloni, important to the appellate bar as a matter of first impression: It is the first published decision, wherein the Second Department articulates its firm position that orders embedded in post-trial decisions that have not yet been reduced to judgment are neither appealable nor enforceable.

Jeremy H. Temkin

'Greenfield': Act of Production Doctrine is Alive and Well

By Jeremy H. Temkin |

Jeremy Temkin, in his Tax Litigation Issues column, discusses United States v. Greenfield, in which the U.S. Court of Appeals for the Second Circuit upheld one taxpayer’s attempt to avoid production of records beyond those that he was required to maintain under the Bank Secrecy Act. The court held that the taxpayer could still resist production of such documents through the Fifth Amendment’s act of production doctrine.

Lewis R. Clayton and Eric Alan Stone

Willful Infringement, Damages and Attorney Fees in Patent Cases

By By Lewis R. Clayton and Eric Alan Stone |

Lewis R. Clayton and Eric Alan Stone discuss two recent Supreme Court cases addressing enhanced damages in patent cases, one addressing the award of attorney fees in "exceptional cases" under 35 U.S.C. §285, and another addressing up-to-treble enhanced damages under the so-called "willfulness" provision, 35 U.S.C. §284.

Timothy M. Tippins

Exploring the Basis of Forensic Custody Opinions

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins explores the ramifications of a recent First Department decision, in 'Strauss v. Strauss', which sheds light on levels of analysis applied to an expert’s opinion in a forensic custody report and how it makes clear that counsel opposing an expert opinion must be prepared to challenge it on both the major and minor premise levels.

Milton Springut

Thanks but No Thanks: 'Citigroup' and Lessons on Trademark Litigation

By Milton Springut |

Milton Springut shares insights on important lessons about litigating trademark cases in a district court's decision last month denying a preliminary injunction sought by Citigroup to protect its trademark THANKYOU, used in its loyalty, redemption and rewards programs in a dispute over AT&T's use of the name AT&T THANKS marketing a similar rewards program.

Stephen L. Kass

Recognizing Right to Clean Water: The Time Has Come in the U.S.

By Stephen L. Kass |

Stephen L. Kass explores the right to water internationally and in the United States, and points out that while clean and adequate water is an important “interest” and “goal” of the U.S. government, it is not an inherent “right” of individuals.

Richard Raysman and Peter Brown

Applying Statutory Immunity in the CDA in Recent Cases

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown analyze two recent cases in the Ninth Circuit that reach differing conclusions on the Communications Decency Act.

Maurice J. Recchia

Car Accidents With Pedestrians: Conflict in the Departments

By Maurice Recchia |

Maurice Recchia, of Russo & Toner, explores two laws regarding liability for pedestrian accidents—the New York State Vehicle and Traffic Law and the New York City Department of Transportation Traffic Rules and Regulations—and the split in the Appellate Division departments in determining which standard to apply.

C. Raymond Radigan

Unclaimed Bodies: Change in Public Health Law

By C. Raymond Radigan |

In his Trusts and Estates Law column, C. Raymond Radigan examines a new law which ends the longstanding practice whereby unclaimed bodies were sent to medical and mortuary schools as cadavers. This law reinforces a decedent’s family's common law right of sepulcher, the "absolute right to immediate possession of a decedent’s body for preservation and burial."

Michael Hoenig

Practical Tips Regarding Summations

By Michael Hoenig |

Michael Hoenig, in his Complex Litigation column, offers practical trial tips on summations, the “final opportunity” to convince the jury that his client should prevail. The trial lawyer seeks to communicate with the jury on his own terms, in his own words and by the force of his own personality and ideas, he writes.

Harvey M. Stone and Richard H. Dolan

Scienter and Securities Law; Federal Tort Claims Act; Tax Prosecution

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent significant decisions involving the application of the heightened pleading standards of the Private Securities Litigation Reform Act, the military exception to the waiver of immunity under the Federal Tort Claims Act, and an attempt to admit into evidence Internal Revenue Code provisions and regulations to demonstrate a defendant tax preparer's lack of willfulness.

Joseph Lipari

Cases Highlight Sales Tax Issues of 'Free' Items Provided to Customers

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari writes that from an income tax perspective, providing additional goods to customers usually does not raise any meaningful issues, but the impact of the sales tax is more complex, particularly when a company may be selling or giving away some items subject to sales tax and other items that are exempt. Two recent cases highlight the complexities of offering "free" items as an add-on to those services for which the seller is charging a fee.

Hannah Chanoine of O’Melveny & Myers.11-2015

Managing Investor Risk in Food and Beverage Industry

By Hannah Chanoine |

As companies in the food and beverage industry face increasing claims alleging false advertising, Hannah Chanoine of O’Melveny & Myers notes the importance of recognizing these claims as one more risk to be managed. One area such awareness comes into play is in the deal context. Parties, for instance, should ask for product labels and label changes of the target, and the processes used to clear the product labels.

Kenneth E. Pitcoff and Kevin G. Faley

Hazard Vehicles: When Does Reckless Disregard Standard Apply?

By Kenneth E. Pitcoff and Kevin G. Faley |

Kenneth E. Pitcoff and Kevin G. Faley write: Some might be surprised to discover just how much protection is afforded to those who operate hazard vehicles, such as street sweepers and snowplows—even more than that provided to police vehicles and ambulances. Recently, courts have continued to expand protections for these hazard vehicles by broadening the interpretation of the "actually engaged in work" language and liberally interpreting what behavior should be considered reckless.

Michael B. Gerrard and Edward McTiernan

Jurisdiction Over Wetlands: New Uncertainties

By Michael B. Gerrard and Edward McTiernan |

In his Environmental Law column, Michael B. Gerrard and Edward McTiernan write: Since Superstorm Sandy, federal, state and local resource managers have increasingly come to view wetlands not merely as important natural areas worthy of preservation but as central to sustainable and cost-effective storm water management systems.

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

Successive Appeals Presenting the Same Issue

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. review a recent decision that brings an important reprieve to any would be appellant whose prior appeal has been dismissed as untimely, provided a subsequent judgment or order raising the same issues is entered from which a separate timely appeal may be taken.

Eva Talel and Richard Siegler

Priority of Liens—Evolving Rules for Condominiums and Lenders

By Eva Talel and Richard Siegler |

In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler examine the conflicts that often arise in a foreclosure proceeding, as between a condominium association seeking to recoup unpaid common charges, and a unit owner's lender attempting to maximize the amount of and recover its first mortgage of record—all in light of significant recent case law.

Carlos J. Cuevas

Vacatur of a Default Judgment and Reasonable Excuse Requirement

By Carlos J. Cuevas |

Carlos Cuevas explores the case law on vacating a default judgment. In order to vacate a default judgment a movant must establish a reasonable excuse for the default and a meritorious defense. The article discusses what constitutes a reasonable excuse under CPLR 5015(a)(1).

Elkan Abramowitz and Jonathan Sack

Insider Trading Among Family Members and the Limits of 'Newman'

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack discuss the Sean Stewart case and suggest how the government was able to secure a conviction against the tipper, a son who tipped his father, even though the son received no meaningful financial benefit in return.

Claudius O. Sokenu

D.C. Circuit Upholds Constitutionality of SEC Administrative Proceedings

By Claudius O. Sokenu |

Claudius O. Sokenu discusses the District of Columbia Circuit decision in 'Lucia v. SEC', which roundly rejected a constitutional challenge to the SEC's use of administrative proceedings for litigated enforcement actions and held the SEC's use of ALJs constitutional. As the first appellate decision to address the constitutionality of the SEC's appointment of ALJs, the opinion could embolden the commission to continue its use of APs in litigated enforcement actions.

Mark A. Berman

Non-Willful Spoliation of ESI

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman discusses recent state court decisions that grapple with the appropriate sanction for non-willful spoliation of electronically stored information. As noted in one case, the spoliation "sanction must reflect 'an appropriate balancing under the circumstances.'"

Jennifer H. Rearden and Sharon I. Grysman

Advice From Law Firm's In-House Counsel Found Shielded by Privilege

By Jennifer H. Rearden and Sharon I. Grysman |

Jennifer H. Rearden and Sharon I. Grysman explore the decision in 'Stock v. Schnader Harrison', that communications among "attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client" during the representation of that client are "not subject to disclosure"—even where "the consultation at issue...might have extended to whether [the firm]...was potentially liable...for malpractice."

Evan H. Krinick

Ruling Boosts Fight Against Criminal and Civil No-Fault Fraud

By Evan H. Krinick |

Evan Krinick takes note in his Insurance Fraud column of a ruling in July that a fact-finder in a criminal case may go beyond the formal indicia of ownership in determining the actual ownership of a medical services professional corporation (PC) for purposes of examining the PC's entitlement to payment from an insurance carrier of claims assigned to the PC by a patient under New York's no-fault insurance law. Going forward, he writes the decision will make it easier for the government to criminally prosecute cases of no-fault insurance fraud in this state.

Martin A. Schwartz

'Birchfield': Split Fourth Amendment Decision on Testing for Alcohol

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz writes about a split ruling by the U.S. Supreme Court on alcohol testing. The court in 'Birchfield v. North Dakota' held (6-2) that the Fourth Amendment allows the police to compel a warrantless breathalyzer test incident to an arrest for driving while intoxicated (or impaired), but also held that absent exigent circumstances or consent, the Fourth Amendment bars warrantless blood alcohol testing incident to such an arrest.

Joshua R. Kopelowitz

Common Law Right to Use Self-Help to Evict a Commercial Licensee

By Joshua Kopelowitz |

Joshua Kopelowitz discusses using self-help to evict commercial occupants who have stayed beyond their terms. At the root of this method is knowing the difference between a license and a lease. Thus, he writes, there can be no doubt that a commercial licensor has a viable alternative to seeking a judgment of possession in court.

Howard Epstein and Theodore Keyes

'Viking Pump': Changing the Allocation Landscape

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: In 'In re Viking Pump', the New York Court of Appeals applied an all sums allocation to a long-term asbestos bodily injury case, catching New York insurance practitioners by surprise and uprooting the long-held understanding that New York is a pro rata jurisdiction.

Mauricio A. Espana and Michael J. Sullivan

Protecting Communications and Work Product After 'Ambac II'

By Mauricio A. España and Michael J. Sullivan |

Mauricio A. España and Michael J. Sullivan have tips on protecting communications and work product after the 'Ambac II' decision which held that the common interest doctrine applies only if the parties are engaged in, or have a reasonable anticipation of, litigation.

Rupert M. Barkoff

Enforcing Termination Obligations of Franchise Agreements

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff writes about termination of franchise agreements where the franchisor has the right to demand, among other things, that the franchisee de-identify, not compete, assign the phone number of the former franchisee to franchisor, and return its confidential operating manuals, and what happens when the franchisee refuses to comply with these obligations. In one case, a drastic remedy was imposed.

Stephen Treglia

Privacy Shield's Growing Pains

By Stephen Treglia |

In his Cross-Border Concerns column, Stephen Treglia of Absolute Software Corporation writes: The ultimate successful implementation of the Privacy Shield and all it will mean to EU-U.S. commercial relations are still not a total certainty. Several rough edges need to be smoothed, approval steps are still underway, and litigation attacks are almost certainly imminent.

Sloane Ackerman

The Spread of Zika Virus: What U.S. Employers Should Know

By Sloane Ackerman |

Sloane Ackerman explores employment-related legal issues stemming from the Zika virus, with a focus on legal obligations to protect the health of employees, while simultaneously abiding by anti-discrimination and other laws given that this unique virus poses its greatest threat to pregnant women and couples contemplating having children.

Edward E. Neiger

Bankruptcy Filings in Oilfield Services Sector

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger focuses on bankruptcy filings in the oilfield services sector as the industry reacts to capital expenditure cuts by upstream energy companies and a reduction in drilling activity.

Nelson E. Canter

When Does Tort Liability Extend Beyond Contractual Parties?

By Nelson E. Canter |

Nelson E. Canter explores recent case law and trends involving when tort liability attaches for injuries or damages sustained by non-parties to a contract such as in the case of security companies sued by non-contracting plaintiffs.

Michael Rikon

Landowner Right to Appeal Over Designation as Wetlands

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon addresses regulatory, administrative and jurisdictional issues relating to wetlands and analyzes a new Supreme Court case, in which a landowner directly challenged federal jurisdiction of the Army Corps of Engineers.

Abby Tolchinsky and Ellie Wertheim

Strategies Mediators Employ When Parties Are at Impasse

By Abby Tolchinsky and Ellie Wertheim |

Mediators Abby Tolchinsky and Ellie Wertheim share insights on helping parties move past impasse. This involves going beneath the dynamic and the facts on the ground using a variety of techniques which they discuss in the article.

Natasha N. Reed

Why Fashion Brands Should File for Trademark Protection in Cuba

By Natasha N. Reed |

Natasha N. Reed warns that as the U.S. and Cuba progress toward economic normalization, and companies consider doing business in Cuba, filing for trademark protection in Cuba is particularly crucial for fashion brands even if a company has no immediate plans to offer products or services in Cuba especially given the global business of counterfeits, thanks in large part to e-commerce.

David J. Kaufmann

Joint Employer Theory: Did Subway Go off the Tracks?

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann offers a critique of a "Voluntary Agreement" the franchisor of Subway restaurants entered with the U.S. Department of Labor's Wage and Hour Division under which Subway pledged to take steps to ensure that its franchisees comply with wage-and-hour laws. The steps it pledges to take, writes Kaufmann, are the type of activity deemed by the NLRB as rendering franchisors the "joint employers" of their franchisees' employees, specifically in the pending case launched against McDonald's Corporation two years ago.

Sidney Kess

Tax Implications of Losing a Job

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the tax implications of losing a job. Among the areas he explores are severance packages, health benefits and unemployment benefits.

Jason L. Shaw

Defining 'Occurrence' in Insurance Can Have Major Impact in Recovery

By Jason L. Shaw |

In insurance, courts may treat the meaning of "occurrence" differently depending on whether it is an occurrence in a first-party property damage claim or in a third-party liability claim. Jason L. Shaw examines two cases since 2015 to show how different interpretations of "occurrence" can lead to very different consequences for policyholders.

Martin Flumenbaum and Brad S. Karp

The Rarity of En Banc Review in the Second Circuit

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp point out that the court has consistently granted fewer petitions for rehearing en banc than any other circuit court, a pattern that has become more pronounced in recent years. Since the beginning of 2011, the Second Circuit has reconsidered only two appeals en banc, compared to an average of 12 across all circuits during the same period. Now, other views are emerging among judges as to the merits of such review.

Thomas A. Moore and Matthew Gaier

Late Notices of Claim on Behalf of Infants

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier examine two Court of Appeals decisions affirming the denial of motions for late notices of claim on behalf of infants allegedly injured as a result of malpractice around the time of their birth.

Peter A. Crusco

Warrantless Cell Phone Pinging Exigency Analysis

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco tackles the questions: Do the police need a warrant to get defendant's cell site location information? Is the cell phone company required to provide the information without a warrant?

David G. Samuels

Representing Charitable Interests in Trusts and Estates

By David G. Samuels |

David G. Samuels writes that an attorney for a charitable organization, receiving a notice that an individual has died and left a considerable sum to the organization in his or her will or trust instrument, should be prepared to provide appropriate advice to the client on how to proceed.

Conrad Teitell

Art Advisory Panel—Latest Valuations

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes: A panel of museum directors, curators, art scholars and dealers helps the IRS value artwork gifts. At stake are income tax deductions for charitable donors, and gift and estate taxes for gifts to family members and other non-charities.

Shepard Goldfein and James A. Keyte

Chinese Antitrust Enforcement and the U.S.: an Uncertain Path

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: As China's political and economic impact continues to grow around the world, U.S. regulators have been forced to grapple with how to protect U.S. interests in a system sprung from a very different government ideology. This clash has played out in the antitrust context in the drafting, implementation and subsequent reaction to China's Anti-Monopoly Law.

William S. Gyves and Monica Hanna

With Fraud Claims, Timing Is Everything

By William S. Gyves and Monica Hanna |

William S. Gyves and Monica Hanna write: The U.S. Court of Appeals for the Second Circuit recently revisited an issue that has challenged commercial litigators and courts alike since the earliest days of the common law: When does a simple breach of contract rise to the level of a viable claim for fraud?

Peter Falk

Celebrity Guardianships Lead to Amendment of New York Statute

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes: Following their judicial outcomes, the the adult children of celebrities Peter Falk, Casey Kasem and Glen Campbell, denied visitation by their stepmothers, moved their focus to the legislative arena. In New York State this resulted in the July enactment of "Peter Falk's Law." But was this legislation necessary given the guardianship statute?

Mediating Valuation Disputes in Minority Oppression Litigation

By Arthur H. Rosenbloom |

Arthur H. Rosenbloom explains the theory and practice of oppression litigation—when minority shareholders of an entity sue, claiming that the conduct of those in control has been oppressive— and, if such matters are mediated, the mediator’s role in getting the matter to settle.

George Bundy Smith and Thomas J. Hall

Pushback Against Expanding Use of Non-Competes

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: In the traditional context involving trade secrets and confidential customer lists, properly drafted non-competes are viewed as protecting employers' legitimate interests and promoting economic development. When abused, however, employee mobility is stifled and commerce suffers. In New York, case law in this area is well-developed, with post-employment restrictions generally disfavored.

Roberta S. Karmel

Lindeen Decision: Attack on Blue Sky Preemption Fails

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: SEC rulemaking in recent years frequently has been attacked by business interests on the right, with some success, particularly with regard to claims that the SEC did not conduct an adequate cost-benefit analysis. 'Lindeen' is interesting because it was an attack by governmental interests on the left. But it failed at the D.C. Circuit, giving a green light to Regulation A-Plus offerings without blue-sky review.

Wallace Collins

Songwriter Collaboration and Co-Writer Agreements

By Wallace Collins |

Wallace Collins discusses the myriad possible problems that may arise when a song's co-authors do not have a written agreement concerning their joint work, and some considerations for drafting such a contract.

Robert W. Clarida and Robert J. Bernstein

Supreme Court Revisits Attorney Fee Standards

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein discuss 'Kirtsaeng v. John Wiley & Sons,' a case that has earned a previously unprecedented second trip to the Supreme Court for review of the standards for awarding attorney fees to prevailing parties in copyright cases.

Alton Abramowitz

Protecting Elderly From Suspicious Marriages Caused by Undue Influence

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz discusses domestic relations law, cases and issues involving clients suffering from diminished capacity, clients being coerced or under duress from another party, or clients who may be the victims or potential victims of fraud.

Shari Claire Lewis

Lessons From Privacy-Related Enforcement Actions

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis writes: A review of various privacy-related settlements that agencies recently have reached suggests a variety of steps that companies across all industries should consider adopting in an effort to protect the privacy of consumers and avoid the wrath of regulators.

Edward M. Spiro and Judith Mogul

Big Firm/Small Firm—Size Matters for Attorney Disqualification

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul discuss two recent decisions, one which disqualified a small firm, notwithstanding its immediate creation of a substantial ethical wall when a lawyer with a conflict joined the firm, and another that denied a motion to disqualify where a large firm concurrently represented both sides of a litigation.

Pokemon Goes to Court; New Liability for New Technology

By Robert D. Lang |

Robert D. Lang writes: Pokémon Go warns players to "be alert at all times" and to stay aware of their surroundings. Once the game starts, they have to acknowledge a message that warns them not to drive, trespass or enter dangerous sites while playing. Do these warnings fully satisfy Niantic's legal duty?

Geoffrey A. Mort

Assessing Evidence in Employment Cases on Summary Judgment

By Geoffrey A. Mort |

Geoffrey A. Mort analyzes the Second Circuit's recent reversal of summary judgment granted in a Title VII failure-to-hire gender discrimination case. In doing so, the court focused on an issue that has arisen over the years in a number of other employment discrimination cases involving summary judgment motion—the extent to which a district court must view the plaintiff's evidence as a whole, as opposed to in fragments, in deciding such motions.

Ben Rubinowitz and Evan Torgan

Confronting Difficult Issues in Jury Selection Head On

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: With discovery and depositions as broad as they currently are, problematic issues in a case should be laid bare before you even walk into the courtroom. It is not the fact that there is a problem but often the trial lawyer's ability to confront and address the problem during jury selection that can make the difference in the outcome of a case.

Harvey M. Stone and Richard H. Dolan

Judge Recognizes Hardships in Imposing Lenient Sentence

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions, including one that imposed an exceptionally lenient sentence on a defendant who had suffered losses from the chaos in Syria, another that explained the requirements of a complaint in admiralty that would allow defendant to implead a third party, and a third that addressed the circumstances in which claims of fiduciary breach may be asserted by a mortgagor against a mortgage servicer.

Elizabeth McNamara and John M. Browning

In Search of a Predictable Standard for Attorney Fees in Copyright Cases

By Elizabeth A. McNamara and John M. Browning |

In their Media Law column, Elizabeth A. McNamara and John M. Browning write: Fans of predictable bright-line rules, including attorneys advising copyright clients on the likelihood of an attorney fee award, may well feel dismayed by the U.S. Supreme Court's ruling in 'Kirtsaeng v. John Wiley & Sons.' But despite lingering uncertainty, copyright practitioners can take away several important lessons.

Janice J. DiGennaro

Ruling Upholds Law Firm's In-House Counsel Attorney-Client Privilege

By Janice J. DiGennaro |

Janice J. DiGennaro writes: In a hotly contested issue of first impression, the First Department has ruled that attorneys who seek the advice of their firm's in-house counsel on their ethical obligations in representing a current client may invoke the attorney-client privilege to resist subsequent disclosure to the client of those communications.

Matthew Chivvis

Patents: When the 'Plain and Ordinary' Meaning Is Neither Plain nor Ordinary

By Matthew Chivvis |

Matthew Chivvis writes that the Federal Circuit's decisions provide conflicting guidance on the duty to construe a term when the plain and ordinary meaning is disputed. The lack of a clear rule has allowed district courts to vary widely in how they handle claim construction in these circumstances.

David M. Barshay

Evidentiary Challenge on a Summary Judgment Motion

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay writes: The distinction between an affidavit, which is sworn to before a notary public or other public official, and an affirmation, which is subscribed and affirmed by the witness without the necessity of a notarization, while arguably a technicality, has been the subject of several no-fault related decisions.

Wendi S. Lazar

Will New Legislation Cure the Gender Pay Gap?

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar writes: Gender discrimination, like racial prejudice, runs deep, and whether it is because of issues related to family responsibility, poor negotiation skills or the biased assumption by employers that women are not the primary wage earners, employers continue to pay women less. Unfortunately, the various equal pay acts have placed burdens on plaintiffs that make it difficult to bring claims and succeed in the courtroom.

Margaret A. Dale and Mark D. Harris

SEC Adopts Amendments to Rules for Administrative Proceedings

By Margaret A. Dale and Mark D. Harris |

In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris discuss the SEC's final amended rules of practice before its administrative law judges, which critics maintain do not go far enough to level the playing field, nor to eliminate respondents' due process concerns.

Joel Cohen

The Reliability of a Prosecutor's Representations in Plea Negotiations

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Federal and state prosecutors sometimes make plea, or immunity, offers without having gained the requisite approval of higher ups, perhaps more often than one might think. And while many defense attorneys simply won't want to litigate whether the prosecutor's office is bound by the now-breached plea offer, aware of the office's "institutional" memory, there have been challenges.

Jeremy H. Temkin

Collecting Taxes From Convicted Defendants

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes: At the conclusion of a criminal tax case, a convicted defendant is rightfully most concerned with the prospect of incarceration. Defendants, however, must be aware of other consequences of a conviction, including significant financial ramifications.

Albert Rizzo

Mooting Class Actions by an Offer of Judgment: Can It Really Be Done?

By Albert Rizzo |

Albert Rizzo writes that at the beginning of the year, the U.S. Supreme Court held that an unaccepted settlement offer to satisfy the named plaintiff's individual claim has no force, and therefore cannot moot a class action claim. But left unanswered is what actions on the part of the defendant will moot the plaintiff's claim?

Richard Raysman and Peter Brown

Courts Address When an Alleged Employee Hacking Is a Crime

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown analyze recent decisions involving employees accused of hacking into the databases of their own companies, competitors and potential business partners.

Michael Hoenig

Practical Tips About Opening Statements

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes that by the time a plaintiff's opening has been heard, the jury will likely be feeling strongly sympathetic to the injured claimant. In defense's opening, the lawyer is telling the jury that there is another side to the story. It must be delivered in an ordinary conversational tone projecting a feeling of absolute sincerity and belief in the defendant's position.

Ilene Sherwyn Cooper

Requests for Disclosure: Protective Orders and Preclusion

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: Motions for protective orders and orders of preclusion are defensive measures frequently utilized by Surrogate's Court practitioners as a means of curtailing overly broad or improper requests for disclosure. Over the past several months, the surrogates in Suffolk, Westchester and Kings counties have had the opportunity to opine on applications seeking this relief.

Brian D. Koosed and Anthony P. Badaracco.

Privilege Logs—Divergent Approaches in New York and Delaware

By Brian D. Koosed and Anthony P. Badaracco |

Brian D. Koosed and Anthony P. Badaracco write: In the last three years, the two leading state court forums for resolution of commercial disputes have responded to the rise in complexity of privilege logs in two very different ways, with the Delaware Court of Chancery requiring increasing rigor and New York's Commercial Division streamlining the process. This divergence therefore presents yet another factor for deal lawyers to consider in deciding, at the contract formation stage, where commercial disputes should be heard.

John P. Furfaro and Risa Salins

Supreme Court Review: FLSA, Title VII, First Amendment, Religious Freedom

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins review rulings pertaining to whether automobile service advisors are exempt from overtime pay under the Fair Labor Standards Act; whether a ruling on the merits is a necessary predicate to finding a defendant is a prevailing party eligible for an attorney fees award under Title VII of the Civil Rights Act of 1964; when the statute of limitations period begins running in constructive discharge cases under Title VII; and more.

Christopher Dunn

Police Use of Force, the Constitution, and the New NYPD Policy

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: Earlier this summer, the NYPD—the nation's largest and most influential police department—rolled out new use-of-force policies that have received precious little scrutiny. In light of the ongoing debate about police use of force, it is worth revisiting the constitutional standards and examining the new NYPD policies.

Matthew L. Schwartz and Matthew Getz

First Reactions to the U.K.'s Second Deferred Prosecution Agreement

By Matthew L. Schwartz and Matthew Getz |

Matthew L. Schwartz and Matthew Getz write: Over the past few years, there has been a quiet revolution in the state of corporate criminal law in the United Kingdom, as the country approaches ever closer to the American model of large settlements and huge fines.

John Rapisardi and Joseph Zujkowski

Navigating Judicial Reorganizations Under the Brazilian Bankruptcy Law

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: The recent increase in the number of filings by Brazilian entities for judicial reorganization in Brazil has sparked interest by U.S. investors and claimholders concerning the various pertinent provisions of Brazil's bankruptcy law.

Brian J. Shoot

Appellate Rulings Continue Debate on Labor Law Liability

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot reviews decisions from the first half of the year, including holdings on comparative negligence and sole proximate cause of an injury, and rulings on whether a falling elevator or a fall from the back of a flatbed truck are elevation-related risks.

Robert J. Anello and Richard F. Albert

More Bridgegate Fallout: Revealing Unindicted Co-Conspirators?

By Robert J. Anello and Richard F. Albert |

In their White Collar Crime column, Robert J. Anello and Richard F. Albert write that just as the so-called Bridgegate scandal had a significant impact on a number of prominent careers, and perhaps even on our national politics, the appeal of a media demand for the disclosure of the names of unindicted co-conspirators will also likely have a broad impact, influencing courts' future deference to the reputational interests of individuals implicated but not charged in prominent investigations.

Milton Springut

Analyzing Potential Conflicts in Patent Prosecution

By Milton Springut |

Milton Springut writes: Representing two clients with competing technologies is a position "fraught with possible conflict of interest" and this perilous situation can continue even after one representation is completed. Two analytic frameworks can aid patent practitioners in determining whether there is a conflict.

Peter M. Fass

Crowdfunding Financial Disclosures and Reporting Obligations

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass continues a discussion of the crowdfunding rules pursuant to Securities Act of 1933, Section 4(a)(6), focusing on the financial disclosures and ongoing reporting obligations associated with crowdfunding.

Michael J. Hutter

Attorney-Client Privilege and Related Common Interest Doctrine

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter discusses the Court of Appeals' holding in 'Ambac Assurance Corp. v. Countrywide Home Loans,' which, he writes, "rejected substantial contrary precedent in a persuasive and forceful manner such that it may well serve as the intellectual leadership for courts nationally which will be addressing the issue for the first time or revisiting it."

H. Christopher Boehning and Daniel J. Toal

Rogue Executive's Spoliation Leads to Severe Rule 37(e) Sanctions

By H. Christopher Boehning and Daniel J. Toal |

H. Christopher Boehning and Daniel J. Toal discuss a recent decision in which, due to a rogue executive's misconduct and some questionable follow-up efforts by the company itself, a district court imposed what are arguably the most severe sanctions seen in a decision since the enactment of amended Rule 37(e).

Jeffrey S. Klein and Nicholas J. Pappas

Confidentiality Provisions Under Heightened Scrutiny

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas examine key developments impacting confidentiality provisions in workplace agreements and policies, and provide recommendations for employers in drafting such provisions in order to reduce the risk of challenges to their enforceability.

Barry Kamins

Suppression of Evidence and Effective Assistance of Counsel

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes: The right to effective assistance of counsel has had a rich development under the state constitution, and the New York Court of Appeals has often expressed its "special solicitude for this fundamental right." In this past term, the court has revisited the effective assistance of counsel in the context of suppression issues, addressing the failure to file a motion to suppress; counsel's performance at a suppression hearing; and counsel's failure to move at trial to reopen a suppression hearing.

Jacob Inwald

Residential Foreclosures: Legislative Changes to Settlement Conference Law

By Jacob Inwald |

Jacob Inwald discusses amendments to the foreclosure conference process enacted in the waning hours of the 2016 session that fill many of the gaps that the original legislation left open, so there is now hope that the settlement conference law will be more rigorously implemented in all jurisdictions, with uniform consequences to deter its violation, and the legislature's intent to prevent avoidable foreclosures and encourage home-saving loan modification solutions more effectively implemented across New York State.