Expert Analysis

Robert J. Anello and Richard F. Albert

Obstruction? Barry Bonds Prosecutors Strike Out in the Ninth

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: For white-collar criminal practitioners, the Barry Bonds case presents another example of how the breadth of the federal obstruction laws makes them a nearly irresistible choice for prosecutors, and of the seemingly endless struggle of the courts to define appropriate limits on their reach.

Thomas A. Moore and Matthew Gaier

Recent Decision on Foreign Objects

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write that although New York does apply a limited discovery rule when a foreign object is left in a patient's body, it has been construed so narrowly as to render it inapplicable to a broad variety of objects left in patients during surgical and other invasive procedures. However, in a recent decision the Court of Appeals has signaled that the restrictions imposed on this ameliorative rule have their limits.

H. Christopher Boehning and Daniel J. Toal

Cost Shifting Warranted for Production of Inaccessible ESI

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss a recent decision that employed cost shifting when the requesting party demanded production of ESI stored on backup tapes and a reformatted production of previously produced active email files.

Joshua E. Kimerling

Court Holds Claims of Forged Deeds Not Subject to Time Limits

By Joshua E. Kimerling |

Joshua E. Kimerling writes: Although the CPLR sets forth an applicable statute of limitations period for virtually all causes of action, the Court of Appeals has recently held that one particular, and not altogether uncommon, cause of action is not subject to any limitations period.

Barry Kamins

Limits Set on Use of Grand Jury Testimony at Trial

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes that for the first time in 20 years, since the Court of Appeals first established that a witness' grand jury testimony may be used as evidence-in-chief at trial when the defendant's misconduct has made that witness unavailable to testify, the court has rejected a prosecutor's attempt to introduce grand jury testimony at trial.

Thomas E. Chase

When Are Interns Employees?

By Thomas E. Chase |

Thomas E. Chase writes that media coverage characterized the recent Second Circuit decision on whether Fox's unpaid interns were "employees" as a decisive victory for employers. The careful practitioner, however, should not believe the hype. The circuit held that the lower court applied the wrong test for determining whether interns are exempt from the FLSA and remanded the case to be decided under a different—but not necessarily more lenient—test.

Adam R. Shaw

Internal Investigation Not Protected From Discovery

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw discusses decisions ordering disclosure of internal investigation documents and communications of a public relations firm; dismissing an appeal of a bankruptcy order because the notice of appeal was untimely; and dismissing a case because of bad service of process.

Nicholas M. De Feis and Philip C. Patterson

'Unlimited Operations': A New Financial Cyber Threat

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

In their International Criminal Law and Enforcement column, Nicholas M. De Feis and Philip C. Patterson discuss "Unlimited Operations," where hackers provide information on bank accounts they have increased the balances of to "cashing crews," who then make millions of withdrawals; and the case against a hacker charged with orchestrating a cyber attack that allegedly succeeded in stealing $55 million from a number of banks.

Roger Cohen and Ellen Moskowitz

Attorney General Issues Guidance on State Not-for-Profit Law

By Roger Cohen and Ellen Moskowitz |

Roger Cohen and Ellen Moskowitz review new guidance concerning provisions of the Nonprofit Revitalization Act of 2013 that require not-for-profit corporations to maintain conflict-of-interest and whistleblower policies and establish minimum requirements for such policies.

Ilann Margalit Maazel

Police Use of False Statements

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel writes: A police officer coerces a witness to make a false statement; a prosecutor independently decides to present that witness at trial; the defendant is criminally convicted. Is the officer liable under 42 U.S.C. §1983 for violation of the Due Process Clause?

Sue C. Jacobs

Continuous Representation Doctrine in a Legal Malpractice Action

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs analyzes recent Appellate Division decisions that addressed whether a law firm's alleged continuous representation tolled the statute of limitations in three different high-stakes actions.

Thomas A. Dickerson and Jeffrey A. Cohen

Taxis and Ride-Sharing: Meeting New York City's Car Service Needs

By Thomas A. Dickerson and Jeffrey A. Cohen |

Thomas A. Dickerson and Jeffrey A. Cohen discuss the Court of Appeals' recent decision on New York City's Taxi of Tomorrow plan, which would require cabs being retired to be replaced with a specific Nissan model, along with the city's response to the growth of car-sharing companies Uber and Lyft.

Timothy G. Nelson

Mining Outer Space: Who Owns the Asteroids?

By Timothy G. Nelson |

Timothy G. Nelson writes: Over the last two years, U.S. business and policy makers have focused afresh on the commercial possibilities of asteroids—the solar system's minor planetary objects, some of which have large deposits of potentially valuable substances. In the last few years, some private operators have announced plans to mine them commercially, a concept that, until now, has been exclusively the realm of science fiction.

Thomas E.L. Dewey

Why Attorneys Must Take Negotiation Emails Seriously

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey reviews a recent decision that shows how settlement agreements, like all contracts, can be formed through relatively informal communications, and how such communications can sometimes bind a litigant to settlement terms that they come to regret or perhaps never even wanted.

Robert S. Kelner and Gail S. Kelner

The Municipal Duty to Provide Safe Roadways

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner review several of the most common legal issues that arise in personal injury cases alleging defective or unsafe roadways.

Francis J. Serbaroli

Another Hospital Loses Its Property Tax Exemption

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli discusses a recent New Jersey Tax Court decision that upheld the revocation of not-for-profit Morristown Memorial Hospital's property tax exemption. The court found that most of the hospital's campus was being used for generating revenues for for-profit physicians, and didn't qualify for continued exemption. The decision should be cause for concern among not-for-profit hospitals in New Jersey and elsewhere.

Jeremy M. Creelan

Exploring Impact of Rejected Offer of Judgment in Class Actions

By Jeremy M. Creelan |

Jeremy M. Creelan discusses an issue the U.S. Supreme Court will consider next term—whether class-action defendants can end the cases against them simply by offering complete relief to individually named plaintiffs and offering nothing to the classes those plaintiffs purport to represent.

Ken Strutin

Cognitive Rights for the Neighbors of Humanity

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Homo sapien culture is the product of a million years in the trenches. In its wake have arisen animal rights and environmental laws protecting nonhuman species and the natural world. And despite their aspirations the intent behind these laws has yet to be fully realized.

Howard Epstein and Theodore Keyes

Cyber-Risk Insurance Update

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: Over the last few years, cyber-risk insurance products have evolved so that coverage is now available for cyber-risk exposures related to third-party claims as well as for first-party loss. In addition, some policies provide insureds with access to help responding to a data breach crisis or assistance with preventative risk management and loss-control activities.

Sidney Kess

Tax Ramifications of Recent Supreme Court Decisions

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the premium tax credit for individuals purchasing health coverage from a marketplace who meet certain income criteria, and state income and death taxes for same-sex couples who are now allowed to marry.

Steven Cash and Robert Appleton

Making a Pitch: Whether to Report Matters to Law Enforcement

By Steven Cash and Robert Appleton |

Steven Cash and Robert Appleton write: When a long-time client presents a matter in which he or she is the victim of, or witness to, a crime, such as if an employee has stolen money, a forgery is discovered, or computers or data have been hacked or taken, the question of whether or not to take the matter to law enforcement can pose a dilemma.

Sharon M. Porcellio

Disqualification Motion; Discovery Dispute Resolved by Compromise

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio reviews a decision that refused to disqualify counsel that the movant argued was representing it in state court but opposing it in related federal court actions, since in the state action counsel was representing the assignee and real party in interest, not the movant, and another decision on 11th-hour request to extend a discovery deadline.

Arthur J. Ciampi

Drafting Effective Dispute Resolution Clauses

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi writes: Given that partnership agreements provide for maximum flexibility, which permit partners to craft virtually any economic relationship they want, the dispute resolution clause of a law firm agreement can be configured with little restraint and should be thought of and used as a tool to make the resolution process efficient and fair.

Kevin Schlosser

Reading Restrictive Covenant Tea Leaves From State's High Court

By Kevin Schlosser |

Kevin Schlosser analyzes a decision in which the Court of Appeals addressed whether the New York courts should enforce a choice of law provision in an employment contract that applied Florida substantive law, which differs markedly from New York law; and whether to allow partial enforcement of a restrictive covenant by "blue penciling" the agreement, narrowing its scope to a permissible extent.

Charlotte A. Biblow

DEC Begins to Prepare Draft Regulation on Sea-Level Rise

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: Scientists project that by the start of the next century, sea levels along New York's coastlines and estuaries likely will be 18 to 50 inches higher than they presently are. Even the lower range of these projections is alarming as New York's coastal marine counties are home to more than half of the state's citizens.

Lawrence W. Newman and David Zaslowsky

A BIT of Confusion in Enforcing Investment Treaty Awards

By Lawrence W. Newman and David Zaslowsky |

In their International Dispute Resolution column, Lawrence W. Newman and David Zaslowsky review a case that shows the very different ways two courts handled requests to enforce the exact same arbitration award.

Richard S. Fries and Todd B. Marcus

Appellate Decision Unwinds Foreclosure Purchase

By Richard S. Fries and Todd B. Marcus |

Richard S. Fries and Todd B. Marcus write: It is well-settled that a purchaser of real property takes title subject to the outcome of a lawsuit of which that purchaser has actual knowledge. It is equally well-settled that this rule does not apply to appeals. Until now.

Martin Flumenbaum and Brad S. Karp

Primary Beneficiary Test May Impede Intern Class Actions

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss the court's consideration of the appropriate standard for determining when an intern qualifies as an employee under the Fair Labor Standards Act, and therefore must be compensated for his work.

Jay Goldberg

Second Circuit Standard of Review on Suppression Motions Varies

By Jay Goldberg |

Jay Goldberg examines the way the Second Circuit has handled the critical issue of the standard of review in appeals from decisions and orders of the district courts with respect to suppression motions. Is the standard of review dependent on the particular panel that one draws? That seems to be the result, but this contravenes the need for consistency on a matter of such importance.

Robert C. Scheinfeld

Federal Circuit Embraces Patent Trial and Appeal Board Rulings

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes that the first appeals from the relatively new Patent Trial and Appeal Board under the Leahy-Smith America Invents Act illuminate the Federal Circuit's general respect for the PTAB and Congress' "carefully crafted" balance between its desire for prompt and efficient review at the Patent and Trademark Office, against the necessary recognition of the traditional role of judicial review of agency action.

Stephen M. Kramarsky

Fee Shifting in Copyright Cases: A Close Look at 'Beastie Boys'

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky discusses a recent S.D.N.Y. opinion on attorney fees after the trial between the Beastie Boys and beverage producer Monster Energy Company, which sheds some valuable light on how courts can decide complex fee questions.

Abby Tolchinsky and Ellie Wertheim

Parenting Arrangements for Same-Sex Couples

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim write: While there has been a seismic shift in the legal definition of marriage, there has not yet followed a full understanding of how courts will address the legal definition of parent in same-sex families. In other words, the biological imperative coexists now in tension with the legal.

Lee Rosenberg

Extending Matrimonial Case Confidentiality to Related Proceedings

By Lee Rosenberg |

Lee Rosenberg writes: There is a marked difference between the public policy need to have our courts remain within the public domain and using the conduit of a civil filing to provide juicy fodder for the court of public opinion or leverage in a divorce case. Even where the use of the civil filing is legitimate, the need to protect the confidentiality of the file remains.

Thomas F. Gleason

The Future of Hard Copy Court Records and E-Filing

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason writes: In this second half of the second decade of this millennium, consider the implications of two CPLR proposals awaiting action on the governor's desk. The first would broadly expand electronic filing of court papers, and the second would allow hard copy service of interlocutory papers by mail from other states within the United States.

David L. Yohai and Theodore E. Tsekerides

In a Cord-Cutting World, Only the Strong Contracts Survive

By David L. Yohai and Theodore E. Tsekerides |

David L. Yohai and Theodore E. Tsekerides write that a steady stream of customers have cut the cable cord in favor of accessing content from alternative sources. To avoid being left on the "cutting" room floor, certain cable industry leaders are pursuing initiatives that stand to significantly alter the longstanding relationship between programmers and distributors. But existing contracts may limit the type of changes that either party may make, and when.

E. Leo Milonas and Andrew C. Smith

Spring's Leading Decisions Offer Insights and Analysis

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith discuss recent decisions involving New York courts' long-arm jurisdiction in disputes brought against foreign defendants under a contract governed by foreign law, the three-year moratorium on tax certiorari proceedings, voting rights of part-time town residents, judicial retirement and more.

John Rapisardi and Joseph Zujkowski

Structured Dismissals of Chapter 11 Cases

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski analyze a recent case where the Third Circuit issued the first federal circuit court of appeals opinion recognizing the ability of bankruptcy courts to conclude a Chapter 11 case through a structured dismissal.

Jeff S. Korek and Abraham Z. Melamed

Unconventional Lawyering Leading to Conventional Credibility

By Jeff S. Korek and Abraham Z. Melamed |

Jeff S. Korek and Abraham Z. Melamed write: Oftentimes lawyers become so entrenched in doing the orthodox that they end up losing out on great opportunities to strengthen credibility with a jury. What's more, attorneys can get caught up in the vision of fighting tooth and nail, line by line, and as a result miss out on important perspectives that can help their case simply because they refuse to think outside the box.

Michael D. Patrick

The H-1B Program—Benefits, Protections, Enforcement

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: While any immigration program is vulnerable to isolated abuses, the H-1B program has proven essential to continued U.S. competitiveness in today's global economy and marketplace for best-in-class talent. Preserving the benefits of the H-1B program requires a discussion of how best to improve the system, not destroy it all together.

Jeremy H. Temkin

Offshore Accounts: The Beat Goes On

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin discusses the Offshore Voluntary Disclosure Program, which remains the best opportunity for taxpayers who intentionally evaded their tax and reporting obligations, and an alternate for taxpayers whose prior non-compliance was unintentional that can have lower financial penalties but does not offer the OVDP's protection from criminal prosecution.

Steven J. Eisman and Hilary F. Simon

State Legislature Passes Landmark Bill on Spousal Support

By Steven J. Eisman and Hilary F. Simon |

Steven J. Eisman and Hilary F. Simon write that among the most anticipated aspects of a bill that will bring extensive revisions to the Domestic Relations Law is the elimination of enhanced earning capacity as a marital asset—which means that courts are no longer required to determine the lifetime value of a license or professional degree earned during the marriage.

John C. Coffee Jr.

News From California: Ninth Circuit and SEC Challenge New York

By John C. Coffee Jr. |

In his Corporate Securities column, John C. Coffee Jr. discusses two new developments emanating from California: (1) the Ninth Circuit has handed down a significant decision on insider trading that disagrees with a Second Circuit decision, and (2) the SEC's Regional Office in California has issued Wells Notices to attorneys, taking the position that an attorney representing clients in immigration matters may be acting as a broker under the federal securities laws.

John L.A. Lyddane and Barbara D. Goldberg

Causation and Recovery in 'Loss of Chance' Cases

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

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that it is often claimed that, rather than "causing" a plaintiff to develop the particular condition that resulted in injury, a defendant physician failed to diagnose a condition or institute treatment at an earlier time, depriving the plaintiff of the opportunity for a better outcome. Confusion persists as to the plaintiff's burden of proof and the appropriate measure of damages in such cases.

Roy L. Reardon and William T. Russell Jr.

Injuries by Household Pets; Choice-of-Law Provision

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

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases in which the court declined to apply ordinary negligence principles to claims involving injuries caused by household pets, determined that the statute of limitations in contractual securities "repurchase" claims starts running at the time of the contract, and clarified the circumstances in which a court may apply New York law despite a contrary contractual choice of law provision.

Robert L. Schonfeld

U.S. Supreme Court Upholds 'Disparate Impact' Theory in Housing

By Robert L. Schonfeld |

Robert L. Schonfeld writes: Even though the recent decision in 'Texas Department of Housing and Community Affairs v. Inclusive Communities' did not directly change the law in the Second Circuit or the other circuits that had recognized the "disparate impact" theory, the Supreme Court decision is significant because it did lay down guidelines for what the court would deem to be a proper use of the "disparate impact" theory.

Shepard Goldfein and James A. Keyte

U.S. Supreme Court to Address Class Certification—Again

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte review the case brought by employees at a Tyson Foods meat-processing facility and the Supreme Court's upcoming review of the use of statistical averages in liability and damages calculations as well as the inclusion of potentially uninjured individuals within a class.

Richard Raysman and Peter Brown

Imposing Liability Under DMCA Counter-Notification Provision

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown describe and analyze two cases that confronted questions surrounding misrepresenting takedown notices and conclude with some brief thoughts on the future of §512(f) in light of its forthcoming spotlight in one of the federal appellate courts.

Martin A. Schwartzberg

Spoliation Issues When Representing the Design Professional

By Martin A. Schwartzberg |

Martin A. Schwartzberg writes: In the representation of architects and engineers, it has become increasingly important to be aware of the need to preserve all types of evidence that may eventually be required in order to properly defend a claim or potential claim. Beyond the obvious need to preserve the entire project file, the client may have evidence such as boring samples; defective construction materials removed from a project site; or photographs taken at a site visit which depicted a temporary condition that no longer exists.

Michael Hoenig

When Jurors Learn About Settlement Offers

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes that finding constitutional implications when jurors receive extrinsic prejudicial information within a criminal case context may not be so surprising. Is there also a constitutional dimension, however, when the jury considers extraneous prejudicial information in a civil case? A recent federal appellate decision suggests that the answer is "yes."

C. Raymond Radigan and Jennifer F. Hillman

Clarifying When and Whether Divorce Revokes Bequests

By C. Raymond Radigan and Jennifer F. Hillman |

C. Raymond Radigan and Jennifer F. Hillman write: Marriage is on everyone's mind with the recent ruling of the Supreme Court concerning same-sex marriage. Yet, two decisions in the past month from the surrogate's court have explored the other side of marriage—divorce and its potential revocatory effect on an estate plan.

Ronald G. Blum and Arunabha Bhoumik

Parallel Proceedings in Southern District: Are They 'Related'?

By Ronald G. Blum and Arunabha Bhoumik |

Ronald G. Blum and Arunabha Bhoumik write: More and more, defendants find themselves in multi-front fights: Federal prosecutors bring criminal charges, while another agency brings a related civil proceeding. The factual issues in these cases are largely identical. Legal issues overlap. But curiously, because one case is labeled "civil" and the other "criminal," they are not deemed "related" under Southern District rules.

Harvey M. Stone and Richard H. Dolan

Hearing Ordered to Address Constitutionality of Prison Term

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent decisions involving a summary judgment motion in a civil forfeiture case, fraudulent transfers under the New York Debtor Law, accommodations for nursing mothers under the FLSA, and mitigating circumstances in sentencing a defendant who pleaded guilty to possessing child pornography and sexually exploiting a child.

Kingsley Osei

Structuring Solar Projects in the Public Sector

By Kingsley Osei |

Kingsley Osei writes: With the impending dip in the federal Investment Tax Credit from 30 percent to 10 percent after December 2016, it is unclear whether the solar growth trend will continue. That decline is one of three key obstacles that New York State public sector agencies, including state universities, face in adding solar photovoltaic sources to their energy use.

Michael B. Gerrard

Survey of 2014 Cases Under State Environmental Quality Review Act

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard writes: The issue of whether plaintiffs have standing to sue under SEQRA continued to bedevil the courts in 2014. Additionally, in an unusual number of cases, courts overturned governmental rejections of projects, and considered whether changes to unbuilt projects since the environmental review was conducted warranted new review.

Elkan Abramowitz and Jonathan Sack

Prosecution of Conduct Abroad—Where Are the Limits?

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack discuss a California federal judge's dismissal of charges related to the operation of a U.N. agency based in Canada, and a Southern District magistrate judge's refusal to dismiss charges against a defendant accused of manipulating LIBOR for loans denominated in Japanese Yen while he was working abroad for a global financial institution. These cases suggest the broad, but not unlimited, reach of federal criminal prosecution.

Lewis R. Clayton and Eric Alan Stone

Supreme Court Patent Rulings; Copyright Law and Attorney Fees

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone review the U.S. Supreme Court's rejection of a good-faith belief in the invalidity of a patent as a defense to induced infringement and its reaffirmation of a longstanding but widely discredited rule against post-patent-expiration royalties, along with recent Second and Ninth Circuit decisions.

Brian Murray and Lee Albert

Class Action Lead Counsel Decisions in the Southern District

By Brian Murray and Lee Albert |

Brian Murray and Lee Albert write: FRCP 23(g) sets forth certain criteria for the appointment of lead counsel but gives the court considerable leeway. As a spate of recent decisions by judges in the Southern District shows, judges reach differing conclusions on which factors bear the most weight.

Glen Banks

Chosen Law Found Not to Apply to Enforce Restrictive Covenants

By Glen Banks |

In his Contract Law column, Glen Banks reviews a recent case in which the Court of Appeals ruled that the right of an employee to pursue her livelihood was a fundamental public policy of New York such that a choice-of-law clause will not be enforced if the chosen law, when applied to the enforcement of covenants restricting an employee's ability to compete with her former employer, provides significantly less favorable protection to the employee compared to New York law.

Wendi S. Lazar

'1984' in 2015: Protecting Employees' Social Media From Misuse

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar writes: Firing, not hiring or not promoting an employee because an employer does not like someone's personality, hobbies or communications may be illegal, but the social media world, exponential growth of the Internet and the accessibility of inexpensive devices and technologies are making it easier for employers to do so regularly, while employees do not even realize their rights may have been violated.

Richard J. Schager, Jr.

Class Representatives and Counsel Under CPLR Article 9

By Richard J. Schager, Jr. |

Richard J. Schager Jr. writes that while the New York Legislature has yet to mount an effort to reform state class action rules to require judges to consider counsel's experience in appointing class counsel as their federal counterparts must, recent decisions suggest that courts already are giving greater scrutiny to class certification motions seeking the appointment of class representatives and class counsel.

Mark A. Berman

Facebook Discovery and Spoliation Sanctions

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman discusses 'HMS Holdings v. Arendt', which explained that in order to determine whether a requested sanction "fits the crime," courts balance the proportionality of the proposed sanction and focus on the actual prejudice that the harmed party may suffer in the litigation.

Anthony E. Davis

Amendments to Rules of Professional Conduct Are Mixed Bag

By Anthony E. Davis |

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

Joseph V. DeMarco and Urvashi Sen

Strategies for Navigating Business-to-Business Data Breaches

By Joseph V. DeMarco and Urvashi Sen |

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

Timothy Tippins

Peer-Review Experts in Custody Litigation

By Timothy M. Tippins |

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

Evan H. Krinick

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

By Evan H. Krinick |

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

Richard Siegler and Eva Talel

Tax Treatment of Condominiums—Under and Outside IRC §528

By Richard Siegler and Eva Talel |

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

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

Issue Selection and the Applicable Standard of Review

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

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

Elizabeth McNamara and Camille Calman

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

By Elizabeth McNamara and Camille Calman |

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

Steven V. Treglia

Recent Challenges to the FTC's Data Regulation Authority

By Stephen Treglia |

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

Thomas A. Dickerson and Colleen D. Duffy

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

By Thomas A. Dickerson and Colleen D. Duffy |

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

Martin A. Schwartz

Police Use of Force to Restrain the Mentally Ill

By Martin A. Schwartz |

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

Joseph E. Bachelder III

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

By Joseph E. Bachelder III |

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

Steven Pounian and Justin T. Green.

Legal Challenges Faced by Victims of Plane Shootdown Over Ukraine

By Steven R. Pounian and Justin T. Green |

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

Jeffrey D. Neuburger

Broadening the Scope of Privacy Under Video Protection Statute

By Jeffrey D. Neuburger |

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

Christine A. Fazio and Ethan I. Strell

Green Infrastructure, Stormwater and Water Quality

By Christine A. Fazio and Ethan I. Strell |

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

Richard B. Ancowitz

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

By Richard B. Ancowitz |

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

Martin Flumenbaum and Brad S. Karp

Government Collection of Telephone Metadata Exceeds Statute's Authority

By Martin Flumenbaum and Brad S. Karp |

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

Thomas P. Higgins

Condominium Foreclosures: Taking the First Steps Against Unit Owners

By Thomas P. Higgins |

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

Michael Rikon

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

By Michael Rikon |

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

Peter A. Crusco

Mapp Hearings, ISP Terms of Service, and User Privacy

By Peter A. Crusco |

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

Jennifer Hurley McGay and Sujata M. Tanikella

Implications of Relying on Advice of Counsel in the Second Circuit

By Jennifer Hurley McGay and Sujata M. Tanikella |

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

Conrad Teitell

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

By Conrad Teitell |

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

Philip T. Besirof and James J. Beha II

Deference When Board Refuses Shareholder Litigation Demand

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

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

George Bundy Smith and Thomas J. Hall

'At-Issue' Waiver of Attorney-Client Privilege

By George Bundy Smith and Thomas J. Hall |

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

Richard M. Strassberg and Valerie A. Haggans

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

By Richard M. Strassberg and Valerie A. Haggans |

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

Roberta S. Karmel

A Look Back at the Flash Crash and Regulatory Initiatives

By Roberta S. Karmel |

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

Christopher A. Gorman

Road Map to Complying With RPAPL Pre-Foreclosure Notice

By Christopher A. Gorman |

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

Roy L. Reardon and William T. Russell Jr.

Statute of Limitations Rulings in Two Cases

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

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

Robert Clarida and Robert J. Bernstein

Ninth Circuit Holds Actor Has No Copyright in Her Performance

By Robert J. Bernstein and Robert W. Clarida |

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

Hal R. Lieberman

'Dunn': Collateral Estoppel and Attorney Discipline

By Hal R. Lieberman |

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

Edward M. Spiro and Judith Mogul

Two Decisions Highlight the Perils of Witness Contact

By Edward M. Spiro and Judith L. Mogul |

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

Shari Claire Lewis

'Threat' Conviction Overturned; Mens Rea Standard Unclear

By Shari Claire Lewis |

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

Pierre Ciric and Thomas Vandenabeele

French Big Brother: Wiretapping Raises Privilege Concerns

By Pierre Ciric and Thomas Vandenabeele |

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

Sidney Kess

Looking Ahead to 2016: Changes and Uncertainties

By Sidney Kess |

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

Stephanie Braunstein

Uniform Guardianship Act Enables Transfers Between States

By Stephanie Braunstein |

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

Harvey M. Stone and Richard H. Dolan

Judge Cites 'Undue Hardship' in Ordering Conviction Expunged

By Harvey M. Stone and Richard H. Dolan |

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

Michael I. Rudell and Neil J. Rosini

Will Talent Agency Defense Overcome Idea Theft Claim?

By Michael I. Rudell and Neil J. Rosini |

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

Stephen Sonnenberg and Shaira Sithian

Mental Stability At Work: an Assessment

By Stephen Sonnenberg and Shaira Sithian |

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

David M. Barshay

Fees for Office-Based Surgical Facilities

By David M. Barshay |

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

Marshall Fishman and David Y. Livshiz

Do Recent Southern District Decisions Undo 'Daimler'?

By Marshall Fishman and David Y. Livshiz |

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