Expert Columns

Expert Analysis

Michael D. Patrick

Delay in Executive Action Impedes Business Interests

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: If the president plans to invoke his executive authority to implement immigration reform, his proposal must include business immigration provisions. Although the humanitarian crisis at the border rightfully must take precedence, the immigration needs of the business community also deserve to be addressed because of the immediate economic benefits that would be brought about.

Jeremy Temkin

IRS Summons Enforcement After 'United States v. Clarke'

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes that while the U.S. Supreme Court this past term resolved a circuit split as to what showing a party must make to obtain an evidentiary hearing as to whether a IRS summons was improper, it left open other potentially significant questions that counsel representing recipients of summonses must consider.

C. Raymond Radigan and Peter K. Kelly

Filing a Bond by a Preliminary Executor

By C. Raymond Radigan and Peter K. Kelly |

In their Trusts and Estates Law column, C. Raymond Radigan and Peter K. Kelly write that despite a 50-year history of dispensing with a bond for preliminary letters testamentary, courts continue to require a bond for a variety of reasons. Some Surrogate Courts have apparently adopted as a policy the requirement that every preliminary executor post a bond, vitiating the "extraordinary circumstances" of the relevant statute.

Lee Spielmann

Denaturalization of Nazi Perpetrators: What Have We Learned?

By Lee Spielmann |

Lee Spielmann writes: Given the importance of citizenship, and because the prosecution of Nazi denaturalization cases has ended, it is appropriate to ask what these proceedings achieved. What were the tangible, symbolic and historical accomplishments of America's efforts?

Joel Cohen

'Let Right Be Done': When Prosecutors Have a Higher Duty

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Most prosecutors believe that a defendant who has been convicted is guilty and that defense counsel does little more than look for loopholes to get their (guilty) client off, or at least, the best deal possible. I certainly did! And, typically, prosecutors proceed with this professional mind-set in good faith. The rules of professional conduct don't require otherwise. Maybe.

Stephen L. Kass

Presidential Action on Climate Change

By Stephen L. Kass |

In his International Environmental Law column, Stephen L. Kass suggests a number of approaches that the president might pursue if he is serious about finally addressing climate change while it is still possible for him to do so.

John L.A. Lyddane and Barbara D. Goldberg

Applying the Emergency Doctrine in Medical Malpractice 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: Because medical care providers are more attuned to medical emergencies than laypeople are, a notion has crept into New York law to the effect that the emergency doctrine is somehow less available in the context of evaluating the response of a nurse or doctor faced with a medical emergency.

Stephen M. Kramarsky

Tracking Down the 'Anonymous' Wrongdoer

By Stephen M. Kramarsky |

Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, writes: The rise of anonymous social media communications has caused courts to look carefully at a unique procedure that requires them to balance the aggrieved party's right to sue against the speaker's right to remain anonymous. 'Lemon Juice v. Twitter' is the representative case discussed.

Scott Edelman and Daniel Perry

Strategic Use of Settlement Tenders and Offers Under CPLR

By Scott Edelman and Daniel Perry |

Scott Edelman and Daniel Perry explore the tender and offer provisions of New York's CPLR and the strategic considerations implicated by each provision. Developing law in New York suggests that defendants should seriously consider whether these provisions can be used to obtain leverage and facilitate settlement early in a case.

Rupert Barkoff

Is the Franchising Business Model in Serious Trouble?

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff writes: Today, with the multiple recent legislative and judicial non-franchisor favorable developments relating to franchising, many are saying that the franchise model is headed for trouble. But others disagree. Some recent developments could mark the beginning of a period of change, and one that will clearly not be beneficial for franchisors; it may not be so favorable to some franchisees in the long run, either.

Steven R. Schindler and Katherine Wilson-Milne

Role of Judges in Authenticating Art in U.S. and Europe

By Steven R. Schindler and Katherine Wilson-Milne |

Steven R. Schindler and Katherine Wilson-Milne write: When the authenticity of a work of art is at issue, judges must make authenticity determinations based on the facts and opinions of experts presented to them, just as in other specialized subject matters. Unlike in a patent or medical malpractice case, however, written opinions of judges affirming the authenticity of an artwork will carry little weight in the actual art market where a recognized art market player or industry expert has declared that work inauthentic.

Michael Hoenig

When Experts Contradict Their Own Party's Testimony

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig focuses on a seemingly "exquisite" question in the law and lore of expert admissibility battles, namely, what happens when a party's factual testimony under oath contradicts his own expert's theory as to how the accident happened and how the alleged defect in the product could have caused the injury?

Joshua S. Bauchner

Let Them Plead in the Alternative

By Joshua S. Bauchner |

Joshua S. Bauchner writes: The right to plead claims in the alternative is well established in New York state practice and jurisprudence. Yet, courts often seek to "streamline" cases at the very nascent stages of a litigation by dismissing so-called "duplicative" claims seeking alternative forms of relief.

Harvey M. Stone and Richard H. Dolan

Sentence Reduced to Remedy Injustice

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent holdings in which Judge John Gleeson applauded the government for agreeing to a sentence reduction in an old case where the court had been statutorily constrained to impose an overly harsh prison term, Judge Arthur D. Spatt held that, despite a related pending state-court proceeding, abstention did not apply in light of recent U.S. Supreme Court authority, and more.

Joseph Lipari

Sales Tax Refund Cases Show no Sympathy for Sellers

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari writes: Who is liable for tax is often irrelevant to buyers and sellers—until they want a refund. Two recent Division of Tax Appeals administrative law judge determinations work through some of these issues.

Kathleen A. Scott

Proposed Identification of 'Beneficial Owners'

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott discusses proposed regulations from FinCEN, the U.S. agency tasked with issuing anti-money laundering regulations, that would require that a covered financial institution identify the beneficial owners of its legal entity customers.

Dennis Boshnack

First Department Supports Dismissing Parking Tickets

By Dennis Boshnack |

Dennis Boshnack discusses the recent decision in 'Nestle', which required strict compliance with the Vehicle and Traffic Law provision that "the plate type as shown by the registration plates" of the vehicle shall be inserted in the ticket, and questions three current adjudication policies of the New York City Parking Violations Bureau.

Michael B. Gerrard

Legal Challenges to Obama Administration's Clean Power Plan

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard reviews the three major theories that are being advanced by industries and states opposing the Clean Power Plan, which would use an existing section of the Clean Air Act to reduce emissions from existing coal-fired power plants.

Lewis R. Clayton

Patent Law Intersections With Antitrust

By Lewis R. Clayton |

In his Intellectual Property Litigation column, Lewis R. Clayton of Paul, Weiss, Rifkind, Wharton & Garrison writes: Antitrust is hostile to restraints of trade, while patent law creates them. The decision of a split appellate panel in 'Tyco Healthcare', which rejected certain antitrust claims while sustaining others, is the Federal Circuit's latest effort to balance these competing interests.

Ben Barnett and Rebecca Kahan

Judicial Battles Over Criminal Subpoenas for Online Data

By Ben Barnett and Rebecca Kahan Waldman |

Ben Barnett and Rebecca Kahan Waldman of Dechert write: Federal courts continue to struggle—and sharply disagree—over the scope of Fourth Amendment protections for ESI. One especially contentious issue has been whether the Fourth Amendment mandates certain restrictions on government search warrants for ESI controlled by third-parties.

John Rapisardi and Joseph Zujkowski

Second Circuit Expected to Address Key Issue for Distressed Bondholders

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski of O'Melveny & Myers write: Distressed bondholders should pay careful attention to a decision expected this fall from the U.S. Court of Appeals for the Second Circuit in 'Chesapeake Energy Corp. v. Bank of New York Mellon Trust Company'.

Norman H. Dachs and Jonathan A. Dachs

Individual Coverage Under Policies Issued to a Trade Name or 'd/b/a'

By Norman H. Dachs and Jonathan A. Dachs |

In their Insurance Law column, Norman H. Dachs and Jonathan A. Dachs of Shayne, Dachs, Sauer & Dachs discuss the issue of insurance policies which are issued under a trade name and discuss the Third Circuit case ‘Hartford Accident & Indemnity,’ where the court held that “where an insured purchases a policy in a trade name, the policy will be viewed as if issued in his given name.”

Dennis Glascott and Lisa Diaz-Ordaz

As 30th Anniversary Approaches, Time to Revisit Articles 50-A and 50-B

By Dennis P. Glascott and Lisa Diaz-Ordaz |

Dennis P. Glascott of Goldberg Segalla, and Lisa Diaz-Ordaz , counsel at Liberty Mutual Insurance, discuss CPLR Articles 50-A and 50-B, the statutes that mandate future damages be paid in periodic payments, and write: While the Legislature intended CPLR articles 50-A and 50-B to benefit both plaintiffs and defendants, the end result has been confusion and discontent to all parties, including judges.

Shepard Goldfein and James A. Keyte

Cartel Deterrence at U.S. Sentencing Commission

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte of Skadden, Arps, Slate, Meagher & Flom, discuss the sufficiency of the antitrust sentencing guidelines for achieving optimal cartel deterrence ,and write that “broader questions arise about whether increased antitrust sanctions are truly the most effective way to deploy government resources in pursuit of improved cartel deterrence.”

Richard Raysman and Peter Brown

Recent Disputes Between Parties to Joint Ventures

By Richard Raysman and Peter Brown |

Richard Raysman, a partner at Holland & Knight, and Peter Brown, the principal at Peter Brown & Associates, feature two prominent disputes that resulted in decisions at the federal level: One case deals with the legal implications of a conflict between two agreements signed by joint venturers on the same day, and in the other, a federal appellate court confronts a question of first impression in copyright law after a joint venture goes awry.

Anthony E. Davis

Alternative Structures Offer Other Visions of the Future

By Anthony E. Davis |

In his Professional Responsibility Column, Anthony E. Davis, a partner of Hinshaw & Culbertson, discusses recent developments in the legal profession and considers whether they will prompt a positive approach to providing legal services more effectively&and in more diverse ways& in the 21st century.

Laura F. Redman

Perspectives From Europe: Balancing Same-Sex and Religious Rights

By Laura F. Redman |

Laura F. Redman, a senior attorney with the National Center for Law and Economic Justice, writes: The Supreme Court's decision in 'Hobby Lobby' and the amendment to Executive Order 11246 have brought questions of intersecting individual rights into the forefront of U.S. debate.

Evan H. Krinick

Courts Permit Mallela Claims Against 'Article 28' Facilities

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick of Rivkin Radler, focuses on the application of 'State Farm v. Mallela' to "Article 28" facilities — facilities that are permitted to be owned by non-physicians and are subject to other requirements and regulations enacted by the state's Department of Health.

By Joel C. Haims, Jamie A. Levitt and James J. Beha II

Differing U.S. and Chinese Financial Disclosures Enough to Plead Fraud?

By Joel C. Haims, Jamie A. Levitt and James J. Beha II |

Joel C. Haims, Jamie A. Levitt and James J. Beha II, of Morrison & Foerster, discuss securities fraud litigation based on alleged discrepancies between U.S. and Chinese regulatory filings.

William M. Pinzler

'Hobby Lobby' and Piercing the Corporate Veil

By William M. Pinzler |

William M. Pinzler writes: The universal requirement for piercing the corporate veil is that the creditor must show that the owners exercised complete domination of the corporation in its operations, in other words, the corporation is the "alter ego" of its owners. Surely, the owners of Hobby Lobby, Mardel and Conestoga Wood demonstrate that they are exercising such domination by asserting their individual religious beliefs and imposing them on their employees.

Timothy M. Tippins

'Sykes v. Sykes': War of the Roses Reprised

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: In an era when all too many decisions are so sparse on facts, issue delineation and legal analysis as to be quite meaningless, the recent 'Sykes' decision is a refreshing and an important read that provides a virtual primer on the law of equitable distribution and spousal maintenance.

Richard Siegler and Eva Talel

Warranty of Habitability in 2014

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel discuss recent case law applying the warranty of habitability to secondhand smoke, noise, mold, lead-based paint and bedbug conditions, as well as the availability of punitive damages in connection with uninhabitability claims.

Matthew C. Kesten and Edward Lewand

Methods of Valuation in Matrimonial Appraisals

By Matthew C. Kesten and Edward Lewand |

Matthew C. Kesten and Edward Lewand write that typically, attorneys will seek a Fair Market Value appraisal of property. However, in a matrimonial situation, the FMV may differ depending on the nature of the assignment, the type of property being appraised, and the market in which the property might be sold. Marketable Cash Value is often the correct valuation method for matrimonial disputes.

Thomas R. Newman and Steven J. Ahmuty Jr.

CPLR 5601(a)—Appellate Division Dissent

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. examine 'Reis v. Volvo,' which was appealed as of right based on two dissents in the Appellate Division on a question of law in favor of the appellant. Although the Court of Appeals disagreed with the Appellate Division dissent concerning the impropriety of one aspect of the jury instructions, it nevertheless reversed and ordered a new trial on the basis of its further disagreement with the majority concerning another aspect of the charge.

Mark A. Berman

Decisions Address Relevance, Scope, Email and Privacy Issues

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman writes: State courts are savvy to issues concerning the discovery of ESI, and recent trial decisions offer practical and pragmatic rulings, particularly with regard to scope and relevance of discovery sought; email discovery; and privacy concerns.

Elkan Abramowitz and Jonathan Sack

Bank Secrecy Act: Why Few Individuals Are Charged

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write: In recent years white-collar criminal enforcement has been marked by a string of high-profile prosecutions of banks for violations of the Bank Secrecy Act. Notwithstanding a series of multi-billion dollar settlements, the government's enforcement efforts have met with criticism.

Derrelle M. Janey

Parallel Proceedings: Staying the Civil Action

By Derelle Janey |

Derelle Janey writes: Courts have long held there is a particular threat to a defendant's due process rights where a criminal prosecutor and a government civil enforcement agency might share information during a parallel proceeding, thereby working together to undermine a defendant's due process. Nevertheless, a stay of the civil proceeding is hardly a foregone conclusion.

Edward E. Neiger

City of Detroit Moves Ahead on Reorganization Plan

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger writes that in the months that followed the landmark December 2013 decision declaring Detroit eligible for Chapter 9 relief despite vehement opposition, Detroit engaged in discussions with its various creditor constituencies and worked to develop its plan of reorganization.

Adam R. Shaw

Decisions Address Need for Precision and Promptness

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw discusses an opinion evaluating whether a forum selection clause precludes removal to federal court; another delineating when a settlement is final and enforceable; and a third discussing waiver of the affirmative defense of insufficient service of process.

Stephen Gassman and David A. Martindale

Use and Misuse of Mental Health Professionals in Custody Cases

By Stephen Gassman and David A. Martindale |

Stephen Gassman and David A. Martindale discuss a recent custody case and issues it raised involving litigant preparation by mental health professionals, the tactical problems and opportunities such preparation presents, and the ethical obligations of mental health professionals who offer such services.

Martin Flumenbaum and Brad S. Karp

Court Potentially Expands Asylum Criteria

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Paloka v. Holder,' in which the court vacated and remanded a decision by the Board of Immigration Appeals that rejected the petitioner's appeal of denial of her application for asylum, a claim that was based on her inclusion in a "particular social group."

Jonathan Cooper

Decisions Spur Confusion as to Non-Competes

By Jonathan Cooper |

Jonathan Cooper writes: For several decades, New York's courts have read the seminal state Court of Appeals decision in 'Post v. Merrill Lynch' to mean that once an employee is terminated without cause from her job, her non-compete is rendered unenforceable as a matter of law. In the last two years, however, a trend has emerged where some courts in New York have pointedly declined to read 'Post' in this fashion.

Andrea M. Alonso and Kevin G. Faley

Tort Liability When Bystanders Are in the 'Zone of Danger'

By Kevin G. Faley and Andrea M. Alonso |

Kevin G. Faley and Andrea M. Alonso write that in New York, the general rule is that bystanders cannot assert a claim for negligent infliction of emotional distress. However, New York recognizes an exception to this principle: the "zone of danger" rule, which is commonly associated with automobile accidents, but has been applied in cases involving house fires, assaults and elevator accidents.

Elai Katz

Grocery Wholesalers' Asset Swap Scrutinized

By Elai Katz |

In his Antitrust column, Elai Katz reviews developments of interest, including the Second Circuit's decision that an alleged breach of contracts to supply generic drug companies with an unbranded version of a drug did not state a monopolization claim under a duty to deal theory, an Eighth Circuit ruling involving an asset swap agreement between grocery wholesalers, and more.

Edward M. Spiro and Judith Mogul

Shrinking Grounds for General Jurisdiction After 'Daimler'

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write that the Supreme Court's recent decision in 'Daimler v. Bauman,' calls into question whether certain long-held assumptions about the reach of New York's general jurisdiction statute are consistent with due process, and its impact is already evident in decisions from the U.S. District Court for the Southern District of New York.

Ben Rubinowitz and Evan Torgan

Videotaping IMEs: a Corollary to Defense Surveillance

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: Our first article on the topic of secretly taping so-called "independent medical examinations" was met with wide criticism by certain members of the defense bar. However, if we are to achieve fairness in the adversarial process, and if trials are to remain reliable means of discovering the truth, then both sides must be permitted to use covert video surveillance where appropriate.

Peter A. Crusco

Email Searches, the SCA and the Hybrid Search Warrant

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco, executive assistant district attorney, investigations division, Office of the Queens County District Attorney, writes: Third-party entities storing treasure troves of information have been on the front line in litigation concerning the legality of disclosure of such information, and email evidence as expected has been at the center of the controversy. Recurring questions include what legal standards apply to the disclosure of customer emails stored by ISPs? Does the Fourth Amendment's particularity command prevent the seizure of a customer's entire email account?

Bruce M. DiCicco

Inheritance by Wrongdoers in Victims' Estates

By Bruce M. DiCicco |

Bruce M. DiCicco examines approaches taken around the country to the question of denying inheritance rights to wrongdoers who are mentally incompetent.

Nativ Winiarsky

Commercial Tenants and Waiver of Real Property Law §227

By Nativ Winiarsky |

Nativ Winiarsky writes: Hidden in most standard form leases for commercial tenants is a seemingly innocuous sentence in a typically lengthy paragraph dealing with destruction to a leased space. That sentence waives the provisions of Section 227 of the New York Real Property Law—seemingly innocent enough, until one fully understands the ramifications.

Conrad Teitell

Charitable Gifts of Artworks—Report of IRS Panel

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes that charitable gifts of artworks almost always present valuation issues. An appraisal by a respected, unbiased qualified expert is key to substantiating a charitable deduction for a donated work of art. IRS has its own experts—the Art Advisory Panel.

Wallace Collins

Judicial Approval of Contracts With Minors

By Wallace E.J. Collins III |

Wallace E.J. Collins III writes: Technology start-ups and other computer software companies often employ teenage whiz kids to write code or create new apps, but a minor's ability to disaffirm a contract at any time during minority or upon reaching majority may seriously jeopardize the employer's financial investment, and the "work for hire" doctrine is an uncertain path.

Martin A. Schwartz

The Supreme Court's Qualified Immunity Quintet

By Martin A. Schwartz |

In his Section 1983 Litigation, Martin A. Schwartz reviews the five decisions concerning qualified immunity the U.S. Supreme Court rendered this past term, writing that while the court did not break new ground, it applied numerous important qualified immunity principles that make the decisions required reading for all §1983 litigators.

Robert Clarida and Robert J. Bernstein

Functionality Rulings Are Nothing to Cheer About

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein write: What do cheerleading uniforms and laminated faux-maple flooring have in common? Both have recently been the subject of dubious rulings about the copyrightability of useful articles that could, if not reversed, further muddy the already murky doctrinal waters the courts have created around this issue.

Lisa Gerson

Summer of Rule Changes in the Commercial Division

By Lisa Gerson |

Lisa Gerson writes: The past four months have seen the most changes to the Commercial Division rules of any year since the initial adoption of Section 202.70 in 2006. These changes include amendments to the jurisdictional requirements, changes to procedure, and additions to rules of discovery.

Michael Rikon

Applying Project Influence Rule in Condemnation

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon reviews a case in which the Court of Claims ordered an award on an appropriation claim which was lower than the advance payment, and the Third Department, in reversing, discussed the burden of proof when a change of zoning occurred to the property prior to the taking.

Asher B. White and Menachem White

Pitfalls of the Matrimonial Retainer Agreement

By Asher B. White and Menachem White |

Asher B. White and Menachem White write: The retainer agreement is a contract between an attorney and the client. However, in matrimonial cases, it is a force of its own. There are countless rules regarding matrimonial retainers that an attorney needs to prove were followed if he wants fees from the opposing side or from his own client.

Shari Claire Lewis

Court Addresses Bitcoin, Other Novel Online Technology Issues

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis, a partner in the Long Island office of Rivkin Radler, writes: 'United States v. Ulbricht' appears to be the first New York case to directly address Bitcoin currency—a form of virtual payment that recently has been in the news and, with other virtual currencies, is the subject of a recent advisory by the U.S. Consumer Financial Protection Bureau.

Roberta S. Karmel

Changing Face of Judicial Oversight of the SEC

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: For many years, the SEC led a charmed existence in the federal courts, rarely losing cases or having its rules invalidated. During the last quarter of the 20th century, the attitude of the federal courts changed.

Chaim A. Levin

Dodd-Frank, 'Morrison' and Global Securities Transactions

By Chaim A. Levin |

Chaim A. Levin writes: With greater frequency our courts are asked to evaluate the competing interests of foreign jurisdictions and our own ideals of what disclosure and accountability procedures need to be undertaken in a myriad of increasingly complex multinational transactions—a particularly thorny evaluation in circumstances when at least one of the principals to the transactions under review endeavored to avoid the reach of U.S. regulations.

Sidney Kess

Affordable Care Act Reporting and Other Developments

By Sidney Kess |

In his Tax Tips column, Sidney Kess provides an overview of new tax forms relating to the Affordable Care Act, draft versions of which have been revealed, and advises readers on who must file them.

Richard S. Fries

Commercial Division's 'Rocket Docket'

By Richard S. Fries |

Richard S. Fries describes the new rule providing for the accelerated adjudication of disputes in the Commercial Division, the manner in which it can be used, the restrictions on discovery, the agreed-upon mutual waiver of important traditional rights and protections, certain potential strategies that may come into play, and the implications on the commercial case.

George Bundy Smith and Thomas J. Hall

The Wrongful Act Requirement for Piercing the Corporate Veil

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall review recent decisions that make it clear that abuse of the corporate form is not enough to impose a corporation's liabilities on its shareholders. A party seeking to pierce the corporate veil needs to prove a wrong committed against it, and must also establish a causal connection between the abuse of the corporate form and the wrongful conduct for which relief is sought.

Linda Riefberg and Joseph Dever

Compliance Officers Beware: A Firm's Failure Can Get Personal

By Linda Riefberg and Joseph Dever |

Linda Riefberg and Joseph Dever write that the SEC and FINRA currently have different approaches to Compliance Officers. The SEC requires as a threshold matter supervisory responsibility over other individuals. FINRA, on the other hand, is satisfied if the compliance professional has supervisory responsibilities over businesses or program areas that had failures, even if the person was not an actual supervisor.

Daniel G. Fish

Decision Expands Hardship Exception to Medicaid Denial

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes that many practitioners had dismissed as a mirage the undue hardship exception, under which Medicaid assistance will be available to a nursing home resident despite the transfer of funds within the five-year look back period. A recent decision should lead to a reexamination of the situations in which the exception is applicable.

Robert L. Schonfeld

Fair Housing Decision Tests Previous Notion of Standing

By Robert L. Schonfeld |

Robert L. Schonfeld writes that while contrary to traditional notions of standing, persons and entities not within a protected class have standing to challenge discriminatory housing practices under the Fair Housing Act. A recent Second Circuit decision demonstrates the strength of that statute.

Peter M. Fass

General Solicitation and Advertising in Rule 506 Offerings

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass reviews SEC amendments to Rule 506 of Regulation D and to Rule 144A under the Securities Act of 1933 that will permit sponsors of real estate offerings to more broadly solicit investors and publicize their offerings.

Shepard Goldfein and James A. Keyte

Antitrust and Conditional Pricing Practices

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte discuss a recent joint workshop held by the Antitrust Division of the DOJ and the FTC that was prompted by the recognition, at both agencies, that the economic complexities surrounding conditional pricing practices are quite complex and that the legal framework for analyzing such practices remains in flux.

Paul Bennett Marrow

Judicial Supervision of an Ongoing Arbitration

By Paul Bennett Marrow |

Paul Bennett Marrow writes: Even though the FAA does not mention a judicial power to supervise, some courts justify intervention to overturn interim arbitral decisions, claiming authority in equity, i.e. to assure the fairness and efficiency of the arbitration process. But while it is possible to enlist the assistance of a court, it isn't easy to do so.

Sarah S. Gold and Richard Spinogatti

Fiduciary Exception to Privilege in Books and Records Case

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti discuss the Garner exception to attorney-client privilege and a recent Delaware decision that reminds corporate managers and directors of the breadth of discovery available in Section 220 books and records proceedings.

Joel Cohen

When Prosecutors Treat Counsel Differently

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes that although no defendant is entitled to "open file" discovery—where prosecutors completely open their case files to the defense attorney, wheat, chaff and all—some prosecutors, particularly if they trust the defense lawyer on the other side, actually do informally engage in it. But are there any ethical restrictions that frown the practice, which can result in disparate treatment to defendants (or their lawyers)?

Thomas A. Dickerson and Sylvia O. Hinds-Radix

Apartment and Car Sharing: A Disruptive Internet Revolution

By Thomas A. Dickerson and Sylvia O. Hinds-Radix |

Thomas A. Dickerson and Sylvia O. Hinds-Radix discuss Airbnb, Uber and Lyft; tax issues presented by such "digital clearinghouses"; and recent actions by the New York State Attorney General to control the onslaught of these Internet-based companies.

Richard Raysman and Peter Brown

Courts Conflict on Anonymous, Allegedly Defamatory Online Speech

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman, a partner at Holland & Knight, and Peter Brown, the principal at Peter Brown & Associates, write: Anyone spending 10 minutes on the Internet reading content is often assaulted by angry and coarse language supporting frequently outrageous opinions. The First Amendment concepts of free speech have reached either new highs, or discouraging lows, when dealing with opinions and blogs on the Internet. In this unrestricted environment, can individuals or businesses protect their reputations?

Tax Department Reads Taxpayer Residency Victory Narrowly

By Mark E. Berg |

Mark E. Berg reviews the Court of Appeals' recent holding that in order for a dwelling to be considered a permanent place of abode maintained by the taxpayer, it must be "utilized as the taxpayer's residence" and "the taxpayer must, himself, have a residential interest in the property"; along with recent changes to guidelines in the wake of that decision.

Michael Hoenig

Expert's Causation Opinion Excluded by 'Zoloft' MDL Judge

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig analyzes a recent decision that demonstrates how painstaking the "gatekeeping" task of a judge is when an expert, even one well qualified in the scientific field, expresses opinions and uses methods that depart from accepted principles and methodology recognized by the relevant scientific community.

Ilene Sherwyn Cooper

Discovery Proceedings: Recovering Assets

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: The duty to marshal estate assets is a fundamental responsibility of a fiduciary. When a third party refuses to relinquish an asset belonging to an estate, or possesses information as to an asset's whereabouts, proceedings for the recovery, or discovery, of the asset may be utilized by the fiduciary to fulfill this task.

Harvey M. Stone and Richard H. Dolan

Two Cases Revisit Criminal Convictions

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent cases involving the Real Estate Settlement Procedures Act, allegations of pregnancy discrimination, a successful attempt to vacate a conviction in the interests of justice and an unsuccessful attempt to win expungement of a conviction, denied for lack of jurisdiction.

Oleg Rivkin

Foreign Judiciaries Through the Eyes of U.S. Courts

By Oleg Rivkin |

Oleg Rivkin writes that American courts are frequently asked by litigants to render decisions concerning the adequacy and integrity of other countries' judicial systems, usually in foreign judgment recognition proceedings or forum non conveniens applications.

Christopher Dunn

Is U.S. Supreme Court Living in the 18th or 21st Century?

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: The role that colonial practices should play in constitutional jurisprudence has long been debated, with Justice Scalia serving as the most prominent supporter of the view that the guarantees of the Bill of Rights must be grounded in the original intentions of the "Founding Fathers." Yet, with nearly 250 years separating contemporary American society from the Declaration of Independence, the tenuousness of this position becomes increasingly evident.

Michael J. Hutter

Excited Utterances and Present Sense Impressions: Time to Reevaluate?

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes that in a recent garden variety case in which a 911 call was admitted under the hearsay exceptions for present sense impressions and excited utterances, the Seventh Circuit expressed its view that those exceptions do not necessarily rest on a sound foundation.

Dennis J. Dozis

Establishment Clause Extended to Non-Ordained Clergy Member

By Dennis J. Dozis |

Dennis J. Dozis writes: As a result of the prohibition against secular entanglement in religious beliefs, the courts of this state have undertaken the arduous task of defining the Establishment Clause's scope in sexual affair and abuse cases and identifying which individuals are protected thereunder. In so doing, the courts have published tense decisions and engendered precedent contracting and expanding the constitutional proscription.

Richard D. Winsten and Paul F. Millus

Cannabis Conundrum: Medical Marijuana Law and Employers

By Richard D. Winsten and Paul F. Millus |

Richard D. Winsten and Paul F. Millus discuss cases in other states relating to an employee's use of medical marijuana and an employer's rights as stated in a written drug policy, and what those cases bode in terms of how local courts will handle New York's Compassionate Care Act in an employment setting.

Jerry H. Goldfeder and Myrna Perez

The Governor Challenges His Opponent's Residency

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write that although Governor Cuomo's allegation that Zephyr Teachout has not continuously resided in New York for the past five years is somewhat sensational given the parties involved, election trials such as this are fairly common during late July and August.

Walter P. Loughlin

Tinkering With the Machinery of Death

By Walter P. Loughlin |

Walter P. Loughlin writes: Whether or not botched execution procedures will continue to plague the lethal injection regime, other refinements to the machinery of death are readily available to be implemented with the aim of reducing unconstitutional unfairness and the risk of the wrongful conviction and execution of the innocent.

Robert J. Anello and Richard F. Albert

When the Government Searches Your Hard Drives

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert review recent decisions that provide reason for hope that, in the digital age, the courts may breathe a bit more life back into the Fourth Amendment after years of cutting back on its protections.

Thomas A. Moore and Matthew Gaier

Opening Statements: A Critical Juncture

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier address the components of an effective opening for the jury, as well as the potential legal implications that may lead to the rare dismissal based upon an opening statement.

H. Christopher Boehning and Daniel J. Toal

Court Praises Predictive Coding, But Ultimately Rejects It

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal, litigation partners at Paul, Weiss, Rifkind, Wharton & Garrison, discuss 'Progressive Casualty Ins. v. Delaney', in which the court sheds light on the reasons why parties have been reluctant to accept predictive coding and highlights a key debate over best practices.

Modernizing New York's Uniform Commercial Code

By Janet M. Nadile, Lawrence Safran, and Stanley R. Simon |

Janet M. Nadile, Lawrence Safran, and Stanley R. Simon review the revisions to the New York Uniform Commercial Code contained in the recently passed Assembly Bill 9933, which will bring Articles 1, 7, and 9 of the code up to date with comparable revisions enacted in other states.

Jeffrey S. Klein and Nicholas J. Pappas

Succession Planning: Avoiding Age Discrimination Claims

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas write that with 25 million Baby Boomers poised to leave the work force in the coming years, many employers are facing the need to plan for the loss of experienced employees. Although courts have long recognized the legitimate interest in succession planning, it should be undertaken with an eye toward potential legal issues.

John P. Furfaro and Risa Salins

Supreme Court Review: NLRB, ERISA, Affordable Care Act

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins address this term's Supreme Court rulings on the validity of the 2012 recess appointments to the NLRB, the constitutionality of state "fair share" laws, the enforceability of contractual limitations periods in benefit plans governed by ERISA, whether a special presumption of prudence applies to fiduciaries of ESOPs and religious exemptions to the contraceptive mandate imposed under the Affordable Care Act.

Brian J. Shoot

Repair or Routine Maintenance; Sole Proximate Cause Defense

By Brian J. Shoot |

In his Construction Accident Litigation, Brian J. Shoot discusses distinguishing a "repair," which is expressly covered by the so-called scaffold statute, from "routine maintenance," which is not; and the "sole proximate cause" defense, which will bar a plaintiff-worker's recovery when there was no statutory violation and the accident was solely caused by the plaintiff.

Brian Trust, Joel Moss and Monique Mulcare

Key Court Holds Trademark License Survives Bankruptcy

By Brian Trust, Joel Moss and Monique Mulcare |

Brian Trust, Joel Moss and Monique Mulcare review an Eighth Circuit decision where the court found that a license agreement was part of a single integrated agreement and not executory, joining the Third Circuit in allowing a trademark licensee to continue to use its licensed trademarks free from the tactical threat by the debtor that it will reject its licenses pursuant to section 365 of the Bankruptcy Code.

Elizabeth McNamara and Samuel M. Bayard

The Right to Be Forgotten or Not Exposed

By Elizabeth McNamara and Samuel M. Bayard |

In their Media Law column, Elizabeth McNamara and Samuel M. Bayard write that New York legislators, in taking aim at websites that make a business of publishing people's mug shots and demanding payment to take them down, are considering a solution that would block access to booking photos until after a conviction is obtained, unnecessarily burdening journalists' ability to report the news and the public's right to receive it.

Harold P. Weinberger, Jonathan M. Wagner and Norman C. Simon

Supreme Court Opinions Augur Increased Lanham Act Litigation

By Harold P. Weinberger, Jonathan M. Wagner, and Norman C. Simon |

Harold P. Weinberger, Jonathan M. Wagner, and Norman C. Simon write: Since its enactment in 1947, Section 43(a) of the Lanham Act—the federal false advertising statute—has rarely been addressed by the Supreme Court. This term, however, the Supreme Court issued two unanimous Lanham Act decisions that make it easier for plaintiffs to bring false advertising suits.

Warren H. Richmond

Amendment to Teacher Evaluation Regulations Creates Further Confusion

By Warren H. Richmond |

Warren H. Richmond, a partner of Harris Beach, writes: On June 24, 2014, the Board of Regents adopted an amendment to §30-2.1(d) of its rules to provide guidance to New York school districts regarding the termination of probationary teachers. Unfortunately, both the amendment and the circumstances leading to its adoption have succeeded only in creating further confusion in an area that had already been extremely murky.

Michael I. Rudell and Neil J. Rosini

Aereo Decision's Narrow Breadth Leaves Questions Unanswered

By By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini of Franklin, Weinrib, Rudell & Vassallo, discuss the recent ruling of the U.S. Supreme Court that the Aereo service, which allowed its subscribers access via the Internet to local broadcasts of television programs on their home and mobile devices, violates copyright law. The authors further examine what questions were left unanswered for other automated systems.

Nicholas M. De Feis and Philip C. Patterson

End Run: Using Search Warrants to Obtain Foreign Records

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

In their International Criminal Law and Enforcement column, Nicholas M. DeFeis and Philip C. Patterson of De Feis O'Connell & Rose, write about the authority of the Justice Department to compel a domestic corporation to produce emails stored on an overseas server.

Samuel Estreicher and Holly H. Weiss

Anti-Arbitration Provisions and Dodd-Frank Act

By Samuel Estreicher and Holly H. Weiss |

In their Arbitration column, Samuel Estreicher, the Dwight D. Opperman Professor of Law at New York University School of Law and of counsel to Schulte Roth & Zabel, and Holly H. Weiss, a partner at Schulte Roth discuss arbitration developments in light of Dodd-Frank's anti arbitration provisions.

Steven V. Treglia

Decisions Limit Government's Access to Stored Digital Data

By Stephen Treglia |

In his E-Communications column, Stephen Treglia, legal counsel at Absolute Software Corporation, writes: In its latest decision, 'Riley v. California', the Supreme Court ruled that law enforcement may not utilize the warrant exception of search incident to a lawful arrest to justify a warrantless search of the contents of a cell phone. What makes Riley particularly interesting is that its holding flies in the face of lengthy historical precedent merely because the item being seized from the arrested individual is a miniature computer.

David Hammer and Richard Maltz

Escrow Accounts After 'Galasso': You Are Your Brother's Keeper

By David S. Hammer and Richard M. Maltz |

David S. Hammer, a former assistant U.S. Attorney, and Richard M. Maltz, counsel to Frankfurt, Kurnit, Klein & Selz, explain that a lawyer who steals escrow funds commits a crime, ethical violation and a tort. If the lawyer is a partner in the firm, the firm itself may be liable for damages and disciplinary sanctions. The authors then explore the question: What of partners in the firm who were not complicit in the theft but made it possible by failing to supervise the firm's escrow accounts?

Alton L. Abramowitz

It's 'My' House…or Is It? Equitable Distribution of Marital Residences

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz a senior partner at Mayerson Abramowitz & Kahn, writes: The battle over how to distribute the "profits" due to appreciation, as well as the underlying initial investment at the time of purchase of a marital residence, can become one of the most difficult and important financial issues confronting the attorneys for a divorcing couple, oftentimes bringing to the forefront anger that has built up for many years over real and imagined slights, all revolving around the questions of: "Whose house is it?" or "What contributions did my spouse make?"