Expert Analysis

Charlotte A. Biblow

State Regulation Is Key Factor in Wind Farm Development

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: New York is the 15th windiest state in the nation, and 13th for installed wind generation capacity. Its wind resource potentially could fill over half of the state's current electricity needs. It is not surprising, therefore, that more wind projects are on the horizon for New York.

Lawrence W. Newman and David Zaslowsky

Supreme Court Weighs In on International Litigation

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky discuss 'RJR Nabisco v. European Community,' in which the U.S. Supreme Court said the question of whether RICO has extraterritorial reach depends on the specific allegations of misconduct and injury, and 'Bank Markazi v. Peterson,' where the court considered the separation of powers doctrine as applied to a statute governing the execution against Iranian assets by holders of terrorism judgments.

Stephen Donaldson

Paying for Court Evaluator Appointed for Incapacitated Person

By Stephen Donaldson |

Stephen Donaldson writes: Overall, Article 81 does a good job of serving its purpose of promoting the public welfare by establishing a guardianship system. However, Article 81 obviously leaves some things to be desired in terms of compensation for court appointees who spend significant amounts of time helping courts identify whether a person is incapacitated.

Robert C. Scheinfeld

Supreme Court Guidance on Damages and Proceedings in Patent Cases

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Within the last month, the U.S. Supreme Court bolstered the strength and attractiveness of inter partes review conducted by the Patent Trial and Appeal Board and provided greater district court discretion for determining willful infringement and enhancing damages in patent cases.

Martin Flumenbaum and Brad S. Karp

Exploring Standing Issues for Third-Party Intervenors

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp review a case in which the court considered the question of whether to permit intervenors to participate in lawsuits without requiring that they independently possess standing. The circuit adopted a more expansive construction of the federal judicial power and narrower construction of the case or controversy requirement.

Stephen M. Kramarsky

Court Examines Trademark Claims Against 'Compatible' Coffee Pods

By Stephen M. Kramarsky |

Stephen M. Kramarsky of Dewey Pegno & Kramarsky discusses a recent case in the Southern District of New York, which shows how the company maximized the protection of its name and image by bringing well-established claims of trademark and trade dress infringement. The opinion is a good example of how traditional legal tools can be put to work by businesses facing novel market issues.

Robert S. Kelner and Gail S. Kelner

Tort Liability and the 'Self-Driving' Car

By By Robert S. Kelner and Gail S. Kelner |

Robert Kelner and Gail Kelner of Kelner & Kelner forsee that self-driving cars will inevitably be the subject of litigation in New York. In their Trial Practice column, they look at the present automated technology, and then discuss where the law may go with these self-driving cars.

Francis J. Serbaroli

New Law to Combat Opioid Addiction

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli of Greenberg Traurig discusses the growing epidemic of addiction to the prescription pain medications known as “opioids.” He summarizes legislation recently enacted in New York that is the latest attempt to curtail opioid abuse. The law places new requirements on hospitals, physicians and other licensed prescribers, substance abuse treatment providers, pharmacies, health insurers, and managed care plans.

Robert D. Lang and Lenore E. Benessere

Independent Medical Examination Watchdog: a Bark Worse Than Its Bite

By By Robert D. Lang and Lenore E. Benessere |

Robert D. Lang and Lenore E. Benessere discuss the recent case “IME Watchdog v. Baker, McEvoy, Morrissey & Moskovits” which raises a new issue when it comes to the manner in which an independent medical examination is conducted, namely whether plaintiffs’ attorneys may hire third-parties to audit the examinations and even direct plaintiffs not to participate in all portions of the them.

Jared B. Stamell and Andrew R. Goldenberg

Limits of Out-of-Court Debt Restructurings

By Jared B. Stamell and Andrew R. Goldenberg |

Jared B. Stamell and Andrew R. Goldenberg analyze recent decisions in two cases in the Southern District addressing whether lack of unanimous holder consent in an out-of-court debt restructuring violates §316(b).

Thomas F. Gleason

It's Time for Tweaks To CPLR 5501

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason discusses how the scope of review provided by CPLR 5501 on an appeal from the final judgment has some "less-than-clear limitations" and offers that the words used such as "non-final judgment or order" and "necessarily affects" are not as clear as would be desirable for determining such a critical issue as reviewability on appeal.

James E. Mercante

Treasure at Sea: Finders Are Not Always Keepers

By James E. Mercante |

In his Admiralty Law column, James E. Mercante of Rubin, Fiorella & Friedman discusses a recent case in which a U.S. government data buoy detached from its mooring anchor at sea and was discovered by the captain of a fishing vessel. As the vessel owner quickly learned, sea rights are determined by federal maritime law and "finders" are rarely "keepers".

Joseph D. Nohavicka

Use of Disciplinary Action in Med-Mal Litigation Prohibited

By Joseph D. Nohavicka |

Joseph D. Nohavicka of Pardalis & Nohavicka discusses 'Mazella v. Beals', in which the court determined that it was improper to admit a consent agreement between the defendant doctor and the Office of Professional Medical Conduct, which contained evidence of the doctor's negligent treatment of 12 unrelated patients.

Defamation Case Revived in Daily News Photo Use

The appeals court reversed itself Tuesday in a case that's been closely watched by media organizations and users of stock photos.

Eric Holder, Covington & Burling

Airbnb Hires Eric Holder to Craft ‘Stronger’ Anti-Discrimination Policy

Amid mounting allegations of bias in its home-sharing platform, Airbnb Inc. has hired former U.S. Attorney General Eric Holder Jr. to help craft a “stronger” anti-discrimination policy aimed at eliminating “explicit racism and implicit biases,” the company said Wednesday.

Sharon M. Porcellio

Noteworthy Reminders on Venue and Preliminary Injunction

By Sharon M. Porcellio |

In her Western District Roundup column, Sharon M. Porcellio discuss several "novel and interesting cases this quarter, including "Lombardi v. United States Postal Service," where newlyweds sued the Postal Service pro se in small claims court claiming damages in connection with the Postal Service's alleged failure to inform the plaintiffs that their wedding invitations required additional postage resulting in their invitations being either undelivered or significantly delayed.

Arthur J. Ciampi

Preparing Agreements for the Worst, and Best, of Times

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi discusses a recent case from a Colorado state court, which illustrates how the absence of an agreement led to litigation among lawyers and suggests how the existence of an agreement may have avoided such disputes.

Michael D. Patrick

Immigration Legislation—A 35-Year Review

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: I have had the great fortune of practicing immigration law for the past 35 years, the first five of which were with the government. Over this time, I have observed both periods of revolutionary immigration legislation and extensive congressional gridlock. The most successful immigration reforms have been a direct result of bipartisan support of a common cause.

Sidney Kess

Immediate and Long-Term Tax Strategies for Windfalls

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses various exclusions that transform some recoveries into tax-free income, steps that can minimize taxes, and some long-term considerations when your client has come into sudden wealth.

Amber Wessels-Yen and Karl Geercken

'RJR Nabisco': Supreme Court Rules on RICO Extraterritoriality

By Amber Wessels-Yen and Karl Geercken |

Amber Wessels-Yen and Karl Geercken write: On June 20, the Supreme Court issued its much-anticipated decision in 'RJR Nabisco v. European Community,' applying its new extraterritoriality analysis to RICO claims. The result is an opinion that addresses some disputes among the lower courts, leaves others unaddressed, and breaks new ground to limit the availability of U.S. courts to decide intrinsically foreign civil disputes.

Jonathan A. Dachs

SUM Offsets: a Rare Reversal of 'Settled' Law

By Jonathan A. Dachs |

In their Insurance Law column, Jonathan A. Dachs writes: One of the more interesting insurance law questions posed to the courts in recent years involves whether an "SUM" carrier is entitled to a reduction in coverage for the amount(s) received from non-motor vehicle tortfeasors, such as municipalities, bars or medical providers. A recent Second Department decision has created a division in authority.

Stephen A. Helman

Subordination of Lease and the Doctrine of Merger

By Stephen A. Helman |

Stephen A. Helman discusses Subordination, Non-disturbance and Attornment Agreements, which achieve the subordination of the tenant's lease to the mortgage on the landlord's fee estate and the contemporaneous protection of the tenant against the foreclosure of such mortgage, and recommends provisions to be included if the lease contains a right of first refusal or offer.

Samuel Estreicher and Holly H. Weiss

Arbitration Provision Barring Class Action Ruled Void

By Samuel Estreicher and Holly H. Weiss |

In their Arbitration column, Samuel Estreicher and Holly H. Weiss write that in May, the Seventh Circuit issued the first appellate decision to agree with the National Labor Relations Board that §7 of the NLRA bars employers from requiring as a condition of employment that employees agree to an arbitration provision precluding class or collective actions, a decision that sets up a circuit split.

Scott W. Doyle and Jonathan R. DeFosse

Supreme Court's First Decision on Inter Partes Review Proceedings

By Scott W. Doyle and Jonathan R. DeFosse |

Scott W. Doyle and Jonathan R. DeFosse write that in June, the Supreme Court issued its first decision addressing inter partes review proceedings before the PTO. In a defeat for those who believe the process allows accused infringers to unfairly harass patent owners, the court upheld the claim construction standard and confirmed that appeals may only be taken from the board's final written decisions.

Ken Strutin

Pain, Punishment and the Path Forward

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Criminal justice inflicts pain as punishment even as excessive suffering is constitutionally proscribed. But how far can the conventional metrics of pain go in setting the boundaries of due process and due punishment?

Roy L. Reardon and William T. Russell Jr.

Common Interest Doctrine; Juror Note; AG's Greenberg Case

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 addressed the application of the common interest doctrine to communications shared between companies in the process of merging, affirmed the denial of summary judgment to two former AIG executives in a case brought by the Attorney General, and determined that a trial court's failure to meaningfully respond to a note from a deliberating jury does not require reversal as long as counsel had been given notice of the note's content.

Andrew W. Stern and Benjamin F. Burry

New York and Delaware Agree: Directing Should Be Left to Directors

By Andrew W. Stern and Benjamin F. Burry |

Andrew W. Stern and Benjamin F. Burry write: The New York Court of Appeals has expressly adopted the standard from Delaware's highest court governing transactions in which a controlling shareholder proposes to take a public company private. But perhaps not enough attention has been paid to these two influential courts' having put the proverbial nail in the coffin of the proposition that ad hoc judicial inquiry provides better protection of shareholder rights than a properly run corporate process, overseen by independent fiduciaries.

E. Leo Milonas and Andrew C. Smith

Privileged Communications With Law Firm General Counsel

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith review recent decisions on satisfying the "demand" requirement for a derivative shareholder suit, the appraisal of shares of a minority partner who has wrongfully dissolved a partnership, parole considerations for persons who were juveniles at the time they committed their crimes, a state agency's mandate to investigate reports of neglect at a care facility, and more.

Adam R. Shaw

Anonymity in Lawsuit Maintained; Removal to Federal Court Denied

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw discusses noteworthy decisions, including one addressing when it is proper to maintain a lawsuit anonymously and another remanding contempt proceedings to state court.

Kenneth E. Pitcoff and Andrea M. Alonso

Liability and Emergency Responders: a U-Turn Around 'Kabir'

By Kenneth E. Pitcoff and Andrea M. Alonso |

Kenneth E. Pitcoff and Andrea M. Alonso write that in 2011, the Court of Appeals drastically undercut the protection afforded to emergency responders under New York Vehicle and Traffic Law, holding that the "reckless disregard" liability standard only applied when emergency vehicle drivers were engaged in one of four categories of privileged conduct. Since then, appellate courts have greatly broadened the stringent 'Kabir' criteria in an attempt to fashion a realistic and workable model.

Timothy Tippins

Overcoming Hearsay Heresy: It's a Bloody Good Rule!

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: Centuries before the computer whiz kids made the phrase "Garbage In, Garbage Out" part of our national lexicon, the common law judges and barristers of Westminster Hall understood the principle it embodies. In the adjudicative context relevant to lawyers and judges it is as simple as it is critical: A true decision must rest upon true facts, and true facts emerge only from reliable proof.

Lila Ayers

Unpaid Rent Can Be Recovered for Illegal One- or Two-Family Units

By Lila Ayers |

Lila Ayers writes: Anyone practicing landlord-tenant law in recent years, at some point, was likely to be informed "you can't collect rent on an 'illegal apartment,'" usually a basement space. This is no longer true, at least with regard to a one-family building.

Michael B. Gerrard and Edward McTiernan

Survey of 2015 Cases Under State Environmental Quality Review Act

By Michael B. Gerrard and Edward McTiernan |

In their Environmental Law column, Michael B. Gerrard and Edward McTiernan review the Court of Appeals' correcting a longstanding flaw in some lower courts' application of the standing doctrine to restrict access to the courts by environmental plaintiffs, along with other SEQRA decisions.

Lewis R. Clayton and Eric Alan Stone

Supreme Court Underscores Judicial Discretion in IP Cases

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone report on two Supreme Court decisions emphasizing the district courts' discretion in awarding enhanced damages in patent cases and attorney fees in copyright cases; a Supreme Court decision upholding the PTO's standard of review in inter partes review proceedings; and a Second Circuit decision discussing nominative trademark fair use.

Kathleen A. Scott

Measuring Up to International Capital Standards

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott writes that the Basel Committee of the Bank for International Settlements sets international capital standards but those standards must be adopted by individual countries to have any legal effect. A recent evaluation of the higher loss absorbency requirement in the United States, China, European Union, Japan and Switzerland shows how some jurisdictions deviate from the standard, either falling short or exceeding it.

Jonathan Honig

The Arbitration Wars: An Epic Battle

By Jonathan Honig |

Jonathan Honig writes: After several years in which every court found the Federal Arbitration Act trumps the National Labor Relations Act bar on class action waivers, the Seventh Circuit came out with its 'Lewis v. Epic' decision recently, with the revolutionary, but correct, holding that the NLRA is not in conflict with the FAA and proscribes class action waivers in arbitration of employment disputes.

Shepard Goldfein and James A. Keyte

A Busy Few Months of Merger Enforcement at the FTC

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: The FTC has litigated three merger-related preliminary injunction applications during the last two months, winning one—which joins what can now fairly be called a "string" of victories in cases involving highly concentrated industries within relatively static marketplaces—and losing two.

Russell Penzer

FLSA Litigation: New Era of Judicial Protectionism?

By Russell Penzer |

Russell Penzer writes: Recently, several federal district courts and circuit courts of appeals have rendered decisions uncharacteristically protective, or some have argued paternalistic, toward plaintiffs in Fair Labor Standards Act cases.

Richard Raysman and Peter Brown

Enforceability of Mandatory Arbitration in Online Contracts

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown take a look at the differing results reached in recent cases involving defendants' motions to compel arbitration, including: the Seventh Circuit's refusal to enforce an arbitration provision absent adequate notice to the consumer, and the opposite holding in a federal district court opinion issued in late June.

C. Raymond Radigan and Jennifer F. Hillman

Mortmain Statutes and Testamentary Gifts to Charities

By C. Raymond Radigan and Jennifer F. Hillman |

C. Raymond Radigan and Jennifer F. Hillman examine the historic reasons for mortmain, statutes ostensibly meant to protect testators and their families from overreaching religious or charitable groups, and the reasons why the legal system has embraced free will over regulation.

Michael Hoenig

Practical Tips for Trial Regarding the Defense Case

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: Presentation of the defendant's case in the modern products liability trial is the major opportunity to set the record straight and demonstrate to the jury that a perhaps catastrophically injured plaintiff is not entitled to recover. Counsel early on urged jurors to keep an open mind, promising them another side of the story. Now he or she must deliver.

Daniel J. Buzzetta

Merger Partners: Beware of Effect of Ambac Ruling on Privilege

By Daniel J. Buzzetta |

Daniel J. Buzzetta writes: Although most people would prefer not to be faced with the threat of anticipated or actual litigation, the state's highest court recently ruled that such threat is necessary before a party may share attorney-client privileged information with another party with whom it shares a common interest.

Harvey M. Stone and Richard H. Dolan

Jury Verdict Set Aside in Dispute Between Software Companies

By Harvey M. Stone and Richard H. Dolan |

Harvey M. Stone and Richard H. Dolan review a decision that a plaintiff's reassignment from his position as an armed ATF Special Agent to another job within the agency did not amount to discrimination, another that held the company designated by plaintiffs' counsel as the proper plaintiff at the close of all evidence was not the real party in interest, and a third rejecting petitioner's challenge to his state murder conviction based on the use of digital imaging to show his palm print on duct tape that had been recovered from his wife's body.

Sue C. Jacobs

Court of Appeals Refuses to Expand the Common Interest Doctrine

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs discusses the recent decision reaffirming New York state's long-held precedent that the common interest doctrine applies to communications with a third party having a shared interest only if there is pending or reasonably anticipated litigation, a narrower view of the doctrine than that held by a number of federal circuits.

Elliott Scheinberg

'Sholes v. Meagher': the Appellate Imbalance of Sua Sponte Orders

By Elliott Scheinberg |

Elliott Scheinberg writes: The absence of a statutory right to either a direct appeal from a sua sponte order or any form of immediate review therefrom, akin to CPLR 5704, constitutes a void in appellate jurisprudence that imposes onerous consequences on the party who, perhaps due to no wrongdoing on his part, finds himself on the wrong side of the order.

Elkan Abramowitz and Jonathan Sack

Implications of 'Countrywide' for Mail and Wire Fraud Prosecutions

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write that prosecutors tend to extend the reach of white-collar criminal statutes until the judiciary, at some point, pushes back. The Supreme Court's vacating the conviction of former Virginia Governor Robert McDonnell is the most recent high-profile example, but the government's expansive interpretation of federal statutes was narrowed by judicial interpretation in the Second Circuit recently as well, in 'United States ex rel. Edward O'Donnell v. Countrywide'.

Frank Taddeo Jr.

Dignity Rights for Mrs. Doubtfire: A Place for Fathers in Custody Disputes

By Frank Taddeo Jr. |

Frank Taddeo Jr. writes: Many devoted fathers are knocked senseless by the legal system when spousal strife prevents amicable resolution of custody disputes during divorce proceedings. On custody, she usually wins and he usually loses, becoming a mere visitor in his children's lives. Might there be some recourse to be found in the law, some concept or theory he might grab onto? The answer is a tentative, guarded, but perhaps inevitable "yes."

Martin Flumenbaum and Brad S. Karp

Fourth Amendment Protections and Arrests at Other People's Homes

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'United States v. Bohannon', in which the court vacated an order suppressing evidence seized pursuant to the arrest of a defendant, who was apprehended while a guest in the residence of a third party.

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

Permissible Appellants—Aggrieved Parties

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty Jr. discuss the sometimes overlooked limitation on the very liberal right to appeal—the requirement that only an "aggrieved party or a person substituted for him [or her] may appeal from an appealable judgment or order except one entered upon the default of the aggrieved party."

Eva Talel and Richard Siegler

Rights of Apartment Owners to Examine Business Records

By Eva Talel and Richard Siegler |

In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler discuss the rights of apartment owners to access business records; common law requirement that an owner's request for inspection must be made in good faith and for a proper purpose; and implications and recommendations for boards and managers in addressing apartment owner requests for access to records.

What Role for Abuse of Superior Bargaining Position Laws?

By Yee Wah Chin |

Yee Wah Chin writes: While there is no general law in the United States regarding abuse of superior bargaining position, the concern exists and is addressed in many states for specific industries in which there is a conclusion that a superior bargaining position is common.

Anthony E. Davis

Duty to Disclose a Lawyer's Own, or Co-Counsel's, Malpractice

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses New York State Bar Association Committee on Professional Ethics Opinion 1092 and he notes: “Although Opinion 1092 is titled “Duty to Disclose Malpractice of Co-Counsel,” it actually reviews both lawyers’ duty to reveal their own malpractice as well as the situation where a lawyer becomes aware of the malpractice of the lawyer’s co-counsel."

Richard Strassberg and William Harrington

Supreme Court Limits Scope of Asset Forfeiture

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington of Goodwin Procter analyze the U.S. Supreme Court's decision in 'Luis v. United States', which shed light on the limits to the, at times, seemingly limitless breadth of the forfeiture laws, but raises a series of questions with which courts will now have to grapple.

Mark A. Berman

'Pegasus' and ESI Audit Trails

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman of Ganfer & Shore discusses recent decisions that cite or interpret the New York Court of Appeals decision in 'Pegasus', which sustained the concept that spoliation of ESI may be predicated upon negligence.

Neil J. Rosini and Michael I. Rudell

Courts Apply Different Analyses to Use of Real People in Fiction

By Neil J. Rosini and Michael I. Rudell |

In their Entertainment Law column, Neil J. Rosini and Michael I. Rudell write: "'Sarver v. Chartier' and 'Hicks v. Casablanca Records' present relatively straightforward guidelines for deciding whether fictional works portraying real people violate publicity rights. New York decisions, however, usually apply statutory interpretation that seems to depend on whether readers and viewers know what they're reading or watching is fiction or fact."

Rowland Conviction Rests on Expansive Interpretation of Sarbanes-Oxley

By Harry Sandick |

Harry Sandick of Patterson Belknap Webb & Tyler discusses the recent Second Circuit decision in 'Rowland', a case involving falsifying records, and writes: Given the Supreme Court's longstanding interest in limiting the breadth of the statutes that prohibit obstruction of justice, 'Rowland' may warrant further appellate review.

Evan H. Krinick

When Can a State Prosecute a Multistate Insurance Fraud?

By Evan H. Krinick |

In his Insurance Fraud column, Evan Krinick discusses the recent case 'Iowa v. Rimmer,' and writes: "Defendants will bemoan the ruling, but prosecutors and courts in other states undoubtedly will rely on its analysis when considering whether they may prosecute a multistate criminal insurance fraud action in their own courts."


Irish Eyes Smiling at Legal Opportunities From UK’s Brexit Vote

Irish law firms could be poised to pick up additional work after last week’s surprising vote by U.K. voters to leave the European Union. That leaves Ireland as the only remaining English-speaking country with a common law tradition in the Eurozone.

Howard Epstein and Theodore Keyes

New Jersey Supreme Court Surprises With Late Notice Ruling

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Column, Howard Epstein and Theodore Keyes write: Earlier this year, in 'Templo Fuente De Vida Corp. v. National Union Fire Insurance Co.,' the Supreme Court of New Jersey extended the Zuckerman ruling to hold that the notice prejudice rule does not apply and the insurer is not required to demonstrate prejudice to deny coverage for late notice of claim under a claims-made policy, even where the claim was reported during the policy period.


Trends in Patents and Trade Secrets Change Landscape of Innovation

By Michael P. Kahn |

Michael Kahn discusses what some would say is a “disturbing trend,” — narrowing the scope of patentable subject matter. He writes that this trend “has seen many otherwise valuable and groundbreaking inventions dedicated to the public and denied patent protection. In the wake of this trend, alternative forms of intellectual property protection are becoming more appealing.”

Daniel A. Cohen

New York Court of Appeals Clarifies Common Interest Doctrine

By Daniel A. Cohen |

Daniel A. Cohen of Walden Macht & Haran discusses the recent 'Ambac' decision, in which the Court of Appeals held that the existence of a joint legal strategy is a necessary, but not sufficient, condition for applying the common interest doctrine and that the existence of actual or anticipated litigation is additionally required in order for the doctrine to apply.

Steven R. Pounian and Justin T. Green

D.C. Circuit Rules Crash Investigation Findings Not Subject to Judicial Review

By Steven R. Pounian and Justin T. Green |

In their Aviation Law column, Steven R. Pounian and Justin T. Green discuss 'Joshi v. National Transportation Safety Bd.,' where the U.S. Court of Appeals for the D.C. Circuit ruled that the National Transportation Safety Board's probable cause determinations are not subject to judicial review. The authors write that the decision highlights the conflict of interest in the National Transportation Safety Board's investigation process, which relies on the participation of potential defendants in civil litigation that frequently follows aviation accidents.

Elai Katz

Uber Algorithm Alleged To Constitute Price-Fixing

By Elai Katz |

In his Antitrust column, Elai Katz discusses recent antitrust developments of note including a class action complaint which sufficiently alleged that Uber's pricing algorithm amounted to price-fixing among drivers, according to a district court in Manhattan.

Michael Rikon

The Province of the Trial Court in a Condemnation Case

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon writes: A trial court is charged with making all the legal determinations in an eminent domain case. But as the trier of the facts, it also has broad discretion to decide many critical issues which determine the amount of "just compensation." In this article, he discusses a few of the areas that are said to be within the sound discretion of the trial court.

Peter A. Crusco

Email Account Seizures and Retention of Large Digital Records

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco of the Office of the Queens County District Attorney discusses recent litigation concerning government seizures of email accounts using search warrants resulting in the seizure of voluminous digital records, and the legality of the lengthy retention of non-responsive emails for an indefinite period.

Samuel N. Fraidin and Douglas J. Pepe

Documents on a Motion to Dismiss: A Rule That Should Be Clarified

By Samuel N. Fraidin and Douglas J. Pepe |

Samuel N. Fraidin and Douglas J. Pepe of Joseph Hage Aaronson write: The Second Circuit should adopt a single statement of the doctrine concerning whether a court may consider documents attached to a motion to dismiss, define its terms, and warn against the use of the doctrine for any purpose other than determining if a document may be considered without converting a motion to dismiss into a motion for summary judgment.

Legal Aid Providers Face Unique Cyberthreats, But Tech, Notification Laws Offer Advantages

Cybersecurity risks brought on by high employee turnover and file sharing are easy fixes with proactive information governance.

Conrad Teitell

Charitable Remainder Trust Checklist

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes: Inter vivos charitable remainder unitrusts and annuity trusts enable your clients to make significant gifts that go to charities at death while retaining income for life. When properly structured, income tax charitable deductions are allowed, and capital gains taxes on the sale of appreciated assets by the trusts are avoided, reduced or postponed. But the IRS doesn't forgive foot faults. Make a small mistake, and income, gift and estate tax charitable deductions are disallowed, and capital gains are taxable.

Martin A. Schwartz

Supreme Court Rules for Public Employee on First Amendment Claim

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz discusses 'Heffernan v. City of Paterson', where the U.S. Supreme Court held that a police officer who was demoted because his superiors mistakenly believed he had engaged in political association was entitled to assert a §1983 First Amendment retaliation claim, even though he had not in fact engaged in any First Amendment activity.

William K. Kirrane and Michael A. Savino

Narrowing Judgments Through Tort Reform Legislation

By William K. Kirrane and Michael A. Savino |

William K. Kirrane and Michael A. Savino write that the goal of our tort system is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred. But with the system providing plaintiffs future lost earnings awards not offset for taxes and a fixed interest rate far exceeding the prime rate on judgments, plaintiffs are instead profiting from their losses.

John L.A. Lyddane and Barbara D. Goldberg

'Learned Treatises' and Expert Opinion Testimony

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 in New York, an expert who advances an unreliable theory cannot be cross-examined with medical literature unless he or she accepts the literature as authoritative. It may nevertheless be possible for defense counsel to demonstrate that even though the plaintiff's expert will not acknowledge an article as "authoritative," the expert nevertheless treats a particular publication as "reliable" so as to permit cross-examination.

Carlos J. Cuevas

Pleading Aiding and Abetting Fraud in Ponzi Scheme Cases

By Carlos J. Cuevas |

Carlos J. Cuevas writes: One means of trying to recoup the losses for the defrauded investors of a Ponzi scheme is commencing a lawsuit for aiding and abetting fraud against a professional, such as an accountant or an attorney, who had actual knowledge of the Ponzi scheme and rendered substantial assistance to its effectuation. A potential, but not insurmountable, obstacle is CPLR 3016.

Brian P. Heermance and Christopher P. Keenoy

Long-Term Care Liability—Analysis and Defense

By Brian P. Heermance and Christopher P. Keenoy |

Brian P. Heermance and Christopher P. Keenoy discuss the types of claims that arise over the care received at nursing homes and assisted living facilities (ranging from injuries associated with falls and development of bedsores, to allegations of the facility's failure to develop and update the patient/resident's individualized plan of care), the statutes governing long-term care facilities, and the complexities in defending these claims.

Christine A. Fazio and Ethan I. Strell

The Ongoing Water Crisis in New York

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell write: PFOA and PFOS pollution upstate has raised significant concerns about the overall safety of the state's water systems and the efficacy of the nation's industrial chemical regulation in general. The DEC's recent regulatory amendment is a needed step toward preventing contamination, but is narrow in scope.

Jerry H. Goldfeder and Myrna Pérez

Re-Enfranchising People With Prior Convictions

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: A political fight over the use of executive authority to restore voting rights is not new. Nor is turning to the courts to decide whether state disenfranchisement laws are lawful. What is new in a current battle over Virginia Governor Terry McAuliffe's recent executive order is the use of state courts to adjudicate a largely political battle over the use of executive authority to restore voting rights.

John S. Siffert and Leigh Llewelyn

Insider Trading as Fraud: Economic Benefit as an Element

By John S. Siffert and Leigh Llewelyn |

John S. Siffert and Leigh Llewelyn write: The Supreme Court and Congress have settled on mail "fraud" as requiring either a property-based taking or, in cases involving honest services fraud, certain kinds of economic gain. Lesser known is the surprising fact that Congress already enacted a statute that perfectly covers the case of an insider trading tipper. As modified by the court, it also requires the fraudster obtain an economic benefit. There is no principled reason why the court's longstanding view of fraud as an economic crime should not govern the upcoming 'U.S. v. Salman'.

Edward M. Spiro and Judith Mogul

Requirements for Invoking the Common Interest Doctrine

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Although invocation of the common interest doctrine is seldom challenged through litigation in the Southern District, with only a handful of written decisions on the subject each year, its contours are not as well-defined as many lawyers assume. Two recent decisions narrowly construing the doctrine underscore the importance of understanding the common interest doctrine's requirements.

Robert L. Schonfeld

Decision Raises Questions About Standing in Fair Housing Cases

By Robert L. Schonfeld |

Robert L. Schonfeld writes that even though in 'Spokeo Inc. v. Robins' the Supreme Court remanded the case for reconsideration on the question of whether the plaintiff had adequately pleaded that he had incurred injuries that were "concrete" enough to give him standing, taking no position on whether the plaintiff actually did have standing, in failing to affirm the Ninth Circuit, the decision could have an impact on decisions on standing in lawsuits brought under federal laws other than the Fair Credit Reporting Act.

Shari Claire Lewis

FTC Issues Privacy Tool, Guidance for Health-Related Mobile Apps

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis writes: The FTC's well-organized Web-based tool and new guidance for mobile health app developers should serve as a reminder to them of the importance the agency places on protecting consumers' privacy. If regulators are interested in privacy, then developers should be interested in privacy.

Shepard Goldfein and James A. Keyte

Donald Trump and Antitrust: Taking Stock of a Litigious Record

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write that although the now presumptive Republican presidential nominee has been outspoken on a variety of issues, he has largely remained silent on the issue of antitrust enforcement. As a businessman, Trump has had two run-ins with the antitrust laws. Taken together, what can his public comments and his experience in this fairly specialized area tell us about what a Trump presidency might mean for antitrust enforcement?

Sidney Kess

Tax Breaks for Caring for the Elderly and Disabled

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: According to the Population Reference Bureau, the vast majority of caregivers in the United States for the ever-increasing elderly population are family members. Caring for someone who is elderly or disabled entails personal and financial costs. Whether acting under a moral or legal obligation to provide care, at least the tax law provides some assistance for the caregiver.

George Bundy Smith and Thomas J. Hall

Conditions Precedent and the Need for Unambiguous Terms

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: In light of the significant impact conditions precedent clauses can have, New York courts generally are strict in construing whether a contractual provision constitutes such a condition. When ambiguity creeps into the language, efforts to convince the court to construe it as a condition precedent may fail regardless of the availability of parol evidence, as several recent decisions demonstrate.

Hiring and Firing a Key Executive at Yahoo

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III discusses the recent case over the compensation/severance arrangement Yahoo! Inc. had with its chief operating officer, who was paid just under $100 million for 14 months work, and lessons companies should learn.

Lawrence Elbaum

Issues for Companies Under New Trade Secrets Law

By Lawrence Elbaum |

Lawrence Elbaum discusses the Defend Trade Secrets Act of 2016, which provides for multiple equitable and legal remedies, including ex parte orders that can result in seizure or isolation of misappropriated trade secret materials, as well as injunctions and monetary relief including damages for actual loss and unjust enrichment.

David J. Kaufmann

Guide to Evaluating Franchises: Review Disclosure Documents

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann writes: With the International Franchise Expo in town at the Javits Center, thousands of prospective franchisees will be evaluating hundreds of franchises being offered. But what is the most critical, indispensable and helpful step in evaluating whether to acquire franchise rights from any given franchisor? The answer is simple: a thorough review of the franchisor's Franchise Disclosure Document.

Roberta S. Karmel

Business and Financial Disclosure—The Concept Release on S-K

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: A mammoth 341-page Concept Release, posing 340 questions, on possible reforms to Regulation S-K, may prove the keystone for the Disclosure Effectiveness Project of the SEC, along with an earlier Release on Regulation S-X.

Jordan Greenberger

Trademark Disputes in Craft Beer Industry

By Jordan Greenberger |

Jordan Greenberger writes: As the craft beer industry continues to grow, nationally and in New York State, so too do trademark disputes amongst breweries. A recent suit between an established New York craft brewer and a California start-up brewer over the use of the mark "Black Ops" illustrates the type of arguments that are often raised in such disputes, and the ability of a trademark owner to enjoin the use of a confusingly similar mark even when the infringing mark is used on the other side of the country.

Robert J. Bernstein and Robert W. Clarida

Circuit Split Creates Uncertainty in Sampling of Sound Recordings

By Robert J. Bernstein and Robert W. Clarida |

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida write that on June 2, the Ninth Circuit held that a 0.23 second sample from a sound recording of three horns simultaneously playing the notes of a chord did not meet the de minimis standard for copyright infringement, rejecting the reasoning of the Sixth Circuit in a 2005 decision that any sampling, no matter how brief, was infringing.

Roy L. Reardon and William T. Russell Jr.

Business Judgment v. Entire Fairness; Judicial Salaries Litigation

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 addressed the standard of review for analyzing a "going-private" corporate transaction, approved the rejection of a class action settlement that did not afford non-resident class members an opportunity to opt out, and denied an effort by state judges to obtain damages for the Legislature's failure to enact judicial salary increases.

Joel Cohen and James L. Bernard

The Movie 'Spotlight' and Legal Ethics

By Joel Cohen and James L. Bernard |

Joel Cohen and James L. Bernard write: Like all good movies about an important and controversial event, the story told in the movie "Spotlight," about the role of the Boston Globe in uncovering the breadth of the clergy scandal that impacted the Boston diocese, was no doubt some combination of truth and dramatization. One startling and poignant scene is worth discussing from an ethics point of view.

Joseph C. Savino and Stephanie Suarez

Definition of 'Applicant' in Equal Credit Opportunity Act

By Joseph C. Savino and Stephanie Suarez |

Joseph C. Savino and Stephanie Suarez discuss 'Hawkins v. Community Bank of Raymore,' in which the U.S. Supreme Court, asked to consider whether the provision of the Equal Credit Opportunity Act that makes it "unlawful for any creditor to discriminate against any applicant [for credit]…on the basis of…marital status" applied also to guarantors, affirmed the Eighth Circuit by an equally divided per curiam opinion after the death of Justice Scalia, leaving the circuits split.

Richard Raysman and Peter Brown

Illegal Telemarketing Cases Produce Interesting Decisions

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown analyze enforcement mechanisms that have been deployed to combat illegal telemarketing and how some have fared.

Michael Hoenig

Some Practical Tips on Trial Preparation

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes that it is often said that what really happens in a trial is the product of intensive preparations beforehand. With that in mind, he poses eight questions to begin assessing your trial readiness.

Ilene Sherwyn Cooper

Issues Affecting Estate Litigation and Practice

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper discusses recent cases involving the production of the personal income tax returns of a fiduciary, scope of witness examination, a demand for a jury trial on the issue of a corporate trustee's alleged conversion of trust funds, and more.

Harvey M. Stone and Richard H. Dolan

Attorney Sanctions; Considerations in Sentencing

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions involving sentencing in light of the extensive collateral consequences of defendant's conviction, sanctions for attorneys' pattern of conduct including neglect of trial-related scheduling orders, and eligibility for a "safety-valve" exception to a ten-year mandatory minimum sentence after a previous driving while impaired conviction.

Joseph Lipari

Decisions Explain Capital Improvements Sales Tax Rules

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari writes: An owner of real property is not charged sales or use tax on "capital improvements," but contractors must pay use tax on the materials purchased by it to construct such improvements. For many taxpayers, the nuanced set of rules on this exemption leads to confusion, and a failure to understand the peculiarities can result in unexpected liabilities, as two recent decisions highlight.

Janis M. Meyer

The Panama Papers—An Incentive for 'Spring Cleaning'

By Janis M. Meyer |

Janis M. Meyer writes: Although a number of U.S. law firms conduct some form of such due diligence as part of their client intake procedures, it is not mandatory here. It is likely, however, that the legal profession will be under increased scrutiny as the Panama Papers revelations continue. Accordingly, lawyers and law firms should view the Panama Papers as an opportunity to do some internal review to ensure that they are protected against a Panama Papers or Global Witness-type incident.

David M. Barshay

Policy Exhaustion; Restoring Case to Trial Calendar

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay writes: If an insurer receives a bill for an earlier date of service, but does not pay it, and then receives and pays subsequent bills which exhaust the policy, is the insurer obligated to pay the earlier bill? Not surprisingly, there are several schools of thought as to whether an insurer must pay the earlier bill.

C. Raymond Radigan and John G. Farinacci

Law of Organ Donation and Transplantation

By C. Raymond Radigan and John G. Farinacci |

In their Trusts and Estates Law column, C. Raymond Radigan and John G. Farinacci discuss courts' balancing of the wishes of the deceased, the desires of the surviving family, and the need for bodies and organs for transplants, education and research in cases arising under the New York Anatomical Gifts Act or the right of sepulcher.

Eric Broutman and Carolyn Wolf

'Munsey' Changed Landscape of Involuntary Psychiatric Admissions

By Eric Broutman and Carolyn Wolf |

Eric Broutman and Carolyn Wolf write that since the deprivation of liberty is a significant impingement on one's rights, the Supreme Court requires regular access to courts for involuntarily confined psychiatric patients. Until recently, if a New York hospital failed to timely apply for a statutory hearing the court would not automatically release the patient, but conduct a hearing to see if the patient was indeed mentally ill and dangerous. This all changed in a 2015 Court of Appeals decision concluding that the only appropriate remedy is the patient's immediate release.

John Rapisardi and Joseph Zujkowski

'In re Sabine': Gathering Agreements and Real Covenants

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: In a number of recent chapter 11 cases filed by "upstream" energy and production companies, the debtor's rejection of "gathering agreements" or similar contracts with "midstream operators" has raised the issue of whether the debtor's mineral estate is free of obligations stemming from covenants that "run with the land" as either real covenants or equitable servitudes. A recent decision is an important reminder that whether such covenants are real covenants centers on a specific, fact-based analysis under state law.

Margaret A. Dale and Mark D. Harris

Federal Jurisdiction Over State Securities Claims

By Margaret A. Dale and Mark D. Harris |

In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris, write: In Merrill Lynch v. Manning, the Supreme Court affirmed a Third Circuit decision holding that the test for federal jurisdiction under the exclusive jurisdiction provision of the Securities Exchange Act of 1934 is the same as for "arising under" jurisdiction under 28 U.S.C. §1331, the general federal-jurisdiction statute. The court was not asked to apply §1331, however, and so it left open the question of whether and when a state-law claim may "arise under" federal law.

Marshall Fishman, Timothy Harkness and David Y. Livshiz

Personal Jurisdiction and Financial Transfers

By Marshall Fishman, Timothy Harkness and David Y. Livshiz |

Marshall Fishman, Timothy Harkness and David Y. Livshiz write that two recent Southern District decisions, taken together, create a risk that a foreign financial institution engaging in a dollar-denominated transaction anywhere in the world may wind up having to litigate claims arising out of those transactions in the United States, solely based on the fact that they were executed in dollars and involved U.S.-based correspondent bank accounts. This result is not only unprecedented, but conflicts with Supreme Court guidance.

Robert J. Anello and Richard F. Albert

White-Collar Practitioner's Guide to the Supreme Court's Term

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: The Supreme Court's 2015 Term promises significant developments for the white-collar bar. The court already has issued three decisions that are noteworthy for white-collar practitioners, with the most significant likely yet to come.

Thomas A. Moore and Matthew Gaier

Second Circuit Decision on Damages With Broad Ramifications

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write: The Second Circuit recently issued a particularly noteworthy opinion addressing damages in an action involving malpractice at a VA medical center. That decision has important ramifications for cases stemming from care rendered at VA facilities, but also has portentous implications for damages-related issues in other federal and state malpractice actions.

H. Christopher Boehning and Daniel J. Toal

Personal Devices Increasingly Part of New E-Discovery Normal

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss three recent decisions that help illustrate how the integration of personal devices and email into the corporate environment, whether authorized or not, is changing discovery in the corporate litigation context.

Barry Kamins

Court of Appeals Re-Examines the 'Wrong Person' Defense

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes: In a series of recent decisions, the New York Court of Appeals has revisited the 'wrong person' defense—an offer of evidence that a third party committed the crime. Stressing that the quality of proof of third-party culpability can vary depending on the nature of a case, the court held that, under certain circumstances, an offer of proof can consist of hearsay evidence with the understanding that the defendant will be prepared at a trial to present the evidence in admissible form.

Jeffrey S. Klein and Nicholas J. Pappas

Politics Not as Usual: Protection of Political Activities

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas write: Co-workers may frequently discuss politics in a perfectly amicable manner; however, circumstances may arise where employers may need to impose discipline for misconduct that an employee may claim constituted a form of protected political activity.

David G. Samuels

Nonprofit Compensation and Employment Law Update

By David G. Samuels |

David G. Samuels discusses developments relating to compensation of executives, loans to directors and officers and whistleblower protections at charitable organizations, along with changes to the minimum wage and right to overtime that may affect workers for nonprofits.

John P. Furfaro and Risa Salins

Supreme Court Review in Employment and Labor

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins review Supreme Court rulings from the 2015-16 term on class certification under the Fair Labor Standards Act; the viability of public-sector agency shop arrangements under the First Amendment; equitable relief, the duty of prudence and preemption under ERISA; and the validity of class-arbitration waivers.

Christopher Dunn

American Constitutional Regime From a German Perspective

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: As a representative democracy with a federal constitution and a well-developed judiciary, Germany has a general constitutional regime quite similar to ours. A closer comparison, however, highlights features of our regime that, for better or worse, distinguish it.

John G. Martin

Statistical Sampling in Health Care Litigation

By John G. Martin |

John G. Martin writes: Although the FCA and most provider contracts with insurance companies do not discuss statistical sampling and extrapolation, it has become routine for the government, whistleblowers and insurers to demand repayment of thousands of claims that they have not reviewed, by pointing to errors in a subset of claims that they have reviewed.

Michael J. Hutter

Judicial Notice of Website Information

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes: While a review of cases over the past 20 years reveals that New York courts, following the lead of the federal courts, are taking judicial notice of facts from websites, the cases do not set forth any analytical framework for determining when judicial notice is or is not appropriate. That absence s troubling as there is now uncertainty as to when a New York court will take judicial notice of a website-mentioned fact, and the distinct possibility of "facts" being noticed when they should not be.

Kenneth E. Pitcoff and Kevin G. Faley

When Same-Sex Harassment Creates a Hostile Work Environment

By Kenneth E. Pitcoff and Kevin G. Faley |

Kenneth E. Pitcoff and Kevin G. Faley write that the U.S. Supreme Court in 1998 made clear that a sex discrimination claim is not barred because the plaintiff and the harasser are members of the same sex, and provided three routes that create inferences of discrimination "because of…sex" in such circumstances. Every circuit has determined that those routes are not exhaustive, but their analysis of the "because of…sex" and "severe and pervasive" requirements are diverse.

Peter M. Fass

SEC Adopts Rules to Permit Crowdfunding

By Peter M. Fass |

Peter M. Fass discusses the SEC's final rules to permit companies to offer and sell securities through crowdfunding, rules that will assist smaller companies with capital formation and provide investors with additional protections.

Anna Murray

How Not to Be Victim of a Cyber-Attack: Security Rules for Lawyers

By Anna Murray |

Anna Murray writes: A few months ago, my software team received the following request from an attorney: "Please create a form on my WordPress website so potential clients can upload scans of important documents." He thought it would be an improvement over submitting through Gmail, without realizing the danger of his request.

Edward E. Neiger

Changes in Teen Spending Affect Once-Popular Brands

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger discusses filings in the teen apparel industry, which continues to decline as the shift in teen spending habits from fashion to technology becomes more pronounced and fast fashion companies that get new trends to the market quickly and cheaply draw sales over companies built on brand name logo appeal.

Martin Flumenbaum and Brad S. Karp

Applying Newly Announced Test for Proof of Pregnancy Discrimination

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Legg v. Ulster County,' in which the court, in an issue of first impression, found that the denial of a light-duty accommodation to the pregnant employee of a county correctional facility was sufficient to support an inference of discrimination under the Supreme Court's recently announced "significant burden" standard for proof of pregnancy discrimination under Title VII.

Paul Bennett Marrow

Arbitrators Excluding Evidence as a Sanction

By Paul Bennett Marrow |

Paul Bennett Marrow argues that two recent decisions, 'Attia v. Audionamix' and 'NFL Management Council v. Tom Brady,' clarify that it's a good idea for an arbitrator to think twice before precluding evidence as a way to control party misconduct, but there should be room for a rule allowing an arbitrator who deals with misconduct to consider the impact of disruptive behavior as grounds for excluding evidence if the behavior prejudices the rights of other parties to a fundamentally fair hearing.

Ellen H. Greiper and Scott P. Eisenberg

Email and Continuous Treatment in Medical Malpractice Actions

By Ellen H. Greiper and Scott P. Eisenberg |

Ellen H. Greiper and Scott P. Eisenberg of Goldberg Segalla discuss the decision in 'Caesar v. Brookman', which answered the question of whether a medical provider can treat a patient by way of email.

Arthur J. Ciampi

Formulating Retirement Policies That Value Senior Lawyers

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi analyzes some of the issues concerning law firm partner retirement, including some interesting retirement statistics, and examines how other professions address issues regarding their senior members to discern whether their policies can be translated into law firm life.

Rupert M. Barkoff

Franchise Documents Should Not Be Cookie Cutter Products

By Rupert M. Barkoff |

Rupert M. Barkoff while Franchise Documents can be easily prepared by copycatting existing documents used by other franchisors, this overlooks the fact that this cookie-cutter approach is not likely to be successful when the franchise systems are not virtually identical. Copycatting will be less effective when the franchise systems are in different industries, but even when the systems are similar, there are other reasons not to use a copycat approach.

Avi Weitzman and Jason P.W. Halperin

Curing Albany's Corruption Epidemic

By Avi Weitzman and Jason P.W. Halperin |

Avi Weitzman and Jason P.W. Halperin propose a three-part fix to reduce the incentives and opportunity for future corruption in New York State government.

Timothy M. Tippins

Recording, 'Vicarious Consent' and Judicial Overreach

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: A plethora of precedent previously made clear that a parent enjoys no special exemption from criminal liability under the eavesdropping provisions of the Penal Law, which do not allow a parent to consent to such recording on behalf of his or her child. In a recent decision, the Court of Appeals abandoned that precedential line and embraced the doctrine of "vicarious consent."

Charlotte A. Biblow

Proposals on Solid Waste Management Rules

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: The Department of Environmental Conservation has proposed comprehensive revisions to its existing regulations governing solid waste management facilities that, when adopted, likely will affect every municipality across the state as well as businesses ranging from contractors, landscapers, and mulch facilities to hospitals and pharmacies, in addition, of course, to every aspect of the solid waste management industry.