Expert Analysis

Robert C. Scheinfeld

Federal Circuit Addresses Obviousness Issue

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld analyzes two decisions this month in which the Federal Circuit made it clear that patents must sufficiently counter obviousness attacks focused on the differences between the claimed invention and the prior art, and whether one of skill in the art would be motivated, based on individual prior art disclosures, to make modifications, alterations and/or combinations, to achieve the claimed invention.

Uptick in Filings in Precious Metal Mining Sector

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger discusses precious metal mining bankruptcies, which saw a significant uptick in filings recently as gold prices suffered a substantial drop over the last few years, capital access in the sector decreased and the market for idled mining equipment declined.

Paul P. Rooney

Overtime Lawsuits by Attorneys Who Perform 'Document Review'

By Paul P. Rooney |

Paul P. Rooney writes that although a recent decision allowing an overtime pay claim by an attorney who engaged in document review to proceed to discovery raises the risks to law firms that use such attorneys, firms can still mitigate their legal risk from such claims.

Martin Flumenbaum and Brad S. Karp

The Google Books Decision and the Boundaries of Fair Use

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp found that Google's purpose in copying books is highly transformative, that Google provides a limited public display of text, that its copying does not constitute a significant market substitute for the protected aspects of the original works, and that Google's profit motivations do not justify denial of fair use.

Arthur J. Ciampi

Round Up of 2015 Developments on Business Practices

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi writes: The year 2015 presented a number of interesting developments concerning law firms and the practice of law. Once again, proving that lawyers never give in, a number of the decisions concern inventive attempts by lawyers and their clients to obtain results, which theretofore, they had been denied. As you will see, in some circumstances their 2015 labors succeeded and in others they did not (there is always 2016...).

Francis J. Serbaroli

Courts Split on Executive Order 38 Limiting Executive Compensation

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli reviews the status of court challenges to the Cuomo administration's regulations restricting executive compensation and administrative service expenses at health care providers and social service agencies that receive state funding. He reports that three courts have reached different conclusions regarding whether the regulations usurp legislative authority, and that the matter may ultimately have to be resolved by the Court of Appeals.

Richard Strassberg and William Harrington

Turning an Exacting Eye to Physician-Hospital Compensation

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington write that in June 2015, the Department of Health and Human Services issued an "alert" about its concern that hospitals are overcompensating doctors in order to pay illegal kickbacks for patient referrals, and has since brought a number of cases that provide a guide to the key areas of concern for hospitals and physicians.

Thomas A. Dickerson and Leonard B. Austin

New York State Class Actions in 2015

By Thomas A. Dickerson and Leonard B. Austin |

Thomas A. Dickerson and Leonard B. Austin write: A number of exciting trial court and appellate court decisions were rendered in 2015 interpreting CPLR Article 9, New York State's class action statute. Some of the issues the courts dealt with were mass physical injury and property damage torts, the enforceability of mandatory arbitration clauses and class action waivers, the viability of disclosure only settlements, and challenges to the class representative's standing by offering to settle his or her individual claim.

Robert S. Kelner and Gail S. Kelner

Size Isn't Everything: Trivial Defects Under 'Hutchinson'

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss the issues raised where a defendant seeks dismissal of an action where a tripping defect gave rise to injury by alleging that the defect was trivial and not actionable as a matter of law.

Charlotte A. Biblow

Suffolk County Acts on Microbeads as New York State Lags Behind

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: In joining Erie and Chautauqua Counties in banning the sale of consumer goods containing microbeads, Suffolk County accomplished something that the New York State Legislature has been unable to do—notwithstanding the growing consensus about the dangers of microbeads to the state's and the nation's waterways.

Stephen M. Kramarsky

Infringement in the Cloud: SDNY Addresses Digital Storage Lockers

By Stephen M. Kramarsky |

Stephen M. Kramarsky describes how courts are beginning to examine the law of contributory infringement in the complex new context of cloud-based platforms, as U.S. District Judge Andrew Carter did recently in 'Smith v.'.

Anita Bernstein

Judiciary Law §487 Claims for Attorney Misconduct

By Anita Bernstein |

Anita Bernstein writes: Today we take a look at the most important legal malpractice provision found in the Judiciary Law: Section 487. In principle—though, as we will see, not too often in practice—§487 provides for damages to persons who attribute financial loss to attorney misconduct.

Lawrence W. Newman and David Zaslowsky

Serving Process Abroad: Can You Do It by Email?

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky discuss the issues that must be considered when determining whether a defendant located outside the United States may be served by email, such as the applicability and wording of Article 10 of the Hague Convention and the specific facts of the case.

Brian J. Shoot

Labor Law §240(1): The Feasibility Issue

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot writes: There is a great deal of confusion and controversy as to whether a plaintiff proceeding under Labor Law §240[1] must identify some statutory "safety device" that would have prevented the accident.

Jeff S. Korek and Abraham Z. Melamed

Bringing Opening Statements to Life With Visual Aids

By Jeff S. Korek and Abraham Z. Melamed |

Jeff S. Korek and Abraham Z. Melamed write: One extremely effective, yet fairly uncommon method of taking advantage of the first, and likely most important impression an attorney will make on a jury—a method that can potentially win a case from the start—involves the use of visual aids in conjunction with an opening statement.

When Nursing Homes Use Guardianship Law to Collect Debts

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes: Some nursing homes having billing disputes with residents have turned to the guardianship statute to resolve the issue. Judicial and legislative pressures are now mounting to prohibit them from using this method to collect payment.

Ilann Margalit Maazel

Qualified Immunity Revisited: When Are Police Accountable?

In his Civil Rights Litigation column, Ilann M. Maazel writes: The elusive doctrine of qualified immunity has made its way, yet again, to the Supreme Court. But does 'Mullenix v. Luna' bring us any closer to understanding this convoluted, perhaps controversial, doctrine?

Patrick O'Sullivan

Knock! Knock! Who's There? Anonymous LLC Ownership

By Patrick J. O'Sullivan, Jr. |

Patrick J. O'Sullivan, Jr. writes that real estate ownership by limited liability companies has increasingly received attention as their use, particularly in the case of residential real estate, has grown. While attempts to implement transparency measures have not gained significant traction in the United States, such efforts have been more successful in Europe and in particular, the United Kingdom.

Roy L. Reardon and William T. Russell Jr.

AG's Tax Fraud Case Against Sprint Is Allowed to Proceed

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 a case in which the court determined the Attorney General sufficiently alleged tax fraud claims against a wireless telecommunications service provider, a case in which the court found a law firm was entitled to summary judgment on a malpractice claim arising from its mortgage securitization advice, and more.

Jeremy H. Temkin

The Economic Substance of Foreign Tax Credits

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes that the economic substance doctrine has proven to be broad and flexible, with its standard evolving to address new transactions the government claims are illegitimate. Courts, however, have split on the application of the economic substance doctrine to transactions designed to take advantage of foreign tax credits.

Avi Lew

'Noll': What Constitutes a 'Reasonable' Accommodation Under the ADA?

By Avi Lew |

Avi Lew analyzes 'Noll v. IBM,' in which the Second Circuit held that the Americans with Disabilities Act does not impose liability for an employer's failure to explore alternative accommodations for an employee's disability where the accommodations provided to the employee were "plainly reasonable," along with how 'Noll' has been subsequently applied.

Ben Rubinowitz and Evan Torgan

Trying Damages in the Wrongful Death Case of an Adult Child

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: Damages in a case involving the death of a working spouse and parent can readily be communicated to a jury. The more difficult case is when the decedent is a young adult just starting out in life, unmarried with no children, little to no earnings history, and survived only by his parents, all of which raises issues that should be confronted head on in jury selection and opening statements.

Michael Hoenig

More on Experts and 'Unreliable' Articles

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes that lamentably, the problems with "predatory" science journals seem to persist. Lawyers should prepare well in order to challenge experts relying on unreliable hearsay literature, and judges, too, have to be willing to let the gatekeeping task unfold with appropriate discovery directed to the testifier-expert and disclosure about the hearsay literature itself.

Elliot E. Polebaum and Eugene N. Hansen

Supreme Court to Decide Citizenship of Trusts

By Elliot E. Polebaum and Eugene N. Hansen |

Elliot E. Polebaum and Eugene N. Hansen write that the straightforward Navarro rule—that the citizenship of the trustee determines the citizenship of the trust for purposes of federal court diversity jurisdiction—no longer applies in at least three circuits. These courts have applied a later Supreme Court decision to hold that the citizenship of trust beneficiaries must be considered in determining the citizenship of a trust, a conflict the Supreme Court has decided to address.

Michael D. Patrick

Expanded Work Authorization for US STEM Graduates

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick discusses the current work authorization regulation for foreign students, who earn more than half of all doctoral degrees in engineering and computer and informational sciences at U.S. colleges and universities, along with the proposed changes to the regulation, and highlights some of the difficulties the government has encountered in effecting changes to work authorization regulations.

Lewis R. Clayton and Eric Alan Stone

Laches in Patent Cases; DMCA Takedown Notices and Fair Use

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone report on an important Federal Circuit decision reconfirming the availability of a laches defense in patent cases, a Ninth Circuit case requiring copyright holders to consider fair use before sending takedown notices to online content providers, along with cases addressing copyright protection for a derivative parody of a Hollywood movie and for a sequence of yoga poses.

Ken Strutin

Solitary Confinement: 'A Darkness That Can Be Felt'

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Solitary confinement is where the fabric of justice has worn through. It is the place where everybody hurts and nobody heals. And when the toll of punishment's punishment is seen in human and scientific terms, reform becomes a constitutional imperative.

Thomas F. Gleason

Foreign Language Affidavits and Exhibits

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason writes: CPLR 2101(b) provides pretty clear instructions on how a foreign language speaker can prepare a document admissible as proof in New York, so it is surprising how many trial and appellate cases involve non-compliant affidavits that ultimately are rejected by the court.

Carmen S. Giordano

Silent Witness Authentication of Video Evidence

By Carmen Giordano |

Carmen Giordano writes that given the elements required for introduction of video into evidence based on the "silent witness" method—when no eyewitness is available to testify that the recording accurately shows what the witness observed—steps must be taken at the acquisition stage to assure that foundational challenges can be surmounted.

Sidney Kess

Required Minimum Distributions: Year-End Issues

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses key issues that can impact required minimum distributions from qualified retirement plans and IRAs, including the tax benefits of qualified direct IRA transfers to charities and decisions faced by those who inherited IRAs and qualified retirement benefits.

Kathleen A. Scott

'Total Loss-Absorbing Capacity' Proposal Comes to the U.S.

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott provides a high-level general summary of the Federal Reserve Board's proposed rule requiring global systemically important banks to meet new requirements to maintain a "total loss-absorbing capacity" ratio that can be met by a combination of additional regulatory capital and unsecured long-term debt.

Harvey M. Stone and Richard H. Dolan

Revisiting Standard for Granting Expungement of Criminal Records

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan discuss Judge Dearie's call to change the law governing to expungement, Judge Block's rejection of copyright claims regarding after-the-fact transcriptions of certain unrecorded talks by Rabbi Menachem Mendel Schneerson, and more.

Marc P. Berger and Justin Florence

Cross-Border Investigations and the Fifth Amendment

By Marc P. Berger and Justin Florence |

Marc P. Berger and Justin Florence write that the guilty verdicts for two former Rabobank traders last week marked the DOJ's first successful prosecution of individuals in connection with the LIBOR scandal, but Judge Jed. S. Rakoff, who presided over the trial, will now confront a critical post-trial question: Under 'Kastigar v. United States', can the government rely on a witness whose testimony has been affected by exposure to a defendant's involuntary statements that were compelled by a foreign government?

William Q. Orbe, David B. Massey and John A. Clark

Daily Fantasy Sports: Fun and Games Until Courts Decide It's 'Gambling'

By William Q. Orbe, David B. Massey and John A. Clark |

William Q. Orbe, David B. Massey and John A. Clark write: The young daily fantasy sports market is exhibiting exponential increases in both players and spending per player. When projecting returns, however, investors should not underestimate existing legal risks or the chance public opinion may sour on online gaming. Despite popular belief, existing federal gambling laws do not protect fantasy sports gaming; rather, they give teeth to myriad state gaming laws that may constrain it.

C. Raymond Radigan and John G. Farinacci

Estate Tax Apportionment and Ratable Contribution to Elective Share

By C. Raymond Radigan and John G. Farinacci |

In their Trusts and Estates Law column, C. Raymond Radigan and John G. Farinacci write: The general rule in New York regarding the payment of estate taxes is that they are equitably apportioned among the recipients of assets included in the taxable estate unless otherwise provided in a will or non-testamentary instrument. But what effect do tax apportionment clauses in a will have when a spouse elects against the will? Does the spouse's election result in a forfeiture in any benefit that a tax apportionment clause might provide to the spouse?

Shepard Goldfein and James A. Keyte

Uber Seeks Antitrust Scrutiny of Taxicab Commission

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: Uber, well-known as a disruptive force in the vehicle-for-hire industry, has decided to cause some disruption in the world of antitrust, suing the St. Louis Metropolitan Taxicab Commission and commissioners and a number of taxi companies, alleging those groups' regulatory conduct constitutes an illegal combination in violation of Section 1 of the Sherman Act.

John Rapisardi and Joseph Zujkowski

Third Circuit Approves Controversial 363 Sale Over IRS Objection

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski analyze the recent 'LifeCare' decision, which will allow bidders in §363 sales in the Third Circuit to fund distributions for junior creditors notwithstanding the existence of a large administrative expense claim, provided the parties take steps (such as the creation of a trust or an escrow) to ensure such distributions never become estate property.

Matthew Oliver, Amy Komoroski Wiwi and Natalie Dallavalle

Cybersecurity Breach: The Threat From Within

By Matthew Oliver, Amy Komoroski Wiwi and Natalie Dallavalle |

Matthew Oliver, Amy Komoroski Wiwi and Natalie Dallavalle write: While the classic image behind data breaches is a shadowy hacker, a real risk, accidental or otherwise, is much more visible—your own employees. The insider presents a multifaceted threat. The employee's motivations could be activist, personal, or simple carelessness. And let's not forget that the insider is not necessarily someone sitting down the hall: It could be any third-party vendor who has access to a company's network for services.

Richard Raysman and Peter Brown

Recent Software License Disputes Involve Contract and Privacy Laws

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown discuss some recent case law involving software licenses, with an emphasis on the sheer variety of statutory, common law and procedural questions that materialize simply through surveying a month's worth of decisions.

Michael B. Gerrard and Edward McTiernan

Regulation of Movement of Crude Oil by Rail in New York

By Michael B. Gerrard and Edward McTiernan |

In their Environmental Law column, Michael B. Gerrard and Edward McTiernan write: Despite the fact that it lacks any refining capacity, New York State has become a hub for the movement of crude oil by rail. This article will examine the general scheme for controlling the movement of hazardous cargo such as crude oil by rail and the role that New York is playing in the environmental regulation of this activity.

Anthony E. Davis

Chief Judge Challenges Bar on Temporary Practice and Discipline

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses how the profession has (or has not) risen to the chief judge's challenges to make recommendations on how to address deeply important issues facing the profession—permitting the temporary practice in New York by lawyers from other states and reviewing the statewide discipline system—and suggests to the chief judge how he can lead us to better solutions than the profession is prepared to endorse.

Allison Schoenthal

Risk of Waiving Privilege When Hiring Third-Party Consultants

By Allison J. Schoenthal |

Allison J. Schoenthal writes that any attorney knows the maxim: Disclosing attorney-client communications to a third party breaks the privilege. Often, however, attorneys and clients hire accountants, financial advisers, public relations agencies and others to assist in complex litigation and transactions. In these instances, will the attorney-client privilege be waived?

Evan H. Krinick

Sentencing and Restitution Awards in Insurance Fraud Cases

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick reviews recent decisions by the U.S. District Court for the Western District of New York and the U.S. Court of Appeals for the Fifth Circuit and their explorations of how sentencing and restitution should be calculated in insurance fraud cases.

Simon Miller

Test for Applying Fiduciary Exception to Privilege

By Simon Miller |

Simon Miller writes: In a recent decision that has significant implications for attorneys representing businesses, in particular closely held business entities, the First Department recognized and accepted the so-called Fiduciary Exception to the attorney-client privilege and, for the first time, provided clear guidance on how to determine when such exception should supplant the attorney-client privilege.

John Fellas

Enforcing Arbitration Agreements: Two Lessons From Recent Cases

By John Fellas |

In his International Arbitration column, John Fellas discusses some recent cases helpful to parties seeking to minimize the time spent in court to enforce an agreement to arbitrate. More specifically these cases provide guidance regarding the relief to request from a court in the context of a motion to stay or compel under the FAA: ask the court to stay rather than dismiss a lawsuit brought in breach of an arbitration clause; or ask the court to enforce the delegation provision in an arbitration clause if it has one.

Geoffrey A. Mort

Enforcing Restrictive Covenants Against Terminated Employees

By Geoffrey A. Mort |

Geoffrey A. Mort writes: Although courts commonly enforce restrictive covenants if an employee voluntarily leaves and uses skills developed at the prior employer to establish a competing business, situations where an employer terminates an employee and then seeks to enforce a restrictive covenant present a more difficult and troubling question.

Richard Siegler and Eva Talel

Laws and Practices on Annual Meeting Minutes

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write: The 2015 annual meeting season for co-ops and condominiums has largely come to a close. Now, managers and their counsel must decide what to do regarding the annual meeting minutes. The law offers limited guidance and leaves open questions regarding not only what should be done with annual meeting minutes, but even whether they are legally required at all.

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

Certified Questions From Federal Courts

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty write: Ever since 'Erie RR Co. v. Tompkins', when a case is in federal court on the basis of diversity jurisdiction, all questions of substantive law must be decided according to the governing state law. At times, however, the law of the state may be unclear or nonexistent on the particular issue before the federal court.

Richard B. Ancowitz

Arbitration v. Litigation: Do Consumers Have a Choice? Should They?

By Richard B. Ancowitz |

Richard B. Ancowitz writes: It is well known that arbitration and litigation each have their own set of pros and cons, and lawyers are quite used to engaging in an analysis as to which would be better for their clients in any given case. What is perhaps less well known is the extent to which a party may end up in arbitration as a result of language buried in a contract that may or may not have actually been assented to.

Elkan Abramowitz and Jonathan Sack

Insider Trading After 'Newman'—What's Left to Resolve?

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack describe how 'United States v. Newman' has affected the personal benefit standard in insider trading cases and review how courts have reacted to the controversial holding, possible challenges to criminal liability on the basis of principles of lenity and separation of powers, and recent thoughtful proposals for legislative reform by two judges in the Southern District.

Neil J. Alexander and Charles J. Gottlieb

Land Use and Planning: Preventing Flight of Millennials

By Neil J. Alexander and Charles J. Gottlieb |

Neil J. Alexander and Charles J. Gottlieb write that real estate developers in urban areas have known for years the importance of creating communities tailored to the young professional millennial generation: multifamily residences in pedestrian-friendly neighborhoods with easy access to transportation, shopping, and entertainment. Such communities are natural within cities, but have not been an area of focus in the suburbs, which has left suburbs like Westchester, Fairfield, and Long Island with a flat population growth rate and without the much-needed tax revenue of millennial workers.

Mark A. Berman

New Developments in ESI Preservation and Spoliation

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman discusses three recent trial court cases in which courts have had to balance one party's clear and admitted wrongful conduct with the prejudice actually suffered by the moving party in order to achieve a result that appropriately "punishes" the infractor and awards the wronged party with a proportionate remedy.

Martin A. Schwartz

Section 1983 Wrongful Conviction Claims Not Barred by State Remedies

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz discusses the Seventh Circuit's recent analysis of the relationship between a plaintiff's §1983 due process claims based on violations of a criminal defendant's 'Brady v. Maryland' right to disclosure of exculpatory evidence, and available state law remedies. The court held that an available state law remedy for malicious prosecution did not defeat the plaintiff's §1983 constitutional claims.

Samantha V. Ettari and Noah Hertz-Bunzl

Ethical E-Discovery: Core Competencies for New York Lawyers

By Samantha V. Ettari and Noah Hertz-Bunzl |

Samantha V. Ettari and Noah Hertz-Bunzl write: While technology may sometimes daunt even the most experienced and knowledgeable litigator, the impact of technology on the demands and realities of discovery cannot be ignored or minimized.

Nicholas M. De Feis and Philip C. Patterson

Foreign Banks Challenge FinCEN Anti-Money Laundering Efforts

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

In their International Criminal Law and Enforcement column, Nicholas M. De Feis and Philip C. Patterson write that although banks may lament the time and money spent on compliance with anti-money laundering measures—and the fact that such efforts do not guarantee success or at least protect banks from prosecution—two recent actions reveal just how serious the risks can be in failing to comply.

Michael Rikon

New York's Exclusive Procedure on 'Taking' Needs Amendment

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon writes that compared to the procedures in other states, our Eminent Domain Procedure Law provides far superior protection. While New York should be proud, the law is almost 40 years old, and there is need to study and revise it.

Anita Bernstein

Matrimonial Malpractice Before, During and After a Client's Divorce

By Anita Bernstein |

Anita Bernstein writes: Any lawyer who chooses to go into New York matrimonial practice probably heard an advance warning or two about its pitfalls. Emotional clients, manipulative adversaries, intra-family pain, court procedures that look Byzantine from the outside, accusations and fee fights are among the drawbacks of this work that risk-averse counselors continue to mention to peers and the next generation.

Thomas E.L. Dewey

When Is a Settlement Truly Settled?

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey writes: Because settlement negotiations are tenuous and conditional in nature, it is as important to guarantee that a provisional agreement remains that way, as it is to ensure that a confirmed agreement is in fact final and binding. Two recent cases provides cautionary examples.

FINRA Links BrokerCheck to Member Firm Websites

By Evan Charkes |

Evan Charkes discusses the Financial Industry Regulatory Authority's rule, recently approved by the SEC, that member firms' websites must include a readily apparent reference and hyperlink to BrokerCheck, a system that allows a retail investor to access information such as education, licenses and disciplinary history about a registered representative or broker-dealer.

Martin Flumenbaum and Brad S. Karp

Baseball Festival Exempt From FLSA Minimum Wage Requirements

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp analyze 'Chen v. Major League Baseball Properties,' in which the court considered the definition of "establishment" as it is used under an exemption in the Fair Labor Standards Act, which exempts seasonal amusement and recreational establishments from the act's minimum wage requirements.

Wendi S. Lazar

Undocumented Immigrant Workers: Enforcing Rights

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar writes: While a myriad of laws exist at the state and federal level to protect undocumented workers from exploitation, discrimination and abuse, enforcement is often lax and many in the legal community have turned a blind eye, or worse, have watched undisturbed while their clients commit crimes against humanity. It is our duty as lawyers and legislators to make sure that our clients are aware of and are complying with employment rights and protections available to undocumented workers.

Jeremy M. Creelan and Daniel H. Wolf

'Spokeo': Violation of Statutory Right and Standing

By Jeremy M. Creelan and Daniel H. Wolf |

Jeremy M. Creelan and Daniel H. Wolf write: On Nov. 2, the U.S. Supreme Court will hear a case that could dramatically alter the number of cases brought by individuals and purported classes alleging a violation of a federal statute. That case, 'Spokeo v. Robins', arises in the context of the Fair Credit Reporting Act,but its resolution could affect standing and, in practice, class actions across a broad array of laws.

Elai Katz

Barring Payments to College Athletes for Video Game Images

By Elai Katz |

In his Antitrust column, Elai Katz reviews developments of note, including a ruling that patent infringement settlement agreements between a brand-name drug-maker and generic rivals were not anticompetitive without a large unjustified reverse payment, a rejection of the FTC's challenge to a proposed combination of domestic and foreign medical equipment sterilization companies because the FTC failed to show that the foreign firm was likely to enter the U.S. market absent the merger, and more.

Peter A. Crusco

Bytes, Borders and Burdens: Tackling Digital Media Searches

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco discusses the holding in 'Riley v. California' and addresses the issue of what impact, if any, it has on the historical border search exception to the warrant requirement under the Fourth Amendment.

Julian D. Ehrlich

Insurance and Indemnity: Risk Transfer Trigger Troubles

By Julian D. Ehrlich |

Julian D. Ehrlich writes: Two of the most commonly used phrases to transfer risk in additional insured endorsements and contractual indemnity provisions are "liability arising out of your work" and "with respect to liability for bodily injury or property damage caused in whole or in part by your acts or omissions." Understanding how courts have interpreted these phrases is vital to parties both when drafting contracts and after a loss.

Robert J. Bernstein and Robert W. Clarida

'Authors Guild v. Google': Second Circuit Affirms Fair Use

By Robert J. Bernstein and Robert W. Clarida |

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida write: What emerges from the circuit's thorough review of fair use is the conclusion that the research uses enabled by Google Books serve copyright's ultimate goal to advance knowledge and learning, and are circumscribed so as to avoid market harm to plaintiffs. But equally important, the court emphasized that its analysis was based strictly on its detailed exposition of the facts of record.

Conrad Teitell

Tax-Free Direct Charitable and IRA Distributions

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes: Will Congress extend the expired charitable/IRA law retroactively for 2015? If so, when? What should clients do? A primer on how to do it right to assure benefits is below.

Michael C. Rakower and Melissa Yang

Statutory Indemnification of Officers and Directors

By Michael C. Rakower and Melissa Yang |

Michael C. Rakower and Melissa Yang write that in New York, directors and officers sued for actions or inactions taken in connection with their corporate post have another avenue to seek relief from litigation costs if their corporation denies them indemnification: Courts have authority to award an advancement of litigation expenses or indemnification to directors and officers of for-profit and not-for-profit corporations.

Sharon M. Porcellio

Class Action Moves Forward on Copying Costs of Medical Records

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio discusses a decision that allowed plaintiffs to proceed with their claims after addressing an array of challenges to their Second Amended Complaint in a dispute involving the costs of copies of medical records, another in which the court examined how asserting a good-faith defense may result in an implied waiver of attorney-client privilege and a third where the court granted sanctions against attorneys disregarding court rules and orders.

Hal R. Lieberman

Report on Statewide Attorney Discipline: Uniformity and Fairness

By Hal R. Lieberman |

Hal R. Lieberman discusses the recent report from the Commission on Statewide Attorney Discipline, which addressed three major areas of concern with regard to the structure and functioning of the current disciplinary system: (1) uniformity and fairness; (2) efficiency; (3) transparency and access.

Bruce M. DiCicco

Improvidence as a Ground to Challenge Qualifications of Fiduciary

By Bruce M. DiCicco |

Bruce M. DiCicco reviews relevant case law to show that improvidence can be a ground to disqualify or remove a fiduciary but only where there is clear and convincing evidence proximately related to the time of service as the fiduciary and that it is more likely to succeed as a ground where the failure involves financial matters that will affect the estate immediately.

Christine A. Fazio and Ethan I. Strell

Too Good to Be True? Volkswagen, Audi, and the Future of Diesel

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell write that notwithstanding brilliant advertising, were the old wives in the Volkswagen commercials who said diesel meant dirty actually correct? As with most things in the legal, regulatory, and engineering worlds, the answer is complicated. Diesel can still be a comparatively clean mobility option, but Volkswagen did the technology no favors with its subterfuge.

David J. Kaufmann

NLRB's Misguided 'Joint Employer' Thrust Against Franchising

By David J. Kaufmann |

David J. Kaufmann writes: The "progressive" attack on alleged economic disparity—reflected in efforts to secure increases in the minimum wage and to bolster the fortunes of labor unions whose memberships are declining—has invaded the franchise arena and threatens to cripple franchising.

Bohdan S. Ozaruk

'Objection to Form'—What's the Problem With That?

By Bohdan S. Ozaruk |

Bohdan S. Ozaruk writes: "Something is rotten. But it's not in Denmark....Rather it's in discovery in modern federal civil litigation...." With this leadoff, a U.S. District Court judge in Iowa chronicled deposition conduct—counsel's use of "form" objections, attempts to coach witnesses and repeated interruptions—that resulted in an unusual and very public sanction. The decision has lessons for practitioners, even if they never practice in federal court in Iowa.

Sue C. Jacobs

No Malpractice Coverage for Attorneys Who Are Principals of Business

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs discusses the business pursuits exclusions to the Lawyer's Professional Liability Policy, which provide that the insurer is not obligated to provide coverage for the attorney's actions related to his role in business or investments in entities in which the attorney is a principal or has a controlling interest, even if the allegations are that the attorney acted in as both business advisor and attorney.

Howard Epstein and Theodore Keyes

Insurance Implications of New Justice Department Policy Directive

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: In light of the Justice Department's commitment to focus on individuals, risk managers as well as directors and officers themselves have reason to be more vigilant with regard to their directors' and officers' or management liability insurance policies, making sure that the policies provide them with the best protection available.

William M. Moran and Daniel S. Weinberger

Authority of New York's Railroad Police Needs to Be Expanded

By William M. Moran and Daniel S. Weinberger |

William M. Moran and Daniel S. Weinberger write: The railroad police, who are highly qualified and subject to strict appointment criteria, still play a vital role in the law enforcement community and could provide a boon to local and state law enforcement officers in the discharge of their duties, if they are not restrained from exercising their police duties except on or near railroad property.

Edward M. Spiro and Judith Mogul

2015 Amendments to Federal Rules of Civil Procedure

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write that absent congressional action, significant amendments to the FRCP will take effect on Dec. 1, aimed at improving early and active judicial case management, enhancing the means of keeping discovery proportional to the action, and encouraging increased cooperation among the parties.

James G. Ryan and Hayley B. Dryer

The Jury, Social Media and Zealous Advocacy

By James G. Ryan and Hayley B. Dryer |

James G. Ryan and Hayley B. Dryer write: While social media tends to increase the likelihood of juror misconduct, it has also increased an attorney's ability to conduct research on prospective and sitting jurors. This raises an interesting dilemma for attorneys, because while lawyers have no ethical duty to routinely monitor the jurors' social media accounts, most clients and many trial lawyers argue that a lawyer does not zealously represent his client if he fails to engage in this course of action.

Shari Claire Lewis

Fifth Amendment Does Not Extend to 'Digital Person'

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis writes: As the concept of a "digital person" evolves, the line between a person's corporeal and virtual identity increasingly will be blurred. Significant analysis will be needed to determine whether and to what extent personal liberty rights, such as those concerning individual privacy, due process, and the right against self-incrimination, should be extended to "digital persons."

Steven Pounian and Justin T. Green.

Will Federal Preemption Grant Immunity to Aviation Manufacturers?

By Steven R. Pounian and Justin T. Green |

In their Aviation Law column, Steven R. Pounian and Justin T. Green write: The Third Circuit will soon decide whether the FAA's mere certification of aircraft or aircraft components provides immunity to aviation manufacturers against most products liability claims, a major decision that may extinguish the right of aviation disaster victims to recover from manufacturers.

Sidney Kess

Year-End Tax Planning for Individuals and Businesses

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: Despite rhetoric about tax reform from Congress and presidential contenders, tax rules for planning now are essentially the same as they were last year. Nonetheless, there are many tax planning opportunities that can be implemented now that will make a favorable impact on 2015 income tax returns.

Mitchell Shapiro

Courts Drastically Limit Review of Arbitration Awards

By Mitchell C. Shapiro |

Mitchell C. Shapiro discusses the pitfalls of arbitration, focusing on the treatment of arbitration awards under the Federal Arbitration Act, as compared to relevant New York law.

E. Leo Milonas and Andrew C. Smith

Novel Questions in Appellate Division Cases

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith summarize significant decisions involving at-will employment, sentencing, apportionment of damages, conversion and unjust enrichment, new DMV rules on drunken driving, due process for civil confinement of sex offenders and more.

George Bundy Smith and Thomas J. Hall

Pleading Breach Claims in Tandem

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: While at times a claim for breach of the implied covenant of good faith and fair dealing would seem to pair with a claim for breach of contract, New York courts frequently find these claims to be duplicative when pleaded together, resulting in dismissal of the good faith claim. A number of recent Commercial Division cases demonstrate the circumstances under which such tandem pleading can and cannot survive.

Harry Steinberg

What Forms the Basis of Attorney-Client Privilege?

By Harry Steinberg |

Harry Steinberg writes: When is a lawyer not a lawyer? The answer depends on the nature and scope of the task the lawyer performed and why and when he or she performed it.

Roberta S. Karmel

Seventy-Fifth Anniversary of Investment Advisers Act

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: The Investment Advisers Act of 1940 was the last of the New Deal federal securities laws triggered by the 1929 stock market crash and the Great Depression, and probably the least considered of these statutes, coming at a time when the government was deciding whether to enter World War II.

Sarah S. Gold and Richard L. Spinogatti

Consequences of Justice Powell's Slippery Slope in 'Dirks'

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti write that recent events illustrate the accuracy of Justice Lewis Powell's prediction that it "will not always be easy for courts" to determine whether there has been a personal benefit in insider trading cases. To what extent does "personal benefit" include the intangible beyond pecuniary gain? Is the mere fact of friendship sufficient to give rise to the inference of a personal benefit? Do the motives of the insider—or the tippee—matter? Welcome all to the slippery slope.

Chaya F. Weinberg-Brodt

Supreme Court to Determine Extraterritorial Reach of RICO

By Chaya F. Weinberg-Brodt |

Chaya F. Weinberg-Brodt writes that in granting cert in 'European Community v. RJR Nabisco', the U.S. Supreme Court is poised to determine not only whether RICO has any extraterritorial reach, but also how courts should determine whether a given multinational fact pattern, with certain parties and events in the United States and other parties and events in foreign countries, is a domestic RICO claim, an improper extraterritorial RICO claim, or (if it agrees with the Second Circuit that RICO has some extraterritorial reach) a proper extraterritorial RICO claim.

Shepard Goldfein and James A. Keyte

Enforcers Vow Vigilance on Certain Patent Hold-Ups

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: In a speech last month, Assistant Attorney General Bill Baer discussed the need for clarity on enforcement policy regarding standard essential patents. While he did not promise any formal guidance, his remarks provided a comprehensive assessment of DOJ policy.

El Faro's Sinking Stirs Jones Act Debate

By James E. Mercante |

In his Admiralty Law column, James E. Mercante writes: The Merchant Marine Act is a 'preference' for the U.S. shipping industry requiring, among other things, that vessels transiting between U.S. ports be built in the United States, carry a U.S. flag, employ an American crew and have an American owner. Almost a century later, the law remains on its feet despite some heavyweight opponents, many of whom point to its effects, including two stark examples this year.

Peter M. Fass

Private Placements and the Internet Revisited

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass reviews relevant changes and recent SEC guidance as applicable to a private offering using the Internet in light of changes in Regulation D in July 2013 which eliminated the ban on general solicitation and general advertising of securities offerings conducted under Rule 506(c).

Joel Cohen

When You Threaten a Disciplinary Referral

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Lawyers typically don't really want to threaten an adversary to gain an edge. Nor do they want to actually refer a complaint—criminal or disciplinary—to the authorities. But reticence to make a complaint is quite a bit different than "threatening" to bring a complaint, particularly when the client hopes that the mere "threat" will cause the "offender" to change his mind and resist engaging in the unethical act.

Richard Raysman and Peter Brown

New Developments Regarding Immunity Under the CDA

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown discuss two cases through which a broader picture of when and why courts will distinguish particular opinions from the conventional wisdom about the applicability of the Communications Decency Act may begin to crystallize.

Baldassare Vinti

The Big Picture of Patent Reform Legislation

By Baldassare Vinti |

Baldassare Vinti writes that even with the America Invents Act reforms, certain industry groups pressed Congress to address what they perceived as an increasing number of frivolous patent suits. In response, Congress began sponsoring legislation aimed at reforming the patent system once again.

Barry Kamins

Key Provisions of New Criminal Justice Legislation

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins discusses legislation that significantly enhances protection to victims of human trafficking, closes what some believe to be loopholes in the definition of two sex crimes, enacts a series of new crimes, makes a number of procedural changes, and more.

Jacques Semmelman and Gabriel Hertzberg

Extradited Defendants and Sentencing Agreements

By Jacques Semmelman and Gabriel Hertzberg |

Jacques Semmelman and Gabriel Hertzberg discuss the Second Circuit's choosing sides in a longstanding split in the federal circuits with its recent decision that a Colombian cocaine trafficker lacks "prudential standing" to invoke the doctrine of specialty to challenge a prison sentence he contends violates an agreement concerning his extradition from Colombia.

David M. Barshay

Court of Appeals Addresses Plaintiff's Prima Facie Burden

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay discusses 'Viviane Etienne Medical Care v. Country-Wide Ins. Co.', where the Court of Appeals held that the plaintiff, a medical provider office, demonstrated "prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer."

Theodore W. Ucinski III and Gary A. Marshall, Jr.

Trench Collapses: A Caveat to Defense Counsel

By Theodore W. Ucinski III and Gary A. Marshall, Jr. |

Theodore W. Ucinski III and Gary A. Marshall, Jr. write: Because trench collapse cases have for so long been beyond §240(1), plaintiffs have not yet pushed the issue on appeal as it is assumed to be a "lost cause." But the Court of Appeals' 'Runner' decision set a standard that could open the door to §240(1) liability where a plaintiff is injured by falling debris when a brace failed or was not installed in the first instance.

Samuel Estreicher and Kristina A. Yost

'Collins v. MTA' Deference Narrowed for Agency Bias Findings

By Samuel Estreicher and Kristina Yost |

In their Arbitration column, Samuel Estreicher and Kristina Yost review a recent decision in which the Second Circuit ruled that the summary judgment hurdle discrimination plaintiffs have to overcome in the face of a prior arbitration award upholding a termination does not apply where the plaintiff's discrimination claims had been dismissed, after hearing, by the New York State Division of Human Rights.

Jerry H. Goldfeder and Myrna Pérez

Making Sense of the Bronx 'Switcheroo'

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: The "switcheroo" between Bronx District Attorney Robert Johnson and former Appellate Division Associate Justice Darcel D. Clark no doubt has many people, lawyers included, scratching their heads. Putting aside the political aspects of these events, an explanation is in order.

Thomas A. Moore and Matthew Gaier

Physician Liability From Collaborative Arrangements

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write: As the practice of medicine and the provision of health care continue to evolve, it has become increasingly common that diagnosis, care and treatment are provided by other health-care professionals, such as nurse practitioners and midwives, who are required to collaborate with physicians. But that collaboration can lead to liability for physicians who fail to provide proper supervision or oversight.

Robert J. Anello and Richard F. Albert

Prosecuting Individuals for Corporate Misconduct

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: Move over Holder, Thompson, McNulty, and Filip and make room for Yates. Taking its place in the parade of guidelines issued by top DOJ leadership on the topic of prosecuting business organizations comes "Individual Accountability for Corporate Wrongdoing," setting forth six steps to be taken in the investigation of corporate misconduct in order to "fully leverage [the department's] resources to identify culpable corporate cases."

H. Christopher Boehning and Daniel J. Toal

E-Discovery Competence of Counsel Criticized in Sanctions Decision

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison discuss an Ethics Opinion of the Standing Committee on Professional Responsibility and Conduct of the State Bar of California, and how it was cited in a recent federal decision from California that severely criticized and imposed sanctions against counsel and client for discovery misconduct.

David A. Berger and Vera Zolotaryova

Protecting Settlement Negotiations With Communications Agreements

By David A. Berger and Vera Zolotaryova |

David A. Berger and Vera Zolotaryova write that practitioners often mistakenly assume that settlement communications are entirely off limits if the dispute is not settled and litigation ensues. By incorporating protections routinely afforded to parties in mediation into an appropriate settlement communications agreement, parties may facilitate more productive discussions while ensuring that their communications cannot be used for any purpose should settlement not be reached.

Glen Banks

Justifiable Reliance and Sophisticated Parties

By Glen Banks |

In his Contract Law column, Glen Banks analyzes the Court of Appeals' decisions in 'ACA Financial Guaranty v. Goldman Sachs & Co.', where it addressed whether a contention of a lack of justifiable reliance could be the basis to dismiss a fraud claim at the pleading stage. The court's analysis on what was necessary to adequately allege justifiable reliance seems less stringent than what the court articulated a few years ago.

Jeffrey S. Klein and Nicholas J. Pappas

New Challenges to Independent Contractor Classifications

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas write: The use of independent contractors has been a staple of many companies' staffing models for years. These workplace arrangements are facing renewed scrutiny from government agencies and the courts. Two recent decisions involving the transportation industry highlight the perils of these tenuous classifications, which offer a cautionary tale that extends beyond this particular industry.

John P. Furfaro and Risa Salins

Unpaid Intern Update

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins analyze recent Second and Eleventh Circuit rulings that provide guidance for unpaid internship programs, particularly where the programs are offered in connection with a related academic program.

Christopher Dunn

The Pope, Invoking God and New York Courtrooms

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: Last week's government-papal engagement refocused attention on a long-standing concern of mine about an invocation of God found throughout New York's judicial system. Every time I appear in a courtroom with the words "In God We Trust" on the walls behind judges' benches, I am troubled by the suggestion of divine oversight of the judiciary.

Brian P. Heermance and Christopher P. Keenoy

Legal Malpractice—Analysis and Defense

By Brian P. Heermance and Christopher P. Keenoy |

Brian P. Heermance and Christopher P. Keenoy write: Litigating a legal malpractice case is generally more complex than a simple tort action but, at its core, is governed by many of the same principles. The starting point is to simply examine the elements of any negligence claim—duty, breach, causation, and damages.

Michael J. Hutter

Impeachment of Witnesses and Out-of-Court Hearsay Declarants

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter discusses two issues arising under New York law governing impeachment: the ban on the use of extrinsic evidence that contradicts the witness's testimony on a collateral matter, and impeachment of a hearsay declarant whose statement is admitted into evidence pursuant to a hearsay exception.

Jeremy M. Creelan and Kate T. Spelman

Ascertaining the Requirements for Ascertainability Under FRCP 23

By Jeremy M. Creelan and Kate T. Spelman |

Jeremy M. Creelan and Kate T. Spelman write: Ascertainability has long been recognized as an implied requirement for class certification. But the parameters of the ascertainability requirement have recently become a hot button issue in the certification of consumer class actions, particularly with respect to low-cost consumer goods.

Michael I. Rudell and Neil J. Rosini

Court Affirms Producer's Film Ownership Absent Work-for-Hire

By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini write that the focus of attention on the subject of film authorship (and ownership) shifted east this summer when a Second Circuit panel unanimously decided that a production company owned the contribution of a director to a film in the absence of either joint authorship or a work-for-hire agreement. The court generally followed the trail blazed by the Ninth Circuit in 2014 and earlier this year, but in some respects went beyond it.

Gerald M. Levine

Safe Harbor for Service Providers Under Anticybersquatting Act

By Gerald M. Levine |

Gerald M. Levine analyzes two lawsuits that sought to hold, the largest registrar in the United States with more than 60 million domain names under management, liable for contributory or secondary infringement rather than "direct" cybersquatting under the under the Anticybersquatting Consumer Protection Act.

Steven V. Treglia

Federal Trade Commission's Cybersecurity Authority Upheld

By Stephen Treglia |

In his E-Communications column, Stephen Treglia discusses the much-awaited Third Circuit decision in 'FTC v. Wyndham Worldwide' and writes that while the ultimate holding may not be very surprising, the expansive extent to which the court sided with the FTC requires close attention.

Ilene Sherwyn Cooper

Summary Judgment in the Surrogate's Court

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: Although in years past, summary judgment in Surrogate's Court proceedings was rare, today, summary relief has become a welcome means for disposing of issues or a matter in its entirety. Of late, this momentum has continued as Surrogate's Courts have been inclined to grant summary relief in proceedings involving the elective share, as well as the judicial settlement of a fiduciary's account.

Matthew J. Herrington and Michael C. Miller

Judiciary Law §487: Potency of Claims Has Grown

By Matthew J. Herrington and Michael C. Miller |

Matthew J. Herrington and Michael C. Miller write: Although cases and success rates for claims invoking the attorney misconduct statute have risen—even doubled—over the past five years, there appears to be no change in the severity of misconduct required for an actionable claim. Given the clarification in 2009's seminal 'Amalfitano v. Rosenberg' that even attempted deceit was actionable, the post-Amalfitano consistency in the severity standard is arguably surprising and provides some comfort.

Elizabeth McNamara and Samuel M. Bayard

'Lenz': Can a Machine Consider Fair Use?

By Elizabeth McNamara and Samuel M. Bayard |

In their Media Law column, Elizabeth McNamara and Samuel M. Bayard write that in 'Lenz v. Universal Music Corp.', the Ninth Circuit made clear that a copyright owner need only make a "subjective good faith" evaluation of fair use before sending a takedown notice, not an objectively reasonable one. One of the more important practical questions that remain after the decision is whether copyright owners can use fully automated processes to police their copyrights online given Lenz's directive to "consider fair use."

Sidney Kess

Changes in Dealing With the Internal Revenue Service

By Sidney Kess |

In his Tax Tips column, Sidney Kess reports on several important changes impacting relations between the IRS and taxpayers: the termination of the online Get Transcript service that was the basis of a data breach along with other fallout from the hacking, a new penalty relief program for late filers of Form 5500-EZ, and a new law reversing a Supreme Court ruling on the statute of limitations for the IRS to begin an audit.