Expert Analysis

Anthony E. Davis

In-State Office Requirement: Gap Between Theory and Reality

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis writes: When Thomas Jefferson became President in 1801, the fastest means of communication on land was on horseback. If the Second Circuit is to be believed, nothing whatsoever has changed in the intervening centuries.

Michael Hoenig

When Experts 'Cherry-Pick' Among Competing Studies

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig discusses a recent First Circuit decision that tees up some critical tensions in toxic tort experts' methodologies. For example, experts can and do rely upon scientific and technical literature. But what if the articles relied upon are themselves partially or wholly unreliable? Or what if there is inconsistent technical literature? Does "cherry-picking" favorable articles sufficiently create a jury question, or does the problem of conflicting literature go to the heart of the threshold "reliability" question inherent in Daubert admissibility criteria?

Neil J. Rosini and Michael I. Rudell

Musical Controversies in Presidential Elections

By Neil J. Rosini and Michael I. Rudell |

In their Entertainment Law column, Neil J. Rosini and Michael I. Rudell write that the strength of the legal theories on which artists objecting to the use of their songs by political campaigns rely—copyright, Lanham Act, and right of publicity—has received scant judicial attention. There is some legal precedent, however, as well as guidance from industry sources that concern the such use of music without express approval.

Steven Wolowitz, Melissa Francis and Matthew Bisanz

A Panama Papers Prophecy

By Steven Wolowitz, Melissa Francis and Matthew Bisanz |

Steven Wolowitz, Melissa Francis and Matthew Bisanz write: The U.S. government has been aggressively collecting information on U.S. taxpayers and their offshore financial institutions to go after entities and individuals who may have assisted criminal conduct. With the recent revelation of the so-called "Panama Papers," the government may have been handed the means to target not just the accountholders and their offshore banks, but a greater number of the professionals around the world who often link them.

Evan H. Krinick

Finding of 'Rehabilitation' After Insurance Fraud Sentence

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick writes: Generally speaking, once a prison sentence for insurance fraud is imposed, everyone moves on. Everyone, that is, except the defendant, who is tarred with the conviction forever. In an unusual and rare case decided by U.S. District Judge John Gleeson just days before leaving the bench, Judge Gleeson refused to simply "move on," instead fashioning a creative remedy to address the situation.

Elkan Abramowitz and Jonathan Sack

When Do Business Negotiations Cross the Line and Become Fraud?

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write: The federal mail and wire fraud statutes are among the most powerful prosecutors' tools because they are drafted in broad language designed to reach ever-changing methods of fraud. The outer boundary of those statutes has recently been tested in the context of arm's length business negotiations.

Patrick O'Sullivan

Enabling Public-Private Partnerships in New York

By Patrick O'Sullivan |

Patrick O'Sullivan writes: Public-private partnerships can provide real value to the public sector in addressing its overwhelming infrastructure needs. As a city that continues to grow with an infrastructure that continues to age, New York City would benefit significantly from such a tool to address needs ranging from repairing existing roads to expanding the transit network with streetcars and ferries to building out its technology infrastructure.

Richard Siegler and Eva Talel

Increased Vigilance for Secondhand Smoke

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write: Until the March 2016 decision in 'Reinhard v. Connaught Tower Corp.,' courts had generally afforded boards flexibility and tolerance in addressing secondhand smoke. The Connaught ruling, although it is currently being appealed, may mark a shift in such judicial forbearance, and therefore impact the obligations of boards to remediate secondhand smoke complaints.

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

Federal Appellate Review of Arbitration Awards

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. write that the Second Circuit's decision instructing the district court to confirm an arbitration award suspending New England Patriots quarterback Tom Brady for four games serves as a reminder of the very limited scope of judicial review of arbitration awards.

Brian J. Shoot

First Department's 3-2 Rulings: Fault Lines of the Law

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot discusses recent cases illustrating issues on which courts continue to disagree: availability of a "sole proximate cause" defense when defendants claim injured workers were provided alternative means of performing the elevated work, the burden of proof in a fall from an unsecured but non-defective ladder, and whether a plaintiff's deliberate use of an closed A-frame ladder is the "sole proximate cause" of an accident or mere comparative negligence.

Stephen Bergstein

Racial Discrimination Cases: Deferring to District Court Fact-Finding

By Stephen Bergstein |

Stephen Bergstein writes: A recent decision from the Second Circuit finds that a Long Island village violated the Fair Housing Act in rezoning property to make it more difficult to build multifamily housing. This decision reaffirms that intentional discrimination cases are often proven with subtle and circumstantial evidence; municipalities can be liable for the racist views of their constituents; and the Court of Appeals is loath to second-guess factual findings reached by the trial courts.

Mark A. Berman

New Decisions on Emails and Motion Practice

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman discusses various cases in which emails factored into the decisions of motions to dismiss and motions for summary judgment.

Martin A. Schwartz

Immunity Defenses to §1983 Fabrication of Evidence Claims

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz discusses qualified and absolute immunity as applied to various functions carried out by prosecutors, witnesses, and various law enforcement officers who are being sued for §1983 evidence fabrication claims for money damages.

Clifford G. Tsan and Michael D. Billok

Cybersecurity Insurance: Facing Hidden Risks and Uncertainty

By Clifford G. Tsan and Michael D. Billok |

Clifford G. Tsan and Michael D. Billok write: Due to the rapid evolution of cyber-attacks, cyber insurance underwriters, brokers, and consumers have struggled with configuring the optimal insurance product to manage an entity's unique risks. This has led to fluctuating policy coverages and configurations.

Thomas E.L. Dewey

Impact of 'Campbell-Ewald': Unanswered Questions

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey writes that the U.S. Supreme Court's decision in 'Campbell-Ewald Co. v. Gomez' denied class-action defendants the ability to moot an entire class action by making a settlement offer that would have completely satisfied the named plaintiff's claim. But a new split has already arisen: May a defendant who consents to entry of a judgment against it evade further litigation?

Kevin G. Faley and Andrea M. Alonso

Insurance Claims Files: How Privileged Are They?

By Andrea M. Alonso and Kevin G. Faley |

Andrea M. Alonso and Kevin G. Faley write that claims files are the hard-drive of an insurance carrier, with a record of all information about a claim: opinions, discovery, reserves, witness statements, etc. Insurance claims files are, in theory, protected from discovery by work-product doctrine as "material prepared in anticipation of litigation." But these protections are situational.

Steven R. Pounian and Justin T. Green

Third Circuit Limits Scope on Federal Preemption in Aviation Cases

By Steven R. Pounian and Justin T. Green |

In their Aviation Law column, Steven R. Pounian and Justin T. Green write: While state law historically provided the foundation for nearly all aviation injury and death suits, a 1999 Third Circuit decision on preemption dramatically shifted the landscape, forcing plaintiffs to undertake the often futile task of delineating a federal law basis for their actions. Last week, however, the court sharply limited the scope of its field preemption ruling, holding that it does not extend to state products liability claims.

Susan L. Pollet

Revenge Porn: Will Legislation Help to Prevent It?

By Susan L. Pollet |

Susan L. Pollet writes that despite the risks, people naively believe that their loved ones will never betray them, and they continue to share explicit images—some 80 percent of revenge porn victims took the images themselves. Victims have attempted to sue under tort claims, but such claims often fail. Many scholars believe criminalizing revenge porn would be a more effective deterrent.

Martin Flumenbaum and Brad S. Karp

Court Clarifies Classification of 'Hispanic' Under Title VII

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss a case involving a mayor's decision to promote one candidate over another for police chief in which the court explicitly addressed for the first time whether discrimination based on Hispanicity constituted racial discrimination under Title VII, or if it instead amounted exclusively to national-origin discrimination.

James J. Beha II, Jordan Eth and Craig D. Martin

Corporate Disclosure of Government Investigations

By James J. Beha II, Jordan Eth and Craig D. Martin |

James J. Beha II, Jordan Eth and Craig D. Martin write: While a company's decision whether to disclose an ongoing government investigation may implicate many different legal, public relations, and business concerns, decisions in the Southern District provide comfort that a company need not disclose an ongoing investigation under federal securities laws, unless and until the company determines that the investigation is "substantially certain" to lead to a formal government enforcement action, so long as the company's other disclosures are not rendered misleading by the omission.

Nicholas M. De Feis and Philip C. Patterson

Limits in New FCPA Leniency Program May Hinder Effectiveness

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: On April 5, the Fraud Section of the DOJ announced a pilot program offering potential leniency to corporations that self-report Foreign Corrupt Practices Act violations. Although intended to incentivize self-reporting, the program has limits and collateral requirements for credit that should cause corporate counsel serious concerns.

Michael Rikon

Rezoning as Component of Highest and Best Use

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon writes: Ordinarily, the potential uses the court may consider in determining value of a property taken by eminent domain are limited to those uses permitted by the zoning regulations at the time of taking. When, however, there is a reasonable probability of rezoning, some adjustment must be made to the value of the property as zoned.

Peter A. Crusco

Passcodes, Privacy and Public Safety: Apple vs. DOJ

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco discusses litigation on the issue of whether the All Writs Act may be used by the government to compel Apple to unlock an iPhone passcode by creating a program or so called "backdoor" for law enforcement access to it to obtain needed evidence of a crime on the phone.

Conrad Teitell

Clarification in PATH Act on Charitable Remainder Unitrusts

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell discusses a "clarification" in the PATH Act of 2015 that can be dangerous to your client's wealth.

Ben Rubinowitz and Evan Torgan

Use of Supporting Evidence With the IME Physician at Trial

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: While the theory behind the need for an independent medical examination makes perfect sense, the reality is that there has been a history of deceit and abuse on both sides of the fence. Some plaintiffs exaggerate injuries, some examining doctors minimize their findings. Regardless of whether one represents the plaintiff or the defendant, it is the responsibility of the trial lawyer to challenge the physician at trial to expose such deception.

Kenneth G. Schwarz

Mistakes in Identifying Parties and Possible Corrective Actions

By Kenneth G. Schwarz |

Kenneth G. Schwarz writes that using fictitious names when the identity of the party that should be sued is unknown is only of limited value. With looming deadlines, a party may find himself unable to sue someone when that person's identity becomes finally known. Further, if they use anonymous or incomplete names while ascertaining the actual identities, there are limited remedies to overcome the passing of the statute of limitations.

Sidney Kess

Tax-Advantaged Retirement Savings Strategies

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses employers' qualified retirement plans and non-ERISA retirement savings options and special issues or concerns for each, along with ways to easily increase contributions to tax-advantaged plans.

Sharon M. Porcellio

Telephone Consumer Act Action Does Not Survive Plaintiff's Death

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio writes that the court welcomed in this quarter almost a full complement of its judicial ranks with a new district judge and magistrate judge, and she reviews Chief Judge Geraci's holding in a case of first impression—whether a private right of action created by Sections 227(b) and (c) of the Telephone Consumer Protection Act of 1991 survives a plaintiff's death.

Thomas A. Dickerson and Sylvia O. Hinds-Radix

Airbnb and Uber: From Revolution to Institution

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

Thomas A. Dickerson and Sylvia O. Hinds-Radix write that as Airbnb, Lyft and Uber have become nearly accepted transportation and short-term rental institutions, so too have the number and scope of lawsuits brought against them.

David J. Kaufmann

Judiciary Addresses Key Franchise Act Issues

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann writes that two integral provisions of the New York Franchise Act came under judicial scrutiny of late: the penalties to be imposed upon a franchisor which fails to furnish disclosure to a franchisee within the time prescribed by the act and when the act's "isolated franchise sale" exemption from registration may be invoked.

Roberta S. Karmel

Proposals for Intrastate and Regional Offerings

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel discusses a proposed rule that would replace Rule 147, which has served to define exempt intrastate offerings. The purpose of the new intrastate offering rule is to craft an exemption that would be more usable than Rule 147 exempt offerings and that would mesh with rules passed by some states to facilitate crowdfunding. She also discusses amendments to Rule 504 of Regulation D meant to encourage state securities regulators to develop coordinated review for regional offerings relying on Rule 504 at the federal level.

Roy L. Reardon and William T. Russell Jr.

Smoking Ban, Ineffective Assistance Claim

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 upholding a smoking ban in state parks in New York City, a case finding defense counsel's failure to object to stereotyped and misogynist statements during summation did not amount to ineffective assistance, and a case finding a complaint arising out of an episode of reality television sufficiently stated a claim for breach of patient-physician confidentiality.

Robert W. Clarida and Robert J. Bernstein

A Sobering Reminder: Registration Still Matters

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein write: Although copyright registration is sometimes viewed as a mere formality, inaccurate statements made in registration applications may come back to haunt the plaintiff, as a recent decision showed.

Joseph S. Bavaro and Daniel Justus Solinsky

Don't Fear the Repo: UCC an Unlikely Ally in Personal Injury Cases

By Joseph S. Bavaro and Daniel Justus Solinsky |

Joseph S. Bavaro and Daniel Justus Solinsky write: With television shows glorifying the dangerous life of the repossession agent, it is no wonder that one often hears stories of violence carried out by these agents. The instincts of a well-trained personal injury attorney might dictate that unless the "Repo Man" has considerable assets, a lawsuit against the towing company or the lender that sent these agents would be futile—but these instincts would be wrong.

Edward M. Spiro and Judith Mogul

Service of Process by Email on Defendants Outside the U.S.

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: A plaintiff seeking to serve an individual or organizational defendant located overseas can face substantial, sometimes insurmountable logistical challenges. Several recent decisions have permitted plaintiffs frustrated by elusive defendants or uncooperative foreign governments to serve defendants through email under FRCP 4(f)(3), providing a modern-day solution to an age-old problem.

Dani Schwartz

Open Issues in RPAPL §881 Litigation

By Dani Schwartz |

Dani Schwartz discusses RPAPL §881, which governs efforts to compel access to adjoining property to perform work on one's own property, and explores two open issues in the RPAPL §881 case law: the availability of discovery in an proceeding, and whether the statute applies to demolition work.

Shari Claire Lewis

FCC Proposes Rules That Impact Everyone's Online Privacy

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis of Rivkin Radler explores the FCC's Notice of Proposed Rulemaking (which proposes to establish privacy guidelines applicable to ISPs) and some of the most important issues it raises.

Jerry H. Goldfeder and Myrna Pérez

Electing the President: Rules and Laws

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: The presidential election season has many people scratching their heads, even those who normally follow politics—and we are not referring to the candidates' pronouncements or personalities. We are talking about the complicated and inconsistent set of laws and rules that govern how we nominate and elect the president of the United States.

Stephen J. Crimmins, James K. Goldfarb and Sharon A. O'Shaughnessy

Legal Antiperspirant for Audit Committee Members

By Stephen J. Crimmins, James K. Goldfarb and Sharon A. O'Shaughnessy |

Stephen J. Crimmins, James K. Goldfarb and Sharon A. O'Shaughnessy write: Public company audit committee members might be forgiven for sweating potential SEC scrutiny of late. We examine the SEC's focus on audit committee members as gatekeepers, review three recent enforcement actions to highlight conduct that attracts the staff's attention, and suggest certain safeguards that might help mitigate the chance of an SEC investigation or charge.

George Bundy Smith and Thomas J. Hall

Fraud Claims Arising From Contract Negotiations

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: Parties to negotiations over commercial contracts unfortunately may discover, after the deal closes, that aspects of the transaction are not as expected. Contractual representations and warranties usually are included to protect against these risks. But what if, in addition to breaches of contractual representations and warranties in the contract, the buyer feels it was outright defrauded during the negotiations?

E. Leo Milonas and Andrew C. Smith

Criminal, Business, Immigration Matters

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith highlight some of the leading decisions from the first quarter of 2016 involving dissolving foreign corporations, pharmacists' duty of care, extending orders of protection, affirmative covenants, and staring at police officers.

Richard G. Leland

Clean Water Rule: a Dispute Playing Out in all Government Branches

By Richard G. Leland |

Richard G. Leland writes: In 2006, the U.S. Supreme Court invalidated regulations promulgated by the EPA and the Army Corps of Engineers defining the jurisdictional reach of their permitting authority under the Clean Water Act, finding that the definition of "waters of the United States" exceeded the scope of the language in the act. Since then, the EPA, the Army Corps, Congress and the courts have wrangled over the promulgation of a new regulatory definition.

Michael Hoenig

Be Vigilant When It Comes to Deposition Corrections

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: At first blush, many litigators on both sides possibly view the practice of offering corrections to deposition transcripts as a kind of vanilla ministerial function. A passive, uninterested approach to the other side's proffer of deposition errata sheets, however, is not only neglectful, it is unwise. When errata sheets are ruled to be failures, what's left is the sworn "uncorrected" testimony, which can prove fatal to a litigant's case.

David M. Barshay

Office-Based Surgical Facility Fees and No-Fault Insurance

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay discusses the recent Court of Appeals decision on whether a no-fault insurer is required to pay no-fault medical benefits to an office-based surgical facility not licensed under Public Health Law Article 28.

Margaret A. Dale and Mark D. Harris

SEC Enforcement Actions Before Administrative Tribunals

By Margaret A. Dale and Mark D. Harris |

In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris write that given the increasingly heated debate generated by the issue of whether the statutory review process set forth in the Securities Exchange Act of 1934 precludes district-court jurisdiction over constitutional challenges to Dodd-Frank, some spectators were surprised when the Supreme Court denied certiorari in 'Bebo v. SEC'. In all events, the case has brought attention to some thorny jurisdictional and constitutional issues.

Abby Tolchinsky and Ellie Wertheim

Spousal Support Guidelines Offer Framework for Mediation

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim write: For years, attorneys and judges have grappled with creating a standard of fairness upon which parties may rely that provides sufficient flexibility so that cases may be tailored to each family's unique budgetary needs. As mediators, we have similarly struggled. Now courts are firmly in the era of DRL §236B(6), which provides a formula for post-divorce maintenance and guidelines for duration. We believe that in the context of mediation, it will serve as a societal standard of fairness.

Jeffrey D. Pollack

Labor and Employment Law: Independent Contractor Tests

By Jeffrey D. Pollack |

Jeffrey D. Pollack writes: An issue that routinely arises in the labor field is whether a worker is an "independent contractor" or an "employee." Misclassification of workers as independent contractors can have serious consequences, so companies must exercise caution when treating someone as an independent contractor. One problem, however, is that the test for employment status varies depending on which law is involved.

Joel Cohen

When Adjournment Requests Are Critical

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Although the Rules and case law are clear that counsel cannot delay for the sake of delay, 'U.S. v. Abney' most graphically tells us why a delay is sometimes not only warranted—but that a failure to seek a delay may allow for an ineffective assistance of counsel claim.

Shepard Goldfein and James A. Keyte

Sports Tickets: Revocable Licenses or Rights to Resale?

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write that ticketing policies for sporting and other events have been receiving increased attention recently in both the media and legal spheres. They review some common resale limitations and recent lawsuits filed by ticket holders over access to secondary markets, and the results of the New York Attorney General's recent investigation into the ticket industry.

Richard Raysman and Peter Brown

How Will Courts Respond When 'Connected Cars' Are Hacked?

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown that while wireless-enabled technologies in cars provide many positive features, attackers have devised a variety of ways to access the data generated through the use of both manufacturer-provided and aftermarket devices. The authors discuss the implications of such threats.

Ilene Sherwyn Cooper

Mistake, Disqualification of Counsel and Personal Jurisdiction

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper discusses the issue of mistake as it affects the validity of a will, and examines decisions addressed to the disqualification of counsel and the jurisdictional predicate for a proceeding to compel the production of a will.

Ronald Steinvurzel

Local Regulation of Hydrofracking Found Not Preempted

By Ronald Steinvurzel |

Ronald Steinvurzel writes: While there is no denying that local zoning laws will impact oil and gas companies in deciding where such operations are permissible, the law in New York is that any such impact is merely "incidental control" stemming from a municipality's lawful exercise of its rights in regulating land use through its zoning laws.

Peter M. Fass

Private Placements and the Internet—No-Action Letters

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass writes: The SEC has recognized that there is no General Solicitation where there is a substantive, pre-existing relationship between the issuer or its agent, and the prospective investor. The process by which a sponsor of Rule 506(b) Internet offerings can develop this type of relationship with prospective investors is far from clear. The Citizen VC Inc. No-Action Letter provides some clarity.

Harvey M. Stone and Richard H. Dolan

Foreclosure, Standard to Expunge Criminal Record, Intervention

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions reinstating an order allowing the foreclosure sale of defendant's home, finding a petitioner failed to meet the stringent standard required to expunge his criminal record relating to a 1991 arrest followed by dismissal of the charges, and denying intervention as of right to certain non-parties but granting limited permissive intervention in a case involving the East Hampton Airport.

Paul F. Millus

NLRB and the Joint Employer: Is Franchising on the Ropes?

By Paul F. Millus |

Paul F. Millus writes: Lately, there is never a dull moment at the National Labor Relations Board. Recent NLRB decisions have rewritten the labor law map in a variety of ways but nowhere more significantly than in the areas of franchising and outsourcing.

Michael J. Hutter

Admissibility of Evidence Obtained From Facebook

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter addresses the four major evidentiary hurdles—relevance, authentication, hearsay, and best evidence—that must be overcome to admit Facebook posts claimed to be posted by the owner, whether it be the profile page, or a posted message, photograph or video, when offered against the claimed owner.

Pamela L. Kleinberg

Extending Mechanic's Liens Filed Against Residential Co-op Apartments

By Pamela L. Kleinberg |

Pamela L. Kleinberg writes: It may come as a surprise to attorneys engaged in the practice real estate litigation that until very recently, the New York state courts did not address whether a mechanic's lien filed against a co-op apartment may be extended under New York Lien Law §17 without a court order. On Nov. 13, 2015, this question finally was addressed and answered in the negative.

John Fellas

Jurisdictional Obstacles and Enforcing Foreign Arbitral Awards

By John Fellas |

In his International Arbitration column, John Fellas writes: Given the differences in the treatment by New York courts of foreign arbitral awards and foreign judgments when it comes to the applicability of jurisdictional defenses, a question arises: Is it possible to avoid the jurisdictional obstacles to the enforcement of foreign arbitral awards by seeking to enforce not the arbitration award itself, but rather the foreign judgment confirming that award? A recent case affirms that this is indeed possible.

Andrew Lavoott Bluestone

Judiciary Law §487 Joins the Mainstream

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone writes: While legal malpractice deals with negligence or good-faith mistakes, Judiciary Law §487 deals with attorney deceit. In the past, it appeared that courts viewed §487 cases with disfavor, and as the least important of any causes of action arising from the attorney-client relationship. But there have been some important developments in the past year, which now reveal the law is mainstream and no longer a fluke.

Robert J. Anello and Richard F. Albert

Rise of ABA Task Force's 'Shadow Sentencing Guidelines'

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: Because the federal sentencing guidelines applicable to fraud cases are widely acknowledged as broken and dysfunctional, particularly in cases where the loss amount is high, sentencing judges may increasingly seek other sources to help guide their discretion. Since its 2014 issuance, perhaps the most thoughtful alternative framework has been that offered by the ABA's Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes.

Thomas A. Moore and Matthew Gaier

New York State Medical Indemnity Fund Experience

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier examine the impact of the New York State Medical Indemnity Fund, established five years ago, and make suggestions for improving its effectiveness and its ability to serve the injured children for whom it was established.

H. Christopher Boehning and Daniel J. Toal

Proportionality Is on the Rise

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: FRCP 26(b)(1), as amended, effective Dec. 1, 2015, clearly establishes the scope of discovery to be items that are (1) relevant, (2) non-privileged, and (3) proportional to the needs of the case. Since the enactment of the amended rule, courts appear to be faithfully and pragmatically enforcing these standards.

Barry Kamins

Defendant's Grand Jury Testimony: Who Decides?

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins discusses a recent case in which the Court of Appeals revisited the allocation of decision-making authority between defense counsel and a defendant, holding that the decision regarding whether to testify before a grand jury is a strategic one, resting solely within the professional discretion of defense counsel and one that is not fundamental or personal to the defendant.

Jeffrey S. Klein and Nicholas J. Pappas

Discrimination Against Transgender Individuals

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas describe the current state of federal, New York State and New York City law on discrimination against transgender and gender nonconforming individuals, and suggest several ways that employers with operations in New York City might want to amend their policies and practices.

Lisa Bentley

Actions by Insureds Against Brokers: 'Special Relationships'

By Lisa Bentley |

Lisa Bentley examines the state of the law on the "special relationship" between insurance brokers and their clients since the Court of Appeals issued its seminal decision in 'Voss v. The Netherlands Insurance Company' two years ago, which held that a broker could be subject to liability for negligence or other tort claims where such liability would be unattainable in the typical broker-insured relationship.

John P. Furfaro and Risa Salins

WARN Act Update: New Questions and Application

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins discuss developments regarding Worker Adjustment and Retraining Notification liability as a single employer, offsets of WARN notice pay from voluntary severance pay and aggregation rules for calculating the number of layoffs necessary to trigger WARN notice.

Theodore W. Ucinski III and Matthew S. Libroia

Enforcing a Personal Injury Settlement in Age of Emails and Texting

By Theodore W. Ucinski III and Matthew S. Libroia |

Theodore W. Ucinski III and Matthew S. Libroia write: The recent trend toward instant electronic communication, especially favored by young attorneys, has led the courts to begin to veer toward a more encompassing view of what constitutes a "writing subscribed by him or his attorney" pursuant to CPLR §2104. To date, the court has not ruled on the use of text messaging to enforce a settlement. However, they have demonstrated a strong propensity to permit the enforcement of stipulations of settlement even when communicated through electronic means.

Hal R. Lieberman

New Rules for Attorney Disciplinary Matters: Formal Proceedings

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman writes: Much can be said in praise of the uniform rules, most notably "uniformity" itself. Yet, in the author's opinion, there are also significant flaws and lacunae in the uniform rules relating to formal proceedings.

Howard Epstein and Theodore Keyes

Representations and Warranty Insurance Comes of Age

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes of Schulte Roth & Zabel write: The growing market and growing demand for Representation and Warranties insurance demonstrates that this product has become a valuable tool for deal makers. The experience of the last few years suggests that use of these policies will continue to grow as more practitioners gain experience with the product.

Volkswagen advertisement

FTC Sues Volkswagen For Deceptive Claims In ‘Clean Diesel’ Ads

The Federal Trade Commission has sued Volkswagen Group of America Inc. over billions of dollars consumers spent on its “clean diesel” vehicles while the company allegedly exposed them to a deceptive advertising campaign.

Recognizing Child Support Judgments Beyond U.S. Borders

By Seth Lapidow, Michael Rowe and Heidi Tallentire |

Seth Lapidow, Michael Rowe and Heidi Tallentire of Blank Rome discuss 'Bond v. Lichtenstein', an action to enforce a cross-border judgment awarding child support. The case clarified for the first time how to enforce such an award and the entitlement to attorney fees in so doing.

Adam R. Shaw

Recovering Against LLC, Injunction, Declaratory Judgment

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw of Boies, Schiller & Flexner profiles three decisions: one addressing when creditors can gain control over interests in a LLC, another explaining the duration of permanent injunctions, and the last discussing ripeness in declaratory judgment actions.

Scott D. Locke

Patents: Provisional Rights Under 35 USC §154(d)

By Scott D. Locke |

Scott D. Locke of Dorf & Nelson writes: The Federal Circuit's having addressed the provisional rights of 35 U.S.C. §154(d) twice within less than 12 months is indicative of the increased prevalence with which patent holders are seeking to recover under it.

John L.A. Lyddane and Barbara D. Goldberg

Role of the Arons Interview of Nonparty Physicians

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 the nine years since the Court of Appeals decided 'Arons v. Jutkowitz', the approach to informal interviews of nonparty treating physicians has stabilized, and the courts have protected this valuable resource for the trial attorney.

Steven V. Treglia

Goodbye Safe Harbor. Hello Privacy Shield?

By Stephen Treglia |

In his E-Communications column, Stephen Treglia discusses data privacy in Europe and writes: Until the formal adoption of the Privacy Shield, U.S. companies continue to be at increased risk of privacy violations while handling and/or processing EU citizens' personal data during this period between the abolition of Safe Harbor and the passage of the Shield.

Carlos J. Cuevas

Default Judgments and Collateral Estoppel in Bankruptcy

By Carlos J. Cuevas |

Carlos J. Cuevas discusses the effect of a default judgment, one issued by New York state courts when a defendant was properly served but failed to respond to a claim, on collateral estoppel in the U.S. Bankruptcy Court.

Court Sides With Jimmy John’s Workers Fired Over Poster Campaign

In what some employment lawyers are calling a regrettable ruling, an appeals court on Friday faulted a Jimmy John’s franchisee for firing employees that bashed—and arguably mischaracterized—the sandwich chain’s sick leave policy.

Ilann Margalit Maazel

When Is a Wrongful Conviction Verdict Too Large?

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel discusses the district court's March 4 remittitur of the jury's $18 million award to Alan Newton for 12 years of wrongful incarceration, writing that given the stringent nature of the test, it should be the exceedingly rare case where a court grants a motion for remittitur.

Lanier Saperstein, Daniel W. Beebe and Carol Lee

Expansive Take on Specific Jurisdiction: 'Gucci America v. Weixing Li'

By Lanier Saperstein, Daniel W. Beebe and Carol Lee |

Lanier Saperstein, Daniel W. Beebe and Carol Lee review a recent Southern District decision that represents a significant departure from recent Second Circuit precedent as well as a New York Court of Appeals decision where the court held that a foreign bank's "mere maintenance" of a correspondent account in New York is insufficient to support the exercise of personal jurisdiction over that bank.

Arthur J. Ciampi

Unraveling the Mystery of Law Firm Capital Accounts

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi writes: Recently it has been reported that disputes over law firm partners' capital in their firms have increased. Regardless of whether this constitutes a trend that will continue, what appears to be an assured constant is law firm partners' perennial confusion and consternation concerning the nature of law firm capital and what happens to one's capital upon departure.

Joseph E. Bachelder III

Proxy Advisors' Impact on Executive Pay Decisions by Directors

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III discusses the impact on public company directors of proxy advisors' executive pay guidelines and their reports and recommendations on executive pay made to shareholders, as noted, in connection with "say-on-pay" votes.

Richard A. Dollinger

'Appearances' and 'Doubts' Amid Changes to Disqualification

By Richard A. Dollinger |

Richard A. Dollinger writes: The "appearance of impropriety" and "doubts favor disqualification"—once the touchstones for attorneys in disqualification applications—may no longer cast such a long shadow on the legal profession after a blizzard of judicial decisions requiring a higher standard of proof in such applications.

Robert C. Scheinfeld

Federal Circuit Addresses Patent Infringement

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: There are many keys to establishing liability in a patent case, but should the dispute reach trial, the determinative question of infringement is typically the issue the fact-finder will decide first. And, in the last several weeks, the Federal Circuit reminded all practitioners that proving patent infringement, even though this threshold question need only be established by a preponderance of the evidence, is no easy task.

Lawrence W. Newman and David Zaslowsky

Using Anti-Suit Injunctions to Enforce Forum Selection Clauses

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky discuss a New York court's recent grant of an anti-suit injunction to halt further prosecution of an Australian case where the Australian courts had declined to enforce a choice of New York forum clause because it violated Australian public policy.

Scott M. Himes and Brent Weisenberg

The Quagmire of the 'Dual Fiduciary'

By Scott M. Himes and Brent Weisenberg |

Scott M. Himes and Brent Weisenberg write: In today's investment world, private equity firms, investment managers and other investors often acquire a substantial interest in a business and, as a consequence, earn the right to put "their people" on the company's board. That person is often well-versed in the portfolio company's business precisely because of the work of the investment firm, but because the person owes duties to both entities, this scenario can present challenging issues on the proper exercise of fiduciary duty.

Jeremy H. Temkin

DOJ Tax Division Today: Interview With Acting Assistant AG

By Jeremy H. Temkin |

In his Tax Litigation Issues, Jeremy Temkin interviews Caroline Ciraolo, the Acting Assistant Attorney General of the DOJ's Tax Division since February 2015, on the status of the Swiss Bank Program, under which the DOJ has entered into non-prosecution agreements with 80 Swiss banks, collecting more than $1.3 billion in penalties, getting a trove of information regarding accounts related to U.S. taxpayers, and ensuring the cooperation of participating banks, along with the Tax Division's commitment to offshore enforcement and its challenges going forward.

Martin Flumenbaum and Brad S. Karp

Immunity for Sovereign Wealth Funds Rejected

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Atlantica Holdings v. Sovereign Wealth Fund Samruk-Kazyna,' in which the court decided, in an issue of first impression, that a sovereign wealth fund owned by a foreign government is not immune under the Foreign Sovereign Immunities Act from a lawsuit alleging that it misrepresented an affiliate's debt notes to investors.

Francis J. Serbaroli

Court Upholds Mandatory Face Masks for Health Care Workers

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli discusses New York's requirement that doctors, nurses and other providers of care to patients in hospitals and other health care organizations be vaccinated against the flu or wear a face mask when around patients. He analyzes two court decisions that have rejected legal challenges to the face mask requirement.

Robert S. Kelner and Gail S. Kelner

Establishing Liability Under Labor Law §241(6)

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner write: Causes of action under Labor Law §240(1) and Labor Law §241(6) are commonly pleaded in construction accident cases. Both statutes impose nondelegable duties on contractors, owners, and their agents, to provide specified protections to workers. However, the two statutes have material differences in their theories of liability and in the proof they require.

Milton Springut

Maling Decision Highlights Ethical Booby Traps in Patent Prosecution

By Milton Springut |

Milton Springut writes: Patent practice, like many other forms of legal practice, is becoming more and more specialized. It is not uncommon that patent prosecution counsel develops expertise in obtaining patent protection in one area of technology, and has multiple clients operating in the same space. While the increasingly focused expertise of patent attorneys benefits clients, it also raises significant ethical issues.

Stephen M. Kramarsky

Second Circuit Examines Evolving Infringement Standard

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky writes: The line between legitimate service and actionable infringement can get fairly blurry, sometimes making innovation a dangerous (and expensive) gamble. Nowhere is this more evident than in the developing fields of content delivery and cloud services.

Sidney Kess

Tax-Related Developments for Higher Education

By Sidney Kess |

Sidney Kess writes: The tax law had many incentives to help pay for higher education. There have been a number of recent developments, including changes resulting from the Protecting Americans from Tax Hikes Act, designed to provide even more help, while preventing scamsters from claiming tax breaks to which they are not entitled.

Kevin G. Faley and Andrea M. Alonso

Proper Objections at a Personal Injury Deposition

By Kevin G. Faley and Andrea M. Alonso |

Kevin G. Faley and Andrea M. Alonso discuss the four main categories of questions which an attorney can instruct his client in a personal injury action not to answer: the palpably improper or irrelevant question; privileged communications; a defendant-physician's opinion of co-defendant's alleged medical malpractice; and questions that run afoul of the right against self-incrimination.

Kathleen A. Scott

International Guidance for Money Transmitters and Their Supervisors

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott writes that money transmission can be a high-risk business, misused by criminals despite a detailed framework of anti-money laundering laws. Concerned about their own potential liability, banks have been dropping money transmitters that have been clients for years, but in many countries, remittances received from abroad are essential to the recipients' welfare. New guidance raises concerns about unilateral termination of such services.

Charlotte A. Biblow

Casinos Prompt SEQRA Challenges

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes that a recent law authorizing the creation of four destination resort casinos in upstate New York was hailed by many communities. But casinos are not universally welcomed, and as with many proposed developments, opponents are resorting to court and asserting failure to comply with SEQRA. A recent decision highlights the positions the parties take in these situations, and the factors that courts examine.

Pamela Miller and Valerie Cohen

Changing Tides: Legalizing Surrogacy in New York

By Pamela Miller and Valerie Cohen |

Pamela Miller and Valerie Cohen write: Given changes in reproductive technology and traditional notions of family, state regimes regulating surrogacy are quickly evolving, mostly toward a favorable view of gestational surrogacy agreements. Only the District of Columbia and four states, including New York, render all gestational surrogacy agreements unenforceable by statute, and New York is on the verge of a radical change.

Michael D. Patrick

Retaining Foreign Graduates Unable to Obtain H-1B Visas

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: While the H-1B is the most popular visa for international students seeking to work in the country post-graduation, it has recently become an exceedingly less practical option due to the program's oversubscription. In response, DHS recently published a new rule giving F-1 students the opportunity to stay in the country longer and providing them with more chances to obtain the H-1B visa.

Jeremy M. Creelan and Daniel H. Wolf

'Gambits' or Just Good Lawyering? Class Action Cases in Supreme Court

By Jeremy M. Creelan and Daniel H. Wolf |

Jeremy M. Creelan and Daniel H. Wolf write: Despite the pro-plaintiff result in 'Campbell-Ewald', there is an underlying logic to the decision that can be squared with the U.S. Supreme Court's recent class-action opinions raising the threshold requirements faced by plaintiffs. Taken together, Campbell-Ewald and these earlier decisions manifest a consistent goal of maintaining the class action device free from manipulation of the process by either side. Of course, the question remains as to which practices the court views as impermissible procedural "gambits."

Roy L. Reardon and William T. Russell Jr.

False Arrest; Toxic Torts; Arbitration and Insurance

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 addressing the sufficiency of the evidence necessary for false arrest and malicious prosecution claims to survive summary judgments and applying the Frye standard to expert testimony in a toxic tort case, along with a case concerning whether the McCarran-Ferguson Act precluded application of the FAA to compel arbitration of an insurance agreement.

Daniel A. Cohen

Deposition of Corporate Witnesses in Commercial Division Cases

By Daniel A. Cohen |

Daniel A. Cohen discusses Rule 11-f of the Commercial Division, which provides a far more efficient and streamlined method for obtaining relevant testimony and information by requiring a responding entity to produce for deposition representatives who are prepared to testify about information known or reasonably available to the entity concerning topics previously designated by the party conducting the deposition.

Michael Hoenig

Experts Flunk Reliability Test in BMW Case

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig reports on a New York Court of Appeals decision in a case claiming that a youngster's mental and physical disabilities were caused by in utero exposure to unleaded gasoline vapor attributable to a defective gas hose in the pregnant mother's BMW.

Sue C. Jacobs

Judiciary Law §487 Has Both Criminal and Civil Penalties

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs writes that if a violation of Judiciary Law §487 is established in a malpractice action, the attorney will be guilty of both a misdemeanor and civilly liable for treble damages. An insurer is obligated to defend the attorney regardless of whether the §487 claim is the only cause of action alleged or one of several, but will not be obligated to pay the treble damages since they are punitive.

Florina Altshiler

False Eyewitness Testimony: The Limits of Memory

By Florina Altshiler |

Florina Altshiler explores the psychology of memory and techniques specific to addressing these issues starting with jury selection, and continuing with jury instructions.

Ken Strutin

Post-Conviction Representation: A Human Need, a Cognitive Right

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: The cognitive human need to be heard is suppressed by the static conditions of confinement. For this reason, a post-conviction right to counsel must be based on a "human need" born of cognitive rights.

C. Raymond Radigan and Peter K. Kelly

Article 17-A Guardianship Statute: Still Alive and Well

By C. Raymond Radigan and Peter K. Kelly |

In their Trusts and Estates Law column, C. Raymond Radigan and Peter K. Kelly write that, contrary to a recent holding by Surrogate Margarita Lopez-Torres, Article 17-A is not "a drastic remedy" for persons diagnosed with the statutory conditions, and should not be avoided at all costs. Other cases show the flexibility that Article 17-A courts exercise and that the statute is a good alternative to the more expensive and time-consuming procedures of Article 81.

Grant R. Cornehls

Can Fraud Exist Without Actual Damages? First Department Says No

By Grant R. Cornehls |

Grant R. Cornehls writes: A recent First Department decision involving Chipotle Mexican Grill highlights the importance of alleging actual damages as a necessary element of a claim for fraud. The First Department's decision rejects contrary authority from the Second Department, which has held that nominal damages are sufficient to sustain a cause of action for fraud.

Harvey M. Stone and Richard H. Dolan

Custodial Interrogation, Vaccination, Illegal Detention

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review cases involving whether a defendant was in "custody" during his interrogation at JFK Airport, whether children must be allowed to attend a Jewish school while their mother's lawsuit challenging New York's vaccination requirements is pending and damages owed a U.S. citizen illegally detained as an alien.

Joseph Lipari

New York State Expands Audits of Federal Tax Issues

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari writes: Although the state is within its legal rights to challenge a taxpayer on federal income tax issues that affect a taxpayer's New York State income tax, tax practitioners in New York frequently argue that the department auditors lack the familiarity and expertise on federal tax laws. A recent Division of Tax Appeals administrative law judge determination demonstrates this march toward raising sophisticated issues.

John Siegal

Law and Policy of Employee Mobility in a Changing Work Force

By John Siegal |

John Siegal writes that suddenly noncompetes and trade secrets are public policy issues, with Congress moving ahead with the first federal trade secrets statute and several states adopting new noncompete statutes. New York's policy on employee mobility is set through thousands of commercial disputes involving noncompetes, trade secrets, and fiduciary duties decided on a case-by-case basis. So, how is New York's judge-made common law of employee mobility evolving in light of the economic policy questions raised in the broader debate?

Patrick M. Connors

No License Required: Temporary Practice in New York State

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors discusses the new Part 523 of the Rules of the Court of Appeals, which affords great latitude to lawyers from outside New York to enter the state and provide legal services with minimal regulation or oversight.

Michael B. Gerrard and Edward McTiernan

Effect of the Paris Climate Agreement on U.S. Businesses

By Michael B. Gerrard and Edward McTiernan |

In their Environmental Law column, Michael B. Gerrard and Edward McTiernan write that the Paris Agreement that will be opened for signature on April 22 contains specific requirements for monitoring, reporting and verification; those were authorized when the U.S. Senate ratified the original climate treaty in 1992. Beyond that it is mostly aspirational, with no binding, country-specific commitments to reduce emissions or provide financing. Nonetheless, it has significant legal and operational ramifications for many U.S. businesses.

Kenneth G. Schwarz

Liability of Physicians to Non-Patient Third Parties

By Kenneth G. Schwarz |

Kenneth G. Schwarz discusses the recent Court of Appeals decision that there are circumstances where a physician could be held liable to persons who were not their patients, and the historical reluctance of New York courts to create new legal duties that did not previously exist.

Lewis R. Clayton and Eric Alan Stone

Patent Exhaustion, Vodka, Ranch Houses, Monkey Selfies

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone report on an en banc decision from the Federal Circuit clarifying the law of patent exhaustion, trademark cases involving Stolichnaya vodka and canvas tote bags, and copyright cases involving ranch-house floor plans and "monkey selfies."

Robert G. Brody and Katherine M. Bogard

Veterans' Rights: What Employers Need to Know

By Robert G. Brody and Katherine M. Bogard |

Robert G. Brody and Katherine M. Bogard discuss eligibility requirements for a returning service member to qualify for re-employment, the "escalator principle" that provides the service member be employed in the job he or she would have attained had there been no absence for military service, what circumstances negate the employer's obligations, and penalties if an employer denies re-employment.

Anthony E. Davis

Ethics Opinions: Fee-Sharing and Threatening Disciplinary Action

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses two recent ethics opinions addressing relationships between New York lawyers and non-lawyers in other jurisdictions where such relationships are permissible, and a subject that arises with depressing frequency, whether and when a lawyer may threaten another lawyer with professional discipline.

Richard Raysman and Peter Brown

Reviewing the Fight Against 'Astroturfing'

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown discuss a practice called 'astroturfing' and take a look at how online review sites have begun to take legal action in a variety of fora to combat what one industry veteran characterized as "artificially embellished reviews."

Norman B. Arnoff

The Paradox of Legal Malpractice and Breach of Fiduciary Duty

By Norman B. Arnoff |

Norman B. Arnoff writes: Professional liability lawsuits against lawyers invariably involve both allegations of legal malpractice and breach of fiduciary duty and/or ethical violations. When legal competency and ethical issues are mixed in the facts of a specific case, currently the application of the two professional standards does not work in the way they should work. The absence of clarity will not allow appropriate professional standards to be maintained and needs to be remedied.

Shepard Goldfein and James A. Keyte

Antitrust and 'Big Data': New Terrain for Inquiry?

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte write: Antitrust enforcement agencies, including those in the United States and Europe, are taking note of big data, and there is an increasing sense among many that Internet firms' accumulation of personal data will be an issue that enforcers will be examining closely for anticompetitive effects.

Joseph D. Nohavicka

Clause Waiving Right to Review of Arbitration Award Invalidated

By Joseph D. Nohavicka |

Joseph D. Nohavicka discusses a recent decision that makes it clear that the Second Circuit will reject the argument that a party has breached an agreement by seeking to vacate an arbitration award.

Wendi S. Lazar

Sexual Harassment in the Legal Profession: It's Time to Make It Stop

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar writes: Lawyers take an oath when admitted to the bar to be the gatekeepers of the rule of law and to lead by example. We advise clients to implement policies to curb sexual harassment. Our ambivalence and at times, delinquency in this area is unacceptable, especially because we are well aware of the concrete steps as a profession we can take to eradicate sexual harassment.

Evan H. Krinick

Not Answering Material Questions at EUOs Can Doom Coverage

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick writes that examinations under oath are an important investigative tool used by insurance carriers to uncover fraudulently filed claims and to commit claimants to their story on the record. EUOs look like depositions but the consequences for failing to answer a question are more severe.

Geoffrey A. Mort

Women's Equality Act: Breakthrough in New York Employment Law?

By Geoffrey A. Mort |

Geoffrey A. Mort writes: After nearly three years of political skirmishing, the state Legislature passed and Governor Andrew Cuomo signed, on Oct. 21, 2015, a package of eight bills known collectively as the Women's Equality Act. Taken together, the new laws seem likely to change the employment law landscape in New York, almost certainly in favor of employees.