Expert Analysis

Glen Banks

Court of Appeals Addresses Meaning of 'Affiliate'

By Glen Banks |

In his Contract Law column, Glen Banks writes: A contract may provide that a right or obligation will be triggered by an action of, or receipt by, an "affiliate" of a signatory. Should the term "affiliate" mean only those affiliates that exist at the time of contracting? Or, does it include affiliates that come into existence after the execution of the contract?

Howard S. Jacobowitz and Diane K. Kanca

'Grace v. Law' Sets New Standard in Legal Malpractice Cases

By Howard S. Jacobowitz and Diane K. Kanca |

Howard S. Jacobowitz and Diane K. Kanca discuss the background of and decision in 'Grace v. Law', where the Court of Appeals held that failure of the plaintiff to appeal an underlying adverse ruling does not bar a subsequent legal malpractice claim, unless the attorney-defendant can prove that plaintiff would have been "likely to succeed" in his appeal.

Lawrence W. Newman and David Zaslowsky

Refusing to Enforce Foreign Judgments

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky write: Although the United States is not a party to any judgment enforcement treaty, courts in this country regularly enforce foreign judgments. Indeed, if jurisdiction in the foreign court is proper and service of process was accomplished appropriately, the expectation should be that the foreign judgment will be enforced. In the past few months, however, there have been two noteworthy cases in which enforcement of foreign judgments was refused.

Jeremy H. Temkin

Redefined Role of Profit in Economic Substance Doctrine

By Jeremy H. Temkin |

In his Tax LItigation Issues column, Jeremy H. Temkin writes that the IRS has long challenged attempts by taxpayers to reduce their tax liability by executing transactions that lack economic substance, a doctrine that has been applied by many courts to transactions that carry no reasonable possibility of generating a profit. A recent decision suggests that courts are changing their views.

Developments in 2014 on Dissolutions and Sales

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi analyzes some of 2014's important determinations involving "claw-back" claims against former partners by the trustee in the bankruptcy of Dewey & LeBoeuf, the tensions between the rule allowing the sale of a law practice and the one limiting the sharing of attorney fees among attorneys who are not associated, and more.

Norma B. Levy and Elisabeth R. Curzan

HUD's Disparate Impact Rule for Homeowners Insurance

By Norma B. Levy and Elisabeth R. Curzan |

Norma B. Levy and Elisabeth R. Curzan discuss the ongoing battle between the insurance industry and the Department of Housing and Urban Development over HUD's authority to adopt a disparate impact rule for the provision of homeowners insurance, which the U.S. Supreme Court seems likely to take up in the not too distant future.

Detroit, Mich.

Detroit, General Motors and Other High-Profile Cases

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger discusses the historic confirmation of the City of Detroit's plan of reorganization and the status of litigation that brought General Motors back before the bankruptcy court, along with the potential sale of Energy Future Holdings' stake in Oncor Electric and the successful sale of substantially all of Natrol Inc.'s assets.

Richard A. Klass and Elisa S. Rosenthal

Enforcing Judgments Against Bank Accounts Held Outside N.Y.

By Richard A. Klass and Elisa S. Rosenthal |

Richard A. Klass and Elisa S. Rosenthal discuss factors that both federal and state courts in New York have considered in determining whether or not assets held in another state can be used to satisfy a New York judgment, including the separate entity rule, jurisdiction and the type of proceeding.

Steven R. Schindler and Katherine Wilson-Milne

Questioning 'Cariou' Rationale on Transformative Fair Use

By Steven Schindler and Katherine Wilson-Milne |

Steven Schindler and Katherine Wilson-Milne write: On Sept. 15, the Seventh Circuit in 'Kienitz v. Sconnie Nation' delivered a rebuff to the Second Circuit's controversial copyright "fair use" holding in 'Cariou v. Prince'. As the Kienitz court suggested, the Cariou holding diverges substantially from the language of the Copyright Act of 1976, expands the reach of the precedents on which the holding relies, and directly conflicts with one of the exclusive rights granted to a copyright holder—the right to make derivative works.

Roy L. Reardon and William T. Russell Jr.

Legal Malpractice Claim, Defamation, Separate Entity Rule

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 involving the preservation of a legal malpractice claim and when a statement represents an assertion of fact or opinion for purposes of a defamation claim, along with a recent decision with implications for New York's status as a global financial center.

Treatment of Income for Married Individuals Receiving Home Care

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish discusses "spousal impoverishment protection" and "pooled income trust," the two methods of calculating the treatment of income for a married Medicaid applicant who is seeking home care.

Michael D. Patrick

Crisis of Unaccompanied Immigrant Minors Moves to the Courts

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: Months after the border surge has abated somewhat, the need for counsel extends far beyond detention centers. Unaccompanied immigrant children populate large cities across the United States, and increasingly the need for counsel has moved to the nation's immigration courts, where the backlogs that have plagued that system for many years have been exacerbated by the growing docket of deportation cases involving juveniles.

Paul F. Millus

Executive Orders: Constitutional Underpinnings and Legality

By Paul F. Millus |

Paul F. Millus discusses the history of executive orders and the issues associated with the president's power to issue executive orders mandating inaction in deportation decisions, which have never been more pronounced than they are today.

Stephen M. Kramarsky

'Fox News v. TVEyes': Exploring the Limits of Fair Use

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, discusses a recent case in the Southern District of New York that shows just how critical transformative use can be. The decision came down to one issue: Was the service innovative enough to be transformative?

Sidney Kess

Looking Ahead to 2015's Changing Tax Landscape

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes that while the midterm election gave the majority of the Senate to the Republicans, who also retained control of the House, this won't automatically bring tax certainty for 2014 and the coming year. Congress must address expired tax rules for 2014 as well as tax reform.

Steven Kobre and Leanne Bortner

Internal Investigations and Multinational Organizations

By Steven Kobre and Leanne Bortner |

Steven Kobre and Leanne Bortner write: A corporate entity operating in multiple countries and regions is constantly confronted by conflicting rules in various jurisdictions. Particularly with respect to privilege and attorney work-product protections, what may be beyond the scope of discovery in one country can be discoverable in another.

Thomas F. Gleason

New Rule Requires Redaction or Omission of Information

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason writes: Hardly a day goes by without a new hacking or computer intrusion news story. Identity thieves exercise extraordinary ingenuity to obtain personal information, and court files, with detailed information on the parties and others, remain a logical target. A new section of the Uniform Civil Rules of the Supreme and County Courts will address this risk.

Myth of the Intoxicated but Victorious Plaintiff

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot writes: Myth is often more compelling than fact, particularly when the myth plays to our misconceptions. So, is it true, as New York Labor Law §240 reformers have claimed, that "several courts have held that a plaintiff's intoxication at the time of the incident cannot constitute a defense to a Scaffold Law claim"? The answer is, in a word, No.

Max W. Gershweir

Choice of Law Uncertainty in Additional-Insured Disputes

By Max W. Gershweir |

Max W. Gershweir writes: While the New York courts adopted choice-of-law rules governing liability insurance policies that seemed to offer an easy way of determining which state's law applies where an insured business operates in multiple states, two recent cases from the First Department have thrown that conclusion into doubt, at least where the party seeking coverage is an additional insured covered for liability arising out of work performed for it by the named insured.

John Rapisardi and Joseph Zujkowski

Revisiting Key Issue for Directors of Insolvent Entities

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: Earlier this month, the Delaware Chancery Court further clarified its position on the fiduciary duties of officers and directors of insolvent Delaware corporations. Specifically, in 'Quadrant Structured Products Company v. Vertin,' the Chancery Court dismissed certain derivative claims brought by a creditor on behalf of Athilon Capital Corp. alleging breach of fiduciary duties by the company's non-independent directors.

New Statute Requires State Agencies to Consider Climate Risks

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard writes that New York has moved into the front rank of states in legally mandating that future climate change be considered in decisions by state agencies. The Community Risk and Resiliency Act merely requires consideration of climate change; it does not demand any particular outcome. However, it makes climate impacts an important part of the decision-making process, much as nearly 40 years ago SEQRA made environmental considerations an important part of many state and local processes.

Joseph F. Donley and Michael M. Rosenberg

Vagaries of Particularity: New York CPLR 3016(b)

By Joseph F. Donley and Michael M. Rosenberg |

Joseph F. Donley and Michael M. Rosenberg write that in federal practice, the familiar FRCP 9(b) provides a reliable bulwark against the "in terrorem or stigmatizing effect on defendants and their reputations" of loosely pleaded fraud claims. But its state counterpart, CPLR 3016(b), has been applied inconsistently, and some leading commentators have even questioned the viability of a heightened pleading standard on fraud claims.

Congress Exempts Condominiums From Interstate Land Sales Act

By Vincent Di Lorenzo |

Vincent Di Lorenzo discusses the law, enacted on Sept. 26, that exempts condominium developers from the registration and disclosure requirements of the Interstate Land Sales Full Disclosure Act, although it is unclear whether the new law will be interpreted as exempting developers from compliance with the act's contractual requirements.

Kathleen A. Scott

OCC Approach to Supervision of U.S. Offices of Non-U.S. Banks

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott discuss a recent paper from the Office of the Comptroller of the Currency that provides an overview of its approach to regulating federal branches and agencies of non-U.S. banks, and another OCC issuance regarding its revised process for managing supervisory issues of concern arising out of examinations, including those of federal branches and agencies of non-U.S. banks.

Lewis R. Clayton and Eric Alan Stone

Business Methods, Fair Use, Patent Evidence, Lanham Act

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone review recent cases involving the Supreme Court's test for patentable subject matter and how it has led to dismissal of infringement claims based on business method patents; when post-invention evidence can demonstrate an invention is not obvious; and whether the flavor of eggplant parmesan or its plating can acquire secondary meaning under trademark law.

Hal R. Lieberman

Recent Developments in Disciplinary Case Law

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman comments on a number of noteworthy disciplinary decisions from the past year, including an unusual indefinite suspension for a lawyer who disregarded his biennial registration obligations, and two decisions noteworthy for their leniency with respect to conduct which that court had traditionally treated far more harshly.

C. Raymond Radigan, John G. Farinacci and Jennifer F. Hillman

The Right of Election and Tax Apportionment

By C. Raymond Radigan, John G. Farinacci and Jennifer F. Hillman |

In their Trusts and Estates Law column, C. Raymond Radigan, John G. Farinacci and Jennifer F. Hillman write that at a minimum in New York, a surviving spouse is entitled to elect to receive $50,000 or one-third of the net estate outright by exercising what is known as the right of election. The public policy is fairly straightforward; however, the logistics of calculating the elective share and the correlating tax consequences of that election can be complex.

Joel C. Haims, James J. Beha II and Jonathan Rothberg

Applying Anti-Discrimination Law to Public Accommodations

By Joel C. Haims, James J. Beha II and Jonathan Rothberg |

Joel C. Haims, James J. Beha II and Jonathan Rothberg discuss a notable recent decision in which Southern District Judge Denise Cote held that the U.S. Tennis Association was not obligated to adjust the schedule for an amateur tennis tournament to accommodate the religious observance of Orthodox Jewish competitors.

Evan H. Krinick

State Legislatures Tackle Insurance Fraud

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick reviews laws state legislatures across the country have passed this year defining insurance fraud, prohibiting payments to "steer" clients or patients for the purposes of obtaining benefits under an insurance policy, allowing insurers to cancel policies if the applicant misrepresented certain information, and more.

Lorca Morello

Troubling Interpretation of Sex Offender Registration Statute

By Lorca Morello |

Lorca Morello writes that the Court of Appeals, in 'People v. Gillotti', held that anyone convicted of possessing multiple images of child pornography has multiple "victims" under the Sex Offender Registration Act and therefore presents the same future risk to public safety as someone who has sexually assaulted multiple children, a view which, as the dissent said, "is more likely to produce emotional satisfaction than to protect any children."

Shepard Goldfein and James A. Keyte

Auto Parts and Antitrust: A Cautionary Tale

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: In September 2011, the Department of Justice formally announced the first settlement in its investigations into an international automobile parts price-fixing and bid-rigging conspiracy. In the three years since, the DOJ has continued the auto parts investigations, charging more than 30 individuals and 27 companies with antitrust violations, collecting more than $2.3 billion in fines, and demonstrating its resolve in ferreting out bid-rigging, customer allocation and price-fixing across a wide range of industries.

Timothy M. Tippins

Child's Attorney as Hearsay Conduit in Custody Litigation

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: Standing at the very core of evidentiary doctrine is the rightly vaunted rule against hearsay, an essential bulwark against the incursion of unreliable information into the fact-finding process. Yet, sadly, in practice, fidelity to the rule banning hearsay is far less than it ought to be.

David J. Kaufmann

Disclaimers of Reliance Do Not Violate Franchise Act

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann analyzes a recent decision in which Southern District Chief Judge Loretta A. Preska held that franchisee disclaimers of non-reliance on purported financial performance representations allegedly furnished outside of a franchisor's Franchise Disclosure Document do not violate the "anti-waiver" provision of the New York Franchise Act.

Benjamin Zelermyer and Jeffrey G. Steinberg

An Insured's 'Right' to 'Independent' Counsel

By Benjamin Zelermyer and Jeffrey G. Steinberg |

Benjamin Zelermyer and Jeffrey G. Steinberg write: If an insurer reserves its right to deny coverage, even while agreeing to defend an insured against a third party's claim, or denies coverage for a loss while accepting the duty to defend the insured, the insured has the right to be represented by defense counsel chosen by the insured and paid by the insurance carrier. While that principle may be simply stated, its application, not surprisingly, is more complex.

Thomas R. Newman and Steven J. Ahmuty Jr.

'Multiple Claims' for Federal Partial Final Judgments

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. review the Second Circuit's recent decision in 'Acumen Re Management Corp. v. General Security National Insurance Co.,' which contains a very informative analysis of the "multiple claims" requirement for partial final judgments pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

'Abercrombie' and Title VII's Broad Definition of Religion

By Debbie Kaminer |

Debbie Kaminer discusses a case in which the U.S. Supreme Court recently granted certiorari involving a Muslim teenager's application to work at Abercrombie & Fitch and their refusal to hire her based on her wearing a hijab without notifying Abercrombie that it was for religious reasons.

Richard Siegler and Eva Talel

Flip Tax: Reducing Exposure to Federal Income Tax Liability

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write that transfer fees have become an important source of revenues for many co-ops. As such, the federal income tax treatment of such fees raises an important issue: Are these fees to be characterized and treated as income derived from shareholders or as contributions to the co-op's capital?

Elkan Abramowitz and Jonathan Sack

Corporations and Mandatory Disclosures to Government

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack discuss two trends that may make the already constrained position of companies even more difficult in terms of increased exposure to liability and reduced opportunities to mitigate the terms of settlement: expanded self-reporting obligations and increased interest by the DOJ in using the false statement statute against companies.

How To Get Out of Jail (If You're Innocent)

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel reports that a recent study found a 4.1 percent wrongful conviction rate for defendants sentenced to death. If that rate applied to all prisoners, then almost 100,000 people are wrongfully imprisoned in this country. These extraordinary numbers perhaps explain a recent legal trend, relaxing the burden for criminal defendants to vacate their convictions, as in a recent Second Department decision.

Mark A. Berman

iPhones, Twitter, Deleted Emails and ESI Under CPLR 3211(A)(1)

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman writes about recent decisions that tackle an employer's remote "wiping" of an employee's personal iPhone; discovery of social media; affidavits attesting to the purported unavailability of relevant emails; and whether emails are proper "documentary evidence" under CPLR 3211(a)(1).

Interstate Land Sales Act, Fraud and Specific Disclaimers

By Thomas D. Kearns |

Thomas D. Kearns explores the benefits to condominium purchaser plaintiffs of the Interstate Land Sales Act's anti-fraud provisions over claims under New York law, and discusses potential defenses to such claims including New York's law of specific disclaimers.

Public Employees' Testimony and the First Amendment

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz writes that in 'Lane v. Franks' the U.S. Supreme Court last term held that a public employee's truthful testimony pursuant to subpoena, on a matter of public concern, given outside of his ordinary job responsibilities, was protected speech for the purpose of his §1983 First Amendment retaliatory firing claim.

Anthony E. Davis

Internet Investigation of Jurors

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses two recent ethics opinions that address the existence and scope of a duty to conduct research about jurors, and the limitations on that duty particularly when the research is conducted online.

Geoffrey A. Mort

NLRB McDonald's Ruling and Franchisors

By Geoffrey A. Mort |

Geoffrey A. Mort discusses the National Labor Relations Board general counsel's July ruling that McDonald's is a joint employer of those who work for its roughly 14,000 franchised restaurants in the United States, which continues to send ripples through both the legal and business worlds.

Sue C. Jacobs

Indemnity Agreements in the Commercial World

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs discusses indemnity agreements, emphasizing that courts will strictly construe the obligation. If the document does not specifically require indemnity for defense costs the courts will not find one. If the parties intend to indemnify the indemnitee for its own negligence, the parties should use explicit language mandating that obligation.

Lester M. Kirshenbaum and Alan E. Rothman

State High Court Limits Attachment of Foreign Bank Accounts

By Lester M. Kirshenbaum and Alan E. Rothman |

Lester M. Kirshenbaum and Alan E. Rothman analyze 'Motorola Credit Corp. v. Standard Chartered Bank', a recent Court of Appeals decision that adversely impacts on New York judgment creditors' rights to collect on judgments against defendants' funds located outside of the United States.

Thomas E.L. Dewey

Oral Settlement Agreement: Read It Into the Record

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey writes: The Second Circuit, in 'Winston v. Mediafare Entertainment', has recognized that an unexecuted settlement agreement may still be enforceable. Although this rule certainly allows for an oral settlement agreement to be binding on the parties to a litigation, a recent New York district court case suggests that the hurdle remains high for an oral settlement agreement to satisfy the Winston standard.

Nicholas M. De Feis and Philip C. Patterson

U.S. No Longer Has Monopoly on Antitrust Enforcement

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: Historically, the United States was virtually alone in the world in treating anticompetitive conduct as a criminal offense. Increasingly, however, other countries are criminalizing such conduct and aggressively pursuing antitrust enforcement, indicating that antitrust offenses are on the way to being treated worldwide as seriously as any other international financial crime.

John D. Carlin and Fiona E. Darkin

Supreme Court Narrows Scope of Induced Patent Infringement

By John D. Carlin and Fiona E. Darkin |

John D. Carlin and Fiona E. Darkin review the U.S. Supreme Court's decision in 'Limelight Networks v. Akamai Technologies', which held there can be no liability for induced infringement of a patented method under 35 U.S.C. §271(b) unless direct infringement has occurred under Section 271(a) or another statutory provision. The decision has important implications for process patents, especially those in which the required individual steps can be divided among two or more actors to avoid direct infringement liability.

Alton Abramowitz

Service By Facebook: 'Like' or Dislike?

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz discusses a recent decision in which a Support Magistrate authorized the petitioner in a support proceeding to serve the respondent with the summons and petition via Facebook, perhaps signaling the dawn of a new era in the often frustrating realm of serving process on evasive defendants in matrimonial and other family law proceedings.

Elai Katz

Sports Leagues Restrictions Under Antitrust Scrutiny

By Elai Katz |

In his Antitrust column, Elai Katz reviews recent decisions on use of student athletes' names and likenesses in video games and telecasts, territorial restrictions for broadcasting professional baseball and hockey games and price-fixing of polyurethane products.

Jason L. Shaw

Flood Insurance Decisions Create Conflict in Circuit

By Jason L. Shaw |

Jason L. Shaw writes: Three recent federal district court decisions create a conflict within the Second Circuit about whether private insurance companies selling federal flood insurance are immune from liability to the policyholder beyond the policy limits for their bad faith handling of flood insurance claims.

Shari Claire Lewis

Circuit's Decision Clarifies Law of Contributory Cybersquatting

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis, a partner of Rivkin Radler, discusses a case in which the Ninth Circuit rejected contentions that a contributory cybersquatting claim should be permitted to proceed under the ACPA.

Michael Rikon

A Park Is a Park Unless It's Not

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon discusses the public trust doctrine and the First Department's recent decision allowing NYU to proceed with a building project on land that includes three parcels the lower court had found to be public parkland,

Javier Bleichmar and Cynthia Hanawalt

'IndyMac' Leaves Uncertain Landscape for Opt-Out Litigation

By Javier Bleichmar and Cynthia Hanawalt |

Javier Bleichmar and Cynthia Hanawalt write: The U.S. Supreme Court recently declined to resolve a circuit split on whether its ruling in 'American Pipe & Constr. Co. v. Utah', that the statute of limitations is tolled during the pendency of a purported class action, also applies to the statute of repose under the Securities Act of 1933, leaving lower courts to face ongoing jurisdictional conflicts.

Martin Flumenbaum and Brad S. Karp

Oil-for-Food Program Claims Yield RICO and FCPA Rulings

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss the background and implications of 'Republic of Iraq v. ABB,' in which the court affirmed a decision that dismissed Foreign Corrupt Practices Act, Racketeer Influenced and Corrupt Organizations Act, and state law claims brought by the Republic of Iraq against two individuals and numerous business entities based around the world.

Conrad Teitell

Beauty Pageant: Exemption Revoked and Scholarships Taxable

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes: While beauty may be in the eye of the judges, a beauty pageant's qualification as an IRC §501(c)(3) charity is in the eye of the IRS. A recent letter ruling held that monetary awards in a pageant were inextricably linked with services performed in conjunction with pageant operations and thus were not scholarships.

Ben Rubinowitz and Evan Torgan

Wrongful Death Case: Voir Dire as a Bridge to Summation

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write that obtaining a just and proper award from a jury for pain and suffering in a wrongful death case can be challenging. An effective trial attorney must thoroughly prepare for all stages of the trial, including a voir dire that explores the feelings and beliefs of the potential jurors, and a strong summation that relates those feelings and beliefs to the evidence.

John C. Ertman and Richard D. Marshall

Big-Dollar Mortgage Cases on Appeal: Decisions Expected

By John C. Ertman and Richard D. Marshall |

John C. Ertman and Richard D. Marshall write that investors in residential mortgage loan trusts that were created in the real estate boom years have incurred billions of dollars of losses since 2008. In the coming months, decisions regarding statute of limitations and the approval of global trust settlements under New York trust law are expected in two lawsuits over those losses that will have a major impact on the direction mortgage litigation will take.

Jerry H. Goldfeder and Myrna Perez

Voting Restrictions: From Statehouses to Courts

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: Thousands of eligible voters are at risk of having a more difficult time casting their ballots this November than in past years. Since the 2010 legislative elections, new voting restrictions have been passed by legislators in no fewer than 22 states. And voters have fewer protections against discrimination at the ballot box than in prior years.

Sharon M. Porcellio

Sanctions Imposed for Failure to Preserve Surveillance Video

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio discusses a decision concerning the defendant's destruction of a surveillance video which showed a slip and fall accident in a negligence case and its ultimate impact on the plaintiffs' motion for summary judgment.

Stephen Sonnenberg and Emily Pidot

Representative Evidence in Wage and Hour Class Litigation

By Stephen Sonnenberg and Emily Pidot |

Stephen Sonnenberg and Emily Pidot write:During the last year, several decisions nationwide have focused on the use and misuse of representative evidence in wage and hour class actions and have provided litigants with guidance regarding some critical questions.

Steven Pounian and Justin T. Green.

Unmanned Flight: Legal Challenges of Drones

By Steven Pounian and Justin Green |

In their Aviation Law column, Steven Pounian and Justin Green write: The FAA estimates that roughly 7,500 commercial drone operations will be viable within the next five years. This dramatic increase in air traffic raises safety concerns, including the increased risk of mid-air collisions between drones and manned aircraft, and requires smart and effective regulation to address the risks.

Christine A. Fazio and Ethan I. Strell

Precautionary Principle: a Rational Approach to Climate Change

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell write: New Yorkers have generally embraced the bulk of scientific evidence that supports the view that the Earth's climate is warming faster than expected due primarily to human activity. However, many people still are unsure that climate change is occurring at all or question the reason for it, and lack enthusiasm for policies that may raise energy prices. Therefore, examples of real-world, local experiences from those adversely impacted by climate change is an important method to engage New Yorkers to support climate change mitigation policies.

Bruce M. DiCicco

The Fiduciary Duty to Account

By Bruce M. DiCicco |

Bruce M. DiCicco writes: One of the most common issues arising in the context of estate and trust administration in my experience is the refusal or failure of a fiduciary to account to the beneficiaries and/or the cestui que trust. Related to that issue are demands for an accounting when there is no right to request an accounting.

Sidney Kess

Challenges for Taxpayers and Tax Practitioners

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: The tax law presents a challenge to individuals and businesses that must comply with rules and regulations and pay what is owed. It is becoming increasingly difficult for tax practitioners to advise clients and comport with their professional responsibilities. While the tax law and practice related to it have always been fluid, the changes of late have come at increased rapidity and volume.

Michael T. Escue

Guidelines Establish Heightened Standards for Banks

By Michael T. Escue |

In his Banking column, Michael T. Escue discusses the Office of the Comptroller of the Currency's recently finalized "guidelines" to establish minimum standards for the design and implementation of risk governance frameworks by certain large banks and minimum standards for the boards of directors of those banks in overseeing the frameworks' design and implementation

John R. Casey

Replacement Cost Insurance Coverage

By John R. Casey |

John R. Casey writes: Replacement cost property insurance coverage for real and personal property is the standard coverage offered in today's insurance market. However, there are significant exceptions and limitations on an insured's ability to recover the replacement cost of his property following a covered loss.

Edward M. Spiro and Judith Mogul

Recent Rule 45 Developments: Notice and Geographic Limits

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: As several recent decisions make clear, failure to observe even the most technical aspects of FRCP 45 can result in a subpoena being quashed, and the more substantive provisions may require parties to make important tactical decisions about how to present evidence at trial.

Peter A. Crusco

Compelled Decryption and the Fifth Amendment

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco, executive assistant district attorney, Investigations Division, Office of the Queens County District Attorney, reviews recent case law in which the courts tackled some of the anticipated questions that a new Apple phone raises, including in what circumstances the government may compel a user to decrypt his or her own digital files.

C. Evan Stewart

Privilege: Misunderestimated or Misunderstood?

By C. Evan Stewart |

C. Evan Stewart writes: For almost 25 years, I have been writing about the eroding status of the attorney-client privilege. Practitioners, legal academics, and judges seem either not to understand the privilege, or believe that the purposes it serves are overstated or not important. One recent case—which purports to strengthen the privilege—further documents this disheartening state of affairs.

Michael Hoenig

Experts in Crashworthiness; 'Fixodent' Cases

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig reviews recent developments in three cases: the opinion of a plaintiff's crash injury causation expert was deemed "unreliable" by the Eleventh Circuit, four experts' opinions that plaintiff's zinc-induced copper-deficiency myelopathy was caused by using Fixodent denture adhesive were excluded, and the Fourth Department found a defendant's attorney in a motor vehicle accident case should have been allowed to question plaintiff regarding possible tax fraud in her tax returns.

Robert Clarida and Robert J. Bernstein

Use of 'Deep Throat' Film Scenes Found to Be Fair Use

By Robert J. Bernstein and Robert W. Clarida |

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida analyze a recent decision in which Southern District Judge Thomas P. Griesa, weighing the alleged re-creation of three scenes from the infamous pornographic film "Deep Throat" as part of a 2013 film, "Lovelace," produced by The Weinstein Company, upheld the defense of fair use and granted Weinstein's motion for judgment on the pleadings.

E. Leo Milonas and Frederick A. Brodie

Navigating Uncharted Legal Waters

By E. Leo Milonas and Frederick A. Brodie |

In their Appellate Division Review, E. Leo Milonas and Frederick A. Brodie report on recent decisions involving a shareholder's common-law right to corporate information, whether a murderer may indirectly inherit from his or her victim, the "knowing, intelligent and voluntary" standard for criminal defendants' waivers of appellate rights, and sealing of criminal records after completion of a judicial diversion or drug treatment program.

George Bundy Smith and Thomas J. Hall

General Jurisdiction in New York After 'Daimler'

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall review recent decisions that make it clear that the new standard set by the U.S. Supreme Court in 'Daimler v. Bauman' has reduced the reach of New York courts' general jurisdiction over non-domiciliary corporations by providing only a "limited set of affiliations" that can now confer general jurisdiction.

Milton Springut

Insurance Coverage in Trademark Disputes

By Milton Springut |

Milton Springut analyzes a recent opinion upholding an insurer's denial of coverage to indemnify judgments in two trademark counterfeiting cases. The case provides insight to trademark practitioners about insurance coverage and provides information about strategies for trademark owners' enforcement efforts.

James Worthington and Brendan M. Goodhouse

'Peculiar Knowledge' Doctrine in Credit Crisis Litigation

By James Worthington and Brendan M. Goodhouse |

James Worthington and Brendan M. Goodhouse write that what was previously something of a backwater in New York law—the "peculiar knowledge" doctrine—has seen rapid development in the past couple of years. The authors examine the history of the doctrine, how New York courts have applied it to fraud claims in cases arising out of the financial crisis involving sophisticated entities, and potential strategic considerations that litigants may face.

Roberta Karmel

Disclosure of Metrics on Sustainability

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: In the past, the SEC disclosure policy was used only infrequently for the purpose of advancing societal good. One example is corporate disclosure of environmental infractions. A similar issue is whether the SEC should compel companies to disclose the effects of climate change on their businesses. Today, however, some activists are attempting to utilize the federal securities laws to implement political policies in order to compel large multinationals to behave as better corporate citizens.

Justice Kamins

New Criminal Justice Legislation

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins reviews criminal justice legislation enacted in the last session, including three substantive pieces designed to strengthen New York's laws relating to public corruption, address the dramatic increase in heroin trafficking and abuse, and permit the use of marijuana for medical purposes.

David L. Hall and Claire Coleman

Banking and Bombs: What the 'Linde' Verdict Portends

By David L. Hall and Claire Coleman |

David L. Hall and Claire Coleman write that the recent verdict in 'Linde v. Arab Bank,' should serve as a warning to international financial institutions: The consequences of ineffective monitoring of financial transactions for suspicious activity are potentially dire, and reliance upon automated AML screening procedures consistent with banking industry practices is not enough.

Shepard Goldfein and James A. Keyte

Dairy Sellers Case Addresses Causation at Summary Judgment

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte review the history of 'Dean Foods Co. v. Food Lion,' in which milk wholesalers defending themselves against price-fixing allegations have asked the U.S. Supreme Court to decide whether a plaintiff "must produce evidence of causation to defeat a motion for summary judgment, or whether a court may instead presume causation at summary judgment and permit the case to proceed to trial based on that presumption."

Richard Raysman and Peter Brown

Can an Email Account Be Searched Without Probable Cause?

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown describe two leading cases that reject the government's petitions for unfettered access to a target's email accounts; a case that reaches a contrary conclusion, even after concluding that the government's request lacked probable cause; and a series of opinions analyzing the same warrant request that came to diametrically opposite conclusions.

David B. Rosenbaum and Brian D. Graifman

'Branic': Shelter Occupant Entitled to Rent-Stabilized Lease

By David B. Rosenbaum and Brian D. Graifman |

David B. Rosenbaum and Brian D. Graifman write: Imagine a gas explosion on Park Avenue causes the city to temporarily relocate residents to a nearby hotel while their building undergoes repairs. Some of them enjoy their temporary accommodations, claim a permanent tenancy and demand rent-stabilized leases and benefits. Are people truly entitled to rent stabilization because they happened to have spent time at a temporary shelter as their homes are rebuilt?

Harvey M. Stone and Richard H. Dolan

Challenge to Sex Offender Registration Dismissed

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions which involved employer status and aiding and abetting in a discrimination case, sex offender registration and residency requirements, and more.

Peter M. Fass

Bad Actors Disqualified From Rule 506 Offerings

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass discusses the amendments to Rule 506 of Regulation D under the Securities Act of 1933 that prevent certain felons and other bad actors to more broadly solicit investors and publicize their real estate offerings.

Michael I. Rudell and Neil J. Rosini

Decision on TVEyes Service Extends Fair Use for Databases

By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini discuss the recent decision in 'Fox News v. TVEyes,' which allowed a searchable database to incorporate copyrighted works in their entirety and provide users with excerpts as a fair use. In approving these key features, the court followed the trail blazed by 'Authors Guild v. Hathi Trust' and 'Authors Guild v. Google' which held that electronic libraries of books created to allow users to search for keywords or terms were protected by fair use.

David M. Barshay

Post-IME Demands for an Examination Under Oath

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay asks: What happens when an insurer denies all future benefits based on the results of an independent medical examination, but subsequently demands the injured person submit to an examination under oath? Must an insurer have a reasonable basis for requesting an EUO?

Andrew N. Vollmer

Need for Narrower Subpoenas in SEC Investigations

By Andrew N. Vollmer |

Andrew N. Vollmer writes: Unduly broad requests by the SEC for electronic documents slow the production process, extend investigations, and significantly increase the associated costs. Without sacrificing enforcement goals, the staff of the Division of Enforcement could use more specifically tailored document requests, which would allow the agency to allocate its resources more efficiently, reduce costs for recipients of the requests, and treat those recipients more fairly.

Gregory R. Alvarez

Law Brings Climate Risks Within Land Use Process

By Gregory R. Alvarez |

Gregory R. Alvarez writes: Ensuring that the memories of Hurricane Sandy are ingrained into the brains of state decision-makers when they must consider approving major new development projects is a laudable legislative goal. However, buried in the new Community Risk and Resiliency Act is a separate requirement which could have a similarly far-reaching impact on all municipal decisions being rendered on new projects to be constructed within the state's borders.

Sarah S. Gold and Richard Spinogatti

Demand Futility in Delaware Derivative Actions

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti write that application of demand futility has often been confusing as trial courts have attempted to analyze particular fact patterns. Recently, however, courts have focused on the central concept that a substantial likelihood of personal liability compromises the directors' ability to consider a demand impartially.

Robert J. Anello and Richard F. Albert

Statute of Limitations in SEC Enforcement Actions

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: The last arrow in the SEC's quiver to avoid a strict five-year limitation has been its argument that when it seeks so-called "equitable" remedies, like injunctions and disgorgement, the limitations period contained in Section 2462 is inapplicable. This final effort to avoid statutory time constraints may be doomed, however.

Thomas A. Moore and Matthew Gaier

Scope of Liability for Drug Testing

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier discuss the Second Department's recent assessment of the scope of the duty of reasonable care owed by laboratories that perform drug testing to the subjects of the testing.

H. Christopher Boehning and Daniel J. Toal

Microsoft Paves the Way for Data Privacy Battle

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 write: Microsoft Corporation has found itself at the center of an intense legal battle regarding the ability of the United States government to subpoena data stored abroad. In addition to drawing the attention of constitutional law scholars, technology companies, and lawmakers, the case has also implicated some emerging areas of e-discovery practice.

Paul Bennett Marrow and Craig E. Penn

Policing Unfair Arbitration Clauses

By Paul Bennett Marrow and Craig E. Penn |

Paul Bennett Marrow and Craig E. Penn write that a "war" has broken out between those who believe 'AT&T Mobility v. Concepcion' delivers a near death blow to the application of unconscionability under the Federal Arbitration Act and those who believe unconscionability is still viable. As the Supreme Court may not resolve this issue for years, if ever, the authors suggest two viable alternatives available for evaluating the fairness of an arbitration clause.

Jeffrey S. Klein and Nicholas J. Pappas

Claims Against Franchisors as Alleged 'Employers'

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas analyze franchisors' defenses to claims by franchisee employees under the Fair Labor Standards Act and some recent cases which illustrate the steps franchisors may take to protect themselves against such claims.

Dodd-Frank and International Whistleblower Claims

By J. Gregory Lahr and Ryan C. Chapoteau |

J. Gregory Lahr and Ryan C. Chapoteau analyze the Second Circuit's recent opinion in 'Liu Meng-Lin v. Siemens,' which held that whistleblowers who are noncitizens working for a foreign company are not afforded protection by the anti-retaliation provision of Dodd-Frank, and affirmed that listing a company's securities on the New York Stock Exchange is a fleeting connection that does not overcome a presumption against a statute's extraterritoriality reach.

John P. Furfaro and Risa Salins

Balancing Employee Rights and Confidentiality

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins write: Employers have long maintained confidentiality policies to restrict employees from disseminating classified company information. The need for confidentiality is imperative today in light of the widespread use of social media and recent online security breaches. However, employees have the right to discuss their terms and conditions of employment, and the National Labor Relations Board has thus wrestled with protecting company confidentiality and preserving employee rights.

Ilene Sherwyn Cooper

A Matter of Interpretation: Construction of Wills

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: The construction of a testamentary instrument can play an important role in ascertaining the disposition of an estate, the interests of its beneficiaries, and the duties and responsibilities of its fiduciary. The intent of the testator, the meaning of the words used, and extrinsic evidence all may affect the interpretation of the document, as recent cases demonstrate.

Michael J. Hutter

Admissibility of Habit Evidence in Negligence Actions

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes that while habit evidence is admissible under FRE 406 in negligence actions to show what occurred on the occasion of a person's injury, or careful or careless conduct on the issue of the person's negligence or comparative fault without any limitations, present New York law is restrictive regarding the admissibility of habit evidence in negligence actions.

Christopher Dunn

Justice Department and New York Civil Rights Cases

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: The disclosure of Holder's planned departure spawned broad discussion about his legacy, which includes controversies in New York. For the most part, the DOJ's involvement here has come in terrorism cases and national security challenges. But although the department's participation in civil rights litigation is far less frequent, that participation can have a major impact on civil rights litigation, for better or for worse.