Expert Analysis

Edward E. Neiger

Oil and Gas Companies Seek Chapter 11 Protection

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger writes: As U.S. oil prices plunged to below $50 a barrel, an over 50 percent decrease as compared to prices a year ago, numerous oil and gas firms, particularly within the upstream and oil field services sectors, were forced to seek protection under chapter 11 of the Bankruptcy Code. Struggling oil and gas companies cite an overall industry slowdown coupled with difficulties in obtaining financing as common precipitating factors to seeking bankruptcy relief.

Kathleen A. Scott

Affiliate Transactions Involving Non-U.S. Banks

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott writes: A banking organization may wish to involve some of its affiliates as participants in a particular transaction, but may find itself hindered by Regulation W, a U.S. statute that restricts and in some cases prohibits a U.S. bank from engaging in a transaction with its non-U.S. affiliate.

James R. Hays and Shira Forman

Government Reviews Work Shift and Overtime Requirements

By James R. Hays and Shira Forman |

James R. Hays and Shira Forman write that if the retail world can be said to operate in seasons, then, for New York retailers, this one could be characterized as the season of uncertainty, with the state Attorney General investigating the use of "on-call scheduling," calls to raise the minimum wage for fast-food workers, increased scrutiny of the work conditions of local nail salon employees, and an upcoming announcement from the Department of Labor on changes to long-established federal overtime laws.

Charlotte A. Biblow

Significant Changes to New York Brownfield Cleanup Program

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes that with the adoption of this year's budget on April 1, the BCP has been extended and given renewed life. This extension, however, also includes new rules affecting deadlines, changing many key definitions, adding hurdles for New York City properties, and more.

Lawrence W. Newman and David Zaslowsky

The Yukos Case: More on the Fourth Arbitrator

By Lawrence W. Newman and David Zaslowsky |

In their International Dispute Resolution column, Lawrence W. Newman and David Zaslowsky write that in connection with the largest arbitration award ever issued, questions of the extent and influence of tribunal secretaries on arbitrators' decisions recently have been brought to the fore.

Gregg L. Weiner and Israel David

Securities Fraud Cases Brought Under Item 303

By Gregg L. Weiner and Israel David |

Gregg L. Weiner and Israel David analyze 'Stratte-McClure v. Morgan Stanley,' a decision that confirms that issuers and other market participants must be vigilant of disclosure obligations under Item 303 of SEC Regulation S-K, but also confirms that there are significant limits to the extent to which liability should be imposed on this basis.

Robert C. Scheinfeld

Is Bar on Registering Disparaging Marks Unconstitutional?

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld discusses the case of 'In re Simon Shiao Tam,' which the Federal Circuit has agreed to rehear en banc, and Federal Circuit Judge Kimberly Moore's "additional views" from the panel decision in that case proclaiming that it "is time for this Court to revisit McGinley's holding on the constitutionality of §2(a) of the Lanham Act."

Martin Flumenbaum and Brad S. Karp

Bringing Third-Party Claim to Forfeited Property

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'United States v. Watts,' in which the circuit reversed the district court's dismissal of a petition by the lawyers for a criminal defendant who asserted a third-party interest in forfeited property, based on a pre-trial assignment of the property in exchange for legal services.

Kenneth G. Schwarz

Collateral Estoppel and Administrative Agency Determinations

By Kenneth G. Schwarz |

Kenneth G. Schwarz writes: Res judicata, or claim preclusion, is frequently used in the same breath as collateral estoppel, or issue preclusion. But while the two doctrines arise out of a desire to impose finality on claims and issues that have been fully and finally decided, they part ways in some important respects.

Brian Mardon & Stephen Iannacone

Discovery of Medical Records in the Age of HIPAA Protections

By By Brian C. Mardon and Stephen A. Iannacone |

Brian C. Mardon and Stephen A. Iannacone discuss the contentious issue of disclosure of privileged, or unrelated medical records and conclude: "the ongoing struggle between liberal disclosure and protection of privacy rights will continue to cause new and unusual problems for the personal injury litigator into the foreseeable future."

Francis J. Serbaroli

New Law Addresses 'Surprise' Billing for Medical Services

By Francis J. Serbaroli |

Francis J. Serbaroli, in his Health Law column, analyzes New York's new "Emergency Medical Services and Surprise Bills" law, which recently went into effect. The law imposes new requirements on insurers, hospitals, physicians and other providers, and patients with respect to emergency medical services, or medical services furnished by out-of-network providers. It also establishes a dispute resolution process for contested medical charges.

Robert S. Kelner and Gail S. Kelner

Use, Scope and Limitations of the Notice to Admit

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner of Kelner and Kelner discuss the permissible scope of a notice to admit and the safeguards the statute provides if a demand contains improper items.

Stephen M. Kramarsky

Facebook Filings: Social Media and Service of Process

By Stephen M. Kramarsky |

Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, writes: A recent decision tackled the issue of service of process through a private Facebook message, and did so in a surprisingly direct and uncompromising manner.

Lawyer Non-Competes: A Perilous Path

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi discusses how although lawyer non-competes "deprive clients of choice of counsel, hamper lawyer mobility, and are unenforceable and unethical," some law firms continue to include them in their partnership agreements.

Richard Strassberg and William Harrington

Where Rules Collide: the Problem of Confidentiality and Whistleblowers

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington discuss two recent cases which illustrate how practices around confidentiality agreements and data protection are evolving.

Jill Backer

How Does Section 342 of Dodd-Frank Affect Legal Recruiting?

By Jill Backer |

Jill Backer, assistant dean for career and professional development at Pace Law School, writes: Section 342 will likely have a large impact on recruiting and diversity practices within the financial industry, and will also impact the legal industry as a vendor of the financial industry.

Eric Tirschwell and Arielle Warshall Katz

CFPB Investigations: What's Different, What's the Same

By Eric Tirschwell and Arielle Warshall Katz |

Eric Tirschwell and Arielle Warshall Katz of Kramer Levin Naftalis & Frankel writes: While the Consumer Financial Protection Bureau's investigative tools are similar to those used by other regulators, the procedures surrounding the bureau's broad investigative authority present new and unique challenges for companies receiving demands for information relating to a CFPB investigation.

Jeremy H. Temkin

The Government's Use of Tax Returns at Trial

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin, a principal in Morvillo Abramowitz Grand Iason & Anello, addresses the government's ability to access the defendant's returns for use in non-tax cases, as well as the evidentiary issues surrounding the admissibility of both "other year returns" in tax cases and any returns in non-tax cases.

Michael D. Patrick

H-1B and L-1B: Staying Nimble in Times of Unprecedented Change

By Michael D. Patrick |

In his Immigration Law column,Michael D. Patrick, a partner at Fragomen, Del Rey, Bernsen & Loewy writes: As employers continue to experience a shortage of highly skilled workers to meet their business needs, the low odds of having an H-1B considered will likely require employers to make significant changes to their business immigration strategies, unless Congress provides relief by adding more visas.

Roy L. Reardon and William T. Russell Jr.

Decision to Rescind Law School Admission Upheld

By Roy L. Reardon and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases in which the court affirmed the dismissal of an Article 78 proceeding challenging the decision of St. John's University School of Law to rescind the admission of one of its students, upheld a police stop based on the officer's reasonable but mistaken understanding of the law, and affirmed the dismissal of a challenge to New York's regulatory system for stormwater discharges.

Lanier Saperstein, Geoffrey Sant and T. Augustine Lo

New York State Legislature Seeks to Overturn 'Daimler'

By Lanier Saperstein, Geoffrey Sant and T. Augustine Lo |

Lanier Saperstein, Geoffrey Sant and T. Augustine Lo write: On April 28, 2015, a controversial proposal to eviscerate a landmark U.S. Supreme Court decision slipped through the New York State Senate Standing Committee on the Judiciary with one minute and 30 seconds of debate. The bill purports to clarify a supposed ambiguity created by the U.S. Supreme Court in 'Daimler v. Bauman,' arguably the most important Supreme Court ruling on general personal jurisdiction in 70 years.

Ken Strutin

Coram Nobis: The Human Ink of Unredressed Grievances

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Justice is nourished by open channels of information. But every posthumous appeal is a reminder of the procedures and prejudices that have obstructed the flow. Recently, the New York Court of Appeals refocused the eyepiece of post-conviction review.

Howard Epstein and Theodore Keyes

Subrogation: Primer and Recent Environmental Cleanup Cases

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write that in the last few years, insurance disputes concerning subrogation rights related to claims under the Comprehensive Environmental Response Compensation Liability Act have yielded several interesting decisions.

Glen Banks

Addressing Consumer Assent in Internet Transactions

By Glen Banks |

In his Contract Law column, Glen Banks analyzes three recent decisions concerning consumers in Internet transactions where the seller's terms contained in "clickwrap" or "browsewrap" agreements included an arbitration clause.

Michael N. DiCanio

Preparing for the Inevitable: Insurance for Data Breaches

By Michael N. DiCanio |

Michael N. DiCanio writes that a 2014 study found that the average cost of a corporate data breach in the United States increased 15 percent in the last year to $5.9 million, and can run much higher. Despite these known risks, it is estimated that only one in three companies now has insurance specifically to protect against such losses.

Sidney Kess

Tax Perspectives on Non-Public Education

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the tax consequences of choosing home schooling or private school, along with special savings programs such as Coverdell Education Savings Accounts and Achieving a Better Life Experience accounts.

Patrick M. Connors

Back to Basics: Careful Pleading Under CPLR Article 30

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors analyzes a recent decision from the First Department that highlights the importance of pleading affirmative defenses with some precision, and provides guidance to plaintiffs on how to combat a defendant's sloppy pleading.

Timothy J. Coleman and Emily B. Holland

Touching and Concerning 'Kiobel': Continuing Implications

By Timothy J. Coleman and Emily B. Holland |

Timothy J. Coleman and Emily B. Holland write: Although it did not bar all extraterritorial claims, the U.S. Supreme Court's decision in 'Kiobel v. Royal Dutch Petroleum' shut the door to most Alien Tort Statute suits brought by foreign plaintiffs against foreign defendants for conduct occurring on foreign soil. But as to how courts should confront claims not involving Kiobel's "foreign-cubed" fact pattern, the legal community continues to debate. Recent rulings offer a fresh opportunity to assess what remains of the ATS and suggest an emerging circuit split.

Michael Escue

FDIC Guidance on Brokered Deposits

By Michael T. Escue |

In his Banking column, Michael T. Escue discusses FAQ guidance issued by the FDIC that answers a wide range of questions regarding the classification of certain deposits as "brokered," which in some cases would appear to represent a departure from industry understanding and/or practice, and the implications of such a classification.

Medicaid Planning by Non-Lawyers

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes: Despite the specialized legal knowledge needed to give proper counsel, many for-profit entities of non-lawyers in New York openly advertise that they can give advice on Medicaid planning.

James Dowden, Christopher Conniff and Carly Baratt

Fraud Amendments to U.S. Sentencing Guidelines

By James Dowden, Christopher Conniff and Carly Baratt |

On April 9, 2015, the U.S. Sentencing Commission voted to adopt changes for fraud-related offenses, most notably to the definition of "intended loss." While the DOJ has opposed several of these amendments as overly lenient, in our view, they are a positive step toward bringing greater structure and reason to sentences for fraud-related convictions.

Michael B. Gerrard

Energy Efficiency Improvement Act of 2015: Trend or Oddity?

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard reviews the recently enacted Energy Efficiency Improvement Act of 2015 and other pending energy-efficiency legislation, including some that would worsen energy efficiency, such as the House appropriations bill for the Department of Energy, the Army Corps of Engineers and other agencies for fiscal year 2016.

Zlatko Hadzismajlovic

L-1B Specialized Knowledge and the Slow Road to Adjudication

By Zlatko Hadzismajlovic |

Zlatko Hadzismajlovic discusses current challenges involving the L-1B visa, created to facilitate the intracompany transfer of qualifying employees from a foreign entity to its U.S. affiliate; responding USCIS policy memoranda; and the effect, if any, of such pronouncements on adjudications.

Taleah E. Jennings and Mark D. Richardson

Options When a Competitor Raids the Company

By Taleah E. Jennings and Mark D. Richardson |

Taleah E. Jennings and Mark D. Richardson write that courts recognize an employee's freedom to make employment decisions, and one or two employees departing for a competitor does not cause a stir. However, the lift-out of an entire team may be indicative of unfair or improper conduct, and targeted companies may have legal remedies available.

John Rapisardi and Joseph Zujkowski

Revisiting 'Rede' and Recent Brazilian Restructuring Issues

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski discuss issues facing bond investors in distressed Brazilian entities using a case study of the recent judicial reorganization of Rede Energia S.A.

Richard Raysman and Peter Brown

Courts Continue to Acknowledge Increasing Prominence of TAR

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown provide an in-depth discussion of 'Da Silva Moore'; analysis of a recent case that illustrates the intersection between Technology-Assisted Review and privacy concerns; and an examination of a case that hinted that the increased adoption of TAR may fundamentally alter the constitutionality of universally accepted search warrants for seizure of electronically stored information.

Shepard Goldfein and James A. Keyte

EU and Google: Study in Divergence for Antitrust Enforcement

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte discuss the FTC's and European Commission's investigations into Google's search practices and the differences in U.S. and EU approaches to antitrust enforcement.

Lewis R. Clayton and Eric Alan Stone

Fifty Percent Royalty Rate Affirmed Against Generic Manufacturer

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone review the U.S. Supreme Court's recent decision on when a Trademark Trial and Appeal Board decision regarding likelihood of confusion can have issue-preclusive effect in an infringement lawsuit, along with appellate decisions regarding reasonable royalty rates and the "entire market value" rule in generic-pharmaceutical cases, application of the new test for patent indefiniteness, and more.

Henry J. Cernitz

Litigating the Common Driveway Case

By Henry J. Cernitz |

Henry J. Cernitz writes: With increasing frequency, cases involving falls on "common driveways" are tying up litigants on both sides with enormous amounts of paperwork and discovery. Common driveway cases involve issues that can be dealt with early so as to avoid unnecessary discovery and time-consuming court appearances.

Michael Hoenig

Ruling on Asbestos Experts a Potential Game Changer

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig discusses asbestos litigation and the single-fiber theory, and a bombshell ruling that exposes the tensions between what experts claimed and what New York's legal standards require in order to admit reliable expert testimony.

Milton Springut

Macy's Case Highlights Issues of Trademark Abandonment

By Milton Springut |

Milton Springut discusses a dispute that highlights the unique nature of trademarks as a property right and how both acquiring and losing such rights are different than other intellectual property rights.

Harvey M. Stone and Richard H. Dolan

Choice of Forum Provision in Internet Contract Not Enforced

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent decisions denying a father's Hague Convention petition for the return of his children to Poland, denying with minor exceptions motions by Arab Bank in the wake of a jury verdict finding it liable for numerous acts of terrorism, and more.

Brian J. Shoot

Scaffold Law: Court of Appeals Giveth—and Taketh Away

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot writes: On April 2, the Court of Appeals rendered two rulings that related to Labor Law §240[1], one unanimously deeming the statute applicable; in the other, a non-unanimous court deemed the statute inapplicable. As is almost invariably the case with Court of Appeals decisions concerning the oft-litigated "scaffold law," each ruling forces us to consider how it will impact future dispositions.

Thomas P. Higgins

Addressing Short-Term Rentals by Cooperative Shareholders

By Thomas P. Higgins |

Thomas P. Higgins writes: A battle over property rights has heated up lately, and New York City cooperatives are in the middle of it. On one side are cooperative owners who believe they should be able to let others use their apartments for short periods of time, while cooperatives and their boards counter that a shareholder who voluntarily joined a community with restrictions on property rights must abide by those restrictions. The good news for cooperatives is they are winning.

John Fellas

Streamlined Procedure for Recognition of Awards

By John Fellas |

In his International Arbitration column, John Fellas discusses the enforcement of International Centre for the Settlement of Investment Disputes awards in the New York federal courts and a recent Southern District decision that parties may use a streamlined, ex parte procedure to enforce such awards, and that the defenses of lack of personal jurisdiction and improper venue are inapplicable even when enforcement is sought against a foreign sovereign.

Timothy M. Tippins

Using 'Daubert' on Cross-Examination

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: When one tells lawyers from other jurisdictions that New York has yet to adopt the Daubert approach to determining the admissibility of expert evidence, one is met with raised eyebrows, dropping jaws and the occasional acerbic inquiry of whether travel to New York requires a map or a time machine. Yet the enlightenment of Daubert's reliability analysis is beginning to pierce the fog of Luddism that has for so long enveloped the landscape of New York jurisprudence.

Jeffrey D. Pollack

Family and Medical Leave Act: When Is Employer on Notice?

By Jeffrey D. Pollack |

Jeffrey D. Pollack writes that the FMLA places the burden on the employer to provide an employee with notice of his or her FMLA rights whenever the employer knows or should have known that the employee's circumstances may qualify for FMLA leave, an obligation which is not always straightforward.

Thomas R. Newman and Steven J. Ahmuty Jr.

Urging a Change in the Law: When to Set Aside Precedent?

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. write: Stare decisis is not an inflexible rule. While the doctrine is not to be lightly cast aside, a court should not hesitate to overrule its precedents "when persuaded by the 'lessons of experience and the force of better reasoning.'"

Richard Siegler and Eva Talel

Updated Procedures for Issuing and Selling New Shares

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel review the procedures to be followed for the issuance and sale of new shares and discuss the potential adverse impact on a co-op and its shareholders' continued eligibility to take certain tax deductions—because the issuance of new shares can result in the loss of such tax benefits—and how to prevent such a loss.

Jessica M. Baquet and Daniel E. Shapiro

Defending Hostile Work Environment Claims in the Digital Age

By Jessica M. Baquet and Daniel E. Shapiro |

Jessica M. Baquet and Daniel E. Shapiro write: The line between work and non-work has blurred considerably since the advent of the Internet, personal computers and handheld electronic devices. This fundamental shift in the way we work is changing the nature of hostile work environment claims; plaintiffs are now seeking to impose liability on their employers for discriminatory electronic communications made over personal mediums and outside of typical working hours.

Mark A. Berman

Courts Address Service, Facebook Data and Documentary Evidence

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman writes: A trio of recent trial court decisions has had to grabble with service of process via Facebook or by email on individuals who do not want to be located, and the tension created by seeking to ensure that such a putative defendant has been given notice of a litigation that comports with "due process."

Elkan Abramowitz and Jonathan Sack

Civil and Criminal Liability After 'Newman'

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack compare the mental state requirement in criminal and civil insider trading, a subject that was also addressed by Judge Rakoff in a speech last month. His suggestion that in the realm of insider trading, and other bodies of law governing economic activity, statutes should be written differently and, above all, more clearly, has considerable appeal.

Christopher A. Gorman

'Waived' Standing Defense in Mortgage Foreclosures

By Christopher A. Gorman |

Christopher A. Gorman writes: Until recently, lenders could generally rest assured that, if a borrower in a mortgage foreclosure action did not specifically plead the affirmative defense of lack of standing in its answer, standing was not in issue in the proceeding. But the Second Department has recently issued a decision that would appear to conflict with precedent as to what exactly a borrower must do in order to effectively raise the issue of standing.

Anthony E. Davis

Ethics Committees Respond to New and Old Challenges

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses opinions from the main New York-based ethics committees on an attorney's use of LinkedIn and responding to negative reviews online, writing that modern developments continue to be analyzed through sometimes outdated understandings of the law governing lawyers, which can lead to results that are not merely inappropriate but that are also silly.

Elise Bloom

Addressing Sex and Gender in the Changing Workplace

By Elise Bloom |

Elise Bloom writes: As the terminology that individuals may use to refer to their gender or sexuality has expanded, so too have the laws governing those identities as a protected class. And, the considerations that employers must account for in order to educate employees and to promote an inclusive, welcoming (and subsequently, productive) workplace have multiplied as well.

Alton Abramowitz

Intersection of Assisted Reproductive Techonologies and Divorce

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz writes that typically (but certainly not uniformly), courts called upon to determine what rights progenitors ought to have when they pursue in vitro fertilization and the allocation of embryos upon divorce have come out in favor of the party who no longer wants to use the embryos for reproductive purposes.

Stephen Kass

Regulation and Investor Protection Under the Trans-Pacific Partnership

By Stephen L. Kass |

In his International Environmental Law column, Stephen L. Kass writes: On March 25, 2015, WikiLeaks released the confidential draft "Investor Protection" chapter of the Trans-Pacific Partnership trade agreement, which could chill effective environmental regulation because of the threat of expropriation and other damage claims by affected "investors" from other TPP Parties.

Evan H. Krinick

When Licensed Professionals Commit Insurance Fraud

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick writes that licensed professionals who commit insurance fraud risk the usual penalties, including potential jail time, as well as the loss of their ability to practice their profession. He reviews recent cases where doctors and lawyers faced such penalties.

Peter M. Skinner and Matthew L. Schwartz

FinCEN Employing New Tactics to Combat Money Laundering

By Peter M. Skinner and Matthew L. Schwartz |

Peter M. Skinner and Matthew L. Schwartz write: Although the government has investigated trade-based money laundering in the past, it has historically prioritized the movement of money through financial institutions in allocating its resources. A new FinCEN alert flagging a Geographic Targeting Order indicates that the government is turning its attention to other forms of money laundering.

Michael Rikon

Pipelines Through Property and the Law of Partial Takings

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon discusses the appraisal process when condemning authorities take only part of a parcel of land, the severance and consequential damages that may result from such a taking, and 'cost to cure.'

Nicholas M. De Feis and Philip C. Patterson

'Botnets' and the Battle Against Cyber Crime

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: Botnets, which are designed to spread to computers without revealing their existence, cause at least hundreds of millions of dollars in economic harm every year, not to mention the inestimable personal harm caused to individual victims of identity theft.

Joseph C. Savino and Stephanie Suarez

Lien Stripping: Supreme Court Likely to Revisit 'Dewsnup v. Timm'

By Joseph C. Savino and Stephanie Suarez |

Joseph C. Savino and Stephanie Suarez write: On March 24, the U.S. Supreme Court heard oral argument in two cases that should resolve a persistent split between the Eleventh Circuit and several other circuits pertaining to a Chapter 7 debtor's ability to "strip off" underwater junior mortgages during a bankruptcy proceeding.

Dennis A. Breen

Self-Insured Risk Retention Groups: a Hidden Danger

By Dennis A. Breen |

Dennis A. Breen writes: Lurking at the edge of every event needing insurance is a hidden danger most of us have never heard of. That danger: "Risk Retention Groups," which issue policies that look and seem like traditional insurance policies with two major exceptions.

Thomas E.L. Dewey

Reasonableness of Insurance Allocation Decisions Following Settlement

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey discusses a recent decision in which the First Department was faced with the question whether a reinsurer must "follow the settlements" in the absence of a specific agreement to do so. But the court reserved answer on that question for another day because it found questions of fact existed on the issue of whether the allocation at issue was reasonable—even assuming the "follow the fortunes" doctrine applied.

Martin A. Schwartz

Litigation Aspects of §1983 Deadly Force Claims

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz discusses summary judgment motions based on qualified immunity, the growing importance of videotaped encounters with the police for summary judgment, and jury instructions on the Fourth Amendment standard in a deadly force case.

Peter A. Crusco

When Hashing, Silver Platters and Privacy Collide

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco addresses frequently raised questions concerning the legality and scope of a government search of a hard drive without a warrant and the lawfulness of the forensic examination subsequent to a hand-off of the drive by a private individual.

Paul Shechtman

Prohibiting Comment on Defendant's Silence Became Law

By Paul Shechtman |

Paul Shechtman writes: Fifty years ago today, the U.S. Supreme Court decided 'Griffin v. California', holding that the federal Constitution forbids a prosecutor or trial judge from commenting adversely on a defendant's failure to testify.

Conrad Teitell

Slain Officer Support Act

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell discusses the Slain Officer Family Support Act of 2015, which provides an exception to the well-settled law that gifts to individuals, no matter how worthy, aren't deductible as charitable contributions, along with rulings on otherwise deductible gifts to charities that raise questions on whether they were earmarked for a specific individual.

Lawrence B. Friedman

Damages for Breach of Exclusive Forum Selection Clauses

By Lawrence B. Friedman |

Lawrence B. Friedman writes that New York courts have disagreed about the availability under New York law of a damage remedy for breach of a contractual exclusive forum selection clause. But such breaches are common, and the absence of a damage remedy may encourage them and leave the non-breaching party uncompensated, even if it wins specific performance in the form of the dismissal of a lawsuit filed in the wrong forum.

Sharon M. Porcellio

Confirming the Importance of Adhering to Procedure

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio writes: This quarter's docket was rife with interesting cases, exploring a myriad of procedural and factual issues. Among them was a subset of cases that stood out due to the common theme: Even the strongest substantive argument can be rendered ineffective as a result of a seemingly minor procedural defect.

Sue C. Jacobs

Expansive Pleadings and the Risk of Sanctions

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs writes: A lawyer may be reasonably concerned that a case could be dismissed because she failed to include sufficient factual matter to meet the Supreme Court's plausibility standard articulated in 'Iqbal' and 'Twombly'. But, the pleading should be simple, concise and direct. It is time for practitioners to realize judges are not impressed with quantity, but rather quality.

Janis Cowhey and David H. Glusman

'Innocent Spouse' Tax Relief in Same-Sex Married Couples

By Janis Cowhey and David H. Glusman |

Janis Cowhey and David H. Glusman write: The issues that are likely to arise when contemplating use of innocent spouse relief available under the Internal Revenue Code are just as likely to occur in same-sex couples as in heterosexual couples. In many cases, there are additional areas of concern that may need to be addressed if the IRS has attempted collection efforts on the innocent spouse due to alleged or actual underpayment of tax by the other spouse.

Martin Flumenbaum and Brad S. Karp

New York's Wage Parity Law Upheld as Constitutional

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Concerned Home Care Providers v. Cuomo,' in which the court ruled that New York's Wage Parity Law is not preempted by the National Labor Relations Act or ERISA; nor does it violate the Fourteenth Amendment's Equal Protection Clause or Due Process Clause.

Harvey M. Stone and Richard H. Dolan

Judge Takes Significant Deviation From Sentencing Guidelines

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan discuss Judge Weinstein's explanation for granting leniency in sentencing a mother whose young daughter suffered from sickle cell disease and other impairments, Judge Dearie's conclusions on several issues relating to an insurance company's assertion of an "auto exclusion" defense, and more.

Joseph D. Nohavicka

Court of Appeals Offers Guidance on Police 'Mistake of Law'

By Joseph D. Nohavicka |

Joseph D. Nohavicka discusses People v. Guthrie, a constitutional stop case recently decided by the New York State Court of Appeals, which held that mistakes of law by police in New York can provide the basis for a valid traffic stop so long as the mistake is objectively reasonable.

C. Raymond Radigan and Jennifer F. Hillman

Third-Party Miscellaneous Proceedings in Surrogate's Court

By C. Raymond Radigan and Jennifer F. Hillman |

In their Trusts and Estates Law column, C. Raymond Radigan and Jennifer F. Hillman write: While the intrigue surrounding a lawsuit over the return of Klimt paintings stolen by Nazis makes for a good story in the new movie "Woman in Gold," the Surrogate's Court is replete with precisely these types of tales—third-party replevin actions to determine the true ownership of property.

Ira Brad Matetsky

Ensuring Effectiveness of Forum Selection Clauses

By Ira Brad Matetsky |

Ira Brad Matetsky writes: Crafting a binding provision that disputes will be resolved in New York is not a simple matter of throwing boilerplate choice-of-forum language into an agreement.

Edward M. Spiro and Judith Mogul

Class Action Attorney Fee Applications Under Closer Scrutiny

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Relying on his 20 years on the bench and 24 years in private practice, U.S. Southern District Judge Lewis A. Kaplan issued two decisions this year commenting on the lack of effective adversarial testing of proposed fee applications following securities class action settlements, and stressing the fiduciary obligation of the court to exercise stewardship over settlement funds in that circumstance.

Andrea M. Alonso and Kevin G. Faley

Timing of Expert Disclosure Under CPLR 3101(d)

By Kevin G. Faley and Andrea M. Alonso |

Kevin G. Faley and Andrea M. Alonso review relevant decisions to conclude that neither the First nor Second Department seems inclined to draw a "bright-line" rule on whether expert disclosure after the Note of Issue and Certificate of Readiness have been filed is considered untimely.

Shari Claire Lewis

'Sign-in Wraps' Face the Judicial Microscope in New York

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis discusses a recent decision that involved the enforceability of a sign-in wrap, a type of online agreement that couples assent to the terms of a website with signing up for use of the site's services.

Sidney Kess

Charitable Contributions: New Developments for 2015

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes that the income tax deduction for charitable giving, which totaled $335.17 billion in the United States in 2013, dates back to 1917. However, the tax rules regarding charitable giving are continually in flux.

Gregory B. Reilly

Can LinkedIn Postings Violate Non-Compete Agreements?

By Gregory B. Reilly |

Gregory B. Reilly writes: The growth in membership and use of LinkedIn raises legal questions about how it interacts with an employee's legal obligations under pre-existing restrictive covenant agreements that prohibit or restrict disclosure of confidential and proprietary information, competition and solicitation of customers or suppliers.

George Bundy Smith and Thomas J. Hall

Binding Contracts Despite Continuing Negotiations

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write that previously, courts often have found that where parties to an alleged contract engaged in subsequent negotiations over material terms of the agreement, no meeting of the minds was reached, and there was no enforceable contract. Courts may now be less inclined to find as such after two recent decisions.

E. Leo Milonas and Andrew C. Smith

Jurisdiction, Employment Law, Smoking Restrictions in State Parks

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith write: As the last shovel-full of snow melts from our memories, we review some of the quarter's leading decisions rendered by the state's intermediate appellate judges, during which the Appellate Division justices exercised measured deference to trustees, administrative agencies and the Legislature, while also expanding access to the courts to redress commercial and tortious wrongs.

Brett A. Scher and Amanda R. Gurman

Is Statute Governing Law Practice on Its Way Out?

By Brett A. Scher and Amanda R. Gurman |

Brett A. Scher and Amanda R. Gurman write that with the Court of Appeals' interpreting New York Judiciary Law §470 to indisputably require a nonresident attorney to "maintain a physical law office here," and with the Second Circuit already telegraphing its opinion as to the constitutionality of the statute, it appears that even the ease of obtaining a "physical law office" will not save New York's long-standing law.

Roberta S. Karmel

Liability for Non-Disclosure of Line-Items in SEC Filings

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes: Two recent cases, one in the Ninth Circuit, and one in the Second Circuit, questioned whether a failure to include information allegedly required by the Management Discussion and Analysis under Item 303 of Regulation S-K1 of the SEC can support a fraud action under Section 10(b) of the Securities Exchange Act of 1934, and came to conflicting conclusions.

Steven J. Fink and Alvin Y. Lee

First Department Broadens Common Interest Privilege

By Steven J. Fink and Alvin Y. Lee |

Steven J. Fink and Alvin Y. Lee analyze the First Department's recent rejection of a litigation requirement for the application of the common interest doctrine in 'Ambac Assur. Corp. v. Countrywide Home Loans'.

Roy L. Reardon and William T. Russell Jr.

In-State Law Office Requirement for Non-Resident Attorneys

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 two cases addressing questions certified by the Second Circuit, one responding to a question as to whether a non-resident lawyer must maintain a physical office in the state in order to practice here and one responding to a question of contractual interpretation of an oil and gas lease in the context of the 2008 moratorium on "fracking."

Tamar S. Wise

Updates on Privilege Issues for In-House Counsel in New York

By Tamar S. Wise |

Tamar S. Wise analyzes recent cases that demonstrate New York courts' unwillingness to push the boundaries of the privilege extended in 'Upjohn', guide corporate counsel in protecting from discovery certain sensitive HR-related material, and highlight the limitations of privilege where foreign in-house counsel are involved.

Shepard Goldfein and James A. Keyte

Patent Assertion Entities—Market Participants or Trolls?

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write that while the potential anticompetitive effects of Patent Assertion Entities in broad terms may not be discernable until an FTC study is released at the end of this year, there is a growing body of individual actions addressing the viability of antitrust principles to restrict the power of these entities.

Joel Cohen

Your Client's Intractable Demands—And Your Effort to Withdraw

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Balancing legal and ethical obligations—to a client, an adversary, the court and ourselves—is not easy. When confronted with a client who wants to do something you know he can't legally do, or who wants you to do something you know you can't legally or ethically do, sitting by idly is not an option.

Leslie M. Mauro and Thomas M. Tuori

DEC Initiative Targets Hazardous Waste at Pharmacies, Other Entities

By Leslie M. Mauro and Thomas M. Tuori |

Leslie M. Mauro and Thomas M. Tuori write that a recently announced compliance initiative will focus on pharmacies, grocery stores, and big-box retail stores' handling of materials regulated as hazardous wastes. But rather than just relying on traditional enforcement strategies, the DEC has undertaken significant outreach and is making a concerted effort to work collaboratively to help the regulated community achieve compliance.

Richard Raysman and Peter Brown

Courts Continue to Fracture Over Anti-Hacking Issue

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown highlight recent cases that diverge on which approach—narrow or broad—hews closest to the purpose of the Computer Fraud and Abuse Act.

Ilene Sherwyn Cooper

Surrogates Tackle Good Faith, Post-Nuptial Waiver, Capacity

By Ilene Sherwyn Cooper |

In her Trusts and Estates column, Ilene Sherwyn Cooper reviews a proceeding instituted by a surviving spouse to determine the validity of her exercise of her right of election against decedent's estate given the post-nuptial agreement she had signed, an application by a decedent's parents to remove his estranged spouse as administrator of his estate on the grounds that she had neglected her fiduciary duties and was hostile, and more.

Andrew Kratenstein

Getting the Most Out of Deposition Defense

By Andrew Kratenstein |

Andrew Kratenstein writes: Many lawyers treat defending a deposition as if the lawyer and witness had each taken the Hippocratic Oath to "do no harm." They train their witnesses to say as little as possible, and ask the witness no questions to avoid inadvertently damaging answers. Such a conservative approach to deposition defense can be short-sighted.

Samuel Estreicher and Kristina A. Yost

'Jock': Employment Class Arbitration Allows Disparate Impact Claims

By Samuel Estreicher and Kristina A. Yost |

In his Arbitration column, Samuel Estreicher and Kristina A. Yost write: Despite the Second Circuit panel ruling in Jock, it is not clear under what circumstances arbitration agreements will be interpreted to allow for class arbitration, especially if they contain express class or collective action waiver provisions.

Jerry H. Goldfeder and Myrna Pérez

Alabama and Albany Minority Voters Get Wins

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez discuss two decisions that required the reviewing court to assess plans of redrawn legislative lines under certain provisions of the Voting Rights Act. In both instances the courts maintained the unbroken line of cases upholding the constitutionality of the implicated provisions.

Stewart D. Aaron

No Formal Contract? No Problem

By Stewart D. Aaron |

Stewart D. Aaron writes: A recent decision from the Appellate Division, First Department, reminds lawyers, and their clients, that informal communications, including emails, may establish an enforceable contract, even where certain terms remain to be negotiated.

David M. Barshay

State Enacts Regulation on Actions of Debt Collectors

By David M. Barshay |

In his Debtor-Creditor Law Wrap-Up, David M. Barshay writes: in addition to following federal statutory requirements, debt collectors in New York City have been required to follow somewhat more stringent rules with respect to the collection of consumer debt. Now, the New York State Department of Financial Services has joined in.

Andrew Lavoott Bluestone

Are the Courts Punishing Legal Malpractice Plaintiffs?

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone writes: Legal malpractice litigation is subjected to controls and limitations not found in other areas of the law. These judge-made controls and limitations make professional claims against attorneys much more difficult than those against any other profession.