Tax Tips columnist Sidney Kess discusses the tax treatment of long-term care insurance premiums and proceeds, along with the treatment of continuing care facility expenses.
Tax Tips columnist Sidney Kess discusses the tax treatment of long-term care insurance premiums and proceeds, along with the treatment of continuing care facility expenses.
In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Following the U.S. Supreme Court's May 2016 decision in 'Spokeo v. Robins', courts have been re-examining whether plaintiffs seeking statutory damages, particularly under various consumer protection laws, have Article III standing to pursue their claims. With guidance from the Second Circuit's post-'Spokeo' decision in 'Strubel v. Comenity Bank', courts in the Southern District of New York are beginning to flesh out the new approach to standing in such cases.
In her Internet Issues/Social Media column, Shari Claire Lewis of Rivkin Radler writes: Social media's emerging role, combined with the extreme divisions so evident in our country, have caused the courts to consider application of pre-Internet legal standards to defamation and other torts brought in response to tweets, Facebook posts, and content on other social media platforms. Recently, a number of courts have considered the context provided by social media and how online forums impact the reader's expectation of truth and the distinction between fact and opinion.
writes that on Feb. 9, a group of prominent Republicans and business leaders from the Climate Leadership Council released a carbon tax proposal entitled "The Conservative Case for Carbon Dividends," a four-pronged proposal that would impose a tax on carbon for oil, gas and coal use, which together comprise nearly 80 percent of total U.S. greenhouse gas emissions.
Atif Khawaja writes: The legal standard for spoliation is clearer in some jurisdictions than it is in others. But wherever one happens to be litigating, decisions on the destruction of ESI are often highly fact-specific, nuanced, and technical. As a result, those decisions can also be unpredictable. A recent Court of Appeals decision is a case study in the consequences of technological mishaps and corporate miscommunications.
In their Commercial Division Update, George Bundy Smith and Thomas J. Hall discuss how courts in the Commercial Division recently have applied the doctrine of continuing breach—where a contract imposes a duty of continuing performance over a period of time, "each successive breach may begin the statute of limitations running anew"—illustrating the doctrine's scope.
In his Franchising column, David J. Kaufmann writes that every franchise agreement vests in the franchisor the ability to promulgate and modify from time to time "brand standards," allowing consumers to associate franchisors' marks with certain standards of quality, product offerings, unit appearance, no matter where the franchise is. But some franchisees have pushed back on brand standards.
Jason L. Shaw writes: The Second Circuit's reinsurance decision last month in 'Global Reinsurance of America v. Century Indemnity' will finally lead to resolving the unsettled question about whether reinsurers will have limitless liability for an underlying insurer's legal costs.
Lee Spielmann writes: Legal proceedings against the perpetrators of Nazi Germany's murder of six million Jews have almost concluded, with German criminal prosecutions quickly winding down and American efforts to expel those who assisted in Nazi persecutions having ended. Holocaust survivors have also initiated civil suits under the Foreign Sovereign Immunities Act to obtain redress. One such recent case in the D.C. Circuit, 'Simon v. Republic of Hungary', demonstrates the complexity of these proceedings, the significance of the issues and their importance in promoting Holocaust awareness.
Corporate and Securities Litigation columnists Mark D. Harris and Margaret A. Dale write: In several recent cases, the Delaware Court of Chancery has addressed due process issues arising out of shareholder derivative actions. The Delaware Supreme Court has now taken up the baton in a case that raised the question of when a court in a subsequent action is obligated to honor an earlier dismissal of a shareholder derivative action for failure to plead demand futility.
In his Elder Law column, Daniel G. Fish reviews recent developments in the U.S. Supreme Court, Department of Health and Human Services, a Mississippi district court, and the New York Appellate Division pertaining to mandatory arbitration in nursing home agreements.
Chris McDonough discusses Joel Brandes' recent attempts to be reinstated to the New York bar and whether his performing paralegal services for attorneys from his home in Florida during his disbarment constituted the practice of law.
Copyright Law columnists Robert J. Bernstein and Robert W. Clarida write: The treasure trove of pre-1972 hits has spawned a multitude of civil actions, appeals to the Second, Ninth and Eleventh Circuits, certifications to the highest courts of New York and Florida, and a complex class action settlement agreement with multiple contingencies depending primarily on whether the pending actions ultimately recognize a public performance right.
Jeremy M. Creelan writes: For two decades leading up to Justice Antonin Scalia's death, the U.S. Supreme Court's class certification jurisprudence took shape as a dialogue between Justices Scalia and Ruth Bader Ginsburg over the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and (b)(3), respectively. With Scalia's passing, the court has hinted that it will embrace Ginsburg's pragmatic approach in future cases. But a surprisingly few clues indicate whether Judge Neil Gorsuch of the Tenth Circuit will follow in Scalia's footsteps in this area.
Ethics and Criminal Practice columnist Joel Cohen writes: It's completely fair game for commentators to criticize a jury verdict—after all, why shouldn't journalists write that O.J.'s acquittal was out of line, or that Rubin "Hurricane" Carter's conviction was unjust? But do the same rules apply when the prosecutor, defense attorney or even the judge chooses to lash out publicly against a jury verdict, even if the disagreement is in good faith?
In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: By the time President Trump was inaugurated, professional and business communities had spilled a lot of ink over his statements on antitrust, as well as the implications of choosing Josh Wright to lead the FTC transition team. Now, the Section of Antitrust Law of the ABA has issued a Presidential Transition Report that, perhaps more than ever before, may offer the best picture of where antitrust may move over the next four years or more.
In their Privacy Matters column, Richard Raysman and Peter Brown focus on what federal appellate courts actually agree upon with regard to the text of the Computer Fraud and Abuse Act, even though there presently exists a circuit split over the meaning of the word "authorization" as used in the statute.
Paul Shechtman reviews the Court of Appeals' recent decision in 'People v. Patterson' which upheld the admission of cell phone subscriber information as non-hearsay evidence. Did the court get it right?
In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan of Schlam Stone & Dolan discuss several significant, representative decisions handed down recently, including decisions on: the incontestability provision of a life insurance policy; two motions to remand to state Supreme Court; and reasons for a prison sentence.
In his Divorce Law column, Alton L. Abramowitz of Mayerson Abramowitz & Kahn, prompted by the recent release of the January 2017 Report of the Chief Administrative Judge's Matrimonial Practice Advisory & Rules Committee, reflects on the manner in which divorce lawyers process their client's case matters from the moment that the potential client first walks through the office door.
Brian D. Murphy of Sheppard, Mullin, Richter & Hampton writes: Employers often prioritize preserving the confidentiality of the terms of a settlement of a pending or threatened litigation. Given that confidentiality is frequently a key incentive to enter into a settlement, with respect to a great many claims, it is respected and permitted by the courts. Where a settlement concerns individual claims under the Fair Labor Standards Act, however, an employer faces steep challenges in securing confidentiality.
In his No-Fault Insurance Wrap-Up, David M. Barshay analyzes a recent decision in which a physician established a relative value to bill for services but did not provide a supporting report justifying that value, along with recent decisions that involved vacating arbitration awards.
Complex Litigation columnist Michael Hoenig writes that with current levels of docket congestion, a proliferation of multi-party cases and some tendencies towards lengthier trials, the problem of reluctance to grant a mistrial has worsened—which can leave improper and prejudicial arguments unpunished.
Danielle Nicholson and Richard Ziegler write: The efficacy of international arbitration relies on arbitrators, irrespective of the source of their appointment, being—and being perceived as—independent and impartial throughout the proceedings. The assertion of challenges to arbitration awards alleging bias by an arbitrator highlights the need for clarity in the obligation of arbitrators to disclose promptly and continuously their professional and other connections to the parties and their counsel.
In her Trusts and Estates Update, Ilene Sherwyn Cooper of Farrell Fritz discusses several notable appellate division opinions from the past year that tackled a myriad of issues, including undue influence, power of attorney, gift my implication, and gift of investment account.
Maureen M. Stampp, a partner at Kaufman Dolowich & Voluck, writes: Long-standing court decisions and federal rules of procedure allow companies to recover their attorney fees and costs upon prevailing in a lawsuit against a government agency. She discusses cases in which companies have successfully opposed overzealous agencies.
In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier analyze the Court of Appeals' holding in 'Pullman v. Silverman', which emphatically confirmed the necessity for an expert affidavit to adequately refute the specific allegations in the bills of particulars to be sufficient to establish a moving defendant's entitlement to summary judgment.
White-Collar Crime columnists Robert J. Anello and Richard F. Albert write that given the SEC's increasing reliance on civil disgorgement actions to secure financial recoveries and the expansive breadth of rulings delineating what a defendant can be required to disgorge, the Supreme Court's upcoming decision in 'Kokesh v. SEC' on whether disgorgement is a punitive remedy and covered by the five-year limitations period or an equitable remedy and beyond the statute will have a significant impact on the the agency's enforcement practice and defendants' financial exposure in such cases.
In their Federal E-Discovery column, Daniel J. Toal and H. Christopher Boehning write: While there have been a number of court decisions that have interpreted the new language of Rule 26(b)(1), some practitioners—and courts—still continue to cite to the old version of the Rule. A recent decision applied the new version in finding requested e-discovery from a party's non-U.S. subsidiaries to be out of scope, and reminded the bench and bar that the Rule changed on Dec. 1, 2015 and that they should not rely on the old version of the Rule.
Stephen P. Younger, Muhammad U. Faridi and Gabriela Bersuder discuss a recent First Department decision with potentially broad implications for participants in the credit default swap market.
Entertainment Law columnists Neil J. Rosini and Michael I. Rudell analyze a recent decision offering an object lesson in how fan films (as well as fan novels and any other unauthorized fan-created derivative of a popular work) court legal disaster.
In his Criminal Law and Procedure column, Barry Kamins writes: The New York Court of Appeals has recently upheld the towing, impoundment and inventory search of an automobile, holding that these actions were, under the facts of the case, consistent with a "community caretaking function." This is the first time the court has adopted this theory, although it has made oblique references to it in the past. What is the origin of this doctrine and, more importantly, what are its boundaries and scope?
Doron P. Kenter writes: On January 17, in the latest chapter in the ongoing debate over §316(b) of the Trust Indenture Act, the Second Circuit reversed the district court's decision in 'Marblegate', concluding that the TIA does not prohibit out-of-court restructurings that deprive non-consenting noteholders of their substantive right to payment on account of their notes.
Construction Accident Litigation columnist Brian J. Shoot considers the Court of Appeals' two most recent rulings in the field, both of which left unanswered questions.
In their Labor Relations column, John P. Furfaro and Risa M. Salins discuss two controversial National Labor Relations Board rulings on class arbitration waivers and the joint employer standard that may be revisited once the vacant seats on the board have been filled, the possible fates of the Department of Labor's overhaul of overtime pay regulations and finalization of the persuader rule, and executive orders issued by President Obama that may be scrutinized.
Montgomery L. Effinger writes that vehicle operators whose time to respond to unpredictable behaviors of other drivers or pedestrians is mere seconds or less may obtain summary judgment prior to trial under the common law "emergency doctrine." But even when a time lapse of one to two seconds establishes that the driver played no role in creation of the underlying accident, other factors may be found to raise a question of fact as to the reasonableness of the driver's response, thereby resulting in denial of summary judgment.
In his Civil Rights and Civil Liberties column, Christopher Dunn previews the Supreme Court arguments in an excessive force case where police entered a residence without knocking or identifying themselves and, finding one of the residents pointing what appeared to be a rifle at them, fired 15 shots. In fact, it was a a BB gun that the resident was in the process of moving when officers entered.
In his Evidence column, Michael J. Hutter writes: Court of Appeals Judge Stein's conclusion, and her analysis in support, that the Sprint subscriber information offered in a burglary and robbery trial to establish phone calls between the defendant and an accomplice was not barred by the hearsay rule is certainly valuable on that difficult issue. The true value of her opinion, however, lies in how she reached that admissibility conclusion in the context of the offered evidence, the cell phone records, which involved two out-of-court statements.
Katherine Bajuk of the New York County Defender Services writes that while society at large has progressed commendably on the understanding of and approach to mental health issues, one segment, the criminal justice system, has been slow to adapt.
Insurance Law columnist Jonathan A. Dachs provides a brief historical background of Insurance Law §3420(d)(2), which says that liability insurers must give notice as early as reasonably possible if they are disclaiming liability or denying coverage, and discusses one of the express limitations on the applicability of the statute—that the policy at issue be one that is "issued or delivered" in New York.
In his Real Estate Securities column, Peter Fass writes that a key issue in broker-dealer compliance in a best efforts offering is the interpretation of 'promptly transmit' or 'promptly forward' subscription proceeds. He discusses SEC and FINRA interpretive advice touching on this issue.
Thomas A. Dickerson reviews cases involving the premature evaluation of the merits of a proposed "disclosure only" settlement; the approval, preliminarily, of the Metropolitan Museum of Art's "Pay what you wish, but you must pay something" class action; the certification of a tenant's class action alleging improper deregulation of apartments notwithstanding the landlord's receipt of J-51 tax benefits; and the decertification, in part, of a class action brought by credit card terminal lessees alleging unreasonable fees and a failure to reveal the full terms of the lease.
In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: Over the years, we have often reminded insureds of the importance of promptly placing their insurance carrier on notice of new claims. Based on recent case law, defense counsel are advised to raise the issue of available insurance with their clients when counsel are retained to defend a new claim.
In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas survey recent legislation aimed at narrowing the scope of interests that will legally support judicial enforcement of restrictive covenants and/or limiting the enforceability of non-compete agreements, examine several specific government investigations into non-compete practices, and outline suggestions for employers to consider when reviewing their use of non-compete agreements.
In his E-Communications column, Stephen Treglia writes: What sense can businesses that possess their customers' or clients' personal data make of the new administration's unclear stance on cybersecurity regulations? Many entities have either already invested heavily in developing internal policies and security staff to avoid regulatory penalties or civil lawsuits or are planning to do so in the very near future. Should they continue to do so or should they dismantle or halt the process?
Andrew Lavoott Bluestone writes: Missed statutes of limitation are the subject matter of many legal malpractice cases—and ironically, late malpractice cases themselves come up far more regularly than expected.
Settlement and Compromise columnist Thomas E.L. Dewey writes that a recent holding in the 'Patton Boggs v. Chevron' case demonstrates that "retention of jurisdiction" provisions in stipulations of dismissal can lead to litigation with non-parties over underlying settlement agreements. At the same time, it signals to would-be intervenors in such cases that they must show not only that they have legally protected interests in the settlement agreements, but also that there are proceedings in the dismissed actions in which they seek to intervene.
Gregory J. Bautista lays out some steps to implementing a cybersecurity plan that's right for your organization, writing that starting with cost-effective preventative and educational measures such as employee awareness training can be the best investment you can make.
Evan T. Barr writes: Federal courts in the past have generally required convicted co-conspirators must be held jointly and severally liable for all proceeds that were at least "reasonably foreseeable." An influential appellate court recently held, however, that a co-conspirator's forfeiture liability instead should be limited to the amount that he personally obtained from the criminal conduct, setting up a circuit split to be resolved by the high court.
Law Firm Partnership Law columnist Arthur J. Ciampi writes: Despite the prevalence of non-equity partner positions and the substantial benefit they bring to the profession and to the careers of many lawyers, some uncertainty remains as to what the title means and how to ensure that firms and their non-equity partners are operating within the ethical norms.
In her Western District Roundup, Sharon M. Porcellio explores some of the nuances and interplay of the Freedom of Information Act and Freedom of Information Law in relation to New York's various public authorities, and discusses the court's finding that plaintiff filed a motion to disqualify defendants' counsel for tactical reasons.
State Environmental Regulation columnist Charlotte A. Biblow reviews draft guidance released by the New York State Department of Environmental Conservation in December on the issuance of permits for "living shorelines techniques," which encourage the use of green or natural infrastructure rather than engineered erosion protections such as bulkheads and seawalls.
In their International Litigation column, Lawrence W. Newman and David Zaslowsky write that Section 7502(c) of the CPLR authorizes provisional remedies in aid of arbitration. It can be used in aid of arbitrations that take place both in and outside of New York, thus making the statute broader than its sister statute governing attachments in aid of litigation. Perhaps the most interesting question about the statute is how come it is not used more?
Anita Bernstein and Lauren Boulbol of Brooklyn Law School writes: Violating New York Judiciary Law §487 can be memorably costly for an errant attorney, but successful plaintiffs may have to worry about collecting on §487 judgments they receive. Lawyers' assets are not always in ready reach of prevailing parties. How can plaintiffs collect their judgments when defendants' assets and malpractice insurance are both limited?
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: Over the past year and a half, the circuit, along with the Southern District, have issued three important decisions interpreting arbitration clause enforceability in both the consumer and employment contexts. At first glance, these decisions all seem to turn on practical considerations, tracking factors like the prominence of the arbitration clause. But arbitration enforceability is not merely an empirical inquiry. In fact, the recent opinions analyze these practical factors to underscore a more fundamental judicial concern: preserving the integrity of contractual bargaining.
In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Twenty patents. That's how many were invalidated in only three decisions in the last few weeks alone. Patent practitioners cannot be blind to the enormous impact the U.S. Supreme Court's decision in 'Alice Corp.' has had on narrowing the scope of available patentable subject matter, rendering quite uncertain whether patents directed to computerized business methods or ways of conducting transactions over the Internet, by way of example only, will ever survive scrutiny.
Julian D. Ehrlich writes: Recently, a long-simmering rift has widened within the Appellate Divisions regarding the application of the Scaffold Law to the common worksite accident scenario where a portion, but not all, of a worker's body falls through an opening.
Trial Practice columnists Robert S. Kelner and Gail S. Kelner analyze the Court of Appeals' recent decision in 'Newcomb v. Middle Country Central School' and the profound impact it will have on a motion court's discretion to extend the time to serve a notice of claim on a public corporation.
In his Health Law column, Francis J. Serbaroli of Greenberg Traurig summarizes recently enacted revisions to the Nonprofit Revitalization Act of 2013. He notes that most not-for-profit organizations not only will have to revise their corporate documents, policies and procedures to comply with this new law's requirements, but also will have to educate their governing boards, management and employees.
Carlos J. Cuevas reviews a recent Eastern District case where a trustee commenced an adversary proceeding to avoid two transfers by a debtor to his significant other at a time when the defendant was being sued in a civil action in Texas. Judge Nancy Hershey Lord wrote a thoughtful opinion concerning the application of the badges of fraud to establish fraudulent intent.
Timothy C. Blank and Hilary Bonaccorsi of Dechert write: The amended cybersecurity regulations issued by the New York State Department of Financial Services resolve certain issues, but key questions remain. This article explains why the changes in the amended regulations are important to "Covered Entities," and identifies important questions that still need to be resolved.
In their International Criminal Law and Enforcement column, Nicholas M. De Feis and Philip C. Patterson reviews 'United States v. Tuzman', where a defendant was subjected to "provisional arrest" in Colombia at the United States' request and sent to the notorious La Picota prison in Bogota, and then had to fight to be extradited.
Complex Litigation columnist Michael Hoenig writes: That courts exercise heightened vigilance in criminal cases when prosecutorial arguments cross the lines of prejudice should not be surprising. The strong court response to inflammatory comments in the recent 'People v. Brisco' criminal case had me wondering whether courts generally tend to exercise the same degree of vigilance and firepower in civil trials. It seems that, while ample lip service is paid by courts to established high-road principles, each case, so to speak, sits on its own bottom and outcomes are not predictable with certainty.
Jeffrey G. Steinberg writes that unlike homeowner, automobile or other general liability insurance, a switch in carriers for professional liability policies exposes the insured to a potential gap in coverage, notwithstanding the fact that continuous policies may be maintained. Nevertheless, there are two ways that the risk of a coverage gap from switching claims-made carriers may be minimized.
In his New York Practice column, Thomas F. Gleason discusses the obligations of a nonparty that is requested to implement a litigation hold, and considerations for the demanding party before it issues a discovery request.
In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith report on recent decisions involving shareholders' common law right to inspect books and records and whether that extends to a corporation's wholly-owned subsidiaries, the in pari delicto doctrine as applied to Madoff feeder funds, personal jurisdiction, the taxation of fiber optic cables as real property, subject matter jurisdiction of family court, and more.
Justice Saliann Scarpulla highlights some new and evolving features of the Commercial Division Rules, including refinements to the division's jurisdiction, changes to the privilege log rule, corporate deposition rule, the rule concerning the submission of orders to show cause, and the addition of a new rule concerning settlement conferences, and outlines additional proposals under consideration.
In his Matrimonial Practice column, Timothy M. Tippins writes: Because sexual abuse typically occurs in secret and leaves no trail of physical evidence, much depends upon the credibility of the complainant. Enter the mental health professional and the Child Sexual Abuse Accommodation Syndrome.
Tax Litigation Issues columnist Jeremy H. Temkin writes: With the advent of virtual currencies, the IRS faces a new threat that has the potential of rendering assets effectively untraceable. In tackling the challenge presented by 21st century transactions, the IRS has turned to a tried-and-true method that has been an integral part of its enforcement program for decades.
Debbie N. Kaminer previews 'Christiansen v. Omnicom', a case addressing whether Title VII's prohibition of discrimination "because of sex" includes a prohibition on discrimination based on "sexual orientation" that will soon be heard by the Second Circuit.
In their New York Court of Appeals Roundup, Roy Reardon and William T. Russell Jr. review a decision where the court found a defendant had entered into a binding agreement and was liable for breach despite the fact that its acceptance of a bid was expressly subject to the execution of a final agreement and despite the fact that the defendant expressly reserved the right, in its sole and absolute discretion, to withdraw from sale any or all of the assets it had offered to sell.
In her Professional Liability Insurance column, Sue C. Jacobs writes: The action for attorney fees is one in which all the parties' dirty laundry is aired. An attorney who sues for fees can expect to litigate a malpractice claim, along with breach of contract, breach of fiduciary duty and other possible causes of action a creative lawyer conceives.
Eric Tirschwell of Kramer, Levin, Naftalis & Frankel writes that following the election of Donald Trump and the nomination of a vocal opponent of federal criminal sentencing reform as Attorney General, optimism among proponents of criminal justice reform has been dramatically diminished, if not extinguished altogether. Enter the U.S. Sentencing Commission.
In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara Goldberg write: Non-party depositions will add time and expense to the preparation of the defense for trial, and a corresponding benefit may not initially be obvious. The challenge is to determine in advance which non-party should be deposed.
In his Tax Tips column, Sidney Kess discusses the two tests for being eligible for a home office deduction, calculating costs for deduction and the simplified method of calculation, the gross income requirement, and special considerations for owner-employees if the business is incorporated.
Bruce Maffeo discusses 'U.S. v. Rosemond,' where the Second Circuit provided much needed guidance on the limits on the government's ability to restrict defense counsel from mounting an effective defense that is inconsistent with statements provided by their clients in earlier plea negotiations.
In his Intellectual Property column, Stephen M. Kramarsky examines a case tackling the issue of digital rights for pre-1972 recordings, writing: 'Flo & Eddie v. Sirius XM Radio' provides an in-depth examination of a complex area of copyright law that rarely gets that kind of treatment, and the policy questions are worth thinking about.
In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on Judge Spatt's rejection of a coram nobis petition challenging, in light of post-trial developments, the reliability of a government expert witness in a coin fraud case, also his vacating a default judgment in a bankruptcy proceeding, and Judge Matsumoto's denial of a defendant's request for discovery and a bill of particulars in a criminal case.
Issa Kohler-Hausmann, Avery P. Gilbert and Christopher Seeds write: In accordance with recent U.S. Supreme Court Eighth Amendment jurisprudence, persons sentenced to life as juveniles now must be provided a "meaningful opportunity" for release based on demonstrated maturity and rehabilitation. New York is particularly challenged in its efforts to come into compliance with this new constitutional law, given its status as one of two states automatically prosecuting teenagers 16 and up as adults, and its parole hearing practices.
Environmental Law columnists Michael B. Gerrard and Edward McTiernan write: While 2016 did not bring major environmental legislation in New York state, laws were enacted that could have significant impacts in coming years, including a law that allows plaintiffs to bring toxic tort claims in connection with newly designated Superfund sites that might otherwise be barred by existing statutes of limitations. Gov. Andrew M. Cuomo also signed laws requiring lead testing of drinking water in schools, establishing a task force to study ocean acidification, and creating a program to fund local climate change mitigation and adaptation projects.
A. Michael Weber discusses steps employers can take in drafting mandatory arbitration policies to help protect against challenges to their enforceability.
Intellectual Property Litigation columnists Lewis R. Clayton and Eric Alan Stone write: Given the infrequency with which patent owners succeed in amending or substituting for challenged claims, shifting the burden of proving (un)patentability to the petitioner, as was argued before the Federal Circuit on Dec. 9, might have a significant effect on Inter Partes Review practice. We therefore report here on the pending appeal in 'Aqua Products' and the current state of the law, and we offer suggestions for practitioners.
In her International Banking column, Kathleen A. Scott writes: The Financial Action Task Force, an international organization of regulators that develops recommendations on anti-money laundering and anti-terrorism financing, recently issued its latest evaluation of the United States. It was found mostly compliant with the 40 recommendations, but there are still are some deficiencies to be addressed.
Shira A. Scheindlin, in preparation for a recent symposium, reviewed all of the class action cases she handled during her years on the Southern District bench, and here shares elementary statistical information that she found to be of interest and might be of interest to those lawyers who toil, have toiled, or plan to toil in the class action arena.
Costantino P. Suriano and Daniel Markewich discuss the circumstances under which contractual legal fees in a lawsuit brought by a building owner against an insured contractor might be covered under a CGL policy in New York.
In her Employees in the Workplace column, Wendi S. Lazar writes: Since 2009, the Labor Department's Wage and Hour Division has sued companies to collect nearly $2 billion in back wages for American workers with claims similar to the ones Trump employees have brought. Trump's nominee to head the department, Andrew Pudzer, seems unlikely to follow suit.
Antitrust Trade and Practice columnists Shepard Goldfein and James Keyte write: The past year was a tumultuous one, and to some degree antitrust developments necessarily lag behind events and may take years to manifest changes. Hence, in the coming year, observers curious about antitrust developments should take note of who the Trump administration appoints to the leadership positions within the DOJ and FTC and the antitrust experience of the new junior Justice of the Supreme Court.
In their Technology Law column, Richard Raysman and Peter Brown discuss the recent Southern District decision in 'PaySys International', in which, because the license broadly defined potential licensees and granted expansive rights under both exclusive and non-exclusive license periods, all of the licensor's copyright infringement claims failed.
In their Trusts and Estates Law column, C. Raymond Radigan and Jennifer F. Hillman discuss SCPA 2102(4), which can be effectively used to compel the payment of a claim or a legacy and then (later) compel compliance with a settlement agreement—a tactic which was recently shown in 'Estate of Petschek', a case out of New York County Surrogate's Court.
In his Professional Responsibility column, Anthony E. Davis reviews changes to the New York Rules of Professional Conduct as adopted by the New York State Bar Association's Committee on Standards and Attorney Conduct
Fox Rothschild partner Ernest Edward Badway writes that "obey-the-law" injunctions, favored by regulators such as the SEC, are incredibly powerful devices that create an albatross hanging over the head of any defendant subjected to them. But when they are no longer equitable due to changes in decisional law, factual circumstances, or the passage of time, a court in its discretion may vacate such a permanent injunction.
In his Insurance Fraud column, Evan H. Krinick discusses new tools such as social media and data analytics that insurance companies are using to help stop fraudulent policies from being issued or renewed based on false representations of fact and to block false, inflated, or otherwise fraudulent claims from being paid.
Shmuel Vasser writes: Can a court compel an email service provider like Yahoo to turn over a user's email account content without that user's involvement or consent? The Bankruptcy Court for the District of Delaware recently decided it cannot, at least on the specific facts facing it in the Irish Bank case.
White-Collar Crime columnists Elkan Abramowitz and Jonathan Sack discuss 'Salman v. United States', where the U.S. Supreme Court restated what most commentators saw as the pre-existing law of tipper/tippee liability. However, the court broke new ground in its discussion of the vagueness doctrine: the principle that criminal laws must provide clear notice of the conduct they prohibit.
Rahul Mukhi and Martha Vega-Gonzalez write: The documents contained in WikiLeaks, the Panama Papers and other troves of information never meant for public consumption have no doubt piqued the interest of prosecutors and plaintiffs' lawyers. However, there are significant legal and ethical pitfalls in taking information illegally obtained by hackers and using it in litigation, whether criminal or civil.
In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler examine the legal ramifications of imposing monetary charges, such as late fees, interest and the like, for non-payment or late payment of proprietary rent (maintenance) or common charges. They also discuss the statute and case law relating to New York criminal usury, as they may apply to such charges, and analyze recent case law addressing potential defamation claims if the names of owners in default are published, made public or otherwise disclosed.
In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. discuss appellate review of the exercise of discretion by the trial court. While CPLR §5501, Scope of Review, states in subsection (c) that "The appellate division shall review questions of law and questions of fact on an appeal from a judgment or order," it does not mention that court's power to review an exercise of discretion by the trial court. Nevertheless, the Appellate Division unquestionably possesses all of the powers of the Supreme Court. Its authority "is as broad as that of the trial court," and one often sees an Appellate Division decision and order (one paper) reversing or modifying an order or judgment of the Supreme Court "on the law, the facts and in the exercise of discretion."
In his Section 1983 column, Martin A. Schwartz examines how the courts have addressed questions of seizure under the Fourth Amendment in accidental shootings by police officers. Unlike intentional police shootings, which are clearly seizures, accidental police shootings can raise sticky Fourth Amendment "seizure" issues. Accidental police shootings do not come within a "one size fits all" constitutional model. On the contrary, some accidental police shootings are held to be Fourth Amendment seizures, while others are not.
In his State E-Discovery column, Mark A. Berman examines the implications of recent decisions that addressed forensic reviews of an opposing party's computer to obtain electronically stored information, as well as decisions on motions to dismiss predicated upon "documentary evidence" in which emails were offered as support for dismissal.
Jason P. Gottlieb and Michael Mix, of Morrison Cohen, write: New York state law requires an out-of-state corporation doing business in New York to register with the Secretary of State. For years, New York courts held that such registration constituted "consent" to personal jurisdiction in New York for all purposes. However, since the U.S. Supreme Court’s landmark 2014 decision in 'Daimler AG v. Bauman', which severely restricted the paradigm forums in which a corporation is subject to general jurisdiction, New York courts have disagreed regarding whether the doctrine of consent by registration survives 'Daimler'. New York law has become confused, and clarity is needed for plaintiffs and defendants alike.
In their New York Court of Appeals Roundup column, Roy L. Reardon and William T. Russell Jr. discuss the court's decision addressing the circumstances in which a foreign bank’s use of a correspondent bank account in New York will subject it to personal jurisdiction. In a 4-3 decision, the court ruled that the manner in which the defendant used the services of New York correspondent bank accounts subjected it to personal jurisdiction in New York. The dissent in the case warned that the decision represents an “about-face” from a prior rule on which foreign banks have relied for four decades, but the majority and a concurring opinion by Judge Michael Garcia took great pains to reconcile their ruling with existing precedent. At the end of the day, the decision provides additional clarity as to the circumstances in which the use of a correspondent account will subject a foreign bank defendant to personal jurisdiction.
In his Antitrust column, Elai Katz analyzes two recent developments that have brought attention to information exchanges, a complex and subtle area of U.S. antitrust law. In a simple information exchange case subject to antitrust review, competitors have shared commercially sensitive information with one another without agreeing on a common course of competitive conduct (such as pricing, output, or strategy). Information exchanges, even among direct rivals, can sharpen competition and, unless accompanied by an agreement not to compete, must be shown to have anticompetitive effects in a properly defined market before they can be deemed unlawful.
Rob Rosenzweig and Uri Gutfreund, of Risk Strategies Company, offer strategies for minimizing the impact of data breaches. Whether the proper insurance is in place or not, the costs to deal with a data breach can be significant and the type of liabilities can be varied. At the onset of a breach it is crucial to retain a law firm to serve as a "Data Breach Coach." The Data Breach Coach really serves as the quarterback and makes recommendations based on the universe of potentially exposed data at hand; retaining the other necessary vendors such as forensics, public relations, and firms that specialize in notification and credit monitoring.
In her Immigration Law column, Julie Muniz provides insight into potential immigration initiatives under President-elect Donald Trump who has stated that his immigration plan will focus on increased enforcement and protecting U.S. workers. She explains that the extent to which these two initiatives impact business immigration will depend on how the Trump administration reconciles its desire to attract and retain the best and brightest foreign talent with its pledge to protect the interests of middle and working class Americans. As a result, employers who hire foreign workers will need to adapt quickly in order to remain compliant and meet business objectives.
Daniel M. Lehmann, who practices eminent domain law and real property valuation, discusses a decision in New Jersey where the court did not automatically approve the governmental attempt to exercise eminent domain without legitimate consideration. The case highlights for the practitioner the difference between New York's and New Jersey's judicial treatment of a private property owner challenging the use of eminent domain. This case also alerts the practitioner to the possibility that New Jersey courts, unlike New York courts, are on a path toward providing the private property owner with greater constitutional protection.
In his Condemnation and Tax Certiorari column, Michael Rikon discusses the Dec. 7 decision by the Second Department, in 'Monroe Equities v. State of New York'. The decision addressed the contention that the application of watershed regulations constituted a per se taking under 'Lucas v. South Carolina Coastal Council', 505 U.S. 1003, requiring compensation under the Takings Clause of the U.S. Constitution because claimant was deprived of all economically beneficial use of its property.
In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp examine two decisions which appear to reflect the court's growing interest in the constitutionality of the government's use of location information obtained by GPS. In both 'U.S. v. Caraballo' and 'U.S. v. Gilliam', the Second Circuit considered whether a defendant's Fourth Amendment right is violated when law enforcement determines his location by acquiring GPS information from a cellular phone provider, and then uses this information to carry out an arrest.
Zack Hadzismajlovic, of McCarter & English, discusses proposed and final rules issued by the Directorate of Defense Trade Controls and the Department of Defense. As it presently stands, contractors interacting with export-controlled information could face ruinous consequences if they act too reflexively in addressing cybersecurity incidents and events.
In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez focus on two cases that are significant to voters and practitioners in New York. The first significant case involves a candidate's residency, and how it affects his eligibility to run for office. The second case involved a candidate for U.S. Congress who was declared eligible to run but was, nevertheless, denied a place on the ballot—because the state Supreme Court rendered its decision only four days before the scheduled primary election.
In his Cyber Crime article, Peter A. Crusco writes: New technologies inspire clever criminals, requiring more advanced law enforcement crime fighting methodologies. Arguments against arrest usually include the application of long-established legal rules to challenge these new government investigative methodologies. The article demonstrates how one such rule, the 'Aguilar-Spinelli' test, has been asserted in an attempt to undermine search engine evidence used in search warrant applications.
Brian D. Koosed and Anthony P. Badaracco, of K&L Gates, and Erica R. Iverson, formerly with the firm, examine the critical question of who should decide whether to pierce the corporate veil, judge or jury, noting that the question is anything but settled. Indeed, they write, it would be hard to find a question on which federal and state courts are more widely split. This is in large part because the historical roots of veil piercing reach into courts of both law and equity.
Scott Balber, John O'Donnell and Benjamin Mills, of Herbert Smith Freehills. discuss key considerations for establishing and maintaining privilege over materials generated in the course of an internal investigation. An internal investigation will typically generate potentially sensitive materials, including notes of witness interviews, chronologies and spreadsheets compiling key facts, and written memoranda from counsel providing their advice to the company. The most effective way to keep those materials privileged is to establish that the investigation was conducted at the direction of legal counsel, and to be wary of waiving the privilege by disclosing privileged materials generated in the course of the investigation to regulators or the public.
In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein examine litigation related to copyright in the song "We Shall Overcome." In a putative class-action suit against the copyright holder, plaintiffs claimed that the copyright was invalid because of defects in the registration for the song, fraudulent procurement of the registration, and publication of the song without proper copyright notice. Plaintiffs also asserted four claims under New York state law.
In their Southern District Civil Practice Roundup column, Edward M. Spiro and Judith L. Mogul discuss a pair of recent cases that shed light on the parameters of the litigation privilege, and the narrow exceptions that litigants have been able to exploit. As they note, "when civil litigation turns ugly, it sometimes devolves into allegations of defamation not just between the parties, but against their lawyers as well. In light of the broad privilege cloaking statements made in the litigation process, the incidence of defamation allegations against lawyers is surprising."
Karl A. Groskaufmanis and Samuel P. Groner, of Fried, Frank, Harris, Shriver & Jacobson, examine the U.S. Supreme Court decision in 'Salman v. United States' on the test for tipper/tippee liability in insider trading law. They explain that it sets a line that separates fundamental investment research from fraudulent and potentially criminal conduct. While the case marks a clear victory for federal insider trading enforcement, they note that it also multiplies the challenges for lawyers and compliance officers advising buy-side investors.
In his Tax Tips column, Sidney Kess discusses three of the popular strategies that can be used by wealthy individuals for charitable giving: bequests, gift annuities and conservation easements.
Joshua D. Bernstein and Steven M. Cordero, of Akerman, examine Real Property Tax Law §421-a tax benefits after developers receiving such benefits decide to convert their projects to rentals. In doing so, however, they have jeopardized receipt of those incentives as provided by law for eligible projects. By altering the scope of their plans and failing to abide by New York's rent regulations, some of them have lost their favorable tax treatment, which was the very economic engine that made those projects viable. Now, the New York City government is seeking to rein in the granting of benefits to owners who do not meet the statute's requirements.
In his Real Estate Securities column, Peter M. Fass discusses a "best efforts" offering, in which the broker-dealer acts as the agent of the issuer (generally, the limited partnership or limited liability company) in attempting to sell the units directly from the issuer to the investors. The broker-dealer is paid commissions from the issuer for sales made. Best efforts offerings frequently are made on an "all or none" or "part or none" (minimum-maximum) basis. In an "all or none" offering, all of the units must be sold during the specified offering period or the subscriptions must be promptly returned to the investors. In a "part or none" offering, the designated minimum amount must be sold within the specified time or subscriptions returned to investors.
In her Internet Issues/Social Media column, Shari Claire Lewis discusses a recent Second Circuit decision in 'FTC v. LeadClick Media', which upheld a challenge by the FTC to certain kinds of fake news under the FTC Act, ruling that the FTC's complaint had not run afoul of §230 of the Communications Decency Act.
Gary J. Mennitt and Debra D. O'Gorman, of Dechert, examine a closely watched case of particular importance to bond lawyers, in which the Delaware Supreme Court provides guidance on questions that often arise in bondholders' rights cases, including the interpretation of the indenture, an issuer's repurchase of notes from an affiliate, the ability to repurpose an issuer's business, the scope of the implied covenant of good faith and fair dealing, and solvency in the context of avoidance claims. The Delaware Supreme Court affirmed the post-trial judgment of the Chancery Court in 'Quadrant Structured Products Company v. Vertin'.