In his Bankruptcy Update, Edward E. Neiger focuses on bankruptcy filings in the oilfield services sector as the industry reacts to capital expenditure cuts by upstream energy companies and a reduction in drilling activity.
In his Bankruptcy Update, Edward E. Neiger focuses on bankruptcy filings in the oilfield services sector as the industry reacts to capital expenditure cuts by upstream energy companies and a reduction in drilling activity.
Nelson E. Canter explores recent case law and trends involving when tort liability attaches for injuries or damages sustained by non-parties to a contract such as in the case of security companies sued by non-contracting plaintiffs.
In his Condemnation and Tax Certiorari column, Michael Rikon addresses regulatory, administrative and jurisdictional issues relating to wetlands and analyzes a new Supreme Court case, in which a landowner directly challenged federal jurisdiction of the Army Corps of Engineers.
Mediators Abby Tolchinsky and Ellie Wertheim share insights on helping parties move past impasse. This involves going beneath the dynamic and the facts on the ground using a variety of techniques which they discuss in the article.
Natasha N. Reed warns that as the U.S. and Cuba progress toward economic normalization, and companies consider doing business in Cuba, filing for trademark protection in Cuba is particularly crucial for fashion brands even if a company has no immediate plans to offer products or services in Cuba especially given the global business of counterfeits, thanks in large part to e-commerce.
In his Franchising column, David J. Kaufmann offers a critique of a "Voluntary Agreement" the franchisor of Subway restaurants entered with the U.S. Department of Labor's Wage and Hour Division under which Subway pledged to take steps to ensure that its franchisees comply with wage-and-hour laws. The steps it pledges to take, writes Kaufmann, are the type of activity deemed by the NLRB as rendering franchisors the "joint employers" of their franchisees' employees, specifically in the pending case launched against McDonald's Corporation two years ago.
In his Tax Tips column, Sidney Kess discusses the tax implications of losing a job. Among the areas he explores are severance packages, health benefits and unemployment benefits.
In insurance, courts may treat the meaning of "occurrence" differently depending on whether it is an occurrence in a first-party property damage claim or in a third-party liability claim. Jason L. Shaw examines two cases since 2015 to show how different interpretations of "occurrence" can lead to very different consequences for policyholders.
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp point out that the court has consistently granted fewer petitions for rehearing en banc than any other circuit court, a pattern that has become more pronounced in recent years. Since the beginning of 2011, the Second Circuit has reconsidered only two appeals en banc, compared to an average of 12 across all circuits during the same period. Now, other views are emerging among judges as to the merits of such review.
In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier examine two Court of Appeals decisions affirming the denial of motions for late notices of claim on behalf of infants allegedly injured as a result of malpractice around the time of their birth.
In his Cyber Crime column, Peter A. Crusco tackles the questions: Do the police need a warrant to get defendant's cell site location information? Is the cell phone company required to provide the information without a warrant?
David G. Samuels writes that an attorney for a charitable organization, receiving a notice that an individual has died and left a considerable sum to the organization in his or her will or trust instrument, should be prepared to provide appropriate advice to the client on how to proceed.
In his Estate Planning and Philanthropy column, Conrad Teitell writes: A panel of museum directors, curators, art scholars and dealers helps the IRS value artwork gifts. At stake are income tax deductions for charitable donors, and gift and estate taxes for gifts to family members and other non-charities.
In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: As China's political and economic impact continues to grow around the world, U.S. regulators have been forced to grapple with how to protect U.S. interests in a system sprung from a very different government ideology. This clash has played out in the antitrust context in the drafting, implementation and subsequent reaction to China's Anti-Monopoly Law.
William S. Gyves and Monica Hanna write: The U.S. Court of Appeals for the Second Circuit recently revisited an issue that has challenged commercial litigators and courts alike since the earliest days of the common law: When does a simple breach of contract rise to the level of a viable claim for fraud?
In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: In the traditional context involving trade secrets and confidential customer lists, properly drafted non-competes are viewed as protecting employers' legitimate interests and promoting economic development. When abused, however, employee mobility is stifled and commerce suffers. In New York, case law in this area is well-developed, with post-employment restrictions generally disfavored.
In his Elder Law column, Daniel G. Fish writes: Following their judicial outcomes, the the adult children of celebrities Peter Falk, Casey Kasem and Glen Campbell, denied visitation by their stepmothers, moved their focus to the legislative arena. In New York State this resulted in the July enactment of "Peter Falk's Law." But was this legislation necessary given the guardianship statute?
Arthur H. Rosenbloom explains the theory and practice of oppression litigation—when minority shareholders of an entity sue, claiming that the conduct of those in control has been oppressive— and, if such matters are mediated, the mediator’s role in getting the matter to settle.
In her Securities Regulation column, Roberta S. Karmel writes: SEC rulemaking in recent years frequently has been attacked by business interests on the right, with some success, particularly with regard to claims that the SEC did not conduct an adequate cost-benefit analysis. 'Lindeen' is interesting because it was an attack by governmental interests on the left. But it failed at the D.C. Circuit, giving a green light to Regulation A-Plus offerings without blue-sky review.
Wallace Collins discusses the myriad possible problems that may arise when a song's co-authors do not have a written agreement concerning their joint work, and some considerations for drafting such a contract.
In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein discuss 'Kirtsaeng v. John Wiley & Sons,' a case that has earned a previously unprecedented second trip to the Supreme Court for review of the standards for awarding attorney fees to prevailing parties in copyright cases.
In his Divorce Law column, Alton L. Abramowitz discusses domestic relations law, cases and issues involving clients suffering from diminished capacity, clients being coerced or under duress from another party, or clients who may be the victims or potential victims of fraud.
In her Internet Issues/Social Media column, Shari Claire Lewis writes: A review of various privacy-related settlements that agencies recently have reached suggests a variety of steps that companies across all industries should consider adopting in an effort to protect the privacy of consumers and avoid the wrath of regulators.
In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul discuss two recent decisions, one which disqualified a small firm, notwithstanding its immediate creation of a substantial ethical wall when a lawyer with a conflict joined the firm, and another that denied a motion to disqualify where a large firm concurrently represented both sides of a litigation.
Robert D. Lang writes: Pokémon Go warns players to "be alert at all times" and to stay aware of their surroundings. Once the game starts, they have to acknowledge a message that warns them not to drive, trespass or enter dangerous sites while playing. Do these warnings fully satisfy Niantic's legal duty?
Geoffrey A. Mort analyzes the Second Circuit's recent reversal of summary judgment granted in a Title VII failure-to-hire gender discrimination case. In doing so, the court focused on an issue that has arisen over the years in a number of other employment discrimination cases involving summary judgment motion—the extent to which a district court must view the plaintiff's evidence as a whole, as opposed to in fragments, in deciding such motions.
In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: With discovery and depositions as broad as they currently are, problematic issues in a case should be laid bare before you even walk into the courtroom. It is not the fact that there is a problem but often the trial lawyer's ability to confront and address the problem during jury selection that can make the difference in the outcome of a case.
In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions, including one that imposed an exceptionally lenient sentence on a defendant who had suffered losses from the chaos in Syria, another that explained the requirements of a complaint in admiralty that would allow defendant to implead a third party, and a third that addressed the circumstances in which claims of fiduciary breach may be asserted by a mortgagor against a mortgage servicer.
In their Media Law column, Elizabeth A. McNamara and John M. Browning write: Fans of predictable bright-line rules, including attorneys advising copyright clients on the likelihood of an attorney fee award, may well feel dismayed by the U.S. Supreme Court's ruling in 'Kirtsaeng v. John Wiley & Sons.' But despite lingering uncertainty, copyright practitioners can take away several important lessons.
Janice J. DiGennaro writes: In a hotly contested issue of first impression, the First Department has ruled that attorneys who seek the advice of their firm's in-house counsel on their ethical obligations in representing a current client may invoke the attorney-client privilege to resist subsequent disclosure to the client of those communications.
Matthew Chivvis writes that the Federal Circuit's decisions provide conflicting guidance on the duty to construe a term when the plain and ordinary meaning is disputed. The lack of a clear rule has allowed district courts to vary widely in how they handle claim construction in these circumstances.
In his No-Fault Insurance Law Wrap-Up, David M. Barshay writes: The distinction between an affidavit, which is sworn to before a notary public or other public official, and an affirmation, which is subscribed and affirmed by the witness without the necessity of a notarization, while arguably a technicality, has been the subject of several no-fault related decisions.
In her Employees in the Workplace column, Wendi S. Lazar writes: Gender discrimination, like racial prejudice, runs deep, and whether it is because of issues related to family responsibility, poor negotiation skills or the biased assumption by employers that women are not the primary wage earners, employers continue to pay women less. Unfortunately, the various equal pay acts have placed burdens on plaintiffs that make it difficult to bring claims and succeed in the courtroom.
In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris discuss the SEC's final amended rules of practice before its administrative law judges, which critics maintain do not go far enough to level the playing field, nor to eliminate respondents' due process concerns.
In his Ethics and Criminal Practice column, Joel Cohen writes: Federal and state prosecutors sometimes make plea, or immunity, offers without having gained the requisite approval of higher ups, perhaps more often than one might think. And while many defense attorneys simply won't want to litigate whether the prosecutor's office is bound by the now-breached plea offer, aware of the office's "institutional" memory, there have been challenges.
In his Tax Litigation Issues column, Jeremy H. Temkin writes: At the conclusion of a criminal tax case, a convicted defendant is rightfully most concerned with the prospect of incarceration. Defendants, however, must be aware of other consequences of a conviction, including significant financial ramifications.
Albert Rizzo writes that at the beginning of the year, the U.S. Supreme Court held that an unaccepted settlement offer to satisfy the named plaintiff's individual claim has no force, and therefore cannot moot a class action claim. But left unanswered is what actions on the part of the defendant will moot the plaintiff's claim?
In their Privacy Matters column, Richard Raysman and Peter Brown analyze recent decisions involving employees accused of hacking into the databases of their own companies, competitors and potential business partners.
In his Complex Litigation column, Michael Hoenig writes that by the time a plaintiff's opening has been heard, the jury will likely be feeling strongly sympathetic to the injured claimant. In defense's opening, the lawyer is telling the jury that there is another side to the story. It must be delivered in an ordinary conversational tone projecting a feeling of absolute sincerity and belief in the defendant's position.
In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: Motions for protective orders and orders of preclusion are defensive measures frequently utilized by Surrogate's Court practitioners as a means of curtailing overly broad or improper requests for disclosure. Over the past several months, the surrogates in Suffolk, Westchester and Kings counties have had the opportunity to opine on applications seeking this relief.
Brian D. Koosed and Anthony P. Badaracco write: In the last three years, the two leading state court forums for resolution of commercial disputes have responded to the rise in complexity of privilege logs in two very different ways, with the Delaware Court of Chancery requiring increasing rigor and New York's Commercial Division streamlining the process. This divergence therefore presents yet another factor for deal lawyers to consider in deciding, at the contract formation stage, where commercial disputes should be heard.
In his Civil Rights and Civil Liberties column, Christopher Dunn writes: Earlier this summer, the NYPD—the nation's largest and most influential police department—rolled out new use-of-force policies that have received precious little scrutiny. In light of the ongoing debate about police use of force, it is worth revisiting the constitutional standards and examining the new NYPD policies.
In their Labor Relations column, John P. Furfaro and Risa M. Salins review rulings pertaining to whether automobile service advisors are exempt from overtime pay under the Fair Labor Standards Act; whether a ruling on the merits is a necessary predicate to finding a defendant is a prevailing party eligible for an attorney fees award under Title VII of the Civil Rights Act of 1964; when the statute of limitations period begins running in constructive discharge cases under Title VII; and more.
Matthew L. Schwartz and Matthew Getz write: Over the past few years, there has been a quiet revolution in the state of corporate criminal law in the United Kingdom, as the country approaches ever closer to the American model of large settlements and huge fines.
In his Construction Accident Litigation column, Brian J. Shoot reviews decisions from the first half of the year, including holdings on comparative negligence and sole proximate cause of an injury, and rulings on whether a falling elevator or a fall from the back of a flatbed truck are elevation-related risks.
In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: The recent increase in the number of filings by Brazilian entities for judicial reorganization in Brazil has sparked interest by U.S. investors and claimholders concerning the various pertinent provisions of Brazil's bankruptcy law.
In their White Collar Crime column, Robert J. Anello and Richard F. Albert write that just as the so-called Bridgegate scandal had a significant impact on a number of prominent careers, and perhaps even on our national politics, the appeal of a media demand for the disclosure of the names of unindicted co-conspirators will also likely have a broad impact, influencing courts' future deference to the reputational interests of individuals implicated but not charged in prominent investigations.
Milton Springut writes: Representing two clients with competing technologies is a position "fraught with possible conflict of interest" and this perilous situation can continue even after one representation is completed. Two analytic frameworks can aid patent practitioners in determining whether there is a conflict.
In his Real Estate Securities column, Peter M. Fass continues a discussion of the crowdfunding rules pursuant to Securities Act of 1933, Section 4(a)(6), focusing on the financial disclosures and ongoing reporting obligations associated with crowdfunding.
In his Evidence column, Michael J. Hutter discusses the Court of Appeals' holding in 'Ambac Assurance Corp. v. Countrywide Home Loans,' which, he writes, "rejected substantial contrary precedent in a persuasive and forceful manner such that it may well serve as the intellectual leadership for courts nationally which will be addressing the issue for the first time or revisiting it."
H. Christopher Boehning and Daniel J. Toal discuss a recent decision in which, due to a rogue executive's misconduct and some questionable follow-up efforts by the company itself, a district court imposed what are arguably the most severe sanctions seen in a decision since the enactment of amended Rule 37(e).
In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas examine key developments impacting confidentiality provisions in workplace agreements and policies, and provide recommendations for employers in drafting such provisions in order to reduce the risk of challenges to their enforceability.
In his Criminal Law and Procedure column, Barry Kamins writes: The right to effective assistance of counsel has had a rich development under the state constitution, and the New York Court of Appeals has often expressed its "special solicitude for this fundamental right." In this past term, the court has revisited the effective assistance of counsel in the context of suppression issues, addressing the failure to file a motion to suppress; counsel's performance at a suppression hearing; and counsel's failure to move at trial to reopen a suppression hearing.
Jacob Inwald discusses amendments to the foreclosure conference process enacted in the waning hours of the 2016 session that fill many of the gaps that the original legislation left open, so there is now hope that the settlement conference law will be more rigorously implemented in all jurisdictions, with uniform consequences to deter its violation, and the legislature's intent to prevent avoidable foreclosures and encourage home-saving loan modification solutions more effectively implemented across New York State.
Darren LaVerne discusses two recent decisions that highlight the extent to which the courts continue to grapple with the question of when to apply a U.S. statute beyond the territorial boundaries of the United States.
In his Settlement and Compromise column, Thomas E.L. Dewey writes: The Second Department recently issued an interesting decision holding that a writing from a party's former attorney that is followed by performance of the settlement agreement satisfies CPLR $#167;2104's standard for enforceability of a settlement agreement.
In their International Criminal Law and Enforcement column, Nicholas M. De Feis and Philip C. Patterson write: A new pilot program that offers leniency to corporations that self-report Foreign Corrupt Practices Act violations requires certain conduct by corporations to prove their commitment to cooperation with the government. But the cooperation contemplated by the program moves corporations closer to, and perhaps over, the line at which they become state actors.
In her State Environmental Regulation column, Charlotte A. Biblow writes: New York is the 15th windiest state in the nation, and 13th for installed wind generation capacity. Its wind resource potentially could fill over half of the state's current electricity needs. It is not surprising, therefore, that more wind projects are on the horizon for New York.
In their International Litigation column, Lawrence W. Newman and David Zaslowsky discuss 'RJR Nabisco v. European Community,' in which the U.S. Supreme Court said the question of whether RICO has extraterritorial reach depends on the specific allegations of misconduct and injury, and 'Bank Markazi v. Peterson,' where the court considered the separation of powers doctrine as applied to a statute governing the execution against Iranian assets by holders of terrorism judgments.
Stephen Donaldson writes: Overall, Article 81 does a good job of serving its purpose of promoting the public welfare by establishing a guardianship system. However, Article 81 obviously leaves some things to be desired in terms of compensation for court appointees who spend significant amounts of time helping courts identify whether a person is incapacitated.
In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Within the last month, the U.S. Supreme Court bolstered the strength and attractiveness of inter partes review conducted by the Patent Trial and Appeal Board and provided greater district court discretion for determining willful infringement and enhancing damages in patent cases.
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp review a case in which the court considered the question of whether to permit intervenors to participate in lawsuits without requiring that they independently possess standing. The circuit adopted a more expansive construction of the federal judicial power and narrower construction of the case or controversy requirement.
Stephen M. Kramarsky of Dewey Pegno & Kramarsky discusses a recent case in the Southern District of New York, which shows how the company maximized the protection of its name and image by bringing well-established claims of trademark and trade dress infringement. The opinion is a good example of how traditional legal tools can be put to work by businesses facing novel market issues.
Robert Kelner and Gail Kelner of Kelner & Kelner forsee that self-driving cars will inevitably be the subject of litigation in New York. In their Trial Practice column, they look at the present automated technology, and then discuss where the law may go with these self-driving cars.
Robert D. Lang and Lenore E. Benessere discuss the recent case “IME Watchdog v. Baker, McEvoy, Morrissey & Moskovits” which raises a new issue when it comes to the manner in which an independent medical examination is conducted, namely whether plaintiffs’ attorneys may hire third-parties to audit the examinations and even direct plaintiffs not to participate in all portions of the them.
In his Health Law column, Francis J. Serbaroli of Greenberg Traurig discusses the growing epidemic of addiction to the prescription pain medications known as “opioids.” He summarizes legislation recently enacted in New York that is the latest attempt to curtail opioid abuse. The law places new requirements on hospitals, physicians and other licensed prescribers, substance abuse treatment providers, pharmacies, health insurers, and managed care plans.
In his Admiralty Law column, James E. Mercante of Rubin, Fiorella & Friedman discusses a recent case in which a U.S. government data buoy detached from its mooring anchor at sea and was discovered by the captain of a fishing vessel. As the vessel owner quickly learned, sea rights are determined by federal maritime law and "finders" are rarely "keepers".
In his New York Practice column, Thomas F. Gleason discusses how the scope of review provided by CPLR 5501 on an appeal from the final judgment has some "less-than-clear limitations" and offers that the words used such as "non-final judgment or order" and "necessarily affects" are not as clear as would be desirable for determining such a critical issue as reviewability on appeal.
Jared B. Stamell and Andrew R. Goldenberg analyze recent decisions in two cases in the Southern District addressing whether lack of unanimous holder consent in an out-of-court debt restructuring violates §316(b).
In his Law Firm Partnership Law column, Arthur J. Ciampi discusses a recent case from a Colorado state court, which illustrates how the absence of an agreement led to litigation among lawyers and suggests how the existence of an agreement may have avoided such disputes.
The appeals court reversed itself Tuesday in a case that's been closely watched by media organizations and users of stock photos.
Amid mounting allegations of bias in its home-sharing platform, Airbnb Inc. has hired former U.S. Attorney General Eric Holder Jr. to help craft a “stronger” anti-discrimination policy aimed at eliminating “explicit racism and implicit biases,” the company said Wednesday.
In her Western District Roundup column, Sharon M. Porcellio discuss several "novel and interesting cases this quarter, including "Lombardi v. United States Postal Service," where newlyweds sued the Postal Service pro se in small claims court claiming damages in connection with the Postal Service's alleged failure to inform the plaintiffs that their wedding invitations required additional postage resulting in their invitations being either undelivered or significantly delayed.
Joseph D. Nohavicka of Pardalis & Nohavicka discusses 'Mazella v. Beals', in which the court determined that it was improper to admit a consent agreement between the defendant doctor and the Office of Professional Medical Conduct, which contained evidence of the doctor's negligent treatment of 12 unrelated patients.
In his Immigration Law column, Michael D. Patrick writes: I have had the great fortune of practicing immigration law for the past 35 years, the first five of which were with the government. Over this time, I have observed both periods of revolutionary immigration legislation and extensive congressional gridlock. The most successful immigration reforms have been a direct result of bipartisan support of a common cause.
In his Tax Tips column, Sidney Kess discusses various exclusions that transform some recoveries into tax-free income, steps that can minimize taxes, and some long-term considerations when your client has come into sudden wealth.
Amber Wessels-Yen and Karl Geercken write: On June 20, the Supreme Court issued its much-anticipated decision in 'RJR Nabisco v. European Community,' applying its new extraterritoriality analysis to RICO claims. The result is an opinion that addresses some disputes among the lower courts, leaves others unaddressed, and breaks new ground to limit the availability of U.S. courts to decide intrinsically foreign civil disputes.
In their Insurance Law column, Jonathan A. Dachs writes: One of the more interesting insurance law questions posed to the courts in recent years involves whether an "SUM" carrier is entitled to a reduction in coverage for the amount(s) received from non-motor vehicle tortfeasors, such as municipalities, bars or medical providers. A recent Second Department decision has created a division in authority.
Stephen A. Helman discusses Subordination, Non-disturbance and Attornment Agreements, which achieve the subordination of the tenant's lease to the mortgage on the landlord's fee estate and the contemporaneous protection of the tenant against the foreclosure of such mortgage, and recommends provisions to be included if the lease contains a right of first refusal or offer.
In their Arbitration column, Samuel Estreicher and Holly H. Weiss write that in May, the Seventh Circuit issued the first appellate decision to agree with the National Labor Relations Board that §7 of the NLRA bars employers from requiring as a condition of employment that employees agree to an arbitration provision precluding class or collective actions, a decision that sets up a circuit split.
Scott W. Doyle and Jonathan R. DeFosse write that in June, the Supreme Court issued its first decision addressing inter partes review proceedings before the PTO. In a defeat for those who believe the process allows accused infringers to unfairly harass patent owners, the court upheld the claim construction standard and confirmed that appeals may only be taken from the board's final written decisions.
In his Criminal Law column, Ken Strutin writes: Criminal justice inflicts pain as punishment even as excessive suffering is constitutionally proscribed. But how far can the conventional metrics of pain go in setting the boundaries of due process and due punishment?
In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases in which the court addressed the application of the common interest doctrine to communications shared between companies in the process of merging, affirmed the denial of summary judgment to two former AIG executives in a case brought by the Attorney General, and determined that a trial court's failure to meaningfully respond to a note from a deliberating jury does not require reversal as long as counsel had been given notice of the note's content.
Andrew W. Stern and Benjamin F. Burry write: The New York Court of Appeals has expressly adopted the standard from Delaware's highest court governing transactions in which a controlling shareholder proposes to take a public company private. But perhaps not enough attention has been paid to these two influential courts' having put the proverbial nail in the coffin of the proposition that ad hoc judicial inquiry provides better protection of shareholder rights than a properly run corporate process, overseen by independent fiduciaries.
In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith review recent decisions on satisfying the "demand" requirement for a derivative shareholder suit, the appraisal of shares of a minority partner who has wrongfully dissolved a partnership, parole considerations for persons who were juveniles at the time they committed their crimes, a state agency's mandate to investigate reports of neglect at a care facility, and more.
In his Northern District Roundup, Adam R. Shaw discusses noteworthy decisions, including one addressing when it is proper to maintain a lawsuit anonymously and another remanding contempt proceedings to state court.
Kenneth E. Pitcoff and Andrea M. Alonso write that in 2011, the Court of Appeals drastically undercut the protection afforded to emergency responders under New York Vehicle and Traffic Law, holding that the "reckless disregard" liability standard only applied when emergency vehicle drivers were engaged in one of four categories of privileged conduct. Since then, appellate courts have greatly broadened the stringent 'Kabir' criteria in an attempt to fashion a realistic and workable model.
In his Matrimonial Practice column, Timothy M. Tippins writes: Centuries before the computer whiz kids made the phrase "Garbage In, Garbage Out" part of our national lexicon, the common law judges and barristers of Westminster Hall understood the principle it embodies. In the adjudicative context relevant to lawyers and judges it is as simple as it is critical: A true decision must rest upon true facts, and true facts emerge only from reliable proof.
In their Environmental Law column, Michael B. Gerrard and Edward McTiernan review the Court of Appeals' correcting a longstanding flaw in some lower courts' application of the standing doctrine to restrict access to the courts by environmental plaintiffs, along with other SEQRA decisions.
Lila Ayers writes: Anyone practicing landlord-tenant law in recent years, at some point, was likely to be informed "you can't collect rent on an 'illegal apartment,'" usually a basement space. This is no longer true, at least with regard to a one-family building.
In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone report on two Supreme Court decisions emphasizing the district courts' discretion in awarding enhanced damages in patent cases and attorney fees in copyright cases; a Supreme Court decision upholding the PTO's standard of review in inter partes review proceedings; and a Second Circuit decision discussing nominative trademark fair use.
In her International Banking column, Kathleen A. Scott writes that the Basel Committee of the Bank for International Settlements sets international capital standards but those standards must be adopted by individual countries to have any legal effect. A recent evaluation of the higher loss absorbency requirement in the United States, China, European Union, Japan and Switzerland shows how some jurisdictions deviate from the standard, either falling short or exceeding it.
Jonathan Honig writes: After several years in which every court found the Federal Arbitration Act trumps the National Labor Relations Act bar on class action waivers, the Seventh Circuit came out with its 'Lewis v. Epic' decision recently, with the revolutionary, but correct, holding that the NLRA is not in conflict with the FAA and proscribes class action waivers in arbitration of employment disputes.
In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: The FTC has litigated three merger-related preliminary injunction applications during the last two months, winning one—which joins what can now fairly be called a "string" of victories in cases involving highly concentrated industries within relatively static marketplaces—and losing two.
In their Technology Law column, Richard Raysman and Peter Brown take a look at the differing results reached in recent cases involving defendants' motions to compel arbitration, including: the Seventh Circuit's refusal to enforce an arbitration provision absent adequate notice to the consumer, and the opposite holding in a federal district court opinion issued in late June.
Russell Penzer writes: Recently, several federal district courts and circuit courts of appeals have rendered decisions uncharacteristically protective, or some have argued paternalistic, toward plaintiffs in Fair Labor Standards Act cases.
C. Raymond Radigan and Jennifer F. Hillman examine the historic reasons for mortmain, statutes ostensibly meant to protect testators and their families from overreaching religious or charitable groups, and the reasons why the legal system has embraced free will over regulation.
In his Complex Litigation column, Michael Hoenig writes: Presentation of the defendant's case in the modern products liability trial is the major opportunity to set the record straight and demonstrate to the jury that a perhaps catastrophically injured plaintiff is not entitled to recover. Counsel early on urged jurors to keep an open mind, promising them another side of the story. Now he or she must deliver.
Daniel J. Buzzetta writes: Although most people would prefer not to be faced with the threat of anticipated or actual litigation, the state's highest court recently ruled that such threat is necessary before a party may share attorney-client privileged information with another party with whom it shares a common interest.
Harvey M. Stone and Richard H. Dolan review a decision that a plaintiff's reassignment from his position as an armed ATF Special Agent to another job within the agency did not amount to discrimination, another that held the company designated by plaintiffs' counsel as the proper plaintiff at the close of all evidence was not the real party in interest, and a third rejecting petitioner's challenge to his state murder conviction based on the use of digital imaging to show his palm print on duct tape that had been recovered from his wife's body.
In her Professional Liability Insurance column, Sue C. Jacobs discusses the recent decision reaffirming New York state's long-held precedent that the common interest doctrine applies to communications with a third party having a shared interest only if there is pending or reasonably anticipated litigation, a narrower view of the doctrine than that held by a number of federal circuits.
Elliott Scheinberg writes: The absence of a statutory right to either a direct appeal from a sua sponte order or any form of immediate review therefrom, akin to CPLR 5704, constitutes a void in appellate jurisprudence that imposes onerous consequences on the party who, perhaps due to no wrongdoing on his part, finds himself on the wrong side of the order.
In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write that prosecutors tend to extend the reach of white-collar criminal statutes until the judiciary, at some point, pushes back. The Supreme Court's vacating the conviction of former Virginia Governor Robert McDonnell is the most recent high-profile example, but the government's expansive interpretation of federal statutes was narrowed by judicial interpretation in the Second Circuit recently as well, in 'United States ex rel. Edward O'Donnell v. Countrywide'.
Frank Taddeo Jr. writes: Many devoted fathers are knocked senseless by the legal system when spousal strife prevents amicable resolution of custody disputes during divorce proceedings. On custody, she usually wins and he usually loses, becoming a mere visitor in his children's lives. Might there be some recourse to be found in the law, some concept or theory he might grab onto? The answer is a tentative, guarded, but perhaps inevitable "yes."
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'United States v. Bohannon', in which the court vacated an order suppressing evidence seized pursuant to the arrest of a defendant, who was apprehended while a guest in the residence of a third party.
In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty Jr. discuss the sometimes overlooked limitation on the very liberal right to appeal—the requirement that only an "aggrieved party or a person substituted for him [or her] may appeal from an appealable judgment or order except one entered upon the default of the aggrieved party."
In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler discuss the rights of apartment owners to access business records; common law requirement that an owner's request for inspection must be made in good faith and for a proper purpose; and implications and recommendations for boards and managers in addressing apartment owner requests for access to records.
Yee Wah Chin writes: While there is no general law in the United States regarding abuse of superior bargaining position, the concern exists and is addressed in many states for specific industries in which there is a conclusion that a superior bargaining position is common.
In their Federal Civil Enforcement column, Richard Strassberg and William Harrington of Goodwin Procter analyze the U.S. Supreme Court's decision in 'Luis v. United States', which shed light on the limits to the, at times, seemingly limitless breadth of the forfeiture laws, but raises a series of questions with which courts will now have to grapple.
In his State E-Discovery column, Mark A. Berman of Ganfer & Shore discusses recent decisions that cite or interpret the New York Court of Appeals decision in 'Pegasus', which sustained the concept that spoliation of ESI may be predicated upon negligence.
In his Professional Responsibility column, Anthony E. Davis discusses New York State Bar Association Committee on Professional Ethics Opinion 1092 and he notes: “Although Opinion 1092 is titled “Duty to Disclose Malpractice of Co-Counsel,” it actually reviews both lawyers’ duty to reveal their own malpractice as well as the situation where a lawyer becomes aware of the malpractice of the lawyer’s co-counsel."
Irish law firms could be poised to pick up additional work after last week’s surprising vote by U.K. voters to leave the European Union. That leaves Ireland as the only remaining English-speaking country with a common law tradition in the Eurozone.
In his Insurance Fraud column, Evan Krinick discusses the recent case 'Iowa v. Rimmer,' and writes: "Defendants will bemoan the ruling, but prosecutors and courts in other states undoubtedly will rely on its analysis when considering whether they may prosecute a multistate criminal insurance fraud action in their own courts."
In their Entertainment Law column, Neil J. Rosini and Michael I. Rudell write: "'Sarver v. Chartier' and 'Hicks v. Casablanca Records' present relatively straightforward guidelines for deciding whether fictional works portraying real people violate publicity rights. New York decisions, however, usually apply statutory interpretation that seems to depend on whether readers and viewers know what they're reading or watching is fiction or fact."
Harry Sandick of Patterson Belknap Webb & Tyler discusses the recent Second Circuit decision in 'Rowland', a case involving falsifying records, and writes: Given the Supreme Court's longstanding interest in limiting the breadth of the statutes that prohibit obstruction of justice, 'Rowland' may warrant further appellate review.
Michael Kahn discusses what some would say is a “disturbing trend,” — narrowing the scope of patentable subject matter. He writes that this trend “has seen many otherwise valuable and groundbreaking inventions dedicated to the public and denied patent protection. In the wake of this trend, alternative forms of intellectual property protection are becoming more appealing.”
In their Corporate Insurance Column, Howard Epstein and Theodore Keyes write: Earlier this year, in 'Templo Fuente De Vida Corp. v. National Union Fire Insurance Co.,' the Supreme Court of New Jersey extended the Zuckerman ruling to hold that the notice prejudice rule does not apply and the insurer is not required to demonstrate prejudice to deny coverage for late notice of claim under a claims-made policy, even where the claim was reported during the policy period.
In his Antitrust column, Elai Katz discusses recent antitrust developments of note including a class action complaint which sufficiently alleged that Uber's pricing algorithm amounted to price-fixing among drivers, according to a district court in Manhattan.
In their Aviation Law column, Steven R. Pounian and Justin T. Green discuss 'Joshi v. National Transportation Safety Bd.,' where the U.S. Court of Appeals for the D.C. Circuit ruled that the National Transportation Safety Board's probable cause determinations are not subject to judicial review. The authors write that the decision highlights the conflict of interest in the National Transportation Safety Board's investigation process, which relies on the participation of potential defendants in civil litigation that frequently follows aviation accidents.
Daniel A. Cohen of Walden Macht & Haran discusses the recent 'Ambac' decision, in which the Court of Appeals held that the existence of a joint legal strategy is a necessary, but not sufficient, condition for applying the common interest doctrine and that the existence of actual or anticipated litigation is additionally required in order for the doctrine to apply.
In his Condemnation and Tax Certiorari column, Michael Rikon writes: A trial court is charged with making all the legal determinations in an eminent domain case. But as the trier of the facts, it also has broad discretion to decide many critical issues which determine the amount of "just compensation." In this article, he discusses a few of the areas that are said to be within the sound discretion of the trial court.
In his Cyber Crime column, Peter A. Crusco of the Office of the Queens County District Attorney discusses recent litigation concerning government seizures of email accounts using search warrants resulting in the seizure of voluminous digital records, and the legality of the lengthy retention of non-responsive emails for an indefinite period.
Samuel N. Fraidin and Douglas J. Pepe of Joseph Hage Aaronson write: The Second Circuit should adopt a single statement of the doctrine concerning whether a court may consider documents attached to a motion to dismiss, define its terms, and warn against the use of the doctrine for any purpose other than determining if a document may be considered without converting a motion to dismiss into a motion for summary judgment.
Cybersecurity risks brought on by high employee turnover and file sharing are easy fixes with proactive information governance.
In his Estate Planning and Philanthropy column, Conrad Teitell writes: Inter vivos charitable remainder unitrusts and annuity trusts enable your clients to make significant gifts that go to charities at death while retaining income for life. When properly structured, income tax charitable deductions are allowed, and capital gains taxes on the sale of appreciated assets by the trusts are avoided, reduced or postponed. But the IRS doesn't forgive foot faults. Make a small mistake, and income, gift and estate tax charitable deductions are disallowed, and capital gains are taxable.
In his Section 1983 Litigation column, Martin A. Schwartz discusses 'Heffernan v. City of Paterson', where the U.S. Supreme Court held that a police officer who was demoted because his superiors mistakenly believed he had engaged in political association was entitled to assert a §1983 First Amendment retaliation claim, even though he had not in fact engaged in any First Amendment activity.
William K. Kirrane and Michael A. Savino write that the goal of our tort system is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred. But with the system providing plaintiffs future lost earnings awards not offset for taxes and a fixed interest rate far exceeding the prime rate on judgments, plaintiffs are instead profiting from their losses.