In his Tax Tips column, Sidney Kess, of counsel at Kostelanetz & Fink, discusses the 3.8 percent additional Medicare tax imposed on trusts and estates that have net investment income over a threshold amount, along with strategies that can reduce or eliminate the tax.
Amy Walsh, a partner at Morvillo LLP, analyzes the Second Circuit's recent decision in 'SEC v. Contorinis,' which held that a defendant in an insider trading case can be forced to disgorge not only the illicit profits he personally earned, but also the illegal profits earned by an innocent third party that the defendant did not control.
In his New York Practice column, Thomas F. Gleason of Gleason, Dunn, Walsh & O'Shea writes: It often is far easier to seek copies of emails or documents from non-parties in the email traffic chain. But electronic discovery requests can be a burden on third parties, who understandably may object, reasoning that the parties should be burdened first. How can we balance this reasonable concern with the need to obtain evidence which otherwise may not come to light?
In their Eastern District Roundup, Schlam Stone & Dolan Harvey M. Stone and Richard H. Dolan report on recent decisions, including the rejection of one of the bankruptcy court's grounds for disqualifying debtors' counsel and remand to determine whether the remaining ground warranted disqualification, a opinion offering pretrial guidance as to potential damages in an employment discrimination action, and more.
C. Evan Stewart, a senior partner at Cohen & Gresser, writes: Because of the whistleblower provisions of federal statutes such as Dodd-Frank, recent case law, and various articles written on this subject, there has been a fair amount of disinformation as to whether lawyers are free to rat on their clients and then also profit thereby.
In his Tax Appeals Tribunal column, Joseph Lipari, a partner at Roberts & Holland, writes: For obvious reasons, tax departments do not wish to exempt cloud computing products from imposition of sales tax. However, it is often difficult to conclude that these products fall within the statutory definitions needed to subject them to tax. A recent determination by an administrative law judge illustrates some of the problems faced.
In his Environmental Law column, Michael B. Gerrard of Columbia Law School and Arnold & Porter, reviews the more than 50 environmental bills signed into law in the last year of Mayor Bloomberg's 12-year term, 31 of which related to the post-Sandy recovery process.
In his Banking column, Sullivan & Cromwell partner Michael T. Escue discusses an advance notice of proposed rulemaking in which the Federal Reserve, citing recent environmental events such as the Deepwater Horizon oil spill, raised questions regarding increased limits and restrictions on the physical commodities activities of financial holding companies.
Kevin G. Faley and Andrea M. Alonso, partners of Morris Duffy Alonso & Faley, write that recently, courts in New York have been limiting the extent of personal liability for injuries that result from another's intoxication, but upholding stricter rules on the public taverns and commercial establishments that serve alcohol.
In their Mediation column, Abby Tolchinsky and Ellie Wertheim, partners at Family Mediation, write that whether your client is already deep into a mediation process or whether mediation is merely on the menu of process options to resolve a pending dispute, some considerations apply regardless of the type of conflict.
E. Paul Kanefsky, a partner at Edwards Wildman Palmer, and Nicholas A. Secara, an associate with the firm, write: Insurance carriers and their counsel should strongly consider intervening in underlying litigations involving their insureds in order to assist in the resolution of insurance coverage issues. Strategic intervention is an advantageous, but underutilized, litigation device that might enable counsel to forestall months or even years of delay in resolving coverage disputes between policyholders and insurers.
In his Intellectual Property Litigation column, Paul, Weiss, Rifkind, Wharton & Garrison partner Lewis R. Clayton reviews recent notable decisions, including the Federal Circuit's en banc holding on one of the most contentious issues in patent law.
In their Technology Law column, Richard Raysman, a partner at Holland & Knight, and Peter Brown, the principal at Peter Brown & Associates, write about the recent OCC and Federal Reserve advice for banks and other financial institutions; the intent of the CFPB to monitor service provider relationships; and, a case illustrating the need for compliance with OCC administrative guidance.
In their Insurance Law column, Norman H. Dachs and Jonathan A. Dachs, partners at Shayne, Dachs, Sauer & Dachs, review the rules applicable to an insurer's attempt to disclaim coverage based upon the insured's lack of cooperation, in violation of a policy's cooperation provision, and a recent Court of Appeals decision on that defense.
In their Antitrust Trade and Practice column, Skadden Arps partners Shepard Goldfein and James A. Keyte write: In the recent case against McWane Inc. Ltd., the FTC affirmed an exclusive dealing claim against the company, but it deadlocked 2-2 (along party lines) on price-fixing claims. Unfortunately, the lack of a fifth commissioner to break the tie left observers without a clear statement on how, at least within the FTC, to dissect price-fixing allegations and proof, and immediate reactions to the decision expressed disappointment at the lack of guidance. Nevertheless, there are at least a few lessons to draw from McWane.
Wallace E.J. Collins III of the Law Offices of Wallace E.J. Collins III writes that just as the record business has been staggering back to its feet after the digital piracy debacle, another hard blow to the record industry business model is lurking just around the corner: 35 years have passed since the effective date of the 1976 Copyright Act, which means content creators may begin to reclaim their copyrights, regardless of any contract stating otherwise.
Daniel B. Goldman and Adam W. Braveman of Paul Hastings write that for over 50 years in proceedings to enforce judgments in New York, New York branches of banks have been considered separate entities from all foreign branches. This rule has prevented judgment creditors from forcing banks to restrain and/or turn over assets of a judgment debtor held by foreign branches of banks. That may now change.
In their Trusts and Estates Law column, C. Raymond Radigan and Peter K. Kelly of Ruskin Moscou Faltischek writes that the New York SAFE Act has important provisions for regulation of weapons owned by a decedent which must be disposed of by his fiduciary after death and also weapons that are specifically bequeathed under a decedent's will.
In his Complex Litigation column, Michael Hoenig, a member of Herzfeld & Rubin, writes: The U.S. Supreme Court's unanimous opinion in 'Walden v. Fiore' has potential to upset some apple carts, to disturb existing or smug notions of in personam jurisdiction and to revitalize jurisdictional challenges by foreign defendants sued in a state where they had no or little direct activity.
In their Appellate Practice column, Thomas R. Newman, of counsel to Duane Morris, and Steven J. Ahmuty Jr., a partner at Shaub, Ahmuty, Citrin & Spratt, examine 'Rocky Point Drive-In v. Town of Brookhaven,' in which the Court of Appeals granted the appellant's motion for leave to appeal in a case involving different factual findings of the trial court and Appellate Division on the same record, but limited its review to which factual findings more nearly comported with the weight of the evidence.
In his Insurance Fraud column, Rivkin Radler's Evan H. Krinick points out that a recent California appellate court held that insurance companies are not direct victims entitled to criminal restitution simply because they reimbursed a victim for losses. In New York, the rule is quite different.
Appellate attorney Elliott Scheinberg writes: It is wise, in light of the Court of Appeals' 2012 decision in 'Grucci v. Grucci,' to err on the side of caution and include a chain of custody when authenticating tape recordings irrespective of the availability of a participant to the conversation prepared to identify and attest to its fair and accurate representation.
Louis F. Eckert, a senior partner at Litchfield Cavo, and Michael J. Kozoriz, a senior associate at the firm, write: In an unusual reversal of its own decision from just months earlier, the Court of Appeals held on Dec. 10 that the determination of the Workers' Compensation Board that a plaintiff had no further causally related disability, was not entitled to collateral estoppel effect in the plaintiff's personal injury action.
In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski of O'Melveny & Myers write that in January, the Fifth Circuit joined other jurisdictions in reflecting a hesitancy on the part of bankruptcy courts to enforce prepayment premiums absent explicit language in prepetition debt instruments mandating payment of such premiums following commencement of a bankruptcy case or acceleration occasioned by another event of default.
In his Matrimonial Practice column, Timothy M. Tippins, an adjunct professor at Albany Law School, examines a bill in the state assembly which, if passed, will bring a higher level of transparency to the forensic process by allowing attorney access to the evaluator's report and file in custody litigation.
In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack, members of Morvillo Abramowitz Grand Iason & Anello, discuss one of the principal battlegrounds where the line is drawn between ordinary politics and illegal graft: honest services law, particularly as it has been applied in the indictment of former Virginia Governor Robert McDonnell and his wife.
In their Cooperatives and Condominiums column, Stroock & Stroock & Lavan's Richard Siegler and Eva Talel write: For a board trying to maintain a harmonious environment, a muted response, or none at all when the owner community is indifferent, may seem applicable when faced with non-residential use of a residential apartment. But while complacent deference may seem pragmatic, a hidden danger may be percolating.
By Adam S. Lurie, Lambrina Mathews and Salvatore N. Astorina
Adam S. Lurie, Lambrina Mathews and Salvatore N. Astorina of Cadwalader, Wickersham & Taft, review some of the significant decisions of the past year concerning the attorney-client privilege and the work product doctrine, and practices to consider in the wake of such decisions.
In his Section 1983 Litigation column, Martin A. Schwartz, a professor at Touro Law Center, writes that many plaintiffs asserting claims against police officers have had prior encounters with law enforcement authorities. Recent federal court decisions show how far defendants may go in using previous "immoral conduct" to impeach the plaintiff's credibility.
In their Corporate Insurance Law column, Schulte Roth & Zabel's Howard B. Epstein and Theodore A. Keyes write: We live in a litigious society and, as a result, many publicly owned companies may view litigation costs and insurance premiums as simply costs of doing business. In many respects, private companies face risks similar to those faced by public companies, yet they may not take the same approach with regard to insurance. A recent survey suggests that many private companies are not adequately insured.
In a column on Technology and Ethics, Mark A. Berman of Ganfer & Shore and co-author Ignatius A. Grande of Hughes Hubbard & Reed discuss some of the issues raised by hypothetical scenarios posed by the Commercial and Federal Litigation Section of the New York State Bar Association during its January 2014 Annual Meeting CLE entitled "Social Media in Your Practice: The Ethics of Investigation, Marketing, and More."
Raunak Kothari, the principal of the Law Office of Raunak Kothari, discusses various problems courts have encountered in fashioning interim counsel fee awards, due partly to the reality that support awards can skew who is the "monied" party and partly to the fact that interim awards are, by their very essence, prospective in nature, so they cannot properly account for unreasonable litigation conduct by the less monied party.
Whiteman Osterman & Hanna partner Jason L. Shaw analyzes the Court of Appeals' recent decisions that eliminated a judicial economy rule the court had created only eight months earlier, allowing liability carriers to breathe a sigh of relief, and took a small bite out of the contractual two-year lawsuit limitations period in New York fire insurance policies.
In his Professional Responsibility column, Anthony E. Davis, a partner at Hinshaw & Culbertson, examines an aspect of the law of attorney-client privilege that is often of critical importance to corporate and transactional lawyers, as well as their litigation brothers and sisters: Who owns the privilege when a dispute arises between a parent and a former subsidiary?
In his Condemnation and Tax Certiorari column, Michael Rikon, a partner of Goldstein, Rikon, Rikon & Houghton, writes that the protection of parkland falls under the broader panoply of the public trust doctrine, which holds that the government is required to maintain certain resources for the public's reasonable use, but, as the Court of Appeals determined last week, reasonable use can encompass more than one valid option.
Larry Levy and Andrew Rafalaf of Bracewell & Giuliani review the significant amendments to New York City's Lobbying Law, which, most notably, expand the definition of lobbying, alter the financial threshold that triggers reporting requirements, carve out specific rules for architects and engineers, and create a new enforcement regime.
In their Federal Civil Enforcement column, Goodwin Procter partners Richard Strassberg and William Harrington write: Many companies rely on quality control procedures to monitor known areas where errors occur and ensure that these errors do not stray too far from accepted levels or industry norms. But in the context of a federal civil fraud investigation, the results of even a well-functioning quality-control process can become problematic.
In his Bankruptcy Update, Edward E. Neiger, a co-managing partner at ASK LLP, discusses Detroit's historic win in its Chapter 9 eligibility battle and next steps in its proceeding; the proposed sale of Girls Gone Wild and the Astros' failed attempt to dismiss Houston Regional Sports Network's bankruptcy case; and litigation and other developments in the Dewey & LeBoeuf and Dreier bankruptcy proceedings.
In their Domestic Environmental Law column, Christine A. Fazio of Carter Ledyard & Milburn and Ethan I. Strell of the Columbia Center for Climate Change Law discuss a precedent-setting decision where the Public Service Commission, in approving a settlement requiring Con Edison to implement state-of-the-art measures to plan for the effects of climate change, explicitly broadened the sweep of its order to address resiliency measures for all utilities in the state.
Thomas A. Glatthaar, senior vice president and senior underwriting counsel with Fidelity National Title Insurance Company, writes that significant penalties may be imposed against a income-producing property owner who fails to timely file a required statement on income and expenses. Unpaid penalties will eventually work their way onto the real property tax bills, becoming a lien upon the property.
In their Second Circuit Review, Paul Weiss members Martin Flumenbaum and Brad S. Karp discuss 'Poventud v. City of New York,' in which the court, sitting en banc, considered whether a plaintiff whose initial conviction was tainted by disclosure violations under 'Brady v. Maryland' could pursue a 42 U.S.C. §1983 claim despite having pleaded guilty to lesser offenses in a second trial.
In his Antitrust column, Cahill Gordon & Reindel partner Elai Katz reviews developments of interest, including a decision holding the merger of online ratings platforms was an unlawful merger to monopoly after the judge accepted a limited relevant market definition, the imposition of the longest antitrust prison sentence on a former executive of a water freight carrier and the EC's acceptance of Google's proposed remedies to resolve concerns that it abused its dominant position with biased search results.
In his Cyber Crime column, Peter A. Crusco, executive assistant district attorney, investigations division, Office of the Queens County District Attorney, writes: New evidence brings new authentication issues for the courts to decide as that technology becomes integrated in our lives.
Russell Penzer, a partner with Lazer, Aptheker, Rosella & Yedid, writes: All too frequently, employment attorneys fail to counsel their clients with respect to evidentiary issues until after the client has been served with a discrimination complaint. Counsel who act proactively, however, can assist employers both in adopting and following procedures that are likely to create favorable and admissible evidence long before a claim is ever asserted.
In their Trial Advocacy column, Ben Rubinowitz of Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz and Evan Torgan of Torgan & Cooper write: The rhetorical question is an effective and persuasive tool for summation. It is subtle in its delivery and potent upon its receipt. When used properly, it can persuade a jury without the insult of a more heavy-handed approach. A seasoned and accomplished trial attorney has to ask, what could be better?
Wendi S. Lazar, a partner at Outten & Golden, and Delyanne D. Barros, an associate at the firm, write: As commonplace as workplace romances have become, there are still fundamental issues that arise which can leave employees, especially women, vulnerable to discrimination and retaliation. The most fundamental issues occur when a supervisor and a subordinate become romantically involved.
In his Estate Planning and Philanthropy column, Conrad Teitell of Cummings & Lockwood presents key figures for 2014 in light of adjustments made by the IRS to charitable gift premium rules, tax tables, personal exemptions, standard deductions and other tax provisions.
In his Elder Law column, Daniel G. Fish, a principal in Daniel G. Fish LLC, writes: It is important to take steps to secure quality care for the vulnerable residents of New York's more than 600 nursing homes. The enactment of a statute allowing authorized electronic monitoring, which is currently left up to the individual facility, would provide some protection.
In their Commercial Division Update, George Bundy Smith, an arbitrator and mediator with JAMS, and Thomas J. Hall, a partner at Chadbourne & Parke, write: The application of equitable requirements to petitions for orders of attachment in aid of arbitration, as recent trial courts have done, raises the issue of whether a showing of irreparable harm is inconsistent with the dictates of CPLR 7502(c) that the "rendered ineffectual" test is the sole substantive ground for such relief.
David J. Kappos, a partner at Cravath, Swaine & Moore, writes: Capturing and building upon intra-organizational innovation, surveying patterns of innovation in the surrounding field, and understanding the changing IP legal landscape will put an organization in the best position to capitalize on developments in big data.
In her Securities Regulation column, Roberta S. Karmel, Centennial Professor of Law at Brooklyn Law School, writes: The reform of credit rating agencies mandated by Dodd-Frank was broad. In reality, while the SEC had actively pursued these mandates, it has not yet transformed the industry in a significant way. Whether the Office of Credit Ratings and its work, or implementation of an assigned ratings system or alternative system, will do so remains to be seen.
Joseph D'Ambrosio and Andrew I. Mandelbaum of Ford Marrin Esposito Witmeyer & Gleser write: Courts around the country have consistently held that unless a website creates or develops actionable content, it is protected from liability. However, recent decisions have suggested, and one court has held, that the term "develop" encompasses more than creating or authoring the content.
Morrison & Foerster's Joel C. Haims and James J. Beha II write that the Delaware Chancery Court's 2013 decision in 'Boilermakers' made clear that, as a matter of Delaware law at least, forum-selection bylaws are permissible and enforceable. But it will be up to courts in other jurisdictions to actually enforce them.
In their Copyright Law column, Robert W. Clarida of Reitler, Kailas & Rosenblatt, and Robert J. Bernstein of The Law Office of Robert J. Bernstein write: On Dec. 23, 2013, the Northern District of Illinois delivered a Christmas present for the Sherlock Holmes lovers of the world: Klinger v. Conan Doyle Estate Ltd., a suitably labyrinthine decision that should resolve any lingering mystery about the public domain status of the Sherlock Holmes stories by Sir Arthur Conan Doyle.
In his Tax Tips column, Sidney Kess, of counsel at Kostelanetz & Fink, reviews tax credits and subsidies available to help defray the cost of minimum essential coverage for individuals, the penalties for large employers that do not provide health insurance, and the incentives for small businesses that are not required to provide coverage to do so.
Anthony S. Barkow, a partner at Jenner & Block, and Nathaniel H. Benforado, an associate with the firm, write: Regardless of who is ultimately right about the future of Bitcoin—those who think it fueled by foolish speculation or those who believe it to be a more efficient currency for the Internet age—"real" money is being poured into the Bitcoin ecosystem, new startups are entering the field almost every day, and even mainstream entities are getting involved. And with Bitcoin no longer on the fringe, regulators have taken note.
In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul of Morvillo Abramowitz Grand Iason & Anello write: Defining SLUSA's reach has been a continual battleground between plaintiffs and defendants, the latest front of which concerns the question of what constitutes a "covered class action" under SLUSA, with courts giving that threshold term a surprisingly expansive meaning.
In her Internet Issues/Social Media column, Shari Claire Lewis, a partner at Rivkin Radler, writes: In only the past few weeks, New York and surrounding states have seen a plethora of rulings stemming from allegedly defamatory statements that appeared in one form or another on the Internet. Several of the most recent salacious cases offer insight into when a claim will and will not withstand scrutiny.
Paul Shechtman, a partner at Zuckerman Spaeder, analyzes the Court of Appeals' 4-3 ruling in 'People v. Morris,' which poses questions about Molineux evidence, the hearsay rule, and the effectiveness of limiting instructions.
In his Professional Liability column, Norman B. Arnoff of the Law Offices of Norman B. Arnoff writes: Material misstatements and omissions in financial reporting are not exclusively caused by fraud. The accounting profession must be held to the highest standards and therefore focus has to be given to serious professional malpractice in the regulatory context. This should be the case, even where the professional lacks bad intent.
In their Eastern District Roundup, Schlam Stone & Dolan partners Harvey M. Stone and Richard H. Dolan review recent decisions that imposed restitution and forfeiture as concurrent penalties in a criminal case, dealt with issues of collateral estoppel in a RICO case in light of a prior acquittal on related charges, and dismissed claims against an "assisted living facility" that allegedly misrepresented the date of its licensing.
Adam J. Safer, a member of Miller & Wrubel, writes: Can an employer in New York terminate one of its employees without cause, for example by layoff or firing, and still enforce contractual restrictions preventing that employee from competing against it? With cryptic Court of Appeals decisions and inconsistent answers from the Appellate Division and New York federal courts, the answer is: it depends.
In their No-Fault Insurance Law Wrap-Up, David M. Barshay, a member of Baker Sanders, writes: The burden of a plaintiff medical provider assignee in proving its prima facie case in a no-fault action appears relatively simple, yet it has been the subject of scores of appellate cases. Recently, the Second Department revisited this issue and clarified what is, and more importantly what is not, the plaintiff's prima facie burden.
In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti of Proskauer Rose analyze a recent decision in which the Second Circuit held explicitly for the first time that the duty of corporate insiders to either disclose material non-public information or to abstain from trading is defined by federal common law, not state or foreign fiduciary duty law, and applies to registered and unregistered securities alike.
In their Privacy Matters column, Richard Raysman, a partner at Holland & Knight, and Peter Brown, the principal at Peter Brown & Associates, describe the historical background and recent relevant Fourth Amendment jurisprudence on "searches incident to arrest"; describe the two cases that are to be argued forthcoming at the Supreme Court; and posit analysis and predictions on the outcomes of the case based on precedents, the ideological makeup of the court, and the policy implications.
In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg of Martin Clearwater & Bell write: It is familiar law that, ordinarily, physicians' or hospital records are admissible to the extent they are germane to treatment, but that details of how a particular injury allegedly occurred are not relevant and subject to redaction. A recent trial illustrates how a complex underlying fact pattern can complicate the issue of hearsay in medical records.
In his Ethics and Criminal Practice column, Joel Cohen of Stroock & Stroock & Lavan, writes: We seem to think that once a judge puts pen to paper and finally decides a case, the decision is final in his own mind—there is no reverie; no compunction; no troubling self-doubt. But it isn't always like that, as shown by now-retired Justice Frank Barbaro's coming forward to seek to undo what he considers an injustice over a non-jury murder conviction he handed down in 1999.
In his Complex Litigation column, Michael Hoenig, a member of Herzfeld & Rubin, reviews a recent ruling which consolidated and decided motions to seal the settlement agreements reached in two separate lawsuits, revealing potential traps for the unwary who seek confidentiality of their settlements, and a second decision affirming harsh spoliation penalties against a defendant who failed to preserve a treadmill used by a plaintiff who was injured.
Farrell Fritz's Peter A. Mahler and Matthew D. Donovan write: The improved economic climate last year saw no let up in the volume of business divorce litigation in New York courts. The most striking aspect of last year's decisions is the number of important appellate rulings concerning various forms of business entities.
In her Trusts and Estates Update, Ilene Sherwyn Cooper, a partner with Farrell Fritz, reviews recent decisions involving the removal of a fiduciary, the late filing of objections to probate of the decedent's will, a petition by a corporate fiduciary for advice and direction, a request to apply the anti-lapse statute to the residuary clause of a decedent's will, and more.
In his Construction Accident Litigation column, Brian J. Shoot, a partner with Sullivan Papain Block McGrath & Cannavo, writes: Hardly a week passes in which the Appellate Division does not approve the grant of summary judgment to the plaintiff under Labor Law the so-called "scaffold statute." But can summary judgment ever be appropriately awarded to the plaintiff pursuant to Labor Law §241(6)? The arguments, and authorities, go both ways.
CORRECTED: Phillips Nizer partner Bruce J. Turkle writes: Emphasizing anew that an untimely made summary judgment motion will be denied outright, irrespective of its merits, a divided First Department in 'Kershaw v. Hospital for Special Surgery,' affirmed the trial court's rejection of such a motion not brought within 120 days of the filing of a Note of Issue.
In their Labor Relations column, John P. Furfaro and Risa M. Salins of Skadden, Arps, Slate, Meagher & Flom write: Engaging with employees on sensitive personal issues is serious business but, if undertaken correctly, can be a win-win for employees and employers.
Elliot D. Ostrove, a partner with Day Pitney, and Clara Y. Son, an associate at the firm, write: Class actions are the preferred means of bringing an action under the Telephone Consumer Protection Act by plaintiffs' counsel given the potential for a significant money judgment. However, the language: "may, if otherwise permitted by the laws…of a State" has resulted in differing opinions as to the reach and impact of state laws on TCPA claims.
In his Civil Rights and Civil Liberties column, Christopher Dunn of the New York Civil Liberties Union writes: In light of Edward Snowden's dramatic revelations about the federal government's sweeping collection of information about the phone calls we make, the emails we send, and the social media we use, the very notion of communications privacy is bordering on quaint naivete. Yet, things can always get worse, and the U.S. Supreme Court recently took two cases that threaten to do just that.
In his Evidence column, Michael J. Hutter, a professor at Albany Law School, writes that a threshold question in applying 'Frye' is whether the principle or procedure that would be the subject of an expert's testimony is "scientific" and if so, whether it is "novel." In 'People v. Oddone,' the Court of Appeals addressed the first part of this question in the context of an expert opinion based on the expert's personal experience.
In his Real Estate Securities column, Proskauer Rose partner Peter M. Fass discusses, in the context of a real estate workout involving a partnership or limited liability company, the tax considerations when a property has liabilities in excess of the tax basis of the property.
In their Government and Election Law column, Jerry H. Goldfeder of Stroock & Stroock & Lavan and Myrna Pérez of the Brennan Center for Justice at NYU School of Law review a bill intended to respond to the U.S. Supreme Court's constitutional critique in 'Shelby County v. Holder' and the recommendations to improve our nation's voting experience released by the Presidential Commission on Election Administration.
Scott Aurnou, an attorney and vice-president of SOHO Solutions, writes that on April 8, both the Windows XP operating system and Microsoft Office 2003 will reach their respective "end-of-life" dates. But the issue is not whether they will still work at 12:01 on April 9 (they will), it's whether they will be so insecure that it would be foolish for an attorney or law office to keep using either of them (they will).
In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier of Kramer, Dillof, Livingston & Moore write: It has never been the rule of this state that a plaintiff seeking to hold a party vicariously liable for the negligence of another is required to sue the person whose conduct is the basis of the liability, yet in recent years some counsel representing hospitals have attempted to obtain dismissals based on a failure to timely sue the treating doctor. This novel legal strategy is misguided.
Kingsley Osei, associate counsel-contracts at the State University of New York, writes: While the Build Design law and START-UP NY program are steps in the right direction, New York still remains with a minority of states that have not enacted comprehensive public-private partnership legislation to deploy innovative and penetrative PPP delivery methods that allow greater private sector participation in the delivery of public projects.
In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison survey recent decisions concerning the use of predictive coding and explore the conflict over the extent to which the core processes of predictive coding are discoverable, including information about the "seed set" used to derive the relevant computer algorithm.
In their White-Collar Crime column, Morvillo Abramowitz partners Robert J. Anello and Richard F. Albert write: Whether a criminal defendant should testify on his own behalf will always be a fraught decision for the defense. But Mathew Martoma's case illustrates how the government can try to launch an attack on a defendant's character regardless of whether he ever takes the stand.
Daniel B. Goldman and Adam W. Braveman of Paul Hastings write: On Jan. 14, 2014, the U.S. Supreme Court decided 'Daimler AG v. Bauman,' an extraordinarily important opinion with respect to general personal jurisdiction over corporations, and one that effectively invalidates 47 years of general jurisdiction law in the state of New York.
In his Criminal Law and Procedure column, Supreme Court Justice Barry Kamins reviews a decision in which the Court of Appeals ruled, in the context of a pretrial motion to reopen a suppression hearing, that the People may not present additional evidence to deny suppression when they had a full and fair opportunity to present their case.
In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas, partners at Weil, Gotshal & Manges, write: Employers frequently seek to prevent unauthorized use of confidential information by enforcing non-competition agreements against ex-employees, but even when there is no such agreement, employers have statutory options. One relatively new theory that employers are asserting in litigation with greater frequency is a federal claim under the Computer Fraud and Abuse Act.
In his Divorce Law column, Alton L. Abramowitz, a senior partner at Mayerson Abramowitz & Kahn, writes: New York courts have repeatedly turned a blind eye to the fundamental right of divorcing parents to fully and properly prepare to confront the evidence that will be presented against them at a custody trial. The rules governing access to forensic reports are restrictive and inconsistent, but proposed legislation attempts to address these shortcomings.
In their International Litigation column, Baker & McKenzie's Lawrence W. Newman and David Zaslowsky use the occasion of the 10th anniversary of the Supreme Court's lone Section 1782 decision to discuss the significant uncertainty that remains concerning an issue spawned by that decision.
Hodgson Russ partner Robert J. McLaughlin discusses the road map created by the governor and the Legislature to bring the "dream" of casino gaming to the Empire State, which many have been waiting more than 40 years for, and when it will occur.
In her Employees in the Workplace column, Outten & Golden partner Wendi S. Lazar writes: Although federal and state legislation have attempted to protect consumers from loss and theft of their data, employees have been left to fend for themselves, and most employees don't understand the implications of using their own devices at work: personal data becomes subject to discovery requests, devices may be remotely wiped, and the employee may be tracked in real time.
Matthew W. Woodruff, a New York City practitioner, reviews three recent Southern District decisions that have now enjoined a customer from proceeding with arbitration against a member of FINRA on the ground that the combination of a merger clause and a forum-selection clause in a contract between the parties "overrides" or "supplants" the customer's right to arbitrate under FINRA Rule 12200.
In their International Criminal Law and Enforcement column, Nicholas M. De Feis and Philip C. Patterson of De Feis O'Connell & Rose write that an increasing number of digital currencies indicates that the concepts, if not the brands, are here to stay, however, bitcoins raise a host of international regulatory and enforcement issues that ultimately may have to be addressed by every government in the world.
Peter N. Freiberg of Denlea & Carton analyzes a recent case in which an injured high school wrestler alleged that a referee failed to stop a match when the wrestlers entered into a potentially dangerous position, and the Second Department decisions that made it clear that the assumption of risk doctrine protects more than school districts.
In their Second Circuit Review, Paul Weiss' Martin Flumenbaum and Brad S. Karp discuss 'United States v. Grimm,' in which the court considered whether routine payments by unindicted co-conspirators pursuant to guaranteed investment contracts constituted overt acts in furtherance of a conspiracy for purposes of the statutes of limitations.
In their Patent and Trademark Law column, Robert C. Scheinfeld of Baker Botts and Parker H. Bagley of Boies, Schiller & Flexner discuss 'Commil v. Cisco,' which may represent a culmination of a broad transformation in the law of induced infringement, albeit one without particular clarity or resolution.
In his Intellectual Property column, Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, writes: Dilution is a complex and often misunderstood area of trademark law. Starbucks and a tiny competitor—the maker of a product called "Mr. Charbucks"—have been fighting over these issues. After 12 years of litigation, the Second Circuit appears finally to have put an end to the controversy and in the process has provided some much-needed guidance for practitioners and the lower courts in this difficult area.
Melvyn B. Ruskin and Natasha A. Moskvina of Ruskin Moscou Faltischek trace the history of arbitration and waiver of class action clauses in the Second Circuit and discuss the stated and hidden reasons behind the enforceability of such clauses.
In his Health Law column, Greenberg Traurig shareholder Francis J. Serbaroli writes: Health care represents one of the largest sectors of New York State's economy. However, unlike other major sectors such as financial services, technology, real estate and media, a large percentage of health care entities are not-for-profit corporations and therefore subject to the sweeping Nonprofit Revitalization Act of 2013.
Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg, writes: It has been the norm, even through the most recent economic crisis, for courts to eschew claims of newly diminished income as the basis for a support award. Of note then is a recent decision where the present financial situation led the court to caution that there was a new economic reality which would have to be accepted by the less monied spouse.