Expert Analysis

Steven M. Christman and Adam C. Calvert

Federal Court Notice Standard in Premises Cases

By Steven M. Christman and Adam C. Calvert |

Steven M. Christman and Adam C. Calvert write: Defendants in personal injury cases sometimes remove a case to federal court because of several advantages: stricter discovery rules, more defense-friendly juries, and expert discovery, to name a few. But one seemingly advantageous reason is often overlooked, particularly by those defending retailers or other premises owners: the defendant-friendly federal court notice standard that applies to summary judgment motions.

Anthony E. Davis

Battle Over Interviewing Corporate Employees Continues

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses New York County Lawyers' Association Formal Opinion 747, which discusses whether and when it may be appropriate for a corporation's attorney to offer representation to current or former corporate employees without violating the rules prohibiting in-person solicitation.

Ilene Sherwyn Cooper

Discovery Motions and the Statute of Limitations

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper reviews recent decisions addressed to the ramifications of a party's failure to timely comply with demands for discovery and the statute of limitations as applied to attorney-client relations.

Jerry H. Goldfeder and Myrna Pérez

Federal Actions Bring Election Matters to the Forefront

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez review two recent developments: a guilty plea in the DOJ's first criminal prosecution for illegal campaign finance coordination, and a decision ordering Governor Cuomo to call a special election six weeks after Representative Michael Grimm resigned.

Richard Strassberg and William Harrington

Collateral Consequences of Individual Liability

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington write: Where CEOs, CFOs, and other executives frequently find themselves as named defendants in federal civil enforcement actions, requiring admissions of wrongdoing in settlement may have broad-reaching consequences, very much akin to a finding of liability after trial in any civil fraud action.

John Higgitt

Avoiding the Conclusory When Preparing Expert Affidavits

By John R. Higgitt |

John R. Higgitt writes: The qualifications of the expert, the facts underlying the opinion, the basis of the opinion, and the opinion itself—these are the essential elements of an expert's affidavit. Given the stakes on a summary judgment motion, counsel must scrutinize her expert's affidavit to ensure that it contains each of these elements.

Montgomery L. Effinger

Winter Premises Liability: Describing the Color of Ice

By Montgomery L. Effinger |

Montgomery L. Effinger writes: Despite the sinister sound of accusations that hidden "black" or "transparent" ice conditions existed on a defendant's premises, use of such words to describe the presence of invisible ice may undermine a plaintiff's ability to establish either constructive or actual notice by limiting the potential for demonstrating a defendant's awareness of a hazardous condition.

Christine A. Fazio and Ethan I. Strell

Fracking Report Concludes More Health Studies Are Needed

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell write: Just before Christmas, the New York State Department of Health released its long-awaited report on the public health effects of hydrofracking, resulting in New York State's highly publicized decision to continue to ban the natural gas extraction process known as high volume hydraulic fracturing.

Michael Rikon

Will Affordable Housing Requirement Effect a Taking?

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon discusses regulatory takings, inclusionary zoning and New York City Mayor Bill de Blasio's pledge to create or preserve 200,000 affordable units of housing in the next decade.

David J. Kaufmann

Franchisors as Joint Employers; Case Law Developments

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann writes: The general counsel of the National Labor Relations Board's charge that McDonald's Corporation is a "joint employer" of its franchisees' employees disregards 50 years of law and business principles. Fortunately, the courts continue to respect the economic realities of franchising and legal precedent reflecting same.

Bridget Rohde and Aaron Tidman

Lessons from the OECD Foreign Bribery Report

By Bridget Rohde and Aaron Tidman |

Bridget Rohde and Aaron Tidman discuss the Organization for Cooperation and Economic Development's first-ever foreign bribery report, with its key findings regarding global enforcement, who is paying bribes and who is receiving them, as well as how companies should use the findings in evaluating and refining their compliance risk assessments.

Peter A. Mahler and Matthew D. Donovan

Complex Questions Addressed in Business Divorce Cases of 2014

By Peter A. Mahler and Matthew D. Donovan |

Peter A. Mahler and Matthew D. Donovan write: In the annals of business divorce litigation, 2014 will go down as the year in which New York courts issued some of the most important and interesting decisions in dissenting shareholder and buyout appraisal proceedings involving closely held corporations.

Peter A. Crusco

Threatening Web Speech and the True Threats Doctrine

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco of the Office of the Queens County District Attorney addresses the First Amendment true threats doctrine, the impact the doctrine has on speech of a threatening nature in general, and web-based speech, in particular.

Martin Flumenbaum and Brad S. Karp

Ruling Broadens Duty of Disclosure in Securities Filing

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp discuss 'Stratte-McClure v. Morgan Stanley,' in which the court concluded as a matter of first impression for this circuit that Item 303 of Regulation S-K imposes a duty of disclosure on a company filing a Form 10-Q which, under certain circumstances, may give rise to liability under Section 10(b) and Rule 10b-5.

Apparel Companies' Filings Follow Drops in Sales

By Edward E. Neiger |

In his Bankruptcy Update column, Edward E. Neiger looks at recent bankruptcy filings in the retail sector, particularly among teen and women's apparel companies. The young adult retail sector continues to experience severe drops in sales and stock prices, as brick-and-mortar retail stores lose consumers to e-commerce and face increasing competition from discount department stores.

Robert Clarida and Robert J. Bernstein

A Sirius Question of Sound Recording Rights

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein discuss a case, potentially momentous for the music industry, over whether the holders of common-law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance of those sound recordings.

Conrad Teitell

Charitable Deductions and Other Adjustments for 2015

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell reviews this year's charitable gift premium rules, tax tables, personal exemptions, standard deductions and other tax provisions.

Joel C. Haims, Jamie A. Levitt and James J. Beha II

Corporation Must Advance Defense Costs Despite Guilty Plea

By Joel C. Haims, Jamie A. Levitt and James J. Beha II |

Joel C. Haims, Jamie A. Levitt and James J. Beha II analyze a recent decision in which the Delaware Chancery Court required a corporation to advance a former director's costs of defending against an SEC insider trading lawsuit, despite the director's guilty plea in a related criminal case.

Marc Ausfresser and Scott Ditman

Applying Tax Rules to Trusts in Real Estate Activity

By Marc Ausfresser and Scott Ditman |

Marc Ausfresser and Scott Ditman discuss a 2014 Tax Court opinion that provided some long-awaited guidance as to the application to trusts of the tax rules limiting losses incurred in passive activities.

George Bundy Smith and Thomas J. Hall

Merger Clauses and Parol Evidence Rule

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: In New York, the existence of a merger clause in a contract appears to have little effect on a court's willingness to admit parol evidence to clarify an ambiguity. But what if a party seeks to use extrinsic evidence, not to clarify an ambiguity, but to establish that a separate agreement exists and must be considered in deciding the dispute under the written contract in question?

'Sweepstake Delusion' May Have Medical Explanation

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes that although victims of fraudulent lottery schemes are often given little sympathy out of a feeling that someone who fails to recognize the obviousness of the scam and cooperates with the perpetrators deserves the misfortune of losing their savings, there is now medical research suggesting that this condition is not a weakness of character but has an organic basis in damage to a specific portion of the brain.

Sanford J. Schlesinger and Ross S. Katz

A Wrinkle on 3-2 Discovery Rule in Surrogate's Practice

By Sanford J. Schlesinger and Ross S. Katz |

Sanford J. Schlesinger and Ross S. Katz write: A recent decision has added an interesting wrinkle that may broaden, at least initially, the scope of one area of the "3-2 rule" in Surrogate's Court: the production of prior wills and codicils of a decedent.

A Critical Look at SEC Insider Trading Policies

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel writes that the contours of the crime of insider trading, which is neither defined nor specifically outlawed in federal securities laws, have been shaped by the courts.

Edward M. Spiro and Judith Mogul

Recurring Challenges to Privilege and Work Product Doctrine

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul analyze three recent decisions that expose some common misconceptions regarding the attorney-client privilege and the work product doctrine and offer valuable guidance on how to establish and preserve those protections.

George M. Heymann

Is the 'Vicious Propensities' Rule Losing its Bite?

By George M. Heymann |

George M. Heymann writes: Ten years ago, the Court of Appeals set the bar for the ability to sue for personal injuries caused by domestic animals, which required a plaintiff to prove that the animal had "vicious propensities" at the time of, or prior to, the incident. In the past decade, there has been an erosion of this strict liability rule trending toward causes of action on the theory of negligence.

Martin A. Schwartz

Police Deadly Force and Section 1983 Litigation

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz writes that the legal principles employed by the Supreme Court last term in 'Plumhoff v. Rickard' often make it very difficult for §1983 excessive force claimants to prevail, and that this is true even in deadly force cases.

Sidney Kess

Developments on Donations of Conservation Easements

By Sidney Kess |

In his Tax Tips column, Sidney Kess analyzes two recent cases illustrating that one of the biggest stumbling blocks to nailing down a charitable deduction for the donation of a qualified conservation easement is the requirement that the transfer be in perpetuity.

Shari Claire Lewis

Tech Tools Are Increasingly Used to Disseminate Notice

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis, a partner at Rivkin Radler, discusses two cases that illustrate how Internet-enabled technology and social media may play a role in satisfying the notice requirements of FRCP 23.

Douglas J. Pepe

Liability Under Alien Tort Statute in the Second Circuit

By Douglas J. Pepe |

Douglas J. Pepe writes: Given the continued state of uncertainty surrounding the question of corporate liability under the Alien Tort Statute in the Second Circuit, it may well be time for the court to address the question head-on, and say what the law is in this circuit once and for all.

Uber Can't Wait: New Liability for Distracted Drivers

By Robert D. Lang |

Robert D. Lang writes that Uber will cost more than a yellow cab, or negotiating a cash deal with an idle black car, but its benefits, at least judged by its popularity, outweigh any drawbacks—unless you are involved in accident caused by an Uber driver's distraction due to the receiving and acknowledging trip requests while still driving.

Harvey M. Stone and Richard H. Dolan

Motion to Vacate Default Judgment Over Service of Process Denied

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan discuss cases in which Judge Joanna Seybert relied on the good faith exception to the exclusionary rule in denying a motion to suppress where the search warrant lacked particularity, Judge Jack B. Weinstein discussed the need for legal assistance in cases brought by pro se plaintiffs and the current efforts to fill that need, and more.

Labor Law §200: Commonly Invoked But Frequently Misunderstood

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot writes: Many of the injured workers who seek recovery under Sections 240 or 241[6] of the Labor Law also plead violations of Section 200 of that law. Much has been written about the so-called "scaffold statute" and §241[6], which imposes vicarious liability for certain Industrial code violations. Yet there has been comparatively little analysis concerning the even more frequently invoked provisions of Labor Law §200.

David M. Barshay

Attorney Fee Provisions in No-Fault Regulations Updated

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay discusses the Department of Financial Services' amendment of the attorney fee provisions of the No-Fault Regulations, which may make prosecution of files on behalf of providers that submit larger claims somewhat more palatable, but will likely have a devastating effect on small providers.

Elliot E. Polebaum and Helene Gogadze

Abusive Reorganization of Investments

By Elliot E. Polebaum and Helene Gogadze |

Elliot E. Polebaum and Helene Gogadze write: It is perfectly legitimate for an investor to seek to protect itself from the general risk of future disputes with a state in which it invests, and to do so by structuring the investment in a way that the investor considers beneficial. However, corporate reorganizations that change the nationality of an investor to manufacture International Centre for Settlement of Investment Disputes jurisdiction can be problematic.

Sarah S. Gold and Richard Spinogatti

Delaware Independent Director Liability in Control Buyout Cases

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti write: In two cases that will be watched closely by corporate law practitioners, the Delaware Supreme Court will consider whether, in the context of a controlling shareholder buyout subject to entire fairness review, independent directors subject to exculpation for duty of care violations must await a fully developed factual record at trial before their liability is determined.

Richard Raysman and Peter Brown

Updates on Data Breach and Anonymous Online Speech Issues

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown discuss recent issues stemming from the disclosure of confidential information in data breaches, as well as "commercial defamation."

Shepard Goldfein and James A. Keyte

FTC Study Signals Fresh Changes to Merger Remedy Negotiations

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte write that retrospective studies of merger remedy orders provide a wealth of information to the conducting agency, but also give businesses the crucial opportunity to interact informally with agencies as the agencies look to identify the market trends that will inform future policy. A new study's scope suggests that the FTC may be considering changes beyond just the divestiture process.

Michael Hoenig

Corporate 'Death' and Attorney-Client Privilege

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: In 1998, the U.S. Supreme Court held that the attorney-client privilege survives the death of the client. However, that case, which dealt with the death of a natural person, did not answer questions regarding survival of the attorney-client privilege when a corporation becomes defunct. Surprisingly, the case law is relatively scant on this issue and clear boundaries have not been set.

John T. McManus

Submetering in Wake of Amendments to Part 96

By John T. McManus |

John T. McManus discusses the new and evolving regulatory landscape of submetering electricity in multifamily residential buildings, focusing on some of the key regulations of which property owners must be aware.

Russell I. Marnell

Lifetime Maintenance: Does It Still Exist?

By Russell I. Marnell |

Russell I. Marnell writes that like alimony, lifetime maintenance is on a path to becoming extinct. Recent decisions seem to signal the end of lifetime maintenance awards except in situations of extreme financial disparity between the requesting party's marital standard of living and single standard of living. One must wonder whether, in fact, the only spouses who can hope for lifetime maintenance are those who are divorcing from extremely wealthy individuals.

Joel Cohen

The Lawyer's Duty to Check Facts

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen discusses the Tawana Brawley debacle of 26 years ago, and current cases involving Alan Dershowitz and Mark Zuckerberg, writing: What is the role of a lawyer when asked to represent a client? Must lawyers "Google" their (prospective) clients to learn "who" they're dealing with—meaning how reliable they're likely to be?

Sharon M. Porcellio

Union Could Not Compel Arbitration Concerning Employee's Discharge

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio writes: Highlighting this quarter's column are three cases that address three very different, but interesting issues: the importance of careful crafting of arbitration agreements, whether an elected official has a property interest in her elected seat, and the pitfall of eleventh-hour motions in cases involving a history of discovery disputes.

John P. Furfaro and Risa Salins

NLRB Update: Significant Rulings for Employers

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins review recent precedent-changing decisions from the National Labor Relations Board that involve standards for deferring NLRB action in favor of arbitration procedures under collective bargaining agreements, the presumption that employees may use their employer's email system to engage in statutorily protected communications about terms and conditions of employment, classifying workers as independent contractors, and more.

John Fellas

Enforcing Foreign Arbitral Awards

By John Fellas |

In his International Arbitration column, John Fellas argues that, when it comes to the hurdles of personal jurisdiction and forum non conveniens, there is no good reason for foreign arbitral awards to be held to a higher standard than foreign judgments.

Steven R. Popofsky

Strategic Non-Payment of Arbitration Fees

By Steven R. Popofsky |

Steven R. Popofsky writes: Often arbitration fees fade into the background without becoming areas of contention, particularly when parties are large and well-funded. However, occasionally the need to pay those fees—and the ramifications when one party chooses not to do so—adds a significant level of complication and provides lawyers an opportunity to take advantage of the system. And whether they do so legitimately or unscrupulously may well be in the eye of the beholder.

Michael J. Hutter

Attorney-Client Privilege: Ambac's New Exception to Waiver

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes: In a recent decision that has caught the attention of the mergers and acquisitions bar, the First Department recognized an exception to the voluntary disclosure/waiver rule, holding under New York's "common interest" rule an exchange of privileged information made among merging entities and their attorneys prior to closing does not destroy the confidentiality status of the exchanged information.

Christopher Dunn

'Serial' Podcast and Disparate Impact: Civil Rights and the Real World

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: Though wildly different, two controversies, a housing discrimination case and a podcast that has explored the investigation into the 1999 murder of a Baltimore high school student, raise a common question: How important are the courts and law to civil rights in the real world?

Gregory Morvillo and Eugene Ingoglia

Impact of 'Newman' in Other Insider Trading Cases

By Gregory Morvillo and Eugene Ingoglia |

Gregory Morvillo and Eugene Ingoglia write that the recent insider trading decision in 'United States v. Newman' has begun to impact cases and individuals beyond its caption, and has raised questions before at least one jurist about guilty pleas already taken in an insider trading matter completely unrelated to 'Newman.'

Peter M. Fass

SEC Proposes Rules to Update Regulation A

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass discusses the SEC's proposed amendments to the public offering rules that would exempt offerings of up to $50 million within a 12-month period, creating two tiers of offerings under Regulation A.

Leslie D. Corwin and Rachel Sims

End of the 'Unfinished Business' Doctrine in New York

By Leslie D. Corwin and Rachel Sims |

Leslie D. Corwin and Rachel Sims discuss the dissolutions of Thelen and Coudert Brothers, and the Court of Appeals' decision that provides guidance to attorneys and law firms with regard to the application of the "unfinished business" doctrine to law firms that dissolve or file for bankruptcy.

Hal R. Lieberman

'Law Firm' Discipline and Other Noteworthy Cases

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman reviews a case that utilized the "law firm" discipline rules, holding the law firm, as distinct from an individual lawyer, liable for professional misconduct; one that involved extensive findings of misconduct involving public corruption; and a third that demonstrated a trend toward leniency in Second Department escrow fund misappropriation cases.

H. Christopher Boehning and Daniel J. Toal

Meta-Discovery Denied: Decision Limits Scrutiny of Methods

By H. Christopher Boehning and Daniel J. Toal |

H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison discuss 'Freedman v. Weatherford International', which involved a party seeking discovery of materials meant to test the sufficiency of the discovery methods used by a responding party.

Thomas A. Moore and Matthew Gaier

Examining Two Significant Court of Appeals Decisions

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier discuss cases involving a man who was injured after a hospital allowed him to leave the emergency room while intoxicated, and long-arm jurisdiction over out-of-state defendants in medical malpractice actions.

Robert J. Anello and Richard F. Albert

Waning Influence of Sentencing Guidelines in White-Collar Cases

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: The U.S. Sentencing Commission has responded to complaints about the Sentencing Guidelines' application by proposing a series of amendments to the guidelines governing economic crimes. Although they appear to be a step in the right direction, the revisions proposed by the commission do not go far enough to reform the white-collar sentencing scheme.

Mark C. Fang

Interactive Process Requirement and 'Reasonable Accommodations'

By Mark C. Fang |

Mark C. Fang writes that an informal interactive process between an employer and an employee with a disability has proven to be a valuable method for resolving requests for reasonable accommodations in employment. But as the New York Court of Appeals has now made clear, beyond the intrinsic value of the interactive process, the failure to participate could have important consequences for the employer should the question ever be raised in court.

Ralph A. Catalano

Holding Funds and Property Under RPC 1.15

By Ralph A. Catalano |

Ralph A. Catalano of Catalano Gallardo & Petropoulos writes: The steps for safely using an attorney escrow account and holding property for others are clearly laid out in Rule 1.15 of the Rules of Professional Conduct (RPC) and its commentary. No lawyer should assume these responsibilities without a thorough understanding of the rule.

Barry Kamins

New York's Fugitive Disentitlement Doctrine

By Barry Kamins |

Barry Kamins of Aidala, Bertuna and Kamins, discusses the development of the fugitive disentitlement doctrine—which permits the dismissal of an appeal where the defendant absconds justice—and the doctrine’s recent expansion to certain civil proceedings, immigration cases, and collateral review of conviction.

Jeffrey S. Klein and Nicholas J. Pappas

Proposed Diversity Standards Under Dodd-Frank

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law Column, Jeffrey S. Klein and Nicholas J. Pappas summarize Section 342 of Dodd-Frank and the proposed standards of the agencies tasked with implementing congressional objectives. They also discuss the first step regulated entities should take in seeking to comply with these proposed standards.

Alton Abramowitz

Should There Be a Presumption That 'Equitable' Is 'Equal'?

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz writes: It is time for the Legislature to take a look at the Equitable Distribution Law and to ask itself whether it is time to enact a presumption of equal distribution of marital assets that puts the burden of proof on the party seeking an unequal division, usually the more economically powerful spouse, rather than on the spouse providing contributions that cannot be measured in dollars alone.

Lawrence T. Kass and Christopher E. Chalsen

'Teva' and Standard of Review for Patent Claim Construction

By Lawrence T. Kass and Christopher E. Chalsen |

Lawrence T. Kass and Christopher E. Chalsen write: High-stakes patent cases often turn on a claim construction and whether it can withstand appeal. For years, the Federal Circuit has reviewed claim construction determinations entirely de novo, without deference. But that standard of review has now been changed.

Nicholas M. De Feis and Philip C. Patterson

Foreign Corrupt Practices: The Global Trend

By Nicholas M. De Feis and Philip C. Patterson |

In their International Criminal Law and Enforcement column, Nicholas M. De Feis and Philip C. Patterson discuss the recent increase in international bribery enforcement. But apart from increasing global risks of investigations and prosecution, bribery imposes economic costs that further weigh in favor of anti-bribery vigilance.

Charlotte A. Biblow

Brownfields Cleanup Program at a Crossroads

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: Given the uncertainty in the Brownfield Cleanup Program resulting from the governor's veto of its extension with its existing generous tax credits, it seems to be an appropriate time to examine whether the BCP actually has boosted brownfield redevelopment throughout the state, or whether the program has been more about the tax credits than the cleanup.

Lawrence W. Newman and David Zaslowsky

Judgment Enforcement Against Foreign Debtors

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky write that when a judgment debtor is foreign and has no ongoing business operations and no visible assets, the usual approach of enforcing a judgment against it by identifying assets and levying on them becomes more challenging. Two recent, related New York decisions illustrate the difficulties in pursuing certain foreign debtors.

Harry Sandick and Julia Stepanova

Proposed Amendments to Fraud Sentencing Guidelines

By Harry Sandick and Julia Stepanova |

Harry Sandick and Julia Stepanova write that on Jan. 9, the Sentencing Commission took a small but productive step in the right direction when it promulgated a series of proposed amendments to the section of the Guidelines that governs sentencing in fraud cases. While the individual impact of these revisions is small, together they amount to a welcome first step.

Sandra Stern

Unique Provisions in New York's Omnibus UCC Bill

By Sandra Stern |

Sandra Stern writes that although the majority of the revisions in the Omnibus Bill modernizing Articles 1 (the overarching Article that provides the general rules for the remaining Articles), 7 (documents of title), and 9 (secured transactions) of the Uniform Commercial Code merely conform New York's UCC to the uniform text, a number are unique to New York.

Martin Flumenbaum and Brad S. Karp

Limiting Scope of 'Class Standing' Doctrine in RMBS Cases

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss a recent decision that resolved two matters relating to residential mortgage backed securities on which district courts have been divided: the scope of the Trust Indenture Act of 1939 and a named plaintiff's standing to assert breach-of-duty claims against an RMBS trustee on behalf of absent class members who had invested in trusts other than those in which the named plaintiff had invested.

Robert C. Scheinfeld

Supreme Court Addresses 'Claim Construction' and 'Tacking'

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld reviews two recent holdings that claim construction may not always be a pure question of law entitled to de novo review, but instead may involve underlying factual findings subject to "clear error" review; and that the issue of whether the use of an older mark in a different manner may be 'tacked on' to the use of a newer one for purposes of determining priority is a factual one for juries.

Ken Strutin

Incarcerative Punishment: The Sentencing Never Ends

By Ken Strutin |

Ken Strutin, director of legal information services at the New York State Defenders Association, writes: While retribution is ever-present, new research, new thinking and new technologies demand revisiting punishments and the punished. So it is that the sentencing begun in the courthouse must never end.

Francis J. Serbaroli

New Anti-Kickback Law 'Safe Harbors' Proposed

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli writes that as our payment systems have moved away from the fee-for-service model, which unfortunately offered the wrong incentives to dishonest or poor quality providers, a kind of Catch-22 has developed whereby certain types of incentive payments and business arrangements that would improve the quality of care and provide needed assistance to indigent patients could actually run afoul of the federal fraud and abuse laws.

Robert S. Kelner and Gail S. Kelner

Wrongful Conviction Cases: An Introduction

By Robert S. Kelner, Gail S. Kelner and Joshua D. Kelner |

In their Trial Practice column, Robert S. Kelner, Gail S. Kelner and Joshua D. Kelner survey several of the most common concepts and issues that arise in cases where a wrongfully convicted individual seeks compensation.

Lee Spielmann

Bringing Nazi Criminals to Justice

By Lee A. Spielmann |

Lee A. Spielmann writes: The passage of time has largely halted prosecutions of those who perpetrated the crimes of the Holocaust. In the United States, the determined effort to expel Nazi perpetrators that began in 1979 has concluded. Its last chapter concerned an Auschwitz guard whose extradition Germany sought but who died this past July.

Jonathan Honig

'Citigroup v. Abu Dhabi Investment': Can Arbitration Be Compelled?

By Jonathan Honig |

Jonathan Honig writes that the Second Circuit, in 'Citigroup v. Abu Dhabi Investment Authority' asked the wrong question in connection with an attempt to enjoin a multibillion-dollar arbitration and a cross-application to compel arbitration. That is, the court asked who should decide issues of res judicata rather than ask what did the parties agree to arbitrate.

Michael Escue

Financial Sector Concentration Limits Become Effective

By Michael T. Escue |

In his Banking column, Michael T. Escue discusses the final rule implementing the financial sector concentration limit required by Section 622 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which may have impacts beyond purely strategic acquisitions.

Glen Banks

Liquidated Damages: Is the Law Changing?

By Glen Banks |

In his Contract Law column, Glen Banks writes that courts will enforce liquidated damage provisions if they were based on a reasonable estimate of the amount of loss that would be caused by a breach of contract, even if the actual loss caused by the breach turned out to be less. A recent decision may signal a change.

Michael I. Rudell and Neil J. Rosini

The Turtles Speed Toward Performance Payments for Pre-1972 Recordings

By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini write: In denying a motion by defendant Sirius XM Radio for summary judgment in a suit over its transmitting of pre-1972 sound recordings, Southern District Judge Colleen McMahon's decision upends settled expectations of who must pay for what in the broadcast music industry.

Arthur Ciampi

The New Year: Time to Review Agreements in a Changing Marketplace

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi reviews some forecasts about the evolving nature of the practice of law and makes suggestions about implementing changes to your firm's partnership agreements and policies to best address them.

Can Government Find a Way Around 'Newman's' Personal Benefit Rule?

By Gary Stein |

Gary Stein writes: "Personal benefit," long considered the 97-pound weakling of insider trading defenses, is now looking much more muscular thanks to the Second Circuit's ruling last month in 'United States v. Newman.' Not surprisingly, federal prosecutors have already begun to explore ways of avoiding Newman's reinvigorated personal benefit rule.

Michael D. Patrick

H-1B Visa Process Begins as Annual Cap Continues to Stir Concern

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes that despite previous congressional and executive agency action, there is a further need to reform immigration law to resolve the lack of available H-1B visas for talented and qualified foreign nationals and to meet the needs of U.S. employers.

James G. Ryan and Hayley B. Dryer

Challenges in Conducting a Proper Investigation

By James G. Ryan and Hayley B. Dryer |

James G. Ryan and Hayley B. Dryer write: It is very likely that most employers, educational institutions, and governmental agencies will eventually face the need to conduct an investigation. When this time comes, there are a series of steps they can and should take in order to conduct a fair, complete and prompt investigation.

Jeremy H. Temkin

Internal Revenue Service Budget Cuts Spell Trouble

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes: While some have hailed IRS budget cuts as a just punishment for an agency that has been accused of unfairly targeting Tea Party organizations, the recent cuts are unlikely to ameliorate problems of unequal enforcement because they deny the agency the resources it needs to audit a fair sample of returns.

Roy L. Reardon and William T. Russell Jr.

Noteworthy Criminal Cases; Sovereign Immunity Issue

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

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss two unusual criminal cases. In one case, the court overturned an almost 40-year-old rule limiting its review of certain discretionary orders denying motions to vacate judgments. In the other case, a highly divided court issued an unsigned memorandum decision determining whether an anonymous tip provided a sufficient basis to find reasonable suspicion for a police stop.

John L.A. Lyddane and Barbara D. Goldberg

Punitive Damages and the Medical Malpractice Claim

By John L.A. Lyddane and Barbara D. Goldberg |

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write: Punitive damage claims remain the rare exception rather than the rule in medical malpractice actions. The likely reason, as the Appellate Division has expressly recognized, is that "[a] doctor in a malpractice case is ordinarily not an actor who intends to inflict an injury on his patient."

Eric I. Wrubel

Is My Child Mine? Parentage for Same-Gender Married Couples

By Eric Wrubel |

Eric Wrubel writes: Notwithstanding the U.S. Supreme Court's Windsor decision and New York State's passage of the Marriage Equality Act, same-gender married couples with children in New York face daunting challenges when their marriages end. In the absence of a statute permitting a de facto parent from seeking custody and visitation rights, courts are being forced to terminate parent-child relationships in direct contravention of the best interests of those children.

Sidney Kess

Three After-Tax Savings Programs With Tax Advantages

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: Under the current tax system, most savings programs, such as IRAs, are incentivized by tax deductions for contributions. However, there are three important savings vehicles, one of which is new, that do not hinge on deductions for contributions; they rely on tax breaks for withdrawals and offer other benefits.

Patrick M. Connors

Use of Affidavits on CPLR 3211(a)(7) Motion

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors writes: When a defendant makes a pre-answer motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action, what must the plaintiff include in her response to defeat the motion? Are evidentiary affidavits required to support the allegations of the complaint, or is it sufficient to simply rely on the detailed contents of the pleading? Unfortunately, there are no clear answers in this realm.

Scott D. Locke

Standard Essential Patents and Damages

By Scott D. Locke |

Scott D. Locke discusses a recent case in which the Federal Circuit considered how to calculate reasonable and nondiscriminatory royalty rates for standard essential patents.

Stephen M. Kramarsky

Crashed Hard Drives: When in Doubt, Don't Throw It Out

By Stephen M. Kramarsky |

In his column, Stephen M. Kramarsky discusses 'Dorchester', which presented the SDNY with a question of first impression: May a litigant dispose of a hard drive that might contain relevant, discoverable information if that hard drive has "crashed?" If not, what is the appropriate sanction for doing so?

Justin Y.K. Chu and Leah Quadrino

Fiduciary Exception to Privilege in Law Firm Communications Upheld

By Justin Y.K. Chu and Leah Quadrino |

Justin Y.K. Chu and Leah Quadrino write that last month, the Commercial Division in Manhattan broke with a nationwide trend among state courts, applying what is sometimes referred to as a "fiduciary exception" to the attorney-client privilege to permit a former client to take discovery relating to otherwise confidential internal communications between a lawyer and his firm's general counsel.

E. Leo Milonas and Frederick A. Brodie

Business Judgment Rule, Privilege, Child Support, Animal Rights

By E. Leo Milonas and Frederick A. Brodie |

In their Appellate Division Review, E. Leo Milonas and Frederick A. Brodie summarize decisions from the last quarter of 2014 involving a shareholder challenge to a fashion house's going-private transaction, the common interest doctrine, the unauthorized use of a credit card number, the application of the "fugitive disentitlement doctrine" in child support cases, the the writ of habeas corpus for animals, and more.

Thomas E.L. Dewey

Give Consideration to Income Tax When Negotiating a Settlement

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey analyzes a recent First Department decision that demonstrated the importance of considering tax consequences when negotiating settlements concerning a buyout of shares, and the associated considerations when drafting any accompanying release provisions.

Lewis R. Clayton and Eric Alan Stone

Lanham Act Decisions; Profits and Obviousness in Patent Law

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone review recent Lanham Act decisions addressing the evolving post-eBay standards for granting an injunction, the distinction between advertising and protected statements of scientific opinion and the interplay between copyright and false endorsement law where an advertisement includes unauthorized music.

Louis F. Eckert and Bari Shinbaum

Calculating and Defending Measure of Property Damages

By Louis F. Eckert and Bari Shinbaum |

Louis F. Eckert and Bari Shinbaum emphasize the importance of the party defending a case alleging damages to one's property to consider all available measures of damages available by law to determine the most cost-effective approach to making the injured party whole, without allowing for a windfall.

Michael B. Gerrard

New York Environmental Legislation and Regulations in 2014

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard writes: Governor Andrew Cuomo signed new laws in 2014 regarding climate change adaptation, invasive species, chemical regulation, wildlife, and hazardous substances. However, there was no comprehensive legislative reform of the Brownfield Cleanup Program.

Kathleen A. Scott

Basel Committee Proposes Changes on Capital and Risk

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott discusses the highlights of the Basel Committee's proposed changes to the standardized approach for credit risk, in response to its concerns that there is a large variability in how asset risk weights are being calculated by banks.

Steven Pounian and Justin T. Green.

AirAsia Flight 8501 Disaster: Applying International Conventions

By Steven Pounian and Justin Green |

In their Aviation Law column, Steven Pounian and Justin Green write: It will be some months before we learn what caused Flight 8501 to crash. It is not too soon, however, to examine the different laws that may govern the rights of the victims' families against AirAsia.

Sue C. Jacobs

Two Interesting Appellate Decisions Involving Attorneys

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs reviews recent holdings that the failure to appeal a lower court decision in a legal malpractice action does not bar the suit unless the client was likely to have succeeded on the appeal and that a law firm in a personal injury matter was entitled to an additional percentage of the judgment after a successful appeal.

Kathryn Barcroft

Addressing Employer Responsibilities to Pregnant Workers

By Kathryn Barcroft |

Kathryn Barcroft discusses 'Young v. United Parcel Service,' which was argued before the Supreme Court on Dec. 3, 2014, and the question of whether a company that provides work accommodations to non-pregnant employees with work limitations must also provide work accommodations to pregnant employees who are "similar in their ability or inability to work."

Richard Raysman and Peter Brown

Analyzing Recent Decisions of Software Audit Disputes

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown explore when a software audit right will necessitate equitable relief for the auditor and how one court decided that an unaffiliated third party should conduct a software audit as a means of resolving a contract and trade secrets dispute.

Shepard Goldfein and James A. Keyte

Wrapping Up an Active 2014

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte write: The year 2014 was an active year in antitrust and competition law, both for governmental enforcement and private litigation. Governmental regulators continued to pursue a pattern of aggressive antitrust enforcement, ranging from merger challenges to criminal investigations. With respect to private litigation, key antitrust concepts continued to play out in federal district and appellate courts regarding the international reach of domestic antitrust law, liability for manipulating global financial benchmarks and the legality of reverse-payment settlement agreements.

Milton Springut

High on IP: Marijuana-Related Intellectual Property Law

By Milton Springut |

Milton Springut writes: The increasingly friendly legal environment for marijuana use has attracted significant business and investor interest in exploiting what promises to be a substantial revenue stream. This raises the issue of what type of intellectual property can be used to protect such business interests. To a great extent, IP protection for such business is no different than for any other business. However, the indeterminate state of the legality of marijuana has affected intellectual property law in some unexpected ways.