Expert Analysis

David M. Barshay

Court of Appeals Addresses Plaintiff's Prima Facie Burden

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay discusses 'Viviane Etienne Medical Care v. Country-Wide Ins. Co.', where the Court of Appeals held that the plaintiff, a medical provider office, demonstrated "prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer."

Theodore W. Ucinski III and Gary A. Marshall, Jr.

Trench Collapses: A Caveat to Defense Counsel

By Theodore W. Ucinski III and Gary A. Marshall, Jr. |

Theodore W. Ucinski III and Gary A. Marshall, Jr. write: Because trench collapse cases have for so long been beyond §240(1), plaintiffs have not yet pushed the issue on appeal as it is assumed to be a "lost cause." But the Court of Appeals' 'Runner' decision set a standard that could open the door to §240(1) liability where a plaintiff is injured by falling debris when a brace failed or was not installed in the first instance.

Samuel Estreicher and Kristina A. Yost

'Collins v. MTA' Deference Narrowed for Agency Bias Findings

By Samuel Estreicher and Kristina Yost |

In their Arbitration column, Samuel Estreicher and Kristina Yost review a recent decision in which the Second Circuit ruled that the summary judgment hurdle discrimination plaintiffs have to overcome in the face of a prior arbitration award upholding a termination does not apply where the plaintiff's discrimination claims had been dismissed, after hearing, by the New York State Division of Human Rights.

Jerry H. Goldfeder and Myrna Pérez

Making Sense of the Bronx 'Switcheroo'

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: The "switcheroo" between Bronx District Attorney Robert Johnson and former Appellate Division Associate Justice Darcel D. Clark no doubt has many people, lawyers included, scratching their heads. Putting aside the political aspects of these events, an explanation is in order.

Thomas A. Moore and Matthew Gaier

Physician Liability From Collaborative Arrangements

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write: As the practice of medicine and the provision of health care continue to evolve, it has become increasingly common that diagnosis, care and treatment are provided by other health-care professionals, such as nurse practitioners and midwives, who are required to collaborate with physicians. But that collaboration can lead to liability for physicians who fail to provide proper supervision or oversight.

Robert J. Anello and Richard F. Albert

Prosecuting Individuals for Corporate Misconduct

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: Move over Holder, Thompson, McNulty, and Filip and make room for Yates. Taking its place in the parade of guidelines issued by top DOJ leadership on the topic of prosecuting business organizations comes "Individual Accountability for Corporate Wrongdoing," setting forth six steps to be taken in the investigation of corporate misconduct in order to "fully leverage [the department's] resources to identify culpable corporate cases."

H. Christopher Boehning and Daniel J. Toal

E-Discovery Competence of Counsel Criticized in Sanctions Decision

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison discuss an Ethics Opinion of the Standing Committee on Professional Responsibility and Conduct of the State Bar of California, and how it was cited in a recent federal decision from California that severely criticized and imposed sanctions against counsel and client for discovery misconduct.

David A. Berger and Vera Zolotaryova

Protecting Settlement Negotiations With Communications Agreements

By David A. Berger and Vera Zolotaryova |

David A. Berger and Vera Zolotaryova write that practitioners often mistakenly assume that settlement communications are entirely off limits if the dispute is not settled and litigation ensues. By incorporating protections routinely afforded to parties in mediation into an appropriate settlement communications agreement, parties may facilitate more productive discussions while ensuring that their communications cannot be used for any purpose should settlement not be reached.

Jeffrey S. Klein and Nicholas J. Pappas

New Challenges to Independent Contractor Classifications

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas write: The use of independent contractors has been a staple of many companies' staffing models for years. These workplace arrangements are facing renewed scrutiny from government agencies and the courts. Two recent decisions involving the transportation industry highlight the perils of these tenuous classifications, which offer a cautionary tale that extends beyond this particular industry.

Glen Banks

Justifiable Reliance and Sophisticated Parties

By Glen Banks |

In his Contract Law column, Glen Banks analyzes the Court of Appeals' decisions in 'ACA Financial Guaranty v. Goldman Sachs & Co.', where it addressed whether a contention of a lack of justifiable reliance could be the basis to dismiss a fraud claim at the pleading stage. The court's analysis on what was necessary to adequately allege justifiable reliance seems less stringent than what the court articulated a few years ago.

John P. Furfaro and Risa Salins

Unpaid Intern Update

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins analyze recent Second and Eleventh Circuit rulings that provide guidance for unpaid internship programs, particularly where the programs are offered in connection with a related academic program.

Christopher Dunn

The Pope, Invoking God and New York Courtrooms

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: Last week's government-papal engagement refocused attention on a long-standing concern of mine about an invocation of God found throughout New York's judicial system. Every time I appear in a courtroom with the words "In God We Trust" on the walls behind judges' benches, I am troubled by the suggestion of divine oversight of the judiciary.

Brian P. Heermance and Christopher P. Keenoy

Legal Malpractice—Analysis and Defense

By Brian P. Heermance and Christopher P. Keenoy |

Brian P. Heermance and Christopher P. Keenoy write: Litigating a legal malpractice case is generally more complex than a simple tort action but, at its core, is governed by many of the same principles. The starting point is to simply examine the elements of any negligence claim—duty, breach, causation, and damages.

Michael J. Hutter

Impeachment of Witnesses and Out-of-Court Hearsay Declarants

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter discusses two issues arising under New York law governing impeachment: the ban on the use of extrinsic evidence that contradicts the witness's testimony on a collateral matter, and impeachment of a hearsay declarant whose statement is admitted into evidence pursuant to a hearsay exception.

Jeremy M. Creelan and Kate T. Spelman

Ascertaining the Requirements for Ascertainability Under FRCP 23

By Jeremy M. Creelan and Kate T. Spelman |

Jeremy M. Creelan and Kate T. Spelman write: Ascertainability has long been recognized as an implied requirement for class certification. But the parameters of the ascertainability requirement have recently become a hot button issue in the certification of consumer class actions, particularly with respect to low-cost consumer goods.

Michael I. Rudell and Neil J. Rosini

Court Affirms Producer's Film Ownership Absent Work-for-Hire

By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini write that the focus of attention on the subject of film authorship (and ownership) shifted east this summer when a Second Circuit panel unanimously decided that a production company owned the contribution of a director to a film in the absence of either joint authorship or a work-for-hire agreement. The court generally followed the trail blazed by the Ninth Circuit in 2014 and earlier this year, but in some respects went beyond it.

Gerald M. Levine

Safe Harbor for Service Providers Under Anticybersquatting Act

By Gerald M. Levine |

Gerald M. Levine analyzes two lawsuits that sought to hold, the largest registrar in the United States with more than 60 million domain names under management, liable for contributory or secondary infringement rather than "direct" cybersquatting under the under the Anticybersquatting Consumer Protection Act.

Steven V. Treglia

Federal Trade Commission's Cybersecurity Authority Upheld

By Stephen Treglia |

In his E-Communications column, Stephen Treglia discusses the much-awaited Third Circuit decision in 'FTC v. Wyndham Worldwide' and writes that while the ultimate holding may not be very surprising, the expansive extent to which the court sided with the FTC requires close attention.

Ilene Sherwyn Cooper

Summary Judgment in the Surrogate's Court

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: Although in years past, summary judgment in Surrogate's Court proceedings was rare, today, summary relief has become a welcome means for disposing of issues or a matter in its entirety. Of late, this momentum has continued as Surrogate's Courts have been inclined to grant summary relief in proceedings involving the elective share, as well as the judicial settlement of a fiduciary's account.

Matthew J. Herrington and Michael C. Miller

Judiciary Law §487: Potency of Claims Has Grown

By Matthew J. Herrington and Michael C. Miller |

Matthew J. Herrington and Michael C. Miller write: Although cases and success rates for claims invoking the attorney misconduct statute have risen—even doubled—over the past five years, there appears to be no change in the severity of misconduct required for an actionable claim. Given the clarification in 2009's seminal 'Amalfitano v. Rosenberg' that even attempted deceit was actionable, the post-Amalfitano consistency in the severity standard is arguably surprising and provides some comfort.

Elizabeth McNamara and Samuel M. Bayard

'Lenz': Can a Machine Consider Fair Use?

By Elizabeth McNamara and Samuel M. Bayard |

In their Media Law column, Elizabeth McNamara and Samuel M. Bayard write that in 'Lenz v. Universal Music Corp.', the Ninth Circuit made clear that a copyright owner need only make a "subjective good faith" evaluation of fair use before sending a takedown notice, not an objectively reasonable one. One of the more important practical questions that remain after the decision is whether copyright owners can use fully automated processes to police their copyrights online given Lenz's directive to "consider fair use."

Sidney Kess

Changes in Dealing With the Internal Revenue Service

By Sidney Kess |

In his Tax Tips column, Sidney Kess reports on several important changes impacting relations between the IRS and taxpayers: the termination of the online Get Transcript service that was the basis of a data breach along with other fallout from the hacking, a new penalty relief program for late filers of Form 5500-EZ, and a new law reversing a Supreme Court ruling on the statute of limitations for the IRS to begin an audit.

Arthur J. Ciampi

Variations on the Theme of 'Unfinished Business'

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi writes that despite the demise of the application of "unfinished business" to hourly matters, a decision issued this spring by U.S. District Judge Colleen McMahon presents a somewhat inventive variation on the "unfinished business" theme concerning which law firms and their partners should be aware.

Lawrence W. Newman and David Zaslowsky

When Arbitrators Stray: Ex Parte Communications

By Lawrence W. Newman and David Zaslowsky |

In their International Dispute Resolution column, Lawrence W. Newman and David Zaslowsky write: When practitioners and scholars speak, in articles and seminars, about corruption in international arbitration, they are most often referring to bribery on the part of the parties in obtaining government contracts. Only rarely does the subject of wrongful conduct by arbitrators come up. But recently, a well-known international arbitrator appointed to a panel in a dispute between Croatia and Slovenia was revealed to be discussing the case with the agent of Slovenia.

Milton Springut

Cybersecurity Concerns Impact IP Strategies and Assessments

By Milton Springut |

Milton Springut writes: Cybersecurity is of significantly increasing concern, both to businesses and government. Much of the expert advice on how to analyze and bolster cybersecurity suggests major involvement of the business' management, and overlaps with assessment of the business' intellectual property positions and strategies. Such overlaps suggest that significant synergy and efficiencies can be achieved if cybersecurity and intellectual property efforts are coordinated.

Charlotte A. Biblow

Court Ruling Is Road Map for Approval of Solar Energy Farms

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: New York's executive and legislative branches as well as state regulators are promoting the use of solar energy through a variety of laws, regulations and incentives. Now, the state's judicial branch has weighed in, with a decision that is likely to be used as a road map under SEQRA for entities interested in creating solar energy farms in New York.

Ellen H. Greiper and Marvin N. Romero

Stormy Weather: an Analysis of Snow and Ice Defenses

By Ellen H. Greiper and Marvin N. Romero |

Ellen Greiper and Marvin N. Romero write: While property owners are still basking in the glow of a receding summer, we thought it an opportune time to address a defense that they can utilize in personal injury actions brought due to snow and ice conditions—the "storm in progress defense."

Martin Flumenbaum and Brad S. Karp

The Second Circuit in the Supreme Court

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp conduct their 31st annual review of the circuit's performance in the U.S. Supreme Court over the past term—a fractious term that presented the most dissenting opinions in decades and fewer unanimous opinions than in many years—and discuss the Second Circuit decisions scheduled for review during the new term.

Patrick M. Connors

Article 16: the Rubik's Cube of the CPLR

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors writes that CPLR Article 16, which adjusted the doctrine of joint and several liability, is now stumbling along through its 30th year, and many questions and disputes surrounding its application remain. One thing is certain, however. Those lawyers who have worked diligently to understand and invoke Article 16's provisions have gained a significant advantage for their clients in litigation.

Robert S. Kelner and Gail S. Kelner

Liability for Negligent Entrustment of Vehicles

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner write that while in many cases it is sufficient to hold a vehicle owner statutorily responsible under VTL §388 for loaning his or her vehicle to an unfit driver, there may be occasions where there is an adequate foundation for the common law claim of negligent entrustment, which may allow proof to be introduced at trial as to the dangerous propensities of the operator not admissible under §388.

Francis J. Serbaroli

Court Upholds False Claims Act Suit Over Late Repayments to Medicaid

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli analyzes a recent federal court decision involving the Affordable Care Act's requirement that health care providers identify and return overpayments of Medicare and Medicaid funds within 60 days or face penalties under the False Claims Act. The court's narrow interpretation of the 60-day requirement places renewed emphasis on the importance of prompt identification and refunding of any Medicare or Medicaid overpayments, whether or not they are the provider's fault.

Stephen M. Kramarsky

Reviewing the CFAA: Second Circuit Clarifies Claim Accrual, Limitation

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky discusses a recent Second Circuit decision that offers an opportunity to examine the Computer Fraud and Abuse Act, its function and limitations, and its utility as a tool for protecting electronic assets.

Ashwani Prabhakar

Risk and Rewards: Contingency Fees in Surrogate's Court

By Ashwani Prabhakar |

Ashwani Prabhakar writes: While most practitioners rarely worry about the contingency fee arrangements they have with their clients, Surrogate's Court practitioners should be aware of the potential vulnerabilities of such arrangements.

Robert C. Scheinfeld

The Final Word on Divided Infringement!

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes that the Federal Circuit, hearing the call of the Supreme Court, has answered the question of when the acts of one person or entity are attributable to another such that "a single entity is responsible for infringement."

Shepard Goldfein and James A. Keyte

Section 5 Guidelines (Finally), and a Commissioner's Departure

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: August was a busy month for the Federal Trade Commission's Bureau of Competition as it released long-awaited guidance on a key provision of the FTC Act and, not long after, one of the bureau's few Republican commissioners announced his resignation.

Maryam Jazini Dorcheh

Legal Implications of the Iran Deal on U.S. and Foreign Businesses

By Maryam Jazini Dorcheh |

Maryam Jazini Dorcheh writes: Perhaps surprising to some, the historic accord reached between Iran and the E3/EU+ 31 countries will have only limited impact on U.S. businesses, as the main relief of U.S. sanctions will be focused on non-U.S. Persons. Foreign businesses will have few restrictions and will be well positioned to take advantage of Iran's almost untapped market.

Joseph E. Bachelder III

Clawback Rule Proposed by Securities and Exchange Commission

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III writes that the SEC's proposed rule, issued in July, reaches much farther than existing clawback practices and, once it is finalized, many senior level executives of major corporations will, for the first time, face the risk of "no-fault" clawback of part of their compensation.

Stephen Kass

Mandatory Arbitration of International Environmental Claims

By Stephen L. Kass |

In his International Environmental Law column, Stephen L. Kass writes that the the Chevron saga, a 25-year battle over the environmental, legal and political issues arising over oil exploration in Ecuador, has now resurfaced in a way that sheds important light on the mandatory arbitration provisions of both existing bilateral investment treaties and, more importantly, the proposed Trans-Pacific Partnership.

Walter M. Egbert, III and Scott E. Kamholz

Good, Fast Certainty: The Case for Patent Office Litigation

By Walter M. Egbert, III and Scott E. Kamholz |

Walter M. Egbert, III and Scott E. Kamholz write: A new form of patent litigation enables a company to get a fast and reliable decision on the validity of a patent for a fraction of the cost of a district court case.

Michael D. Patrick

Defining Crimes Involving Moral Turpitude

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: While it is understood that those seeking admission to the United States must be held to certain standards, when it comes to criminal issues, that standard is not always clearly defined.

Jeremy H. Temkin

Below-Guidelines Sentences for Tax Defendants

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin considers the continuing trend toward below-guidelines sentences in tax cases generally and in cases arising out of undisclosed offshore accounts, cases which are especially ripe for substantial downward variances based on individuals' unique circumstances and the effective immunity granted to tens of thousands of similarly situated taxpayers under four Offshore Voluntary Disclosure Programs.

Anita Bernstein

Avoidable and Actionable Errors by Personal Injury Lawyers

By Anita Bernstein |

Anita Bernstein examines legal malpractice claims from the past five years of Appellate Division cases to show the lapses of diligence, expert witness errors and failures to communicate that caused clients to forfeit the value of their claims, and gave them the chance to recover damages from their attorneys.

Michael Hoenig

Surprising Revelations on Experts and Contingent Fees

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: What starts out as a seemingly simple general rule—no contingency fees for experts—actually masks some subtleties and questions that warrant litigators' attention.

John L.A. Lyddane and Barbara D. Goldberg

New York's Flaws in Measuring Damages for 'Loss of Chance'

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

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg discuss cases from other jurisdictions that highlight the flaws in New York's current approach of allowing recovery for the loss of a "substantial possibility" of a cure or better outcome, arguing that if recovery in these cases is to be allowed, the proper compensation to the plaintiff should be the dollar amount representing the limited opportunity that was lost.

Elliott Scheinberg

CPLR 5511: Aggrievement Following a Successful Child Custody Award

By Elliott Scheinberg |

Elliott Scheinberg writes: Assuming an attorney-for-the-child declines to pursue an appeal of a custody order, may a custodial parent who was granted the full relief sought and therefore is not aggrieved, appeal and argue, for the first time, that the court erred in failing to have further narrowed its award to a noncustodial parent; the foundation of the argument being that, by not having looked beyond the demand, the court did not fully exercise its role of parens patriae on behalf of the child?

Ken Strutin

Death in Custody: The End of Carceral Confinement

By Ken Strutin |

In his Criminal Law column, Ken Strutin of the New York State Defenders Association writes: If we reverse engineered the realities of incarcerative punishment, they would bear no resemblance to the sentence imposed by the court. So it is that laws preoccupied with the prison sentence ignore the prison experience.

Kathleen A. Scott

International Guidelines on Addressing Bank Weakness

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott of Norton Rose Fulbright compares the general supervisory tools U.S. bank regulators have to identify and address weakness at U.S. banking offices of non-U.S. banks (branches and agencies) to the "Guidelines for identifying and dealing with weak banks" recently issued by the Basel Committee of the Bank for International Settlements.

Rupert M. Barkoff

Ruling in Canada Places Heavy Obligations on Franchisors

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff discusses the battle being waged in Canada between Dunkin’ Donuts franchisees and their franchisor. He writes: The essence of the franchisees’ claim was whether the franchisor had fulfilled its obligations to its franchisees—a simple issue, it would appear. However, that turned out not to be the case.

Nicholas A. Smith and Daniel White

Data Breach Liability and Outsourcing Relationships

By Nicholas A. Smith and Daniel White |

Nicholas A. Smith and Daniel White discuss the Third Circuit’s decision “Federal Trade Commission v. Wyndham Worldwide Corporation," where the court affirmed a district court decision upholding the FTC’s authority to regulate corporate cybersecurity and fine corporations for unfair and deceptive practices resulting from inadequate cybersecurity. The authors highlight the decision’s potential impact, and several key considerations companies should keep in mind when structuring their outsourcing relationships in light of the ruling.

Julian D. Ehrlich

Consistency on Sole Proximate Cause Falls Flat

By Julian D. Ehrlich |

Julian D. Ehrlich, Senior Vice President Claims for Aon Construction Services Group writes: Until there is agreement on whether sole proximate cause is a jury question, more split decisions, reversals, and appeals can be expected along with an acute uneasy sense that outcomes are determined by the draw of the judge or panel.

C. Raymond Radigan and Jennifer F. Hillman

Using a Power of Attorney To Conduct Litigation Strategy

By C. Raymond Radigan and Jennifer F. Hillman |

C. Raymond Radigan and Jennifer Hillman discuss some of the practical issues and concerns that may occur in the context of using a power of attorney to conduct litigation strategy, or how to proceed when there is no power of attorney in place.

Joseph Lipari

'Carr' a Narrow Victory For Nonresident Taxpayers

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari of Roberts & Holland discusses the recent case 'Patrick J. Carr,' where New York State attempted to tax the income of a nonresident for legal work he performed outside New York on the grounds that his income was attributable to his New York law license.

Harvey M. Stone and Richard H. Dolan

Section 1983 Suit Proceeds; Jury Verdict in Employment Case Stands

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan of Schlam Stone & Dolan report on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York.

Bohdan S. Ozaruk

Basics of the Securities and Exchange Commission Investigative Process

By Bohdan S. Ozaruk |

Bohdan S. Ozaruk, of counsel to Jones Morrison, analyzes the basics of the SEC investigative process and writes: The process can lead to civil lawsuits, criminal indictments, and all manner of collateral consequences. And where there appears to be real indicia of fraud or wrongdoing, along with significant money lost or at risk, don’t bet the farm that the investigation will be closed without action.

Andrew Lavoott Bluestone

After 'Grace': Is There a New Element to Establish in Legal Malpractice?

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone discusses a new and unprecedented rule that if an appeal of a malpractice event was reasonably likely to succeed, it must have been taken or the legal malpractice case is waived.

Michael B. Gerrard

Supreme Court Ruling on Mercury Shows Little Deference to EPA

By Michael B. Gerrard |

On June 29, 2015, the U.S. Supreme Court struck down an EPA rule on mercury from power plants. This column discusses the background and context of the case, "Michigan v. EPA," noting that the case is "less significant for its effect on mercury emissions than for what it says about the court's deference to EPA in cases of statutory ambiguity."

Richard Roberts.

Fraud Claim Against Maker of Body Armor Poised for Trial

By Zoe Tillman |

The U.S. Department of Justice's decade-old fraud case against a Japanese textile company that supplied material for bulletproof vests bought by law enforcement agencies is one step closer to a trial.

Lewis R. Clayton and Eric Alan Stone

Federal Circuit Develops Law From Supreme Court Patent Rulings

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone report on two important patent decisions from the Federal Circuit clarifying how that court will implement recent U.S. Supreme Court patent decisions regarding divided infringement and indefiniteness, along with two appellate Lanham Act cases, one addressing a district court's discretion to cancel a trademark and the other recognizing a cause of action for contributory false advertising.

Sanford J. Schlesinger and Ross S. Katz

Issues of Liability for Estate Planners in a Post-'Schneider' World

By Sanford J. Schlesinger and Ross Katz |

Sanford J. Schlesinger and Ross Katz write: It has been five years since the New York Court of Appeals released its landmark decision in 'Schneider v. Finmann', triggering concern among some trusts and estates practitioners that the wall of strict privity between client and attorney was crumbling. While the post-Schneider world in New York has been relatively quiet, two other jurisdictions have recently addressed cases involving the liability of estate planners in connection with testamentary instruments they drafted on behalf of a decedent.

Anthony E. Davis

Legal Ethics 'Through The Looking Glass'

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis writes that all too often the ethics opinions that expound on the meaning and proper application of the Rules of Professional Responsibility—and sometimes the rules themselves—seem to have the predominant effect of making the lives of lawyers and the practice of law as far removed from everyday reality as possible.

Ben Rubinowitz and Evan Torgan

Attacking the Electronic Medical Record

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write that a careful look at electronic medical records often reveals inaccuracies that not only adversely affect patient care, but also serves to undermine the integrity of the entire record. To the extent that the medical record contains false or inaccurate information, it is not enough for the trial lawyer prosecuting a medical malpractice case to expose a limited error. The goal should be to attack in such a way as to show that the entire record is untrustworthy.

Brian M. Feldman

Health Care Overpayments and Reverse False Claims

By Brian M. Feldman |

Brian M. Feldman analyzes a recent decision that concerns the most elusive provision of the False Claims Act, its "reverse false claims" clause, and is the first to construe the report-and-return provision of the ACA.

Richard Raysman and Peter Brown

Confronting Complicated Issues Under State Cyberstalking Law

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown discuss recent developments in New York law with respect to judicial attempts to adjudicate vexing questions that arise subsequent to acts of cyberstalking.

Evan H. Krinick

Denying Coverage Where Fraud Occurred

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick writes that historically, an insurance company's right to cancel an automobile insurance policy for fraud has been somewhat more limited than a life or property insurance policy where a material misrepresentation was made at procurement. Recently, though, courts have been willing to treat automobile insurance fraud—in particular, no-fault insurance fraud—like other kinds of fraud and, even more recently, like other serious violations of law.

Stephen Bergstein

Deferring to Juries in Credibility, Factual Disputes

By Stephen Bergstein |

Stephen Bergstein writes: Two recent cases by the Second Circuit remind us that the jury reigns supreme in hotly contested civil rights cases where the legal standard invites a factual-balancing test. One case alleges that two New York City police officers used excessive force against an Occupy Wall Street protester, the other sustains a hostile work environment verdict.

John Rapisardi and Joseph Zujkowski

Attention Lenders: Liens May Not Be as Secure as You Thought

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write that a secured creditor's "participation" in a reorganization, one of the requirements for extinguishing a prepetition lien through a chapter 11 plan, has continued to perplex both bankruptcy courts and practitioners in the 20 years since 'In re Penrod' was issued. A new decision does not directly address what level of creditor participation is necessary, but shows the risks of refusing to participate.

Timothy M. Tippins

Maintenance Law Changes to DRL §248: Fluffing the Dodo

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes that a provision allowing the court discretion to modify support where a recipient-wife cohabits with another man in a non-marital relationship and holds herself out as married to the cohabiter has been so narrowly construed that such modifications are virtually never granted. A new decision presents an innovative interpretation designed to restore meaning to the statute.

Richard Siegler and Eva Talel

Collecting Delinquent Payments From Apartment Owners

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write: Given the heightened regulation of debt collection practices in recent years, the recurring problem of collecting delinquent maintenance or common charge payments may present challenges.

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

The Three Stages of Issue Preservation

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. review some of the requirements for preservation within each stage: pre-trial, during trial and post-verdict.

Geoffrey L. Berman and Daniel J. Stermer

Non-Bankruptcy Alternative: Assignments for Benefit of Creditors

By Geoffrey L. Berman and Daniel J. Stermer |

Geoffrey L. Berman and Daniel J. Stermer write: With the costs of a chapter 11 filing rising and bankruptcy courts becoming less desirable for small to middle market companies in financial distress, insolvency counsel should revisit non-bankruptcy alternatives available to their clients, such as an assignment of all of a company's assets under state law for the purpose of liquidation and satisfaction of creditors' claims.

Elkan Abramowitz and Jonathan Sack

Truthful Statements and Criminal Liability for Off-Label Marketing

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write: While off-label prescribing is lawful and sometimes ethically necessary for treatment, the FDA and DOJ have treated off-label marketing of drugs by pharmaceutical companies as a serious offense, a theory of criminal liability that bears similarity to other doctrines of white-collar crime used for highly assertive prosecutions until a court steps in to articulate clearly how the government may have overstepped legal bounds.

Mark A. Berman

Medical Malpractice E-Discovery, Preservation and Privilege Logs

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman discusses recent decisions addressing medical malpractice e-discovery (including patient emails and text messages); privilege logs identifying emails allegedly protected from disclosure; and storage of ESI in the cloud, among other issues.

Douglas J. Pepe

Seeking Discovery for Use in Foreign Proceedings Under §1782

By Douglas J. Pepe |

Douglas J. Pepe analyzes the Second Circuit's recent holding that a litigant's subjective intent to initiate a foreign action is not enough to seek discovery under §1782, an application must be supported by "objective indicium" that a foreign action will be brought.

Richard Strassberg and William Harrington

The False Claims Act and Corporate Integrity Agreements

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington write: Time and time again, False Claims Act health-care cases result in settlements, where the defendant company pays a substantial amount to the government and agrees to be bound by a corporate integrity agreement, all in exchange for the opportunity to announce that it has put the matter behind it. But the finality of these resolutions may be somewhat illusory.

Edward E. Neiger

Return to Bankruptcy Court After Emerging From Chapter 11

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger discusses the recent bankruptcies of Patriot Coal and A&P, both of which emerged from chapter 11 reorganizations in the last five years and now find themselves back in bankruptcy court having switched their reorganization strategies to pursue sales of substantially all of their assets.

Jeremy M. Creelan and David B. Diesenhouse

Clarifying the Impact of Classwide Damages Methodologies

By Jeremy M. Creelan and David B. Diesenhouse |

Jeremy M. Creelan and David B. Diesenhouse write: 'Tyson Foods v. Bouaphakeo', a case before the U.S. Supreme Court this upcoming term, presents two related questions that could substantially limit class actions brought under FRCP 23(b)(3). May courts certify a class that uses statistical averaging, sampling methods, or other representative proof to overcome differences between class members and determine liability and damages on a classwide basis? May a class be certified when it includes members who have not been injured in any respect by the defendant's conduct?

Martin A. Schwartz

Supreme Court Pretrial Detainee Excessive Force Decision

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz analyzes Kingsley v. Hendrickson, in which the U.S. Supreme Court held that pretrial detainee due process excessive force claims against jail officers are governed by an objective reasonableness standard.

Jon D. Lichtenstein

Updating Tort Law for Advances in Prosthetics

By Jon D. Lichtenstein |

Jon D. Lichtenstein writes: It is hard to come up with any justifiable or necessary reason to limit compensation to an individual solely because the injured body part is mechanical and not organic. A lawyer with such a case could make a forceful argument that the law needs expansion.

Robert W. Clarida and Robert J. Bernstein

Courts Split Over Definition of 'Cable System' for Streaming TV

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein write that after the U.S. Supreme Court dealt a devastating blow to Aereo, the streaming service unsuccessfully attempted to stave off the entry of a preliminary injunction by arguing that it should qualify as a "cable system." Last month, however, a copycat technology in California succeeded with the same argument that the Southern District had soundly and somewhat sarcastically rejected in the Aereo remand.

Risa Gerson and Tammy Feman

Indigent Representation: Post-Conviction Best Practices

By Risa Gerson and Tammy Feman |

Risa Gerson and Tammy Feman discuss the Office of Indigent Legal Services' Standards and Best Practices for Appellate and Post-Conviction Representation, with particular attention to four of the standards that have resulted in the most discussion from the bar—those on collateral litigation, meeting with the client, issue selection and mandatory brief review.

Martin Flumenbaum and Brad S. Karp

Harmonizing Iqbal Pleading With McDonnell Douglas

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Littlejohn v. City of New York', where the court held that, to the extent that the McDonnell Douglas evidentiary standard relaxes the factual showing required for plaintiffs to defeat a summary judgment motion, it likewise relaxes the facts needed to be pleaded under 'Ashcroft v. Iqbal' to survive a motion to dismiss.

Theodore W. Ucinski III and Jamie R. Prisco

Use of Social Media Against Personal Injury Defendants

By Theodore W. Ucinski III and Jamie R. Prisco |

Theodore W. Ucinski III and Jamie R. Prisco examine the recent trend in New York of restaurants', retail stores', or malls' social media posts or websites being used against them by injured plaintiffs, and provide some general recommendations as to how defense counsel and their clients should treat social media while involved in such litigation.

Michael Rikon

The Condemnation Expert's File: Minefield for Cross-Examination

By Michael Rikon |

In his Tax Certiorari and Condemnation column, Michael Rikon writes that appraisers typically send a draft of their appraisal report to attorneys for prior review or comment before finalizing the report—a review that can be extremely helpful if there is something missing or inaccurate in the appraisal. The danger is that the attorney or client may totally revise a report so as to put the appraiser's credibility in question.

Peter A. Crusco

Evidentiary Consequences of Social Media Self-Adulation

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco writes: The law journals may be replete with accounts of the defense's deft use of social media evidence, but all of the clever and laborious research and investigation may be undone by a client's unbridled appetite for self-adulation in the cyber world. This article examines recent case law addressing the admissibility at trial of such self serving social media evidence.

Lee Spielmann

Germany's Failures in Bringing Nazi Murderers to Justice

By Lee A. Spielmann |

Lee A. Spielmann writes: In the last few years, German prosecutors have begun a concerted effort to bring criminal prosecutions against remaining death camp guards. This recent commitment, however, highlights that for many years Germany was exceedingly lax in its efforts to prosecute and punish Nazi criminals.

Conrad Teitell

Claiming Animal Trophies of Taxidermy as Charitable Gifts

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes: The tax law permeates virtually all areas of human activity. The recent horrific killing of Cecil the lion calls that adage to mind. I have no idea whether Walter Palmer will have the lion's head mounted, and if he does whether he will keep or contribute it. But enough taxpayers had contributed animal trophies to charity and claimed inflated deductions to motivate Congress to tighten the deductibility rules in 2006.

Samuel Estreicher

Class Action Waivers in FINRA Arbitration Agreements

In his Arbitration column, Samuel Estreicher discusses two recent Second Circuit decisions that provide significant guidance on interpretation of the FINRA rule that bars arbitration of class and collective actions and enforcement of arbitration agreements when class and collective actions are pending in most circumstances.

Edward G. Warren and Diane K. Kanca

Demystifying Legal Malpractice

By Edward G. Warren and Diane K. Kanca |

Edward G. Warren and Diane K. Kanca write: The tort of legal malpractice is largely misunderstood. Too often, one attorney will decry another's conduct as being malpractice without understanding what actually constitutes actionable malpractice. Others wrongfully criticize the legal system as favoring attorneys by making the tort nearly impossible to prove. Again, this arises from a complete misunderstanding of what a cause of legal malpractice is, and what it is not.

Alton L. Abramowitz and Elena Karabatos

Working Under the New Guidelines for Spousal Maintenance

By Alton L. Abramowitz and Elena Karabatos |

In their Divorce Law column, Alton L. Abramowitz and Elena Karabatos write: After almost five years of battling amongst matrimonial and family law attorneys, and hard on the heels of attempts by state courts to navigate the temporary maintenance guidelines, the New York State Legislature passed a bill designed to bring clarity and consistency to the determination of temporary and, for the first time, post-divorce maintenance awards, while still providing the courts with flexibility.

George Bundy Smith and Thomas J. Hall

Shareholder Claims: Direct or Derivative?

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall analyze recent decisions demonstrating that, although a clearly enunciated test for distinguishing direct shareholder claims from derivative claims now exists, its application is not always clear.

Lauren A. Ormsbee and Michael D. Blatchley

Examining Judges' Hobson's Choice Approach to Amending Complaints

By Lauren A. Ormsbee and Michael D. Blatchley |

Lauren A. Ormsbee and Michael D. Blatchley discuss the Second Circuit's reversal of a district court's dismissal of a complaint "with prejudice," saying the district court improperly "presented Plaintiffs with a Hobson's choice" to either immediately amend the complaint after defendants previewed their arguments for dismissal, or forfeit the right to do so later after the court's decision on the motion to dismiss.

Roberta S. Karmel

State of Mind on False Statements and Application of 'Omnicare'

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel discusses 'Omnicare v. Laborers District Council Construction Industry Pension Fund', in which the U.S. Supreme Court decided that an issuer may be liable for opinions set forth in a registration statement if the issuer did not genuinely hold the stated opinion, or if the issuer failed to disclose material facts relating to the foundation for the opinion, and the application of 'Omnicare' to recent and pending cases.

Mitchell Shapiro

Selecting Arbitrators Is Critical Given Courts' Deference to Awards

By Mitchell C. Shapiro |

Mitchell C. Shapiro writes: With ever-increasing frequency, corporate counsel have included arbitration clauses in an array of contracts and agreements, helping avoid the costs of litigation and class actions. However, despite the many benefits of arbitration, corporate counsel must exercise caution. Arbitration awards, once final, are rarely overturned.

Brian J. Shoot

Getting In at the Ground Level: When Is a Risk Elevation-Related?

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot writes: The plaintiff is engaged in what anyone would call construction work when she falls into an uncovered opening while walking on the ground level of the construction site. Does the fact that the opening is at ground level, perhaps with a basement or sub-basement immediately below, mean that it is not an elevation-related risk? Does it matter what kind of an opening it was? Some comments in a recent Court of Appeals ruling raise the issue anew.

Second Circuit Requires Court Approval of all FLSA Settlements

By Glenn S. Grindlinger |

Glenn S. Grindlinger writes that generally, when parties settle a federal court action, they simply file a stipulation that dismisses the case with prejudice, ensuring they do not have to provide the court with a copy of their settlement agreement and its terms can remain private and confidential. A recent decision has removed that option when a case includes claims alleging violations of the Fair Labor Standards Act.

Edward M. Spiro and Judith Mogul

Class Arbitration—Dying but Not Dead

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul analyze a decision by Judge Colleen McMahon demonstrating that even when a business holds all the cards in drafting an arbitration agreement with its customers, it can over-play that hand.

Shari Claire Lewis

Circuit Clarifies Time Limit for Computer Hacking Suits

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis discusses a Second Circuit decision notable not just for the guidance it provided regarding the operation of the statutes of limitations for civil lawsuits under the CFAA and SCA, but also for the many issues that the Second Circuit left open for consideration on another day.

Elyse Echtman and Katie DeWitt

Drafting Consumer Arbitration Clauses for Electronic Agreements

By Elyse D. Echtman and Katie DeWitt |

Notwithstanding the Supreme Court's broad holdings on the scope of the FAA's protection of arbitration clauses, careful drafting and implementation remain important to maximize the enforceability of arbitration clauses, particularly in e-commerce consumer agreements.

Sidney Kess

Highway Trust Fund Extension Brings About Permanent Tax Changes

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses highlights of the revenue provisions within a new law that makes a number of permanent tax law changes in order to raise about $5 billion in revenue over 10 years as a way to help pay for the extended funding for surface transportation programs and afford resource flexibility for veterans.

David C. Singer

Rescission of Settlement Agreements: Rare but Possible

By David C. Singer |

David C. Singer writes: If a settlement agreement is valid on its face and was not entered into under circumstances that would render the agreement invalid, such as fraud or incompetence of a party, must a settlement agreement be enforced as written? In New York, the answer is: Not always.