Expert Analysis

Martin Flumenbaum and Brad S. Karp

Applying Newly Announced Test for Proof of Pregnancy Discrimination

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Legg v. Ulster County,' in which the court, in an issue of first impression, found that the denial of a light-duty accommodation to the pregnant employee of a county correctional facility was sufficient to support an inference of discrimination under the Supreme Court's recently announced "significant burden" standard for proof of pregnancy discrimination under Title VII.

Edward E. Neiger

Changes in Teen Spending Affect Once-Popular Brands

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger discusses filings in the teen apparel industry, which continues to decline as the shift in teen spending habits from fashion to technology becomes more pronounced and fast fashion companies that get new trends to the market quickly and cheaply draw sales over companies built on brand name logo appeal.

Paul Bennett Marrow

Arbitrators Excluding Evidence as a Sanction

By Paul Bennett Marrow |

Paul Bennett Marrow argues that two recent decisions, 'Attia v. Audionamix' and 'NFL Management Council v. Tom Brady,' clarify that it's a good idea for an arbitrator to think twice before precluding evidence as a way to control party misconduct, but there should be room for a rule allowing an arbitrator who deals with misconduct to consider the impact of disruptive behavior as grounds for excluding evidence if the behavior prejudices the rights of other parties to a fundamentally fair hearing.

Ellen H. Greiper and Scott P. Eisenberg

Email and Continuous Treatment in Medical Malpractice Actions

By Ellen H. Greiper and Scott P. Eisenberg |

Ellen H. Greiper and Scott P. Eisenberg of Goldberg Segalla discuss the decision in 'Caesar v. Brookman', which answered the question of whether a medical provider can treat a patient by way of email.

Rupert M. Barkoff

Franchise Documents Should Not Be Cookie Cutter Products

By Rupert M. Barkoff |

Rupert M. Barkoff while Franchise Documents can be easily prepared by copycatting existing documents used by other franchisors, this overlooks the fact that this cookie-cutter approach is not likely to be successful when the franchise systems are not virtually identical. Copycatting will be less effective when the franchise systems are in different industries, but even when the systems are similar, there are other reasons not to use a copycat approach.

Arthur J. Ciampi

Formulating Retirement Policies That Value Senior Lawyers

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi analyzes some of the issues concerning law firm partner retirement, including some interesting retirement statistics, and examines how other professions address issues regarding their senior members to discern whether their policies can be translated into law firm life.

Avi Weitzman and Jason P.W. Halperin

Curing Albany's Corruption Epidemic

By Avi Weitzman and Jason P.W. Halperin |

Avi Weitzman and Jason P.W. Halperin propose a three-part fix to reduce the incentives and opportunity for future corruption in New York State government.

Timothy M. Tippins

Recording, 'Vicarious Consent' and Judicial Overreach

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: A plethora of precedent previously made clear that a parent enjoys no special exemption from criminal liability under the eavesdropping provisions of the Penal Law, which do not allow a parent to consent to such recording on behalf of his or her child. In a recent decision, the Court of Appeals abandoned that precedential line and embraced the doctrine of "vicarious consent."

Charlotte A. Biblow

Proposals on Solid Waste Management Rules

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: The Department of Environmental Conservation has proposed comprehensive revisions to its existing regulations governing solid waste management facilities that, when adopted, likely will affect every municipality across the state as well as businesses ranging from contractors, landscapers, and mulch facilities to hospitals and pharmacies, in addition, of course, to every aspect of the solid waste management industry.

Robert C. Scheinfeld

Supreme Court Grants Patent-Related Petitions

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Recognizing the importance of patents to the U.S. economy, and keen on keeping the Federal Circuit in check, the U.S. Supreme Court has, just within the last two months, granted another two patent related petitions—one involving whether the laches defense applies to pre-filing damages claims in patent cases, and the other involving the damages calculation in design patent cases.

Jonathan M. Robbin, Adam M. Swanson and Frank Crowley

Affixation: In 'Askew,' Did First Department Get it Right?

By Jonathan M. Robbin, Adam M. Swanson and Frank Crowley |

Jonathan M. Robbin, Adam M. Swanson and Frank Crowley write: The First Department's recent decision in U.S. Bank v. Askew held that, regardless of issues relating to an allonge, or the validity of an allonge, a plaintiff in a foreclosure action proves its prima facie case by demonstrating physical delivery of the note prior to commencement of the action. The decision contradicts a Second Department dismissal of a plaintiff's foreclosure action because the allonge was not "firmly affixed" to the note.

Patrick M. Connors

Judiciary Law §470 Meets Temporary Practice Under §523

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors discusses the interplay between Judiciary Law section 470, as recently interpreted by the Second Circuit and Court of Appeals, and the new "temporary practice" allowed under Part 523 of the Rules of the Court of Appeals, along with the effect of a violation of Judiciary Law 470, and how it can lead to the dismissal of an action, the inability to recover legal fees, and discipline.

Francis J. Serbaroli

Court Refuses to Block Merger of Hospitals

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli discusses a recent decision by a federal court refusing to enjoin a hospital merger challenged by the Federal Trade Commission. The decision is important because the court considered more factors, such as the effect of health care reforms, than is usual in antitrust analysis of hospital mergers.

Scott M. Himes

'Modified' Business Judgment Rule for Going-Private Transactions

By Scott M. Himes |

Scott M. Himes writes that in its recent opinion in 'In re Kenneth Cole Productions, Inc., Shareholder Litigation', the New York Court of Appeals, following Delaware's lead, held that the board-friendly business judgment rule should apply to the challenge of a going-private merger if certain shareholder-protective conditions are met. The opinion sets forth a road map for how parties can structure such a merger to pass legal muster.

Stephen M. Kramarsky

Legal Limits of Customer Service for Technology Providers

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky discusses the 'TekVet' decision and writes: The instinct to "bend over backwards" to help the customer and retain the relationship is a commendable one, but it can create serious issues if decisions are made without sound legal advice.

Robert S. Kelner and Gail S. Kelner

Intersection Collisions Involving Pedestrians in Crosswalks

By Robert S. Kelner and Gail S. Kelner |

Robert S. Kelner and Gail S. Kelner discuss recent case law, most notably 'Quintavalle v. Perez' from the First Department, that address the proof necessary to impose liability as a matter of law where a driver strikes a pedestrian in a crosswalk who has the right of way in an intersection. The analysis is two-pronged. Plaintiff must show negligence of the operator and plaintiff's freedom from comparative fault.

Joseph D. Jean, David F. Klein and Benjamin D. Tievsky

'Viking Pump': Landmark Victory for Policyholders

By Joseph D. Jean, David F. Klein and Benjamin D. Tievsky |

Joseph D. Jean, David F. Klein and Benjamin D. Tievsky write: New York has developed a reputation as an unfavorable jurisdiction for policyholders facing "long-tail" claims involving gradually occurring property damage or bodily injury liabilities, such as environmental contamination, asbestos-related illness, and certain toxic tort and construction defect claims. On May 3, however, the Court of Appeals issued a landscape-changing decision.

Alton Abramowitz

Use of Assisted Reproductive Technologies

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz writes: As with any complex transaction, despite their common goals each of the third-party collaborating participants in the third-party reproduction process, which involves the use of donors or surrogates, has coextensive individual interests, many of which inherently conflict with one another and/or require and deserve unique consideration so as to avoid an otherwise significant potential for litigation, particularly in the event of divorce.

Jeremy H. Temkin

Accessing Records With Bank of Nova Scotia Summonses

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes: Through Bank of Nova Scotia summonses, the IRS seeks to compel U.S. branches of foreign banks to produce records held by their overseas branches, even when production would otherwise be proscribed by foreign bank secrecy laws. This law enforcement tool has been used rarely over the past three decades, but in today's regulatory climate, practitioners representing taxpayers need to be aware of their availability.

Maurice J. Recchia

Court of Appeals Addresses 'Storm in Progress' Doctrine

By Maurice Recchia |

Maurice Recchia discusses a recent decision that makes it clear that rain which follows without a temporal break from a snow or ice storm and which continues in time for several hours can be defined as a "storm in progress" such that a landowner's duty to clear the premises will not arise until the rain has ended. Time will tell whether the extra leeway seemingly granted by the majority will result in reduced vigilance by property owners.

Michael D. Patrick

Foreign National Graduates Face Immigration Realities

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick discusses alternative visa options, and potential pitfalls, for graduating university students seeking full-time jobs, given that the H-1B visa has become an increasingly less certain option as the odds of getting selected in the lottery has steadily declined.

Jeff S. Korek

Mitigating Potentially Damaging Evidence at Trial

By Jeff S. Korek |

The first and foremost principle of dealing with potentially negative evidence against a client is "do not attempt to mislead the jury and try to hide the evidence." But how do you approach effectively mitigating such evidence, in order to present your client in the most favorable light? The best practice is to move by motion in limine, prior to jury selection, to have the evidence excluded, but what if that fails?

Brendan Goodhouse and Andrew Schriever

Early Returns on Amended Rule Regarding Spoliation of ESI

By Brendan Goodhouse and Andrew Schriever |

Brendan Goodhouse and Andrew Schriever write that the first published cases to deal with the change to FRCP Rule 37(e) offer some interesting insights, such as that parties must demonstrate they have availed themselves of all avenues for discovering information before they can successfully claim prejudice for the opposing party's loss of that information, and leave some open questions.

Roy L. Reardon and William T. Russell Jr.

Lead Paint, Recording Conversation, Foundation for DNA Evidence

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. address cases in which the court found that there is no duty to remove lead paint from premises in which children only stay part-time, examined the requirements for establishing an evidentiary foundation for the introduction of DNA evidence, and found that parents or guardians may surreptitiously record interactions between their child and others if the child is deemed to have consented vicariously.

Jonathan A. Dachs

'Viking Pump': Allocation, Exhaustion, Policy Interpretation

By Jonathan A. Dachs |

In his Insurance Law column, Jonathan A. Dachs discusses an important insurance law decision recently rendered by the Court of Appeals, sure to have significant effects on insurers and insureds involved in asbestos and toxic exposure cases going forward.

Ken Strutin

Pleading Dignity: Alchemizing Form Into Substance

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Technology is moving due process away from the viability of self-representation for prisoners. For just as free people are information overloaded, the imprisoned are information starved.

Kingsley Osei

Monetizing Tax Credits for Investing in Renewable Energy Projects

By Kingsley Osei |

Kingsley Osei writes: The prolonged wait for the extension of the renewable energy tax credits throughout 2015 may have somewhat dimmed investor interest for backing renewable energy projects through the monetization of the tax credits. With the recent congressional extension of federal tax credits for renewable energy projects, investor interest is likely to soar again.

Sidney Kess

Five Top Tax Issues for Retirement

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes: Retirement is life-changing in so many ways, and it is different for different people. It may mean ceasing work or reducing work, possibly downsizing and relocating, or changing careers or starting businesses. For many, there is an increased need for medical care and other assistance. Each of these areas entails tax rules.

Dani Schwartz

RPAPL §881: Litigating Access to Neighboring Property

By Dani Schwartz |

Dani Schwartz explores five hidden dangers to avoid when attempting to compel access to adjoining property to perform work on one's own property

Samuel Estreicher and David L. Noll

Justice Scalia's Impact on Federal Arbitration Law

By Samuel Estreicher and David L. Noll |

In their Arbitration column, Samuel Estreicher and David L. Noll write: In the immediate aftermath of Justice Antonin Scalia's death, many press accounts focused on his views on controversial matters such as the Second Amendment and LGBT rights. Scalia's most enduring contributions to federal law, however, may be in the workaday areas of civil and administrative procedure.

Ubiquitous but Complicated, Power of Attorney Needs Fixing

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes: While there are certainly reported cases of abuse of the power of attorney, it is not clear that increased complexity has resulted in a diminution of elder financial abuse. The complexity may have resulted in a diminution of the number of people who have been able to avail themselves of the power of attorney.

John Ho

Understanding the Cost of Proposed Overtime Regulations

By John Ho |

John Ho discusses the update to the Fair Labor Standards Act overtime regulations and practical and operational concerns for employers who may need to reclassify a position as non-exempt.

Michael B. Gerrard and Edward McTiernan

Role of Safe Drinking Water Act in Protecting Health

By Michael B. Gerrard and Edward McTiernan |

In their Environmental Law column, Michael B. Gerrard and Edward McTiernan review the major provisions of the Safe Drinking Water Act, discuss the EPA's approach to setting "maximum contaminant levels" and describe the framework for implementation and operator responsibility here in New York State.

Allison J. Schoenthal, J. Evans Rice and Lillian S. Hardy

Boundaries Unknown: CFPB in the Mortgage Industry

By Allison J. Schoenthal, J. Evans Rice and Lillian S. Hardy |

Allison J. Schoenthal, J. Evans Rice and Lillian S. Hardy The list of practices that the Consumer Financial Protection Bureau asserts are "unfair, deceptive or abusive acts or practices" is expansive, and still growing. This expansion impacts numerous industries regulated by the CFPB, and the mortgage industry is no exception.

Lewis R. Clayton and Eric Alan Stone

Broad Access to Federal Courts for Intellectual Property Plaintiffs

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone report on four recent decisions involving plaintiffs' access to federal courts, holding that: (i) the broad corporate-residence standard for venue continues to apply to patent cases; (ii) there is personal jurisdiction over an ANDA filer in every district in which it foresees selling its generic drug; (iii) owners of foreign trademarks may bring unfair competition claims against U.S. owners of the same marks; and (iv) dismissal on forum non conveniens grounds is improper where the foreign forum is not shown to provide redress for U.S. intellectual property law disputes.

Howard Wintner

Civil Seizure Remedies Under the Defend Trade Secrets Act

By Howard Wintner |

Howard Wintner discusses the Defend Trade Secrets Act of 2016, a significant advance in trade secret law and the prosecution of trade secret claims; remedies available under the act, particularly the ex parte civil seizure remedy, which had no comparable remedy in the Uniform Trade Secrets Act, where the trade secret owner was relegated to traditional injunctive remedies.

Shepard Goldfein and James A. Keyte

Judge Garland: Supreme Court Nominee and Antitrust Scholar

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: Though his confirmation seems far from a sure thing, many have wondered what we could expect in the antitrust domain if Merrick Garland were to take Justice Antonin Scalia's now-empty seat. One distinct possibility is an increase in the number of antitrust cases heard by the Supreme Court. Though his experience with the subject matter does not rival that of Justice Stephen Breyer, Garland has shown an affinity for the topic prior to his appointment to the D.C. Circuit.

Richard Raysman and Peter Brown

Recent Uses of Software and the Digital Millennium Copyright Act

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown analyze a case involving a dispute over circumvention of a website entry point between a software licensor and licensee, and another involving the insertion of the company name into the source code of its licensed software.

Brian J. Fischer and Justin O. Spiegel

Early Returns on Civil Procedure Amendments

By Brian J. Fischer and Justin O. Spiegel |

Brian J. Fischer and Justin O. Spiegel write that of the two most significant changes to the Federal Rules of Civil Procedure, the change to Rule 26(b)(1) appears to have done little but provide another tool for courts to limit patently overbroad discovery requests, but the amended spoliation standard has, at least for some courts, truly set the ESI sanctions bar higher, and for other courts, forced a heavier reliance on inherent judicial authority to justify the imposition of sanctions.

Michael Hoenig

When Experts 'Cherry-Pick' Among Competing Studies

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig discusses a recent First Circuit decision that tees up some critical tensions in toxic tort experts' methodologies. For example, experts can and do rely upon scientific and technical literature. But what if the articles relied upon are themselves partially or wholly unreliable? Or what if there is inconsistent technical literature? Does "cherry-picking" favorable articles sufficiently create a jury question, or does the problem of conflicting literature go to the heart of the threshold "reliability" question inherent in Daubert admissibility criteria?

Anthony E. Davis

In-State Office Requirement: Gap Between Theory and Reality

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis writes: When Thomas Jefferson became President in 1801, the fastest means of communication on land was on horseback. If the Second Circuit is to be believed, nothing whatsoever has changed in the intervening centuries.

Carlos J. Cuevas

Non-Domiciliaries and Intentional Fraudulent Conveyance Actions

By Carlos J. Cuevas |

Carlos J. Cuevas writes: Each day New Yorkers are engaged in innumerable interstate and international business transactions. An important legal issue that arises is whether a New York court can exercise personal jurisdiction over a non-domiciliary that has engaged in an intentional fraudulent conveyance against a New York domiciliary.

Neil J. Rosini and Michael I. Rudell

Musical Controversies in Presidential Elections

By Neil J. Rosini and Michael I. Rudell |

In their Entertainment Law column, Neil J. Rosini and Michael I. Rudell write that the strength of the legal theories on which artists objecting to the use of their songs by political campaigns rely—copyright, Lanham Act, and right of publicity—has received scant judicial attention. There is some legal precedent, however, as well as guidance from industry sources that concern the such use of music without express approval.

Steven Wolowitz, Melissa Francis and Matthew Bisanz

A Panama Papers Prophecy

By Steven Wolowitz, Melissa Francis and Matthew Bisanz |

Steven Wolowitz, Melissa Francis and Matthew Bisanz write: The U.S. government has been aggressively collecting information on U.S. taxpayers and their offshore financial institutions to go after entities and individuals who may have assisted criminal conduct. With the recent revelation of the so-called "Panama Papers," the government may have been handed the means to target not just the accountholders and their offshore banks, but a greater number of the professionals around the world who often link them.

Evan H. Krinick

Finding of 'Rehabilitation' After Insurance Fraud Sentence

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick writes: Generally speaking, once a prison sentence for insurance fraud is imposed, everyone moves on. Everyone, that is, except the defendant, who is tarred with the conviction forever. In an unusual and rare case decided by U.S. District Judge John Gleeson just days before leaving the bench, Judge Gleeson refused to simply "move on," instead fashioning a creative remedy to address the situation.

Elkan Abramowitz and Jonathan Sack

When Do Business Negotiations Cross the Line and Become Fraud?

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write: The federal mail and wire fraud statutes are among the most powerful prosecutors' tools because they are drafted in broad language designed to reach ever-changing methods of fraud. The outer boundary of those statutes has recently been tested in the context of arm's length business negotiations.

Patrick O'Sullivan

Enabling Public-Private Partnerships in New York

By Patrick O'Sullivan |

Patrick O'Sullivan writes: Public-private partnerships can provide real value to the public sector in addressing its overwhelming infrastructure needs. As a city that continues to grow with an infrastructure that continues to age, New York City would benefit significantly from such a tool to address needs ranging from repairing existing roads to expanding the transit network with streetcars and ferries to building out its technology infrastructure.

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

Federal Appellate Review of Arbitration Awards

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. write that the Second Circuit's decision instructing the district court to confirm an arbitration award suspending New England Patriots quarterback Tom Brady for four games serves as a reminder of the very limited scope of judicial review of arbitration awards.

Richard Siegler and Eva Talel

Increased Vigilance for Secondhand Smoke

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write: Until the March 2016 decision in 'Reinhard v. Connaught Tower Corp.,' courts had generally afforded boards flexibility and tolerance in addressing secondhand smoke. The Connaught ruling, although it is currently being appealed, may mark a shift in such judicial forbearance, and therefore impact the obligations of boards to remediate secondhand smoke complaints.

Brian J. Shoot

First Department's 3-2 Rulings: Fault Lines of the Law

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot discusses recent cases illustrating issues on which courts continue to disagree: availability of a "sole proximate cause" defense when defendants claim injured workers were provided alternative means of performing the elevated work, the burden of proof in a fall from an unsecured but non-defective ladder, and whether a plaintiff's deliberate use of an closed A-frame ladder is the "sole proximate cause" of an accident or mere comparative negligence.

Stephen Bergstein

Racial Discrimination Cases: Deferring to District Court Fact-Finding

By Stephen Bergstein |

Stephen Bergstein writes: A recent decision from the Second Circuit finds that a Long Island village violated the Fair Housing Act in rezoning property to make it more difficult to build multifamily housing. This decision reaffirms that intentional discrimination cases are often proven with subtle and circumstantial evidence; municipalities can be liable for the racist views of their constituents; and the Court of Appeals is loath to second-guess factual findings reached by the trial courts.

Mark A. Berman

New Decisions on Emails and Motion Practice

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman discusses various cases in which emails factored into the decisions of motions to dismiss and motions for summary judgment.

Martin A. Schwartz

Immunity Defenses to §1983 Fabrication of Evidence Claims

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz discusses qualified and absolute immunity as applied to various functions carried out by prosecutors, witnesses, and various law enforcement officers who are being sued for §1983 evidence fabrication claims for money damages.

Clifford G. Tsan and Michael D. Billok

Cybersecurity Insurance: Facing Hidden Risks and Uncertainty

By Clifford G. Tsan and Michael D. Billok |

Clifford G. Tsan and Michael D. Billok write: Due to the rapid evolution of cyber-attacks, cyber insurance underwriters, brokers, and consumers have struggled with configuring the optimal insurance product to manage an entity's unique risks. This has led to fluctuating policy coverages and configurations.

Thomas E.L. Dewey

Impact of 'Campbell-Ewald': Unanswered Questions

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey writes that the U.S. Supreme Court's decision in 'Campbell-Ewald Co. v. Gomez' denied class-action defendants the ability to moot an entire class action by making a settlement offer that would have completely satisfied the named plaintiff's claim. But a new split has already arisen: May a defendant who consents to entry of a judgment against it evade further litigation?

Kevin G. Faley and Andrea M. Alonso

Insurance Claims Files: How Privileged Are They?

By Andrea M. Alonso and Kevin G. Faley |

Andrea M. Alonso and Kevin G. Faley write that claims files are the hard-drive of an insurance carrier, with a record of all information about a claim: opinions, discovery, reserves, witness statements, etc. Insurance claims files are, in theory, protected from discovery by work-product doctrine as "material prepared in anticipation of litigation." But these protections are situational.

Steven R. Pounian and Justin T. Green

Third Circuit Limits Scope on Federal Preemption in Aviation Cases

By Steven R. Pounian and Justin T. Green |

In their Aviation Law column, Steven R. Pounian and Justin T. Green write: While state law historically provided the foundation for nearly all aviation injury and death suits, a 1999 Third Circuit decision on preemption dramatically shifted the landscape, forcing plaintiffs to undertake the often futile task of delineating a federal law basis for their actions. Last week, however, the court sharply limited the scope of its field preemption ruling, holding that it does not extend to state products liability claims.

Susan L. Pollet

Revenge Porn: Will Legislation Help to Prevent It?

By Susan L. Pollet |

Susan L. Pollet writes that despite the risks, people naively believe that their loved ones will never betray them, and they continue to share explicit images—some 80 percent of revenge porn victims took the images themselves. Victims have attempted to sue under tort claims, but such claims often fail. Many scholars believe criminalizing revenge porn would be a more effective deterrent.

Martin Flumenbaum and Brad S. Karp

Court Clarifies Classification of 'Hispanic' Under Title VII

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss a case involving a mayor's decision to promote one candidate over another for police chief in which the court explicitly addressed for the first time whether discrimination based on Hispanicity constituted racial discrimination under Title VII, or if it instead amounted exclusively to national-origin discrimination.

James J. Beha II, Jordan Eth and Craig D. Martin

Corporate Disclosure of Government Investigations

By James J. Beha II, Jordan Eth and Craig D. Martin |

James J. Beha II, Jordan Eth and Craig D. Martin write: While a company's decision whether to disclose an ongoing government investigation may implicate many different legal, public relations, and business concerns, decisions in the Southern District provide comfort that a company need not disclose an ongoing investigation under federal securities laws, unless and until the company determines that the investigation is "substantially certain" to lead to a formal government enforcement action, so long as the company's other disclosures are not rendered misleading by the omission.

Michael Rikon

Rezoning as Component of Highest and Best Use

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon writes: Ordinarily, the potential uses the court may consider in determining value of a property taken by eminent domain are limited to those uses permitted by the zoning regulations at the time of taking. When, however, there is a reasonable probability of rezoning, some adjustment must be made to the value of the property as zoned.

Nicholas M. De Feis and Philip C. Patterson

Limits in New FCPA Leniency Program May Hinder Effectiveness

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 write: On April 5, the Fraud Section of the DOJ announced a pilot program offering potential leniency to corporations that self-report Foreign Corrupt Practices Act violations. Although intended to incentivize self-reporting, the program has limits and collateral requirements for credit that should cause corporate counsel serious concerns.

Peter A. Crusco

Passcodes, Privacy and Public Safety: Apple vs. DOJ

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco discusses litigation on the issue of whether the All Writs Act may be used by the government to compel Apple to unlock an iPhone passcode by creating a program or so called "backdoor" for law enforcement access to it to obtain needed evidence of a crime on the phone.

Ben Rubinowitz and Evan Torgan

Use of Supporting Evidence With the IME Physician at Trial

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: While the theory behind the need for an independent medical examination makes perfect sense, the reality is that there has been a history of deceit and abuse on both sides of the fence. Some plaintiffs exaggerate injuries, some examining doctors minimize their findings. Regardless of whether one represents the plaintiff or the defendant, it is the responsibility of the trial lawyer to challenge the physician at trial to expose such deception.

Conrad Teitell

Clarification in PATH Act on Charitable Remainder Unitrusts

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell discusses a "clarification" in the PATH Act of 2015 that can be dangerous to your client's wealth.

Kenneth G. Schwarz

Mistakes in Identifying Parties and Possible Corrective Actions

By Kenneth G. Schwarz |

Kenneth G. Schwarz writes that using fictitious names when the identity of the party that should be sued is unknown is only of limited value. With looming deadlines, a party may find himself unable to sue someone when that person's identity becomes finally known. Further, if they use anonymous or incomplete names while ascertaining the actual identities, there are limited remedies to overcome the passing of the statute of limitations.

Sidney Kess

Tax-Advantaged Retirement Savings Strategies

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses employers' qualified retirement plans and non-ERISA retirement savings options and special issues or concerns for each, along with ways to easily increase contributions to tax-advantaged plans.

Sharon M. Porcellio

Telephone Consumer Act Action Does Not Survive Plaintiff's Death

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio writes that the court welcomed in this quarter almost a full complement of its judicial ranks with a new district judge and magistrate judge, and she reviews Chief Judge Geraci's holding in a case of first impression—whether a private right of action created by Sections 227(b) and (c) of the Telephone Consumer Protection Act of 1991 survives a plaintiff's death.

Thomas A. Dickerson and Sylvia O. Hinds-Radix

Airbnb and Uber: From Revolution to Institution

By Thomas A. Dickerson and Sylvia O. Hinds-Radix |

Thomas A. Dickerson and Sylvia O. Hinds-Radix write that as Airbnb, Lyft and Uber have become nearly accepted transportation and short-term rental institutions, so too have the number and scope of lawsuits brought against them.

Roberta S. Karmel

Proposals for Intrastate and Regional Offerings

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel discusses a proposed rule that would replace Rule 147, which has served to define exempt intrastate offerings. The purpose of the new intrastate offering rule is to craft an exemption that would be more usable than Rule 147 exempt offerings and that would mesh with rules passed by some states to facilitate crowdfunding. She also discusses amendments to Rule 504 of Regulation D meant to encourage state securities regulators to develop coordinated review for regional offerings relying on Rule 504 at the federal level.

David J. Kaufmann

Judiciary Addresses Key Franchise Act Issues

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann writes that two integral provisions of the New York Franchise Act came under judicial scrutiny of late: the penalties to be imposed upon a franchisor which fails to furnish disclosure to a franchisee within the time prescribed by the act and when the act's "isolated franchise sale" exemption from registration may be invoked.

Roy L. Reardon and William T. Russell Jr.

Smoking Ban, Ineffective Assistance Claim

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 a case upholding a smoking ban in state parks in New York City, a case finding defense counsel's failure to object to stereotyped and misogynist statements during summation did not amount to ineffective assistance, and a case finding a complaint arising out of an episode of reality television sufficiently stated a claim for breach of patient-physician confidentiality.

Robert W. Clarida and Robert J. Bernstein

A Sobering Reminder: Registration Still Matters

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein write: Although copyright registration is sometimes viewed as a mere formality, inaccurate statements made in registration applications may come back to haunt the plaintiff, as a recent decision showed.

Joseph S. Bavaro and Daniel Justus Solinsky

Don't Fear the Repo: UCC an Unlikely Ally in Personal Injury Cases

By Joseph S. Bavaro and Daniel Justus Solinsky |

Joseph S. Bavaro and Daniel Justus Solinsky write: With television shows glorifying the dangerous life of the repossession agent, it is no wonder that one often hears stories of violence carried out by these agents. The instincts of a well-trained personal injury attorney might dictate that unless the "Repo Man" has considerable assets, a lawsuit against the towing company or the lender that sent these agents would be futile—but these instincts would be wrong.

Edward M. Spiro and Judith Mogul

Service of Process by Email on Defendants Outside the U.S.

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: A plaintiff seeking to serve an individual or organizational defendant located overseas can face substantial, sometimes insurmountable logistical challenges. Several recent decisions have permitted plaintiffs frustrated by elusive defendants or uncooperative foreign governments to serve defendants through email under FRCP 4(f)(3), providing a modern-day solution to an age-old problem.

Dani Schwartz

Open Issues in RPAPL §881 Litigation

By Dani Schwartz |

Dani Schwartz discusses RPAPL §881, which governs efforts to compel access to adjoining property to perform work on one's own property, and explores two open issues in the RPAPL §881 case law: the availability of discovery in an proceeding, and whether the statute applies to demolition work.

Shari Claire Lewis

FCC Proposes Rules That Impact Everyone's Online Privacy

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis of Rivkin Radler explores the FCC's Notice of Proposed Rulemaking (which proposes to establish privacy guidelines applicable to ISPs) and some of the most important issues it raises.

Jerry H. Goldfeder and Myrna Pérez

Electing the President: Rules and Laws

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: The presidential election season has many people scratching their heads, even those who normally follow politics—and we are not referring to the candidates' pronouncements or personalities. We are talking about the complicated and inconsistent set of laws and rules that govern how we nominate and elect the president of the United States.

Stephen J. Crimmins, James K. Goldfarb and Sharon A. O'Shaughnessy

Legal Antiperspirant for Audit Committee Members

By Stephen J. Crimmins, James K. Goldfarb and Sharon A. O'Shaughnessy |

Stephen J. Crimmins, James K. Goldfarb and Sharon A. O'Shaughnessy write: Public company audit committee members might be forgiven for sweating potential SEC scrutiny of late. We examine the SEC's focus on audit committee members as gatekeepers, review three recent enforcement actions to highlight conduct that attracts the staff's attention, and suggest certain safeguards that might help mitigate the chance of an SEC investigation or charge.

E. Leo Milonas and Andrew C. Smith

Criminal, Business, Immigration Matters

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith highlight some of the leading decisions from the first quarter of 2016 involving dissolving foreign corporations, pharmacists' duty of care, extending orders of protection, affirmative covenants, and staring at police officers.

George Bundy Smith and Thomas J. Hall

Fraud Claims Arising From Contract Negotiations

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: Parties to negotiations over commercial contracts unfortunately may discover, after the deal closes, that aspects of the transaction are not as expected. Contractual representations and warranties usually are included to protect against these risks. But what if, in addition to breaches of contractual representations and warranties in the contract, the buyer feels it was outright defrauded during the negotiations?

Richard G. Leland

Clean Water Rule: a Dispute Playing Out in all Government Branches

By Richard G. Leland |

Richard G. Leland writes: In 2006, the U.S. Supreme Court invalidated regulations promulgated by the EPA and the Army Corps of Engineers defining the jurisdictional reach of their permitting authority under the Clean Water Act, finding that the definition of "waters of the United States" exceeded the scope of the language in the act. Since then, the EPA, the Army Corps, Congress and the courts have wrangled over the promulgation of a new regulatory definition.

Michael Hoenig

Be Vigilant When It Comes to Deposition Corrections

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: At first blush, many litigators on both sides possibly view the practice of offering corrections to deposition transcripts as a kind of vanilla ministerial function. A passive, uninterested approach to the other side's proffer of deposition errata sheets, however, is not only neglectful, it is unwise. When errata sheets are ruled to be failures, what's left is the sworn "uncorrected" testimony, which can prove fatal to a litigant's case.

David M. Barshay

Office-Based Surgical Facility Fees and No-Fault Insurance

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay discusses the recent Court of Appeals decision on whether a no-fault insurer is required to pay no-fault medical benefits to an office-based surgical facility not licensed under Public Health Law Article 28.

Abby Tolchinsky and Ellie Wertheim

Spousal Support Guidelines Offer Framework for Mediation

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim write: For years, attorneys and judges have grappled with creating a standard of fairness upon which parties may rely that provides sufficient flexibility so that cases may be tailored to each family's unique budgetary needs. As mediators, we have similarly struggled. Now courts are firmly in the era of DRL §236B(6), which provides a formula for post-divorce maintenance and guidelines for duration. We believe that in the context of mediation, it will serve as a societal standard of fairness.

Margaret A. Dale and Mark D. Harris

SEC Enforcement Actions Before Administrative Tribunals

By Margaret A. Dale and Mark D. Harris |

In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris write that given the increasingly heated debate generated by the issue of whether the statutory review process set forth in the Securities Exchange Act of 1934 precludes district-court jurisdiction over constitutional challenges to Dodd-Frank, some spectators were surprised when the Supreme Court denied certiorari in 'Bebo v. SEC'. In all events, the case has brought attention to some thorny jurisdictional and constitutional issues.

Jeffrey D. Pollack

Labor and Employment Law: Independent Contractor Tests

By Jeffrey D. Pollack |

Jeffrey D. Pollack writes: An issue that routinely arises in the labor field is whether a worker is an "independent contractor" or an "employee." Misclassification of workers as independent contractors can have serious consequences, so companies must exercise caution when treating someone as an independent contractor. One problem, however, is that the test for employment status varies depending on which law is involved.

Shepard Goldfein and James A. Keyte

Sports Tickets: Revocable Licenses or Rights to Resale?

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write that ticketing policies for sporting and other events have been receiving increased attention recently in both the media and legal spheres. They review some common resale limitations and recent lawsuits filed by ticket holders over access to secondary markets, and the results of the New York Attorney General's recent investigation into the ticket industry.

Joel Cohen

When Adjournment Requests Are Critical

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes: Although the Rules and case law are clear that counsel cannot delay for the sake of delay, 'U.S. v. Abney' most graphically tells us why a delay is sometimes not only warranted—but that a failure to seek a delay may allow for an ineffective assistance of counsel claim.

Richard Raysman and Peter Brown

How Will Courts Respond When 'Connected Cars' Are Hacked?

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown that while wireless-enabled technologies in cars provide many positive features, attackers have devised a variety of ways to access the data generated through the use of both manufacturer-provided and aftermarket devices. The authors discuss the implications of such threats.

Ilene Sherwyn Cooper

Mistake, Disqualification of Counsel and Personal Jurisdiction

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper discusses the issue of mistake as it affects the validity of a will, and examines decisions addressed to the disqualification of counsel and the jurisdictional predicate for a proceeding to compel the production of a will.

Ronald Steinvurzel

Local Regulation of Hydrofracking Found Not Preempted

By Ronald Steinvurzel |

Ronald Steinvurzel writes: While there is no denying that local zoning laws will impact oil and gas companies in deciding where such operations are permissible, the law in New York is that any such impact is merely "incidental control" stemming from a municipality's lawful exercise of its rights in regulating land use through its zoning laws.

Peter M. Fass

Private Placements and the Internet—No-Action Letters

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass writes: The SEC has recognized that there is no General Solicitation where there is a substantive, pre-existing relationship between the issuer or its agent, and the prospective investor. The process by which a sponsor of Rule 506(b) Internet offerings can develop this type of relationship with prospective investors is far from clear. The Citizen VC Inc. No-Action Letter provides some clarity.

Harvey M. Stone and Richard H. Dolan

Foreclosure, Standard to Expunge Criminal Record, Intervention

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on recent decisions reinstating an order allowing the foreclosure sale of defendant's home, finding a petitioner failed to meet the stringent standard required to expunge his criminal record relating to a 1991 arrest followed by dismissal of the charges, and denying intervention as of right to certain non-parties but granting limited permissive intervention in a case involving the East Hampton Airport.

Paul F. Millus

NLRB and the Joint Employer: Is Franchising on the Ropes?

By Paul F. Millus |

Paul F. Millus writes: Lately, there is never a dull moment at the National Labor Relations Board. Recent NLRB decisions have rewritten the labor law map in a variety of ways but nowhere more significantly than in the areas of franchising and outsourcing.

Michael J. Hutter

Admissibility of Evidence Obtained From Facebook

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter addresses the four major evidentiary hurdles—relevance, authentication, hearsay, and best evidence—that must be overcome to admit Facebook posts claimed to be posted by the owner, whether it be the profile page, or a posted message, photograph or video, when offered against the claimed owner.

Pamela L. Kleinberg

Extending Mechanic's Liens Filed Against Residential Co-op Apartments

By Pamela L. Kleinberg |

Pamela L. Kleinberg writes: It may come as a surprise to attorneys engaged in the practice real estate litigation that until very recently, the New York state courts did not address whether a mechanic's lien filed against a co-op apartment may be extended under New York Lien Law §17 without a court order. On Nov. 13, 2015, this question finally was addressed and answered in the negative.

John Fellas

Jurisdictional Obstacles and Enforcing Foreign Arbitral Awards

By John Fellas |

In his International Arbitration column, John Fellas writes: Given the differences in the treatment by New York courts of foreign arbitral awards and foreign judgments when it comes to the applicability of jurisdictional defenses, a question arises: Is it possible to avoid the jurisdictional obstacles to the enforcement of foreign arbitral awards by seeking to enforce not the arbitration award itself, but rather the foreign judgment confirming that award? A recent case affirms that this is indeed possible.

Andrew Lavoott Bluestone

Judiciary Law §487 Joins the Mainstream

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone writes: While legal malpractice deals with negligence or good-faith mistakes, Judiciary Law §487 deals with attorney deceit. In the past, it appeared that courts viewed §487 cases with disfavor, and as the least important of any causes of action arising from the attorney-client relationship. But there have been some important developments in the past year, which now reveal the law is mainstream and no longer a fluke.

Thomas A. Moore and Matthew Gaier

New York State Medical Indemnity Fund Experience

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier examine the impact of the New York State Medical Indemnity Fund, established five years ago, and make suggestions for improving its effectiveness and its ability to serve the injured children for whom it was established.

Robert J. Anello and Richard F. Albert

Rise of ABA Task Force's 'Shadow Sentencing Guidelines'

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: Because the federal sentencing guidelines applicable to fraud cases are widely acknowledged as broken and dysfunctional, particularly in cases where the loss amount is high, sentencing judges may increasingly seek other sources to help guide their discretion. Since its 2014 issuance, perhaps the most thoughtful alternative framework has been that offered by the ABA's Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes.

H. Christopher Boehning and Daniel J. Toal

Proportionality Is on the Rise

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: FRCP 26(b)(1), as amended, effective Dec. 1, 2015, clearly establishes the scope of discovery to be items that are (1) relevant, (2) non-privileged, and (3) proportional to the needs of the case. Since the enactment of the amended rule, courts appear to be faithfully and pragmatically enforcing these standards.

Jeffrey S. Klein and Nicholas J. Pappas

Discrimination Against Transgender Individuals

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas describe the current state of federal, New York State and New York City law on discrimination against transgender and gender nonconforming individuals, and suggest several ways that employers with operations in New York City might want to amend their policies and practices.

Barry Kamins

Defendant's Grand Jury Testimony: Who Decides?

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins discusses a recent case in which the Court of Appeals revisited the allocation of decision-making authority between defense counsel and a defendant, holding that the decision regarding whether to testify before a grand jury is a strategic one, resting solely within the professional discretion of defense counsel and one that is not fundamental or personal to the defendant.

Lisa Bentley

Actions by Insureds Against Brokers: 'Special Relationships'

By Lisa Bentley |

Lisa Bentley examines the state of the law on the "special relationship" between insurance brokers and their clients since the Court of Appeals issued its seminal decision in 'Voss v. The Netherlands Insurance Company' two years ago, which held that a broker could be subject to liability for negligence or other tort claims where such liability would be unattainable in the typical broker-insured relationship.

John P. Furfaro and Risa Salins

WARN Act Update: New Questions and Application

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins discuss developments regarding Worker Adjustment and Retraining Notification liability as a single employer, offsets of WARN notice pay from voluntary severance pay and aggregation rules for calculating the number of layoffs necessary to trigger WARN notice.

Hal R. Lieberman

New Rules for Attorney Disciplinary Matters: Formal Proceedings

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman writes: Much can be said in praise of the uniform rules, most notably "uniformity" itself. Yet, in the author's opinion, there are also significant flaws and lacunae in the uniform rules relating to formal proceedings.

Theodore W. Ucinski III and Matthew S. Libroia

Enforcing a Personal Injury Settlement in Age of Emails and Texting

By Theodore W. Ucinski III and Matthew S. Libroia |

Theodore W. Ucinski III and Matthew S. Libroia write: The recent trend toward instant electronic communication, especially favored by young attorneys, has led the courts to begin to veer toward a more encompassing view of what constitutes a "writing subscribed by him or his attorney" pursuant to CPLR §2104. To date, the court has not ruled on the use of text messaging to enforce a settlement. However, they have demonstrated a strong propensity to permit the enforcement of stipulations of settlement even when communicated through electronic means.

Recognizing Child Support Judgments Beyond U.S. Borders

By Seth Lapidow, Michael Rowe and Heidi Tallentire |

Seth Lapidow, Michael Rowe and Heidi Tallentire of Blank Rome discuss 'Bond v. Lichtenstein', an action to enforce a cross-border judgment awarding child support. The case clarified for the first time how to enforce such an award and the entitlement to attorney fees in so doing.

Howard Epstein and Theodore Keyes

Representations and Warranty Insurance Comes of Age

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes of Schulte Roth & Zabel write: The growing market and growing demand for Representation and Warranties insurance demonstrates that this product has become a valuable tool for deal makers. The experience of the last few years suggests that use of these policies will continue to grow as more practitioners gain experience with the product.

Volkswagen advertisement

FTC Sues Volkswagen For Deceptive Claims In ‘Clean Diesel’ Ads

The Federal Trade Commission has sued Volkswagen Group of America Inc. over billions of dollars consumers spent on its “clean diesel” vehicles while the company allegedly exposed them to a deceptive advertising campaign.

Scott D. Locke

Patents: Provisional Rights Under 35 USC §154(d)

By Scott D. Locke |

Scott D. Locke of Dorf & Nelson writes: The Federal Circuit's having addressed the provisional rights of 35 U.S.C. §154(d) twice within less than 12 months is indicative of the increased prevalence with which patent holders are seeking to recover under it.

Adam R. Shaw

Recovering Against LLC, Injunction, Declaratory Judgment

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw of Boies, Schiller & Flexner profiles three decisions: one addressing when creditors can gain control over interests in a LLC, another explaining the duration of permanent injunctions, and the last discussing ripeness in declaratory judgment actions.

John L.A. Lyddane and Barbara D. Goldberg

Role of the Arons Interview of Nonparty Physicians

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

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that in the nine years since the Court of Appeals decided 'Arons v. Jutkowitz', the approach to informal interviews of nonparty treating physicians has stabilized, and the courts have protected this valuable resource for the trial attorney.

Steven V. Treglia

Goodbye Safe Harbor. Hello Privacy Shield?

By Stephen Treglia |

In his E-Communications column, Stephen Treglia discusses data privacy in Europe and writes: Until the formal adoption of the Privacy Shield, U.S. companies continue to be at increased risk of privacy violations while handling and/or processing EU citizens' personal data during this period between the abolition of Safe Harbor and the passage of the Shield.

Carlos J. Cuevas

Default Judgments and Collateral Estoppel in Bankruptcy

By Carlos J. Cuevas |

Carlos J. Cuevas discusses the effect of a default judgment, one issued by New York state courts when a defendant was properly served but failed to respond to a claim, on collateral estoppel in the U.S. Bankruptcy Court.

Court Sides With Jimmy John’s Workers Fired Over Poster Campaign

In what some employment lawyers are calling a regrettable ruling, an appeals court on Friday faulted a Jimmy John’s franchisee for firing employees that bashed—and arguably mischaracterized—the sandwich chain’s sick leave policy.

Ilann Margalit Maazel

When Is a Wrongful Conviction Verdict Too Large?

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel discusses the district court's March 4 remittitur of the jury's $18 million award to Alan Newton for 12 years of wrongful incarceration, writing that given the stringent nature of the test, it should be the exceedingly rare case where a court grants a motion for remittitur.

Lanier Saperstein, Daniel W. Beebe and Carol Lee

Expansive Take on Specific Jurisdiction: 'Gucci America v. Weixing Li'

By Lanier Saperstein, Daniel W. Beebe and Carol Lee |

Lanier Saperstein, Daniel W. Beebe and Carol Lee review a recent Southern District decision that represents a significant departure from recent Second Circuit precedent as well as a New York Court of Appeals decision where the court held that a foreign bank's "mere maintenance" of a correspondent account in New York is insufficient to support the exercise of personal jurisdiction over that bank.