Expert Analysis

Thomas J. Hall

Attorney Fee Awards in Shareholder Derivative Actions

By Thomas J. Hall |

In his Commercial Division Update, Thomas J. Hall discusses recent decisions evaluating claims for expenses and attorney fees that may be awarded, at the discretion of the court, when a plaintiff shareholder is successful in a derivative lawsuit brought on behalf of a corporation.

In Defense of Elder Law

By Daniel G. Fish |

Elder Law columnist Daniel G. Fish writes: A recent column in the New York Times questioned the ethics of advising clients about Medicaid eligibility. The planning is pejoratively described as "the mini-industry of lawyers and others who help people arrange their financial lives so they don't spend every last dime on a nursing home." Once again, it is necessary to explain the circumstances that lead seniors to seek valid legal representation.

Steven L. Kessler

SCOTUS Limits Criminal Forfeiture in 'Honeycutt'

By Steven L. Kessler |

Steven L. Kessler writes that with the enactment of the Civil Asset Forfeiture Reform Act of 2000, Congress sought to steer federal prosecutors to criminal forfeiture over civil, believing that the risk of abuse would be reduced because a criminal conviction is required before a defendant's property can be forfeited. Unfortunately, it turned out that greater reliance on criminal forfeiture increased abuses in that area as well. The Roberts-led Supreme Court hinted at some dissatisfaction with the state of criminal forfeiture law in recent decisions, but the rifle shot came in its June 5 decision in 'Honeycutt v. United States'.

David J. Kaufmann

Franchisors as 'Joint Employers': An Update

By David J. Kaufmann |

Franchising columnist David J. Kaufmann writes: It appears that, across the board, the "progressive" attempt to characterize franchisors as the joint employers of their franchisees' employees is suffering a decisive retreat at the hands of federal and state legislatures and the judiciary, and may be doomed altogether once Trump-appointed NLRB board members come to constitute a majority.

Adam Pollock and Randall Fox

FCA Cases: Protect Claims by Relying on NY's Favorable Pleading Standard

By Adam Pollock and Randall Fox |

Adam Pollock and Randall Fox write that in a little-noticed provision at the end of New York's False Claims Act, the New York legislature provided for a lower pleading hurdle when asserting violations of New York's FCA in state court. Accordingly, whistleblowers should strongly consider filing separate federal and state qui tam actions (or seeking to remand improperly removed cases) in order to benefit from the New York FCA pleading standard at the dismissal stage.

Robert W. Clarida and Robert J. Bernstein

Of Fair Use, Rastafarian Photos, and Rule 12(b)(6)

By Robert W. Clarida and Robert J. Bernstein |

Copyright Law columnists Robert W. Clarida and Robert J. Bernstein write: Appropriation artist Richard Prince is back in court this summer for alleged copyright infringement, and the initial proceedings do not augur well for his current efforts to defend his "recontextualizing" of another's photograph as a fair use.

Elizabeth A. Edmondson and Jenna E. Ross

Lost Profit Damages Three Years After 'Biotronik'

By Elizabeth A. Edmondson and Jenna E. Ross |

Elizabeth A. Edmondson and Jenna E. Ross write: In March 2014, the Court of Appeals issued a 4-3 decision in 'Biotronik, A.G. v. Conor Medsys. Ireland' that—according to the dissent and considerable commentary—threatened to upend previously settled New York damages law. Three years later, however, no sea change in the New York law of lost profit damages appears to have occurred.

Kara I. Schechter Rakowski and Alexa Englander

Restrictions in Certain Anti-Harassment Districts Could Impede Development

By Kara I. Schechter Rakowski and Alexa Englander |

Kara I. Schechter Rakowski and Alexa Englander write: The development of multiple dwellings in Special Anti-Harassment zoning districts located in Manhattan has historically come along with its own special kind of red tape. In the last few decades, restrictions on demolition and material alterations have made it very difficult for development in certain special districts. Within the last two years, however, the NYC Department of Housing Preservation and Development has started to enforce a previously overlooked provision of the Zoning Resolution which has presented even more obstacles for developers to navigate in order to develop sites in the Special Hudson Yards, Clinton, West Chelsea and Garment Center districts in Manhattan.

Edward M. Spiro and Judith Mogul

Russian Intrigue Meets the Hearsay Rule

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: On May 12, 2017, the United States settled its asset forfeiture and money-laundering case against Prevezon Holdings just days before that case was scheduled to go to trial, with both sides claiming the $5.9 million settlement as a victory. The facts behind 'U.S. v. Prevezon Holdings' were the stuff of spy novels, but the far from headline-grabbing questions concerning application of the hearsay rule to foreign records the government intended to introduce at trial also led to a hearsay analysis of note.

Shari Lewis - Rivkin Radler.12/13/2016

Social Media Grabs the U.S. Supreme Court's Attention

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis writes: Near the end of the U.S. Supreme Court's past term, the court issued a decision in which the majority opinion recognized the importance of social media in most people's lives. The ramifications of the court's statements about social media already are reverberating in New York courts.

Daniel Pilarski

ExxonMobil Sanctions Penalty: Lessons for Companies and Practitioners

By Daniel Pilarski |

Daniel Pilarski sees two important lessons from the Treasury Department's $2 million penalty against ExxonMobil for its dealings with a sanctioned officer of a Russian company, even though the company itself was not subject to these sanctions: Conduct diligence and get representations and covenants not only from counterparty companies, but also the company's officers and directors. And exercise caution in relying on informal guidance in dealing with sanctions.

U.S. Court of Appeals for the Second Circuit.

Inability to Identify Invoices Does Not Mandate Dismissal of FCA Complaints

By David A. Koenigsberg |

David A. Koenigsberg writes that while six other circuits adopted what some call a "more lenient" pleading standard that permitted qui tam False Claims cases to go forward even when the complaint did not allege details of a false claim that was actually submitted, the Second Circuit had not directly addressed that issue until last month. The case provides guidance for how qui tam relators may satisfy the Rule 9(b) pleading standards in the absence of direct knowledge that false claims were actually submitted to the government.

Conflict Between CPLR and Bankruptcy Code: A Dilemma for Lenders

By Nicole E. Schiavo |

Nicole E. Schiavo discusses the conflict between New York's legislation requiring mandatory settlement conferences in foreclosure actions and the Bankruptcy Code's prohibition against a creditor taking any act that can be construed as trying to collect a discharged debt from a debtor. Thus, if a foreclosure action is commenced against a borrower who previously received a discharge on their mortgage loan debt, the lender is left with a "Catch 22": comply with the CPLR and risk violating the Discharge Injunction, or vice versa.

Ilene Sherwyn Cooper

Variety Fare: Counsel Disqualification, Directed Accounting, Sua Sponte Review

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper: The past several months have witnessed significant decisions on a multitude of issues affecting the field of trusts and estates.

Harvey M. Stone and Richard H. Dolan

Court Addresses Sentencing Issues and Suits Arising From State Proceedings

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review Judge Weinstein's imposition of a sentence of time served, well under the Guidelines range, in a narcotics case where defendant would be deported on completing his term of incarceration; Chief Judge Irizzary's grant of a §2255 petition where, under recent Supreme Court rulings, petitioner's prior offenses did not support a sentencing enhancement under the Armed Career Criminal Act; and more

Thomas A. Dickerson

New York State Class Actions: Taking a Stand for Labor

By Thomas A. Dickerson |

Thomas A. Dickerson writes: I have been writing about New York state class actions under CPLR Article 9 since 1979, and although the proper utilization of Article 9 has on occasion been problematic, there are moments when decisions can, indeed, be inspiring. The First Department's decision in 'Gold v. New York Life Insurance Company' is one of them.

David M. Barshay

Written Notice of Accident

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay discusses what qualifies as "timely written notice" of an accident beyond a No-Fault Application N-F 2 form, and the continuing hot topic of the examination under oath/independent medical exam no-show defense.

Marcie Borgal Shunk

Future-Proofing the Law Firm

Law Firm Management columnist Marcie Borgal Shunk writes: As with any other attempt to prognosticate, the very premise of "future-proofing" a law firm is wrought with caveats and "what-if" scenarios. There is no magic bullet, no one size fits all solution. There are, however, a set of fundamental, intertwined elements that together will combine to determine the market position, financial health and, ultimately, sustainability of a law firm.

Carrie Cohen

Recent Trials Show Importance of Investigating Cooperating Witnesses

By Carrie H. Cohen |

Carrie H. Cohen writes: Cooperation agreements long have offered defense lawyers a potentially powerful avenue of attack. But the typical line of attack on cross-examination of cooperating witnesses, using his or her own crimes and desire to avoid a long prison sentence to undermine the witness's credibility, should be part of a much broader strategy. Everything—employment history, prior convictions, marital records, litigation history—should be open for scrutiny.

Michael Hoenig

Class Arbitration: Who Decides, The Arbitrator or the Court?

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: The preemptive effect of valid arbitration agreements to preclude lawsuits in court, even class actions via arbitration clause class action waivers, has been reinforced by the U.S. Supreme Court time and again in recent years. But, what if there is an arbitration clause in the contract and the provision is silent about class arbitration? Is it an issue the arbitrator can decide or is viability of class arbitration an issue for a court to decide? That question was decided by the Eighth Circuit on July 28 as an issue of first impression in that circuit.

Margaret A. Dale and Mark D. Harris

The SEC Concludes That Digital Tokens May Be Securities

By Margaret A. Dale and Mark D. Harris |

In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris write: The flurry of recent Initial Coin Offerings have raised questions as to whether, and in what circumstances, virtual currencies and digital tokens may be considered securities whose offer and sale are subject to federal registration requirements. A recent report by the SEC cautioning investors that digital assets may be securities is a turning point for the token marketplace and other blockchain-based mechanisms of alternative fundraising.

Kevin G. Faley and Andrea M. Alonso

Consent, I Presume? VTL §388 and Permissive Use

By Kevin G. Faley and Andrea M. Alonso |

Kevin G. Faley and Andrea M. Alonso write that Vehicle and Traffic Law §388 establishes a rebuttable presumption that a vehicle owner consented to the operation of her vehicle by another party, and is therefore vicariously liable for the acts of the permitted driver, once a plaintiff meets the threshold requirement of proving a defendant's ownership of a vehicle. The burden then shifts to the defendant to offer "substantial evidence" that consent was neither given expressly or impliedly. While this seems pretty straightforward, this burden is fairly difficult to meet.

Shepard Goldfein and James A. Keyte

'A Better Deal' on Antitrust Enforcement: Can Democrats Catch the Populist Wave?

By Shepard Goldfein and James Keyte |

Antitrust Trade and Practice columnists Shepard Goldfein and James Keyte write: Although there was no meaningful proposal by Congress during the Obama administration to re-write the antitrust laws to make big "bad" once again, to regulate the pricing of lawful monopolists, or to use the antitrust laws as a tool for social and economic engineering, harkening back to the trust-busting days of old, the 2018 midterm elections beckon, and Congressional Democrats do not want to miss the populist wave a second time.

Joel Cohen

May the Government Communicate With a Represented Client?

By Joel Cohen |

Ethics and Criminal Practice columnist Joel Cohen writes: The question itself seems ridiculous, doesn't it? Of course, the answer has to be "no." Except … not really.

Richard Raysman and Peter Brown

Duped Into Wiring $5 Million? Cyber Insurance Could Cover It

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown write: Courts have begun to encounter a growing number of disputes over cyber insurance coverage, mostly relating to the scope of coverage, not to its existence. One recent example is the Southern District of New York's decision in 'Medidata Solutions v. Federal Insurance Co.'

Nominative Fair Use Under the Trademark Laws

By Howard Wintner |

Howard Wintner writes: The Second Circuit, and the district courts within it, have recognized the nominative fair use doctrine and used it for numerous years, including several district court decisions adopting the Ninth Circuit's test. However, prior to 2016, the Second Circuit had not endorsed either the Ninth or Third Circuit's test for nominative fair use.

Lawrence W. Newman and David Zaslowsky

SCOTUS Decisions Address a Lower Court Split, the FSIA and Personal Jurisdiction

By Lawrence W. Newman and David Zaslowsky |

International Litigation columnists Lawrence W. Newman and David Zaslowsky discuss two recent U.S. Supreme Court decisions in the area of international litigation and a personal jurisdiction decision that re-enforced earlier holdings that make it more difficult to assert jurisdiction over foreign parties.

Barry Kamins

Expanding the 'Wade' Hearing: New Police Identification Protocols

By Barry Kamins |

Criminal Law and Procedure columnist Barry Kamins reviews the new best practices for identification procedures by witnesses, which reflect the results of substantial scientific research in the area of memory, perception and recall.

New York Vacates Arbitral Award With Manifest Disregard Doctrine

By Claudia Salomon |

Claudia Salomon writes: In 'Daesang v. The NutraSweet Co.' (May 2017), the New York State Supreme Court partially vacated a $100 million International Chamber of Commerce arbitral award on the grounds of manifest disregard of the law. The decision has strategic implications for how parties will invoke that doctrine when contesting future awards, and it could also potentially affect New York's reputation as a seat for the reliable enforcement of international arbitral awards, and as a venue with courts that respect and support this alternative dispute resolution process.

Brian J. Shoot

The Homeowners' Exemption

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot discusses who, precisely, are "owners" of "one and two-family dwellings" for the purposes of exemption from Labor Law §§240 and 241, and the two principal exceptions to the exemption.

David E. Schwartz and Risa M. Salins

NLRB's Acting GC, ERISA-Exempt Church Plans, FCA Seal Requirements

By David E. Schwartz and Risa M. Salins |

Labor Relations columnists David E. Schwartz and Risa M. Salins review U.S. Supreme Court decisions regarding whether the former acting general counsel of the National Labor Relations Board properly served in that role after his nomination to serve as its general counsel on a permanent basis; whether pension plans maintained by certain church-affiliated employers, but not established by a church, qualify for the church plan exemption under the ERISA; and whether qui tam whistleblower suits brought under the False Claims Act are subject to mandatory dismissal when the FCA's requirement to keep such complaints under seal is violated.

Recent Decision Limits Liability of Condo Sponsor's Principal

By Joseph I. Farca |

Joseph I. Farca reviews Board of Managers of '125 North 10th Condominium v. 125North10', where the Second Department extended to a condominium sponsor's principals and members the rule which precludes claims against sponsors (construction defect, in the instant case) based on their alleged violations of the offering plan, merely by reason of those individuals' certification of the offering plan in accordance with the requirements of the Martin Act.

Drawing Fifth Amendment Adverse Inferences Against Corporate Defendants

By Jed I. Bergman and Cynthia M. Jordano |

Jed I. Bergman and Cynthia M. Jordano summarize the key principles courts generally apply in deciding whether to permit Fifth Amendment adverse inferences in civil suits against corporate defendants. To support drawing such adverse inferences, a plaintiff must satisfy three prerequisites. First, there must be independent evidence corroborating the inference. Second, the plaintiff must persuade the court to impute that inference to the corporate defendant. Third, the probative value of the inference must outweigh any unfair prejudice.

Christopher Dunn

The Coming Religion Wars

By Christopher Dunn |

Civil Rights and Civil Liberties columnist Christopher Dunn writes: Amid the tumult engulfing the White House and Congress, one easily loses sight of ominous developments emanating from the third branch of government. But the judiciary has been busy, and civil rights and civil liberties are under assault on many fronts. One of those fronts is the separation of church and state.

Michael J. Hutter

Notable Decisions From the 2016-2017 Court Term

By Michael J. Hutter |

Evidence columnist Michael J. Hutter takes a look at some of the less-heralded decisions from Court of Appeals and the four Appellate Division departments that will have a practical impact upon the trial of civil and criminal cases.

Closing Time: Protecting Your Interests When Your Hotel Purchase Fails to Close

By Joshua D. Bernstein and Kathleen M. Prystowsky |

Joshua D. Bernstein and Kathleen M. Prystowsky write: After putting so much time and resources into negotiating a purchase agreement, and recognizing that deposits for the sale of hotels can run in the millions of dollars, it is important to put significant effort into protecting the seller's rights throughout the implementation of the agreement. Such steps are crucial to lessen exposure should the transaction fail.

Jeffrey S. Klein and Nicholas J. Pappas

U.S. Supreme Court Clarifies ERISA's 'Church Plan' Exemption

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas review the debate in lower courts regarding the scope of the "church plan" exemption from ERISA and whether it applies to plans established by church-affiliated entities, such as hospitals and schools; explain the Supreme Court's holding in 'Advocate Health'; and offer some suggestions for church-affiliated employers to navigate the legal terrain of the "church plan" exemption.

CSX Attracts New CEO and Stock Price Rises Sharply

By Joseph E. Bachelder III |

Executive Compensation columnist Joseph E. Bachelder III writes: In 2017, CSX Corporation, a leading railroad company, paid or committed to pay (subject to certain conditions) over $200 million (including grant-date value of a stock option) to attract as its new chief executive officer E. Hunter Harrison, who has an extraordinary record in leading three major companies in the railroad industry.

George M. Heymann

Is The Scaffold Law's 'Strict Liability' Taking a 'Step' Down?

By George M. Heymann |

George M. Heymann writes: 'O'Brien v. Port Authority' appears to be an outlier among the numerous Court of Appeals decisions on the Scaffold Law. Although the majority notes that this case is one of limited application, because the staircase at issue was immovable and not subject to collapsing as are other protective devices, its determination that defendants' expert raised questions of fact sufficient to defeat a motion for summary judgment may have the unintended effect of opening a floodgate of defense experts in subsequent Labor Law §240(1) cases

Robert J. Anello and Richard F. Albert

Executing Search Warrants in the Digital Age: 'United States v. Wey'

By Robert J. Anello and Richard F. Albert |

White-Collar Crime columnists Robert J. Anello and Richard F. Albert look at a recent high-profile Fourth Amendment victory for the defense in 'U.S. v. Wey' in light of the Second Circuit's final opinion in 'U.S. v. Ganias,' as well as a recent decision in 'In re 650 Fifth Avenue and Related Properties,' which declined suppression despite agents' reliance on a search warrant having constitutional infirmities strikingly similar to those in 'Wey.'

Thomas A. Moore and Matthew Gaier

The Emergency Room Exception for Vicarious Liability

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write: While it has long been recognized that a hospital is vicariously liable for the physicians it assigns to patients where a patient seeks treatment not from a particular physician, but from the hospital, some decisions have strictly imposed all of the requirements of ostensible agency. However, this circumstance is not purely one of ostensible agency. Rather, it is a distinct exception that involves aspects of both ostensible agency and agency-in-fact.

H. Christopher Boehning and Daniel J. Toal

TAR Should Be Applied Before Keyword Searching, Court Says

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: Technology-assisted review, or TAR, is undoubtedly gaining traction in e-discovery practice in complex civil litigations and regulatory investigations. However, practitioners and judges still grapple with inconsistencies and unresolved issues regarding its use and applicability, in no small part due to a shortage of legal opinions on the topic and a lack of consistency in the decisions that do exist.

Alex Lakatos and Marc R. Cohen

Bringing Non-U.S. Defendants Into NY Court, Just Because They Wired Dollars?

By Alex Lakatos and Marc R. Cohen |

Alex Lakatos and Marc R. Cohen write: Most of the world's dollar transactions flow through correspondent bank accounts in New York. Thus, it is important to understand how using a New York correspondent account can subject a non-U.S. defendant to the jurisdiction of a New York court.

Hal R. Lieberman

The First Department's New Rules for Attorney Discipline

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman reports on the First Department's amended procedural rules, which incorporate by reference the new statewide rules set forth in Part 1240, but also contain important additions that either effectuate or amplify the statewide rules.

Thomas E.L. Dewey

'Standard' Provisions Not Implied Into Settlement Agreement

By Thomas E.L. Dewey |

Settlement and Compromise columnist Thomas E.L. Dewey writes: A recent Southern District of New York case offers the lesson that a writing other than a formal settlement agreement may constitute an enforceable agreement—even if one of the parties expects that additional "standard" provisions will be added to the agreement.

W. Todd Hicks

New York Takes the Lead on Cybersecurity Regulation

By W. Todd Hicks |

W. Todd Hicks writes: New York's groundbreaking cybersecurity rules offer a viable model for other jurisdictions to adopt, particularly as global cyberattacks make cyber defense an urgent matter.

Sharon M. Porcellio

Discovery of Mental Health Records, and Complex Issues Regarding Standing

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio reviews Magistrate Judge Marian Payson's consideration of whether a claim limited to garden variety emotional distress precludes discovery of the claimant's mental health records, and District Judge Lawrence Vilardo facing an array of substantive and procedural issues worthy of a law school exam in deciding whether a corporation not named in a contract had standing to proceed with its suit.

Arthur J. Ciampi

Partner Buy-Outs

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi discusses a Ninth Circuit decision that presents a number of useful criteria to apply in determining a "shareholder's" or "partner's" status and provides insight into the nature of transitions from equity to non-equity positions and the ramifications of such transitions for both the law partner and the law firm.

Hervé Gouraige

Federal Courts Lack Authority to Decide Insider Trading Criminal Cases

By Hervé Gouraige |

Hervé Gouraige writes: The federal courts since the 1960s have imposed criminal sanctions for insider trading violations, based on a statute that authorizes criminal sanctions for violations of rules promulgated by the SEC and an SEC regulation that prohibits, without defining, conduct we have come generally to call "insider trading." Yet, in 1812 the U.S. Supreme Court held that federal courts lack constitutional authority to define criminal conduct and decide common-law criminal cases. It is time for the federal courts to get out of the business of enforcing an administrative agency's rule as a crime.

Patrick M. Connors

Federal Courts' Compulsory Counterclaim Rule vs. New York's Permissive Rule

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors writes that a plaintiff might elect to sue in a federal court hoping to compel the defendant to interpose as a counterclaim any claim arising out of the transaction on which the plaintiff's claim is based. This would, in effect, deny the defendant an independent choice of forum on the counterclaim. This proposition was recently tested in 'Paramount Pictures Corp. v. Allianz Risk Transfer AG,' which is currently before the New York Court of Appeals.

Charlotte A. Biblow

Agency Proposes New Regulation on Perc Use by Dry Cleaners

By Charlotte A. Biblow |

State Environmental Regulation columnist Charlotte A. Biblow writes that about 70 percent of the dry cleaners located in the state still use perc as their solvent of choice, despite a 1997 regulation encouraging them to switch to alternate solvents. A new proposal would impose significant financial and management costs on dry cleaners, and have significant implications for their suppliers, workers, landlords and neighbors.

Andrea M. Alonso and Kevin G. Faley

Settlement Techniques: High-Low Agreements

By Andrea M. Alonso and Kevin G. Faley |

Andrea M. Alonso and Kevin G. Faley write: High-low agreements in tort cases are underutilized and often misunderstood, but they are an effective way to prevent a runaway verdict with potential exposure of personal and corporate assets while guaranteeing plaintiff a recovery in the event of a defense verdict.

Martin Flumenbaum and Brad S. Karp

Court Applies Different Principles When Interpreting Injury in Fact

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: Although it is "first and foremost of standing's three elements," in the words of the Supreme Court, injury in fact is not always analyzed consistently: Two opinions handed down in May and June by the circuit appear to apply different principles in interpreting injury in fact. Perhaps as a result of their different analyses, the opinions ordered different appellate dispositions.

Robert C. Scheinfeld

Be Sure You Have a Rational Basis: Federal Circuit Addresses Attorney Fees

By Robert C. Scheinfeld |

Patent and Trademark Law columnist Robert C. Scheinfeld reviews the Federal Circuit's recent examination of three cases to determine whether each was exceptional such that an award of attorney fees was merited in the wake of a 2014 Supreme Court decision that the Federal Circuit's standard for an exceptional case was too rigorous.

Carlos J. Cuevas

Continuing Concealment Doctrine and Bankruptcy Code Section 727(a)(2)(A)

By Carlos J. Cuevas |

Carlos J. Cuevas discusses the continuing concealment doctrine, which extends the statute of limitations period beyond one-year if a debtor has engaged in concealing assets.

Francis J. Serbaroli

A Primer on Senior Living Facilities

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli of Greenberg Traurig reviews the various types of supportive housing and assisted living facilities licensed and regulated in New York state. He notes that these types of facilities enable more and more senior citizens to “age in place” in their own homes with appropriate medical and social support, rather than spending their remaining years in nursing homes.

Jacob Inwald

Residential Foreclosures: Reverse Mortgages Now Covered in New York

By Jacob Inwald |

Jacob Inwald of Legal Services NYC writes: Important changes governing pre-foreclosure notices and settlement conferences for reverse mortgages were signed into law on April 20, 2017, requiring 90-day pre-foreclosure notices in all reverse mortgage foreclosures and requiring settlement conferences in many reverse mortgage cases.

Robert S. Kelner and Gail S. Kelner

An Analysis of 'O'Brien v. Port Authority'

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert Kelner and Gail Kelner discuss ‘O’Brien v. Port Authority,’ where a divided Court of Appeals stepped into a battle of the experts in a construction site accident case. They conclude this to be a case narrowly limited to its facts and “not a game changer in any way.”

Ken Strutin

Technological Inequality and the Information Poor

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Without membership in the Information Society, people become irrelevant, their search for knowledge hopeless.

Non-Residential Tenant Harassment Law Makes 'Self-Help' Eviction Even Riskier for NYC Commercial Landlords

By Jesse B. Schneider |

Jesse B. Schneider of Davis & Gilbert writes: If attorneys were already hesitant to advise commercial landlord clients to exercise peaceable self-help, legislation enacted Sept. 26, 2016 by New York City Mayor Bill de Blasio may have just ended any lasting uncertainly. But courts are still struggling with how and when to enforce the new statute.


Nicholas M. De Feis and Philip C. Patterson

The Global Reach of the U.S. Computer Intrusion Law

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

In their International Criminal Law and Enforcement column, Nicholas De Feis and Philip Patterson use the Eastern District case 'U.S. Gasperini' to illustrate the global reach of U.S. computer intrusion laws. They write that the opinion demonstrates how, as technological innovation increasingly blurs any remaining lines between a computer and other electronic devices, U.S. computer anti-intrusion laws may eventually come to cover conduct involving virtually every electronic device in the world.

Howard Epstein and Theodore Keyes

SEC Disgorgement: Is It Insurable?

By By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard Epstein and Theodore Keyes discuss 'Kokesh v. SEC,' where the U.S. Supreme Court held that the SEC's use of disgorgement of profits as a remedy in an enforcement action constitutes a penalty that is subject to the federal five-year statute of limitations. They write: The question at issue for the Kokesh court was whether SEC disgorgement is a penalty. The question for the insurance community is whether it is insurable. The question for us is whether these two issues may overlap.

Samuel Estreicher and Holly H. Weiss

'Scrollwrap' Agreement to Arbitrate Held Enforceable While 'Clickwrap' Is Not

By Samuel Estreicher and Holly H. Weiss |

Arbitration columnists Samuel Estreicher and Holly H. Weiss review a recent Southern District decision where the court departed from a recent trend of enforcing "clickwrap" agreements by declining to enforce the arbitration provision contained within Lyft's "clickwrap" agreement but nonetheless compelling arbitration based on Lyft's subsequent "scrollwrap" agreement.

E. Leo Milonas and Andrew C. Smith

From Monkeys to Bobcats: Appellate Division Tackles Habeas Corpus, Safety Options

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith report on decisions involving whether a telephone company is a utility for tax purposes, a manufacturer's liability for failing to install "optional" safety features on a product being sold to a company that intends to rent it to consumers, regulation of charter schools, discovery of 911 call records, and more.

Jordan Thomas

Happy Anniversary, Dodd-Frank

By Jordan A. Thomas |

Jordan A. Thomas writes: We don't say this often, and we haven't heard it lately, but with the SEC Whistleblower Program, the United States government got it right. Really right.

Jeremy H. Temkin

Innocent Spouses Falling Victim to Jurisdictional Time Bars

By Jeremy H. Temkin |

Tax Litigation Issues columnist Jeremy H. Temkin writes that the Second and Third Circuits have recently concluded that the 90-day deadline to challenge the denial of innocent spouse status constitutes a jurisdictional "adjudicatory rule" and that the failure to comply with that deadline will preclude judicial review.

Bill Moran

Forgetting Our Internet Woes

By Bill Moran |

Bill Moran writes: The First Amendment details bedrock principles in the United States that counter the "right to be forgotten" movement proceeding in Europe and elsewhere. But a debate is needed over where to find the proper balance between our inherent privacy rights concerning at least some of our personal online data on the one hand, and the constitutional rights to freedom of speech and freedom of the press on the other. A more focused approach might strike the balance and thereby advance a foundation for Internet privacy regulation.

John L.A. Lyddane and Barbara D. Goldberg

Defending Against the Continuous Treatment Doctrine

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

Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg discuss continuous treatment and exploring the intent and beliefs of the patient at deposition to establish whether the statute of limitations should be tolled.

Lynn K. Neuner and William T. Russell Jr.

Court Tackles State Public Education Funding in Two Cases

By Lynn K. Neuner and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. write that at the end of last month, the Court of Appeals addressed once again the issue of adequate state funding for public education, dismissing plaintiffs' statewide challenges to the system, but permitting certain claims to proceed solely to the extent that they relate to circumstances in Syracuse and New York City.

Jonathan A. Dachs

Recent Legislative, Regulatory Amendments Pertaining to Auto Insurance: Part I

By Jonathan A. Dachs |

Insurance Law columnist Jonathan A. Dachs reports on recent legislative and regulatory amendments pertaining to "transportation network companies," such as Uber, Lyft, Gett, and the like, which include amendments to the SUM Endorsement set forth in Regulation 35-D.

Edward W. De Barbieri

Public Benefits and the Public Trust Doctrine in 'Avella v. City of New York'

By Edward W. De Barbieri |

Edward W. De Barbieri writes: The recent Court of Appeals decision in 'Avella v. City of New York' prevents a major economic development project in northern Queens from moving ahead. Known as the "Valley of Ashes" in The Great Gatsby, the site of the project includes a polluted brownfield where small auto repair shops have repaired vehicles for decades. Those same business owners, primarily immigrant entrepreneurs, have thrived without passable streets, sewers, sidewalks, and other infrastructure. For decades government has tried unsuccessfully to redevelop Willets Point.

Shepard Goldfein and James A. Keyte

Vitamin C Litigation: Window Into Trump White House International Relations?

By Shepard Goldfein and James Keyte |

Antitrust Trade and Practice columnists Shepard Goldfein and James Keyte write: Just before the U.S. Supreme Court's most recent term expired, the justices set the stage for a potential test of the Trump administration's ideological vigor. By inviting Acting Solicitor General Jeffrey Wall's office to "file a brief ... expressing the views of the United States" regarding 'In re Vitamin C Antitrust Litigation,' the court has offered President Donald Trump and his government an opportunity to expound on one of the president's most popular talking points pre- and post-campaign—the issue of China's abuses of international trade.

Stephen M. Kramarsky

Drake Infringement Case: Fair Use as a Matter of Law

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky writes: Though once chaotic, the legal environment for sampling (at least in the U.S. music industry) has settled into a well-understood legal regime, with rigorous clearance and licensing practices becoming the industry norm. Nevertheless, as a recent case involving musician Drake shows, there are always edge cases, and litigation does arise. With the meteoric rise of shared and repurposed content in social media and other digital contexts, those cases are likely to be more and more common.

Out-of-Possession Owners and Snow, Ice Liability: Appellate Courts Are Split

By Alan R. Levy |

Alan R. Levy writes: Do "out-of-possession" commercial landowners, who have transferred possession and control of premises to a commercial tenant, retain the non-delegable duty to remove snow/ice from their abutting sidewalks? Can they be liable for injuries arising from an alleged failure to do so? The courts appear to be struggling with this question, as there appears to be a split among the First and Second Departments.

Ben Rubinowitz and Evan Torgan

Exposing a Lie During Cross-Examination

By Ben Rubinowitz and Evan Torgan |

Trial Advocacy columnists Ben Rubinowitz and Evan Torgan write: Too often trial lawyers fail to maximize key points that, if fully developed during cross, will serve not only to discredit the witness, but to anger the jurors so that they begin to question and doubt your adversary's entire case. A thorough line of attack with respect to a lie does not simply prove that a witness was dishonest, but explores the thought process that went into concocting the lie in the first instance, the motives behind that lie, and the ultimate goal that the witness hoped to achieve by engaging in such deception.

Sidney Kess

Death of an Employee: Tax Ramifications

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses important considerations that arise after the death of an employee, such as the taxation of retirement benefits paid to a surviving spouse or other beneficiary, notification of COBRA coverage, and more.

Gary J. Mennitt and Jeff Masters

Emails and the Mailbox Rule: 21st Century Application of a 19th Century Doctrine

By Gary J. Mennitt and Jeff Masters |

Gary J. Mennitt and Jeff Masters write: Email and other forms of electronic communication have been commonplace for years, and people will likely increasingly rely on email for the transmission of statutory and contractual notices as well as other documents that affect legal rights. With the typical office worker receiving more than 90 emails every day on average, it is certain that disputes will continue to arise concerning whether such emails constitute actual and constructive notice.

Harvey M. Stone and Richard H. Dolan

Court Addresses Inconsistent Verdicts, Joint Employers and Package Labeling

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review Judge Glasser's holding that an alleged inconsistency between a guilty verdict on count one and the jury's answers to special interrogatories on the verdict sheet did not require a new trial; Judge Weinstein's finding that two legally distinct entities were "joint employees" under the Fair Labor Standards Act, thus requiring employee work hours to be assessed cumulatively in determining overtime pay; and Judge Feuerstein's opinion that the labeling on packages for Kellogg's "Cheez-It Whole Grain" crackers was not misleading.

Susan L. Pollet

Asylum Application Processes and Co-Extensive Removal Processes

By Susan L. Pollet |

Susan L. Pollet writes: A major hurdle for children impacted by immigration proceedings is access to representation, either of their legal interests or of their best interests. Only a small portion of unaccompanied migrant children who are victims of trafficking do have legal representation through legislation. Moreover, currently, U.S. immigration law does not recognize children's interests as a valid factor in immigration decisions.

Michael B. Gerrard and Edward McTiernan

Survey of 2016 Cases Under New York State Environmental Quality Review Act

By Michael B. Gerrard and Edward McTiernan |

Environmental Law columnists Michael B. Gerrard and Edward McTiernan write that for only the second time since this annual survey began in 1991, no court overturned any agency decision where an environmental impact statement had been prepared. In sum, 2016 was a bad year for plaintiffs in SEQRA cases.

Ilann Margalit Maazel

'Bivens' on the Ropes

By Ilann M. Maazel |

Civil Rights Litigation columnist Ilann M. Maazel writes: Most lawyers have some familiarity with 42 U.S.C. §1983, which provides a private cause of action against state officers who violate, inter alia, the U.S. Constitution. Less familiar, though no less important, is the judicially-created private cause of action against federal officers who violate the Constitution, under 'Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics'—a decision that has now sustained a significant blow by the U.S. Supreme Court.

patent

Patent-Eligible Software Under 'Alice'

By Brenda Pomerance |

Brenda Pomerance discusses the current law regarding patent-eligible software and how patent applications should be written to maximize the chance of presenting patent-eligible subject matter.

Kathleen A. Scott

Treasury 'Core Principles' Report: Will Non-U.S. Banks Be Able to Benefit Too?

By Kathleen A. Scott |

International Banking columnist Kathleen A. Scott writes that there is something for banks large and small in Treasury Secretary Steven Mnuchin's report on the extent to which current U.S. financial regulatory requirements promote and support seven "core principles" set out in Executive Order 13772.

Lewis R. Clayton and Eric Alan Stone

Courts of Appeals to Decide Boundaries of Fair Use in the Digital Age

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone write that following the Google Books case, which, according to the Second Circuit, "tests the boundaries of fair use," two cases pending at the Eleventh and Federal Circuits may further test these boundaries.

Lanier Saperstein and Carol Lee

The Alien Tort Statute: Still Raising Threshold Questions of First Impression

By Lanier Saperstein and Carol Lee |

Lanier Saperstein and Carol Lee discuss the upcoming U.S. Supreme Court decision on the long-awaited issue of whether corporations can be liable under the Alien Tort Statute, a statute enacted by the First Congress more than 225 years ago.

Elkan Abramowitz and Jonathan Sack

Victims' Rights and White-Collar Defense

By Elkan Abramowitz and Jonathan Sack |

White-Collar Crime columnists Elkan Abramowitz and Jonathan Sack discuss the Crime Victim Rights Act, writing: To be sure, advocacy by putative victims can exert influence on prosecutors and courts in a manner that complicates defense of a white-collar case. At the same time, the rights of putative victims may, on occasion, give rise to disclosures that assist the defense.

Martin A. Schwartz

SCOTUS Rejects Excessive Force 'Provocation' Doctrine, Invokes Proximate Cause

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz writes that the U.S. Supreme Court recently overturned the Ninth Circuit's "provocation doctrine" on the ground that it was inconsistent with Fourth Amendment excessive force jurisprudence. The court held that whether officers who conduct an unconstitutional search are liable for injuries from their subsequent use of force depends upon the application of traditional proximate cause principles—but applying proximate causation in these circumstances is easier said than done.

Richard Raysman and Peter Brown

Strategic Partners Beware: Your 'Special Relationship' May Prolong Litigation

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown write: In some cases, strategic partnerships go wrong and invariably litigation ensues. In 'Kortright Capital Partners', litigation ensued and one claim survived a motion to dismiss in part on the rationale that a strategic partnership sufficiently creates a "special relationship" between the partners that requires a greater degree of candor and fair dealing when contemplating the prospective strategic alliance with an unrelated third party.

Brian P. Heermance and Christopher P. Keenoy

Understanding New York's Economic Loss Rule

By Brian P. Heermance and Christopher P. Keenoy |

Brian P. Heermance and Christopher P. Keenoy write: New York's Economic Loss Rule is purportedly a simple common law principle. However, its evolution and application have proven to be quite the opposite. A clear understanding of this rule is essential as it can significantly minimize exposure in many cases and in some instances result in the complete dismissal of a claim.

Michael Hoenig

SCOTUS Speaks on 'Specific' Jurisdiction

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig analyzes the Supreme Court's recent decisions on general and specific jurisdiction, which must be regarded by litigators and courts as pivotal rulings going to the heart of a state court's ability to adjudicate a case.

C. Raymond Radigan

Proposed New York Trust Code

By C. Raymond Radigan |

Trusts and Estates Law columnist C. Raymond Radigan updates practitioners on the recommendation that New York adopt its own New York Trust Code, and discusses guardianship of individuals with different disabilities.

SCOTUS to Decide if Cell Site Location Is Protected by Fourth Amendment

By Harry Sandick and George LoBiondo |

Harry Sandick and George LoBiondo write that in June, the Supreme Court granted certiorari in a case that will test whether the justices are again willing to break new ground in the cell phone privacy context. The court will decide whether the government needs a search warrant to obtain historical records of a suspect's cell phone location, or whether it may do so under the Stored Communication Act, which requires the government to show only that there are reasonable grounds to believe that the records are "relevant and material to an ongoing criminal investigation."

Timothy M. Tippins

Bias in Custody Evaluations

By Timothy M. Tippins |

Matrimonial Practice columnist Timothy M. Tippins writes: Although sometimes called a standard, "best interests of the child" is not. It is in no way an operationally defined specification. It is at best a legal construct representing an aspiration, one laden with personal, social, cultural and moral value judgments.

Joseph D. Nohavicka

Court of Appeals Curbs Coverage for 'Additional Insureds'

By Joseph D. Nohavicka |

Joseph D. Nohavicka writes: In 2015, when the First Department handed down its decision in 'Burlington Insurance Company v. NYC Transit Authority', insurance law mavens noted that the court was continuing on a course of expansion of additional insured coverage. Recently, that course of expansion has reached its terminus at the Court of Appeals, which reversed the First Department by rejecting the argument that any additional insured obligation is owed under the language of the 'Burlington' endorsement at issue when the named insured is without fault.

Evan Krinick

Landmark N.J. Supreme Court Ruling Boosts Fraud Fight

By Evan H. Krinick |

Insurance Fraud columnist Evan H. Krinick writes: There seems to be no limit to the kinds of schemes that people create to defraud insurance companies and, by extension, the public, through higher premiums. Now, however, the New Jersey Supreme Court has issued a unanimous decision that certainly will help to reduce insurance fraud in New Jersey—and that, if its reasoning is adopted by other jurisdictions, likely will have the same effect in states across the country.

Wallace Collins

Understanding the Book or Screenplay Option Agreement

By Wallace Collins |

Wallace Collins writes: An option agreement at its most basic is a contract whereby the writer grants to a producer, production company or studio, for a period of time and for a payment, the right to make a film of the writer's book, story or screenplay. The three main material issues that usually arise in negotiating such a deal are the length of the option period, the amount of the option payment and the purchase price if the project comes to fruition. How each of these issues will be resolved will vary depending on the negotiating leverage of the respective parties.

Eva Talel and Richard Siegler

Conflicts of Interest: A Broker on the Board

By Eva Talel and Richard Siegler |

In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler examine the duty of care, the business judgment rule, the definition of an interested director and safe harbor provisions that can save a transaction from being successfully challenged when a co-op/condo board director brokered a transaction for the sale of an apartment in the building, which transaction the board is evaluating.

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

Pyrrhic Victories Are to Be Avoided

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

Appellate Practice columnists Thomas R. Newman and Steven J. Ahmuty Jr. use two recent cases to remind practitioners that it cannot be counted a victory if a favorable verdict is set aside by the trial or appellate court after a lengthy trial and the case must be retried at considerable expense, loss of time and renewed mental and emotional strain on the injured party or his or her survivors—all because of counsel's avoidable error.

Michael C. Rakower and Melissa Yang

Seeking Benefits Owed Under an ERISA Top-Hat Plan: A Primer for Litigators

By Michael C. Rakower and Melissa Yang |

Michael C. Rakower and Melissa Yang write: Not all benefit plans are treated equally under ERISA. Some are regulated less closely than others, such as "top-hat plans," unfunded employee benefit plans established principally to provide deferred compensation for "a select group of management or highly compensated employees." Although excluded from some requirements, top-hat plans are subject to ERISA's civil enforcement provisions.

Michael N. Rader and Jason W. Balich

Hitting It Out of the Park With an Expert Witness in a Patent Case

By Michael N. Rader and Jason W. Balich |

Michael N. Rader and Jason W. Balich write that while fact witnesses lay foundation, establish case themes, and can generate sympathy for one side or the other, it is usually the experts who give the jurors the raw material they need to reach an ultimate decision on liability and damages. The credibility and thoroughness of an expert's testimony can thus have a significant impact on the outcome of a patent case that makes it to trial. A few best practices can help parties find the right experts and prepare them to deliver a standout performance.

Anthony E. Davis

Client Intake: Know Your Client—Or Else

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses two cases while exploring an issue critical to lawyers’ and law firms’ professional and business interests: What information about a new client does a lawyer need to obtain in order to make sensible decisions about whether or not to proceed?

Jennifer Cona

End-of-Life Decisions for Incapacitated Adults: Caught Between a Conflict of Laws

By Jennifer B. Cona |

Jennifer Cona writes: The imposition of unwanted medical treatment still happens today in the context of incapacitated patients who reside in hospitals and nursing homes due to an apparent conflict between limitations placed on the powers of a guardian in some court jurisdictions versus the standards set forth under the Family Health Care Decisions Act.

Thomas A. Dickerson

Designing a Coupon Settlement to Maximize Its Value

By Thomas A. Dickerson |

Thomas A. Dickerson writes: Although subject to criticism, there are occasions when a non-cash settlement of coupons, in whole or in part, for the purchase of good and services from the defendant may be appropriate. The courts must be particularly careful and make certain that a proposed coupon settlement is nearly as good as a cash settlement as possible.

John Fellas

Can Arbitrators Award Third-Party Funding Costs in International Arbitration?

By John Fellas |

In his International Arbitration column, John Fellas writes: The growth of third-party funding has raised certain novel issues in international arbitration. These issues relate to the disclosure obligations of arbitrators who may have some connection to a funder, the impact of the use of third-party funding on the attorney-client privilege, and the award of costs. This article will focus on costs.

Martin Flumenbaum and Brad S. Karp

Permissibility of Offsetting Criminal Forfeiture Orders by Preemptive Restitution Payments

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss the circuit's recent decision in 'United States v. Bodouva', which addressed whether restitution offsets could be used to lower, or even eliminate, criminal forfeiture orders.

U.S. Supreme Court building in Washington, D.C.

SCOTUS Tackles Venue and Jurisdiction Issues in Trio of Decisions

By Gary J. Mennitt, Dennis H. Hranitzky, Debra D. O'Gorman and Selby P. Brown |

Gary J. Mennitt, Dennis H. Hranitzky, Debra D. O'Gorman and Selby P. Brown discuss the U.S. Supreme Court's new trio of civil procedure cases which confront issues of venue, general personal jurisdiction, and specific personal jurisdiction, and summarize the impact they are likely to have on forum choice.

Richard Strassberg and William Harrington

Fraud and Abuse Enforcement Goes High Tech

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington write: The eClinicalWorks settlement and OIG report will likely prompt a significant increase in enforcement activity related to electronic health records incentive payments. The authors review these developments, their ramifications, and steps EHR companies and health care providers can take to protect themselves from liability related to EHR incentive payments below.

Shira Forman

Responding to a Complaint: Tips for Drafting Answers

By Shira Forman |

In her Litigation 101 column, Shira Forman provides guidelines and strategies for drafting an answer that will serve your client well as litigation moves forward.

Dani Schwartz

May a Tenant File a Notice of Pendency?

By Dani Schwartz |

Dani Schwartz writes: There is presently a putative split between the First and Second Departments as to whether a tenant in a leasehold dispute lacking interest in title to real property may properly file a notice of pendency. The author explores the statutory history and case law to address the question of whether a tenant may do so.

James E. Mercante

Troubled Waters: A Tweet to the Supremes

By James E. Mercante |

In his Admiralty Law column, James E. Mercante examines the test for federal maritime jurisdiction, writing: The current admiralty jurisdiction test has caused confusion, expense and inconsistent results. It is time to bring back the “bright line” rule, and apply maritime jurisdiction to all torts that originate on a vessel in navigable waters.

Michael Rikon

What Part of 'You Cannot Build on a Park' Don't You Understand?

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon discusses the recent decision in 'Matter of Avella v. City of New York', which enjoined the proposed development of parkland in Willets Point, Queens as a shopping mall and movie theater on Citi Field's parking lot.

Peter A. Crusco

Bitcoins and Routing Data: An Analysis of 'Ulbricht'

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco discusses implications of the recent Second Circuit decision in 'Ulbricht', in which Internet routing data was obtained via pen register. The evidence provided a key link connecting defendant's online activity to a massive Bitcoin criminal enterprise scheme that thrived through a website called Silk Road. 'Ulbricht' is example of why courts proceed with care when considering changes, however slight, to the Fourth Amendment's concept of privacy expectations in communications and records in the digital age.

Bradley M. Wanner and Andrew J. Orenstein

Notice of Claim Requirements in Suits Against Police Officers Revisited

By Bradley M. Wanner and Andrew J. Orenstein |

Bradley M. Wanner and Andrew J. Orenstein discuss a unanimous Second Department decision which overturned the dismissal of a lawsuit against three police officers who were not named in the Notices of Claim. With departments now split, it will only be a matter of time before the Court of Appeals is asked whether claimants are required to name individual municipal employees in their Notices of Claim.

First Department Expands the Right to License Fees Under RPAPL §881

By Craig M. Notte |

Craig M. Notte writes that by upholding license fees for access to a non-critical, lifestyle portion of an apartment, the First Department has blurred the mandatory work/new construction distinction, thereby adding a new dimension to parties' negotiations for mandatory work access under RPAPL §881. Without a clear distinction, parties may find themselves at an impasse on whether compensation is in order and how much, resulting in delays in performance of critical repairs and requiring more judicial intervention to sort out the parties' rights.

Conrad Teitell

IRS Disallowed Charitable Deductions Lacking Donative Intent; Tax Court Disagrees

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell discusses 'McGrady', T.C. Memo, 2016-233, a case in which a donor claimed $4.7 million in charitable deductions for conservation easement gifts. The IRS found that the donor lacked donative intent, and the Tax Court held otherwise.

How to Get Permission for a Non-Citizen to Stay and Work for You in the U.S.

By Richard Link |

Richard Link writes: You've found the right person for your job opening, but you suspect there's going to be one little catch: She's not a U.S. citizen. In fact, you're pretty sure she doesn't have any kind of legal status in the United States. Is there any way to hire this person? The short answer is maybe, and it won't be easy. But with enough advance planning, it is possible for you as the employer to obtain for certain workers the right to live and work in the United States, either temporarily or permanently.

Jerry H. Goldfeder and Myrna Pérez

A Tale of (at Least) Two Gerrymanders

By Jerry H. Goldfeder and Myrna Pérez |

Government and Election Law columnists Jerry H. Goldfeder and Myrna Pérez discuss recent rulings and pending cases involving gerrymandering, writing that these cases should serve as a cautionary note for elected officials thinking about using partisanship as a tool for job security.

The Appellate Division, First Department, at 27 Madison Ave.

Loosening the Reins on Post-Note of Issue Discovery

By Christopher Simone and Sofya Uvaydov |

Christopher Simone writes: In the recent year, the First Department has turned over a more lenient leaf for post-note of issue discovery for plaintiffs and defendants alike, slowly relaxing the stringent and somewhat draconian requirements of 22 NYCRRR 202.21(d).

Carlos J. Cuevas

Crime-Fraud Exception and Intentional Fraudulent Conveyance Litigation

By Carlos J. Cuevas |

Carlos J. Cuevas discusses an important issue that arises in intentional fraudulent conveyance litigation—the application of the crime-fraud exception to the attorney-client privilege.

Christine A. Fazio and Ethan I. Strell

States Taking Lead on Reducing Methane Emissions

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law column, Christine A. Fazio and Ethan I. Strell discuss how New York and other states have filled the void in federal climate leadership and are introducing their own methane programs.

Robert J. Bernstein and Robert W. Clarida

When It Comes to Infringement, 'A Joke's a Very Serious Thing'

By Robert J. Bernstein and Robert W. Clarida |

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida discuss the recent decision in 'Kaseberg v. Conaco', wherein plaintiff claimed that five jokes he wrote and published on his blog or Twitter feed were infringed by jokes told by Conan O'Brien. In denying defendants' motion for summary judgment on three of the five jokes at issue, the judge considered arguments on copying versus independent creation, protected expression, and scope of protection. Serious issues indeed!

Lynn K. Neuner and William T. Russell Jr.

'Matter of Avella v. City of New York': A Review

By Lynn K. Neuner and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. discuss an appeal arising out of the proposed development at the former Shea Stadium site. The majority ruled that the development known as "Willets West" cannot proceed because the legislature has not clearly and expressly provided that the parkland underlying the development site can be freed from serving as a park space, as is required under the public trust doctrine, while Chief Judge Janet DiFiore reached the opposite conclusion.

Bernard D'Orazio

Statute of Limitations Rules in Fraudulent Transfer Cases

By Bernard D'Orazio |

Bernard D'Orazio writes: As any seasoned litigator knows, statute of limitations issues can be difficult and complex—and statute of limitations rules governing fraudulent transfer cases, which in New York arise under Article 10 of the Debtor and Creditor Law, are even more complex than those encountered in garden variety civil litigation.

Skip Short and Ioanna Olivia Zevgaras

Medicinal Marijuana: Federal vs. State Controversy Impacts Reimbursement

By Skip Short and Ioanna Olivia Zevgaras |

Skip Short and Ioanna Olivia Zevgaras write: New York is part of a movement that has seen a majority of the states provide for some form of medical marijuana, with the number expanding in recent years. On a federal level, however, marijuana remains illegal. As a result, marijuana reimbursement by insurers is unsettled.

Edward M. Spiro and Judith Mogul

Hurdles and Consequences to Asserting the Fifth Amendment in Civil Litigation

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Although a party or witness in civil litigation may invoke the Fifth Amendment, such invocation often comes at a high price, because, in contrast to the criminal context, the finder of fact in a civil case may draw an adverse inference against the party or witness who declines to provide evidence based on the Fifth Amendment privilege against self-incrimination. Recent decisions from the Southern District address when and how the Fifth Amendment can be invoked in civil litigation, and the ramifications to litigants when parties and non-party witnesses avail themselves of that privilege.

Margaret A. Dale and Mark D. Harris

Disgorgement Subject to 5-Year Statute of Limitations in SEC Enforcement Proceedings

By Margaret A. Dale and Mark D. Harris |

Corporate and Securities Litigation columnists Margaret A. Dale and Mark D. Harris write: For nearly a half-century, when bringing enforcement proceedings for violations of federal securities laws, the SEC has sought a sanction which forces defendants to fork over ill-gotten gains, regardless of how long before the initiation of the proceeding the wrongful conduct generating those gains occurred. Now a unanimous U.S. Supreme Court has put a stop to the SEC's end-run around the limitations period otherwise applicable to agency enforcement proceedings.

Shari Lewis - Rivkin Radler.12/13/2016

Asserting Damages for Data Piracy Under the CFAA

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis writes: There is a growing consensus in the U.S. Court of Appeals for the Second Circuit that recovery of certain forms of damages under the CFAA simply is not permitted—making it difficult to bring causes of action under the CFAA that are able to withstand motions to dismiss.

Paul F. Millus

Employment Disputes: Fox News and the Effort to Upend Mandatory Arbitration

By Paul F. Millus |

Paul F. Millus looks at Gretchen Carlson's suit against Roger Ailes, which attempted to avoid the imposition of mandatory arbitration by not also naming Fox News. How would that argument have fared if the case hadn't settled?

David Salter and Gerry Wendrovsky

Divorce and U.K. Pension Rights

By David Salter and Gerry Wendrovsky |

David Salter and Gerry Wendrovsky write that it is well established in New York that pension rights earned during a marriage "are properly considered marital property subject to equitable distribution." But what happens when a New York matrimonial litigant's pension benefits are foreign, administered by a plan administrator outside the jurisdiction of a New York court?

Sidney Kess

Tax Rules for the Disabled and Their Families

By Sidney Kess |

Sidney Kess writes: According to the last census, nearly one in five people in the U.S. has a disability. Whether a physical, mental, or emotional disability results at birth or arises later from an accident, service-related event, or otherwise, the financial cost of care can be substantial. The tax law provides some relief for various costs related to having special needs, and there are some favorable rules for certain types of income received on account of disability.

Jonathan Bach and Reed A. Smith

SDNY Takes New Tone on Judicial Assignment in Insider Trading Case

By Jonathan Bach and Reed A. Smith |

Jonathan Bach and Reed A. Smith write that a high-profile insider trading prosecution, currently pending in the Southern District of New York, has yielded the first indications that the tide may have turned against a questionable prosecutorial practice of using superseding indictments to channel certain criminal cases around the district's system of random judicial assignment.