Expert Analysis

Ilene Sherwyn Cooper

Removal of Fiduciaries, Elective Share, Investing

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper analyzes a recent decision where a court found a disbarred attorney should not be removed as a co-trustee, another which did remove as fiduciary the son of the deceased due to the hostility between the son and his brother, the two beneficiaries of their mother's estate,

Alton Abramowitz

Legal Strangers: Redefining Who Is a 'Parent'

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz writes: The time has come for the Legislature to act to broaden the definition of parent to fit our ever evolving society. Now that same-sex couples have been granted the long overdue right to marry, same-sex couples must also be granted the right to be parents, with all of the same rights and responsibilities of heterosexual parents, regardless of the ways in which their families are created.

Michael D. Young and Marc E. Isserles

Overcoming Impasse at Mediation: Bargaining with Brackets

By Michael D. Young and Marc E. Isserles |

Michael D. Young and Marc E. Isserles write that mediation negotiations tend to bog down in familiar ways when limited to a traditional exchange of unconditional numbers. Bracketing is a highly effective negotiating tool for breaking that impasse.

Jerry H. Goldfeder and Myrna Pérez

Voting Reform Prominent in Two Executive Addresses

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: The early days of 2016 ushered in addresses on the State of the Union and State of the State where our respective chief executives called for election law reforms. As each underscored the importance of expanding the franchise, President Barack Obama and Governor Andrew Cuomo referred to markedly different legislative environments.

John P. Furfaro and Risa Salins

Whistleblower Developments in Courts and Agencies

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins discuss recent whistleblower cases and developments, including the Final Rule from OSHA governing retaliation complaints filed under SOX, a decision on individual liability for directors who engage in retaliatory actions, another on the pleading standard for retaliation claims, and more.

Trent Sutton

Potential Impact of Trans-Pacific Partnership on Employment

By Trent Sutton |

Trent Sutton writes that among other commonly addressed trade issues, the TPP includes a specific chapter on "Labour" that potentially creates new labor obligations on the state parties. It mandates fundamental rights for workers, requires each party to ensure acceptable conditions of work for its work force and creates an extra-judicial complaint mechanism.

Brian J. Shoot

Lippman Years Mark Shift Toward Recognizing Worker Safety

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot writes that the Lippman years brought a return to first principles—that is, to the concerns of worker safety that had prompted enactment of Labor Law §240 and 241 in the first instance. That constituted a significant departure from the years immediately preceding Chief Judge Lippman's tenure on the Court of Appeals.

Christopher Dunn

A First Amendment Clash Between Whistleblowing, Legal Ethics

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: The propriety of disciplining a lawyer for disclosing confidential client information seems like a pretty straightforward proposition. But that proposition gets more complicated when the lawyer is a public employee, the disclosure is about egregious unlawful conduct and is made to a newspaper reporter, and the client is the government.

George M. Heymann

Size of Defect in Slip and Fall: A Not So Trivial Pursuit

By George M. Heymann |

George M. Heymann discusses summary judgment motions averring that a slip or fall on the ground or a step was caused by a "trivial defect." The most recent opinion on this subject by the Court of Appeals notes that "[t]hese cases teach that it is usually more difficult to define what is trivial than what is significant."

Peter M. Fass

Private Placements and the Internet Revisited: Rule 506(b)

By Peter M. Fass |

In his Real Estate Securities column, Peter M. Fass reviews Rule 506(b), which is applicable to a private offering where no General Solicitation is used, and recent SEC guidance on Rule 506(b) Internet offerings.

Michael J. Hutter

Fiduciary Exception to Privilege in Shareholder Actions

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter discusses whether a corporation and its attorneys must disclose privileged communications relevant to corporate matters to shareholder plaintiffs in actions based upon breaches by management of their fiduciary duties or other wrongdoing arising out of those matters.

Anahita Thoms and Emily Holland

Defending U.S. Interests in the Digital World

By Anahita Thoms and Emily Holland |

Anahita Thoms and Emily Holland writes: While key details on the first U.S. cyber sanctions program's contours are unclear, the new regulations unquestionably increase U.S. policymakers' power to punish and deter those who siphon trade secrets from American networks and threaten national security and financial interests.

Robert J. Anello and Richard F. Albert

Supreme Court's Upcoming Political Quid Pro Quo Case

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: The inherent tension between the regulation of political corruption and the right to spend money to influence politicians and election outcomes has played out repeatedly in Supreme Court jurisprudence over the past 40 years. In granting certiorari in the case of former Virginia Governor Robert McDonnell, the Supreme Court has again ventured into the quagmire of defining what constitutes an illegal quid pro quo arrangement.

Thomas A. Moore and Matthew Gaier

Recent Court of Appeals Decision on Duty to Non-Patients

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write that in a 1988 decision holding medical professionals not liable for a car accident involving a patient, the Court of Appeals expressly left open the possibility that it might recognize a duty of care in a circumstance where the health-care provider administered or prescribed medication that affirmatively created an impaired driving condition and failed to warn the patient.

Brian M. Feldman

Strategic Use of Rule 502(d) in Civil and Criminal Proceedings

By Brian M. Feldman |

Brian M. Feldman writes: Federal Rule of Evidence 502 has become an important tool for civil litigators seeking to control discovery costs and risks. Yet savvy counsel also use the rule for more strategic ends. As reflected in the case law, Rule 502 permits parties in both civil and criminal proceedings, including grand jury matters, to exchange privileged information without risking broad subject matter waivers.

H. Christopher Boehning and Daniel J. Toal

Judge Imposes Sanctions Under Amended Rule 37(e), Questions Limits on Authority

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss the recent decision in 'CAT3 v. Black Lineage', in which Magistrate Judge Francis provides the first thorough judicial interpretation of new Rule 37(e) and offers his opinion on some controversial language from the corresponding Advisory Committee Note concerning potential limits on judges' inherent power to sanction.

Barry Kamins

Changes in New York's Wade Hearing

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes that the Court of Appeals has refined its eyewitness identification jurisprudence by significantly revising procedures at a Wade hearing at which a defendant can challenge a pre-trial identification as unduly suggestive. In doing so, the court has imposed new obligations on both prosecutors and the police, arising out of the court's concern over mistaken identification and the potential risk of wrongful convictions based on eyewitness error.

Jeffrey S. Klein and Nicholas J. Pappas

Applicability of the ADA to Company Websites

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas write that the Americans with Disabilities Act applies to numerous areas outside of the traditional employment context, including the relationship between businesses and their customers. For example, the dramatic increase in online commerce over the last several years presents a challenging issue which the drafters of the ADA never contemplated: Do the requirements of the ADA apply when a business offers information or shopping capabilities to consumers online?

Lee Spielmann

'Sackett' and Role of Courts in Enforcing Environmental Policy

By Lee Spielmann |

Lee Spielmann discusses 'Sackett v. EPA' where the U.S. Supreme Court highlighted the courts' function overseeing EPA in carrying out Congress' environmental directives. It simultaneously illuminates the critical role of the courts balancing the enforcement of environmental policy against procedural mechanisms safeguarding property rights.

Rule 37(e) and Spoliation Sanctions Under the Amended Rules

By Samantha V. Ettari |

Samantha V. Ettari of Kramer Levin Naftalis & Frankel writes: With the December amendments to Rule 37(e), the remedies and sanctions potentially available for negligent and intentional spoliation are clearer, and intended to result in more uniform application. And, as with any rule change, judicial application was eagerly anticipated and not long in the waiting.

Sharon M. Porcellio

Indicative Ruling Sought; Attorney Sanctions

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio writes: This quarter the Western District addressed the infrequently used practice of indicative rulings and cross-motions for sanctions resulting from accusations of perjury.

Thomas E.L. Dewey

Does Settlement Offer to Named Plaintiff Moot Class Action?

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey discusses 'Campbell-Ewald Co. v. Gomez', where the U.S. Supreme Court effectively denied the defendant-petitioner, and other corporations seeking to avoid class action lawsuits, the ability to moot an entire class action case by making a settlement offer that satisfies the named plaintiff's claim. However, the result also comes with an unnerving suggestion for defendants that in certain circumstances, despite complete offers to settle, litigation may be unavoidable.

Anita Bernstein

Legal Malpractice in Defending Civil Actions

By Anita Bernstein |

Anita Bernstein writes that the Appellate Division departments impose stringent criteria for the breach element when clients complain about malpractice in criminal defense, but for civil-defense lawyers, a wider range of misbehaviors will suffice.

Lawrence W. Newman and David Zaslowsky

Awarding Costs in International Arbitration

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky write that the cost of conducting international arbitrations can be considerable, but there is evidence that some arbitrators appear not to delve into the reasonableness of parties' costs and to accept the costs claimed by the prevailing party. The International Chamber of Commerce is now trying to shine light on this subject.

Stephen Kass

Climate Adaptation After the Paris Agreement

By Stephen L. Kass |

In his International Environmental Law column, Stephen L. Kass writes: Even if the effort to hold average global warming to "well below" 2 degrees Celsius ultimately succeeds, for the next 50 years (and likely longer) the poorest countries, and the poorest people, are likely to experience the worst effects of climate change. A recent report attempts to address both the substance of and funding for climate adaptation.

Bradley M. Wanner and Andrew J. Orenstein

Notice of Claim Requirements in Suits Against Police Officers

By Bradley M. Wanner and Andrew J. Orenstein |

Bradley M. Wanner and Andrew J. Orenstein analyze a ruling in which a deeply divided First Department affirmed the dismissal of all state law claims against individually named police officers in a false arrest suit because the plaintiff failed to include them in his Notice of Claim. With the First and Second Departments split from the Third and Fourth on this issue, the Court of Appeals may soon be weighing in.

Francis J. Serbaroli

Court Expands Medical Providers' Liability to Third Parties

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli analyzes a recent decision from New York's Court of Appeals that could expose hospitals, physicians and other providers to significantly more malpractice liability. In 'Davis v. South Nassau Communities Hospital', the Court broke with its own precedents to find that a hospital's and physician's duty of care extends not just to their patients, but also to third parties who may subsequently be injured by those patients.

Charlotte A. Biblow

State DEC Proposes Conservation Easement Regulation

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow discusses a proposed regulation that would provide standards and procedures for Department of Environmental Conservation staff to use when modifying or extinguishing a conservation easement administered by the NYSDEC. It also would provide the public with an opportunity to participate in the conservation easement amendment process.

Peter A. Mahler and Matthew D. Donovan

LLCs Dominate Business Divorce Cases of 2015

By Peter A. Mahler and Matthew D. Donovan |

Peter A. Mahler and Matthew D. Donovan review important business divorce cases from 2015 stemming from disputes over the standard for LLC dissolution, LLC operating agreements, LLC valuation, and dissolution of foreign LLCs.

Robert S. Kelner and Gail S. Kelner

The Emergency Doctrine in Negligence Cases

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner write: The duty of care is a critical concept in negligence actions. The emergency doctrine recognizes a modified standard where there is a qualified emergency. Key issues include whether there is a qualifying emergency, and whether the actions of a party faced with such an emergency situation were reasonable and prudent under the circumstances.

Robert C. Scheinfeld

Patent Trial and Appeal Board Makes Its Mark

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: One of the attributes of a well-respected tribunal is the establishment of helpful precedent to reduce uncertainty and foster consistency, along with the ability to recognize error and grant requests for rehearing. Recent decisions of the Patent Trial and Appeal Board illustrate such attributes.

Ken Strutin

Civilized Sentencing: Experiential Gateway to Just Punishment

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Information sharing is the hallmark of modern society and, in particular, the administration of justice. We know more about more than ever before. The glaring exception is the prison experience omitted from sentencing charts. Civil courts, however, are shedding light on the daily grist of punishment. Indeed, pleadings written by the punished can be an adjunct of experience for sentencing practices and review.

Ellen H. Greiper and Scott P. Eisenberg

Protection of Personal Information as a Ploy to Defy Discovery

By Ellen H. Greiper and Scott P. Eisenberg |

Ellen H. Greiper and Scott P. Eisenberg write: While the intent behind the 2014 amendment to the Uniform Civil Rules mandating the protection of confidential personal information was noble, many attorneys are unilaterally expanding the express text and intention of the section by withholding such information not only from documents filed with the courts, but from all documents exchanged during discovery.

Nicholas M. De Feis and Philip C. Patterson

Using Anti-Corruption Laws to Address Overseas Security Threats

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: Although the DOJ's ability to act in foreign countries is limited at best, the recent prosecution of an official with Russia's state-owned nuclear corporation using federal money laundering statutes illustrates how the DOJ can try to chip away at the edges of serious crimes without having to depend on unreliable foreign enforcement efforts.

E. Leo Milonas and Andrew C. Smith

Courts Address Challenges to Legislation and Power to Regulate

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith highlight some of the four departments' opinions from the busy last quarter of 2015, including holdings on secret videotaping of an independent medical examination, when a "wrongful birth" claim accrues, when the fiduciary exception to the attorney-client privilege applies in the corporate context, and more.

Andrew B. Roth and Kimberly J. Gold

Not-for-Profit Executive Compensation: Health Industry Changes

By Andrew B. Roth and Kimberly J. Gold |

Andrew B. Roth and Kimberly J. Gold analyze three recent decisions addressing New York State Department of Health Regulations that set limits on administrative expenses and executive compensation at not-for-profit corporations that receive state funds.

Jeremy H. Temkin

Protecting Privileged Documents From the IRS

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin writes: In the past six months, the Second Circuit has addressed assertions of privilege in two cases arising out of IRS audits, in both instances reversing district court decisions rejecting the taxpayers' assertion of privilege. These cases are instructive of the need to act vigilantly to protect the privileges at issue.

Arthur J. Ciampi

Debating Nonlawyer Ownership of Law Firms

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi reviews the current state of the law on nonlawyer ownership of law firms, addresses some of the arguments on both sides of the issue, and offers some observations on what, if anything, can be done to address the points made by both camps.

Jason L. Shaw

Additional Insured Form Endorsement Undergoes Change

By Jason L. Shaw |

Jason L. Shaw writes: Transactional attorneys involved in negotiating commercial leases, construction contracts, or any contract in which one party requires the other party to provide insurance against personal injury or property damage should have a good understanding of the new "additional insured" form endorsement to a Commercial General Liability insurance policy.

Michael D. Patrick

New Security Requirements for Foreign Business and Tourism Travelers

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: Since its establishment in 1986, the visa waiver program has been a boon for international tourism and the U.S. economy. However, in the wake of the attacks in Paris and San Bernardino, Congress has set forth substantial modifications to the program to address heightened national security concerns. These changes, although commensurate with the threat of terrorism, could unintentionally impact the U.S. economy and foreign relations.

Hal R. Lieberman

Fostering Efficiency in the Attorney Disciplinary Process

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman discusses proposals from the Commission on Statewide Attorney Discipline meant to foster efficiency in the disciplinary system, including greater latitude for "plea bargaining" which would remove lower level offenses from a time-consuming process, expedited procedures for attorneys who fail to cooperate in an investigation, mandatory document disclosure at an early stage, and more.

Omar Gonzalez-Pagan and Ria Tabacco Mar

Laws Barring Sex Discrimination Also Protect Sexual Orientation

By Omar Gonzalez-Pagan and Ria Tabacco Mar |

Omar Gonzalez-Pagan and Ria Tabacco Mar write that recent commentary suggesting the EEOC's decision that "[s]exual orientation discrimination is sex discrimination" is incorrect and should be disregarded is dead wrong.

Roy L. Reardon and William T. Russell Jr.

Wade Hearings and Identification Procedures in Criminal Cases

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 cases addressing the application of the Federal Arbitration Act, the procedure for evaluating the suggestiveness of out-of-court identifications of criminal defendants, and the legal duties owed by doctors and those who provide medical services to third parties injured by a patient.

John S. Siffert and Michael R. Herman

Understanding Insider Trading as Breach of Duty of Loyalty

By John S. Siffert and Michael R. Herman |

John S. Siffert and Michael R. Herman write: In the wake of the Second Circuit's decision in 'United States v. Newman,' numerous pundits have called on Congress to enact legislation defining insider trading. Some decry the fact that criminal prosecutions should not be based on violations of judge-created rules. Others wring their hands that insider trading law is too vague. In fact, when correctly understood, insider trading law's rationale is clear, and its application is predictable.

Patrick M. Connors

Turn and Face the Changes

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors writes: The first 10 days of 2016 presented a stark reminder that things change quickly. We lost a giant of the Judiciary, the former Chief Judge Judith S. Kaye, who contributed so much to the development of New York practice and procedure. We also lost one of the great musical artists of the last century who famously declared that we need to "turn and face the strange changes."

Sidney Kess

Tax Rules for 2015 Returns and 2016 Planning

By Sidney Kess |

In his Tax Tips column, Sidney Kess reviews provisions for individuals in the Protecting Americans from Tax Hikes, signed into law on Dec. 18, 2015, and how they impact 2015 returns as well as tax planning for 2016.

Joseph J. LoBue and Helene Gogadze

Rare Investor-State Arbitration Finding on Bankruptcy Decision

By Joseph J. LoBue and Helene Gogadze |

Joseph J. LoBue and Helene Gogadze write that international arbitration tribunals have held that the guarantee of "fair" and "equitable" treatment for foreign investors precludes treaty states from administering justice in local proceedings in a manner that deprives foreign investors of due process rights. Such "denial-of-justice" findings are rare, but one was made in a recently published award in 'Dan Cake S.A. v. Hungary'.

Stephen M. Kramarsky

Court Examines the Fact-Opinion Analysis in Defamation Case

By Stephen M. Kramarsky |

Stephen M. Kramarsky discusses 'Bellavia Blatt & Crossett, P.C. v. Kel & Partners', a case in which comments would likely have been sufficient to support a defamation claim if they had been made in a more traditional forum—but they appeared in the comments section of an industry website. It is instructive not only as precedent, but also as an example of how the Internet as a unique medium can affect the outcome of a case.

Harvey M. Stone and Richard H. Dolan

Warning Against Grand Jury Subpoenas With Non-Disclosure Commands

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan discuss recent cases involving a firearm seized during a pat-down search on the street, long-arm jurisdiction over a Chinese company that manufactured a bicycle handlebar and the first-to-file rule, along with a case where Judge Dearie warned the government of possible sanctions in future cases if its grand jury subpoenas improperly directed recipients not to disclose the existence of the subpoenas.

Ben Rubinowitz and Evan Torgan

Testimony and Summation in Wrongful Death Case of Adult Child

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan continue their discussion of trying damages in a case involving the death of an adult child, providing sample questions to elicit testimony from a layperson witness on the decedent's pain and suffering, questions for parents on how the decedent contributed to the family to provide context for economic loss, and a sample summation.

Philip Mindlin, Emil A. Kleinhaus and Neil K. Chatani

'Codere': A New Model for Cross-Border Restructurings

By Philip Mindlin, Emil A. Kleinhaus and Neil K. Chatani |

Philip Mindlin, Emil A. Kleinhaus and Neil K. Chatani write that for some time, the "COMI shift"—i.e., moving the company's "center of main interest"—has been a strategy of choice for multinational companies in financial distress, with England as the preferred destination. While that remains a viable route to access a UK scheme, the recent restructuring of Codere presents an alternative method that in some cases will be more efficient and straightforward.

Michael B. Gerrard and Edward McTiernan

New York Environmental Legislation and Regulations in 2015

By Michael B. Gerrard and Edward McTiernan |

In their Environmental Law column, Michael B. Gerrard and Edward McTiernan write that among other significant developments in 2015, long-awaited reform of New York's Brownfield Cleanup Program emerged from the annual budget process, extending the availability of tax credits for 10 years and changing the eligibility criteria. Governor Cuomo also signed new laws regarding the Oil Spill Fund, water pollution controls, energy, and hazardous waste program fees.

FINRA's Re-Proposed Broker Recruitment Disclosure Rule

By Evan Charkes |

Evan Charkes writes: Nearly three years after its first proposal regarding the disclosure to customers of compensation paid to their registered representatives who change brokerage firms, the Financial Industry Regulatory Authority has recently sent to the SEC for approval its final rule that addresses the potential conflicts of interest and attendant costs that arise from such transitions.

Kathleen A. Scott

Revised Proposed Changes to Capital Requirements

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott discusses the Basel Committee's re-proposal of revisions to the international risk-based capital requirements using the Standardized Approach, after the committee reviewed comments to its 2014 proposal and analysis of a quantitative study regarding the impact of the original proposal on affected institutions.

Lewis R. Clayton and Eric Alan Stone

Federal Circuit Addresses Weighty Constitutional Issues

By Lewis R. Clayton and Eric Alan Stone |

In their Intellectual Property Litigation column, Lewis R. Clayton and Eric Alan Stone review recent Federal Circuit decisions that invalidated the Lanham Act's preclusion of disparaging marks; held that the International Trade Commission lacks jurisdiction over cases involving "intangible" goods; confirmed the constitutionality of the inter partes review provisions of the America Invents Act; and defined the scope of infringement liability for products manufactured abroad.

David J. Kaufmann

FTC and Wyndham Settle Landmark Data Breach Action

By David J. Kaufmann |

David J. Kaufmann writes: The Stipulated Order resolving an FTC enforcement action related to hackers breaching the Wyndham Hotels and Resorts network and obtaining the personal and financial data of hotel guests should prove of great comfort to franchisors nationwide who now face, or in the future may face, similar actions relating to data breaches occurring in their networks.

Howard Epstein and Theodore Keyes

Non-Assignment Clauses: California Returns to the Majority Rule

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes discuss the enforceability of non-assignment clauses in insurance policies and a recent decision in which California's high court brought that state's law back in line with the law in New York and a majority of other jurisdictions, recognizing a post-loss exception to the restriction on assignments set forth in the non-assignment clause.

Richard Raysman and Peter Brown

Consumer Review Legislation, Litigation Appear on the Horizon

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown analyze the rationale behind recent consumer review legislation, its specific terms, and the reaction to its passage thus far, as well as summarize the recent shareholder litigation involving Yelp.

David Benick

Valuation as Art and Science: The Story Behind the Numbers

By David Benick |

David Benick writes: In reviewing the reports of other experts, attorneys should be aware that the financial analysis—or lack thereof—is fertile ground for cross-examination questions. Business valuation is not simply math but should be a documented outline of the finance professional's thought process. A story exists behind the numbers, and an effective appraiser translates the market evidence.

C. Raymond Radigan and Jennifer F. Hillman

Recent Tax Court Ruling on Crummey Trusts

By C. Raymond Radigan and Jennifer F. Hillman |

In their Trusts and Estates column, C. Raymond Radigan and Jennifer F. Hillman write that despite their relative popularity, Crummey trusts, used to parlay the annual gift tax exclusion into a larger estate planning tool, are sometimes challenged by the IRS. A recent U.S. Tax Court case reviewed the continuing viability of Crummey trusts when the trust contains an arbitration clause and an in terrorem clause.

Michael Hoenig

When Judges Research the Internet

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: The battle lines about whether and to what extent judges may properly "test" or "supplement" the court record by doing factual Internet research of their own have been well-articulated in the majority and dissenting opinions of the Seventh Circuit in 'Rowe'. However, this is not only a "judges" issue. Litigating counsel must understand the growing conflict, the boundaries of allowable Internet research in the judicial task and the true nature of permissible "judicial notice." Reading the Rowe opinions would be a good start.

Mark P. Zimmett

When Bank Compliance Fails: Enforcing Accountability

By Mark P. Zimmett |

Mark P. Zimmett discusses violations of the U.S. Treasury's Office of Foreign Assets Control regulations, some of them blatant, why Western banks have so persistently tried to evade or enable evasion of the OFAC regulations, new proposed state regulations modeled after Sarbanes-Oxley, and a few suggestions to consider.

Anthony E. Davis

The Ethical Obligation To Be Technologically Competent

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses "spear phishing" and "social engineering" attacks, along with basic protections that every lawyer should utilize to avoid them, and an Internet-based scam that can result in loss of client funds.

Evan H. Krinick

N.J. Supreme Court to Decide Breadth of Insurance Fraud Act

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick analyzes a case, soon to be heard by the New Jersey Supreme Court, that raises the important issue of the liability of those who devise a fraudulent scheme intended to avoid the prohibition on the corporate practice of medicine, and market it to practitioners, but who never actually participate in the enterprise themselves.

Lawrence D. Bernfeld

Law Limits Use of Criminal Background in Employment

By Lawrence D. Bernfeld |

Lawrence D. Bernfeld reviews a new law that materially impacts how and when a New York City employer may obtain the criminal conviction and pending arrest history of a job applicant, and make an adverse employment decision based on such information.

Timothy M. Tippins

Forensic File Disclosure: A Fresh Breath of Common Sense!

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins writes: The dawning of 2016 marks a full decade since the Matrimonial Commission recommended full disclosure of the file contents of forensic evaluators in custody proceedings. Because the judicial panjandrums on high have failed to implement that recommendation by way of court rule, New York remains out of step with the rest of the nation where such vital disclosure is readily available for the asking. Individual judges are, however, striving mightily to move us forward.

Jeff G. Hammel, Sarah M. Lightdale and Blake T. Denton

Rural/Metro Case: Exploring Liability Against Financial Advisors

By Jeff G. Hammel, Sarah M. Lightdale and Blake T. Denton |

Jeff G. Hammel, Sarah M. Lightdale and Blake T. Denton analyze the Delaware Supreme Court's much-anticipated decision in 'RBC Capital Markets v. Jervis', where it affirmed the Court of Chancery's finding that Rural/Metro Corporation's financial advisor, RBC, aided and abetted breaches of fiduciary duties by Rural/Metro's Board of Directors in connection with the company's sale to a private equity firm.

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

'Revel' and Motions for Stay Pending Appeal

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. write: Seasoned appellate practitioners understand that, to obtain a discretionary stay, the appellant generally must show a likelihood of success on the merits of the appeal, irreparable harm to the appellant absent a stay, and a lack of prejudice to the respondent if a stay were to be granted. But it is difficult to know how courts balance these factors. A recent Third Circuit decision provides a rare glimpse into an appellate court's decision-making process on a stay application

Richard Siegler and Eva Talel

'Levandusky' After 25 Years: Business Judgment Rule Deference Continues

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel review recent cases showing that 'Levandusky' is still widely applied to give deference to a broad range of board actions, along with the circumstances where 'Levandusky' is not applied, such as discrimination claims, breaches of contract and where the condominium or co-op's operating documents require the board not to act unreasonably.

Elkan Abramowitz and Jonathan Sack

Deferred Prosecution Agreements in Decline? Enforcement Implications

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack address two recent developments that reflect a significant shift in attitude toward the role of deferred prosecution agreements. First, courts have subjected DPAs to increased scrutiny, in some cases casting doubt on the prosecutorial judgment that led the government to enter into the DPA. Second, in September 2015, the DOJ adopted new measures "to strengthen [its] pursuit of individual corporate wrongdoing."

Julie Bédard

Preliminary Injunctive Relief in Aid of International Arbitration

By Julie Bédard |

Julie Bédard writes: Effective international arbitration sometimes requires actions by courts to support the process and to ensure that arbitral awards may be recovered. New York courts, both state and federal, can assist the arbitral process by granting preliminary relief, such as compelling arbitration, enjoining attempts to circumvent arbitration, attaching property in anticipation of an arbitral award, or preserving the status quo between parties.

Mark A. Berman and John M. Curran

'Pegasus', Adverse Inference Charges and the FRCP

By Mark A. Berman and John M. Curran |

Mark A. Berman of Ganfer & Shore and John M. Curran of the New York Supreme Court, Erie County, discuss the Court of Appeals' decision in 'Pegasus', which raises interesting questions about the source, purpose and scope of a negligent adverse inference charge, and whether New York law is now at odds with recent amendments to the Federal Rules of Civil Procedure.

Martin A. Schwartz

Broad Protection for Police Officers in Deadly Force Cases

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz analyzes the U.S. Supreme Court's recent holding in 'Mullenix v. Luna', which is filled with important points concerning §1983 excessive force litigation.

Colleen Tracy James

Patent Reform in China and Its Impact on U.S. Companies

By Colleen Tracy James |

Colleen Tracy James highlights some of the trade-offs and strategic considerations in creating international IP portfolios and analyzes the extent to which China's proposed Fourth Amendment might impact such IP strategies for U.S. companies.

Martin Flumenbaum and Brad S. Karp

Second Circuit Clarifies Scope of Rule 30(b)(6) Testimony

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp, analyze a case in which the court clarified the circumstances and manner in which a corporate party can supplement its prior deposition testimony through additional testimony or affidavits under Rule 30(b)(6) of the FRCP—here, testimony from a different witness that the opposing party claimed contradicted the first individual designated by the corporation to provide testimony on its behalf.

Samuel Estreicher and Kristina A. Yost

Federal Consumer Agency Considers Curbs on Class Action Waivers

By Samuel Estreicher and Kristina Yost |

In their Arbitration column, Samuel Estreicher and Kristina Yost write: Despite protests from the consumer financial industry, the Consumer Financial Protection Bureau appears to be prepared to move forward with regulations restricting limitations on class actions through arbitration clauses. As a result, consumer financial institutions should begin preparing for the possibility of increased class action litigation.

Anita Bernstein

Legal Malpractice Liability for Criminal Defense: Rare, Yet Possible

By Anita Bernstein |

Anita Bernstein writes: Earning a living as a criminal defense lawyer takes guts. Attorneys are more likely than their civil-side peers to need added security, their work is often unpopular among laypersons, and extremely zealous advocates could cross the line into criminal liability themselves. In one respect, however, the criminal defense bar is cocooned in comparison to other private-sector practitioners. Its members enjoy almost total safety from legal malpractice.

Sidney Kess

Tax Considerations and Issues Relating to Divorce

By Sidney Kess |

In his Tax Tips column, Sidney Kess writes that divorce is never easy, and taxes complicate a difficult situation. However attention to matters such as the timing of a divorce, alimony, child support and dependency, retirement funds and other employee benefit programs is essential.

Thomas A. Dickerson and Cheryl E. Chambers

Challenging 'Concepcion' in New York State Courts

By Thomas A. Dickerson and Cheryl E. Chambers |

Thomas A. Dickerson and Cheryl E. Chambers write: During the last few years meaningful consumer remedies, e.g., the class action device, have come under vigorous assault, particularly, in the realm of the purchase of moderately priced goods and services.

Steven V. Treglia

Changes in EU Privacy Law Affect U.S. Businesses

By Stephen Treglia |

In his Cross-Border Concerns column, Stephen Treglia writes: EU lawmakers are currently addressing difficult issues regarding the level of privacy that should be afforded personal digital information. Long-standing guidelines there are under significant upheaval in favor of greater privacy, coincidentally occurring at a time when the citizens whose information is being protected may be more willing to sacrifice privacy in exchange for greater personal security.

Conrad Teitell

Trust's Charitable Gift of Appreciated Realty

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell discusses a recent decision that held a trust's gift of appreciated realty to be deductible at fair market value, not the lower adjusted basis.

Richard J. Sobelsohn

Law Firms Adopt Sustainability to Stay Sustainable

By Richard J. Sobelsohn |

Richard J. Sobelsohn writes: It was not long ago that when law firms moved to new digs, they had them designed with the old-school method. Wood paneling on the walls, window-less interior offices for junior associates, and the coveted oversized corner offices for senior partners and rainmakers. During the past few years however, law firms have started going green, and the traditional law office floor plans have morphed.

Original and counterfeit shoes at Sterne Kessler Goldstein & Fox.  December 18, 2015.

Sterne Kessler Remains on the Hunt for Fake ‘Pumps’

Sterne Kessler has collected more than 5,000 pairs of shoes over three decades. Sometimes, they must saw the shoes in half.

Kenneth Feinberg.

Judge in Volkswagen Case Seeks Settlement Master

Volkswagen A.G. has retained Kenneth Feinberg to administer a claims program designed to compensate consumers for lost value to their vehicles and other economic damages caused from its recent emissions scandal.

Steven Pounian and Justin T. Green.

Military Contractors Claim Mantle of Government to Defend Tort Suits

By Steven R. Pounian and Justin T. Green |

In their Aviation Law column, Steven R. Pounian and Justin T. Green of Kreindler & Kreindler write: Since 2001, the use of private contractors to actively support U.S. military operations has risen to "unprecedented levels," yet Congress has never enacted legislation to shield such contractors from tort liability. Nevertheless, contractors have, often successfully, advanced defenses to bar tort liability based on the political question doctrine and federal preemption, both discussed herein.

Elai Katz

U.S. Brings Computerized Price-Fixing Charges

By Elai Katz |

In his Antitrust column, Elai Katz discusses recent antitrust developments of note.

Kevin Schlosser

New York Should Catch the Federal ESI Wave Before It's Too Late

By Kevin Schlosser |

Kevin Schlosser of Meyer, Suozzi, English & Klein writes: New York's highest court was given an opportunity to take a careful look at the issues and promulgate instructive and helpful rules for the lower courts grappling with perplexing ESI questions. Unfortunately, the Court of Appeals squandered the opportunity, and simply accepted the standards originated in the federal courts in New York that have been expressly superseded by the new Federal Rules of Civil Procedure and that are likely to cause further confusion and regrettable results.

Peter A. Crusco

Confronting Smartphone Encryption

By Peter A. Crusco |

Peter A. Crusco of the Queens County District Attorney addresses the question of who may be legally responsible for decrypting smartphone devices when they are the subject of a criminal investigation, and what legal tools are available to the government to facilitate this endeavor.

Matthew S. Brett

Post-Vacancy Deregulation in the Aftermath of 'Altman'

By Matthew S. Brett |

Matthew Brett, a partner at Belkin Burden Wenig & Goldman, discusses the implications of 'Altman v. 285 W. Fourth LLC,' a decision that eliminated post-vacancy deregulation.

David J. Kaufmann

NLRB's 'Joint Employer' Thrust Defies 50 Years of Judicial Precedent

By David J. Kaufmann |

In his Franchsing column, David Kaufmann of Kaufmann Gildin & Robbins analyzes how the NLRB general counsel's approach is refuted by 50 years of virtually unanimous judicial decisions, and addresses the recent NLRB decision 'Browning-Ferris Industries of California,' which greatly expands who may be deemed a 'joint employer'.

Milton Springut

Unusual Cases Sharpen Copyright Law Principles

By Milton Springut |

Milton Springut of Springut Law discusses three recent copyright decisions from New York federal courts that involve unusual facts or legal postures. These decisions provides a valuable review of basic copyright concepts and can yield a more nuanced understanding of them.

Michael I. Rudell and Neil J. Rosini

The Basics of a Literary Collaboration Agreement

By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael Rudell and Neil Rosini discuss the legal aspects of artistic collaboration, and advise that "the parties' agreement should cover not only ownership, scheduling, credit, and details of the writer's compensation but also more emotional issues such as what happens if the relationship sours."

George Bundy Smith and Thomas J. Hall

Applying the Doctrine of Incorporation by Estoppel

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: Several Commercial Division cases make clear that at times a non-existent corporation can be deemed to exist, and thus possess the legal capacity to contract and bring suit on that contract, pursuant to the common law doctrine of incorporation by estoppel.

Andrea M. Alonso and Kevin G. Faley

Pope’s New Rule on Annulment: Will the Law Keep Up?

By Andrea M. Alonso and Kevin G. Faley |

Andrea M. Alonso and Kevin G. Faley of Morris Duffy Alonso & Faley explore the limited scope of a New York statute that requires spouses to remove religious barriers to remarriage prior to the grant of a civil divorce; how it is used to effectuate Jewish religious divorces; and why, as it is drafted, it cannot be similarly used to effectuate Catholic annulments.

McDermott Will Partner Advocates for Sikhs in Military

On Monday, U.S. Army Captain Simratpal Singh reported for duty after being granted an accommodation that allows him to wear his beard and turban while serving his country.

Joseph E. Bachelder III

Reducing Executive Pay Detail Contained in Proxy Statements

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder III of McCarter & English discusses the increasing quantity of executive pay information contained in proxy statements and recommends that much of the information be removed from the proxy statement and, instead, be provided as an exhibit to registrants' annual reports on Form 10-K.

Gibson, Dunn & Crutcher offices in D.C.

Gibson Dunn Tactics in Bridgegate Probe Stir Court’s ‘Distaste’

Gibson Dunn lawyers are wrist-slapped in court, Venable could face a malpractice suit it thought it had fought off, and two Colorado law firms fight over the name Gilbert: This is a round-up of legal news from ALM and around the country.

Jerry H. Goldfeder and Myrna Pérez

Year-End Roundup: Significant State and Federal Developments

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Pérez write: It has been a big year for federal and state election law. In New York, due process rights, fraud, residency issues and enforcement of the law have been tackled by the courts, while nationally, the push-and-pull of voting rights continues to be fought in the statehouses and litigated in the courts.

Roberta S. Karmel

Crowdfunding: Narrative and Financial Disclosures

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel discusses the disclosures issuers engaging in crowdfunding are required to make, both when first accessing the capital market and then on an annual basis.

Matthew McLaughlin

Legislature Considers Change to FOIL to Mandate Attorney Fees

By Matthew McLaughlin |

Matthew McLaughlin writes that while Gov. Cuomo vetoed a bill that would increase the ability of petitioners to recoup attorney fees from agencies and municipalities that improperly refuse to respond to a FOIL request, he stressed that his administration is demanding more "comprehensive FOIL reform." It is only a matter of time before this bill resurfaces.

Van Jones, left, CNN Commentator and Founder of Criminal Justice Reform advocacy organization #Cut50, and Mark Holden, right, General Counsel and Senior Vice President at Koch Industries, at a panel on criminal justice reform at the Council of State Governments Justice Center's national conference at the Wardman Park Marriott in Washington, D.C.

Time Dwindles on Sentencing Overhaul, But Supporters Optimistic

A leading business advocate of criminal justice reform predicted on Wednesday that bipartisan legislation to overhaul sentencing laws will be approved early next year despite differences among Congressional supporters on the bill's final language. Mark Holden, general counsel and senior vice president at Koch Industries, told an audience at the Council of State Governments Justice Center's annual conference in Washington, D.C., that he envisions a "floor vote by late January, early February" in the House and Senate on corresponding criminal justice reform bills.

Roy L. Reardon and William T. Russell Jr.

Court in Transition: Still Not at Full Strength

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. provide an update of the status of court vacancies and discuss cases involving recordings of custodial interrogations, the standing requirements for challenges to governmental actions in land use matters and ineffective assistance of counsel.

Robert J. Bernstein and Robert W. Clarida

Fair Use, the DMCA and the 'Dancing Baby'

By Robert J. Bernstein and Robert W. Clarida |

In their Copyright Law column, Robert J. Bernstein and Robert W. Clarida write: In a case of first impression and a victory for "dancing babies" everywhere, the Ninth Circuit recently held in 'Lenz v. Universal Music Corp.' that in order to comply with the "notice and takedown" provisions of the Digital Millennium Copyright Act, the claimant must consider the issue of fair use before serving a notice of alleged infringement.

Lawrence Elbaum

Survey of Recent Motions to Enjoin SEC Administrative Proceedings

By Lawrence Elbaum |

The rise in the SEC's use of its administrative law judges to adjudicate enforcement actions has led to another rise: the rise in challenges to the constitutionality of the appointment of SEC ALJs.

Alton Abramowitz

Spousal Maintenance: Revisiting Duration

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz discusses the "advisory guidelines" for the duration of spousal maintenance that become effective next month, writing that it is now time for attention to be turned to the development of a particularized, fact-based approach to determining duration that avoids rules of thumb or custom or arbitrary formulas that are not related to economic reality if the courts are going to truly carry out their mandate to award maintenance "in such amount as justice requires."

Edward M. Spiro and Judith Mogul

Employer's Privilege Trumps Employee's Advice-of-Counsel Defense

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Advice of counsel can provide an affirmative defense where intent is an element of the offense or claim. However, invoking that defense puts "at issue" privileged communications, requiring waiver of the attorney-client privilege, and where—as in the case of a corporate employee—the privilege is held and controlled by an entity other than the defendant, the privilege-holder may well have a different risk/benefit calculus.

Shari Claire Lewis

Standing to Assert Claims for Online Privacy Breaches

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis discusses a case recently argued before the U.S. Supreme Court involving the intersection of the Internet and privacy laws that may affect the future of litigation against companies that operate on the Web as well as traditional brick-and-mortar businesses.

Frederick Cohen and John S. Wojak, Jr.

Liquidated Damages for Delayed Completion in Construction Contracts

By Frederick Cohen and John S. Wojak, Jr. |

Frederick Cohen and John S. Wojak, Jr. write that while liquidated damages clauses in construction contracts might on the surface seem simple and ironclad—after all, what could be difficult about counting the days the contractor was late—they are fraught with pitfalls and their assumed protection can be elusive.

Glen Banks

District Court Addresses Alter Ego and De Facto Merger Claims

By Glen Banks |

In his Contract Law column, Glen Banks writes: A recent decision from the Southern District illustrates that when a party which has allegedly breached a contract has sold all or substantially all of its assets, the party asserting the claim for breach might advance claims seeking to hold the seller's controlling person and the purchaser of the assets liable for the damages caused by the breach.

Ilene Sherwyn Cooper

Privilege, Standing, Capacity, Equitable Adoption

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper reviews decisions from the past three months, including one in which the court applied the crime-fraud exception and ordered production of documents relating to invoices for works of art a plaintiff said were given to her by decedent, another where the court denied a summary judgment motion on undue influence after finding decedent knowingly may have been given incorrect information on her predeceased son's arrangements for his beneficiaries, and more.

Leni Morrison Cummins

Protecting Condominiums From Undesirable Purchasers

By Leni Morrison Cummins |

Leni Morrison Cummins writes that most condominium boards believe that their only opportunity to exclude an undesirable purchaser is by exercising their right of first refusal, which for most boards is financially impractical. However, there are three other tactics to prevent or discourage unwanted buyers from purchasing units: amending the condominium's governing documents, revamping the sales package requirements, and conditioning incomplete sales packages.

Harvey M. Stone and Richard H. Dolan

Identity Theft and Hacking Cases; Equal Pay Action Proceeds

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review Judge Jack Weinstein's declining to dismiss the main claims of a U.S. citizen unjustly detained as an alien for over two years, Judge Dora Irizarry's allowing the government to admit at a criminal trial certain Rule 404(b) evidence relating to defendant's recent prior conviction, and more.

'Jiang': Strong Technical Ruling for Restaurant Operators

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari discusses the "bulk sale" procedures, which protect the buyer of a business' assets from the seller's unpaid sales tax liability, and a recent case where the new operator of a Chinese restaurant was found not liable for the unpaid taxes of the former operator on the same premises, despite the new operator's use of the appliances and equipment left by the former restaurant owner.

Clandestine Recordings of IMEs Rejected by Second Department

By Robert D. Lang |

Robert D. Lang writes: Few decisions in recent years have sparked as much heated controversy between plaintiffs and defense counsel as the question of secret recordings of independent medical examinations. Now that the Second Department has decided the issue, there should be a welcome return to the previous levels of some degree of civility between the plaintiff and the defense bar.

Adam R. Shaw

Venue, Jurisdiction and Whether to Stay Action Pending MDL

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw discusses three recent decisions in which Judge David Hurd considered the factors for a transfer of venue in ruling to keep a case in the Northern District; Judge Mae D'Agostino evaluated the criteria for abstention in deciding to walk away; and Magistrate Judge Christian Hummel analyzed whether to stay an action in favor of a pending multi-district litigation proceeding and decided to keep the case running.

David M. Barshay

Examination Under Oath and IME No-Show

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay writes that generally, to prevail on a medical examination "no-show" defense, an insurer must prove both the mailing of its scheduling letters and the injured person's non-appearance. However, the Appellate Divisions are split on whether an insurer must raise the defense in a timely denial in order to preserve such defense.

Mark C. Fang and Jay C. Carlisle II

Administrative Estoppel and the Fair Housing Act

By Mark C. Fang and Jay C. Carlisle II |

Mark C. Fang and Jay C. Carlisle II write that the treatment of the preclusive effect of administrative determinations taken by the Southern District in 'U.S. v. East River Housing' deserves close attention in light of the Supreme Court's broad interpretation of the scope and nature of the Fair Housing Act earlier this year, possibly pointing the way to a new result on an unsettled issue of significant bearing on the procedural course of FHA discrimination claims in New York.

Sarah S. Gold and Richard L. Spinogatti

Laches Bars Delaware Equity Claim

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti analyze a recent decision that highlights the uses and perils of the laches doctrine in Delaware equity cases. In 'Houseman v. Sagerman', the Delaware Court of Chancery dismissed a stockholder's claim seeking the remedy of quasi-appraisal to redress alleged breaches of fiduciary duty in connection with a merger transaction, finding the claim barred by laches because the stockholder had unreasonably delayed in filing the suit and thereby prejudiced the defendants.

Abby Tolchinsky and Ellie Wertheim

Study Offers Insight on Effectiveness of Strategies

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim review a groundbreaking study that provides great insight into what mediator strategies and techniques are most (and least) effective for parties in various degrees and stages of conflict.

Kenneth A. Adams

Reconsidering the Recital of Consideration

By Kenneth A. Adams |

Kenneth A. Adams writes: In the United States, a standard feature of business contracts is a recital of consideration placed immediately before the body of the contract. In general, drafters shouldn't use this kind of recital of consideration or any other—they're unnecessary.

Shepard Goldfein and James A. Keyte

2015 Antitrust Wrap-Up: Government Actions and Private Litigation

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte review significant developments in antitrust law from the past year, including the FTC's mixed results in litigating merger enforcement actions, the DOJ's criminal enforcement, the release of Section 5 guidance, and more.

Joel Cohen and James L. Bernard

Changing a Criminal Client's Social Media Pages

By Joel Cohen and James L. Bernard |

In their Ethics and Criminal Practice column, Joel Cohen and James L. Bernard write: Social media has become a powerful tool for law enforcement. But manipulating a client's social media persona (really, the client's public persona) can also be a powerful tool for targets or defendants, one that an attorney may want to explore—provided he does so within the bounds of his ethical, or legal, obligations.

Richard Raysman and Peter Brown

Potential Legal Implications of the Defend Trade Secrets Act

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown discuss the Defend Trade Secrets Act (which even in draft form has become hotly contested), and analyze a recent case that confronts the question of whether a suspected server breach by an ex-employee offers the company a cause of action under a federal anti-hacking statute.

Stuart S. Malawer

Looking at Dispute Resolution in the Trans-Pacific Partnership

By Stuart S. Malawer |

Stuart S. Malawer writes: While the TPP is very controversial and politicized, and while it may never be passed by Congress, it is incumbent on lawyers and law professors to apply their objective assessment to the TPP provisions that are most closely related to their field: dispute resolution processes.

Jeffrey S. Klein and Nicholas J. Pappas

Circuit Split on Dodd-Frank Whistleblower Retaliation

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas analyze a recent decision in which the Second Circuit held that employees need not report alleged violations of federal securities law to the SEC to be protected against retaliation under Dodd-Frank and the conflict that decision established with the Fifth Circuit.

Barry Kamins

The 'Threshold' Under 'Payton': Only a Matter of Inches

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes: Thirty-five years ago the U.S. Supreme Court announced that, with several exceptions, a suspect cannot be arrested in his home unless the police have an arrest warrant even if they have probable cause to make the arrest. Following that decision, the focus of numerous decisions was the "threshold" of a suspect's home. In a series of recent decisions courts have more clearly defined the meaning of that term.

Stephen Bergstein

Second Circuit Guidance on Pleading Title VII Claims Under 'Iqbal'

By Stephen Bergstein |

Stephen Bergstein writes that piece by piece, the Second Circuit has issued rulings detailing how to plead various civil claims after the U.S. Supreme Court in 'Ashcroft v. Iqbal' revised the federal pleading requirements. In 2013, the Second Circuit issued a series of decisions addressing plausibility pleading under the FLSA. It has now done so for discrimination claims under Title VII of the Civil Rights Act of 1964.