Estate Planning and Philanthropy columnist Conrad Teitell reviews the basics of donating a car or other vehicle to charity—an area where, after years of inflated claimed deductions, Congress and the IRS have tightened the rules.
Estate Planning and Philanthropy columnist Conrad Teitell reviews the basics of donating a car or other vehicle to charity—an area where, after years of inflated claimed deductions, Congress and the IRS have tightened the rules.
Law Firm Management columnists Steven Andersen and Andrew Longstreth write that real identities, including those of lawyers or firms, lend credence to spurious sites and help trick search engines, social media users and media monitoring services into driving traffic. Fortunately, most fake news sites that affect lawyers receive minimal views—but you should still stay on your toes.
Yonatan Levoritz writes that client tax fraud is a problem, and one more common than many attorneys realize. In 'A.S. v. K.S.', a matrimonial case where counsel had reported to the court that both parties had committed tax fraud, Justice Jeffrey Sunshine took the admirable step of addressing the issue of "clean hands," but arguably applied the wrong approach to resolve the issue of the economically dependent spouse's entitlement to an award of pendente lite maintenance.
In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith report on cases involving a condominium owner's eviction, a criminal witness who suddenly developed amnesia while on the stand, whether a guilty plea bars an "actual innocence" claim, whether a citizen review board had standing to sue the police department it was charged with reviewing, and more.
In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: Reacting to the rapid expansion of digital transactions, the Commercial Division has creatively interpreted New York's long-arm statute when considering a party's digital presence in New York. While a defendant's digital communications may now be a plaintiff's ticket to access New York courts, the Commercial Division may not permit a plaintiff to take advantage of this interpretation as a means to manufacture jurisdiction.
Shmuel Vasser and Andrew C. Harmeyer write that the D.C. District Court potentially has upended an assumption in bankruptcy courts, suggesting that in many cases, they lack that authority under Article III of the U.S. Constitution to enter a final order granting non-debtor, third-party releases, at least without the affected party's consent.
Franchising columnist David J. Kaufmann writes: Perhaps the greatest skill set possessed by franchise counsel which will prove integral to a contemplated acquisition is the knowledge and ability to conduct meaningful due diligence of the target franchisor and its franchise network. Ironically, even though franchising is at the very core of franchisor acquisitions, quite typically the investment banks and very large law firms guiding the transaction are more concentrated on mechanics and finances.
In their Corporate and Securities Litigation column, Margaret A. Dale and Mark D. Harris discuss the circuit split over whether a company may be sued for securities fraud for omitting from its public filings information required to be disclosed by an SEC regulation
Milton Springut discusses a recent Connecticut case that presents the U.S. Supreme Court with an opportunity to resolve a longstanding dispute in trademark law: whether a prevailing trademark plaintiff must show willfulness to obtain disgorgement of the infringer's profits. This issue has split federal courts for decades.
In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. discuss Facebook's challenge to the ability of a state prosecutor's office to obtain information concerning its subscribers' social media accounts.
Copyright Law columnists Robert W. Clarida and Robert J. Bernstein write: Some eminent U.S. Supreme Court watchers have speculated that the court's temporary 4-4 ideological stalemate in 2016 led it to avoid cases involving hot-button issues. One case that arguably lends credence to this theory is 'Star Athletica v. Varsity Brands', which raised no contentious political issues, to put it mildly, but did give the court an opportunity to standardize an uncommonly chaotic body of case law surrounding the application of copyright law's "conceptual separability doctrine" to useful articles, including garments.
David B. Saxe writes that no prenuptial agreement is entirely immune from the challenges and vagaries of litigation, but with certain precautions, many of those agreements can be made more invulnerable.
Marcie Borgal Shunk, president and founder of The Tilt Institute, writes: For some firms approaching the concept of efficient service delivery holistically, the results can be impressive. Yet for others the improvements are isolated, limited or non-existent. Conventional wisdom cites the billable hour or lawyers' inherent reluctance to change as the primary obstacles. But what if the proposed solution—the need for systematic project management and process improvement—is simply solving a misdiagnosed problem?
In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul, write: Almost 25 years after the Supreme Court's decision in 'Daubert v. Merrill Dow Pharmaceuticals', recent cases in the Southern District of New York continue to demonstrate the wide latitude that the Daubert standard affords to judges ruling on the admissibility of expert testimony, even on subjects previously accepted as valid grounds for expert opinion.
In her Internet Issues/Social Media column, Shari Claire Lewis of Rivkin Radler discusses the ruling in 'Mount v. PulsePoint', which made clear that companies that circumvent web browser privacy features to place cookies on computers to gather information about Internet use are not subject to liability for the typical legal claims that might be asserted under New York law.
Michael Pasinkoff explores the authority of courts to reject insurance company bail bonds based upon a determination that the collateral which secures the bond provides an insufficient financial incentive to compel a defendant's return to court.
Richard L. Reiter and Adam L. Sheps write: As the Internet of Things continues to mature, the sheer magnitude and complexity of information will become more difficult to govern. As a result, it is important that businesses properly manage their data to avoid incurring unnecessary litigation costs that can consume valuable employee time, funds and other corporate resources.
In his Tax Tips column, Sidney Kess writes: The jobs market has heated up and many workers are voluntarily changing jobs to obtain better positions. There are a lot of practical and tax issues to consider when changing jobs, including deducting moving expenses and changes to health coverage and retirement benefits.
International Criminal Law and Enforcement columnists Nicholas M. De Feis and Philip C. Patterson discuss the government's authority to seek warrants under the Stored Communications Act, a hotly contested issue that appears to be settled in the Second Circuit—but courts in other circuits don't appear to be following its lead.
Kenneth E. Pitcoff and Andrea M. Alonso write: On Dec. 22, the Court of Appeals decided two significant cases in the area of Municipal Law, further defining when a municipality is acting in its "proprietary capacity" and clarifying the burden of proof in determining "substantial prejudice" to a public corporation in a late notice of claim petition.
John P. Campo and Susan F. Balaschak analyze a recent U.S. Supreme Court decision that, while not putting an end to so-called "structured dismissals" in bankruptcy, restricts the dismissal of a Chapter 11 case when combined with a final distribution to creditors that skips over a class of creditors without the latter's consent.
In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent decisions finding no due process violation by the government in taking brief control, for investigative purposes, of a website that gave users anonymous access to child pornography; dismissing a copyright claim alleging unlawful copying of the design for a private residence; and affirming two bankruptcy court decisions.
Maurice J. Recchia writes: Despite the potential for addressing broad substantive issues of privacy and freedom from unreasonable search and seizure, and issues of federalism and the applicability of a federal statute which establishes procedures a government body can use to compel information, the Court of Appeals in its recent Facebook decision hewed to the narrow procedural framework of the case and declined to address the broader issues.
Anita Bernstein writes: Depending how you count, there are approximately 62 statutory provisions for treble damages in New York law. Read together, most of them share an interest in vulnerable people.
In his No-Fault Insurance Law Wrap-Up, David M. Barshay reviews recent holdings, one of which saw the Appellate Term, Second Department, in contrast with the Appellate Term, First Department, reject the argument that an insurer's denial of a claim permits it to pay subsequent claims, which can lead to policy exhaustion before the contested earlier claim is litigated or arbitrated.
Thomas T. Janover and David E. Blabey Jr. write: The New York Court of Appeals recently issued an important new opinion on the reach of New York Judiciary Law §489, which bars certain forms of trading in litigation claims. The decision, in the Justinian Capital case, breathes new life into what is known as champerty, a doctrine many had thought to be largely dormant in New York.
Mediation columnists Abby Tolchinsky and Ellie Wertheim discuss how mediators can help parties achieve their mutual and thoughtful goals while the ground beneath them has changed unpredictably, whether it's a discussion between business partners when one wants to retire early, or between co-parents when one has a job opportunity overseas. How does a mediator address the shifting circumstances, if not the shifting goals and values?
Dove Burns writes that while an EEOC December publication on mental health in the workplace largely interprets existing law, its announcement pushes the limits of the ADA and signals the agency is likely to expand protections via a focus on enforcement. The increased scrutiny and enforcement effort will have significant ramifications for New York employers.
Aviation Law columnists Steven R. Pounian and Justin T. Green write: A typical aviation accident case may involve a crash in one jurisdiction, a pilot from a second, passengers from a third, an aircraft maintenance outfit from a fourth and an aircraft manufacturer from a fifth. Even before 'Daimler' it was frequently impossible to join all defendants in one action, but post-Daimler aviation cases invariably require plaintiffs to file multiple "protective actions" to guard against jurisdictional dismissals.
In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte review two recent disputes offer a window into whether and when antitrust regulators, to protect downstream consumers, will police negotiations between broadcast distributors and Regional Sports Networks that have exclusive rights to content for a team or a group of teams.
In their Privacy Matters column, Richard Raysman and Peter Brown focus on the recent 'Flores' decision, a case in which the plaintiff received the same text message multiples times despite replying "Stop".
Joseph D. Nohavicka discusses the recent Court of Appeals holding that broadly imposes an affirmative duty on individuals to speak when confronted with an accusation.
Complex Litigation columnist Michael Hoenig discusses the recent Court of Appeals holdings on jury presentations, writing that the boundary lines drawn by the court are broad enough so they don't stifle or handcuff lawyer creativity but they are sufficiently admonitory to put trial counsel and judges on notice that prejudice must be avoided and, if unfairness seeps into the case, it must be cured promptly and effectively.
In her Trusts and Estates Update, Ilene Sherwyn Cooper writes: While deference is accorded to the testator's selection of a fiduciary, there are circumstances when judicial intervention is required in order to safeguard the interests of the estate and satisfy statutory dictates. Recently, Surrogate's Courts have had the opportunity to consider this issue.
Robert G. Brody and Katherine M. Bogard discuss the EEOC's proposed guidance on unlawful workplace harassment, issued in January. It enumerates five core principles which have proven effective in preventing and addressing harassment: committed and engaged leadership; consistent and demonstrated accountability; strong and comprehensive harassment policies; trusted and accessible complaint procedures; and regular interactive training tailored to the audience and the organization.
Labor Relations columnists David E. Schwartz and Risa M. Salins discuss the Obama-era labor regulations that have been targeted by Congress and current legislative initiatives regarding unions, class actions and family leave.
In his Ethics and Criminal Practice column, Joel Cohen discusses a hypothetical: What if your adversary—perhaps someone you know professionally for years—pulls you aside with information about their case, that he or she will only tell you if you promise not to tell your client. Isn't your client better off if you hear something "his side" wouldn't otherwise learn at this stage, even if you will be honor-bound to keep it to yourself? Is this scenario all that different from an "Attorney's Eyes Only" document production?
Bill Greenberg writes: Jurors in bifurcated personal injury trials know that if they find for the defendant on liability, their jury service ends and they go home. Likewise, every juror knows that a liability finding in favor of the plaintiff brings with it their required participation in the damages phase, without knowing how long this second proceeding may last. In these circumstances, does a jury have a personal stake in the outcome of the liability portion of the trial?
Civil Rights and Civil Liberties columnist Christopher Dunn writes: Disputes about the standards governing the interaction between the Fifth Amendment's protection against compelled testimony and statutes compelling witness testimony were settled in the aftermath of the Communist "witch hunts"—a term President Trump ironically invoked last week—of the 1950s, but the burgeoning contemporary Russia investigations provide a good opportunity to review those standards and the history behind them, which implicate some of our most fundamental constitutional values.
In his Evidence column, Michael J. Hutter analyzes an Court of Appeals decision that is instructive on what is necessary to show a defendant's silence or evasive responses to an accusation are considered assent to the statement, thereby placing it within the adoptive admissions exception to the hearsay rule.
Adam J. Safer writes: What happens when a New York company employs personnel in California? Are the employees subject to the law in New York, which enforces reasonable employee agreements not to compete, or the law in California, which does not? The answer is surprisingly uncertain.
In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg discuss the Noseworthy doctrine, that a plaintiff in a wrongful death action is not held to as high a burden of proof as in other actions because the deceased plaintiff is not available to recount his/her version of the relevant events, and its application in medical malpractice actions, where the decedent, even if he or she had survived, often would not have been in a position to provide any relevant information as to how the injury was caused, or whether there was a departure from accepted practice.
Employment Law columnists Jeffrey S. Klein and Nicholas J. Pappas discuss the circuit split on whether the Equal Pay Act prohibits sole reliance on prior earnings to explain a wage differential challenged under the Act, summarize recent measures in California, Massachusetts, and Philadelphia restricting the use of prior earnings, and provide guidance for employers seeking to maintain compliant hiring and pay practices.
Bruce A. Cholst and Deborah B. Koplovitz write: New York state offers purchasers of residential units in newly built or rehabilitated developments where construction is rife with material defects a wide array of legal remedies. However, these avenues of redress often lack practical viability because by the time money judgments are obtained, the offending builders and design professionals are insolvent, and therefore judgment proof.
In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: After years of expressing frustration with the barriers to trial preparation in complex criminal cases, with little to show for it, the organized defense bar has again called for revisions to the main rule governing pretrial discovery, Rule 16 of the Federal Rules of Criminal Procedure. While it now appears likely that an amendment will result, whether the changes will effectively address the real difficulties counsel face in preparing for trial in complex white-collar cases remains to be seen.
Medical Malpractice columnists Thomas A. Moore and Matthew Gaier write that recovery for loss of chance—the diminution of an opportunity for a better outcome after a failure to diagnose—has long been a part of the fabric of malpractice actions in New York, but surprisingly, a question has been raised in recent years as to whether New York recognizes such recovery.
In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: The changes to Rule 34 have not received much attention from practitioners and judges, especially when compared to other changes, such as those to Rules 26 and 37. Recently, though, two judges who have had it with boilerplate responses and objections garnered attention by releasing fiery decisions promising sanctions for any future discovery response that fails to comply with amended Rule 34 or other Federal Rules of Civil Procedure.
Dennis Boshnack argues that a recent decision incorrectly denied an Article 78 petition, that a parking summons must set forth the particular place where the violation occurred, and that, regardless of whether the same parking restriction covers two addresses, the summons is fatally defective if the vehicle is parked at only one of those addresses and the summons misdescribes the place of occurrence as the other address.
Bruce M. DiCicco writes: Designating distributions from trusts for the "health, education, maintenance and support" (HEMS) of the beneficiary are "magic" tax words in that they establish a special power of appointment rather than a general power. But whereas the tax results of such standards are well known, how is that familiar tax standard interpreted in New York for purposes of distributions? How can estate planners avoid construction proceedings in order to determine the intent of a grantor when HEMS is the standard for distribution?
In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini provide a general overview of basic provisions covering contingent compensation structures in literary publishing, live theater, television and theatrical motion picture agreements.
In his Criminal Law and Procedure column, Barry Kamins discusses a case of first impression in which the New York Court of Appeals expanded the co-conspirator's exception to the hearsay rule. The court held that, subject to certain conditions, a statement made by a co-conspirator of a defendant, prior to the defendant's joining the conspiracy or after the defendant's active involvement has ceased, is admissible when offered to prove the conspiracy or the object crime.
In his Bankruptcy Update column, Edward E. Neiger discusses recent high profile tech sector bankruptcy filings of Avaya, Lily Robotics and Aquion Energy.
In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes discuss 'Millennium Holdings', a decision issued by the Court of Appeals which clarified that, except for rare public-policy driven exceptions, in order for the anti-subrogation rule to apply, the party seeking the protection of the rule must be insured under the insurance policy.
Thomas M. O'Brien writes: The vast majority of long-term detainees, all presumed innocent, are too poor to pay the bail that enables other accused persons to live and prepare for trial outside of jail. Yet even for those so confined by poverty, there is a mechanism to achieve freedom while the criminal process moves at its glacial pace toward resolution of a case. It is the law of speedy-trial. Both state law and the federal constitution present paths to release pending trial.
Kevin G. Faley and Christopher R. Invidiata discuss the grave injury threshold of the Workers Compensation Law, writing: The courts are not finders of fact, nor are they generally permitted to make subjective assessments of a witness' abilities. An objective assessment of a claimant's absolute employability provides a clear bright-line rule upon which the courts may rely. The prior subjective approach effectively mandated a jury trial in many traumatic brain injury matters which otherwise could be disposed of as a matter of law.
International Arbitration columnist John Fellas writes that Section 1782 is routinely used by parties to foreign lawsuits to obtain evidence located in the United States, but its use in international arbitration proceedings is under debate. Recently, the Southern District weighed in.
In his New York Practice column, Patrick M. Connors writes: Calculating the statute of limitations should not be thought of as a single question, but rather a determination on four separate issues. A mistake on any one can lead to disaster for the plaintiff, and concomitant celebration for the defendant.
Benjamin F. Jackson and Muhammad U. Faridi analyze 'Lantau Holdings v. Orient Equal International Grp.,' in which a Commercial Division judge weighed allegations that one of China's largest securities businesses never told a New York lender that shares of equity pledged as collateral by several defendant-borrowers were subject to a lock-up period. Despite the Chinese business' New York-based subsidiary, the court said it lacked personal jurisdiction, and that even if it had jurisdiction, the misrepresentation claims could not stand.
Immigration Law columnist Julie Muniz discusses what to expect in a Fraud Detection and National Security visit, generally made to verify information in a specific immigration petition, and best practice recommendations for employers.
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp review a recent decision where the court clarified the procedure that applies to enforcement proceedings under §207 of the FAA against named award-debtors, but failed to address the procedure when an award-creditor seeks to enforce a foreign arbitral award against an alleged alter-ego that is not named on the award.
James G. Ryan writes: Although it is actually well known that lower courts hold the statutory and inherent power to impose sanctions on noncompliant parties or their attorneys, the frequency of how often it is exercised is less recognized.
In their Trial Practice column, Robert S. Kelner and Gail S. Kelner write: Among the enumerated tasks in Labor Law §240(1), the scope of "cleaning" as a covered task has proven to be the most difficult to define. Unlike other activities specified in the statute, cleaning is, by its very nature, a type of maintenance.
Bruce Buechler writes: Proper notice is a hallmark of all bankruptcy proceedings. If a creditor or party-in-interest has no notice of a particular matter, many courts have ruled that the creditor or party-in-interest will not be bound by a particular court's determination. He discusses what "notice reasonably calculated" to apprise interested parties, whether known or unknown, of an action means.
In his Criminal Law column, Ken Strutin discusses the report of the President's Council of Advisors on Science and Technology (PCAST), writing: The PCAST Report, and its Jan. 6, 2017 Addendum, aimed to move courtroom forensics from subjective human judgments, errors and biases to objective, empirically validated evidence. Yet, without a place to be heard, the momentum of science comes to halt.
In his Health Law column, Francis J. Serbaroli of Greenberg Traurig LLP discusses a recent report by the U.S. Department of Health and Human Services acknowledging that the broad wording of some of the federal fraud and abuse laws is actually hindering legitimate reforms to the Medicare and Medicaid programs that the federal government is trying to encourage. He notes that there may be some movement towards refining the broad wording of these laws in order to remove obstacles to these reforms.
Steven Cash and Michael Baker write: As the need for sophisticated investigatory and information services has grown, the industry serving these needs has changed and grown. Recently, traditional investigative skills have been augmented by increasing sophistication in the collection and exploitation of "big data" sources and open-source data.
Arbitration columnists Samuel Estreicher and Holly H. Weiss discuss 'Kindred Nursing Centers Limited Partnership v. Clark,' which presents the U.S. Supreme Court with an opportunity either to reinforce that arbitration agreements are to be enforced to the same extent as other agreements or to take a different tack, permitting state courts to make decisions that limit the enforceability of arbitration agreements, perhaps giving special recognition to the nursing home context and the limits of powers of attorney agreements in that context.
In her Litigation 101 column, Shira Forman writes: A complaint—the introductory pleading that triggers most lawsuits—leaves an irrevocable first impression on judges and adversaries, and sets the tone for the litigation that will follow. Although it may seem like a simple, straightforward task, drafting a complaint requires strategic decision-making and attention to detail, and many of us get no formal instruction in how to do it.
Evan Charkes writes: In recent years the SEC and FINRA have taken leadership roles in seeking to help senior investors become more cognizant of the dangers of financial exploitation and fraud. In a further effort to better protect vulnerable investors, the SEC recently approved two FINRA rules: an amendment that requires a "trusted contact" be sought for every retail client account, and a rule that permits member firms to temporarily delay the disbursement of funds or securities where there is a reasonable belief that customers have been, are being, or will be subject to financial exploitation.
Law Firm Partnership Law columnist Arthur J. Ciampi writes that determining whether a law firm has the intangible asset of goodwill is often illusive and can be the subject of concern and even dispute among law firm partners. Does the ability to attract clients derive from the firm, or from individual partners?
In his Executive Compensation column, Joseph E. Bachelder III looks at earn-out requirements that apply to long-term incentive awards through the lens of the 2015 compensation package of Rex Tillerson, then CEO of Exxon Mobil, a noteworthy example because of long-term components that go substantially beyond the "norm" of three years.
Eric Raphan and Lindsay R. Colvin discuss how Judge Gorsuch's textualist approach to statutory interpretation, limited deference to administrative agencies, and heightened protection for free speech and expression may affect critical labor and employment law issues predicted to come before the Supreme Court during the Trump administration, including: the enforceability of mandatory class action waivers in employment agreements; whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation; and the constitutionality of agency fee requirements for employees who are a member of a bargaining unit, but not the union who represents it.
Thomas A. Dickerson writes: Until last year, maritime law, as it related to passengers, was best described as "21st century cruise ships and 19th century passenger rights." However, to my surprise and the satisfaction of many, the Eleventh Circuit decided to dramatically transport passenger rights, at least in part, into the 21st century.
In their International Litigation column, Lawrence W. Newman and David Zaslowsky discuss the deliberate impoverishment of an arbitration debtor through fraudulent transfers of assets to persons not parties to the arbitration, and claimants' attempts to have their awards enforced against parties that were not parties to the original commercial transaction.
State Environmental Regulation columnist Charlotte A. Biblow discusses the proposed regulations to "streamline" the SEQRA process without sacrificing "meaningful environmental review."
Glenn S. Grindlinger and Alexander W. Leonard discuss wage and hour settlement terms that generally will and will not be approved by courts in the Second Circuit.
Trial Advocacy columnists Ben Rubinowitz and Evan Torgan write that with little more than the click of a mouse, insurance companies and defense attorneys have a window "inside the home" and into the life of a personal injury plaintiff unlike anything seen before. Whether it is a photograph from a trip or simply the daily minutiae of life, social media postings can be a wealth of information for your adversary.
Patent and Trademark Law columnist Robert C. Scheinfeld writes: The telecommunications company Sprint has seen its profile rise recently in the area of patent law as the Federal Circuit just addressed two of Sprint's appeals challenging lower court patent infringement verdicts adverse to it, and the company achieved just this month a large damages jury verdict in a patent case against Time Warner Cable.
Julian D. Ehrlich writes: Construction workers on trucks get hurt ... often. Time and again, falls from trucks, or injuries when loading and unloading, generate claims alleging violations of the so-called scaffold statute. On four occasions since 2000, the Court of Appeals has addressed fact patterns involving falls, trucks and §240, and in each instance, the court has dismissed the claim. Despite established precedent and principles, recent appellate division decisions have reached markedly disparate outcomes.
In his Tax Tips column, Sidney Kess discusses the tax consequences for kids and their parents of summer jobs.
Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, discusses the opinion in 'Jacobus v. Trump', writing: In defamation law, a false statement of fact may be actionable; but a statement of opinion, no matter how offensive, generally is not. The opinion in 'Jacobus' is an excellent example of how complicated that analysis has become in the era of pervasive digital information.
Mitchell Boyarsky, Mark S. Sidoti and Ahmed J. Kassim write: In 2016, more than 250 lawsuits were filed against companies, primarily in the retail, hospitality, and financial services industries, alleging that the companies' websites were inaccessible to disabled users. The exposure in these cases entails not only an injunction, but also defense costs and award of the claimants' attorney fees. Accordingly, it is important for businesses and defense counsel to understand the need for ADA website accessibility and strategies to mitigate exposure.
In his Civil Rights Litigation column, Ilann M. Maazel writes: With a new administration in power, civil rights lawyers are suddenly in demand. Most places I go, civil rights, civil liberties, basic constitutional norms and freedoms seem to be on the collective mind. This is a good time, then, for a refresher on basic civil rights protections we all enjoy under the U.S. Constitution.
Matthew Solum writes that while an agreement on the key terms can be useful in a negotiation, parties can leave the table with different understandings of what that preliminary agreement actually means and, importantly, whether and to what extent that agreement is binding.
Jason A. Richman writes: One particularly stark example of the vicissitudes of our high court's application of the Scaffold Law arises in the setting of accidents involving not just the elevation-related hazards upon which the statute is focused, but where other more commonplace construction site hazards also occupy a link or two in the chain of proximate causation.
Trusts and Estates Law columnists C. Raymond Radigan and John G. Farinacci discuss additional significant court decisions concerning Article 17-A, which is widely criticized as making blanket assumptions concerning the need for guardianship based on a diagnosis rather than the specific functional capabilities and limitations of the person that is the subject of the proceeding.
In his Attorney Discipline column, Hal R. Lieberman addresses some highlights of "related proceedings" under the new discipline regime, i.e., diversion, interim suspension, criminal convictions, collateral estoppel, and reinstatements.
Barry Dynkin, Benjamin Dynkin and Scott Grauman write: Whether companies focus on conducting risk assessments, implementing novel technologies, adopting new policies and procedures, or other options, there has been a clear shift towards a greater recognition of the importance of cybersecurity. While these are certainly important steps to take, they do not address one of the greatest vulnerabilities an organization faces: its employees.
In his Tax Litigation Issues column, Jeremy H. Temkin writes: The line between legitimate business expenses and commercial bribery can be a fine one, and while businessmen who are prosecuted for having crossed that line are rightfully most concerned with the loss of liberty and stigma associated with a criminal conviction, lawyers and accountants representing them need to be mindful of the tax consequences of their clients' conduct.
Richard L. Steer, Jonathan S. Hershberg and David Mederrick write: Both the Fair Credit Reporting Act and New York's Fair Chance Act are hyper-technical and easily violated, with stiff, rapidly escalating penalties for non-compliance. That has made costly class action litigation in this area an emerging cottage industry for the plaintiff's bar.
In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. discuss a recent decision in which the court held that a non-state defendant is not entitled to apportion fault to the state where a private party and the state are alleged to be jointly liable for a personal injury plaintiff's non-economic losses.
Insurance Law columnist Jonathan A. Dachs discusses New York's disclaimer statute and an explicit statutory limitation—the requirement that the claim at issue in the policy being denied or disclaimed be one involving "death or bodily injury"—as well as certain judicially created or recognized limitations or exclusions from the applicability of the disclaimer statute.
Benjamin Zelermyer and Jeffrey G. Steinberg write that neither a plaintiff nor an insured defendant may be eager to ask the trial court to submit special questions to the jury, prefering to leave the basis of a potential verdict for the plaintiff uncertain, placing the burden on the insurer. However, despite the obvious utility of special interrogatories, insurers rarely move to intervene and courts in New York often refuse to permit intervention.
Antitrust Trade and Practice columnists Shepard Goldfein and James Keyte write: In the wake of two successful merger challenges by the Department of Justice Antitrust Division, the Federal Trade Commission has released a study on merger remedies, providing some lessons that parties to future proposed mergers would be wise to heed.
International Banking columnist Kathleen A. Scott discusses the Trump administration's initial efforts at addressing what he sees as over-regulation, and suggests what effect it might have on non-U.S. banks' operations in the United States.
In their Technology Law column, Richard Raysman and Peter Brown discuss three recent cases dealing with the following issues: if a person's name in the "From" field of an email constitutes a valid electronic signature; whether a username and password to use an app is an electronic signature; and whether a partially automated job application process precludes the authentication of an electronic signature.
Joshua D. Bernstein and Nathan T. Horst review the protections offered by §414 of the New York Limited Liability Company Law, which permits removal of LLC managers by majority vote. Their analysis examines its purpose, provisions, and relevant case law and offers advice for LLC investors looking to obtain its full benefits.
In his Complex Litigation column, Michael Hoenig writes: An important decision issued in February by the First Department tees up a grand refresher course on New York's legal standards for admitting expert testimony in toxic tort litigation.
Paul Shechtman writes: Fifty years ago, the U.S. Supreme Court decided 'Klopfer v. North Carolina', in which it held that the speedy trial guarantee of the Sixth Amendment applies to the states. Klopfer is the story of a man of conscience—Duke University zoologist Peter Klopfer—and a court committed to imposing federal constitutional standards in criminal procedure on the states.
In his Professional Responsibility column, Anthony E. Davis reviews the Court of Appeals decision on whether to enforce the plain language of a contract between two lawyers for sharing legal fees when the lawyers had not complied with the requirements of the Rules of Professional Conduct, and a New York City Bar ethics opinion on reconciling the duty to report a lawyer's fraudulent billing and the duty to preserve confidentiality.
Tax Appeals Tribunal columnist Joseph Lipari writes that the location to which a "receipt" should properly be attributed for apportioning income of corporations is subject to interpretation, particularly with regard to services. New York moved to establish customer-based sourcing when it enacted in 2014 comprehensive corporate tax reform, but cases under previous law, like the recent determination from the state Division of Tax Appeals in 'CheckFree Services', still offer guidance for issues of classification and location of "receipts" earned by a business.
Michael Smilowitz and Robert Smilowitz discuss the legality of the design-build project structure in New York state construction.
Environmental Law columnists Michael B. Gerrard and Edward McTiernan write that now that the New York State Department of Environmental Conservation has issued official sea level rise projections (up to 75 inches by the year 2100), these projections may begin to affect a broad range of decisions in building and infrastructure siting, design, construction and materials; insurance and financing; securities disclosure; and estate planning.
Scott W. Doyle, Jonathan R. DeFosse and Arvind Iyengar write that at the time the America Invents Act was enacted, it was widely believed to represent a broad prohibition on later raising prior art invalidity arguments based on any printed publications or patents that could have been included in an inter partes review petition. Over the last year however, courts have suggested that the scope of the IPR estoppel provision is more limited than many originally anticipated.
In his Employment Issues column, Philip Berkowitz discusses a recent case in which an internal auditor at a bank provided highly confidential bank and customer documents and information to the SEC and other government enforcement agencies, along with The New York Times, his mother and his girlfriend.
Intellectual Property Litigation columnists Lewis R. Clayton and Eric Alan Stone discuss the differing statutory framework and policy concerns of patent and copyright law, the Supreme Court's recent clarification of the doctrines of laches and exhaustion under the Copyright Act, and the court's upcoming cases involving those doctrines under the Patent Act.
Daniel Garrie and Yoav Griver write: 'Matthew Enterprises v. Chrsyler' offers insight into how a plaintiff that neglects its preservation obligations, which would be readily "attainable" if given due consideration, can face serious sanctions and possible termination of their case.
White-Collar Crime columnists Elkan Abramowitz and Jonathan Sack discuss DOJ policy on Foreign Corrupt Practices Act enforcement, notably the "Pilot Program" announced in April 2016, and then look at several aspects of recent FCPA resolutions, which give clues as to how enforcement may proceed in the new Trump administration.
In his State E-Discovery column, Mark A. Berman of Ganfer & Shore discusses a series of recent decisions by motion courts in New York County Supreme Court concerning electronically stored information discovery disputes with non-parties.
Chris Moschovitis writes: We have seen it time and again: Owners, and law partners, although "sensitized" to cybersecurity issues, frequently abdicate their due care responsibilities, preferring instead to depend on their technology departments to "make the problem go away." This is a clear violation of due care, and a wide-open door to lawsuits.
On Jan. 17, 2017, in a closely watched dispute, the Second Circuit issued its long-anticipated decision in 'Marblegate Asset Management, LLC v. Education Management Finance Corp.', construing Section 316(b) narrowly, holding that it only prohibits "non-consensual amendments to an indenture's core payment terms" and does not protect noteholders' practical ability to receive payment.
Good Guy Guarantees are designed to ensure that defaulting commercial tenants leave the premises promptly, avoiding loss of rental income to landlords. However, in 'Bri Jen Realty Corp. v. Altman', the Second Department construed a Good Guy Guarantee to hold a guarantor liable for rent for 11 months after tenant surrendered the premises.
Thomas R. Newman and Steven J. Ahmuty Jr. write: In 'Hain v. Jamison', the Court of Appeals addressed two recurring jurisdictional issues in the context of summary judgment: the "finality" requirement and the availability of affirmative relief to an nonappealing party.
Brian Arbetter and Samantha Beltre write: In today's varying economic climate, many employers are using and misusing the concept of independent contractor to engage individuals to perform services.
In his Section 1983 Litigation column, Martin A. Schwartz writes: Rightly or wrongly, an arrest can impact on an individual's reputation. When a plaintiff asserting wrongful arrest or excessive force claims has been arrested multiple times, the jury may view him as simply a "bad dude" who is not deserving of relief, so attorneys in such cases fight hard over admissibility of the arrest record. Recent decisions provide a valuable discussion of the issue.
In his Insurance Fraud column, Evan H. Krinick highlights a variety of instances where individuals were trapped by their own devices, or by other persons' broadcasts over the internet.
Kristen B. Weil and Ronald J. Hedges offer practitioners a list of tips to comply with ethical obligations of competence in the world of e-discovery
Matrimonial Practice columnist Timothy M. Tippins reviews two proposals on dissemination of a custody evaluator's report and underlying file, either of which would offer an important step out of the Dark Ages and would move New York toward forensic transparency and the more informed custody adjudications that such transparency would facilitate.
In his Northern District Roundup, Adam R. Shaw reports on decisions on "one of the most mysterious and esoteric branches of the law of federal jurisdiction" and the extent that due process rights protect personal reputations.
Kathleen McLeod Caminiti and Seth Kaufman write: Pay equity issues are hot these days, in the boardroom and in the courtroom. Ask any employment lawyer and they will probably tell you that equal pay is likely to be one of the hottest topics in 2017 and beyond. This is doubly so for New York employers, due in no small part to the state's Achieve Pay Equity Act.
In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler write: Repairs, code compliance and development frequently require an owner to enter on to a neighbor's property. All is well if the neighbors can agree on the conditions of an owner's entry, but what happens when these neighbors cannot come to an agreement?
Costantino P. Suriano and Daniel Markewich consider a hypothetical lawsuit that a New York liability insurer has defended where the judgment does not exceed the policy limits but the insurer has a sound basis for asserting that part of the judgment is excluded from coverage. Can the insurer obtain a stay of enforcement pending appeal without court order only by filing an undertaking pursuant to CPLR 5519(a)(2) in the full amount of the judgment against the insured, including that portion as to which coverage is disputed?
F. Paul Greene of Harter Secrest & Emery writes: It has been a wild ride for the banking, insurance, and financial services industries in New York over the past five months. But now the New York State Department of Financial Services has released the final version of its cybersecurity regulations, maintaining its new risk-adjusted approach. Important questions concerning the scope and effect of the regulations remain, however.
In his Franchising column, Rupert M. Barkoff writes that there are two significant advantages for franchisors in adopting arbitration: no jury trials, and preventing class actions. But whether an arbitration proceeding is more likely to bring adverse consequences to franchisees than a judicial proceeding is an open question. Some anecdotal evidence indicates the results might not be meaningfully different.
Condemnation and Tax Certiorari columnist Michael Rikon writes: In the typical takings case, government files a petition of condemnation, the former owner files a claim and the matter proceeds for a determination of just compensation. But what about regulations, restrictions or other actions by a government entity with the power of eminent domain which are designed to earmark or restrict property in a way that works to reduce the property's fair market value? The more difficult question is, does this result in a de facto taking?
In his Cyber Crime column, Peter A. Crusco discusses "gag orders" (also known as "preclusion-of-notice orders") issued under the Stored Communications Act, addressing issues of whether these gag orders violate the First Amendment, and constitute a prior restraint on speech, or violate the Fourth Amendment as an unreasonable search.
Jeffrey D. Pollack provides a brief overview of the issues surrounding retaliation claims—now the most common charge the EEOC receives—with a focus on Title VII and a brief discussion of New York City law.
Antitrust columnist Elai Katz reviews recent developments, including the Tenth Circuit's affirming the dismissal of antitrust claims asserting concerted denial of access to an essential facility in the natural gas market in western Colorado and a district court's acceptance of a narrow relevant market proposed by the U.S. Department of Justice, ensuring the government's successful challenge to Aetna's proposed acquisition of rival health insurer Humana.
Estate Planning and Philanthropy columnist Conrad Teitell reviews IRS key charitable figures for 2017, including a safe harbor for insubstantial donor benefits for charitable contributions, the mileage rate for a volunteer's use of an automobile for charity, and a reduction for some itemized deductions for high earners.
George M. Heymann discusses the Court of Appeals' recent holding in 'Hain v. Jamison,' where the court said it could not be determined, as a matter of law, whether the farm's negligence in allowing a calf to escape merely furnished the occasion for the accident that killed a woman who was struck after she exited her car to help the calf, or that the accident did not flow from farm's negligent conduct. Accordingly, the issues of "substantial cause" and "foreseeability," under these circumstances, should be made by the fact finder.
In their Federal Civil Enforcement column, Richard Strassberg and William Harrington write that False Claims Act enforcement has increased dramatically under every president since Ronald Reagan. Practitioners have nevertheless wondered whether we can expect a similarly robust FCA agenda from President Donald Trump. The recent confirmation of Sen. Jefferson Beauregard Sessions III as attorney general and nomination of Rod J. Rosenstein, the U.S. Attorney for the District of Maryland, for deputy AG may suggest a comparably aggressive approach to FCA enforcement.
Government and Election Law columnists Jerry H. Goldfeder and Myrna Pçrez write: Apart from the inherent problem of having a president making unsubstantiated claims about illegal voting, the drumbeat that there is widespread voter fraud saps the energy and attention of those who wish to improve our election systems.
Benjamin Zelermyer and Jeffrey G. Steinberg write: When insurance coverage disputes turn on answers to questions of fact or the nature of the claim for which an insured may be held liable, a special verdict or answers to special interrogatories should be considered. Besides potential gains of obviating the need for a separate trial and avoiding the risk of inconsistent determinations, there are serious risks in not moving to intervene.
Domestic Environmental Law columnists Christine A. Fazio and Ethan I. Strell write that while Judge Gorsuch has questioned judicial deference of agency decisions, his few written opinions on environmental matters actually show a tendency to rule in favor of the federal agency. However, the outcomes of these cases have less to do with the environment than with Judge Gorsuch's judicial and constitutional philosophy.
Stephen M. Plotnick and Alexander G. Malyshev write: The LLC form is often favored because it offers a great deal of flexibility in how a business is to be governed and operated day-to-day. That flexibility can and should be taken advantage of, and the best practice is to reduce the members' mutual understandings to writing. However, when business partners determine to forgo this important step, jurisdictions like New York offer a degree of certainty for members and their governance rights that jurisdictions like Delaware are potentially lacking.
In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: In spite of its reputation as a natural and architectural wonder, the system that provides New York City's tap water has been the subject of a series of lawsuits over the past two decades brought by environmental organizations that fear pollution in New York's waters. A recent decision likely puts to rest this protracted legal battle, as well as clarifies the circuit's jurisprudence on 'Chevron' deference.
Admiralty Law columnist James Mercante writes that maritime law, which one judge found predated the birth of Christianity by 900 years and is one of only two practice areas mentioned in the Constitution, has come a long way from the wooden sailing ship days.
Despite the forecast that more cyberattacks are on the way, few law firms, even among those who specialize in privacy and data security matters, have plans in place that detail how they'd respond internally and publicly to a cyber event. Being able to respond quickly and decisively will preserve your firm's public image and brand; a professional and measured response will signal to the market that you are in control and taking the appropriate steps.