Expert Analysis

Samuel Estreicher and Holly H. Weiss

Is State Law Rule About Power of Attorney Agreements Preempted by the FAA?

By Samuel Estreicher and Holly H. Weiss |

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.

Shira Forman

Drafting Complaints: Start Off on the Right Foot

By Shira Forman |

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.

New FINRA Rules Address Financial Exploitation of Senior Investors

By Evan Charkes |

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.

Arthur J. Ciampi

Understanding Law Firm Goodwill

By Arthur J. Ciampi |

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?

Rex Tillerson

Should Executive Pay Be More 'Long-Term'?

By Joseph E. Bachelder III |

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

How Judge Gorsuch Could Affect Key Labor, Employment Issues Facing SCOTUS

By Eric Raphan and Lindsay R. Colvin |

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

Maritime Law: The Independent Contractor Defense Is Buried at Sea

By Thomas A. Dickerson |

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.

Lawrence W. Newman and David Zaslowsky

Enforcing Arbitral Awards Against Nonparties

By Lawrence W. Newman and David Zaslowsky |

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.

Charlotte A. Biblow

New SEQRA Regulations Finally Appear on the Horizon

By Charlotte A. Biblow |

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

'Cheeks v. Freeport Pancake House': A Full Stack of Approval Decisions 18 Months In

By Glenn S. Grindlinger and Alexander W. Leonard |

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.

Ben Rubinowitz and Evan Torgan

Protecting Your Clients From Their Own Social Media

By Ben Rubinowitz and Evan Torgan |

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.

Robert C. Scheinfeld

Federal Circuit Affirms Infringement Holdings and Damages in 'Sprint' Appeals

By Robert C. Scheinfeld |

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

Falls, Trucks and Labor Law §240: Where Are We Going?

By Julian D. Ehrlich |

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.

Sidney Kess

Children Who Work: A Tax Perspective

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the tax consequences for kids and their parents of summer jobs.

Stephen M. Kramarsky

Protecting Opinion in Twitter's 'Schoolyard Squabbles'

By Stephen M. Kramarsky |

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.

Navigating Website Accessibility Claims

By Mark S. Sidoti, Mitchell Boyarsky and Ahmed J. Kassim |

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.

Ilann Margalit Maazel

A Civil Rights Refresher for 2017

By Ilann M. Maazel |

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

'GE Oil & Gas v. Turbine Generation Services': An Agreement to (Dis)agree?

By Matthew Solum |

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, .Esq.Jason A. Richman, Esq.,.Attorney and Counselor at Law.P.O. Box 312.Victor, New York  14564.Telephone: (585) 362-2787.E-Mail: jasonarichman@gmail.com

NY Labor Law §240(1): Fundamental Purpose Overwhelmed by Minutiae

By Jason A. Richman |

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.

Hal R. Lieberman

New Rules for Attorney Disciplinary Matters: 'Related Proceedings'

By Hal R. Lieberman |

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.

C. Raymond Radigan and John G. Farinacci

SCPA Article 17-A Guardianship Statute Revisited

By C. Raymond Radigan and John G. Farinacci |

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.

Implement a Cybersecurity Culture Through Broken Windows Cyber-Policing

By Barry Dynkin, Benjamin Dynkin and Scott Grauman |

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.

Jeremy H. Temkin

Bribery vs. Extortion: The Deductibility of Illegal Payments

By Jeremy H. Temkin |

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.

Employee Background Checks: The New Compliance Arena

By Richard L. Steer, Jonathan S. Hershberg and David Mederrick |

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.

Lynn K. Neuner and William T. Russell Jr.

Court Tackles Apportionment Issue Involving the State and a Private Party

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

In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. discuss 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.

Jonathan A. Dachs

The Applicability (Inapplicability) of New York's Disclaimer Statute, Continued

By Jonathan A. Dachs |

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

Special Interrogatories in Coverage Disputes: How to Pop the Question

By Benjamin Zelermyer and Jeffrey G. Steinberg |

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.

Kathleen A. Scott

Trump Deregulation: What's in It for Non-U.S. Banks?

By Kathleen A. Scott |

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.

Shepard Goldfein and James A. Keyte

A Moment of Repose: The FTC's Merger Remedy Study

By Shepard Goldfein and James Keyte |

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.

Richard Raysman and Peter Brown

Recent Cases Interpreting and Applying the UETA

By Richard Raysman and Peter Brown |

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

The Removal of Unwanted Managers of Real Estate LLCs

By Joshua D. Bernstein and Nathan T. Horst |

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.

Michael Hoenig

Experts' Proofs Flunk N.Y. 'Reliability' Standards

By Michael Hoenig |

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

Speedy Trial Guarantee Applies to States: 'Klopfer v. United States' Turns 50

By Paul Shechtman |

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.

Anthony E. Davis

Legal Fees: What Happens When Principles of Law or Ethics Conflict?

By Anthony E. Davis |

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.

Joseph Lipari

'CheckFree' Provides Distinction Between Services and 'Other Receipts'

By Joseph Lipari |

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.

Robert Smilowitz and Michael Smilowitz

Design-Build, Grandfathered GBCs and Other Exceptional Circumstances

By Michael Smilowitz and Robert Smilowitz |

Michael Smilowitz and Robert Smilowitz discuss the legality of the design-build project structure in New York state construction.

Michael B. Gerrard and Edward McTiernan

New York's New Sea Level Rise Projections Will Affect Land Use, Infrastructure

By Michael B. Gerrard and Edward McTiernan |

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

Decisions Suggest That Estoppel Arising From IPR Is Narrower Than Anticipated

By Scott W. Doyle, Jonathan R. DeFosse and Arvind Iyengar |

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.

Trade Secrets and Whistleblower Disclosures

By Philip Berkowitz |

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.

Lewis R. Clayton and Eric Alan Stone

Will SCOTUS Copyright Precedent Influence Upcoming Patent Decisions?

By Lewis R. Clayton and Eric Alan Stone |

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.

Discovery Obligations Apply to Plaintiffs Too

By Daniel Garrie and Yoav Griver |

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.

Elkan Abramowitz and Jonathan Sack

FCPA Enforcement Trends: Will They Continue?

By Elkan Abramowitz and Jonathan Sack |

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.

Mark A. Berman

Practical ESI Lesson Concerning Non-Parties

By Mark A. Berman |

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 J. Moschovitis

Cybersecurity and Due Care for Law Firms

By Chris Moschovitis |

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.

Expanding the Scope of Good Guy Guarantees

By Stewart E. Sterk |

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.

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

Second Circuit Reverses District Court in Marblegate, Making It Easier to Restructure Bonds Outside of a Chapter 11 Case

By Alan R. Glickman, David M. Hillman, Ronald B. Risdon and Minji Reem |

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.

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

Appellate Jurisdiction in the New York Court of Appeals

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

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

Employer Tips for Minimizing Risks of Independent Contractors

By Brian Arbetter and Samantha Beltre |

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.

Martin A. Schwartz

Recent Decisions Holding Plaintiff's Arrest Record Inadmissible

By Martin A. Schwartz |

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.

Evan H. Krinick

Social Media Is Shining Light on Fraudulent Insurance Claims

By Evan H. Krinick |

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.

Ron Hedges and Kristen Weil

Ethical E-Discovery and New Technologies

By Kristen B. Weil and Ronald J. Hedges |

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

Timothy M. Tippins

Forensic Reform: The Time Is Now!

By Timothy M. Tippins |

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.

Adam R. Shaw

Recent Decisions Address Jurisdiction in Probate Cases and Due Process Rights

By Adam R. Shaw |

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

Achieve Pay Equity Act: Are Employers Ready to Defend Their Pay Practices?

By Kathleen McLeod Caminiti and Seth Kaufman |

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.

Eva Talel and Richard Siegler

Access to Enter an Adjoining Property: Must a License Fee Be Paid?

By Eva Talel and Richard Siegler |

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

Judgment Is Within Policy Limits But Insurer Believes Part Is Outside Coverage

By Costantino P. Suriano and Daniel Markewich |

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

Final DFS Cybersecurity Regulations: Questions of Scope and Effect Linger

By F. Paul Greene |

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.

Rupert M. Barkoff

Arbitration Should Not Be That Bad—From the Franchisee's Perspective

By Rupert M. Barkoff |

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.

Michael Rikon

When Government Action Constitutes a Taking, and When It Does Not

By Michael Rikon |

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?

Peter A. Crusco

Indefinite Gag Orders Under the Stored Communications Act

By Peter A. Crusco |

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

Employment Law: an Overview of Retaliation Claims

By Jeffrey D. Pollack |

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.

Elai Katz

Essential Facilities and Natural Gas Pipelines

By Elai Katz |

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.

Conrad Teitell

Charitable Deduction and Other Indexed Tax Adjustments for 2017

By Conrad Teitell |

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

Proximate Cause and Intervening Acts: 'Hain v. Jamison'

By George M. Heymann |

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.

Richard Strassberg and William Harrington

Under Sessions-Led Justice Department, FCA Enforcement Likely to Continue Apace

By Richard Strassberg and William Harrington |

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.

Jerry H. Goldfeder and Myrna Pérez

Real Solutions for Real Problems

By Jerry H. Goldfeder and Myrna Pérez |

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

Special Interrogatories in Coverage Disputes: the Hidden Risk

By Benjamin Zelermyer and Jeffrey G. Steinberg |

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.

Christine A. Fazio and Ethan I. Strell

Judge Gorsuch's Environmental Record

By Christine A. Fazio and Ethan I. Strell |

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 Plotnick and Alexander Malyshev

New York's LLC Law Fosters Greater Certainty for Members and Their Rights

By Stephen M. Plotnick and Alexander G. Malyshev |

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.

A ship discharging ballast water

From Sea to Shining Sea: Admiralty Reigns

By James Mercante |

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.

Martin Flumenbaum and Brad S. Karp

Recent Decision Clarifies the 'Chevron' Doctrine

By Martin Flumenbaum and Brad S. Karp |

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.

Zach Olsen and Andrew Longstreth

Getting Ready to Talk About Your Firm’s Upcoming Data Breach

By Zach Olsen and Andrew Longstreth |

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.

Sidney Kess

Long-Term Care and Tax Rules: Understanding the Financial Picture

By Sidney Kess |

Tax Tips columnist Sidney Kess discusses the tax treatment of long-term care insurance premiums and proceeds, along with the treatment of continuing care facility expenses.

Edward M. Spiro and Judith Mogul

Stricter Standards for Standing

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: Following the U.S. Supreme Court's May 2016 decision in 'Spokeo v. Robins', courts have been re-examining whether plaintiffs seeking statutory damages, particularly under various consumer protection laws, have Article III standing to pursue their claims. With guidance from the Second Circuit's post-'Spokeo' decision in 'Strubel v. Comenity Bank', courts in the Southern District of New York are beginning to flesh out the new approach to standing in such cases.

Shari Lewis - Rivkin Radler.12/13/2016

Online and Social Media Defamation in Today's Age

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis of Rivkin Radler writes: Social media's emerging role, combined with the extreme divisions so evident in our country, have caused the courts to consider application of pre-Internet legal standards to defamation and other torts brought in response to tweets, Facebook posts, and content on other social media platforms. Recently, a number of courts have considered the context provided by social media and how online forums impact the reader's expectation of truth and the distinction between fact and opinion.

Atif Khawaja

An Ounce of Prevention: Accidental Destruction of ESI Is Serious Business

By Atif Khawaja |

Atif Khawaja writes: The legal standard for spoliation is clearer in some jurisdictions than it is in others. But wherever one happens to be litigating, decisions on the destruction of ESI are often highly fact-specific, nuanced, and technical. As a result, those decisions can also be unpredictable. A recent Court of Appeals decision is a case study in the consequences of technological mishaps and corporate miscommunications.

A coal burning electrical power plant

A Carbon Tax Plan Proposal: What Are Its Prospects?

By Jeff Salinger |

writes that on Feb. 9, a group of prominent Republicans and business leaders from the Climate Leadership Council released a carbon tax proposal entitled "The Conservative Case for Carbon Dividends," a four-pronged proposal that would impose a tax on carbon for oil, gas and coal use, which together comprise nearly 80 percent of total U.S. greenhouse gas emissions.

George Bundy Smith and Thomas J. Hall

Continuing Breach and Statutes of Limitations

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall discuss how courts in the Commercial Division recently have applied the doctrine of continuing breach—where a contract imposes a duty of continuing performance over a period of time, "each successive breach may begin the statute of limitations running anew"—illustrating the doctrine's scope.

David J. Kaufmann

Brand Standards: How Far Will the Courts Let Franchisors Go?

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann writes that every franchise agreement vests in the franchisor the ability to promulgate and modify from time to time "brand standards," allowing consumers to associate franchisors' marks with certain standards of quality, product offerings, unit appearance, no matter where the franchise is. But some franchisees have pushed back on brand standards.

Jason L. Shaw

The Time Has Come for the Court of Appeals to Resolve Reinsurance Issue

By Jason L. Shaw |

Jason L. Shaw writes: The Second Circuit's reinsurance decision last month in 'Global Reinsurance of America v. Century Indemnity' will finally lead to resolving the unsettled question about whether reinsurers will have limitless liability for an underlying insurer's legal costs.

Lee Spielmann

'Simon' Shows FSIA's Importance to Holocaust Survivors Seeking Civil Justice

By Lee Spielmann |

Lee Spielmann writes: Legal proceedings against the perpetrators of Nazi Germany's murder of six million Jews have almost concluded, with German criminal prosecutions quickly winding down and American efforts to expel those who assisted in Nazi persecutions having ended. Holocaust survivors have also initiated civil suits under the Foreign Sovereign Immunities Act to obtain redress. One such recent case in the D.C. Circuit, 'Simon v. Republic of Hungary', demonstrates the complexity of these proceedings, the significance of the issues and their importance in promoting Holocaust awareness.

Margaret A. Dale and Mark D. Harris

Due Process Rights in Multi-Jurisdiction Shareholder Derivative Actions

By Mark D. Harris and Margaret A. Dale |

Corporate and Securities Litigation columnists Mark D. Harris and Margaret A. Dale write: In several recent cases, the Delaware Court of Chancery has addressed due process issues arising out of shareholder derivative actions. The Delaware Supreme Court has now taken up the baton in a case that raised the question of when a court in a subsequent action is obligated to honor an earlier dismissal of a shareholder derivative action for failure to plead demand futility.

An Update on Pre-Dispute Arbitration in Nursing Home Admission Agreements

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish reviews recent developments in the U.S. Supreme Court, Department of Health and Human Services, a Mississippi district court, and the New York Appellate Division pertaining to mandatory arbitration in nursing home agreements.

Defining the 'Practice of Law' After 'Matter of Brandes'

By Chris McDonough |

Chris McDonough discusses Joel Brandes' recent attempts to be reinstated to the New York bar and whether his performing paralegal services for attorneys from his home in Florida during his disbarment constituted the practice of law.

Peter A. Mahler and Matthew D. Donovan

Courts Address Key Issues in Business Divorce Cases of 2016

By Peter A. Mahler and Matthew D. Donovan |

Peter A. Mahler and Matthew D. Donovan write an annual review featuring analysis of a number of significant decisions from Second Department trial and appellate courts concerning partnership dissolution and valuation, tie-breaker authority and liability, and LLC member fiduciary duty.

Robert W. Clarida and Robert J. Bernstein

N.Y. Court of Appeals Determines Common Law Rights in Sound Recordings

By Robert J. Bernstein and Robert W. Clarida |

Copyright Law columnists Robert J. Bernstein and Robert W. Clarida write: The treasure trove of pre-1972 hits has spawned a multitude of civil actions, appeals to the Second, Ninth and Eleventh Circuits, certifications to the highest courts of New York and Florida, and a complex class action settlement agreement with multiple contingencies depending primarily on whether the pending actions ultimately recognize a public performance right.

Jeremy M. Creelan

Class Certification: Will Gorsuch Pick Up Where Scalia Left Off?

By Jeremy M. Creelan |

Jeremy M. Creelan writes: For two decades leading up to Justice Antonin Scalia's death, the U.S. Supreme Court's class certification jurisprudence took shape as a dialogue between Justices Scalia and Ruth Bader Ginsburg over the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and (b)(3), respectively. With Scalia's passing, the court has hinted that it will embrace Ginsburg's pragmatic approach in future cases. But a surprisingly few clues indicate whether Judge Neil Gorsuch of the Tenth Circuit will follow in Scalia's footsteps in this area.

Shepard Goldfein and James A. Keyte

Dancing Without a Partner: ABA Antitrust Section's Advice to the New Administration

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte write: By the time President Trump was inaugurated, professional and business communities had spilled a lot of ink over his statements on antitrust, as well as the implications of choosing Josh Wright to lead the FTC transition team. Now, the Section of Antitrust Law of the ABA has issued a Presidential Transition Report that, perhaps more than ever before, may offer the best picture of where antitrust may move over the next four years or more.

Joel Cohen

When Lawyers and Judges Criticize Jury Verdicts

By Joel Cohen |

Ethics and Criminal Practice columnist Joel Cohen writes: It's completely fair game for commentators to criticize a jury verdict—after all, why shouldn't journalists write that O.J.'s acquittal was out of line, or that Rubin "Hurricane" Carter's conviction was unjust? But do the same rules apply when the prosecutor, defense attorney or even the judge chooses to lash out publicly against a jury verdict, even if the disagreement is in good faith?

Richard Raysman and Peter Brown

A 'Loss' Under the CFAA Does Not Require Interruption of Service

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown focus on what federal appellate courts actually agree upon with regard to the text of the Computer Fraud and Abuse Act, even though there presently exists a circuit split over the meaning of the word "authorization" as used in the statute.

Paul Shechtman

'Patterson' Raises Complex Questions About Hearsay Evidence

By Paul Shechtman |

Paul Shechtman reviews the Court of Appeals' recent decision in 'People v. Patterson' which upheld the admission of cell phone subscriber information as non-hearsay evidence. Did the court get it right?

Alton Abramowitz

Essential Foundations of Preparedness for Procedures in the Divorce Process

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz of Mayerson Abramowitz & Kahn, prompted by the recent release of the January 2017 Report of the Chief Administrative Judge's Matrimonial Practice Advisory & Rules Committee, reflects on the manner in which divorce lawyers process their client's case matters from the moment that the potential client first walks through the office door.

Harvey M. Stone and Richard H. Dolan

Decisions on Life Insurance Provision, Motions to Remand and Jail Sentence

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan of Schlam Stone & Dolan discuss several significant, representative decisions handed down recently, including decisions on: the incontestability provision of a life insurance policy; two motions to remand to state Supreme Court; and reasons for a prison sentence.

Brian Murphy

Maximizing Confidentiality of Settlements of Individual Claims Under the FLSA

By Brian D. Murphy |

Brian D. Murphy of Sheppard, Mullin, Richter & Hampton writes: Employers often prioritize preserving the confidentiality of the terms of a settlement of a pending or threatened litigation. Given that confidentiality is frequently a key incentive to enter into a settlement, with respect to a great many claims, it is respected and permitted by the courts. Where a settlement concerns individual claims under the Fair Labor Standards Act, however, an employer faces steep challenges in securing confidentiality.

David M. Barshay

Decisions Address Physician Fee Justification and Arbitration Awards

By David M. Barshay |

In his No-Fault Insurance Wrap-Up, David M. Barshay analyzes a recent decision in which a physician established a relative value to bill for services but did not provide a supporting report justifying that value, along with recent decisions that involved vacating arbitration awards.

Michael Hoenig

Improper Argument at Trial: Scrutinizing Counsel's Conduct

By Michael Hoenig |

Complex Litigation columnist Michael Hoenig writes that with current levels of docket congestion, a proliferation of multi-party cases and some tendencies towards lengthier trials, the problem of reluctance to grant a mistrial has worsened—which can leave improper and prejudicial arguments unpunished.

Danielle Nicholson, Richard Ziegler

Challenges to Arbitral Awards Based on Arbitrator Bias

By Danielle Nicholson and Richard Ziegler |

Danielle Nicholson and Richard Ziegler write: The efficacy of international arbitration relies on arbitrators, irrespective of the source of their appointment, being—and being perceived as—independent and impartial throughout the proceedings. The assertion of challenges to arbitration awards alleging bias by an arbitrator highlights the need for clarity in the obligation of arbitrators to disclose promptly and continuously their professional and other connections to the parties and their counsel.

Ilene Sherwyn Cooper

Year in Review: Highlights From the Four Appellate Departments

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper of Farrell Fritz discusses several notable appellate division opinions from the past year that tackled a myriad of issues, including undue influence, power of attorney, gift my implication, and gift of investment account.

Fighting Overzealous Agency Enforcement: Employers Have Rights

By Maureen M. Stampp |

Maureen M. Stampp, a partner at Kaufman Dolowich & Voluck, writes: Long-standing court decisions and federal rules of procedure allow companies to recover their attorney fees and costs upon prevailing in a lawsuit against a government agency. She discusses cases in which companies have successfully opposed overzealous agencies.

Thomas A. Moore and Matthew Gaier

In 'Pullman', Court Once Again Addresses MedMal Summary Judgment Standards

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier analyze the Court of Appeals' holding in 'Pullman v. Silverman', which emphatically confirmed the necessity for an expert affidavit to adequately refute the specific allegations in the bills of particulars to be sufficient to establish a moving defendant's entitlement to summary judgment.

Robert J. Anello and Richard F. Albert

SEC's View on Statute of Limitations Faces Another Test

By Robert J. Anello and Richard F. Albert |

White-Collar Crime columnists Robert J. Anello and Richard F. Albert write that given the SEC's increasing reliance on civil disgorgement actions to secure financial recoveries and the expansive breadth of rulings delineating what a defendant can be required to disgorge, the Supreme Court's upcoming decision in 'Kokesh v. SEC' on whether disgorgement is a punitive remedy and covered by the five-year limitations period or an equitable remedy and beyond the statute will have a significant impact on the the agency's enforcement practice and defendants' financial exposure in such cases.

H. Christopher Boehning and Daniel J. Toal

Non-US Subsidiaries' E-Discovery Is Out of Scope, Court Finds

By Daniel J. Toal and H. Christopher Boehning |

In their Federal E-Discovery column, Daniel J. Toal and H. Christopher Boehning write: While there have been a number of court decisions that have interpreted the new language of Rule 26(b)(1), some practitioners—and courts—still continue to cite to the old version of the Rule. A recent decision applied the new version in finding requested e-discovery from a party's non-U.S. subsidiaries to be out of scope, and reminded the bench and bar that the Rule changed on Dec. 1, 2015 and that they should not rely on the old version of the Rule.

Court Confirms Hedge Funds Did Not Act in Bad Faith, Affirms Large Judgment

By Stephen P. Younger, Muhammad U. Faridi and Gabriela Bersuder |

Stephen P. Younger, Muhammad U. Faridi and Gabriela Bersuder discuss a recent First Department decision with potentially broad implications for participants in the credit default swap market.

Neil J. Rosini and Michael I. Rudell

Star Trek Copyright Suit Is Settled but Fan-Filmmakers Get Guidance

By Neil J. Rosini and Michael I. Rudell |

Entertainment Law columnists Neil J. Rosini and Michael I. Rudell analyze a recent decision offering an object lesson in how fan films (as well as fan novels and any other unauthorized fan-created derivative of a popular work) court legal disaster.

Barry Kamins

Community Caretaking: New Doctrine for Court of Appeals

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes: The New York Court of Appeals has recently upheld the towing, impoundment and inventory search of an automobile, holding that these actions were, under the facts of the case, consistent with a "community caretaking function." This is the first time the court has adopted this theory, although it has made oblique references to it in the past. What is the origin of this doctrine and, more importantly, what are its boundaries and scope?

Doron P. Kenter

Second Circuit Rules on TIA §316(b), Overturns 'Marblegate' (and 'Caesars')

By Doron P. Kenter |

Doron P. Kenter writes: On January 17, in the latest chapter in the ongoing debate over §316(b) of the Trust Indenture Act, the Second Circuit reversed the district court's decision in 'Marblegate', concluding that the TIA does not prohibit out-of-court restructurings that deprive non-consenting noteholders of their substantive right to payment on account of their notes.

Brian J. Shoot

Two Labor Law Rulings in Miniature

By Brian J. Shoot |

Construction Accident Litigation columnist Brian J. Shoot considers the Court of Appeals' two most recent rulings in the field, both of which left unanswered questions.

John P. Furfaro and Risa Salins

Anticipated Changes Under President Trump: NLRB, DOL, EEOC

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins discuss two controversial National Labor Relations Board rulings on class arbitration waivers and the joint employer standard that may be revisited once the vacant seats on the board have been filled, the possible fates of the Department of Labor's overhaul of overtime pay regulations and finalization of the persuader rule, and executive orders issued by President Obama that may be scrutinized.

Montgomery L. Effinger

No Time to React: Summary Judgment for the Motorist Faced With Sudden Danger

By Montgomery L. Effinger |

Montgomery L. Effinger writes that vehicle operators whose time to respond to unpredictable behaviors of other drivers or pedestrians is mere seconds or less may obtain summary judgment prior to trial under the common law "emergency doctrine." But even when a time lapse of one to two seconds establishes that the driver played no role in creation of the underlying accident, other factors may be found to raise a question of fact as to the reasonableness of the driver's response, thereby resulting in denial of summary judgment.

Christopher Dunn

Police-Provoked Shootings by the Police: Excessive Force?

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn previews the Supreme Court arguments in an excessive force case where police entered a residence without knocking or identifying themselves and, finding one of the residents pointing what appeared to be a rifle at them, fired 15 shots. In fact, it was a a BB gun that the resident was in the process of moving when officers entered.

Michael J. Hutter

Admissibility of Business Records Containing Out-of-Court Statements

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter writes: Court of Appeals Judge Stein's conclusion, and her analysis in support, that the Sprint subscriber information offered in a burglary and robbery trial to establish phone calls between the defendant and an accomplice was not barred by the hearsay rule is certainly valuable on that difficult issue. The true value of her opinion, however, lies in how she reached that admissibility conclusion in the context of the offered evidence, the cell phone records, which involved two out-of-court statements.

Katherine Bajuk

Regarding Mental and Cognitive Issues, Criminal Justice System Must Catch Up

By Katherine Bajuk |

Katherine Bajuk of the New York County Defender Services writes that while society at large has progressed commendably on the understanding of and approach to mental health issues, one segment, the criminal justice system, has been slow to adapt.

Jonathan A. Dachs

The Applicability (Inapplicability) of New York's Disclaimer Statute

By Jonathan A. Dachs |

Insurance Law columnist Jonathan A. Dachs provides a brief historical background of Insurance Law §3420(d)(2), which says that liability insurers must give notice as early as reasonably possible if they are disclaiming liability or denying coverage, and discusses one of the express limitations on the applicability of the statute—that the policy at issue be one that is "issued or delivered" in New York.

Peter M. Fass

Best Efforts Private Offerings: Advice on Promptly Transmitting Subscriptions

By Peter Fass |

In his Real Estate Securities column, Peter Fass writes that a key issue in broker-dealer compliance in a best efforts offering is the interpretation of 'promptly transmit' or 'promptly forward' subscription proceeds. He discusses SEC and FINRA interpretive advice touching on this issue.

Thomas A. Dickerson

New York State Class Actions: a Very Good Year

By Thomas A. Dickerson |

Thomas A. Dickerson reviews cases involving the premature evaluation of the merits of a proposed "disclosure only" settlement; the approval, preliminarily, of the Metropolitan Museum of Art's "Pay what you wish, but you must pay something" class action; the certification of a tenant's class action alleging improper deregulation of apartments notwithstanding the landlord's receipt of J-51 tax benefits; and the decertification, in part, of a class action brought by credit card terminal lessees alleging unreasonable fees and a failure to reveal the full terms of the lease.

Howard Epstein and Theodore Keyes

Case Law Suggests Counsel Should Advise Clients About Available Insurance

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: Over the years, we have often reminded insureds of the importance of promptly placing their insurance carrier on notice of new claims. Based on recent case law, defense counsel are advised to raise the issue of available insurance with their clients when counsel are retained to defend a new claim.

Jeffrey S. Klein and Nicholas J. Pappas

Recent Developments in Non-Compete Law

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas survey recent legislation aimed at narrowing the scope of interests that will legally support judicial enforcement of restrictive covenants and/or limiting the enforceability of non-compete agreements, examine several specific government investigations into non-compete practices, and outline suggestions for employers to consider when reviewing their use of non-compete agreements.

Stephen Treglia

Whither Breach Notification Laws?

By Stephen Treglia |

In his E-Communications column, Stephen Treglia writes: What sense can businesses that possess their customers' or clients' personal data make of the new administration's unclear stance on cybersecurity regulations? Many entities have either already invested heavily in developing internal policies and security staff to avoid regulatory penalties or civil lawsuits or are planning to do so in the very near future. Should they continue to do so or should they dismantle or halt the process?

Andrew Lavoott Bluestone

The Statute of Limitations in Legal Malpractice

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone writes: Missed statutes of limitation are the subject matter of many legal malpractice cases—and ironically, late malpractice cases themselves come up far more regularly than expected.

Thomas E.L. Dewey

Challenging Settlement Agreements Via 'Retention of Jurisdiction' Provisions

By Thomas E.L. Dewey |

Settlement and Compromise columnist Thomas E.L. Dewey writes that a recent holding in the 'Patton Boggs v. Chevron' case demonstrates that "retention of jurisdiction" provisions in stipulations of dismissal can lead to litigation with non-parties over underlying settlement agreements. At the same time, it signals to would-be intervenors in such cases that they must show not only that they have legally protected interests in the settlement agreements, but also that there are proceedings in the dismissed actions in which they seek to intervene.

Gregory J. Bautista

Managing Your Company's Cybersecurity Risks

By Gregory J. Bautista |

Gregory J. Bautista lays out some steps to implementing a cybersecurity plan that's right for your organization, writing that starting with cost-effective preventative and educational measures such as employee awareness training can be the best investment you can make.

Evan T. Barr

SCOTUS to Decide Joint and Several Liability for Criminal Forfeiture

By Evan T. Barr |

Evan T. Barr writes: Federal courts in the past have generally required convicted co-conspirators must be held jointly and severally liable for all proceeds that were at least "reasonably foreseeable." An influential appellate court recently held, however, that a co-conspirator's forfeiture liability instead should be limited to the amount that he personally obtained from the criminal conduct, setting up a circuit split to be resolved by the high court.

Sharon M. Porcellio

Two Decisions Address FOIL, FOIA Issues and a Motion to Disqualify a Firm

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio explores some of the nuances and interplay of the Freedom of Information Act and Freedom of Information Law in relation to New York's various public authorities, and discusses the court's finding that plaintiff filed a motion to disqualify defendants' counsel for tactical reasons.

Arthur J. Ciampi

Ethical Guidelines for Non-Equity Partner Positions

By Arthur J. Ciampi |

Law Firm Partnership Law columnist Arthur J. Ciampi writes: Despite the prevalence of non-equity partner positions and the substantial benefit they bring to the profession and to the careers of many lawyers, some uncertainty remains as to what the title means and how to ensure that firms and their non-equity partners are operating within the ethical norms.

Charlotte A. Biblow

New Draft Guidance Issued on Marine District Permits

By Charlotte A. Biblow |

State Environmental Regulation columnist Charlotte A. Biblow reviews draft guidance released by the New York State Department of Environmental Conservation in December on the issuance of permits for "living shorelines techniques," which encourage the use of green or natural infrastructure rather than engineered erosion protections such as bulkheads and seawalls.

Lawrence W. Newman and David Zaslowsky

CPLR 7502(c): An Underused Weapon

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky write that Section 7502(c) of the CPLR authorizes provisional remedies in aid of arbitration. It can be used in aid of arbitrations that take place both in and outside of New York, thus making the statute broader than its sister statute governing attachments in aid of litigation. Perhaps the most interesting question about the statute is how come it is not used more?

Anita Bernstein

Vicarious Liability for Judiciary Law §487 Violations

By Anita Bernstein and Lauren Boulbol |

Anita Bernstein and Lauren Boulbol of Brooklyn Law School writes: Violating New York Judiciary Law §487 can be memorably costly for an errant attorney, but successful plaintiffs may have to worry about collecting on §487 judgments they receive. Lawyers' assets are not always in ready reach of prevailing parties. How can plaintiffs collect their judgments when defendants' assets and malpractice insurance are both limited?

Robert C. Scheinfeld

The Supreme Court's Impact on Patentable Subject Matter

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Twenty patents. That's how many were invalidated in only three decisions in the last few weeks alone. Patent practitioners cannot be blind to the enormous impact the U.S. Supreme Court's decision in 'Alice Corp.' has had on narrowing the scope of available patentable subject matter, rendering quite uncertain whether patents directed to computerized business methods or ways of conducting transactions over the Internet, by way of example only, will ever survive scrutiny.

Martin Flumenbaum and Brad S. Karp

Contracting in the Digital Age: The Second Circuit and Arbitration Clause Enforceability

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: Over the past year and a half, the circuit, along with the Southern District, have issued three important decisions interpreting arbitration clause enforceability in both the consumer and employment contexts. At first glance, these decisions all seem to turn on practical considerations, tracking factors like the prominence of the arbitration clause. But arbitration enforceability is not merely an empirical inquiry. In fact, the recent opinions analyze these practical factors to underscore a more fundamental judicial concern: preserving the integrity of contractual bargaining.

Julian D. Ehrlich

An Opening in Labor Law §240

By Julian D. Ehrlich |

Julian D. Ehrlich writes: Recently, a long-simmering rift has widened within the Appellate Divisions regarding the application of the Scaffold Law to the common worksite accident scenario where a portion, but not all, of a worker's body falls through an opening.

Robert S. Kelner and Gail S. Kelner

Applications for Leave to Serve a Late Notice of Claim Under 'Newcomb'

By Robert S. Kelner and Gail S. Kelner |

Trial Practice columnists Robert S. Kelner and Gail S. Kelner analyze the Court of Appeals' recent decision in 'Newcomb v. Middle Country Central School' and the profound impact it will have on a motion court's discretion to extend the time to serve a notice of claim on a public corporation.

Francis J. Serbaroli

Revising the 2013 Reforms to the Not-For-Profit Corporation Law

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli of Greenberg Traurig summarizes recently enacted revisions to the Nonprofit Revitalization Act of 2013. He notes that most not-for-profit organizations not only will have to revise their corporate documents, policies and procedures to comply with this new law's requirements, but also will have to educate their governing boards, management and employees.

Carlos J. Cuevas

Intentional Fraudulent Conveyance and the Badges of Fraud: 'Messer v. Chu'

By Carlos J. Cuevas |

Carlos J. Cuevas reviews a recent Eastern District case where a trustee commenced an adversary proceeding to avoid two transfers by a debtor to his significant other at a time when the defendant was being sued in a civil action in Texas. Judge Nancy Hershey Lord wrote a thoughtful opinion concerning the application of the badges of fraud to establish fraudulent intent.

Blank, Bonaccorsi

Amended DFS Regulations Answer Some but Not All Questions

By Timothy C. Blank and Hilary Bonaccorsi |

Timothy C. Blank and Hilary Bonaccorsi of Dechert write: The amended cybersecurity regulations issued by the New York State Department of Financial Services resolve certain issues, but key questions remain. This article explains why the changes in the amended regulations are important to "Covered Entities," and identifies important questions that still need to be resolved.