Expert Columns

Expert Analysis

Warren H. Richmond

Amendment to Teacher Evaluation Regulations Creates Further Confusion

By Warren H. Richmond |

Warren H. Richmond, a partner of Harris Beach, writes: On June 24, 2014, the Board of Regents adopted an amendment to §30-2.1(d) of its rules to provide guidance to New York school districts regarding the termination of probationary teachers. Unfortunately, both the amendment and the circumstances leading to its adoption have succeeded only in creating further confusion in an area that had already been extremely murky.

Michael I. Rudell and Neil J. Rosini

Aereo Decision's Narrow Breadth Leaves Questions Unanswered

By By Michael I. Rudell and Neil J. Rosini |

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini of Franklin, Weinrib, Rudell & Vassallo, discuss the recent ruling of the U.S. Supreme Court that the Aereo service, which allowed its subscribers access via the Internet to local broadcasts of television programs on their home and mobile devices, violates copyright law. The authors further examine what questions were left unanswered for other automated systems.

Nicholas M. De Feis and Philip C. Patterson

End Run: Using Search Warrants to Obtain Foreign Records

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

In their International Criminal Law and Enforcement column, Nicholas M. DeFeis and Philip C. Patterson of De Feis O'Connell & Rose, write about the authority of the Justice Department to compel a domestic corporation to produce emails stored on an overseas server.

David Hammer and Richard Maltz

Escrow Accounts After 'Galasso': You Are Your Brother's Keeper

By David S. Hammer and Richard M. Maltz |

David S. Hammer, a former assistant U.S. Attorney, and Richard M. Maltz, counsel to Frankfurt, Kurnit, Klein & Selz, explain that a lawyer who steals escrow funds commits a crime, ethical violation and a tort. If the lawyer is a partner in the firm, the firm itself may be liable for damages and disciplinary sanctions. The authors then explore the question: What of partners in the firm who were not complicit in the theft but made it possible by failing to supervise the firm's escrow accounts?

Samuel Estreicher and Holly H. Weiss

Anti-Arbitration Provisions and Dodd-Frank Act

By Samuel Estreicher and Holly H. Weiss |

In their Arbitration column, Samuel Estreicher, the Dwight D. Opperman Professor of Law at New York University School of Law and of counsel to Schulte Roth & Zabel, and Holly H. Weiss, a partner at Schulte Roth discuss arbitration developments in light of Dodd-Frank's anti arbitration provisions.

Steven V. Treglia

Decisions Limit Government's Access to Stored Digital Data

By Stephen Treglia |

In his E-Communications column, Stephen Treglia, legal counsel at Absolute Software Corporation, writes: In its latest decision, 'Riley v. California', the Supreme Court ruled that law enforcement may not utilize the warrant exception of search incident to a lawful arrest to justify a warrantless search of the contents of a cell phone. What makes Riley particularly interesting is that its holding flies in the face of lengthy historical precedent merely because the item being seized from the arrested individual is a miniature computer.

Alton L. Abramowitz

It's 'My' House…or Is It? Equitable Distribution of Marital Residences

By Alton L. Abramowitz |

In his Divorce Law column, Alton L. Abramowitz a senior partner at Mayerson Abramowitz & Kahn, writes: The battle over how to distribute the "profits" due to appreciation, as well as the underlying initial investment at the time of purchase of a marital residence, can become one of the most difficult and important financial issues confronting the attorneys for a divorcing couple, oftentimes bringing to the forefront anger that has built up for many years over real and imagined slights, all revolving around the questions of: "Whose house is it?" or "What contributions did my spouse make?"

Glen Banks

Court of Appeals Addresses Clauses, Negotiations, Damages

By Glen Banks |

In his Contract Law column, Glen Banks discusses recent decisions on contract law issues from the Court of Appeals, including Quadrant Structured Products Company v. Vertin, and IDT Corp. v. Tyco Group, and also offers an additional thought about Biotronik v. Conor Medsystems Ireland, which was a subject of his prior columns.

Menachem J. Kastner and Ally Hack

'Colorable Indicia of Fraud': Not So 'Grimm' Anymore

By Menachem J. Kastner and Ally Hack |

Menachem J. Kastner and Ally Hack of Cozen O'Connor discuss 'Boyd v. DHCR' and other relevant case law, and address the question: Has the four-year rule been all but totally eviscerated, or is 'Boyd' the beginning of the four-year rule's revitalization?

Abby Tolchinsky and Ellie Wertheim

Balancing Reason and Emotion to Resolve Conflict in Mediation

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim, partners at Family Mediation, write: The extent to which emotion—be it fear of mistake on the global stage or mistrust rooted in family betrayals—is engaged and taken into account is an essential task of the mediator. Failure to do so limits the mediator's connection to the parties and impedes the possibility for resolution.

Rory Lancman and Daniel Pearlstein.

Clamping Down on Chokeholds

By Rory I. Lancman and Daniel Pearlstein |

Rory I. Lancman and Daniel Pearlstein of the New York City Council write: The Eric Garner tragedy represents not merely the New York Police Department's operational failure to stamp out the use of chokeholds during arrests 21 years after the NYPD patrol guide banned the technique, but our legal system's failure to effectively deter chokeholds even after such high-profile tragedies as the Anthony Baez case in 1994 exposed the legal gaps that allow such conduct to go unprosecuted in state courts. The authors then examine the existing legal road map that investigators and prosecutors must navigate in determining whether criminal liability might attach to the conduct of the officers involved.

Arthur Ciampi

Time Runs Out, in Hourly Matters, for 'Unfinished Business'

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi, the coauthor of the treatise 'Law Firm Partnership Agreements' and the managing member of Ciampi LLC, analyzes the Court of Appeals decision in 'Geron v. Seyfarth Shaw' ('In re Thelen') and discusses some of the decision's immediate and long-term implications.

Sharon M. Porcellio

Discrimination Claim Against School; Restrictive Covenant at Work

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio, a partner at Bond, Schoeneck & King, discusses a decision issued in January involving the denial of a motion to dismiss a student's race discrimination claim under 42 U.S.C. §1981; a decision denying a request for injunctive relief seeking to enforce a restrictive covenant; and a decision denying an employer's motion for summary judgment in a sexual harassment claim.

Sean J. Doolan and Jeffrey M. Adams.

Understanding Protections for Assisted Living Residents

By Sean J. Doolan and Jeffrey M. Adams |

Sean J. Doolan, a member of Doolan Platt & Setareh, and Jeffrey M. Adams, a member of Adams Law Firm, write about statutory protections for residents at assisted living residences and what practitioners need to know when litigating claims on behalf of residents.

Lawrence W. Newman and David Zaslowsky

Revisiting Hot Issues in International Dispute Resolution

By And David Zaslowsky By Lawrence W. Newman of Baker & McKenzie |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky discuss issues of international dispute resolution in the context of recent decisions relating to the Alien Tort Statute, the Foreign Sovereign Immunities Act,enforcement of arbitral awards vacated abroad and manifest disregard of the law.

Charlotte A. Biblow

Laws, Regulations and Incentives Power Solar Energy's Growth

By Charlotte A. Biblow |

In her State Environmental Regulation, Charlotte A. Biblow, a partner in the environmental, land use and municipal law and litigation departments of Farrell Fritz, discusses some of the more significant steps that New York state has been taking recently to promote the use of solar energy.

U.S. District Judge J. Paul Oetken during his nomination hearing in 2011.

Judge Upholds Class Action Against ITT Educational Services

By Jan Wolfe |

ITT Educational Services Inc.'s courtroom woes expanded when a judge refused to dismiss most of a shareholder class action alleging that the for-profit education company duped investors about its troubles coping with rising student loan default rates.

Robert C. Scheinfeld

The Supreme Court's Push for Clarity in Patent Cases

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes: Arguably, the Federal Circuit, the sole court of appeals for patent cases, has become less predictable and more divisive, and the Supreme Court's six unanimous patent decisions this term signal that the court's role has evolved to "prime resolver and clarifier" in the patent space, resolving ambiguities and providing clearer legal standards for lower courts, patent applicants, and litigants.

Ronald E. Richman

ERISA Presumption of Prudence in 'Stock Drop' Cases Rejected

By Ronald E. Richman |

Ronald E. Richman writes: What the Supreme Court in 'Dudenhoeffer' gives to plaintiffs in "stock drop" litigation with one hand—rejecting the special presumption of prudence favoring ESOP fiduciaries—it appears to take away with the other, by offering a road map of suggestions that, if honored by the lower courts, will make it difficult to maintain such litigation in the future.

Martin Flumenbaum and Brad S. Karp

Court Reverses Jury Verdict for SEC in Market Timing Case

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'SEC v. O'Meally', in which the court overturned a jury verdict in favor of the SEC against a mutual fund broker for using an allegedly deceptive market timing strategy.

Robert S. Kelner and Gail S. Kelner

Preservation and Spoliation of Audio and Video Recordings

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss the importance of early service by counsel of a notice on a property owner to preserve any security recordings of a fall or other accident, and the need for the demand to be broad enough to preserve all potentially relevant recordings.

Francis J. Serbaroli

A Primer on New York's Medical Marijuana Law

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli summarizes New York's new law permitting the use of medical marijuana. He notes that while this complex, carefully drafted law addresses most of the medical, social, economic and law enforcement aspects of the medical marijuana issue in New York, the roll-out of the new law may be complicated by existing federal laws that criminalize the manufacture, sale and use of marijuana.

Andrew Lavoott Bluestone

Is Legal Malpractice Still a Tort?

By Andrew Lavoott Bluestone |

Andrew Lavoott Bluestone writes that legal malpractice is commonly said to be both a tort as well as breach of a retainer agreement contract. Whether it is a "tort" or a "contract" generally is decided by the nature of the damages sought. However, a closer look at whether legal malpractice is really a tort anymore raises questions.

Ken Strutin

DNA and the Double Helix of Constitutional Rights

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: As DNA analysis progresses from surveillance to John Doe indictments to standalone evidence, the heart of a case will come to be litigated in a database before it ever reaches a courtroom. Therefore, the sampling, profiling and testing continuum must become the constitutional focal point.

Jeff S. Korek

Obtaining Cell Phone Records in Civil Litigation

By Jeff S. Korek |

Jeff S. Korek writes that with studies showing as much as 23 percent of all car accidents involved distracted drivers using their cell phones, it would seem logical that civil litigants involved in motor vehicle accident cases should be able to obtain the cell phone records of an opposing driver in order to help prove fault. Yet, surprisingly, it is very difficult to obtain such records.

Sidney Kess

Roundup of Tax Developments Impacting Small Businesses

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the federal tax credit for small businesses that pay at least half of health insurance premiums for employees, deferred compensation plans, recently released final regulations clarifying the treatment of 'disregarded entities' for certain tax purposes, and legislation on expensing the purchase of equipment.

Patrick M. Connors

Impact of U.S. Supreme Court Decisions on Practice

In his New York Practice column, Patrick M. Connors writes: The New York Court of Appeals' prior interpretation of CPLR 302(a)(3)(ii), the most unwieldy provision in the longarm statute and the source of abundant case law, appears to be on a collision course with the Supreme Court's recent decision in 'Walden.'

E. Leo Milonas and Frederick A. Brodie

Waiver of Right to Counsel; Defamation; Identity Theft

By E. Leo Milonas and Frederick A. Brodie |

In their Appellate Division Review, E. Leo Milonas and Frederick A. Brodie discuss recent decisions involving whether a prisoner's cell phone could be considered "dangerous contraband," what happens when a deliberating jury asks questions but reaches a verdict before receiving answers, defamation by implication, and more.

Norman H. Dachs and Jonathan A. Dachs

Individual Coverage Under Policies for Entities

By Norman H. Dachs and Jonathan A. Dachs |

In their Insurance Law column, Norman H. Dachs and Jonathan A. Dachs discuss longstanding issues and debates regarding the rights of individuals associated with a corporation to make claim under an insurance policy issued in the name of the corporation, as well as more recent questions about whether the same or similar rules apply when the named insured entity is not a corporation, but, rather a partnership, an LLC, or even a trade name ("d/b/a").

Stephen Bergstein

Supreme Court Rules on Rights of Public Whistleblowers

By Stephen Bergstein |

Stephen Bergstein writes: In ruling that the First Amendment prohibits the retaliatory termination of public employees who testify truthfully about public corruption, the Supreme Court recently clarified the principles governing the rights of whistleblowers in a unanimous ruling that may also undermine settled Second Circuit authority.

Alan R. Friedman, Brendan M. Schulman and Samantha V. Ettari

Conviction Overturned Based on Government Retention of ESI

By Alan R. Friedman, Brendan M. Schulman and Samantha V. Ettari |

Alan R. Friedman, Brendan M. Schulman and Samantha V. Ettari discuss a recent Second Circuit decision overturning a criminal tax evasion conviction because the government had retained electronically stored information for too long after the execution of a search warrant and then improperly searched and used that ESI in a case unrelated to the warrant from which it was procured.

Thomas E. L. Dewey

Unexecuted Settlement Agreements—Enforceable or Not?

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey writes: New York courts often enforce unsigned settlement agreements when a party merely swears in open court that it agrees to settle the dispute. But there are other, less common situations in which a party may be bound by an unexecuted settlement, examples of which have arisen recently in New York federal court.

Michael D. Patrick

The H-1B Rush Is Over: No Easy Next Steps

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick addresses what petitioning employers who were fortunate enough to make it through USCIS's cap selection lottery can expect as their H-1B cases are adjudicated, along with possible options for U.S. employers whose H-1B petitions were not selected.

Nativ Winiarsky

Attorney Fees and Real Estate: Discretion Has its Limits

By Nativ Winiarsky |

Nativ Winiarsky writes that however important '433 Sutton Corp. v. Broder' is to the landlord-tenant community as one of the relatively few such cases addressed per year by the Court of Appeals, it unfortunately provides little in the way of guidance in terms of the circumstances in which a court may use its discretion to deny attorney fees in the face of a valid lease clause allowing for same.

Hal R. Lieberman

Is New York's Disciplinary System Truly Broken?

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman discusses a troubling recently published law review article, and addresses the article's conclusions that the system is plagued with unreasonable delays, unjustifiable disparities and irrational punishments.

Roy L. Reardon and William T. Russell Jr.

Sugary Drinks, Hydrofracking, 'Unfinished Business'

By Roy L. Reardon and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss a decision that struck down New York City's limits on the sale of soda and other sugary drinks in large containers, upheld the use of local zoning laws to effectively ban "hydrofracking" and ruled that a dissolved law firm is not entitled to post-dissolution profits earned on work performed on a non-contingency fee basis.

Howard Epstein and Theodore Keyes

Related Claims Are in the Eye of the Beholder

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: Under the terms of typical professional liability and directors' and officers' insurance policies, multiple claims that arise out of interrelated wrongful acts are treated as a single claim deemed to have been first made at the time the first of the related claims was made against the insured. Whether the treatment of multiple related claims as a single claim benefits the insured or the insurer depends on the circumstances.

Ilann Margalit Maazel

Wrongful Convictions and Prosecutorial Immunity

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel writes: Wrongful convictions are in the news these days. We know about the Central Park Five, the Bronx Six and the allegedly corrupt Brooklyn detective whose cases are now under review by the Brooklyn D.A. But what happens after the exoneration? Federal civil rights cases arising out of wrongful convictions can be tricky. Cases against prosecutors are a legal minefield. Why? The doctrine of prosecutorial immunity.

Stephen M. Kramarsky

A Closer Look at 'Aereo': The Court's Technology Philosophy

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, writes about the U.S. Supreme Court's decision in 'Aereo', which relies on a broad interpretation of the Copyright Act and an interpretive philosophy that may present practical challenges to technology lawyers and their clients.

Myron Rumeld and Russell Hirschhorn

Supreme Court Resets the Standard in ERISA Stock-Drop Suits

By Myron Rumeld and Russell Hirschhorn |

Myron Rumeld and Russell Hirschhorn discuss 'Fifth Third Bancorp v. Dudenhoeffer,' in which the Supreme Court breathed new life into what was previously seen as a dying breed of litigation. But while eliminating the presumption of prudence, the court imposed substantial new obstacles to recovery on stock-drop claims.

Helen Pfister and Michelle Gabriel McGovern

Data Security in Health Care: HIPAA Enforcement Trends

By Helen Pfister and Michelle Gabriel McGovern |

Helen Pfister and Michelle Gabriel McGovern write that a recent $4.8 million settlement with New York Presbyterian Hospital and Columbia University is only the most recent in a series of enforcement actions taken against health care organizations that have failed to protect patient health care data on computer systems, electronic networks or other portable media.

C. Raymond Radigan and Jennifer F. Hillman

Interplay of Health Care Proxy and Living Will

By C. Raymond Radigan and Jennifer F. Hillman |

In their Trusts and Estates Law column, C. Raymond Radigan and Jennifer F. Hillman write: More than a century ago, the U.S. Supreme Court held that an individual's right to privacy includes the right to make medical decisions affecting their bodies, but that right becomes complicated when the patient is comatose. What if the agent under a health care proxy refuses to comply with the principal's stated wishes in a living will? What if there is no health care proxy or living will?

Michael Hoenig

Attorney Profanities, Surreptitious Recordings

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: Assume heated, contentious litigation ensues between opposing counsel. During a squabble over discovery, Attorney A, in an e-mail, calls her adversary a rather common, vulgar profanity that describes a portion of the anatomy. She also uses the crude words "sh--" and "fu--" in an admonition to him not to build a record for filing some unmeritorious motion, and that she has "everything taped" so that the recordings will be used to blunt such a tactic. Does such conduct justify court intervention?

Barry J. Peek and Hanan B. Kolko

Marijuana Advertising and the First Amendment

By Barry J. Peek and Hanan B. Kolko |

Barry J. Peek and Hanan B. Kolko of Meyer, Suozzi, English & Klein, offer a key to unlocking the advertising dilemma faced by cannabis-related businesses.

Sue C. Jacobs

A Poorly Drafted Agreement Without a Termination Letter

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs discusses a legal malpractice action alleging that Cadwalader failed to properly draft an agreement and side letter and as a result, its client had to pay its investment advisor $10 million instead of $2 million in a dispute over fees earned in an acquisition.

Harvey M. Stone and Richard H. Dolan

Summary Judgment in Hostile Work Environment Case

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan discuss recent decisions involving parents' religious beliefs and mandatory vaccinations for their school-aged children, a summary judgment motion based on a prisoner's non-exhaustion of administrative remedies for his section 1983 claims, a motion to seal

Michael B. Gerrard

Survey of 2013 Cases Under State Quality Review Act

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard writes that 2013 was a miserable year for those bringing SEQRA cases. The courts issued 38 decisions, the third-lowest number since 1990, and in only one case that reached a final decision did plaintiffs prevail. Notably, ten of the decisions were dismissed because the plaintiffs were found to lack standing to sue.

Todd S. Aagaard and Joel B. Eisen

Tackling Climate Change: Don't Forget Energy Efficiency

By Todd S. Aagaard and Joel B. Eisen |

Todd S. Aagaard and Joel B. Eisen write that one option available for states under the EPA's high-profile Clean Power Plan is relying on greater efficiency in energy usage and other demand-side strategies such as "demand response," which involves programs to reduce consumption at specific times of high electricity demand. However, a federal court recently cast a cloud over demand response's future.

Lewis R. Clayton

Rights of Patent Holders, Dolly the Sheep, Redskins, Aereo

By Lewis R. Clayton |

In his Intellectual Property Litigation column, Lewis R. Clayton reviews recent U.S. Supreme Court opinions, three of which were unanimous decisions that limit the rights or remedies of patent holders; the most-talked-about action the Trademark Trial and Appeal Board has likely ever taken; and more.

Kathleen A. Scott

Counterparty Credit Limits—U.S. Regulations, Basel Standards

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott discusses material elements of the Federal Reserve Board's proposed rules regarding how much a bank can lend to another person and the Basel Committee standards regarding the same issue.

Robert C. Gottlieb and Derrell M. Janey

Broker-Dealer Compliance in Era of Regulatory Pressures

By Robert C. Gottlieb and Derrelle M. Janey |

Robert C. Gottlieb and Derrelle M. Janey discuss key points from the Brown Brothers Harriman case, where the private bank was fined a record $8 million for anti-money laundering compliance failures: compliance programs must be intensely active, living organisms that constantly "monitor," continuously "investigate," "ensure" that issues are reported and, once reported, have an adequate protocol for "updating" on the activity at issue.

Shepard Goldfein and James A. Keyte

'Lotes' and the Ever Expanding Reach of U.S. Antitrust Laws

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte write that the Foreign Trade Antitrust Improvements Act, which governs the reach of the Sherman Act to foreign conduct, has become a central focus of antitrust law in recent years. Unfortunately for parties involved in litigation, particularly defendants, the increasing importance of the FTAIA has coincided with significant turmoil relating to judicial interpretation of the law.

Lewis A. Silverman

Criminal Statute Invalidation Complicates Family Offenses

By Lewis A. Silverman |

Lewis A. Silverman writes: Recent appellate decisions expose the fact that the definition of a family offense in New York is not based on specific acts or conduct, but rather on references to various sections of the Penal Law, which leads to a process that can be confusing not only for attorneys, but especially for the multitude of pro se litigants who seek civil relief without the benefit of counsel.

Alexis S. Axelrad

Myths of Immigration Law and Challenges of the Practice

By Alexis S. Axelrad |

In her Immigration Law column, Alexis S. Axelrad writes: Those immersed in the practice of U.S. immigration law have a front row seat to the dysfunction of the framework of the country's current immigration laws and their daily effect on businesses and individuals. It is the immigration lawyer's daily struggle to find ways to help clients navigate through the inconsistent application and enforcement of U.S. immigration law and policy.

Richard Raysman and Peter Brown

Recent Disputes Focus on Software Licenses

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman, a partner at Holland & Knight, and Peter Brown, the principal at Peter Brown & Associates, discuss some of those recent software license disputes, including: whether copying the licensor's software by a third party that provides "support services" infringes on the licensor's copyrights; if a criminal racketeering statute designed to prevent a pattern of continuing malfeasance can be used against a purportedly violating software licensee; and if a licensee affiliated with Alaska Indian tribes can assert sovereign immunity when it breaches the license.

Milton Springut

'Bait and Switch' Advertising and the Lanham Act

By Milton Springut |

Milton Springut writes: A recent Eastern District decision held that use of a trademark in "bait and switch" advertising does not constitute trademark infringement (although it might constitute false advertising). In dismissing the plaintiff's infringement complaint, the decision appears to have unduly narrowed the scope of Lanham Act actionable "confusion."

Evan H. Krinick

Arbitration or Litigation of No-Fault Disputes

By Evan H. Krinick |

In his Insurance Fraud column, Evan H. Krinick writes that one of the most effective tools for insurers fighting no-fault insurance fraud is the filing of lawsuits in federal court against health care providers who have received payment for services they contend they have provided to injured policyholders. Recently, defendants in these actions have responded by seeking to compel arbitration, a tactic the Second Circuit has now weighed in on.

Anthony E. Davis

Developments—Legal Fees and Farewell to 'Unfinished Business'

By Anthony E. Davis |

In his Professional Responsiblity column, Anthony E. Davis discusses two recent developments that highlight the critical need for lawyers and law firms to take care in the drafting of their engagement letters, and two just decided cases that deal an apparent death blow to the "unfinished business" doctrine in New York as well as in its birthplace, California.

Timothy M. Tippins

Custody Evaluations: the Quest for Quality

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins discusses two recent decisions that, in juxtaposition, underscore the critical need for mandatory practice standards to govern forensic evaluations in custody proceedings to ensure that these evaluations produce reliable information.

John Rapisardi and Joseph Zujkowski

Bankruptcy Basics Under Brazilian Law

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski write: In light of statistics pointing to an increase in the Brazilian corporate default rate over the next 12 to 18 months, and several pending high-profile Brazilian bankruptcy proceedings commenced in 2013 and 2014, we thought it would be helpful to provide an overview of the Brazilian bankruptcy system and highlight the key differences between the Brazilian system and the U.S. Bankruptcy Code.

Thomas R. Newman and Steven J. Ahmuty Jr.

Preservation of Issues for Appellate Review

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. discuss the Court of Appeals' decision in 'People v. Finch,' which represents an intriguing example of the schism between the judges who believe that the court's stringent preservation jurisprudence must ultimately serve the ends of justice and those who believe that strict adherence to the preservation requirement accomplishes that very purpose, especially with the Appellate Division's interest of justice jurisdiction as a fail-safe.

 scales of justice in an empty courtroom

Right Rule, Wrong Result: The Trouble With 'K2-II'

By Matthew Siegel |

Matthew Siegel writes: In unwittingly allowing American Guarantee to rely on policy exclusions requiring proof of its attorney-insured's possible financial duplicity in "serving two masters," the Court of Appeals in 'K2-II,' oblivious to its own precedent, has impermissibly given American the imprimatur to relitigate the covered factual and legal bases for the negligence determination underlying K2's legal malpractice judgment against its insured, embroiling American in a conflict of interest.

Richard Siegler and Eva Talel

Business Judgment Rule: 24 Years Old and Still Intact

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Richard Siegler and Eva Talel write that although there have been a number of decisions in the last several years refusing to summarily protect condo or co-op boards under the business judgment rule, the courts' reasoning has remained the same since the rule's inception. When boards act in good faith, within their authority, and in furtherance of a legitimate corporate purpose, their actions will not be questioned by a reviewing court.

Robert Pigott

The Death of Charitable Corporate Purposes

By Robert Pigott |

Robert Pigott writes that one significant substantive provision of the much-discussed Non-Profit Revitalization Action of 2013 and its follow-up has received absolutely no public debate: a provision that will enable charitable not-for-profit corporations to state in their certificates of incorporation merely that they have general charitable purposes, rather than identifying with some specificity what those charitable purposes are.

Elkan Abramowitz and Jonathan Sack

False Statement Prosecutions: Major Change?

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack write: The DOJ has recently taken a position on one element of a Section 1001 charge—the "willfulness" requirement—which has drawn renewed attention to the broad reach of the law. Only this time, the DOJ has surprised observers by announcing a position that, at first blush, makes it tougher for the government to prosecute.

Mark A. Berman

Recent Decisions Provide Practical Guidance

By Mark A. Berman |

In his State E-discovery column, Mark A. Berman, a partner at Ganfer & Shore, writes: New York courts recently have issued a series of e-discovery decisions that provide real guidance to practitioners. 'Kennedy Assoc. v. JP Morgan Chase Bank N.A.,' 'Mancino v. Fingar Ins. Agency,' 'Pegasus Aviation I v. Varig Logistica S.A.,' and 'Roberts v. Corwin' are among the cases analyzed.

Norman B. Arnoff

Unauthorized Practice and Professional Liability Risks

By Norman B. Arnoff |

In his Professional Liability column, Norman B. Arnoff writes: The unauthorized practice of law and the professional misconduct that comes with it result inevitably in serious regulatory sanctions and civil liability exposure to legal malpractice claims and a judgment to return fees or not collect them in a fee action.

Alexander Levine

Beavers as Neighbors Can Be the Cost of Your Home

By Alexander Levine |

Alexander Levine, an administrative law judge with the Workers' Compensation Board, writes: Flood damage to a neighbor's property caused by acts of human neighbors is actionable, but if the flooding is caused by acts of animals inhabiting the neighbor's property, then no liability shall be imposed.

Joseph E. Bachelder III

Compensating for Long-Term Value Creation in U.S. Public Corporations

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder, III of McCarter & English takes a look at the correlation between the long-term incentive compensation of these three categories of performers and long-term value creation in U.S. public corporations that is attributable to them.

Martin A. Schwartz

Prosecutor's Fabrication of Evidence Held Actionable Under §1983

By Martin A. Schwartz |

In his Section 1983 Litigation column, Touro Law Center professor Martin A. Schwartz discusses the case "Fields v. Wharrie," where the U.S. Court of Appeals for the Seventh Circuit recently held that a prosecutor may be held liable under Section 1983 for fabricating evidence which the prosecutor used against a wrongfully convicted criminal defendant.

Lawrence B. Friedman and Shiwon Choe..

Discovery of Bank Branches After 'Daimler v. Bauman'

By Lawrence B. Friedman and Shiwon Choe |

Larry Friedman and Shiwon Choe of Cleary Gottlieb Steen & Hamilton write: The Supreme Court's recent decision in 'Daimler AG v. Bauman', which clarified and significantly narrowed U.S. courts' ability to assert general personal jurisdiction over foreign corporations, may significantly cabin the "branch-based" discovery trend in the United States where litigants have been increasingly allowed to conduct non-party discovery of non-U.S. banks based on the banks' operation of branches within the United States, reasoning that maintaining a branch here is sufficient to subject a foreign bank to general personal jurisdiction.

Steven Pounian and Justin T. Green.

Disappearance of Malaysia Airlines Flight 370

By Steven R. Pounian and Justin T. Green |

In their Aviation Law column, Steven R. Pounian and Justin T. Green, partners at Kreindler & Kreindler, write about the disappearance of Malaysia Airlines flight 370. Unlike the many open questions surrounding the disaster, the law provides relatively simple and direct answers regarding liability.

Christine A. Fazio and Ethan I. Strell

New York Attains Fine Particulate Standard

By Christine A. Fazio and Ethan I. Strell |

In their Domestic Environmental Law Column, Christine A. Fazio of Carter Ledyard & Milburn and Ethan I. Strell, an associate director and Fellow at the Columbia Center for Climate Change Law, write: Fourteen years after the U.S. Environmental Protection Agency adopted the first health-based standards for fine particulates, which are seen as having more harmful health effects, the EPA has now responded favorably to New York State's 2013 request for redesignation of the metropolitan area from non-attainment to attainment.

Wendi S. Lazar

Fathers Have Protected Rights to Care for Their Children

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar of Outten & Golden, discusses Family Responsibility Discrimination and writes that New York employers are learning quickly that such discrimination is illegal, and men who experience it, like women, can bring claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, and under state and city laws.

Mary Barra.

Plaintiff Lawyers Push for Details on GM's Victim Fund

By Amanda Bronstad |

Lawyers who represent victims of General Motors Co.'s ignition switch defects are raising concerns about a planned compensation fund, pushing for punitive damages and questioning who would be eligible.

David J. Onorato & David Y. Livshiz.

Decision Raises Bar to Clawback Claims in Broker-Dealer Liquidations

By David J. Onorato and David Y. Livshiz |

David J. Onorato and David Y. Livhsiz of Freshfields Bruckhaus Deringer write about the April 27, 2014 opinion in 'In re Madoff Securities', which held that in a SIPA proceeding, the transferees' good faith is measured by a subjective willful blindness standard and that the trustee must allege facts to plausibly support the inference that the defendant took the challenged transfers with a lack of good faith.

Andrew B. Roth andKimberly J. Gold

Corporate Practice of Medicine: An Old Doctrine Breathing New Life

By Andrew B. Roth and Kimberly J. Gold |

Andrew B. Roth and Kimberly J. Gold of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo write: The corporate practice of medicine doctrine, which bars a business corporation from practicing medicine or employing a physician to provide professional medical services, is alive and well in New York. Practitioners advising corporations and other unlicensed entities in structuring transactions with physicians need to be aware of its ramifications in order to ensure compliance with its rules.

Martin Flumenbaum and Brad S. Karp

Second Circuit Limits Judicial Review of Regulatory Consent Judgments

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp of Paul, Weiss, Rifkind, Wharton & Garrison discuss 'SEC v. Citigroup', in which a Second Circuit panel reversed a district court rejection of the proposed consent judgment between the SEC and Citigroup. The authors write: The Second Circuit's decision brings much-needed clarity to the law, and confirms that regulatory consent judgments in which the defendant neither admits nor denies the allegations are an appropriate tool of enforcement agencies.

David J. Kaufmann

Opportunity and Risks: Counseling a New Franchisor

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann, a senior partner of Kaufmann Gildin & Robbins, addresses fundamental questions frequently posed by clients thinking of franchising their businesses, questions not related to law but to business: Should I franchise my business? What are the considerations for doing so? What legal and other documents will I need?

Barry J. Pollack and Addy R. Schmitt

Judicial Oversight of Governmental Consent Decrees in Wake of 'Citigroup'

By Barry J. Pollack and Addy R. Schmitt |

Barry J. Pollack and Addy R. Schmitt of Miller Chevalier Chartered, discuss the recent case 'SEC v. Citigroup', where the U.S. Court of Appeals for the Second Circuit reversed an order refusing to approve a proposed consent decree that would have settled a regulatory enforcement action the SEC had brought against Citigroup. They write: "Whether or not the Second Circuit's decision makes sense in the context of the facts and the parties before it, the highly deferential standard of district court review of such consent decrees articulated by the Second Circuit may prove to be overly restrictive when applied in other settings."

Peter A. Crusco

Cell Tower Dumps and the Fourth Amendment

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco, executive assistant district attorney, investigations division, Office of the Queens County District Attorney, addresses another communications technology enhanced tool—the "cell tower dump"—and its Fourth Amendment implications, which the U.S. Supreme Court has yet to resolve.

Michael Rikon

Is Right of Entry in Eminent Domain Procedure Law Unconstitutional?

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon, a partner of Goldstein, Rikon, Rikon & Houghton, discusses whether New York's Eminent Domain Procedure Law §404, which allows a condemnor, when engaged in work connected to a proposed public project to enter upon any real property for the purpose of surveying and investigating and also for temporary occupancy during construction, is constitutional.

Conrad Teitell

Deducting Charitable Gifts on Prior Year's Return

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell discusses the Charitable Giving Extension Act which would give would-be donors an opportunity to consider making charitable gifts after their tax situation is better known by allowing gifts made before tax return due date to be treated as though they were made in the previous taxable year.

Ronald G. Blum and Arunabha Bhoumik

Brady Obligations of Civil Investigators

By Ronald G. Blum and Arunabha Bhoumik |

Ronald G. Blum and Arunabha Bhoumik write: Behind the headlines generated by the Mathew Martoma verdict is a decision by U.S. District Judge Paul Gardephe that exposes the artifice of coordinated, but "separate," criminal and civil investigations by the DOJ and civil enforcement agencies such as the SEC, the CFTC, and Justice Department civil attorneys.

Ben Rubinowitz and Evan Torgan

When Critical Facts Are Left Unsaid

By Ben Rubinowitz and Evan Torgan |

In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: Weaknesses in the opposition's case are often not readily apparent in the facts contained in their own record. Nevertheless, powerful and persuasive weaknesses might well be found in what those very records do not say, but, indeed, should say.

George Bundy Smith and Thomas J. Hall

Interpreting Conflicting Contractual Provisions

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall write: As the New York Court of Appeals has directed, where clauses in a contract appear in conflict, "every attempt should be made to harmonize the two provisions using common-law tools of contract interpretation." We examine some of those tools used by the Commercial Division and other courts in resolving such conflicts.

Paul Shechtman

'Jackson' and Voluntariness of Confessions 50 Years Later

By Paul Shechtman |

Paul Shechtman writes: On June 22, 1964, 50 years ago Sunday, the U.S. Supreme Court decided 'Jackson v. Denno', in which it reversed the conviction of Nathan Jackson for murdering a New York City police officer. For thousands of New York defendants, Jackson has had a lasting effect: It spawned Huntley hearings, which are now a staple of our criminal justice system.

Robert Clarida and Robert J. Bernstein

Fair Use of Digital Libraries for Search and Equal Access

By Robert J. Bernstein and Robert W. Clarida |

In his Copyright Law column, Robert J. Bernstein and Robert W. Clarida analyze 'Authors Guild v. HathiTrust,' in which the Second Circuit joined the Ninth and Fourth Circuits in finding, in appropriate circumstances, that mass digitization to facilitate search may qualify as transformative use even if the original work itself is not changed or placed in a new context that could be considered commentary or scholarship.

Roberta S. Karmel

SEC Rule on Disclosure of Conflict Minerals

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel analyzes a recent case in the D.C. Circuit on an SEC rule requiring disclosure of the use of conflict materials in a company's products. The court declined to strike down the rule pursuant to a cost-benefit analysis even though the SEC was unable to quantify the benefits of the rule, but suggested that such a "name and shame" disclosure obligation violated the First Amendment.

Seth I. Rubin and Ron Ben-Bassat

Avoiding Insider Trading Issues: Rule 10b5-1 Plan Requirements

By Seth I. Rubin and Ron Ben-Bassat |

Seth I. Rubin and Ron Ben-Bassat discuss 10b5-1 plans, under which an individual or entity possessing material non-public information may still trade in a public company's securities.

Patrick M. Connors

Impact of Supreme Court Decisions on New York Practice

By Patrick M. Connors |

In his New York Practice column, Patrick M. Connors writes: The standard used for decades to measure whether a corporate defendant is subject to general jurisdiction in New York under CPLR 301, the famous "corporate presence" or "doing business" test, has been all but declared unconstitutional by the Supreme Court in its January 2014 decision in 'Daimler AG v. Bauman.'

John H. Wilson

'Sibblies' and Standards for Statements of Readiness

By John H. Wilson |

John H. Wilson writes: In the concurring opinions in 'People v. Sibblies,' the Court of Appeals has provided two different ways to view the People's off-calendar statement of readiness. But the underliying issue, that of the validity of the People's statement of readiness, particularly in light of a subsequent statement of non-readiness, remains of constant concern to the criminal law practitioner.

Roy Reardon and William T. Russell Jr.

Preserving Issues for Appellate Review

By Roy L. Reardon and William T. Russell Jr. |

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discusses cases involving the application of various criminal statutes to an Internet harassment campaign, the standard for preserving issues for appellate review and the question of when a municipality is acting in a proprietary capacity for purposes of a negligence claim.

Rupert Barkoff

Franchise System Acquisitions Are Different Animals

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff writes: Although franchise acquisitions are, for the most part, like acquisitions of many other kinds of companies, investors experienced in investing in franchise companies have learned, often from the school of hard knocks, that franchise company acquisitions have their idiosyncrasies.

Edward M. Spiro and Judith Mogul

Multidistrict Litigation: For Better or Worse

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write that consolidating multiple complex litigations in a single forum pretrial offers considerable benefits in terms of efficiency and cost, but concentrates risk as well, and not all cases can be transferred back to their original jurisdictions for trial. A party, through litigation conduct, can waive its right to transfer in those cases where the rules would otherwise have permitted it. Apple's recent experience is a case in point.

Yehudah L. Buchweitz

Florida Rejects Expansive Judgment Execution Regime

By Yehudah L. Buchweitz |

Yehudah L. Buchweitz writes: Several Court of Appeals decisions from the past five years have made New York an attractive forum for judgment creditors to execute on judgment debtors' assets held by others throughout the world. This past March, the Florida District Court of Appeal for the Fourth District squarely rejected the approach taken by New York in a holding that may have wide-ranging impacts.

Shari Claire Lewis

Website Terms of Use: Recent New York Rulings

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis, a partner in the Long Island office of Rivkin Radler, reviews a number of recent decisions analyzing the issue of whether or not terms of service are enforceable, in which the "process" used to present the TOS and secure consent to be bound thereby was at least as important as the terms themselves.

Michael T. Escue

Consideration of Banking Applications and Notices

By Michael T. Escue |

In his Banking column, Michael T. Escue writes that the Board of Governors of the Federal Reserve System recently issued guidance that discusses various issues that may prevent the Federal Reserve from acting favorably on applications and notices submitted by banking organizations, along with describing the Federal Reserve's approach to processing applications and notices that present such issues.

Sidney Kess

Best Tax Ideas for Planning and Strategies in 2014

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses some of the best ideas related to gifts, retirement savings, health insurance, child care and more that were discussed at the recent American Institute of CPAs Conference on Tax Strategies for High Income Individuals.

Paul Bennett Marrow

Unauthorized Legal Research by an Arbitrator

By Paul Bennett Marrow |

Paul Bennett Marrow writes: Parties have the freedom to structure an arbitration contract to meet their needs. But sometimes parties aren't as clear as one would like. Does the arbitration process allow the arbitrator to independently attempt to do for the parties what they have failed to do without first asking the parties for permission? And assuming permission is sought, if one or more parties objects, can the arbitrator still conduct research?