Expert Analysis

Robert J. Bernstein and Robert W. Clarida

'Live Nation': Statutory Damages as Option for Recovery

By Robert J. Bernstein and Robert W. Clarida |

Copyright Law columnists Robert J. Bernstein and Robert W. Clarida examine the law of statutory damages, in light of the Ninth Circuit's decision in 'Friedman v. Live Nation Merchandise', which considered, inter alia, two issues greatly affecting the amount of statutory damages: willfulness, and the number of separate awards available for downstream infringements.

Conrad Teitell

Tax Implications for Candidate and Donor

By Conrad Teitell |

Estate Planning and Philanthropy columnist Conrad Teitell takes a cue from the presidential election headlines to explore tax deductions for charitable giving. Suppose a donor had paid $5 million to a charity if Donald Trump released his tax returns or if Secretary Hil­lary Clinton released transcripts of her speeches. Answer: Trump and Clinton would each have $5 million includible in gross income for services rendered. The donor made an offer, and the offer was accepted by performance of the act.

F. Paul Greene

New Regulations Add to Complexity of Cybersecurity Compliance

By F. Paul Greene |

F. Paul Greene, of Harter Secrest & Emery, explains the draft regulations published by the New York State Department of Financial Services addressing cybersecurity in the financial sector. Described as "first in the nation," the draft regulations are sweeping in scope and reach well beyond core financial institutions, such as banks and lenders.

George Bundy Smith and Thomas J. Hall

Sanctions for the Spoliation of Electronically Stored Information

By George Bundy Smith and Thoms J. Hall |

Commercial Division Update columnists George Bundy Smith and Thoms J. Hall discuss spoliation and recent Commercial Division cases clarifying the scope of a litigant’s duty in the electronic discovery context and the sanctions imposed for a failure to preserve electronically stored information.

Allison Schoenthal and Gregory Lisa

D.C. Circuit's CFPB Decision: Findings and Implications

By Allison Schoenthal and Gregory Lisa |

Allison Schoenthal and Gregory Lisa, of Hogan Lovells, analyze the D.C. Circuit's sweeping ruling on Oct. 11 against the Consumer Financial Protection Bureau, holding that the independent single-director model was constitutionally impermissible. While they note the circuit court's constitutional holding was noteworthy—the CFPB director will now serve at the direction of the president, and the next president will be able to immediately choose the next bureau director rather than wait until the current term expires in 2018—they also point out that the court's separation of powers ruling may not have a far-reaching impact on bureau proceedings in the short term. In fact, the court's other substantive rulings may more dramatically shape future and pending CFPB enforcement actions.

E. Leo Milonas and Andrew C. Smith

Precedent-Setting Decisions in Insurance Law and FOIL

By E. Leo Milonas and Andrew C. Smith |

Appellate Division Review columnists E. Leo Milonas and Andrew C. Smith highlight two insurance law decisions addressing issues of first impression, as well as a case finding that pistol permit holders' names and addresses are public records and subject to disclosure of identity under the Freedom of Information Law absent individualized exceptions.

Roberta S. Karmel

Administrative Law Judges in SEC Proceedings

By Roberta S. Karmel |

Securities Regulation columnist Roberta S. Karmel provides perspective on the Securities and Exchange Commission's use of administrative proceedings. The administrative proceeding as in-house forum has been in existence since the SEC was created, she writes, but until very recently was used only for cases against registered entities in the securities business, and their associated persons, and accountants and lawyers. However, the Dodd-Frank Wall Street Reform and Consumer Protection Act gave the SEC expanded authority to impose civil monetary penalties against persons associated with unregistered entities so that such proceedings could be brought before a SEC ALJ.

Christopher A. Gorman

Casting Doubt on Validity of Servicer Affidavits in Foreclosure Litigation

By Christopher A. Gorman |

Christopher A. Gorman, of Westerman Ball Ederer Miller Zucker & Sharfstein in Uniondale, points out that a number of recent decisions of the Appellate Division, Second Department, may cause lenders to re-think the arrangement by which a loan servicer that is not a party to the foreclosure action acts on behalf of a lender in overseeing and managing mortgage foreclosure litigation. Indeed, the court has held that documents and information attached to an affidavit of a representative of a loan servicer are inadmissible unless the loan servicer’s representative can attest to being familiar with the record-keeping practices and procedures of the lender (i.e., the plaintiff in the foreclosure action).

Roy L. Reardon and William T. Russell Jr.

Overturning Precedent on Meaning of Parenting

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

New York Court of Appeals Roundup columnists Roy L. Reardon and William T. Russell Jr. discuss the significance of the Court of Appeals' decision that brings New York State in line with an increasing number of states in expanding the rights of single-sex parents with respect to child custody and visitation rights and in recognizing the evolution in the concept of "family" that has occurred in recent decades. The decision is a rare instance in which the court overturned its own earlier interpretation of a statute—something the court generally does only when the precedent was "contrary to the legislative purpose underlying the statute…unworkable or…impose[d]…hardship on litigants or the trial courts."

John L.A. Lyddane and Barbara D. Goldberg

Practical Value of CPLR Article 16 in Defense of Medical Malpractice Cases

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

Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg offer practical insights into defenses under CPLR Article 16, which substantially changed the consequences of joint and several liability 30 years ago. The change meant that the liability for non-economic loss of a "deep pocket" defendant found 50 percent or less at fault could be limited to that defendant's equitable share as determined by the jury. In terms of strategy, Article 16 should be asserted as an affirmative defense in the Answer in order to ensure the hospital's right to seek the apportionment at trial, and prevent any claim of surprise by the plaintiff and an argument that the defendant should be prevented from proving the defense at trial.

Edward M. Spiro and Judith Mogul

Cautionary Tales When Communicating With Public Relations Consultants

By Edward M. Spiro and Judith L. Mogul |

Southern District Civil Practice Roundup columnists Edward M. Spiro and Judith L. Mogul discuss a decision earlier this year by Southern District Judge Katherine B. Forrest ordering disclosure of litigation-related communications with a public relations firm. That decision surveys the relevant case law and underscores both the substantive and procedural requirements for maximizing the chances that such communications will not be delivered into the hands of a litigation adversary.

Shari Claire Lewis

Sixth Circuit's Decision on Privacy Claims Over Data Breaches

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis discusses the recent Sixth Circuit decision in 'Galaria', which adopted a broad view of "injury-in-fact" for purposes of standing under Article III of the U.S. Constitution to bring privacy claims under diverse theories of recovery. It remains to be seen whether the Second Circuit will agree, but plaintiffs' lawyers are likely to argue that 'Galaria' opened the door to standing, which could result in the courts being flooded with privacy claims.

Frances K. Browne

Second Circuit Adopts Negligence-Based 'Cat's Paw' Doctrine

By Frances K. Browne |

Frances K. Browne, a partner with Brody & Browne, examines a significant Second Circuit decision related to the "cat's paw" doctrine—a theory of liability whereby an employee may prevail on a discrimination claim if the decision-maker harbors no unlawful animus but unwittingly relies on input from an employee with such intent. The Second Circuit has now extended the doctrine to retaliation claims under Title VII and the New York State Human Rights Law and to situations in which a co-worker, rather than a supervisor, is the bad actor. In so doing, the court addressed issues of first impression and adopted a negligence-based approach to "cat's paw" liability.

David J. Kaufmann

Franchise Case Law Developments: ADA, Antitrust, Statutory Fraud Claim

By David J. Kaufmann |

Franchising columnist David J. Kaufmann offers a look at judicial decisions promulgated over the past year (two involving cases of first impression) clarifying and addressing: the rights and responsibilities of franchisees under the Americans with Disabilities Act; the antitrust implications of a franchisor heeding a franchisee's request that another franchise not be renewed; and how a New York Franchise Act statutory fraud claim must be addressed.

Michael Hoenig

Judicial 'Gatekeeping' of Experts Has Impact

By Michael Hoenig |

Complex Litigation columnist Michael Hoenig brings to light an article examining the results of two sizable studies gauging the relative effectiveness of Daubert motions challenging the reliability of proffered experts. 'Daubert v. Merrell Dow Pharmaceuticals' ushered in a robust era of judicial "gatekeeping" and required that scientific expert testimony had to be "not only relevant but reliable."

Joshua Sohn and Shauneida Navarrete

Employers Should Not Thwart Whistleblower Awards

By Joshua Sohn and Shauneida Navarrete |

Joshua Sohn and Shauneida Navarrete, of Watson Farley & Williams, take note of two recent orders of the SEC signaling that it is paying particular attention to attempts by companies to prevent former employees from whistleblowing and reporting securities violations through restrictive covenants contained in severance agreements. These agreements do not prevent an employee from contacting a government agency, but effectively remove the financial incentives for doing so.

John Fellas

Confirmation of Awards Vacated at the Arbitral Seat

By John Fellas |

International Arbitration columnist John Fellas discusses the recent decision of 'Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v. Pemex-Exploración Y Producción' in which the Second Circuit affirmed a judgment of the Southern District of New York confirming an arbitration award rendered in Mexico, even though that award had been vacated by a Mexican court. In doing so, the Second Circuit articulated a cogent analytical framework for courts addressing the question of whether to confirm awards that have been vacated at the arbitral seat.

Yulian Shtern and Elizabeth Kase

Reform on the Way for New York's Medical Marijuana Program?

By Yulian Shtern and Elizabeth Kase |

Yulian Shtern and Elizabeth Kase, of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, take a close look at the Department of Health's August 2016 report on the progress and challenges of the state's medical marijuana program nearly two years after it was enacted into law. The report points to several successes such as 5,000 patients who have been served while recommending measures to increase physician participation, among other things.

David M. Barshay

Unreasonable Delay Results in Tolling of Interest

By David M. Barshay |

No-Fault Insurance Law Wrap-Up Columnist David M. Barshay examines key decisions relating to the tolling of interest, where misrepresentation of military status is a precludable defense and policy cancellation.

Barry Kamins

Key Provisions of New Criminal Justice Legislation: Part 2

By Barry Kamins |

Criminal Law and Procedure columnist Barry Kamins reviews new crimes enacted by the Legislature, as well as procedural changes, as well as new laws affecting sex offenders and prisoners.

Chaim A. Levin

Overtime Pay Morass—FLSA Overhaul to Take Effect Dec. 1

By Chaim A. Levin |

Chaim A. Levin, the Americas General Counsel of the Tradition Group, discusses the new Department of Labor regulations that will take effect on Dec. 1, 2016, pointing out that they do not precisely resolve the present overtime eligibility debate; the absence of clarity remains a material issue especially with respect to highly compensated individuals or large groups of employees that are not easily classified.

Peter M. Fass

Best Efforts Private Securities Offerings: Rule 15c2-4

By Peter M. Fass |

Real Estate Securities columnist Peter M. Fass describes "best efforts" offerings, in which the broker-dealer acts as the agent of the issuer in attempting to sell the units directly from the issuer to the investors. Best efforts offerings frequently are made on an "all or none" or "part or none" (minimum-maximum) basis. In an "all or none" offering, all of the units must be sold during the specified offering period or the subscriptions must be promptly returned to the investors by the issuers. In a "part or none" offering, the designated minimum amount must be sold within the specified time or subscriptions returned to investors by the issuers.

Samuel Estreicher and Holly H. Weiss

'Carlson v. Ailes': When Can A Non-Signatory Compel Arbitration?

By Samuel Estreicher and Holly H. Weiss |

Arbitration columnists Samuel Estreicher and Holly H. Weiss discuss the sexual harassment lawsuit by Fox News personality Gretchen Carlson in New Jersey state court against Roger Ailes, then chairman and CEO of Fox News, in terms of how the case raised issues regarding the enforcement of arbitration agreements by non-signatories to those agreements.

Paul M. Hellegers and Wojciech Jackowski

Expanding Strict Liability to Design Professionals for Excavation Damage

By Paul M. Hellegers and Wojciech Jackowski |

Paul M. Hellegers and Wojciech Jackowski, partners at Menaker & Herrmann, explore the expanding liability for damage during excavation activities, where historically only an owner/developer and the excavator were at risk of being held strictly liable. Recent case law developing in the First and Second Departments, however, has dangerously broadened the range of project participants on whom such liability may be imposed—regardless of their fault or negligence—to encompass various design professionals involved with the construction project where excavation is performed, e.g., architect of record, structural engineer, excavation engineer.

Ilene Sherwyn Cooper

Substantive and Procedural Issues Impact Surrogates' Decisions

By Ilene Sherwyn Cooper |

Ilene Sherwyn Cooper provides in her Trusts and Estates Update column a look at significant Surrogate’s Court opinions that impacted trust and estate practice, substantively and procedurally.

Joel Cohen

What About Selective Prosecution? Considerations and Analysis

By Joel Cohen |

Ethics and Criminal Practice columnist Joel Cohen examines cases, strategies and ethical considerations related to prosecutorial discretion, pointing out that cases that actually find the government abused its authority are rare in large part because the U.S. Supreme Court has set a very high bar.

Richard Raysman and Peter Brown

Latest Developments in the Law of Unmanned Aerial Vehicles

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown write: Given the recency of the Part 107 Rules—which are designed to expand drone use—pertinent precedents are nonexistent. However, prior to the Rules, the opinion issued in 'Huerta' confirmed that the beginning of the intersection between the law and the seemingly infinite potential of drones is in its infancy.

George M. Heymann

Landlord's Duty to Remedy Lead Paint and the Meaning of 'Reside'

By George M. Heymann |

George M. Heymann, of counsel to Finz & Finz and director of the Housing Legal Clinic at Woodside on the Move, addresses the question of the meaning of the word 'reside' in determinations of liability for lead-based paint. In 'Yaniveth R. v. LTD Realty Co.', the Court of Appeals had to decide whether a child who spends at least 50 hours per week with a caregiver, in an apartment containing lead-based paint, but does not live there full-time, "resides" in the apartment to "trigger" a duty on the owner/landlord to protect the child from lead poisoning and be held liable for damages if such poisoning occurs.

John P. Furfaro and Risa Salins

Joint Employer Update: Changing Interpretations

By John P. Furfaro and Risa M. Salins |

Labor Relations columnists John P. Furfaro and Risa M. Salins address recent developments relating to the National Labor Relations Board’s expansive view of joint employer relationships and important implications for employers.

Jerry H. Goldfeder and Myrna Pérez

Court Victories Don't Mean Voters Are in the Clear

By Jerry H. Goldfeder and Myrna Pérez |

Jerry H. Goldfeder and Myrna Pérez examine litigation over efforts of three state legislatures to impose barriers to the ballot box. While litigation activity over strict photo ID laws or other voting restrictions in Texas, North Carolina and North Dakota has quieted, leaving voters, principally minority voters, in these states in a better position than they were a few months ago, there are still obstacles to overcome.

Steven Roth

After 'Halo' and 'Octane Fitness': Are Patent Opinions Again Necessary?

By Steven Roth |

Steven Roth, of counsel in the New York office of Locke Lord, explains that two recent U.S. Supreme Court cases have significantly changed the law on treble damages and attorney fees for willful patent infringement. 'Halo Electronics v. Pulse Electronics' and 'Octane Fitness v. ICON Health & Fitness' held that the accused infringer's willful behavior at the time of infringement can support treble damages and attorney fees, regardless of the reasonableness of his defenses at trial. These decisions make obtaining an attorney's opinion prior to engaging in potentially infringing activity more important.

Lawrence W. Newman and David Zaslowsky

Personal Jurisdiction Under Foreign Sovereign Immunities Act

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky address foreign sovereign immunity and the commercial activity exceptions, pointing out how the courts have established a higher hurdle for a plaintiff under the Foreign Sovereign Immunities Act than under the due process "minimum contacts" standard.

William Considine and Frank Cruz

Update on No-Fault and SUM Arbitration and Storm Sandy Mediation

By William Considine and Frank Cruz |

William Considine, retired vice president for New York State Insurance Programs at the American Arbitration Association, and Frank Cruz, who currently serves in that position, describe the overall status of New York no-fault cases in arbitration. It's a story of steady, rapid growth. The article will also describe developments in other New York Insurance Programs of the American Arbitration Association, including the Storm Sandy Mediation program established on an emergency basis in early 2013, and the SUM and UM automobile insurance arbitration.

Daniel J. Ansell

New York City Commercial Tenant Harassment Law Takes Effect

By Daniel J. Ansell |

Daniel J. Ansell of Greenberg Traurig provides insight on recently signed legislation prohibiting New York City landlords from engaging in "commercial tenant harassment." Until the new law is interpreted by the courts, key issues such as appropriate forum, limitations on remedies and potential waiver of statutory protections remain unclear, he writes.

Michael J. Hutter

'Stock' and the Application of the Intra-Law Firm Privilege

By Michael J. Hutter |

Evidence columnist Michael J. Hutter discusses the significance of 'Stock v. Schnader Harrison Segal & Lewis', in which the First Department addressed the issue of whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a then-current firm client may invoke the attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice. In the current legal environment of exacting disclosure obligations, the court created, in essence, an intra-law firm privilege.

Robert J. Anello and Richard F. Albert

Questionable Extraterritorial Extension of Foreign Corrupt Practices Act

By Robert J. Anello and Richard F. Albert |

White-Collar Crime columnists Robert J. Anello and Richard F. Albert discusses U.S. law enforcement's extraterritorial expansion under the Foreign Corrupt Practices Act, a niche notable for untested legal theories because of the dearth of cases that actually are litigated. Now, however, the Second Circuit has an opportunity to examine the validity of the government's approach in 'United States v. Hoskins', an FCPA case the U.S. Department of Justice currently is prosecuting in the District of Connecticut.

Thomas A. Moore and Matthew Gaier

Court of Appeals Decision on Sufficiency and Admissibility of Evidence

By Thomas A. Moore and Matthew Gaier |

Medical Malpractice columnists Thomas A. Moore and Matthew Gaier examine the Court of Appeals' recent decision in 'Mazella v. Beals', in which the court addressed issues pertinent to medical malpractice litigation, including the legal sufficiency of evidence of causation and the admissibility of a consent order stemming from charges relating to professional misconduct.

H. Christopher Boehning and Daniel J. Toal

Judge Says 'NO' to Party's Bid to Force Use of Predictive Coding

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss the recent decision in 'Hyles v. New York City', in which Magistrate Judge Andrew Peck faced the question of whether, upon request by the opposing party, to force a responding party to use predictive coding against that party's own wishes. As put by Judge Peck, "[t]he short answer is a decisive 'NO.'"

Barry Kamins

Key Provisions of New Criminal Justice Legislation

By Barry Kamins |

Criminal Law and Procedure columnist Barry Kamins reviews new criminal justice legislation enacted in the last session, amending the Penal Law, Criminal Procedure Law and other related statutes as well as new laws that amend the definition of certain crimes and increase penalties for others.

Jeffrey S. Klein and Nicholas J. Pappas

Class Action Waivers in Arbitration Agreements

By Jeffrey S. Klein and Nicholas J. Pappas |

Employment Law columnists Jeffrey S. Klein and Nicholas J. Pappas address the question of whether class-action and collective-action waivers in employment arbitration agreements violate the National Labor Relations Act or are enforceable under the Federal Arbitration Act and how that question has split the federal circuits.

Erika Collins

U.S. Employers Offer Cutting-Edge Family Benefits to Stay Competitive

By Erika Collins |

Erika Collins, of Proskauer Rose, discusses cutting-edge employment benefits—another opportunity for U.S. companies to compete for talent. The article discusses egg-freezing, adoption, and surrogacy as well as the underlying challenges that U.S.-based multinational companies face when rolling out these programs globally.

Robert C. Scheinfeld

Federal Circuit Addresses Inventorship and Patent-Eligible Subject Matter

By Robert C. Scheinfeld |

Robert C. Scheinfeld, in his Patent and Trademark Law column, discusses two precedential decisions issued by the U.S. Court of Appeals for the Federal Circuit within the last several weeks, on the topics of inventorship (how does one qualify as an inventor?) and patent-eligible subject matter (what is too abstract to qualify for a patent?).

David Wirtz and Orit Goldring

Back and Front Pay Under Title VII and State, City Laws: for Judge or Jury?

By David Wirtz and Orit Goldring |

David Wirtz, of Littler Mendelson, and Orit Goldring, of The Goldring Firm, analyze questions in employment litigation relating to awards of back pay and front pay. What kinds of claims for relief go to the judge and what claims go to the jury depends on what substantive law is at issue, what relief is sought, and whether the relief is being sought in federal or state court.

Hal R. Lieberman

New Rules for Attorney Disciplinary Matters: Informal Proceedings

By Hal R. Lieberman |

Hal R. Lieberman, in his Attorney Discipline column, explores informal proceedings, which he writes is simply another way of saying that a committee has determined, after investigation, to impose a private, confidential sanction upon a lawyer who violated, or came close to violating, a Rule of Professional Conduct, but the infraction was not so serious as to warrant charges, a formal proceeding, and potential public discipline.

Martin Flumenbaum and Brad S. Karp

The Second Circuit in the Supreme Court

By Martin Flumenbaum and Brad S. Karp |

Martin Flumenbaum and Brad S. Karp review the performance of the U.S. Court of Appeals for the Second Circuit in the Supreme Court. Six of the Supreme Court's 80 merits decisions this term arose out of the Second Circuit, and the column explores those cases and compares the reversal rates with other circuits.

Thomas A. Dickerson and Leonard B. Austin

New York State Class Actions in 2016

By Thomas A. Dickerson and Leonard B. Austin |

Second Department Justices Thomas A. Dickerson and Leonard B. Austin review a number of trial court and appellate court decisions rendered in 2016 interpreting CPLR Article 9, New York State's class action statute.

Ilann Margalit Maazel

Malicious Prosecution and Fair Trial Claims in a Section 1983 Case

By Ilann M. Maazel |

Civil Rights Litigation columnist Ilann M. Maazel analyzes 'Rentas v. Ruffin', where the Second Circuit took the highly unusual step of ordering a new trial in light of the district court's erroneous exclusion of evidence in a case brought by a Rikers prison inmate alleging he was assaulted by corrections officers, who then made false statements leading to the inmate's conviction.

Scott D. Locke and Laura-Michelle Horgan

Use of Foreign Language Words and Phrases as Trademarks

By Scott D. Locke and Laura-Michelle Horgan |

Scott D. Locke and Laura-Michelle Horgan of Dorf & Nelson in Rye tackle the issue of using foreign words and phrases in trademarks. A threshold issue is when and under what conditions, the foreign words and phrases will be deemed generic or descriptive because, if translated literally, the English equivalent would be categorized as either generic or descriptive.

Robert S. Kelner and Gail S. Kelner

Late Disclosure of Self-Serving Material

By Robert S. Kelner and Gail S. Kelner |

Trial practice columnists Robert S. Kelner and Gail S. Kelner address the manner in which the courts have addressed the untimely disclosure of fact witnesses and party submissions which conflict with existing evidence and are introduced for the first time in opposition to a summary judgment motion. They also discuss a recent change to CPLR 3212(b) which clarifies the consideration by the court of expert affidavits in summary judgment motions.

Francis J. Serbaroli

The Duties of Governing Board Members

By Francis J. Serbaroli |

In his Health law column, Francis J. Serbaroli discusses the duties of care, loyalty and obedience that members of the governing boards of not-for-profit organizations are obligated to follow. He also analyzes laws and regulations that address potential or actual conflicts of interests involving governing board members and their organizations.

Ken Strutin

Cognitive Independence in Judicial Decision-Making

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: The heightened scrutiny of capital punishment has drawn much needed attention to ghostwritten opinions that can mean the difference between life and death.

Neil J. Rosini and Michael I. Rudell

Legal and Business Basics for Documentary Filmmakers

By Neil J. Rosini and Michael I. Rudell |

In their Entertainment Law column, Neil J. Rosini and Michael I. Rudell discuss how documentary filmmakers and their attorneys can avoid common pitfalls by being aware of basic legal and business concepts such as appearance releases, defamation claims, rights issues, insurance matters and funding, to name a few.

David J. Rowland, Julius Niesert .Rowland & Petroff

Restoration of German Citizenship for Holocaust Victims and Descendants

By David J. Rowland and Julius Niesert |

David J. Rowland and Julius Niesert discuss restoring citizenship for Holocaust victims and their descendants. Former German citizens who had to leave Germany due to racial, political or religious persecution between 1933 and 1945 and their descendants may be able to obtain German citizenship and take advantage of EU membership.

Arthur J. Ciampi

How Not to Deal With Lawyer Mobility

By Arthur J. Ciampi |

Law Firm Partnership Law columnist Arthur J. Ciampi analyzes some of the relevant rules and law governing lawyer mobility and client choice of counsel and discusses a recent decision from the U.S. District Court for the Eastern District of Virginia, which addresses this issue.

What Is the Real Value of an Incentive Compensation Award When It Is Made?

By Joseph E. Bachelder III |

Joseph E. Bachelder III writes in his Executive Compensation column: The value of an incentive compensation award to an executive often is significantly less than the award's "target value." Target value for this purpose means the amount "targeted" for payout at the end of an award period if conditions to which the award is subject are satisfied. These conditions may be based on achievement of performance targets or simply based on continued employment during a stipulated period of time.

Charlotte A. Biblow

Addressing Concerns Over Chemicals in Drinking Water

By Charlotte A. Biblow |

Charlotte Biblow, of Farrell Fritz, discusses important regulatory steps by state and federal environmental protection agencies this year to limit environmental and human exposure to the chemicals PFOS and PFOA in drinking water. Exposure to such chemicals has been associated with adverse health effects.

Mark Kornfeld, Jessie Gabriel and David Choi

Administrative Proceedings Remain Likely for SEC Enforcement Actions

By Mark Kornfeld, Jessie Gabriel and David Choi |

Mark Kornfeld, Jessie Gabriel and David Choi explore challenges to the SEC's practice of seeking to adjudicate enforcement actions in its own administrative courts, rather than in federal district courts. Critics have argued that the in-house proceedings, which are heard before an Administrative Law Judge hired by the SEC, are unfairly advantageous to the commission.

Jonathan A. Dachs

'Use or Operation' and 'Danger Invites Rescue' Doctrine

By Jonathan A. Dachs |

Jonathan A. Dachs, in the Insurance Law column, examines recent case law that has made clear that the "danger invites rescue doctrine" is alive and well in New York—at least in the context of supplementary uninsured/underinsured motorist coverage and the critical issue of whether it can be said that an injury to a rescuer arose out of the ownership, maintenance or use of a motor vehicle.

Gary Tsirelman and Stefan Belinfanti

Policy Issues and Attorney Fees in No-Fault Litigation and Arbitration

By Gary Tsirelman and Stefan Belinfanti |

Gary Tsirelman and Stefan Belinfanti discuss attorney fees as they relate to no-fault litigation and arbitration initiated by a medical provider, where the insurance carrier denied the claim or otherwise failed to pay the claim based on the defense that the injured party violated a policy condition by failing to attend a duly scheduled Examination Under Oath or Independent Medical Examination.

Anthony E. Davis

Developments: In-Firm Privilege and Billing for Work by Unpaid Interns

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis discusses the issues of how law firms handle ethical problems and disputes with clients, and whether it is permissible to bill clients for the work of unpaid interns.

Stephen M. Kramarsky

SDNY Reaffirms 'Volitional Conduct' Element of Infringement

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky writes: The volitional conduct test with regard to copyright infringement is controversial, especially in light of recent U.S. Supreme Court jurisprudence, and in particular the context of Internet service providers, but a recent decision from the Southern District of New York makes it clear that the doctrine is alive and well, at least for the time being.

Amy Barasch and Kim Susser

Court of Appeals Recognizes New Frontiers in Parenting

By Amy Barasch and Kim Susser |

Amy Barasch and Kim Susser share their views on the Sept. 1 Court of Appeals decision on two cases considered together on appeal—'Brooke M.' and 'Estrellita X.'—which received attention for the victory the decision represents for gay and lesbian parents. The authors write, however, that the decision should be appreciated also as a decision about parenting in its myriad forms and for the fact that meeting the standard of the best interests of the child need not be exclusively about biology.

Bruce A. Langer.McLaughlin & Stern.rec'd 0912/2016

Beware What You Click On: Website Arbitration Clauses

By Bruce A. Langer |

Bruce A. Langer, a litigation partner with McLaughlin & Stern, examines a recent U.S. Eastern District decision that compelled arbitration of a dispute based on language contained in the "terms of use" on an Internet access provider's website. The language contained an operative arbitration clause that the court found binding on the plaintiffs.

Sidney Kess

Tax Aspects of Disasters: Recovering After Loss

By Sidney Kess |

Sidney Kess provides tips on tax breaks stemming from disasters and casualties. As he notes, insurance may not adequately compensate individuals and businesses for property damage and destruction. Tax breaks may provide some economic help.

Kathleen A. Scott

Work Continues on Addressing Correspondent Banking Decline

By Kathleen A. Scott |

Kathleen Scott, International Banking columnist, writes: There has been a troubling trend toward some banks terminating their correspondent banking account relationships with banks in certain areas of the world, and potentially to all the banks in particular countries, essentially isolating them from accessing the international financial system and adversely affecting that country’s own local banking system.

Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit. (2014)

DC Circuit Judge Assails NLRB for 'Cavalier' Approach

Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit criticizes the National Labor Relations Board for its "too-often cavalier and enabling approach" to racially and sexually demeaning misconduct by employees on strike. "It is 2016, and 'boys will be boys' should be just as forbidden on the picket line as it is on the assembly line," Millett writes.

Lisa Koenig.Fragomen, Del Rey, Bernsen & Loewy.09/15/2016

Provisional Waiver Offers New Options for Mixed-Status Families

By By Lisa Koenig and Julie Muniz |

Immigration Law columnists Lisa Koenig and Julie Muniz, of Fragomen, Del Rey, Bernsen & Loewy, explain recent regulations relating to “mixed status” families, where one spouse is a U.S. citizen or permanent resident, i.e., green card holder, and the other is undocumented, while also pointing out that in most cases the reality is that immigration has become more and more difficult over the past 20 years as Congress has passed laws that have made the “path to citizenship” more difficult and complicated than ever before.

Todd J. Krouner. .Law Office of Todd J. Krouner.09/14/2016..Chappaqua

Title IX Remedies for Student-on-Student Sexual Assault

By Todd J. Krouner |

Todd J. Krouner examines remedies available to victims of sexual assault on campus under Title IX of the Education Amendments of 1972. He writes: Although Title IX does not explicitly mention sexual violence, the Supreme Court and the Department of Education’s Office of Civil Rights have interpreted Title IX to protect against sexual harassment, including sexual violence, in the university setting. Rape constitutes a form of "sexual harassment" in the most extreme form, and "any allegations of rape or sexual assault reported on campus" must be investigated under Title IX.

Jeremy H. Temkin

'Greenfield': Act of Production Doctrine is Alive and Well

By Jeremy H. Temkin |

Jeremy Temkin, in his Tax Litigation Issues column, discusses United States v. Greenfield, in which the U.S. Court of Appeals for the Second Circuit upheld one taxpayer’s attempt to avoid production of records beyond those that he was required to maintain under the Bank Secrecy Act. The court held that the taxpayer could still resist production of such documents through the Fifth Amendment’s act of production doctrine.

Elliott Scheinberg

CPLR 5501 and Interim Support Awards, Orders in Post-Trial Decisions

By Elliott Scheinberg |

Elliott Scheinberg examines Maddaloni v. Maddaloni, important to the appellate bar as a matter of first impression: It is the first published decision, wherein the Second Department articulates its firm position that orders embedded in post-trial decisions that have not yet been reduced to judgment are neither appealable nor enforceable.

CGs Say Warner Bros. Blunder Shows Flaws in Copyright System

Critics of the Digital Millennium Copyright Act got some ammunition—not to mention a laugh—last month, when Warner Bros. Entertainment embarrassingly asked Google to take down hundreds of copyright-infringing websites, only to later realize that it had included legitimate sites and some of the company's own official pages.

Lewis R. Clayton and Eric Alan Stone

Willful Infringement, Damages and Attorney Fees in Patent Cases

By By Lewis R. Clayton and Eric Alan Stone |

Lewis R. Clayton and Eric Alan Stone discuss two recent Supreme Court cases addressing enhanced damages in patent cases, one addressing the award of attorney fees in "exceptional cases" under 35 U.S.C. §285, and another addressing up-to-treble enhanced damages under the so-called "willfulness" provision, 35 U.S.C. §284.

Timothy M. Tippins

Exploring the Basis of Forensic Custody Opinions

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins explores the ramifications of a recent First Department decision, in 'Strauss v. Strauss', which sheds light on levels of analysis applied to an expert’s opinion in a forensic custody report and how it makes clear that counsel opposing an expert opinion must be prepared to challenge it on both the major and minor premise levels.

Milton Springut

Thanks but No Thanks: 'Citigroup' and Lessons on Trademark Litigation

By Milton Springut |

Milton Springut shares insights on important lessons about litigating trademark cases in a district court's decision last month denying a preliminary injunction sought by Citigroup to protect its trademark THANKYOU, used in its loyalty, redemption and rewards programs in a dispute over AT&T's use of the name AT&T THANKS marketing a similar rewards program.

Richard Raysman and Peter Brown

Applying Statutory Immunity in the CDA in Recent Cases

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown analyze two recent cases in the Ninth Circuit that reach differing conclusions on the Communications Decency Act.

Stephen L. Kass

Recognizing Right to Clean Water: The Time Has Come in the U.S.

By Stephen L. Kass |

Stephen L. Kass explores the right to water internationally and in the United States, and points out that while clean and adequate water is an important “interest” and “goal” of the U.S. government, it is not an inherent “right” of individuals.

Michael Hoenig

Practical Tips Regarding Summations

By Michael Hoenig |

Michael Hoenig, in his Complex Litigation column, offers practical trial tips on summations, the “final opportunity” to convince the jury that his client should prevail. The trial lawyer seeks to communicate with the jury on his own terms, in his own words and by the force of his own personality and ideas, he writes.

Maurice J. Recchia

Car Accidents With Pedestrians: Conflict in the Departments

By Maurice Recchia |

Maurice Recchia, of Russo & Toner, explores two laws regarding liability for pedestrian accidents—the New York State Vehicle and Traffic Law and the New York City Department of Transportation Traffic Rules and Regulations—and the split in the Appellate Division departments in determining which standard to apply.

C. Raymond Radigan

Unclaimed Bodies: Change in Public Health Law

By C. Raymond Radigan |

In his Trusts and Estates Law column, C. Raymond Radigan examines a new law which ends the longstanding practice whereby unclaimed bodies were sent to medical and mortuary schools as cadavers. This law reinforces a decedent’s family's common law right of sepulcher, the "absolute right to immediate possession of a decedent’s body for preservation and burial."

Joseph Lipari

Cases Highlight Sales Tax Issues of 'Free' Items Provided to Customers

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari writes that from an income tax perspective, providing additional goods to customers usually does not raise any meaningful issues, but the impact of the sales tax is more complex, particularly when a company may be selling or giving away some items subject to sales tax and other items that are exempt. Two recent cases highlight the complexities of offering "free" items as an add-on to those services for which the seller is charging a fee.

Harvey M. Stone and Richard H. Dolan

Scienter and Securities Law; Federal Tort Claims Act; Tax Prosecution

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review recent significant decisions involving the application of the heightened pleading standards of the Private Securities Litigation Reform Act, the military exception to the waiver of immunity under the Federal Tort Claims Act, and an attempt to admit into evidence Internal Revenue Code provisions and regulations to demonstrate a defendant tax preparer's lack of willfulness.

Hannah Chanoine of O’Melveny & Myers.11-2015

Managing Investor Risk in Food and Beverage Industry

By Hannah Chanoine |

As companies in the food and beverage industry face increasing claims alleging false advertising, Hannah Chanoine of O’Melveny & Myers notes the importance of recognizing these claims as one more risk to be managed. One area such awareness comes into play is in the deal context. Parties, for instance, should ask for product labels and label changes of the target, and the processes used to clear the product labels.

Michael B. Gerrard and Edward McTiernan

Jurisdiction Over Wetlands: New Uncertainties

By Michael B. Gerrard and Edward McTiernan |

In his Environmental Law column, Michael B. Gerrard and Edward McTiernan write: Since Superstorm Sandy, federal, state and local resource managers have increasingly come to view wetlands not merely as important natural areas worthy of preservation but as central to sustainable and cost-effective storm water management systems.

Kenneth E. Pitcoff and Kevin G. Faley

Hazard Vehicles: When Does Reckless Disregard Standard Apply?

By Kenneth E. Pitcoff and Kevin G. Faley |

Kenneth E. Pitcoff and Kevin G. Faley write: Some might be surprised to discover just how much protection is afforded to those who operate hazard vehicles, such as street sweepers and snowplows—even more than that provided to police vehicles and ambulances. Recently, courts have continued to expand protections for these hazard vehicles by broadening the interpretation of the "actually engaged in work" language and liberally interpreting what behavior should be considered reckless.

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

Successive Appeals Presenting the Same Issue

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

In their Appellate Practice column, Thomas R. Newman and Steven J. Ahmuty, Jr. review a recent decision that brings an important reprieve to any would be appellant whose prior appeal has been dismissed as untimely, provided a subsequent judgment or order raising the same issues is entered from which a separate timely appeal may be taken.

Eva Talel and Richard Siegler

Priority of Liens—Evolving Rules for Condominiums and Lenders

By Eva Talel and Richard Siegler |

In their Cooperatives and Condominiums column, Eva Talel and Richard Siegler examine the conflicts that often arise in a foreclosure proceeding, as between a condominium association seeking to recoup unpaid common charges, and a unit owner's lender attempting to maximize the amount of and recover its first mortgage of record—all in light of significant recent case law.

Carlos J. Cuevas

Vacatur of a Default Judgment and Reasonable Excuse Requirement

By Carlos J. Cuevas |

Carlos Cuevas explores the case law on vacating a default judgment. In order to vacate a default judgment a movant must establish a reasonable excuse for the default and a meritorious defense. The article discusses what constitutes a reasonable excuse under CPLR 5015(a)(1).

Elkan Abramowitz and Jonathan Sack

Insider Trading Among Family Members and the Limits of 'Newman'

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack discuss the Sean Stewart case and suggest how the government was able to secure a conviction against the tipper, a son who tipped his father, even though the son received no meaningful financial benefit in return.

Claudius O. Sokenu

D.C. Circuit Upholds Constitutionality of SEC Administrative Proceedings

By Claudius O. Sokenu |

Claudius O. Sokenu discusses the District of Columbia Circuit decision in 'Lucia v. SEC', which roundly rejected a constitutional challenge to the SEC's use of administrative proceedings for litigated enforcement actions and held the SEC's use of ALJs constitutional. As the first appellate decision to address the constitutionality of the SEC's appointment of ALJs, the opinion could embolden the commission to continue its use of APs in litigated enforcement actions.

Mark A. Berman

Non-Willful Spoliation of ESI

By Mark A. Berman |

In his State E-Discovery column, Mark A. Berman discusses recent state court decisions that grapple with the appropriate sanction for non-willful spoliation of electronically stored information. As noted in one case, the spoliation "sanction must reflect 'an appropriate balancing under the circumstances.'"

Jennifer H. Rearden and Sharon I. Grysman

Advice From Law Firm's In-House Counsel Found Shielded by Privilege

By Jennifer H. Rearden and Sharon I. Grysman |

Jennifer H. Rearden and Sharon I. Grysman explore the decision in 'Stock v. Schnader Harrison', that communications among "attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client" during the representation of that client are "not subject to disclosure"—even where "the consultation at issue...might have extended to whether [the firm]...was potentially liable...for malpractice."

Evan H. Krinick

Ruling Boosts Fight Against Criminal and Civil No-Fault Fraud

By Evan H. Krinick |

Evan Krinick takes note in his Insurance Fraud column of a ruling in July that a fact-finder in a criminal case may go beyond the formal indicia of ownership in determining the actual ownership of a medical services professional corporation (PC) for purposes of examining the PC's entitlement to payment from an insurance carrier of claims assigned to the PC by a patient under New York's no-fault insurance law. Going forward, he writes the decision will make it easier for the government to criminally prosecute cases of no-fault insurance fraud in this state.

Martin A. Schwartz

'Birchfield': Split Fourth Amendment Decision on Testing for Alcohol

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz writes about a split ruling by the U.S. Supreme Court on alcohol testing. The court in 'Birchfield v. North Dakota' held (6-2) that the Fourth Amendment allows the police to compel a warrantless breathalyzer test incident to an arrest for driving while intoxicated (or impaired), but also held that absent exigent circumstances or consent, the Fourth Amendment bars warrantless blood alcohol testing incident to such an arrest.

Joshua R. Kopelowitz

Common Law Right to Use Self-Help to Evict a Commercial Licensee

By Joshua Kopelowitz |

Joshua Kopelowitz discusses using self-help to evict commercial occupants who have stayed beyond their terms. At the root of this method is knowing the difference between a license and a lease. Thus, he writes, there can be no doubt that a commercial licensor has a viable alternative to seeking a judgment of possession in court.

Howard Epstein and Theodore Keyes

'Viking Pump': Changing the Allocation Landscape

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: In 'In re Viking Pump', the New York Court of Appeals applied an all sums allocation to a long-term asbestos bodily injury case, catching New York insurance practitioners by surprise and uprooting the long-held understanding that New York is a pro rata jurisdiction.

Mauricio A. Espana and Michael J. Sullivan

Protecting Communications and Work Product After 'Ambac II'

By Mauricio A. España and Michael J. Sullivan |

Mauricio A. España and Michael J. Sullivan have tips on protecting communications and work product after the 'Ambac II' decision which held that the common interest doctrine applies only if the parties are engaged in, or have a reasonable anticipation of, litigation.

Rupert M. Barkoff

Enforcing Termination Obligations of Franchise Agreements

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff writes about termination of franchise agreements where the franchisor has the right to demand, among other things, that the franchisee de-identify, not compete, assign the phone number of the former franchisee to franchisor, and return its confidential operating manuals, and what happens when the franchisee refuses to comply with these obligations. In one case, a drastic remedy was imposed.

Stephen Treglia

Privacy Shield's Growing Pains

By Stephen Treglia |

In his Cross-Border Concerns column, Stephen Treglia of Absolute Software Corporation writes: The ultimate successful implementation of the Privacy Shield and all it will mean to EU-U.S. commercial relations are still not a total certainty. Several rough edges need to be smoothed, approval steps are still underway, and litigation attacks are almost certainly imminent.

Sloane Ackerman

The Spread of Zika Virus: What U.S. Employers Should Know

By Sloane Ackerman |

Sloane Ackerman explores employment-related legal issues stemming from the Zika virus, with a focus on legal obligations to protect the health of employees, while simultaneously abiding by anti-discrimination and other laws given that this unique virus poses its greatest threat to pregnant women and couples contemplating having children.

Edward E. Neiger

Bankruptcy Filings in Oilfield Services Sector

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger focuses on bankruptcy filings in the oilfield services sector as the industry reacts to capital expenditure cuts by upstream energy companies and a reduction in drilling activity.

Nelson E. Canter

When Does Tort Liability Extend Beyond Contractual Parties?

By Nelson E. Canter |

Nelson E. Canter explores recent case law and trends involving when tort liability attaches for injuries or damages sustained by non-parties to a contract such as in the case of security companies sued by non-contracting plaintiffs.

Michael Rikon

Landowner Right to Appeal Over Designation as Wetlands

By Michael Rikon |

In his Condemnation and Tax Certiorari column, Michael Rikon addresses regulatory, administrative and jurisdictional issues relating to wetlands and analyzes a new Supreme Court case, in which a landowner directly challenged federal jurisdiction of the Army Corps of Engineers.

Abby Tolchinsky and Ellie Wertheim

Strategies Mediators Employ When Parties Are at Impasse

By Abby Tolchinsky and Ellie Wertheim |

Mediators Abby Tolchinsky and Ellie Wertheim share insights on helping parties move past impasse. This involves going beneath the dynamic and the facts on the ground using a variety of techniques which they discuss in the article.

Natasha N. Reed

Why Fashion Brands Should File for Trademark Protection in Cuba

By Natasha N. Reed |

Natasha N. Reed warns that as the U.S. and Cuba progress toward economic normalization, and companies consider doing business in Cuba, filing for trademark protection in Cuba is particularly crucial for fashion brands even if a company has no immediate plans to offer products or services in Cuba especially given the global business of counterfeits, thanks in large part to e-commerce.

David J. Kaufmann

Joint Employer Theory: Did Subway Go off the Tracks?

By David J. Kaufmann |

In his Franchising column, David J. Kaufmann offers a critique of a "Voluntary Agreement" the franchisor of Subway restaurants entered with the U.S. Department of Labor's Wage and Hour Division under which Subway pledged to take steps to ensure that its franchisees comply with wage-and-hour laws. The steps it pledges to take, writes Kaufmann, are the type of activity deemed by the NLRB as rendering franchisors the "joint employers" of their franchisees' employees, specifically in the pending case launched against McDonald's Corporation two years ago.

Sidney Kess

Tax Implications of Losing a Job

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the tax implications of losing a job. Among the areas he explores are severance packages, health benefits and unemployment benefits.

Martin Flumenbaum and Brad S. Karp

The Rarity of En Banc Review in the Second Circuit

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp point out that the court has consistently granted fewer petitions for rehearing en banc than any other circuit court, a pattern that has become more pronounced in recent years. Since the beginning of 2011, the Second Circuit has reconsidered only two appeals en banc, compared to an average of 12 across all circuits during the same period. Now, other views are emerging among judges as to the merits of such review.

Jason L. Shaw

Defining 'Occurrence' in Insurance Can Have Major Impact in Recovery

By Jason L. Shaw |

In insurance, courts may treat the meaning of "occurrence" differently depending on whether it is an occurrence in a first-party property damage claim or in a third-party liability claim. Jason L. Shaw examines two cases since 2015 to show how different interpretations of "occurrence" can lead to very different consequences for policyholders.

Thomas A. Moore and Matthew Gaier

Late Notices of Claim on Behalf of Infants

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier examine two Court of Appeals decisions affirming the denial of motions for late notices of claim on behalf of infants allegedly injured as a result of malpractice around the time of their birth.

Peter A. Crusco

Warrantless Cell Phone Pinging Exigency Analysis

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco tackles the questions: Do the police need a warrant to get defendant's cell site location information? Is the cell phone company required to provide the information without a warrant?

David G. Samuels

Representing Charitable Interests in Trusts and Estates

By David G. Samuels |

David G. Samuels writes that an attorney for a charitable organization, receiving a notice that an individual has died and left a considerable sum to the organization in his or her will or trust instrument, should be prepared to provide appropriate advice to the client on how to proceed.