Expert Analysis

Richard Strassberg and William Harrington

The False Claims Act and Corporate Integrity Agreements

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Richard Strassberg and William Harrington write: Time and time again, False Claims Act health-care cases result in settlements, where the defendant company pays a substantial amount to the government and agrees to be bound by a corporate integrity agreement, all in exchange for the opportunity to announce that it has put the matter behind it. But the finality of these resolutions may be somewhat illusory.

Edward E. Neiger

Return to Bankruptcy Court After Emerging From Chapter 11

By Edward E. Neiger |

In his Bankruptcy Update, Edward E. Neiger discusses the recent bankruptcies of Patriot Coal and A&P, both of which emerged from chapter 11 reorganizations in the last five years and now find themselves back in bankruptcy court having switched their reorganization strategies to pursue sales of substantially all of their assets.

Jeremy M. Creelan and David B. Diesenhouse

Clarifying the Impact of Classwide Damages Methodologies

By Jeremy M. Creelan and David B. Diesenhouse |

Jeremy M. Creelan and David B. Diesenhouse write: 'Tyson Foods v. Bouaphakeo', a case before the U.S. Supreme Court this upcoming term, presents two related questions that could substantially limit class actions brought under FRCP 23(b)(3). May courts certify a class that uses statistical averaging, sampling methods, or other representative proof to overcome differences between class members and determine liability and damages on a classwide basis? May a class be certified when it includes members who have not been injured in any respect by the defendant's conduct?

Martin A. Schwartz

Supreme Court Pretrial Detainee Excessive Force Decision

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz analyzes Kingsley v. Hendrickson, in which the U.S. Supreme Court held that pretrial detainee due process excessive force claims against jail officers are governed by an objective reasonableness standard.

Jon D. Lichtenstein

Updating Tort Law for Advances in Prosthetics

By Jon D. Lichtenstein |

Jon D. Lichtenstein writes: It is hard to come up with any justifiable or necessary reason to limit compensation to an individual solely because the injured body part is mechanical and not organic. A lawyer with such a case could make a forceful argument that the law needs expansion.

Robert W. Clarida and Robert J. Bernstein

Courts Split Over Definition of 'Cable System' for Streaming TV

By Robert W. Clarida and Robert J. Bernstein |

In their Copyright Law column, Robert W. Clarida and Robert J. Bernstein write that after the U.S. Supreme Court dealt a devastating blow to Aereo, the streaming service unsuccessfully attempted to stave off the entry of a preliminary injunction by arguing that it should qualify as a "cable system." Last month, however, a copycat technology in California succeeded with the same argument that the Southern District had soundly and somewhat sarcastically rejected in the Aereo remand.

Risa Gerson and Tammy Feman

Indigent Representation: Post-Conviction Best Practices

By Risa Gerson and Tammy Feman |

Risa Gerson and Tammy Feman discuss the Office of Indigent Legal Services' Standards and Best Practices for Appellate and Post-Conviction Representation, with particular attention to four of the standards that have resulted in the most discussion from the bar—those on collateral litigation, meeting with the client, issue selection and mandatory brief review.

Martin Flumenbaum and Brad S. Karp

Harmonizing Iqbal Pleading With McDonnell Douglas

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'Littlejohn v. City of New York', where the court held that, to the extent that the McDonnell Douglas evidentiary standard relaxes the factual showing required for plaintiffs to defeat a summary judgment motion, it likewise relaxes the facts needed to be pleaded under 'Ashcroft v. Iqbal' to survive a motion to dismiss.

Theodore W. Ucinski III and Jamie R. Prisco

Use of Social Media Against Personal Injury Defendants

By Theodore W. Ucinski III and Jamie R. Prisco |

Theodore W. Ucinski III and Jamie R. Prisco examine the recent trend in New York of restaurants', retail stores', or malls' social media posts or websites being used against them by injured plaintiffs, and provide some general recommendations as to how defense counsel and their clients should treat social media while involved in such litigation.

Michael Rikon

The Condemnation Expert's File: Minefield for Cross-Examination

By Michael Rikon |

In his Tax Certiorari and Condemnation column, Michael Rikon writes that appraisers typically send a draft of their appraisal report to attorneys for prior review or comment before finalizing the report—a review that can be extremely helpful if there is something missing or inaccurate in the appraisal. The danger is that the attorney or client may totally revise a report so as to put the appraiser's credibility in question.

Peter A. Crusco

Evidentiary Consequences of Social Media Self-Adulation

By Peter A. Crusco |

In his Cyber Crime column, Peter A. Crusco writes: The law journals may be replete with accounts of the defense's deft use of social media evidence, but all of the clever and laborious research and investigation may be undone by a client's unbridled appetite for self-adulation in the cyber world. This article examines recent case law addressing the admissibility at trial of such self serving social media evidence.

Lee Spielmann

Germany's Failures in Bringing Nazi Murderers to Justice

By Lee A. Spielmann |

Lee A. Spielmann writes: In the last few years, German prosecutors have begun a concerted effort to bring criminal prosecutions against remaining death camp guards. This recent commitment, however, highlights that for many years Germany was exceedingly lax in its efforts to prosecute and punish Nazi criminals.

Samuel Estreicher

Class Action Waivers in FINRA Arbitration Agreements

In his Arbitration column, Samuel Estreicher discusses two recent Second Circuit decisions that provide significant guidance on interpretation of the FINRA rule that bars arbitration of class and collective actions and enforcement of arbitration agreements when class and collective actions are pending in most circumstances.

Conrad Teitell

Claiming Animal Trophies of Taxidermy as Charitable Gifts

By Conrad Teitell |

In his Estate Planning and Philanthropy column, Conrad Teitell writes: The tax law permeates virtually all areas of human activity. The recent horrific killing of Cecil the lion calls that adage to mind. I have no idea whether Walter Palmer will have the lion's head mounted, and if he does whether he will keep or contribute it. But enough taxpayers had contributed animal trophies to charity and claimed inflated deductions to motivate Congress to tighten the deductibility rules in 2006.

Edward G. Warren and Diane K. Kanca

Demystifying Legal Malpractice

By Edward G. Warren and Diane K. Kanca |

Edward G. Warren and Diane K. Kanca write: The tort of legal malpractice is largely misunderstood. Too often, one attorney will decry another's conduct as being malpractice without understanding what actually constitutes actionable malpractice. Others wrongfully criticize the legal system as favoring attorneys by making the tort nearly impossible to prove. Again, this arises from a complete misunderstanding of what a cause of legal malpractice is, and what it is not.

George Bundy Smith and Thomas J. Hall

Shareholder Claims: Direct or Derivative?

By George Bundy Smith and Thomas J. Hall |

In their Commercial Division Update, George Bundy Smith and Thomas J. Hall analyze recent decisions demonstrating that, although a clearly enunciated test for distinguishing direct shareholder claims from derivative claims now exists, its application is not always clear.

Alton L. Abramowitz and Elena Karabatos

Working Under the New Guidelines for Spousal Maintenance

By Alton L. Abramowitz and Elena Karabatos |

In their Divorce Law column, Alton L. Abramowitz and Elena Karabatos write: After almost five years of battling amongst matrimonial and family law attorneys, and hard on the heels of attempts by state courts to navigate the temporary maintenance guidelines, the New York State Legislature passed a bill designed to bring clarity and consistency to the determination of temporary and, for the first time, post-divorce maintenance awards, while still providing the courts with flexibility.

Lauren A. Ormsbee and Michael D. Blatchley

Examining Judges' Hobson's Choice Approach to Amending Complaints

By Lauren A. Ormsbee and Michael D. Blatchley |

Lauren A. Ormsbee and Michael D. Blatchley discuss the Second Circuit's reversal of a district court's dismissal of a complaint "with prejudice," saying the district court improperly "presented Plaintiffs with a Hobson's choice" to either immediately amend the complaint after defendants previewed their arguments for dismissal, or forfeit the right to do so later after the court's decision on the motion to dismiss.

Roberta S. Karmel

State of Mind on False Statements and Application of 'Omnicare'

By Roberta S. Karmel |

In her Securities Regulation column, Roberta S. Karmel discusses 'Omnicare v. Laborers District Council Construction Industry Pension Fund', in which the U.S. Supreme Court decided that an issuer may be liable for opinions set forth in a registration statement if the issuer did not genuinely hold the stated opinion, or if the issuer failed to disclose material facts relating to the foundation for the opinion, and the application of 'Omnicare' to recent and pending cases.

Mitchell Shapiro

Selecting Arbitrators Is Critical Given Courts' Deference to Awards

By Mitchell C. Shapiro |

Mitchell C. Shapiro writes: With ever-increasing frequency, corporate counsel have included arbitration clauses in an array of contracts and agreements, helping avoid the costs of litigation and class actions. However, despite the many benefits of arbitration, corporate counsel must exercise caution. Arbitration awards, once final, are rarely overturned.

Brian J. Shoot

Getting In at the Ground Level: When Is a Risk Elevation-Related?

By Brian J. Shoot |

In his Construction Accident Litigation column, Brian J. Shoot writes: The plaintiff is engaged in what anyone would call construction work when she falls into an uncovered opening while walking on the ground level of the construction site. Does the fact that the opening is at ground level, perhaps with a basement or sub-basement immediately below, mean that it is not an elevation-related risk? Does it matter what kind of an opening it was? Some comments in a recent Court of Appeals ruling raise the issue anew.

Second Circuit Requires Court Approval of all FLSA Settlements

By Glenn S. Grindlinger |

Glenn S. Grindlinger writes that generally, when parties settle a federal court action, they simply file a stipulation that dismisses the case with prejudice, ensuring they do not have to provide the court with a copy of their settlement agreement and its terms can remain private and confidential. A recent decision has removed that option when a case includes claims alleging violations of the Fair Labor Standards Act.

Shari Claire Lewis

Circuit Clarifies Time Limit for Computer Hacking Suits

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis discusses a Second Circuit decision notable not just for the guidance it provided regarding the operation of the statutes of limitations for civil lawsuits under the CFAA and SCA, but also for the many issues that the Second Circuit left open for consideration on another day.

Edward M. Spiro and Judith Mogul

Class Arbitration—Dying but Not Dead

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul analyze a decision by Judge Colleen McMahon demonstrating that even when a business holds all the cards in drafting an arbitration agreement with its customers, it can over-play that hand.

Elyse Echtman and Katie DeWitt

Drafting Consumer Arbitration Clauses for Electronic Agreements

By Elyse D. Echtman and Katie DeWitt |

Notwithstanding the Supreme Court's broad holdings on the scope of the FAA's protection of arbitration clauses, careful drafting and implementation remain important to maximize the enforceability of arbitration clauses, particularly in e-commerce consumer agreements.

Sidney Kess

Highway Trust Fund Extension Brings About Permanent Tax Changes

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses highlights of the revenue provisions within a new law that makes a number of permanent tax law changes in order to raise about $5 billion in revenue over 10 years as a way to help pay for the extended funding for surface transportation programs and afford resource flexibility for veterans.

David C. Singer

Rescission of Settlement Agreements: Rare but Possible

By David C. Singer |

David C. Singer writes: If a settlement agreement is valid on its face and was not entered into under circumstances that would render the agreement invalid, such as fraud or incompetence of a party, must a settlement agreement be enforced as written? In New York, the answer is: Not always.

Authority of Guardian After Death of Ward Limited

By Daniel G. Fish |

In his Elder Law column, Daniel G. Fish writes: Guardians have long been vexed by the lack of a clear line of demarcation of their obligations in winding up the Article 81 Mental Hygiene Law proceeding after the death of the incapacitated person. A recent Court of Appeals decision offers guidance.

Harvey M. Stone and Richard H. Dolan

Former Inmates Allowed to Pursue Negligent Supervision Claims

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan review holdings that a defendant with some dementia was exaggerating his symptoms for purposes of malingering, that a defendant's incriminating proffer statements made during a failed cooperation attempt would not be considered in sentencing, that a plaintiff was not required to submit to arbitration before a substitute forum after the agreed forum became unavailable, and more.

Vincent G. Danzi

Closing Disclosure: What's 'Consummation' Got to Do With It?

By Vincent G. Danzi |

Vincent G. Danzi writes: Although the title insurance and lending industries have been diligently working to prepare for the substantial changes to be wrought by the "Know Before You Owe" rule, one particular wrinkle has hidden in plain sight from many of us in New York State. To put it succinctly: The delivery of the so called "Closing Disclosure" is tied to "consummation" of a transaction rather than the "closing" or "settlement" of a transaction.

Jeffrey S. Klein and Nicholas J. Pappas

Multiple Decision-Maker Employment Class Actions

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas discuss the recent application of 'Wal-Mart Stores v. Dukes' and its higher threshold for satisfying the commonality standard for class certification in a case involving a single facility and dozens of managers, in contrast to the nationwide claims and thousands of managers at issue in 'Dukes'.

U.S. Securities and Exchange Commission building

SEC Focuses Attention on Chief Compliance Officers

By Evan Charkes |

Evan Charkes writes: The SEC continues to ratchet up its pressure on the chief compliance officer of registered investment advisers and broker-dealers after reaching settlements in two recent Division of Enforcement cases, both of which required the individual CCO to personally pay a substantial monetary fine as part of those settlements.

Halliburton II's Price Impact Decision Applied on Remand

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti write: On July 25, 2015, the U.S. District Court for the Northern District of Texas partially granted plaintiffs' motion for class certification in a long-running securities fraud class action against Halliburton. The decision flags the ongoing issues in the battle by defendants for pre-certification decision of as many issues as possible. Reviewing the decision is also useful as a catalogue of expert issues for defendants litigating price impact at the class-certification stage.

A. Jonathan Trafimow and Steven S. Rubin

Counsel's Capacity to Control Cybersecurity Costs

By A. Jonathan Trafimow and Steven S. Rubin |

A. Jonathan Trafimow and Steven S. Rubin write: Compliance with the number and complexity of federal and state cybersecurity laws and regulations is no simple task. An essential part of a cybersecurity program is a written information security plan, which sets forth the company's methodologies in identifying, protecting, detecting and responding to incidents and creates a network of relationships with experts to contact in the event of a suspected breach.

Shepard Goldfein and James A. Keyte

Heightened Ascertainability in Class Actions

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James A. Keyte write: The degree of rigor needed to attain class action certification is a hotly litigated issue in the federal courts these days. On the heels of the U.S. Supreme Court's decision to grant certiorari in 'Bouaphakeo v. Tyson Foods', an outright split among several circuit courts on the ascertainability requirement of FRCP 23 may tee up yet another class certification issue for the Supreme Court to resolve.

Joel Cohen

Confidentiality: Keeping Secret Non-Privileged Information

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen writes that every practicing attorney knows that any confidence learned from the client in the confessional of his representation must remain confidential. But what of information that came to the attorney independently, although in the context of the representation. Is it protected?

Richard Raysman and Peter Brown

Online Impersonation Continues, With Varying Consequences

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman and Peter Brown describe and analyze some of the most recent online impersonation cases, including those which concern: a police chief's impersonation of a local political dissident, a dispute over a municipal library Internet use policy that led to the creation of an imitation Facebook page, and the use of numerous pseudonyms to circumvent the Terms of Use and advertising policies of that same social networking colossus.

Anita Bernstein

Nine Easy Ways to Breach Your Duty to a Real Estate Client

By Anita Bernstein |

Anita Bernstein writes: Legal malpractice cases have always been hard to win in New York...but when plaintiffs are real estate clients, they fare a bit better. A look at real estate malpractice claims in the Appellate Division over the last five years reveals nine patterns that are worth knowing about.

Ilene Sherwyn Cooper

Discovery, Will Revocation Issue, Reformation of Trust

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Ilene Sherwyn Cooper reviews decisions addressing the scope of discovery, the revocation of wills, jury demands, and the reformation of trusts.

Michael Hoenig

Ethnicity-Based 'Economic Loss' Testimony Unconstitutional

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes: In a bombshell decision issued on July 30, Eastern District Judge Jack B. Weinstein found that use of "ethnicity-based statistics" to obtain a reduced damage award in calculating future economic loss violates due process and equal protection.

Jonathan Cooper

Demotion May Vitiate Non-Compete, But What of Non-Solicit Clause?

By Jonathan Cooper |

Jonathan Cooper writes: Earlier this year, the First Department went out of its way to state that demoting an employee can, in some circumstances, invalidate that employee's non-compete clause. But the question that the appellate court chose not to answer is probably more telling: Will demoting an employee also invalidate the employee's non-solicit clause?

John P. Furfaro and Risa Salins

Supreme Court Review: Marriage, Health Care, Retirees

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins review rulings pertaining to recognition of same-sex marriage, the validity of health-care subsidies issued by federal marketplaces under the Affordable Care Act, the tests for proving religious discrimination and pregnancy discrimination, and the standards governing claims for retiree benefits arising from collective-bargaining agreements.

John Fellas

Cross-Examination in International Arbitration

By John Fellas |

In his International Arbitration column, John Fellas writes: Because international arbitration often takes a different approach to the submission of evidence and witness testimony than that taken in U.S. litigation, one cannot approach cross-examination in international arbitration as one would in U.S. litigation.

Jason R. Lilien

Nonprofit Revitalization Act One Year Later

By Jason R. Lilien |

Jason R. Lilien writes: One year has passed since the Nonprofit Revitalization Act, the most sweeping reform of New York's nonprofit laws in decades, took effect, and the early indicators are positive. But the real test is still to come: Will the cultural change within boardrooms that the new law was intended to prompt be realized?

Michael J. Hutter

Recent Confrontation Clause Testimonial Decisions

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter reviews two recent decisions, one a major step forward by the U.S. Supreme Court in clarifying the meaning of "testimonial" under the Confrontation Clause, the other showing the strong commitment by the state Court of Appeals to policing prosecutorial efforts to evade the Crawford rule.

Christopher Dunn

Countering Police Assaults: Self-Defense, Rescue and Videotape

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn writes: As important and necessary as reforms of police practices and criminal justice processes are, it also is important to consider the options available to civilians who are on the scene and witnessing police action. Many may be surprised by the state of the law governing the rights of civilians to resist police action to protect themselves, to physically intervene in police action to assist a person being assaulted by officers, and to videotape police action.

Victoria A. Graffeo

Seeking Court of Appeals Review in Civil Cases

By Victoria A. Graffeo |

Victoria A. Graffeo writes: To improve the odds of achieving a leave grant, an attorney must grasp more than the technical procedures governing appeals in Part 500 of the Rules of the Court of Appeals; it is critical to understand how issues can best be framed to trigger the court's "leaveworthy" concerns.

Jerry H. Goldfeder and Myrna Pérez

State Legislatures Adjourning, But Voting Rights Still Center Stage

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law, Jerry H. Goldfeder and Myrna Pérez write: Voting rights advocates have been carefully watching state legislatures since 2010—when restrictive voting laws were widely introduced across the country. The 2015 legislative session has been interesting for both what has happened and what has not.

Barry Temkin and Kate DiGeronimo

Effects of New Standards for Company Plan Fiduciaries

By Barry Temkin and Kate DiGeronimo |

Barry Temkin and Kate DiGeronimo write: In a 2014 decision, the U.S. Supreme Court held that fiduciaries of plans that hold publicly traded company stock are subject to the same duty of prudence that applies to fiduciaries in general under ERISA. In doing so, the Supreme Court effectively rejected decades of law applied by nearly all the circuit courts of appeals affording fiduciaries of company stock plans a special "presumption of prudence" not available to the fiduciaries of other varieties of ERISA plans.

Robert J. Anello and Richard F. Albert

Obstruction? Barry Bonds Prosecutors Strike Out in the Ninth

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Robert J. Anello and Richard F. Albert write: For white-collar criminal practitioners, the Barry Bonds case presents another example of how the breadth of the federal obstruction laws makes them a nearly irresistible choice for prosecutors, and of the seemingly endless struggle of the courts to define appropriate limits on their reach.

Thomas A. Moore and Matthew Gaier

Recent Decision on Foreign Objects

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier write that although New York does apply a limited discovery rule when a foreign object is left in a patient's body, it has been construed so narrowly as to render it inapplicable to a broad variety of objects left in patients during surgical and other invasive procedures. However, in a recent decision the Court of Appeals has signaled that the restrictions imposed on this ameliorative rule have their limits.

H. Christopher Boehning and Daniel J. Toal

Cost Shifting Warranted for Production of Inaccessible ESI

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss a recent decision that employed cost shifting when the requesting party demanded production of ESI stored on backup tapes and a reformatted production of previously produced active email files.

Joshua E. Kimerling

Court Holds Claims of Forged Deeds Not Subject to Time Limits

By Joshua E. Kimerling |

Joshua E. Kimerling writes: Although the CPLR sets forth an applicable statute of limitations period for virtually all causes of action, the Court of Appeals has recently held that one particular, and not altogether uncommon, cause of action is not subject to any limitations period.

Barry Kamins

Limits Set on Use of Grand Jury Testimony at Trial

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins writes that for the first time in 20 years, since the Court of Appeals first established that a witness' grand jury testimony may be used as evidence-in-chief at trial when the defendant's misconduct has made that witness unavailable to testify, the court has rejected a prosecutor's attempt to introduce grand jury testimony at trial.

Thomas E. Chase

When Are Interns Employees?

By Thomas E. Chase |

Thomas E. Chase writes that media coverage characterized the recent Second Circuit decision on whether Fox's unpaid interns were "employees" as a decisive victory for employers. The careful practitioner, however, should not believe the hype. The circuit held that the lower court applied the wrong test for determining whether interns are exempt from the FLSA and remanded the case to be decided under a different—but not necessarily more lenient—test.

Adam R. Shaw

Internal Investigation Not Protected From Discovery

By Adam R. Shaw |

In his Northern District Roundup, Adam R. Shaw discusses decisions ordering disclosure of internal investigation documents and communications of a public relations firm; dismissing an appeal of a bankruptcy order because the notice of appeal was untimely; and dismissing a case because of bad service of process.

Nicholas M. De Feis and Philip C. Patterson

'Unlimited Operations': A New Financial Cyber Threat

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

In their International Criminal Law and Enforcement column, Nicholas M. De Feis and Philip C. Patterson discuss "Unlimited Operations," where hackers provide information on bank accounts they have increased the balances of to "cashing crews," who then make millions of withdrawals; and the case against a hacker charged with orchestrating a cyber attack that allegedly succeeded in stealing $55 million from a number of banks.

Roger Cohen and Ellen Moskowitz

Attorney General Issues Guidance on State Not-for-Profit Law

By Roger Cohen and Ellen Moskowitz |

Roger Cohen and Ellen Moskowitz review new guidance concerning provisions of the Nonprofit Revitalization Act of 2013 that require not-for-profit corporations to maintain conflict-of-interest and whistleblower policies and establish minimum requirements for such policies.

Sue C. Jacobs

Continuous Representation Doctrine in a Legal Malpractice Action

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs analyzes recent Appellate Division decisions that addressed whether a law firm's alleged continuous representation tolled the statute of limitations in three different high-stakes actions.

Ilann Margalit Maazel

Police Use of False Statements

By Ilann M. Maazel |

In his Civil Rights Litigation column, Ilann M. Maazel writes: A police officer coerces a witness to make a false statement; a prosecutor independently decides to present that witness at trial; the defendant is criminally convicted. Is the officer liable under 42 U.S.C. §1983 for violation of the Due Process Clause?

Thomas A. Dickerson and Jeffrey A. Cohen

Taxis and Ride-Sharing: Meeting New York City's Car Service Needs

By Thomas A. Dickerson and Jeffrey A. Cohen |

Thomas A. Dickerson and Jeffrey A. Cohen discuss the Court of Appeals' recent decision on New York City's Taxi of Tomorrow plan, which would require cabs being retired to be replaced with a specific Nissan model, along with the city's response to the growth of car-sharing companies Uber and Lyft.

Thomas E.L. Dewey

Why Attorneys Must Take Negotiation Emails Seriously

By Thomas E.L. Dewey |

In his Settlement and Compromise column, Thomas E.L. Dewey reviews a recent decision that shows how settlement agreements, like all contracts, can be formed through relatively informal communications, and how such communications can sometimes bind a litigant to settlement terms that they come to regret or perhaps never even wanted.

Timothy G. Nelson

Mining Outer Space: Who Owns the Asteroids?

By Timothy G. Nelson |

Timothy G. Nelson writes: Over the last two years, U.S. business and policy makers have focused afresh on the commercial possibilities of asteroids—the solar system's minor planetary objects, some of which have large deposits of potentially valuable substances. In the last few years, some private operators have announced plans to mine them commercially, a concept that, until now, has been exclusively the realm of science fiction.

Robert S. Kelner and Gail S. Kelner

The Municipal Duty to Provide Safe Roadways

By Robert S. Kelner and Gail S. Kelner |

In their Trial Practice column, Robert S. Kelner and Gail S. Kelner review several of the most common legal issues that arise in personal injury cases alleging defective or unsafe roadways.

Francis J. Serbaroli

Another Hospital Loses Its Property Tax Exemption

By Francis J. Serbaroli |

In his Health Law column, Francis J. Serbaroli discusses a recent New Jersey Tax Court decision that upheld the revocation of not-for-profit Morristown Memorial Hospital's property tax exemption. The court found that most of the hospital's campus was being used for generating revenues for for-profit physicians, and didn't qualify for continued exemption. The decision should be cause for concern among not-for-profit hospitals in New Jersey and elsewhere.

Jeremy M. Creelan

Exploring Impact of Rejected Offer of Judgment in Class Actions

By Jeremy M. Creelan |

Jeremy M. Creelan discusses an issue the U.S. Supreme Court will consider next term—whether class-action defendants can end the cases against them simply by offering complete relief to individually named plaintiffs and offering nothing to the classes those plaintiffs purport to represent.

Ken Strutin

Cognitive Rights for the Neighbors of Humanity

By Ken Strutin |

In his Criminal Law column, Ken Strutin writes: Homo sapien culture is the product of a million years in the trenches. In its wake have arisen animal rights and environmental laws protecting nonhuman species and the natural world. And despite their aspirations the intent behind these laws has yet to be fully realized.

Howard Epstein and Theodore Keyes

Cyber-Risk Insurance Update

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Howard B. Epstein and Theodore A. Keyes write: Over the last few years, cyber-risk insurance products have evolved so that coverage is now available for cyber-risk exposures related to third-party claims as well as for first-party loss. In addition, some policies provide insureds with access to help responding to a data breach crisis or assistance with preventative risk management and loss-control activities.

Sidney Kess

Tax Ramifications of Recent Supreme Court Decisions

By Sidney Kess |

In his Tax Tips column, Sidney Kess discusses the premium tax credit for individuals purchasing health coverage from a marketplace who meet certain income criteria, and state income and death taxes for same-sex couples who are now allowed to marry.

Steven Cash and Robert Appleton

Making a Pitch: Whether to Report Matters to Law Enforcement

By Steven Cash and Robert Appleton |

Steven Cash and Robert Appleton write: When a long-time client presents a matter in which he or she is the victim of, or witness to, a crime, such as if an employee has stolen money, a forgery is discovered, or computers or data have been hacked or taken, the question of whether or not to take the matter to law enforcement can pose a dilemma.

Sharon M. Porcellio

Disqualification Motion; Discovery Dispute Resolved by Compromise

By Sharon M. Porcellio |

In her Western District Roundup, Sharon M. Porcellio reviews a decision that refused to disqualify counsel that the movant argued was representing it in state court but opposing it in related federal court actions, since in the state action counsel was representing the assignee and real party in interest, not the movant, and another decision on 11th-hour request to extend a discovery deadline.

Arthur J. Ciampi

Drafting Effective Dispute Resolution Clauses

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi writes: Given that partnership agreements provide for maximum flexibility, which permit partners to craft virtually any economic relationship they want, the dispute resolution clause of a law firm agreement can be configured with little restraint and should be thought of and used as a tool to make the resolution process efficient and fair.

Kevin Schlosser

Reading Restrictive Covenant Tea Leaves From State's High Court

By Kevin Schlosser |

Kevin Schlosser analyzes a decision in which the Court of Appeals addressed whether the New York courts should enforce a choice of law provision in an employment contract that applied Florida substantive law, which differs markedly from New York law; and whether to allow partial enforcement of a restrictive covenant by "blue penciling" the agreement, narrowing its scope to a permissible extent.

Charlotte A. Biblow

DEC Begins to Prepare Draft Regulation on Sea-Level Rise

By Charlotte A. Biblow |

In her State Environmental Regulation column, Charlotte A. Biblow writes: Scientists project that by the start of the next century, sea levels along New York's coastlines and estuaries likely will be 18 to 50 inches higher than they presently are. Even the lower range of these projections is alarming as New York's coastal marine counties are home to more than half of the state's citizens.

Lawrence W. Newman and David Zaslowsky

A BIT of Confusion in Enforcing Investment Treaty Awards

By Lawrence W. Newman and David Zaslowsky |

In their International Dispute Resolution column, Lawrence W. Newman and David Zaslowsky review a case that shows the very different ways two courts handled requests to enforce the exact same arbitration award.

Richard S. Fries and Todd B. Marcus

Appellate Decision Unwinds Foreclosure Purchase

By Richard S. Fries and Todd B. Marcus |

Richard S. Fries and Todd B. Marcus write: It is well-settled that a purchaser of real property takes title subject to the outcome of a lawsuit of which that purchaser has actual knowledge. It is equally well-settled that this rule does not apply to appeals. Until now.

Martin Flumenbaum and Brad S. Karp

Primary Beneficiary Test May Impede Intern Class Actions

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss the court's consideration of the appropriate standard for determining when an intern qualifies as an employee under the Fair Labor Standards Act, and therefore must be compensated for his work.

Jay Goldberg

Second Circuit Standard of Review on Suppression Motions Varies

By Jay Goldberg |

Jay Goldberg examines the way the Second Circuit has handled the critical issue of the standard of review in appeals from decisions and orders of the district courts with respect to suppression motions. Is the standard of review dependent on the particular panel that one draws? That seems to be the result, but this contravenes the need for consistency on a matter of such importance.

Robert C. Scheinfeld

Federal Circuit Embraces Patent Trial and Appeal Board Rulings

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld writes that the first appeals from the relatively new Patent Trial and Appeal Board under the Leahy-Smith America Invents Act illuminate the Federal Circuit's general respect for the PTAB and Congress' "carefully crafted" balance between its desire for prompt and efficient review at the Patent and Trademark Office, against the necessary recognition of the traditional role of judicial review of agency action.

Stephen M. Kramarsky

Fee Shifting in Copyright Cases: A Close Look at 'Beastie Boys'

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky discusses a recent S.D.N.Y. opinion on attorney fees after the trial between the Beastie Boys and beverage producer Monster Energy Company, which sheds some valuable light on how courts can decide complex fee questions.

Abby Tolchinsky and Ellie Wertheim

Parenting Arrangements for Same-Sex Couples

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim write: While there has been a seismic shift in the legal definition of marriage, there has not yet followed a full understanding of how courts will address the legal definition of parent in same-sex families. In other words, the biological imperative coexists now in tension with the legal.

Lee Rosenberg

Extending Matrimonial Case Confidentiality to Related Proceedings

By Lee Rosenberg |

Lee Rosenberg writes: There is a marked difference between the public policy need to have our courts remain within the public domain and using the conduit of a civil filing to provide juicy fodder for the court of public opinion or leverage in a divorce case. Even where the use of the civil filing is legitimate, the need to protect the confidentiality of the file remains.

Thomas F. Gleason

The Future of Hard Copy Court Records and E-Filing

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason writes: In this second half of the second decade of this millennium, consider the implications of two CPLR proposals awaiting action on the governor's desk. The first would broadly expand electronic filing of court papers, and the second would allow hard copy service of interlocutory papers by mail from other states within the United States.

David L. Yohai and Theodore E. Tsekerides

In a Cord-Cutting World, Only the Strong Contracts Survive

By David L. Yohai and Theodore E. Tsekerides |

David L. Yohai and Theodore E. Tsekerides write that a steady stream of customers have cut the cable cord in favor of accessing content from alternative sources. To avoid being left on the "cutting" room floor, certain cable industry leaders are pursuing initiatives that stand to significantly alter the longstanding relationship between programmers and distributors. But existing contracts may limit the type of changes that either party may make, and when.

John Rapisardi and Joseph Zujkowski

Structured Dismissals of Chapter 11 Cases

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski analyze a recent case where the Third Circuit issued the first federal circuit court of appeals opinion recognizing the ability of bankruptcy courts to conclude a Chapter 11 case through a structured dismissal.

E. Leo Milonas and Andrew C. Smith

Spring's Leading Decisions Offer Insights and Analysis

By E. Leo Milonas and Andrew C. Smith |

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith discuss recent decisions involving New York courts' long-arm jurisdiction in disputes brought against foreign defendants under a contract governed by foreign law, the three-year moratorium on tax certiorari proceedings, voting rights of part-time town residents, judicial retirement and more.

Jeff S. Korek and Abraham Z. Melamed

Unconventional Lawyering Leading to Conventional Credibility

By Jeff S. Korek and Abraham Z. Melamed |

Jeff S. Korek and Abraham Z. Melamed write: Oftentimes lawyers become so entrenched in doing the orthodox that they end up losing out on great opportunities to strengthen credibility with a jury. What's more, attorneys can get caught up in the vision of fighting tooth and nail, line by line, and as a result miss out on important perspectives that can help their case simply because they refuse to think outside the box.

Michael D. Patrick

The H-1B Program—Benefits, Protections, Enforcement

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick writes: While any immigration program is vulnerable to isolated abuses, the H-1B program has proven essential to continued U.S. competitiveness in today's global economy and marketplace for best-in-class talent. Preserving the benefits of the H-1B program requires a discussion of how best to improve the system, not destroy it all together.

Jeremy H. Temkin

Offshore Accounts: The Beat Goes On

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin discusses the Offshore Voluntary Disclosure Program, which remains the best opportunity for taxpayers who intentionally evaded their tax and reporting obligations, and an alternate for taxpayers whose prior non-compliance was unintentional that can have lower financial penalties but does not offer the OVDP's protection from criminal prosecution.

John C. Coffee Jr.

News From California: Ninth Circuit and SEC Challenge New York

By John C. Coffee Jr. |

In his Corporate Securities column, John C. Coffee Jr. discusses two new developments emanating from California: (1) the Ninth Circuit has handed down a significant decision on insider trading that disagrees with a Second Circuit decision, and (2) the SEC's Regional Office in California has issued Wells Notices to attorneys, taking the position that an attorney representing clients in immigration matters may be acting as a broker under the federal securities laws.

Steven J. Eisman and Hilary F. Simon

State Legislature Passes Landmark Bill on Spousal Support

By Steven J. Eisman and Hilary F. Simon |

Steven J. Eisman and Hilary F. Simon write that among the most anticipated aspects of a bill that will bring extensive revisions to the Domestic Relations Law is the elimination of enhanced earning capacity as a marital asset—which means that courts are no longer required to determine the lifetime value of a license or professional degree earned during the marriage.

John L.A. Lyddane and Barbara D. Goldberg

Causation and Recovery in 'Loss of Chance' Cases

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

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that it is often claimed that, rather than "causing" a plaintiff to develop the particular condition that resulted in injury, a defendant physician failed to diagnose a condition or institute treatment at an earlier time, depriving the plaintiff of the opportunity for a better outcome. Confusion persists as to the plaintiff's burden of proof and the appropriate measure of damages in such cases.

Roy L. Reardon and William T. Russell Jr.

Injuries by Household Pets; Choice-of-Law Provision

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

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr. discuss cases in which the court declined to apply ordinary negligence principles to claims involving injuries caused by household pets, determined that the statute of limitations in contractual securities "repurchase" claims starts running at the time of the contract, and clarified the circumstances in which a court may apply New York law despite a contrary contractual choice of law provision.

Robert L. Schonfeld

U.S. Supreme Court Upholds 'Disparate Impact' Theory in Housing

By Robert L. Schonfeld |

Robert L. Schonfeld writes: Even though the recent decision in 'Texas Department of Housing and Community Affairs v. Inclusive Communities' did not directly change the law in the Second Circuit or the other circuits that had recognized the "disparate impact" theory, the Supreme Court decision is significant because it did lay down guidelines for what the court would deem to be a proper use of the "disparate impact" theory.

Shepard Goldfein and James A. Keyte

U.S. Supreme Court to Address Class Certification—Again

By Shepard Goldfein and James Keyte |

In their Antitrust Trade and Practice column, Shepard Goldfein and James Keyte review the case brought by employees at a Tyson Foods meat-processing facility and the Supreme Court's upcoming review of the use of statistical averages in liability and damages calculations as well as the inclusion of potentially uninjured individuals within a class.

Richard Raysman and Peter Brown

Imposing Liability Under DMCA Counter-Notification Provision

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman and Peter Brown describe and analyze two cases that confronted questions surrounding misrepresenting takedown notices and conclude with some brief thoughts on the future of §512(f) in light of its forthcoming spotlight in one of the federal appellate courts.

Martin A. Schwartzberg

Spoliation Issues When Representing the Design Professional

By Martin A. Schwartzberg |

Martin A. Schwartzberg writes: In the representation of architects and engineers, it has become increasingly important to be aware of the need to preserve all types of evidence that may eventually be required in order to properly defend a claim or potential claim. Beyond the obvious need to preserve the entire project file, the client may have evidence such as boring samples; defective construction materials removed from a project site; or photographs taken at a site visit which depicted a temporary condition that no longer exists.

Michael Hoenig

When Jurors Learn About Settlement Offers

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig writes that finding constitutional implications when jurors receive extrinsic prejudicial information within a criminal case context may not be so surprising. Is there also a constitutional dimension, however, when the jury considers extraneous prejudicial information in a civil case? A recent federal appellate decision suggests that the answer is "yes."

C. Raymond Radigan and Jennifer F. Hillman

Clarifying When and Whether Divorce Revokes Bequests

By C. Raymond Radigan and Jennifer F. Hillman |

C. Raymond Radigan and Jennifer F. Hillman write: Marriage is on everyone's mind with the recent ruling of the Supreme Court concerning same-sex marriage. Yet, two decisions in the past month from the surrogate's court have explored the other side of marriage—divorce and its potential revocatory effect on an estate plan.

Ronald G. Blum and Arunabha Bhoumik

Parallel Proceedings in Southern District: Are They 'Related'?

By Ronald G. Blum and Arunabha Bhoumik |

Ronald G. Blum and Arunabha Bhoumik write: More and more, defendants find themselves in multi-front fights: Federal prosecutors bring criminal charges, while another agency brings a related civil proceeding. The factual issues in these cases are largely identical. Legal issues overlap. But curiously, because one case is labeled "civil" and the other "criminal," they are not deemed "related" under Southern District rules.