Expert Columns

Expert Analysis

Attorney Fees, Lost Profits, Products Liability

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., partners at Simpson Thacher & Bartlett, discuss a matter in which the court adopted the approach used by federal courts in determining the proper measure of attorney fees in contingency fee cases where the client is also awarded statutory attorney fees, along with other recent decisions.

Time to Revise Employment Restrictive Covenants

By Kevin Schlosser |

Meyer, Suozzi, English & Klein partner Kevin Schlosser discusses a recent Fourth Department decision that provides a font of information regarding the drafting and implementation of employment restrictive covenants. In fact, he writes, the decision stands as a stark warning to employers—rethink and revise your restrictive covenant agreements and procedures or your agreements may not be worth the paper they are written on.

Obtaining Evidence in England for U.S. Proceedings

By James Drake and David Spears |

James Drake, a barrister and examiner in London, and David Spears, a partner at Spears & Imes, write: A lawyer in legal proceedings in the United States can readily compel the production of evidence in England for use in U.S. proceedings, including both documents and sworn testimony. However, in keeping with the fact that the English rules governing civil litigation do not allow for U.S.-style pretrial discovery, there are important limitations on what a U.S. lawyer can seek and obtain in England.

A Lawyer's Privacy Interest—Real or Illusory?

By Edward M. Spiro and Judith L. Mogul |

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul, principals of Morvillo Abramowitz Grand Iason & Anello, write that a recent decision by Judge Paul G. Gardephe rejects the notion that the "law office" protection from disclosure extends to an attorney's witness interview notes and serves as a reminder that the zone of protection for a lawyer's own records carved out by 'Sage Realty' is a narrow one.

First Amendment Protects Search Engine Results

By Shari Claire Lewis |

In her Internet Issues/Social Media column, Shari Claire Lewis, a partner at Rivkin Radler, writes about the decision of the U.S. District Court for the Southern District of New York in 'Zhang v.', which is particularly noteworthy in that the First Amendment right the court protected was Baidu's right to censure the free political speech of others.

Brownfield Cleanup Act Reform: The Saga Continues

By David J. Freeman and Lawrence Schnapf |

David J. Freeman, a director at Gibbons, and Lawrence Schnapf, founder of Schnapf LLC, review the differences among the governor's, Senate's and Assembly's proposals on Brownfield Cleanup Act reform, which did not survive the crush of last-minute negotiations over New York State's 2014-15 budget, and makes suggestions as to how these differences might be resolved.

Ruling on Mold Clarifies 'Reliability' Needed From Experts

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig, a member of Herzfeld & Rubin, writes: Just two weeks ago, the New York Court of Appeals issued its key decision in 'Cornell v. 360 W. 51st St. Realty,' yet again offering detailed guidance to bench and bar on a variety of expert reliability issues. Although the court's approach generally tracks 'Parker v. Mobil Oil,' there are additional lessons of note.

Motion Practice in the Surrogate's Court

By Ilene Sherwyn Cooper |

In her Trusts and Estates Update, Farrell Fritz partner Ilene Sherwyn Cooper writes: The past several months have seen a variety of motions being made in the Surrogate's Court seeking, among other things, summary judgment, dismissal, injunctive relief and discovery. While motion practice often heightens the hostility between the parties, it can also serve to streamline and eliminate issues provoking litigation.

Decanting and Compulsory Accounting Under New York Law

By J. Dinsmore Adams, Jr. and Michael S. Schwartz |

J. Dinsmore Adams, Jr. and Michael S. Schwartz of Curtis, Mallet-Prevost, Colt & Mosle, write: While decanting is a powerful tool that has become increasingly popular in recent years among estate planners, the use of this device implicates other legal issues that must be considered.

Recent Important Decisions Involving Insurance

By Sue C. Jacobs |

In her Professional Liability Insurance column, Sue C. Jacobs, a member of Goodman & Jacobs, reviews decisions in which the Court of Appeals addressed the timing of the insurer's disclaimer based on the insured's failure to cooperate, held that in order for a tenant to recover damages from mold in an apartment, the tenant must establish both the specific and general causes of the mold, and more.

The Missing Witness Charge in the Medical Malpractice Trial

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

In their Medical Malpractice Defense column, Martin Clearwater & Bell's John L.A. Lyddane and Barbara D. Goldberg write: Although the "missing witness charge" is frequently discussed and requested in cases where a party's examining physician is not produced at trial, the principle has a much broader application given the myriad factual issues presented by a medical malpractice case.

Judicial Estoppel and Claims Not Disclosed in Bankruptcy

By Adam R. Shaw |

In his Northern District Roundup, Boies, Schiller & Flexner partner Adam R. Shaw discusses two companion opinions by District Judge Mae A. D'Agostino addressing the legal implications caused by an altered release and an opinion by Senior District Judge Thomas J. McAvoy holding that the doctrine of judicial estoppel precluded a party from pursuing litigation claims that he failed to disclose in a prior bankruptcy.

Material Misrepresentation and Voiding Policies ab Initio

By David M. Barshay |

In his No-Fault Insurance Law Wrap-Up, David M. Barshay, a member of Baker Sanders, reviews two recent decisions concerning the retroactive cancellation of an insurance policy based on material misrepresentation in the procurement of the policy, and a third involving the Independent Medical Examination no-show defense.

Are Yellowstone Waivers Enforceable?

By Jeffrey Turkel and Joshua Kopelowitz |

Rosenberg & Estis partners Jeffrey Turkel and Joshua Kopelowitz write that with no appellate authority on whether a waiver in a commercial lease of a tenant's right to seek a Yellowstone injunction is enforceable, lower courts have taken three different approaches: denial of Yellowstone relief on other grounds; refusal to enforce the waiver, on public policy or other grounds; and enforcement of the waiver.

Disability Employment Law: Good-Faith Interactive Process

By Joseph D. Nohavicka |

Joseph D. Nohavicka, a partner in Pardalis & Nohavicka, analyzes a recent decision in which the Court of Appeals ruled that an employer's failure to consider the reasonableness of a proposed accommodation for a generally qualified employee's disability via a good-faith interactive process precludes the employer from obtaining summary judgment.

Back to 'Basic'? Maybe Not

By Sarah S. Gold and Richard L. Spinogatti |

In their Corporate and Securities Litigation column, Sarah S. Gold and Richard L. Spinogatti of Proskauer Rose discuss the arguments before the Supreme Court in 'Halliburton v. Erica P. John Fund,' market efficiency, the fraud-on-the-market theory and the presumption of reliance at the class certification stage.

What Can Go Wrong in Trying to Protect a Trade Secret

By Milton Springut |

Milton Springut, a partner at Springut Law, analyzes a recent Southern District decision granting summary judgment in favor of the defendant in a trade secret case that highlights the difficulty of maintaining and enforcing trade secrets.

'Crime Fraud' and the Lawyer's Duty

By Joel Cohen |

In his Ethics and Criminal Practice column, Joel Cohen, of counsel at Stroock & Stroock & Lavan, writes that it is entirely appropriate for a client to approach a lawyer seeking to obtain an (ostensibly) expert opinion as to whether the conduct that he might wish to pursue is, in fact, legal or illegal. But when the client pursues that conduct despite the lawyer's warning not to, and the attorney is asked to testify, what is the ethical thing to do?

Supreme Court Takes Case on State Action Immunity Doctrine

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Skadden, Arps, Slate, Meagher & Flom partners Shepard Goldfein and James A. Keyte write: On March 3, 2014, the Supreme Court granted certiorari in 'North Carolina State Board of Dental Examiners v. FTC,' marking the second time in two years that the Supreme Court has considered the parameters of the state action doctrine, following nearly two decades of silence on the subject.

Do Claims Resulting From a Data Breach Have Any Success in Court?

By Richard Raysman and Peter Brown |

In their Privacy Matters column, Richard Raysman, a partner at Holland & Knight, and Peter Brown, the principal at Peter Brown & Associates, discuss several pressing issues in the rapidly evolving area of law responsive to data breaches, including: litigating class action claims following a breach of consumer personal data; instances of settlement of data breach claims; and particularized data breach claims that arise after an involuntary divulgence of medical records.

Strategy on Extreme Emotional Disturbance

By Barry Kamins |

In his Criminal Law and Procedure column, Barry Kamins, a Supreme Court Justice and administrator for the New York City Criminal Court, analyzes a recent Court of Appeals case holding that should a prosecutor choose to offer evidence sufficient to warrant charging a jury on the defense of extreme emotional disturbance, the defendant can obtain a charge from the court without having to present his own evidence and without having to file statutory notice pursuant to CPL 250.10.

Establishing Employers' Ownership in Social Media

By Jeffrey S. Klein and Nicholas J. Pappas |

In their Employment Law column, Weil, Gotshal & Manges partners Jeffrey S. Klein and Nicholas J. Pappas write: Employers may correctly believe that social media marketing is more effective when projected through a human rather than corporate persona, and may thus encourage employees personally to connect with other users. But some have then discovered too late that they took insufficient precautions in establishing ownership of the social media.

'K2-II's' Unsatisfactory Double Reverse

By Michael S. Gollub and Steven M. Ziolkowski |

Michael S. Gollub, a member of Marshall, Conway & Bradley, and Steven M. Ziolkowski, an associate at the firm, write that although the Court of Appeals admitted it dropped the ball in K2-I when it reversed itself in K2-II, it missed an opportunity to expound on the relationship between the pleadings and underlying judgment on the one hand, and the duty to indemnify on the other hand.

Opening Doors on a Fair Housing Decision

By Robert L. Schonfeld |

Moritt Hock & Hamroff's Robert L. Schonfeld analyzes the recent Eastern District decision in 'MHANY Management v. Incorporated Village of Garden City,' which presents a classic example as to how a municipality can run afoul of the federal Fair Housing Act even if none of its officers or employees directly express animus toward members of a protected class or take an action directly against a member of such a class.

Government Focus on Fair Labor Standards

By John P. Furfaro and Risa M. Salins |

In their Labor Relations column, John P. Furfaro and Risa M. Salins of Skadden, Arps, Slate, Meagher & Flom, write that with more wage and hour scrutiny by the Labor Department likely after President Obama's signing of a Presidential Memorandum aimed at revamping overtime eligibility rules, it is a good time to review protections afforded to employees under the FLSA, penalties for noncompliance and the joint employer, hot goods and successor theories of liability under the law.

Should Disqualification Lead to Discipline?

By Hal R. Lieberman |

In his Attorney Discipline column, Hal R. Lieberman, a partner at Hinshaw & Culbertson, writes: In New York and elsewhere, attorney discipline has been imposed rarely, and seemingly randomly, after lawyers or their firms have been disqualified due to a conflict of interest or for other infractions. What factors should trigger a subsequent disciplinary investigation?

Parody, Jerry Falwell and Dead Sea Scrolls Debate

By Christopher Dunn |

In his Civil Rights and Civil Liberties column, Christopher Dunn, the associate legal director of the New York Civil Liberties Union, writes: Parody has been a staple of political discourse from time immemorial. At its best, it can add an invaluable dimension to debate on matters of public concern, albeit at the psychic expense of the parody's target. In modern times, that expense occasionally translates into lawsuits, and the sharper the parody the spicier the legal controversy.

Ethics and Preparing Witnesses for SEC Testimony

By Richard J. Morvillo |

Richard J. Morvillo, a partner at Morvillo, LLP, writes that with the Division of Enforcement of the SEC scrutinizing the practices of defense counsel in preparing witnesses for testimony, a review of relevant ethics rules may be instructive, as well as a discussion of the line between witness preparation and improper coaching.

'Missing Witness' Rule Revisited

By Michael J. Hutter |

In his Evidence column, Michael J. Hutter, a professor at Albany Law School, analyzes the Court of Appeals' decisions in 'Devito v. Feliciano,' which decided an issue involving the noncumulative testimony precondition for the missing witness charge, and 'People v. Thomas,' which addressed that precondition in the context of defense counsel's missing witness argument in summation which was made in the absence of a missing witness charge.

New York Round Up: Campaign Finance and Ballot Issues

By Jerry H. Goldfeder and Myrna Pérez |

In their Government and Election Law column, Jerry H. Goldfeder and Myrna Perez write: New York is home to many election cases. Indeed, it has been estimated that our state courts hear approximately one-half of the country's campaign litigation. The most noteworthy ones involve campaign finance, ballot access and the counting of paper ballots.

Keeping the Peace Among a Business Owner's Children

By Harvey M. Katz |

Harvey M. Katz, a partner at Fox Rothschild, discusses Employee Stock Ownership Plans, and how selling part of a closely held business to such a plan can solve the dilemma of an owner who wishes to leave control of his or her business to a child involved in the company but offer an inheritance equal in value to the uninvolved children.

Text Messages: Coming to a Litigation Near You

By H. Christopher Boehning and Daniel J. Toal |

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison write: Recent, high-profile matters confirm the emerging role of text messages in litigation.

Liability for Negligence by Pharmacies Revisited

By Thomas A. Moore and Matthew Gaier |

In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier of Kramer, Dillof, Livingston & Moore write: The provision of health care has never been the exclusive province of doctors, nurses and hospitals, and in recent decades the number of different professions involved in providing medically related services has seemingly grown almost exponentially. When the providers of these allied health care fields perform their functions in a negligent manner, the ramifications can be as severe as any medical malpractice.

Conscious Avoidance: An Over-Used Doctrine

By Robert J. Anello and Richard F. Albert |

In their White-Collar Crime column, Morvillo Abramowitz Grand Iason & Anello partners Robert J. Anello and Richard F. Albert write: It has become de rigueur for the government to request, and for trial courts to deliver, a conscious avoidance jury instruction in virtually all criminal prosecutions where the element of knowledge is contested. Where no evidence of manifest conduct by the defendant to avoid knowledge is introduced, however, such instruction serves no useful purpose except to threaten to cause confusion and to lessen the government's burden to demonstrate the culpable mental state required by statute.

Catch-22 for Investors: Averaging-Down Held to Preclude Fraud Remedies

By Brian Murray and Lee Albert |

Brian Murray and Lee Albert of Glancy, Binkow & Goldberg write that when an investment loses value, a common strategy is to buy additional shares at a lower price in order to "average down" the blended cost of the stock. Courts have routinely recognized this technique on class certification motions and have held such purchases do not render an investor atypical or inadequate as a class representative, but a recent Southern District decision held otherwise.

Right-of-Publicity Drama Coming to New York?

By Elizabeth McNamara and Samuel M. Bayard |

In their Media Law column, Elizabeth McNamara and Samuel M. Bayard of Davis Wright Tremaine discuss the question: To what extent does the law protect the rights of content creators - writers, filmmakers, musicians, visual artists, photographers, and yes, video-game makers - to draw on real-life individuals and events to create expressive works?

New York's Post-Employment Restrictions Limit Mobility

By Wendi S. Lazar |

In her Employees in the Workplace column, Wendi S. Lazar of Outten & Golden, discusses the prospect of New York adopting California's zero tolerance approach to noncompetes in the technology industry, and writes: It is difficult to overstate the potential economic benefits of such a move—an outright ban on noncompetes in New York could, as it has in California, result in more patenting, more start-ups, and more high-income jobs.

Retirement and the Sale of a Law Practice

By Arthur J. Ciampi |

In his Law Firm Partnership Law column, Arthur J. Ciampi, managing member of Ciampi LLC, writes: Partners in smaller law firms or solo practitioners contemplating retirement from the practice of law do not typically have the established mechanism for the transition of their practice upon retirement as lawyers in larger firms do. As a result, many are simply left to close up shop when they retire, often leaving their career's work behind with no future income to show for their professional life's efforts.

Private Causes of Action: The Determinative Third Prong

By Menachem J. Kastner and Ally Hack |

Cozen O'Connor's Menachem J. Kastner and Ally Hack discuss the current state of the law regarding when a statute gives rise to a private cause of action, endeavoring to simplify the formula to be applied.

'No Consequential Damages' Clause and Lost Profits

By Glen Banks |

In his Contract Law column, Glen Banks, a partner at Norton Rose Fulbright (Fulbright & Jaworski), discusses an opinion in which a sharply divided Court of Appeals ruled this week that a "no consequential damages" clause in a distribution agreement would not bar a distributor from recovering breach of contract damages for the profit it allegedly would have made reselling the product which was the subject of the agreement. The court reversed a unanimous ruling below that the "no consequential damages" clause limited the distributor's recovery to nominal damages.

Can Federal Courts Enjoin Arbitration at FINRA?

By Matthew W. Woodruff |

Matthew W. Woodruff writes: As if following Voltaire, a number of federal judges have now opined that if the power to enjoin arbitration does not exist under the FAA, it is up to the courts to invent one. As explained below, however, except in exceptional circumstances—such as where a court must issue an injunction to protect an existing order or judgment—a federal court does not have a general power to enjoin arbitration.

Governor Proposes Sweeping Changes to Brownfield Program

By Charlotte A. Biblow |

In her State Environmental Regulation column, Farrell Fritz partner Charlotte A. Biblow reviews changes to the state's Brownfield Cleanup Program proposed as part of Governor Cuomo's budget. Among other things, the governor is proposing to extend the program for a decade, limit the availability of certain of the tax credits provided by it, and change the eligibility rules for participating in the program.

Default Affidavits in Summary Nonpayment Proceedings

By Nicholas E. Brusco |

Sole practitioner Nicholas E. Brusco writes: It is self-evident that the summary nonpayment statute is designed for the speedy recovery of rental real property. However, any landlord-tenant practitioner can attest that turn-around time for issuance of a default warrant is measured in weeks rather than days of service of the nonpayment petition.

Laches in Trademark Infringement

By Robert C. Scheinfeld |

In his Patent and Trademark Law column, Robert C. Scheinfeld of Baker Botts writes: Because the consuming public's interest in not being exposed to confusingly similar trademarks is held to be paramount to the interests of the private litigants, an interesting body of laches case law has arisen regarding the circumstances in which a plaintiff's delay in taking action is so inexcusable that it can be barred from all relief.

Statute of Limitations: New Appellate Decisions of Interest

By Ann Pfau |

In her Medical Malpractice Litigation column, Ann Pfau, the Statewide Coordinating Judge of the New York Medical Malpractice Program, discusses two recent decisions, one in which the First Department held that the statute of limitations period for chiropractic malpractice was not the same as that for medical malpractice, and another that puts the bar on notice that an attorney may be liable for legal malpractice if neglect causes a client to miss the statute of limitations­—even if the attorney's death occurs before the statute runs.

New York City Earned Sick Time Act Significantly Expanded

By Ellen R. Storch |

Ellen R. Storch, a partner at Kaufman, Dolowich & Voluck, explains which employers and employees are covered by the expanded version of the Earned Sick Time Act signed into law last week, discusses employer obligations, identifies penalties for violations of the act and points out aspects of it that are unclear.

Court of Appeals' Decisions in 'Auqui' on Collateral Estoppel

By Robert S. Kelner, Gail S. Kelner and Joshua D. Kelner |

In their Trial Practice column, Robert S. Kelner, Gail S. Kelner and Joshua D. Kelner of Kelner & Kelner, write that a careful reading of a recent Court of Appeals decision that unanimously recalled and reversed its original holding from only months earlier, coupled with an understanding of the legal principles applicable to the case, makes clear the rationale for the court's reversal.

Data in Justice: The Manufactories of Error

By Ken Strutin |

In his Criminal Law column, Ken Strutin, director of legal information services at the New York State Defenders Association, writes: In an era when databases have become commonplace extensions of human logic and memory, the data heavy transactions of law enforcement require meaningful case-by-case scrutiny.

Court Voids Hospital Acquisition of Physician Practice

By Francis J. Serbaroli |

In his Health Law column, Greenberg Traurig shareholder Francis J. Serbaroli writes: One of the major components of the Affordable Care Act is the concept of financially rewarding providers for offering better care and penalizing poor quality, unnecessary, or untimely care. To that end, the ACA encourages the development of larger and more integrated health care systems, spurring countless provider combinations around the country. However, a recent federal court decision may have created a significant obstacle to some combinations.

Fair Use Found in Distribution of Investor Conference Call Recording

By Martin Flumenbaum and Brad S. Karp |

In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp of Paul, Weiss, Rifkind, Wharton & Garrison discuss 'Swatch Group Management Services Ltd. v. Bloomberg L.P.,' in which the U.S. Court of Appeals for the Second Circuit examined the scope of copyright protection accorded a sound recording of a public company's conference call with investment analysts.

Extended Whistleblower Protections Create More Liability for Companies

By J. Gregory Lahr and Ryan C. Chapoteau |

J. Gregory Lahr and Ryan C. Chapoteau, partners at Sedgwick, discuss the implications of the U.S. Supreme Court recently expanding the whistleblower anti-retaliation protections of the Sarbanes-Oxley Act of 2002 to include employees of privately held contractors who perform work for public companies.

Congress Weighs In on Offshore Enforcement

By Jeremy H. Temkin |

In his Tax Litigation Issues column, Jeremy H. Temkin of Morvillo Abramowitz Grand Iason & Anello, writes: In a highly publicized report and subsequent hearings, the U.S. Senate Permanent Subcommittee on Investigations recently accused the IRS and the Justice Department of not adequately investigating or prosecuting offshore accountholders and foreign banks.

Paper Terrorism—Remedies for Victims of Abusive UCC Filings

By Sandra Stern |

Sandra Stern of Nordquist & Stern and a member of the New York delegation to the Uniform Law Commission, writes about an emerging problem for judges, public officials, lawyers representing criminal defendants, and now, it appears, lawyers in general. Should a person be concerned if (s)he discovers that an abusive filing has been made? What steps can be taken to address it so that the filing will not be a blot on the creditworthiness of the victim?

Federal Jurisdiction and the Aviation Case

By Steven R. Pounian and Justin T. Green |

In their Aviation Law column, Steven R. Pounian and Justin T. Green, partners with Kreindler & Kreindler, reviews a series of aviation cases where the issue of removal from the state court chosen by the plaintiff was recently litigated.

Executive Compensation Under Dodd-Frank: an Update

By Joseph E. Bachelder III |

In his Executive Compensation column, Joseph E. Bachelder of McCarter & English summarizes the current status of regulation projects under Dodd-Frank Sections 951 through 957, covering executive compensation.

Home Sweet Home and General Jurisdiction

By Lawrence W. Newman and David Zaslowsky |

In their International Litigation column, Lawrence W. Newman and David Zaslowsky of Baker & McKenzie discuss jurisdiction of foreign corporations, explaining how the Supreme Court, in 'Daimler v. Bauman', recently undertook separating the standards for specific and general jurisdiction, giving prominence to a separate standard for general jurisdiction—the "at home" test.

Increased Government Scrutiny Confronts Employers

By Michael D. Patrick |

In his Immigration Law column, Michael D. Patrick of Fragomen, Del Rey, Bernsen & Loewy, discusses the new trend of government agencies conducting audits and reviews of approved applications to ensure employers are complying with the rules and regulations applicable to the visa category.

Grappling With 'Personal Benefit' Question in Insider Trading Law

By George A. Borden and John S. Williams |

George A. Borden and John S. Williams, partners at Williams & Connolly write: On February 19, a U.S. Court of Appeals for the Second Circuit panel passed on an opportunity to address an issue in insider trading law on which two of the Southern District's most prominent judges have reached opposite conclusions. The issue is whether a tippee who trades on inside information must know that the insider who tipped the information received a personal benefit for doing so.

Second Circuit to Decide Challenges Over Unpaid Interns

By Jeffrey Pollack |

Jeffrey Pollack, a partner at Mintz & Gold, updates readers about the law regarding the use of unpaid interns under the Fair Labor Standards Act and New York Labor Law in light of decisions in 'Glatt v. Fox Searchlight Pictures' and 'Wang v. Hearst'.

Confessions and Police Deception; Rare Reversal in 'K2'

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

In their New York Court of Appeals Roundup, Roy L. Reardon and William T. Russell Jr., discuss a criminal matter in which the Court of Appeals ruled that a confession obtained as a result of police deception of the defendant was inadmissible. They also address two insurance cases, one of which represents a rare reversal by the court on reargument of a decision that it rendered last year.

Changing Face of Arbitration: The Simple Becomes Complex

By Rupert M. Barkoff |

In his Franchising column, Rupert M. Barkoff of Kilpatrick Townsend & Stockton writes: With the advent of 'Khan' and 'Leegin', the advice previously given by lawyers on these subjects has been stood on its head. When franchisor clients ask whether they can require their franchisees not to charge more than X for their goods or services, our advice before was a clear "no." Now, that advice is: "perhaps."

'Daimler' Mostly Resolves New York's 'Separate Entity' Dispute

By Brian Rosner and Natalie A. Napierala |

Brian Rosner and Natalie A. Napierala, shareholders of Carlton Fields Jorden Burt, write: The lower federal and state courts disagree on the meaning of 'Koehler'. Faced with conflicting applications of New York state law, and unclear as to the correct rule, the U.S. Court of Appeals for the Second Circuit, in 'Motorola Credit v. Standard Chartered Bank', has certified again to the New York Court of Appeals the issue of the extraterritorial reach of the New York state garnishment statute.

Court Examines Lower Bounds of Trade Secret Protection

By Stephen M. Kramarsky |

In his Intellectual Property column, Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, writes: The court in 'Big Vision' held that plaintiff had failed to adequately protect its purportedly secret industrial process and in the process provided an excellent road map of the potential difficulties awaiting any New York trade secret plaintiff.

Federal Reserve Finalizes Non-U.S. Bank Prudential Standards

By Kathleen A. Scott |

In her International Banking column, Kathleen A. Scott of Norton Rose Fulbright provides an overview of the final prudential standards regulations approved by the Federal Reserve, and their impact on non-U.S. banks' operations in the United States.

Seeking E-Disclosure From Third Parties

By Thomas F. Gleason |

In his New York Practice column, Thomas F. Gleason of Gleason, Dunn, Walsh & O'Shea writes: It often is far easier to seek copies of emails or documents from non-parties in the email traffic chain. But electronic discovery requests can be a burden on third parties, who understandably may object, reasoning that the parties should be burdened first. How can we balance this reasonable concern with the need to obtain evidence which otherwise may not come to light?

Net Investment Income Tax for Trusts and Estates

By Sidney Kess |

In his Tax Tips column, Sidney Kess, of counsel at Kostelanetz & Fink, discusses the 3.8 percent additional Medicare tax imposed on trusts and estates that have net investment income over a threshold amount, along with strategies that can reduce or eliminate the tax.

Disgorgement Liability in Securities Fraud Cases

By Amy Walsh |

Amy Walsh, a partner at Morvillo LLP, analyzes the Second Circuit's recent decision in 'SEC v. Contorinis,' which held that a defendant in an insider trading case can be forced to disgorge not only the illicit profits he personally earned, but also the illegal profits earned by an innocent third party that the defendant did not control.

Court Orders Interlocutory Sale of Forfeitable Property

By Harvey M. Stone and Richard H. Dolan |

In their Eastern District Roundup, Schlam Stone & Dolan Harvey M. Stone and Richard H. Dolan report on recent decisions, including the rejection of one of the bankruptcy court's grounds for disqualifying debtors' counsel and remand to determine whether the remaining ground warranted disqualification, a opinion offering pretrial guidance as to potential damages in an employment discrimination action, and more.

Software—Service Distinction 'Clouds' Sales Tax Application

By Joseph Lipari |

In his Tax Appeals Tribunal column, Joseph Lipari, a partner at Roberts & Holland, writes: For obvious reasons, tax departments do not wish to exempt cloud computing products from imposition of sales tax. However, it is often difficult to conclude that these products fall within the statutory definitions needed to subject them to tax. A recent determination by an administrative law judge illustrates some of the problems faced.

Whistleblower Law: What Rights Do Ratting Lawyers Have?

By C. Evan Stewart |

C. Evan Stewart, a senior partner at Cohen & Gresser, writes: Because of the whistleblower provisions of federal statutes such as Dodd-Frank, recent case law, and various articles written on this subject, there has been a fair amount of disinformation as to whether lawyers are free to rat on their clients and then also profit thereby.

Limits on Physical Commodities Activities

By Michael T. Escue |

In his Banking column, Sullivan & Cromwell partner Michael T. Escue discusses an advance notice of proposed rulemaking in which the Federal Reserve, citing recent environmental events such as the Deepwater Horizon oil spill, raised questions regarding increased limits and restrictions on the physical commodities activities of financial holding companies.

Deluge of New York City Laws Guards Against Flooding

By Michael B. Gerrard |

In his Environmental Law column, Michael B. Gerrard of Columbia Law School and Arnold & Porter, reviews the more than 50 environmental bills signed into law in the last year of Mayor Bloomberg's 12-year term, 31 of which related to the post-Sandy recovery process.

Dram Shop Update: Extent of Liability for Serving Liquor

By Kevin G. Faley and Andrea M. Alonso |

Kevin G. Faley and Andrea M. Alonso, partners of Morris Duffy Alonso & Faley, write that recently, courts in New York have been limiting the extent of personal liability for injuries that result from another's intoxication, but upholding stricter rules on the public taverns and commercial establishments that serve alcohol.

Guidelines for Making It Across the Finish Line

By Abby Tolchinsky and Ellie Wertheim |

In their Mediation column, Abby Tolchinsky and Ellie Wertheim, partners at Family Mediation, write that whether your client is already deep into a mediation process or whether mediation is merely on the menu of process options to resolve a pending dispute, some considerations apply regardless of the type of conflict.

Federal Circuit Tackles Appellate Review of Claim Construction

By Lewis R. Clayton |

In his Intellectual Property Litigation column, Paul, Weiss, Rifkind, Wharton & Garrison partner Lewis R. Clayton reviews recent notable decisions, including the Federal Circuit's en banc holding on one of the most contentious issues in patent law.

Strategic Intervention in Insurance Coverage Disputes

By E. Paul Kanefsky and Nicholas A. Secara |

E. Paul Kanefsky, a partner at Edwards Wildman Palmer, and Nicholas A. Secara, an associate with the firm, write: Insurance carriers and their counsel should strongly consider intervening in underlying litigations involving their insureds in order to assist in the resolution of insurance coverage issues. Strategic intervention is an advantageous, but underutilized, litigation device that might enable counsel to forestall months or even years of delay in resolving coverage disputes between policyholders and insurers.

Clarifying Timeliness of Non-Cooperation Disclaimer

By Norman H. Dachs and Jonathan A. Dachs |

In their Insurance Law column, Norman H. Dachs and Jonathan A. Dachs, partners at Shayne, Dachs, Sauer & Dachs, review the rules applicable to an insurer's attempt to disclaim coverage based upon the insured's lack of cooperation, in violation of a policy's cooperation provision, and a recent Court of Appeals decision on that defense.

'McWane': Tacit Coordination Versus Illegal Agreement

By Shepard Goldfein and James A. Keyte |

In their Antitrust Trade and Practice column, Skadden Arps partners Shepard Goldfein and James A. Keyte write: In the recent case against McWane Inc. Ltd., the FTC affirmed an exclusive dealing claim against the company, but it deadlocked 2-2 (along party lines) on price-fixing claims. Unfortunately, the lack of a fifth commissioner to break the tie left observers without a clear statement on how, at least within the FTC, to dissect price-fixing allegations and proof, and immediate reactions to the decision expressed disappointment at the lack of guidance. Nevertheless, there are at least a few lessons to draw from McWane.

Termination Rights Under the 1976 Copyright Act

By Wallace E.J. Collins III |

Wallace E.J. Collins III of the Law Offices of Wallace E.J. Collins III writes that just as the record business has been staggering back to its feet after the digital piracy debacle, another hard blow to the record industry business model is lurking just around the corner: 35 years have passed since the effective date of the 1976 Copyright Act, which means content creators may begin to reclaim their copyrights, regardless of any contract stating otherwise.

Regulatory Guidance on Outsourcing

By Richard Raysman and Peter Brown |

In their Technology Law column, Richard Raysman, a partner at Holland & Knight, and Peter Brown, the principal at Peter Brown & Associates, write about the recent OCC and Federal Reserve advice for banks and other financial institutions; the intent of the CFPB to monitor service provider relationships; and, a case illustrating the need for compliance with OCC administrative guidance.

Separate Entity Rule on Bank Branches and Judgment Debtors

By Daniel B. Goldman and Adam W. Braveman |

Daniel B. Goldman and Adam W. Braveman of Paul Hastings write that for over 50 years in proceedings to enforce judgments in New York, New York branches of banks have been considered separate entities from all foreign branches. This rule has prevented judgment creditors from forcing banks to restrain and/or turn over assets of a judgment debtor held by foreign branches of banks. That may now change.

U.S. Supreme Court Clarifies Personal Jurisdiction Boundaries

By Michael Hoenig |

In his Complex Litigation column, Michael Hoenig, a member of Herzfeld & Rubin, writes: The U.S. Supreme Court's unanimous opinion in 'Walden v. Fiore' has potential to upset some apple carts, to disturb existing or smug notions of in personam jurisdiction and to revitalize jurisdictional challenges by foreign defendants sued in a state where they had no or little direct activity.

Disposal of Decedent's Firearms Under Gun Control Law

By C. Raymond Radigan and Peter K. Kelly |

In their Trusts and Estates Law column, C. Raymond Radigan and Peter K. Kelly of Ruskin Moscou Faltischek writes that the New York SAFE Act has important provisions for regulation of weapons owned by a decedent which must be disposed of by his fiduciary after death and also weapons that are specifically bequeathed under a decedent's will.

Restitution to Insurance Carriers: the New York Rule

By Evan H. Krinick |

In his Insurance Fraud column, Rivkin Radler's Evan H. Krinick points out that a recent California appellate court held that insurance companies are not direct victims entitled to criminal restitution simply because they reimbursed a victim for losses. In New York, the rule is quite different.

'Grucci': Tape Recordings and Chain of Custody

By Elliott Scheinberg |

Appellate attorney Elliott Scheinberg writes: It is wise, in light of the Court of Appeals' 2012 decision in 'Grucci v. Grucci,' to err on the side of caution and include a chain of custody when authenticating tape recordings irrespective of the availability of a participant to the conversation prepared to identify and attest to its fair and accurate representation.

Factual Disagreements Between Trial and Appellate Courts

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

In their Appellate Practice column, Thomas R. Newman, of counsel to Duane Morris, and Steven J. Ahmuty Jr., a partner at Shaub, Ahmuty, Citrin & Spratt, examine 'Rocky Point Drive-In v. Town of Brookhaven,' in which the Court of Appeals granted the appellant's motion for leave to appeal in a case involving different factual findings of the trial court and Appellate Division on the same record, but limited its review to which factual findings more nearly comported with the weight of the evidence.

Weinstein Bill on Forensic Transparency: 'It's for the Children!'

By Timothy M. Tippins |

In his Matrimonial Practice column, Timothy M. Tippins, an adjunct professor at Albany Law School, examines a bill in the state assembly which, if passed, will bring a higher level of transparency to the forensic process by allowing attorney access to the evaluator's report and file in custody litigation.

Fifth Circuit Addresses Enforceability of Prepayment Premiums

By John J. Rapisardi and Joseph Zujkowski |

In their Bankruptcy Practice column, John J. Rapisardi and Joseph Zujkowski of O'Melveny & Myers write that in January, the Fifth Circuit joined other jurisdictions in reflecting a hesitancy on the part of bankruptcy courts to enforce prepayment premiums absent explicit language in prepetition debt instruments mandating payment of such premiums following commencement of a bankruptcy case or acceleration occasioned by another event of default.

Collateral Estoppel of Administrative Decisions on Civil Actions

By Louis F. Eckert and Michael J. Kozoriz |

Louis F. Eckert, a senior partner at Litchfield Cavo, and Michael J. Kozoriz, a senior associate at the firm, write: In an unusual reversal of its own decision from just months earlier, the Court of Appeals held on Dec. 10 that the determination of the Workers' Compensation Board that a plaintiff had no further causally related disability, was not entitled to collateral estoppel effect in the plaintiff's personal injury action.

Nonresidential Use - Can Enforcement of Restrictions Be Waived?

By Richard Siegler and Eva Talel |

In their Cooperatives and Condominiums column, Stroock & Stroock & Lavan's Richard Siegler and Eva Talel write: For a board trying to maintain a harmonious environment, a muted response, or none at all when the owner community is indifferent, may seem applicable when faced with non-residential use of a residential apartment. But while complacent deference may seem pragmatic, a hidden danger may be percolating.

Are We Criminalizing Politics as Usual?

By Elkan Abramowitz and Jonathan Sack |

In their White-Collar Crime column, Elkan Abramowitz and Jonathan Sack, members of Morvillo Abramowitz Grand Iason & Anello, discuss one of the principal battlegrounds where the line is drawn between ordinary politics and illegal graft: honest services law, particularly as it has been applied in the indictment of former Virginia Governor Robert McDonnell and his wife.

Privilege and Work Product Doctrine: Noteworthy Developments

By Adam S. Lurie, Lambrina Mathews and Salvatore N. Astorina |

Adam S. Lurie, Lambrina Mathews and Salvatore N. Astorina of Cadwalader, Wickersham & Taft, review some of the significant decisions of the past year concerning the attorney-client privilege and the work product doctrine, and practices to consider in the wake of such decisions.

Are Private Companies' Liability Risks Adequately Insured?

By Howard B. Epstein and Theodore A. Keyes |

In their Corporate Insurance Law column, Schulte Roth & Zabel's Howard B. Epstein and Theodore A. Keyes write: We live in a litigious society and, as a result, many publicly owned companies may view litigation costs and insurance premiums as simply costs of doing business. In many respects, private companies face risks similar to those faced by public companies, yet they may not take the same approach with regard to insurance. A recent survey suggests that many private companies are not adequately insured.

Impeaching Witness Credibility in Police Misconduct Actions

By Martin A. Schwartz |

In his Section 1983 Litigation column, Martin A. Schwartz, a professor at Touro Law Center, writes that many plaintiffs asserting claims against police officers have had prior encounters with law enforcement authorities. Recent federal court decisions show how far defendants may go in using previous "immoral conduct" to impeach the plaintiff's credibility.

Interim Counsel Fee Awards in Family Law Cases

By Raunak Kothari |

Raunak Kothari, the principal of the Law Office of Raunak Kothari, discusses various problems courts have encountered in fashioning interim counsel fee awards, due partly to the reality that support awards can skew who is the "monied" party and partly to the fact that interim awards are, by their very essence, prospective in nature, so they cannot properly account for unreasonable litigation conduct by the less monied party.

Social Media Creates Complex Ethical Issues

By Mark A. Berman |

In a column on Technology and Ethics, Mark A. Berman of Ganfer & Shore and co-author Ignatius A. Grande of Hughes Hubbard & Reed discuss some of the issues raised by hypothetical scenarios posed by the Commercial and Federal Litigation Section of the New York State Bar Association during its January 2014 Annual Meeting CLE entitled "Social Media in Your Practice: The Ethics of Investigation, Marketing, and More."

Corporations and Their Affiliates—Who Owns the Privilege?

By Anthony E. Davis |

In his Professional Responsibility column, Anthony E. Davis, a partner at Hinshaw & Culbertson, examines an aspect of the law of attorney-client privilege that is often of critical importance to corporate and transactional lawyers, as well as their litigation brothers and sisters: Who owns the privilege when a dispute arises between a parent and a former subsidiary?

Law Before 2013 'K2' Insurance Decision Reinstated

By Jason L. Shaw |

Whiteman Osterman & Hanna partner Jason L. Shaw analyzes the Court of Appeals' recent decisions that eliminated a judicial economy rule the court had created only eight months earlier, allowing liability carriers to breathe a sigh of relief, and took a small bite out of the contractual two-year lawsuit limitations period in New York fire insurance policies.

Quality Control Breakdowns Form Basis of Government Action

By Richard Strassberg and William Harrington |

In their Federal Civil Enforcement column, Goodwin Procter partners Richard Strassberg and William Harrington write: Many companies rely on quality control procedures to monitor known areas where errors occur and ensure that these errors do not stray too far from accepted levels or industry norms. But in the context of a federal civil fraud investigation, the results of even a well-functioning quality-control process can become problematic.

City Lobbying Law Change Expands Regulatory Obligations

By Larry Levy and Andrew Rafalaf |

Larry Levy and Andrew Rafalaf of Bracewell & Giuliani review the significant amendments to New York City's Lobbying Law, which, most notably, expand the definition of lobbying, alter the financial threshold that triggers reporting requirements, carve out specific rules for architects and engineers, and create a new enforcement regime.