In Focus

Corinne Ball

Successor Liability and Buyers in Bankruptcy: Will the 'Tronox' Decision Help the New GM?

By Corinne Ball |

In her Distress Mergers and Acquisitions column, Corinne Ball discusses renewed attempts by GM to defend against lawsuits stemming from alleged wrongdoings of its predecessor. GM argues that the tort claims brought against it are barred on a new theory based on a recent Second Circuit decision in 'In re Tronox'.

Kenneth M. Block and Joshua M. Levy

Ensuring Third-Party Beneficiary Status to Owners

By Kenneth M. Block and Joshua M. Levy |

In their Construction Law column, Kenneth M. Block and Joshua M. Levy write: One of the more common questions asked in the construction contracting arena is whether an owner of a construction project can enforce the terms of a subcontract or its architect's consulting agreement with engineers directly against the subcontractor or engineers as a third-party beneficiary. The answer is "yes," but with some caveats.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law discusses “Coliseum Tenants. v. Benmark,” where the petitioner's holdover proceeding for lease violation was dismissed because petitioner failed to prove that alterations to the respondent’s co-op had been done without board approval, and “364 93rd Street LLC v. Clementine,” where a landlord was awarded judgment of possession due to tenant's harassing conduct which the court found constituted nuisance.

Elliot Pisem and David E. Kahen

Can Capital Gain Rates Apply to Income From Phantom Stock?

By Elliot Pisem and David E. Kahen |

In their Taxation column, Elliot Pisem and David Kahen discuss 'Hurford Investments No. 2 v. Commissioner', which underscores the continued potential for confusion as to the consequences of transfers of compensatory rights in non-arm's length transactions, and continued uncertainty regarding the scope of §1234A.

Adam Leitman Bailey and Dov Treiman

Contesting Relocation Liens: Innocent Landowners Get Burnt

By Adam Leitman Bailey and Dov A. Treiman |

In their Housing Litigation column, Adam Leitman Bailey and Dov A. Treiman discuss 'Rivera v. HPD,' a decision "stronger on emotion than analysis" where the Court of Appeals "eliminated a building owner's path to determining the validity of liens placed against its building in relocating the building's tenants when the building became the subject of vacate order."

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law discusses 'Goldstein v. Lipetz,' a landlord-tenant case where although the majority found the defendant had "exploited the governmentally-conferred privilege of her rent-stabilized tenancy" by profiting from subletting her apartment through the company Airbnb, the dissent argued that "there is a question of fact as to whether defendant engaged in profiteering, or rather used Airbnb to enable herself to continue to live in her long time home, which would not be inconsistent with the purposes of the Rent Stabilization Law."

Fee Defense Litigation: Clarifying the Reach of 'Asarco'

By Seth H. Lieberman, Patrick Sibley and Matthew W. Silverman |

Seth H. Lieberman, Patrick Sibley and Matthew W. Silverman of Pryor Cashman write: While the bankruptcy bar's reaction to 'Asarco' was short of enthusiastic, most have since embraced the subsequent jurisprudence narrowly construing 'Asarco' and limiting its holding to the compensation of bankruptcy estate professionals.

A Golden Share and the Conflict Between Freedom of Contract and Federal Policy

By Jay M. Goffman and Christine A. Okike |

Jay M. Goffman and Christine A. Okike of Skadden, Arps, Slate, Meagher & Flom write: A "golden share" gives a lender a say in any subsequent decision by a borrower to seek bankruptcy protection. Lenders have long considered the "golden share" to be an effective mechanism for safeguarding their investments. Recent rulings, however, have cast doubt on the effectiveness of the "golden share" structure.

A Preference Pendulum: Extraterritorial Application of Avoidance Powers in the SDNY

By Christopher K. Kiplok and Dustin P. Smith |

Christopher K. Kiplok and Dustin P. Smith of Hughes Hubbard & Reed write: A recent decision by the bankruptcy court for the Southern District of New York in 'Spizz v. Goldfarb Seligman &. Co. (In re Ampal-American)', has moved the pendulum away from extraterritoriality back toward a nearer reach of avoidance powers.

Using Article 3-A to Protect Payment Rights in a Construction Bankruptcy

By Elizabeth M. Aboulafia |

Elizabeth Aboulafia of Cullen and Dykman writes: When general contractors who perform work on construction projects subject to the New York Lien Law file for bankruptcy protection, subcontractors and suppliers that take advantage of the provisions of Article 3-A of the New York Lien Law can maximize recoveries on their claims against the debtor/contractor and utilize the tools available through the bankruptcy process to obtain greater negotiating leverage and oversight over the debtor/contractor's operations.

Limitations on Adjudicating Disputes Involving Medicare Provider Agreements

By Leslie A. Berkoff and Krista L. Kulp |

Leslie A. Berkoff and Krista L. Kulp of Moritt Hock & Hamroff write: The power of bankruptcy courts to adjudicate Medicare provider agreements has been addressed by several circuit courts in recent years. Given the distressed nature of the health care industry and the continued bankruptcy filings by health care providers, this issue has become more prominent. However, several circuit courts determined that bankruptcy courts lack jurisdiction to adjudicate these issues; and, recently, the First Circuit took an unusual approach.

Joseph M. McLaughlin and Yafit Cohn

Standing to Bring Consumer Data Beach Actions

By Joseph M. McLaughlin and Yafit Cohn |

In their Corporate Litigation column, Joseph M. McLaughlin and Yafit Cohn discuss the recent Second Circuit decision in 'Whalen v. Michaels Stores', in which the court held that the plaintiff in that consumer data breach action did not allege injury sufficient to satisfy the constitutional standing requirement.

Warren A. Estis and Michael E. Feinstein

Court Clarifies Extent of 'Familial Exception'

By Warren A. Estis and Michael E. Feinstein |

In their Landlord-Tenant Law column, Warren A. Estis and Michael E. Feinstein discuss how the Appellate Term limits the extent of the "Familial Exception" to the maintenance of a summary proceeding.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Building Service Local 32B-J v. 101 Limited Partnership,' 'Rent Stabilization Assoc. v. N.Y. City Rent Guidelines Board,' and 'Bank of America v. Lilly.'

Is Your Discovery Process Setting You Up for a Data Breach?

By Eric Pesale and Casey C. Sullivan |

Eric Pesale and Casey C. Sullivan write: Whatever approach attorneys take, it is beyond debate at this point that e-discovery will be fertile hunting ground for hackers in the days and years to come. Smart firms will start taking action now to make sure they don't fall victim to the next damaging cyberattack.

U.S. Attorney for the Southern District Preet Bharara.

Prosecuting Cyber Crime: An Overlooked Part of Bharara's Legacy

By Daniel L. Stein |

Daniel L. Stein of Mayer Brown writes: During Preet Bharara's tenure, the Southern District brought a series of historic criminal cases in the cyber area, which should be included as an important part of Bharara's impressive legacy.

Westworld, Skynet … There Might Be Insurance for That!

By Mikaela Whitman |

Mikaela Whitman of Liner writes: The rise of AI-enabled devices and robots will create a host of liability issues as they become progressively more autonomous, independent and interconnected. Companies that employ any type of AI-enabled device or robot should consider the kinds of insurance that could provide coverage for those losses.

Deal Breakers: The Importance of Privacy and Security Due Diligence in Transactions

By Jennifer Daniels |

Jennifer Daniels of Blank Rome writes: Cybersecurity and data privacy risks have been, and remain, a top concern for companies across industries, so it is not surprising that companies are increasingly conducting diligence specifically to address those risks in connection with transactions.

New DFS Cybersecurity Regulations Are Here: Will Your Insurance Protect You?

By Andrew M. Reidy and Joseph M. Saka |

Andrew M. Reidy and Joseph M. Saka of Lowenstein Sandler write: As covered businesses work to meet the deadlines of the new cybersecurity regulations, they also should consider whether they have taken steps to secure insurance that will protect them.

Jay Clayton testifies before the Senate Committee on Banking, Housing, 
and Urban Affairs during his confirmation hearing to become the next Chairman of the U.S. Securities and Exchange Commission in Washington, D.C., in March.

What to Expect From the SEC's New Cyber-Savvy Chair

By Danielle C. Gray and Patrick D. McKegney |

Danielle C. Gray and Patrick D. McKegney of O'Melveny & Myers discuss a few areas to keep an eye on in the months ahead, in terms of legislation, regulatory guidance and enforcement activity, as Jay Clayton begins his tenure at the SEC.

Blockchain: The Key to True Cybersecurity?

By Jeffrey D. Neuburger and Jonathan P. Mollod |

Jeffrey D. Neuburger and Jonathan P. Mollod of Proskauer Rose discuss blockchain generally and its potential cybersecurity-related functions, security considerations when placing assets on the blockchain, and whether existing laws and regulations will have to be changed to foster new blockchain technologies.

Barbara M. Goodstein

Puerto Rico Restructures: Will PROMESA Live Up to Its Promise?

By Barbara M. Goodstein |

In her Secured Transactions column, Barbara M. Goodstein writes: The potential challenges and litigation surrounding PROMESA and title III could carry on for months, or even years. While there is plenty of uncertainty surrounding how creditors' and Puerto Rico's interests will finally intersect, the only certainty is that the process is far from over.

Bruce J. Bergman

Resolved at Last: No 90-Day Notice a Year Later

By Bruce J. Bergman |

In his Foreclosure Litigation column, Bruce Bergman discusses a recent case in the Appellate Division that finally banishes what had been a thorny and eventually time consuming lender dilemma.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law discusses 'Hendel v. Torah,' where the court found that the subject tenants no longer maintained a right of first refusal in their lease as month-to-month tenants, and 'Royal Park Investments v. HSBC Bank,' where the court denied the use of sampling of loans to prove liability.

David A. Katz and Laura A. McIntosh

Cybersecurity Must Be High on the Board Agenda

By David A. Katz and Laura A. McIntosh |

In their Corporate Governance column, David A. Katz and Laura A. McIntosh write: Recent global cyberattacks have rudely reminded corporate America that cybersecurity risk management must be at the top of the board of directors' corporate governance agenda. Companies have no choice but to prepare proactively.