In Focus

Corinne Ball

Mootness Protections May No Longer Preclude Review or Protect Counsel

By Corinne Ball |

In her Distress Mergers and Acquisitions column, Corinne Ball writes: The importance of finality of bankruptcy court orders has been confirmed once again. Statutory mootness protecting §363 sales may not prevent or preclude an appeal or subsequent lawsuit, but the good faith purchaser and the transfer nevertheless continue to be insulated from appellate relief or collateral attack. The extent of that protection to other parties is unclear.

Ezra Dyckman and Daniel W. Stahl

IRS Ruling Limits Exclusion to COD Income

By Ezra Dyckman and Daniel Stahl |

In their Taxation column, Ezra Dyckman and Daniel Stahl write: While cancellation of indebtedness generally results in ordinary income for the debtor (COD income), the Internal Revenue Code provides for several exceptions under which COD income can be excluded. Of particular importance for owners of real estate is Section 108(c), under which a taxpayer can elect to exclude COD income that results from the discharge of "qualified real property business indebtedness" under certain circumstances. The IRS recently interpreted one of the requirements for debt to constitute QRPBI in a manner that will cause debt secured by condominium units held for sale to fail to qualify.

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 'Horrigan Development v. Drozd', 'Jit v. Johnson' and '21-25 Convent Avenue Realty v. Semper'.

Partner Promotions Dip at New York's Largest Firms

By Meghan Tribe |

Many law firms eased back on partner promotions last year, but the slowdown was less pronounced in New York—especially in corporate practices.

Incorporate Business Principles Into Law Firm Management

By Barry Wolf |

Barry Wolf of Weil, Gotshal & Manges writes: The financial crisis of 2008 brought about seismic changes in the legal landscape, resulting in a premier legal services market that is smaller and more competitive than ever. As the years have passed, the pressures have only continued to intensify. How can firms respond to this? One answer is to introduce business principles to law firm management.

Law Firm Succession Planning

By Marc A. Landis and Mark M. Elliott |

Marc A. Landis and Mark M. Elliott of Phillips Nizer write: Law firm succession planning is neither a comfortable nor an enjoyable topic—but it has never been more necessary. With the continuing retirement of the baby boomers, our profession is undergoing an unprecedented generational transition. Law firms that wish to continue to succeed cannot afford to avoid the topic.

Cultivating 'Must Have' Innovation

By Ed Estrada and Cindy Schmitt Minniti |

Ed Estrada and Cindy Schmitt Minniti of Reed Smith shares insights and tips for creating a law firm environment that fosters innovation and bringing that innovation into your client relationships.

Collaboration as Superpower: Optimizing Value to Lead in the Future

By Henry N. Nassau |

Henry N. Nassau of Dechert writes: The business of law is changing swiftly, reflecting our world at large. Global markets are in flux, regulatory winds are ever-shifting, and the fundamental calculus of risk and reward gains new variables every day. As companies evolve to keep pace, their general counsel are rightly demanding more and different services from their outside law firms. For these law firms, developing the superpower of collaboration demands a significant shift from a traditional partner-dominated firm culture.

Elliot Pisem and David E. Kahen

The Accumulated Earnings Tax: Back From the Grave?

By Elliot Pisem and David E. Kahen |

In their Taxation column, Elliot Pisem and David E. Kahen discuss the structure of the accumulated earnings tax and Chief Counsel Advice 201653017 (Dec. 30, 2016), a memorandum which concluded that the AET may apply to a corporation that lacks ready access to cash or other liquid assets for distribution.

Jason Bergman

Cash and the Residential Property Purchase: a New Paradigm

By Jason C. Bergman |

Jason Bergman of Kensington Vanguard National Land Services discusses the new disclosure requirements for certain high-end residential real estate purchases in New York City made with cash. Title companies will be bound to gather this information, and purchasers’ counsel will need to be very careful in the advice given about using cash in light of this change in the arena.

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 three landlord-tenant cases: "H.W. Hinkley Realty v. Romulus," "121 Irving MGM v. Perez," and "Roc-Jane Street v. Riffon."

Joseph M. McLaughlin and Yafit Cohn

Scope of the Dodd-Frank Act's Whistleblower Protection

By Joseph M. McLaughlin and Yafit Cohn |

Joseph M. McLaughlin and Yafit Cohn of Simpson Thacher & Bartlett discuss a question generating dispute: Is a corporate employee who reports an employer's possible violation of the securities laws to a supervisor or internal compliance officer—but not to the SEC—considered a "whistleblower" entitled to protection from retaliation under Dodd-Frank? Courts that have considered this question have reached differing conclusions.

Adam Leitman Bailey and Dov Treiman

A Practitioner's Guide to Understanding Interest

By Adam Leitman Bailey and Dov Treiman |

In their Mortgage Litigation column, Adam Leitman Bailey and Dov Treiman write: While on its surface, the concept of "interest" appears to be a simple matter of calculating a percentage of what someone owes, the legal development of interest in New York law shows far greater complexity beneath the surface and far greater importance in understanding the amount of money that can be charged and collected.

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 '204 Columbia Heights v. Manheim,' where a lease combining apartments was held to be valid.

Agency Independence From Presidential Supervision: Changes Ahead

By Boris Bershteyn |

Boris Bershteyn of Skadden, Arps, Slate, Meagher & Flom writes: The separation-of-powers doctrine on agency independence from Presidential supervision could be on the brink of major changes. Two important decisions pending review by the en banc D.C. Circuit are likely to chart the doctrine's direction.

Preparing for Oral Argument of Your Appeal

By Peter B. Skelos |

Peter B. Skelos of NAM and Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana writes: Appellate judges enthusiastically consider the oral argument the most exciting part of their work. Counsel should approach oral argument with no less enthusiasm and preparation.

Overcoming the Weakness in a Summary Judgment Decision on Appeal

By Mellissa Murphy-Petros, Judy Selmeci and Michael O'Malley, |

Mellissa Murphy-Petros, Judy Selmeci and Michael O'Malley of Wilson Elser Moskowitz Edelman & Dicker focus on how to deal with an appeal of those favorable but potentially problematic opinions in which a motion court grants summary judgment but is arguably either overreaching or underreaching in its corresponding analysis.

First in, Last out: The Benefits of Appellate Counsel

By Brendan T. Fitzpatrick |

Brendan T. Fitzpatrick of Goldberg Segalla writes: The appellate attorney is skillful at creating the most favorable record for the client at the earliest stage of the litigation and continuing right up to prosecuting or opposing an appeal. The collaboration between the trial attorney and appellate attorney provides truly comprehensive representation for the client and, frequently, more economically efficient than someone working outside their skill set.

Common Strategies in Petitions for Leave to Appeal

By Anton Metlitsky and Jennifer B. Sokoler |

Anton Metlitsky and Jennifer B. Sokoler of O'Melveny & Myers provide an overview of common strategies for seeking (and opposing) discretionary appeal.

Certification From the Second Circuit to the N.Y. Court of Appeals: A Guide

By Scott A. Chesin and Karen W. Lin |

Scott Chesin and Karen Lin of Mayer Brown write: Counsel in a Second Circuit appeal presenting state-law issues should be familiar with certification and prepared to consider the various strategic questions that can arise. The authors provide a primer to guide New York lawyers through the certification process.

Barbara M. Goodstein and Howard Rosen

Financing Rolling Stock: Luxembourg Rail Protocol Steams Ahead

By Barbara M. Goodstein and Howard Rosen |

In this Secured Transactions column, Barbara M. Goodstein and Howard Rosen discuss the Luxembourg Rail Protocol, how it compares to the Protocol on Matters Specific to Aircraft and its relevance to the United States.

Warren A. Estis and Michael E. Feinstein

Tendering of Renewal Lease Vitiates the Right to Evict

By Warren A. Estis and Michael E. Feinstein |

In their Landlord-Tenant column, noting a split of authority, Warren A. Estis and Michael E. Feinstein discuss '757 Miller Owners v. Smith,' which held that the tendering of a renewal lease under Rent Stabilization Code vitiates a previously issued notice of termination.

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 '149 St. LLC v. Siciliano,' 'Boreland v. Blackwood,' and '5510 345 Lefferts Blvd v. Jean-Baptiste.'

A New Era of Enforcing Protectionist Trade Measures

By Jini Koh |

Jini Koh of Crowell & Moring write: While the Trade Facilitation and Trade Enforcement Act of 2015 outlined specific and increased enforcement provisions to protect domestic companies, the new Administration places a different lens on how these enforcement actions may be executed.

Ending Endless Punishment: Why Judges Should Address Criminal Records at Sentencing

By Mark Racanelli and Brianna Strange |

Mark Racanelli and Brianna Strange of O'Melveny & Myers write: Nearly one in three Americans face serious obstacles to living law-abiding lives after they serve their sentences solely as a result of having a criminal record. Judges and lawyers should explore ways to mitigate this unintended and continuing punishment by addressing it at the time of sentencing.

Combatting Hindsight Bias in White-Collar Criminal Investigations

By Nicolas Bourtin |

Nicolas Bourtin of Sullivan & Cromwell writes: The effects of hindsight bias are particularly significant in criminal investigations and in white-collar investigations most of all. Those who practice in this area quickly learn that white-collar criminal investigations are often heavily outcome-driven, leaving them especially vulnerable to the distortions of fairness and rationality that hindsight bias can produce.

The Compliance Monitor Dilemma

By David A. Ring and Matthew Cvercko |

David A. Ring and Matthew Cvercko of Wiggin and Dana write: Without doubt, a monitor can be a key ingredient to a company's get-well plan, especially when a company has struggled over time. But with all well-intentioned ideas, the challenge is in implementation, and a creative approach to compensation will better ensure that a monitor's interest are wholly aligned with those of the government and company: the timely implementation of a durable compliance program.

The Promise of Blockchain Technology to Combat Money Laundering

By Christian Everdell and Daniel Mandell |

Christian Everdell and Daniel Mandell of Cohen & Gresser write: Recently the blockchain has moved out of the shadow of Bitcoin and has emerged as a potentially groundbreaking technological innovation that many are convinced will have countless transformative beneficial applications. One of the most touted applications is in the area of bank transfers and anti-money laundering (AML).

Retaliatory Discharge Suit by Former General Counsel Unsettles Scope of Attorney-Client Privilege

By Mauricio A. España and Brendan Herrmann |

Mauricio A. España and Brendan Herrmann of Dechert discusses the recent 'Bio-Rad' case, in which the company's former in-house counsel became an adverse party. The eye-popping verdict in 'Bio-Rad' teaches more fundamental lessons about corporate best practices.

Carlos J. Cuevas

Bankruptcy Code Section 548(c) and the Good Faith Defense

By Carlos J. Cuevas |

Carlos J. Cuevas analyzes Bankruptcy Code §548(c), which provides a transferee, the recipient of an alleged fraudulent conveyance, with an affirmative defense to the fraudulent conveyance action.

Todd Soloway and Bryan Mohler

CPLR 6312(b)'s Bond Requirement: A Shield for Hotel Owners?

By Todd Soloway and Bryan Mohler |

In their Hospitality Law column, Todd Soloway and Bryan Mohler write: Aside from questions regarding the enforceability of such an injunction provision, an independent issue arises concerning the appropriate quantum of injunction bond that, pursuant to CPLR 6312(b), a hotel operator should be directed to post in order to secure an injunction depriving a hotel owner of its power to terminate an HMA. This article explores this issue, including whether the undertaking requirement is a potential additional barrier to hotel operators effectively enforcing "contractual injunction" provisions in HMAs.

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 'Kwai & Wong v. Hodges,' where a single fire incident by a tenant in the premises did not constitute a nuisance, and 'Bartis v. Harbor Tech,' where it was held that housing accommodations that are in a building converted from a commercial to a residential building after Jan. 1, 1974, are exempt from rent stabilization.