In Focus

Elliot Pisem and David E. Kahen

Recent Developments Relating to S Corporations

By David E. Kahen and Elliot Pisem |

In their Taxation column, David E. Kahen and Elliot Pisem of Roberts & Holland discuss two recent Tax Court memorandum decisions relating to S corporations and a recent change in IRS policy regarding private letter rulings on common S corporation issues.

Investing in U.S. Real Estate Using Domestically-Controlled REITs

By Mitchell Berg and Scott Sontag |

In their Transactional Real Estate column, Mitchell Berg and Scott Sontag discuss the advantages to foreign investors of investing through a domestically controlled REIT which include the ability to sell the stock of the domestically controlled REIT without incurring U.S. federal income tax under FIRPTA.

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 'Matter of Peralta v. N.Y. State Division of Housing and Community Renewal', where a deputy commissioner's determination was held to be an abuse of discretion, and 'Hildred Temple v. Hudson View Owners', where the court dismissed disabled plaintiffs' complaint alleging entitlement to two parking spaces.

IP Insurance: Coverage for Costs of Litigating Over That Brilliant Idea

By Jeffrey Schulman |

Jeffrey Schulman of Liner writes: The scope of coverage provided by IP policies can vary and the interpretation of those policies vary by jurisdiction, so insureds should carefully review their policies prior to making a claim to ensure that they frame their claim in a way that maximizes recovery and takes full advantage of the coverage provided.

Has the DTSA Changed Trade Secret Litigation in New York?

By Robert S. Friedman and James Salem |

Robert S. Friedman and James Salem of Sheppard Mullin Richter & Hampton write: Under the Defend Trade Secrets Act, the basic elements of a typical trade secret litigation are not much altered, especially in states in which the Uniform Trade Secrets Act has been in place for years. However, as more cases are filed under the DTSA, some of the new tools and strategies that the DTSA now makes available to New York-based business litigators are becoming more apparent.

Navigating Subpoena Disclosure Directives: The Art of Striking a Balance

By Jocelyn E. Strauber, David Meister and Eli Rubin |

Jocelyn E. Strauber, David Meister and Eli Rubin of Skadden, Arps, Slate, Meagher & Flom write: To ensure that prosecutors can protect their investigations but do not exceed their limited ability to request (but not demand) non-disclosure, and to adequately address the real risk that recipients of subpoenas will treat requests from prosecutors as demands, non-disclosure requests should include language that makes clear both the limits of the government's authority and the rights of the subpoena recipients.

Will the Trump Administration Take US-EU Data Protection Disputes to the WTO?

By Boris Segalis, Mia Havel and Sonia Lee |

Boris Segalis, Mia Havel and Sonia Lee of Norton Rose Fulbright write: Many point to the Trump administration's focus on trade deals (and threats to renegotiate or withdraw from them) as the potential battleground for a data transfer skirmish, but the new administration has another weapon its arsenal—seeking a WTO sanction against the EU for discriminatory trade practices.

'Spokeo' Requirement Has Real Teeth in Narrowing, Defeating Consumer Class Actions

By David Lender, Eric Hochstadt and Luna Barrington |

David Lender, Eric Hochstadt and Luna Barrington of Weil, Gotshal & Manges write: Two recent decisions by the U.S. Courts of Appeals for the Second and Seventh Circuits provide further clarity as to the type of alleged injury that is—and is not—"concrete" enough to satisfy Article III standing.

Joseph M. McLaughlin and Yafit Cohn

Director Independence to Consider Pre-Suit Demand

By Joseph M. McLaughlin and Yafit Cohn |

Corporate Litigation columnists Joseph M. McLaughlin and Yafit Cohn review a recent Delaware decision that again signals those courts will closely scrutinize personal and business relationships that are asserted as compromising a director's ability to consider a pre-suit demand impartially.

Acceleration Clauses in Foreclosure Actions: New Rules

By Adam Leitman Bailey and Adam M. Swanson |

In their Foreclosure Law column, Adam Leitman Bailey and Adam M. Swanson review recent case law and discuss some of the benefits and pitfalls when using an acceleration clause and how to overcome these obstacles.

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 'Schroder & Strom v. Vazouras', where the court found that the mere filing and settling of tax assessment claims was not the practice of law, and 'Rios v. Rosado', where tenants were granted disclosure beyond the four-year look back period in a nonpayment suit.

Benefits and Pitfalls of Outsourcing Email Services

By Robert A. Banner and Sean Scuderi |

Robert A. Banner and Sean Scuderi of Ingram Yuzek Gainen Carroll & Bertolotti discuss email hosting providers and highlight their benefits and potential pitfalls for counsel who may not be aware of them.

Strategies for Understanding Your Data Before a Meet-and-Confer

By Gabriela Baron |

Gabriela Baron of Conduent Legal and Compliance Solutions writes: When your clients ask, "What do I need to know before a meet-and-confer?" the answer is simple: Know the data.

Big Data and Artificial Intelligence: Implications for E-Discovery's Future

By Mark S. Sidoti and Luis J. Diaz |

Mark S. Sidoti and Luis J. Diaz of Gibbons write: Artificial intelligence will revolutionize the field of e-discovery, and to some degree the practice of law, in the years to come. But the law will always remain a social science, and while AI can assist practitioners in identifying relevant evidence in a case, it cannot do this without constant training and refinement by competent lawyers, and it will never replace the skill and judgment of a lawyer in utilizing that evidence in advocacy.

Obtaining Discovery From EU After GDPR's Passage

By Christian Schröder, Jeffrey McKenna and Renee Phillips |

Christian Schröder, Jeffrey McKenna and Renee Phillips of Orrick write: The GDPR includes new provisions addressing litigation-related international data transfers. These new provisions create both new perils and opportunities when personal data must be transferred from the EU to the United States for use in discovery.

Can Tests for Spoliation in NY State, Federal Courts Be Reconciled?

By Samantha V. Ettari |

Samantha V. Ettari of Kramer Levin Naftalis & Frankel writes: Intentional spoliators are likely to face similarly extreme and potentially case-terminating sanctions in both New York state and federal courts. However, litigants should be aware that negligent spoliators are subject to different standards, which may result in less certainty concerning what exposure a non-intentional spoliator may face if ESI is lost.

Barbara M. Goodstein

Hague Securities Convention Comes Into Effect

By Barbara M. Goodstein |

In her Secured Transactions column, Barbara M. Goodstein of Mayer Brown discusses the Hague Securities Convention. The vast majority of securities are now held through intermediaries rather than directly, and the number of cross-border transactions has increased exponentially. These developments have created legal uncertainty, which the convention attempts to remedy by offering a uniform set of conflict of laws rules to be applied on a global basis.

Warren A. Estis and Michael E. Feinstein

Court Finds Powerful Remedy Against Defaulting Condo Owners

By Warren A. Estis and Michael E. Feinstein |

In their Landlord-Tenant column, Warren Estis and Michael Feinstein discuss "Heywood Condominium v. Wozencraft," where the Appellate Division, First Department, affirmed the eviction of a condominium unit owner for non-payment of common charges.

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 'Pureform v. 2374 Concourse Assoc.,' where a commercial tenant who was able to show an ability to cure its defaults was granted a Yellowstone injunction, and 'Matter of Brown, HP,' where the court denied a motion to appoint an Article 7A administrator.

Public Corruption Prosecutions and Defenses Post-'McDonnell'

By Arlo Devlin-Brown and Erin Monju |

Arlo Devlin-Brown and Erin Monju of Covington & Burling write: In the prototypical public corruption case, 'McDonnell' defenses will have little impact on judges and still less on juries, who may fail to rally around the official who argues he was selling "only" access to an elected office. Moreover, a myopic focus on the 'McDonnell' defense in cases where it will get little traction may obscure more viable and less exploited avenues of legal challenge to the reach of federal corruption laws.

Implications of Remaining Silent Before Banking Regulators

By Jeffrey Alberts and Mark Weiner |

Jeffrey Alberts and Mark Weiner of Pryor Cashman write: If your client has been subpoenaed to testify by a banking regulator, or discovery has been requested, you must carefully consider the possible use of the evidence sought in a potential future criminal proceeding. While the consequences at the civil level for invoking the privilege may be significant, they generally pale in comparison with possible jail time.

Forfeiture and Restitution: Ships Passing in the Night?

By Brian Maas, Caren Decter and Andrew Ungberg |

Brian Maas, Caren Decter and Andrew Ungberg of Frankfurt Kurnit Klein & Selz explore the apparent disconnect between the government's forfeiture powers and the victim's right to restitution, and provide some tips to help practitioners make the best of a difficult, contradictory system.

Economic Espionage and Trade Secrets Enforcement Under the Trump Administration

By Joseph Fazioli and Mauricio A. España |

Joseph Fazioli and Mauricio A. España of Dechert write: Increased DOJ activity in the economic espionage/trade secrets area would not only advance a Trump Administration policy priority but also be consistent with the broader (and perhaps inexorable) recent trend of increased globalization of U.S. white-collar enforcement.

Recent U.K. Decision Jeopardizes U.S. Privilege Assertions for Witness Interviews

By Roger A. Burlingame, Steven G. Kobre and Rachel E. Goldstein |

Roger A. Burlingame, Steven G. Kobre and Rachel E. Goldstein of Kobre & Kim write: While the 'RBS' decision's binding effects will be determined by the Supreme Court, unless and until the Supreme Court reevaluates the holding, U.S. lawyers conducting internal investigations should plan accordingly to protect their communications from compelled disclosure.

David A. Katz and Laura A. McIntosh

Prioritizing Board Diversity

By David A. Katz and Laura A. McIntosh |

In their Corporate Governance column, David A. Katz and Laura A. McIntosh write: In what has been called a "breakout year" for gender diversity on U.S. public company boards, corporate America showed increasing enthusiasm for diversity-promoting measures during 2016. Momentum toward gender parity on boards is building, particularly in the top tier of public corporations.

Anthony S. Guardino

Can Zoning Stop Property Owners From Renting?

By Anthony S. Guardino |

In his Zoning and Land Use Planning column, Anthony Guardino explores a number of the significant New York court decisions that help to establish a framework for analyzing the validity of zoning restrictions and the conditions imposed by local governments on permits and variances when rental units are involved.

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 'Waterview Towers v. 2610 Cropsey Development,' where a cooperative housing corporation was held to have established the required elements of adverse possession.

Janet DiFiore

The Roadmap to Judicial Excellence

By Janet DiFiore |

Janet DiFiore, Chief Judge of the State of New York, discusses the efforts and initiatives undertaken to deliver on the promise of making the New York court system better in every way—of providing litigants with just dispositions, while speeding the justice process, eliminating barriers to court access, and providing first-rate services to all litigants and court users.

Chief Administrative Judge Marks

Ensuring Right to Counsel: An Important Step

By Lawrence K. Marks |

Lawrence K. Marks, the Chief Administrative Judge of the New York State Unified Court System, discusses a measure recently signed into law by the governor, which allows New York to establish centralized, off-hours arraignments of criminal defendants in counties outside of New York City.

Justice Tom

Welcoming a Fairer Discipline System

By Peter Tom |

Peter Tom, Acting Presiding Justice of the Appellate Division, First Department, discusses the new Rules for Attorney Disciplinary Matters, the goals of which are to streamline and unify the disciplinary rules of the four Departments to better serve the public.

Justice Eng

Courts Will Face More Cases Like 'Hamilton'

By Randall T. Eng |

Randall T. Eng, Presiding Justice of the Appellate Division, Second Department, writes: It seems likely that in the coming years, the courts of New York will see an increasing number of cases in which litigants argue that a provision of the New York Constitution provides them with greater protection than a parallel provision in the U.S. Constitution.

Justice Peters

Make a Difference for Justice

By Karen K. Peters |

Karen K. Peters, Presiding Justice of the Appellate Division, Third Department, writes: To guarantee access to justice, we must do more than resolve disputes by applying the substantive law to a given set of facts. Justice is about the fairness with which litigants are treated and their experiences with the legal process.

Justice Whalen

Department Opens Its Courtrooms to the Web

By Gerald J. Whalen |

Gerald J. Whalen, Presiding Justice of the Appellate Division, Fourth Department, discusses the pros and cons of streaming oral arguments over the Internet, which the Fourth Department started doing on Jan. 9, 2017.

Sharon Stern Gerstman

Working Together, We Can Make a Difference and Improve Our World

By Sharon Stern Gerstman |

Sharon Stern Gerstman, President-elect of the New York State Bar Association, writes: Whatever your passion, NYSBA has a committee or a section that needs your energy and your effort.

U.S. Federal Trade Commission building

Geographic Market Definition in Hospital Merger Antitrust Enforcement

By Lisl Dunlop |

Lisl Dunlop, Chair of the Antitrust Law Section, discusses an interesting set of antitrust cases from 2016 which involved challenges by the Federal Trade Commission to two significant proposed hospital mergers.

U.S. Capitol Building

To Know Is to Understand

By Sarah E. Gold |

Sarah E. Gold, Chair of the Business Law Section, writes: In our work, we may find ourselves assuming a certain base level of knowledge of civics and government, but such assumptions should not be taken lightly.

U.S. Court of Appeals for the Second Circuit.

ComFed: Intersection of the Federal and State Judiciary

By Mark A. Berman |

Mark A. Berman, Chair of the Commercial and Federal Litigation Section, writes: The Section this year has brought new meaning to its name of being the go-to bar group representing "Commercial and Federal" litigators by melding both the federal and state judiciaries into its programing.

The Need for Small Business Pro-Bono

By Jeffrey P. Laner |

Jeffrey P. Laner, Chair of the Corporate Counsel Section, writes: While it is laudatory that there is so much interest in providing compassionate assistance for those with dire individual needs, consideration also should be given to nurturing fledgling enterprises that will propel economic prosperity, not only to the owners of these businesses, but also to their future employees, suppliers, and contractors.

What Is the 'Collateral Consequence'?

By Sherry Levin Wallach |

Sherry Levin Wallach, Chair of the Criminal Justice Section, writes: In the criminal justice community, collateral consequences is a term we often hear in relation to the other effects a criminal conviction can have on a person's life, but what is frequently overlooked is the fact that a criminal conviction is all too often a collateral consequence of the circumstances of a person's life.

Arbitration and Mediation: Chalk and Cheese, or the New Smoothie?

By Abigail Pessen |

Abigail Pessen, Chair of the Dispute Resolution Section, write: Many scholars and commentators increasingly see benefits in blurring arbitration and mediation, resulting in "med-arb" or "arb-med," as is more widespread in other countries.

NY's Health Care Coverage Provisions Under the ACA

By David Goldfarb |

David Goldfarb, Chair of the Elder Law and Special Needs Section, writes: As the nation faces a change in administrations, the Patient Protection and Affordable Care Act (sometimes called Obama Care) faces an uncertain future. It seems like a good time to take a look at the changes in New York health care coverage which came as a result of these laws.

2016: the Year in Review

By Diane Krausz |

Diane Krausz, Chair of the Entertainment, Arts and Sports Law Section, discusses some of the year's most interesting cases and developments in the world of entertainment law.

Custody Issues in Changing Times

By Mitchell Y. Cohen |

Mitchell Y. Cohen, Chair of the Family Law Section, briefly discusses some Court of Appeals decisions on various custody concerns, and describes various resources available to Section members.

High Expectations During the Trump Administration

By Brian Malkin and Bethany Hills |

Brian Malkin, Chair of the Food, Drug and Cosmetic Law Section, and Bethany Hills, a Member of the Section Executive Committee, discuss numerous expectations for the FDA under the Trump Administration, and outline how the Section will prepare practitioners for changes.

E-Filing: Coming to a Court Near You

By John Owens Jr. |

John Owens Jr., Chair of the General Practice Section, discussing the use of e-filing in courts, writing: Although many judges and practitioners initially resisted the evolution of technology in the courtroom, technological advances are increasingly becoming standard.

Justices Design the Future as Technology, Fashion Converge

By Erica D. Klein |

Erica D. Klein, Chair of the Intellectual Property Section, writes: The confluence of two seemingly unrelated cases heard by the Supreme Court this term may dramatically alter the legal landscape for protection and enforcement of intellectual property rights pertaining to designs.

Mentoring Young Lawyers and Honoring Excellence, Achievement

By Marsha L. Steinhardt |

Marsha L. Steinhardt, Presiding Member of the Judicial Section, discusses the various awards the Section will bestow at the Annual Meeting, as well as its initiative to mentor young lawyers.

A Spotlight on Property Issues, Drones and Ethics

By Carol L. Van Scoyoc |

Carol L. Van Scoyoc, Chair of the Local and State Government Law Section, discusses the Annual Meeting programs of the Section.

Section Addresses 'Zombie Housing' and Title Agent Legislation

By Mindy H. Stern |

Mindy H. Stern, Chair of the Real Property Law Section, discusses the Section's efforts with regard to "zombie housing" legislation and regulations affecting the ability of lawyers to serve as title agents.

What the Car You Drive Says About You

By Kenneth A. Krajewski |

Kenneth A. Krajewski, Chair of the Torts, Insurance and Compensation Law Section, discusses various issues surrounding the use of information obtained from Event Data Recorders, or EDRs, in civil and criminal litigation.

Claire Gutekunst, president of the New York State Bar Association, outside the association's offices near the Court of Appeals in Albany.

'Connect, Inspire, Learn': Make the NYSBA Your Bar Home

By Claire P. Gutekunst |

Claire P. Gutekunst, President of the New York State Bar Association, writes: Connect with NYSBA and be part of an organization of diverse, vibrant and engaged attorneys, who work tirelessly for the benefit of our members, our profession and the public.