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Products Liability

Monday, November 9, 2009

By Michael Hoenig

Michael Hoenig, a member of Herzfeld & Rubin, discusses recent decisions dealing with whether sanctions under Rule 37(c) of the Federal Rules of Civil Procedure can be imposed upon the lawyers as well as the errant parties for discovery misconduct, whether a federal judge may consider for summary judgment purposes unverified documents or unsworn reports from an expert if the expert later provides an affidavit verifying his reports, and whether an admission of fact contained in an original pleading can be used at trial if that admission of fact was superseded by an amended pleading not containing the admission.

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Corporate Insurance Law

Monday, November 9, 2009

By Howard B. Epstein and Theodore A. Keyes

Howard B. Epstein, a partner at Schulte Roth & Zabel, and Theodore A. Keyes, special counsel at the firm, write that last fall, the First Department adopted a narrow view of the prior knowledge exclusion, finding that the exclusion only applies where the insured law firm has a reasonable belief that claims may be filed against it as a result of its own conduct. In a recent decision, the Court of Appeals disagreed. Based on the Court's rationale, a law firm with knowledge of wrongful conduct by its client may find it very difficult to be comfortable not disclosing the information to its insurer, even if the firm believes its own conduct was beyond reproach.



Insurance Fraud

Friday, November 6, 2009

By Evan H. Krinick

Evan H. Krinick, a partner with Rivkin Radler, writes that as the economy continues to struggle, it is likely that employees of major companies may choose to engage in dishonest conduct. When that conduct is discovered, he asserts, companies that have purchased employee fidelity bonds will seek coverage, claiming that their losses were caused by their dishonest employees.



Free With Registration: Intellectual Property Litigation

Friday, November 6, 2009

By Lewis R. Clayton

Lewis R. Clayton, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, writes: "Amid all the talk of health care reform, there is another potential reform movement taking shape in Washington?reform of the patent laws. When the U.S. Court of Appeals for the Federal Circuit was established over 25 years ago, there was a sense that federal courts were not affording sufficient respect for patent rights. Now, after years of criticism from academics, practitioners, courts and some federal agencies, many commentators believe the patent system has become too protective and too litigious."



Matrimonial Practice

Thursday, November 5, 2009

By Timothy M. Tippins

Timothy M. Tippins, an adjunct professor at Albany Law School, writes one of the more complex and controversial issues in the equitable distribution arena is the allocation of marital and separate property components of assets that contain both categories of property. A disability benefit payment, he notes, sometimes derived from employer-sponsored plans, sometimes from private insurance policies, and sometimes from exceptional sources, is one such hybrid asset.



Bankruptcy Practice

Thursday, November 5, 2009

By John J. Rapisardi

John J. Rapisardi, a partner at Cadwalader, Wickersham & Taft and an adjunct professor of law at Pace University School of Law, reviews a recent Second Circuit case where the court considered whether a claimant is entitled to payment of an administrative expense claim that it purchased from another creditor before a preference action against the selling creditor was resolved.


Appellate Practice

Wednesday, November 4, 2009

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

Thomas R. Newman, of counsel to Duane Morris, and Steven J. Ahmuty Jr., a partner at Shaub, Ahmuty, Citrin & Spratt, write: In discretionary matters, the Appellate Division's scope of review is co-extensive with that of the trial court, and it may exercise its discretion independently. At times, however, there appear to be no discernable standards that would lend consistency and predictability to the Appellate Division's exercise of its discretion, and similar fact situations do not always result in identical outcomes.


Cooperatives and Condominiums

Wednesday, November 4, 2009

By Richard Siegler and Eva Talel

Richard Siegler, a partner in Stroock & Stroock & Lavan and an adjunct professor at New York Law School, and Eva Talel, a partner at Stroock and an adjunct professor at Cardozo Law School, write that the potential enforceability of commitments made in text messages, e-mail and other forms of electronic communication, as well as the potential loss of confidentiality and the attorney-client privilege when using electronic communications, requires vigilance by co-op and condominium boards in the use of such communications. At the same time, electronic communications have great potential to facilitate board governance and communication with apartment owners by providing flexibility and rapid dissemination of information.


White-Collar Crime

Tuesday, November 3, 2009

By Elkan Abramowitz and Barry A. Bohrer

Elkan Abramowitz and Barry A. Bohrer, members of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, review the Ninth Circuit's reversal of a district court's order suppressing government evidence in a stock options backdating case against Broadcom Corporation's Chief Financial Officer, William Ruehle, based on his belief that at the time he made the statements in question the attorneys running the internal investigation represented him in an individual capacity in associated civil securities lawsuits. The Circuit accepted the district court's factual finding that attorney-client relationships existed with both Broadcom and Mr. Ruehle individually. That fact alone did not end the inquiry, however.


New York Court of Appeals Roundup

Tuesday, November 3, 2009

By Roy L. Reardon and Mary Elizabeth McGarry

Roy L. Reardon and Mary Elizabeth McGarry, partners at Simpson Thacher & Bartlett, write that in recent decisions, the state's High Court held that property owners cannot take advantage of luxury decontrol from rent stabilization during a period in which they took advantage of J-51 tax incentives, interpreted New York's champerty statute narrowly in a suit arising out of securitized mortgages, and rejected a challenge by certain state senators to Governor David Paterson's appointment of Richard Ravitch as lieutenant governor.


Trusts and Estates Law

Monday, November 2, 2009

By C. Raymond Radigan and David R. Schoenhaar

C. Raymond Radigan, a former Surrogate of Nassau County and of counsel to Ruskin Moscou Faltischek, and David R. Schoenhaar, an associate at the firm, write that Crummey powers are a popular technique because they allow donors to utilize their annual gift tax exclusion amount in fulfilling estate planning objectives and they provide new utility in dealing with minors. While the formalities and IRS challenges must be respected, they say, short of a congressional enactment, these powers should be around for the foreseeable future.



Professional Responsibility

Monday, November 2, 2009

By Anthony E. Davis

Anthony E. Davis, a partner of Hinshaw & Culbertson, discusses several decisions determining whether employees can retain attorney-client privilege for e-mails sent to their lawyers using their employer-provided e-mail addresses and computers and attempts to reconcile the apparently inconsistent conclusions the courts reached in those cases. Two lessons are clear: First, employers need to have very carefully formulated, broadly worded policies regarding employees' lack of expectation of privacy, that are diligently and repeatedly circulated to all employees. Second, whenever an attorney receives potentially privileged or confidential information relating to the opposing party, that attorney should carefully consider how that information was obtained.

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