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Trusts and Estates Update

Monday, November 23, 2009

By Ilene Sherwyn Cooper

Ilene Sherwyn Cooper, a partner with Farrell Fritz, writes that the Appellate Division has provided significant direction to Surrogate's Court practitioners this past year, holding that a petitioner had forfeited her interest in a trust containing an in terrorem clause, which prohibited any beneficiary from contesting the trust or any of its provisions, when that petitioner requested that it be declared null and void in a prior guardianship proceeding; that a found document that purportedly made the appellant the co-owner of the apartment was not sufficient to establish a gift; and more.

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Municipal Law

Monday, November 23, 2009

By Jeffrey D. Friedlander

Jeffrey D. Friedlander, first assistant corporation counsel of the City of New York, discusses several recent transportation cases involving New York City, including litigation over pedicab registrations, the taxicab technology system that allows for electronic collection of trip-related data and the substantial increase of the fuel efficiency of taxicabs and legislation to further encourage bicycle commuting.



Contract Law

Friday, November 20, 2009

By Glen Banks

Glen Banks, a partner at Fulbright & Jaworski, writes: In IDT Corp. v. Tyco Group, S.A.R.L., language used by the Court of Appeals raises questions concerning the continuing validity of the analysis applied by courts for more than 20 years to determine what effect, if any, a court should give to a preliminary agreement such as a term sheet, memorandum of understanding or commitment letter, when the parties contemplate the later execution of a definitive agreement setting forth the terms of their contemplated transaction.


Free With Registration: Copyright Law

Friday, November 20, 2009

By Robert W. Clarida and Robert J. Bernstein

Robert W. Clarida, a partner at Cowan, Liebowitz & Latman, and Robert J. Bernstein, a practitioner at The Law Office of Robert J. Bernstein, review a recent reversal from the Seventh Circuit where the court held that a photograph of a copyrighted work need not exhibit a higher level of originality in order to qualify for copyright protection and that the creator of such a derivative work need not obtain separate specific permission to register his or her copyright, over and above the permission required to create the derivative work. The decision represents a giant step away from the Circuit's own previous decision, which may result in greater uniformity among the circuits and greater fidelity to the text of the Copyright Act.



Tax Litigation Issues

Thursday, November 19, 2009

By Jeremy H. Temkin

Jeremy H. Temkin, a principal in Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, writes that anyone who tries criminal cases knows the devastating impact of Rule 404(b) evidence. Uncharged act evidence is especially problematic in criminal tax cases where the government bears the heightened burden of proving that the defendant acted willfully. While prosecutors will often offer evidence under Rule 404(b) purportedly to demonstrate that the defendant violated a known legal duty, the defendant suffers the prejudice associated with the perception that he is generally a tax cheat. Two recent district court decisions demonstrate the broad scope of evidence the government attempts to offer in criminal tax cases and the careful analysis applied by district judges ruling on the admissibility of such evidence.


Trial Advocacy

Thursday, November 19, 2009

By Ben Rubinowitz and Evan Torgan

Ben Rubinowitz, a partner at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz and an adjunct professor at Hofstra University School of Law and Cardozo Law School, and Evan Torgan, a member of Torgan & Cooper, write: One of the best methods to control a witness on cross is to pose short, "one fact at a time" questions designed to slowly but surely make your point for summation. While this is easier said than done, there is a straight forward method to accomplish this goal. To reach this goal, however, a firm understanding of different questioning techniques must be understood.



International Banking

Wednesday, November 18, 2009

By Kathleen A. Scott

Kathleen A. Scott, counsel at Arnold & Porter, summarizes the legal, logistical and other issues that can occur in the resolution of a financial company that conducts cross-border activities in several countries and discusses the recently-issued report of the Basel Committee's Cross-Border Bank Resolution Group and its recommendations, comparing them to the laws in the United States for liquidating U.S. banking offices and subsidiaries of non-U.S. banks.


Aviation Law

Wednesday, November 18, 2009

By Steven R. Pounian and Megan Wolfe Benett

Steven R. Pounian, a partner at Kreindler & Kreindler, and Megan Wolfe Benett, an associate at the firm, posit a scenario where during an international flight, due to the airline's improper maintenance, the aircraft's engines suddenly fail and the plane pitches down toward the ground. If the pilots are able to restart the engines, saving all aboard, under the Warsaw and Montreal Conventions the passengers cannot recover for the emotional injuries sustained during the time that they believed - reasonably but, as it turns out, incorrectly - they were about to die. If the plane crashes, however, and the survivors of the killed passengers file suit, claiming damages for the conscious pre-death fright, pain and suffering experienced during the time that the passengers believed - reasonably and correctly - they were about to die, can they recover? And if so, why is a reasonable fear of death during an aviation disaster compensable only if the passenger actually dies?



Immigration Law

Tuesday, November 17, 2009

By Michael D. Patrick

Michael D. Patrick, a partner and general counsel at Fragomen, Del Rey, Bernsen & Loewy, writes: Recent decisions indicate that the Department of Labor's regulatory interpretations are changing, and it is unclear whether these new trends will become established policy. The manner in which the DOL is implementing its authority is making it significantly more difficult for employers to sponsor foreign nationals for H-1B classification and permanent residence.


Free With Registration: Antitrust Trade and Practice

Tuesday, November 17, 2009

By Neal R. Stoll and Shepard Goldfein

Neal R. Stoll and Shepard Goldfein, partners at Skadden, Arps, Slate, Meagher & Flom, analyze recent health care reform legislation passed by the House of Representatives that would amend McCarran-Ferguson which exempts the "business of insurance" from the antitrust laws to the extent that such business is "regulated by State law." With limited exceptions, the conclude, the amendment would eliminate the exemptions from "the operation of any of the antitrust laws with respect to price fixing, market allocation, or monopolization (or attempting to monopolize)" for persons engaged in the business of health insurance or medical malpractice insurance.



New York Practice

Monday, November 16, 2009

By Thomas F. Gleason

Thomas F. Gleason, a member of Gleason, Dunn, Walsh & O'Shea and an adjunct professor at Albany Law School, writes: "In the age of the Internet, the U.S. mail still is the dominant method for service of legal papers in New York civil practice. E-mail service has taken over in the federal electronic filing system, and also is available in New York's underused Filing by Electronic Means system. However, we New York dinosaurs still take comfort in our settled habits."



Tax Tips

Monday, November 16, 2009

By Sidney Kess

Sidney Kess, CPA-attorney, consulting editor to CCH Inc., author and lecturer, reviews the Worker, Homeownership, and Business Assistance Act of 2009, which will extend unemployment benefits and change the effective dates, the expiration dates, and limits on eligibility; extends the expiration date and eligibility requirements of a refundable tax credit for buying a home; provide a net operating loss carryback for businesses; and more.

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