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Free With Registration: Court Toughens Application of Rule 8 Pleading Standards for Civil Cases

Monday, July 6, 2009

By Richard D. Bernstein and Frank M. Scaduto

Richard D. Bernstein, a partner at Willkie Farr & Gallagher, and Frank M. Scaduto, an associate at the firm, write: The U.S. Supreme Court's most important decision this term affecting business litigation did not involve a business. Ashcroft v. Iqbal will make it harder for numerous civil plaintiffs to escape dismissal of claims brought in federal court. Although the facts in Iqbal concern racial and religious discrimination claims by a post-Sept. 11 Muslim detainee, Iqbal will have a major impact in business litigation. This is because Iqbal expressly applies to the pleading of each element, including knowledge and intent, of every claim in federal court.

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Favoring Other Creditors Over the Taxation Authorities

Thursday, July 2, 2009

By Kenneth H. Ryesky

Kenneth H. Ryesky, a solo practitioner who teaches at Queens College CUNY, writes that in tough economic times such as the present, business trust fund tax deficiencies occur more often, and therefore, pursuit by the taxation authorities of responsible individuals becomes all the more frequent. Attorneys need to know the rules, he cautions, in order to properly advise business clients regarding the hard choices that must be made in allocating scarce dollars, so that the attorney can avoid potential conflicts of interest.

The Ex Post Facto Clause In the Post-'Booker' World

Wednesday, July 1, 2009

By Charles Clayman and Harlan Protass

Charles Clayman, a partner at Clayman & Rosenberg, and Harlan Protass, an attorney and adjunct professor at Benjamin N. Cardozo School of Law, write that until the "appropriate case" presents itself, district courts in the Second Circuit should continue to use the Guidelines manual in effect on the date an offense is committed if use of the Guidelines manual operational at the time of sentencing triggers an ex post facto violation.

Landlords' Duty to Mitigate: Cases Highlight Need for Legislative Action

Tuesday, June 30, 2009

By Victor S. Faleck

Victor S. Faleck, deputy chief court attorney at the Appellate Term, Second Department, writes that as a general rule, a party injured by a breach of contract has a duty to attempt to minimize his damages; however, the common law did not impose such a duty upon a landlord when a tenant abandoned a property before the end of the lease. In modern times, he says, state courts and legislatures have increasingly recognized, however, the contractual nature of a lease, and many have begun to apply principles of contract law to leases.

'Mahoney-Buntzman' and 'Johnson': Persisting Issues in Matrimonial Law

Monday, June 29, 2009

By Elliott Scheinberg

Elliott Scheinberg, a practitioner in matrimonial law, writes that the Court of Appeals has recently resolved a key issue: payments made to a former spouse and/or children of an earlier marriage, even if made pursuant to court order, are not the type of liabilities entitled to recoupment by the current spouse.

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