Expert Opinion

The Full-Payment Rule Strikes Hard: A Look at a Recent Decision

Jeremy H. Temkin | July 18, 2018

It has long been settled law that a taxpayer challenging a tax deficiency assessed by the Internal Revenue Service in federal district court is required to “pay first and litigate later.”

Analysis

A Review of 'Ambac Assurance Corp. v. Countrywide Home Loans'

William T. Russell Jr. and Lynn K. Neuner | July 17, 2018

In their New York Court of Appeals Roundup, William T. Russell Jr. and Lynn K. Neuner analyze an important decision in the residential mortgage-backed securities litigation saga.

Realty Law Digest

Scott E. Mollen | July 17, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses "Bistro Shop and Penny Bradley v. N.Y. Park N. Salem, Inc.," where a commercial restaurant tenant was found entitled to rescission where the owner was still doing construction work almost a decade After commencement of the lease.

Analysis

The End of NY's Unique Approach to Expert Witness Disclosure in Med Mal Cases

John L.A. Lyddane | July 16, 2018

Since the amendment of Section 3101(d) in 1985, New York state has required that litigants in medical malpractice cases disclose the substance of the testimony they expect to produce through their expert witnesses at trial.

Analysis

New York Court Confirms Enforceability of UCC Equity Interest Pledges

Janice Mac Avoy, Matthew D. Parrott, Cynthia Luo | July 16, 2018

Justice Barry Ostrager's holding in the HH Cincinnati case is highly significant. It represents the first written decision under New York law expressly confirming that when parties to complex commercial real estate financing transactions decide to include both a real property mortgage and a pledge of UCC security interests as collateral for the loan, the lender’s right to enforce its remedies pursuant to either security interest will be fully enforced.

Archiving the Internet: The 'Wayback Machine" in the Courts

Stephen Kramarsky | July 16, 2018

In his Intellectual Property column, Stephen Kramarsky discusses the ‘Wayback Machine,’ an “inconceivably large, entirely free archive that captures and preserves evidence of the contents of the Internet at a given time.”

Expert Opinion

A Roundup of Tax Law Rules for Deducting Interest Payments

Sidney Kess | July 16, 2018

Interest rates are on the rise, albeit slowly. Still, individuals and businesses with debt can reduce the cost of borrowing if they can deduct their interest payments.

Analysis

Second Circuit to Decide Validity of Arbitrator’s Certification of Class Including Absent Members

Samuel Estreicher and Holly H. Weiss | July 13, 2018

Samuel Estreicher and Holly H. Weiss analyze 'Jock v. Sterling Jewelers,' a case pending in the Second Circuit, in this Arbitration column.

Analysis

Getting One’s Practice in 'Order'

Patrick M. Connors | July 13, 2018

In his column on New York Practice, Patrick M. Connors discusses the filing, entry and service of orders. These seemingly small, dry procedural steps can be critical in litigating a case.

Analysis

Understanding California's Game-Changing Data Protection Law and its Global Impact

Emily Tabatabai, Antony Kim and Jennifer Martin | July 13, 2018

California’s new Consumer Privacy Act of 2018 will likely have a significant impact on core business operations. That's true whether your business is based in New York, Europe or Asia.

Expert Opinion

The Global Impact of the #MeToo Movement (Part 2)

Kristie Rearick | July 12, 2018

In the first part of this article, I discussed the current political climate and widespread social media use helped #MeToo promulgate its message and impact numerous industries throughout the United States.

Analysis

Review of Developments Under State Environmental Quality Review Act

Michael B. Gerrard and Edward McTiernan | July 11, 2018

In their column on Environmental Law, Michael B. Gerrard and Edward McTiernan review the decisions issued by New York courts in 2017 under SEQRA.

Analysis

Prison Excessive Force Cases: A Primer

Ilann M. Maazel | July 11, 2018

In his column on Civil Rights Litigation, Ilann M. Maazel explains the basic standard for bringing civil rights actions for prison brutality by state or local corrections officers.

Analysis

Domestic Violence: Do's and Don'ts for Court

Toby Kleinman and Daniel Pollack | July 11, 2018

In every hearing to determine domestic violence, a court is faced with the dilemma of whether to grant or deny protection to a named plaintiff. Each state uses a different standard of proof, but the procedures are similar. Presenting a good case may positively affect later child custody decisions and distribution of assets where there is a civil case for damages.

#MeToo at Home and Abroad

Philip M. Berkowitz | July 11, 2018

In his Employment Issues column, Philip Berkowitz writes: On the international front, the #MeToo movement has had significant impact, both in employment and labor laws as well as in employment practices of multinational companies with highly mobile employees who travel from country to country, on short- and long-term assignments. Some of these employees, sad to say, wreak havoc.

Analysis

Realty Law Digest

Scott E. Mollen | July 10, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses the brokerage case “106 N. Broadway LLC v. Houlihan Lawrence” dealing with fiduciary duties, and the landlord-tenant case “Faber v. Loft 14 Condominium” where a tenant thwarted the landlord’s efforts to abate violations.

Analysis

Too Little, Too Latte: What Businesses Should Take Away From the Starbucks Predicament

Robert G. Brody and Lindsay M. Rinehart | July 10, 2018

What can other employers learn from Starbucks' recent highly publicized troubles over the arrest for trespassing in Philadelphia of two African-American men who were waiting for a friend? The men were arrested and jailed for several hours before they were released without charges.

Analysis

New Antitrust Regulators and New Markets

Shepard Goldfein and Karen Hoffman Lent | July 09, 2018

In their column on Antitrust Trade and Practice, Shepard Goldfein and Karen Hoffman Lent ask whether current approaches to antitrust review are effective in protecting competition, in view of the prevalence two-sided markets and “big data.”

Analysis

Is Standing Jurisdictional to Be Raised First Time on Appeal?—Part II

Elliott Scheinberg | July 09, 2018

Part I, yesterday, began the analysis of whether standing has a jurisdictional impact by examining the epicenter of appellate review, the doctrine of preservation, standing, subject matter jurisdiction, and the treatment of standing in the First Department. Part II continues the analysis.

Analysis

Outsourcing Fraud Claims Viable Despite Affirmation

Richard Raysman and Peter Brown | July 09, 2018

In their Technology Law column, Richard Raysman and Peter Brown discuss the circumstances, legal analysis and conclusions surrounding “W.G. Bradley v. intelligence” where a software customer’s fraud claims survived dismissal even after partial affirmation of the underlying agreement.

Expert Opinion

The Facts and Misconceptions Between Undue Influence and Mental Capacity in New York

Kristie Rearick | July 06, 2018

In their Trusts and Estate Law column, C Raymond Radigan and John G. Farinacci discuss guardianship matters and claims challenging transactions to which elderly and infirm individuals were parties.

Analysis

Is Standing Jurisdictional to Be Raised First Time on Appeal? Part I

Elliott Scheinberg | July 06, 2018

This article argues that the most recent pronouncements from the Court of Appeals advance the conclusion that standing is jurisdictional, albeit, plainly, not subject matter, may not be waived, and may be raised for the first time on appeal.

Expert Opinion

Vacation Dangers: Liability Considerations When You're 'Getting Away'

Michael Hoenig | July 06, 2018

Complex Litigation columnist Michael Hoenig writes: While the notion of “getting away” is understandably attractive and exciting, dangers lurk in many of these exploits. Vacationers, in unfamiliar surroundings, doing things they may not physically be prepared for, and taking risks they are not fully aware of can suffer injury, illness, even death while vacationing.

Analysis

Health Insurance Fraud: A Key Focus of State and Federal Prosecutors

Evan H. Krinick | July 05, 2018

In his column on Insurance Fraud, Evan H. Krinick looks at two recent reports, one from the federal government and the other from New York's Department of Financial Services.

Analysis

Trump’s Trade Policies – A Broad Perspective

Stuart S. Malawer | July 05, 2018

Three books were recently published that help in the broad assessment of where President Trump’s policies fit into U.S. political and international history. The fit is not good.

Commentary

American 'Fake News' Dates Back to Myths of Our Founding Fathers

Sol Wachtler | July 03, 2018

Our country was built on myths—good myths—but myths nonetheless.

Analysis

Pardon Me? Can U.S. Presidents Pardon Themselves?

William F. Johnson | July 03, 2018

In his Corporate Crime column, William Johnson explores the history and traditional use of the presidential pardon power, and illuminates the constitutional and legal issues involved.

Analysis

Sufficiency of Expert Opinion in 'Serious Injury' Cases

Seth Weinberg | July 03, 2018

In order for plaintiffs to recover for noneconomic losses as a result of a car accident, they must prove that they suffered a “serious injury” as defined by Insurance Law Section 5102 (see Insurance Law Section 5104 [a]). In many cases, the parties’ experts have conflicting opinions on this issue.

Expert Opinion

Aggrievement: Consult Case Law to Ensure Requirement Has Been Met

Thomas R. Newman and Steven J. Ahmuty Jr. | July 03, 2018

Appellate Practice columnists Thomas R. Newman and Steven J. Ahmuty Jr. discuss aggrievement in appellate standing.

Expert Opinion

Co-ops and Condos: Update on Balcony Enclosures and Rooftop Use

Eva Talel | July 03, 2018

Cooperatives and Condominiums columnist Eva Talel discusses updated information on balcony enclosures and rooftop use.

Emails and Social Media Advocacy

Mark A. Berman | July 02, 2018

In his State E-Discovery column, Mark Berman examines the question: “What happens when a ‘faithless servant’ employee absconds with confidential company emails, and then deletes them from the company’s server. Does a claim for conversion lie?

Expert Opinion

Qualified Immunity Shields Officer From Deadly Force Claim in 'Kisela'

Martin A. Schwartz | July 02, 2018

In his Section 1983 Litigation column, Martin A. Schwartz notes that qualified immunity has recently come under attack by prominent federal jurists and legal scholars.

Analysis

New Ethics Opinions on Agreements Restricting Lawyers’ Freedom of Movement and Firm Names

Anthony E. Davis | June 29, 2018

In his column on Professional Responsibility, Anthony E. Davis compares a New York opinion with one from North Carolina, both addressing agreements that limit lawyers’ rights to move between law firms.

Expert Opinion

Two Recent Cases Illustrate Need to Rely on Causal Concepts in FCA Cases

Richard Strassberg, William Harrington and Annie E. Railton | June 28, 2018

In their Federal Civil Enforcement column, Richard Strassberg, William Harrington and Annie E. Railton write: In 2010, Congress amended the anti-kickback statute (AKS) to confirm that claims “resulting from” illegal kickbacks are false and thus actionable under the federal False Claims Act (FCA).

Expert Opinion

Court Affirms Effectiveness of Shareholder Consent Requirement for Bankruptcy Filing

Corinne Ball | June 27, 2018

In her Distress Mergers and Acquisitions column, Corinne Ball discusses the case "Franchise Services of North America" and writes: The importance of this case rests upon the threshold determination that relief from provisions in the certificate of incorporation granting rights to bona fide investors must be sought in the relevant state court, even when the remedy sought is the exercise of a federal right, generally exercised by fiduciaries that are required to act in the corporation’s best interests.

Analysis

Evident Partiality and the Party-Appointed Arbitrator

John Fellas | June 27, 2018

In his International Arbitration column, John Fellas analyzes the Second Circuit's recent decision in 'Lloyds of London v. State of Florida.'

Analysis Expert Opinion

Texting Liability Hits the High Seas and So Far, It's a Rough Voyage

James E. Mercante | June 26, 2018

In his Admiralty column, James E. Mercante writes: Recent marine casualties demonstrate that operators of watercraft can be lured into inattention as readily as their landlubbing counterparts.

Tax Court Address Old Question With New Importance: What is a Trade or Business?

Ezra Dyckman and Daniel W. Stahl | June 26, 2018

In their Taxation column, Ezra Dyckman and Daniel W. Stahl discuss the recent Tax Court case 'Levitz v. Commissioner' addressing whether a taxpayer was engaged in a real estate trade or business—a question which has newfound significance in light of certain provisions in the 2017 tax legislation that hinge on the presence or absence of a trade or business.

Analysis Expert Opinion

Substantive Reasonableness Review Finally Getting Teeth in the Second Circuit

Martin Flumenbaum and Brad S. Karp | June 26, 2018

The main doctrinal source of the modern federal sentencing regime is United States v. Booker, 543 U.S. 220 (2005). The U.S. Supreme Court in Booker famously ruled that the U.S. Sentencing Guidelines, which had been binding, must be advisory to be constitutional.

Expert Opinion

AT&T-Time Warner and a Rare Judicial Perspective on Vertical Mergers

Elai Katz | June 25, 2018

A federal trial judge rejected the Department of Justice’s challenge to AT&T Inc.’s proposed acquisition of Time Warner Inc., denying the government’s request to block the proposed merger of a leading communications provider with a major entertainment company.

Analysis

Careful, That Eminent Domain Claim Is Constitutionally Protected

Michael Rikon | June 25, 2018

In Michael Rikon's Condemnation and Tax Certiorari column, he explores the various ways that property can be taken requiring the payment of just compensation pursuant to the Fifth Amendment.

Expert Opinion

SALT-Free Alchemy? Converting State Taxes to Charitable Deductions

Conrad Teitell | June 22, 2018

In his Estate Planning and Philanthropy column, Conrad Teitell writes: “The Tax Cuts and Jobs Act,” Pub. L. No. 115-97, limits an individual’s deduction under IRC Section 164 for the total amount of state and local taxes (SALT) paid during the calendar year to $10,000 ($5,000 for a married individual filing a separate return)

Representing a Franchisor at Trial: First Step, Educate the Court

David J. Kaufmann | June 20, 2018

Franchising columnist David J. Kaufmann discusses how franchise networks are not immune from disputes.

Expert Opinion

Commercial Waste Zones and Other Creative Solutions to Vehicle Emissions

Karen Meara and Christopher Rizzo | June 20, 2018

States and cities are striving to improve air quality and reduce greenhouse gas (GHG) emissions in an era when the federal government is moving in the opposite direction.

Realty Law Digest

Scott E. Mollen | June 19, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses the land use case “Brooklyn Ass'n v. N.Y.S. Urban Dev.,” where an Article 78 proceeding challenging the Brooklyn Pier 6 Project was dismissed, and a landlord-tenant case “N.Y.C. Hous. Auth. v. Various Tenants,” where sanctions were imposed on NYCHA for wrongfully suing tenants based on “overlapping rent claims.”

Conditions Precedents in Construction Contracts

Kenneth M. Block and Joshua M. Levy | June 19, 2018

In their Construction Law column, Kenneth Block and Joshua Levy explore the differences between typical contract terms and those that rise to the level of conditions precedent, the latter requiring strict compliance to avoid forfeiture.

Analysis

Attorneys vs. Accountants: The Battle Wages On

Jamie Diaferia and Helen Bertelli | June 19, 2018

In this column on Law Firm Management, Jamie Diaferia and Helen Bertelli discuss an Infinite Global study that reveals trends and best practices for content and social media in the law and accounting industries.

The Trump Twitter Case, and Its Implications for Other Public Officials

Shari Claire Lewis | June 18, 2018

In her Internet Issues/Social Media column, Shari Claire Lewis discusses Knight First Amendment Institute at Columbia University v. Trump which held that President Trump and Daniel Scavino, the White House social media director, had violated the First Amendment by blocking various individuals’ access to the @realDonaldTrump Twitter account after the individuals criticized the president.

Expert Opinion

The Standard for Extending Discovery Deadlines

Edward M. Spiro and Judith L. Mogul | June 18, 2018

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul discuss the impact of the proportionality requirements in the Federal Rules of Civil Procedure on extension of discovery deadlines.

Expert Opinion

Home Ownership in the Post-Tax Cuts and Jobs Act Era

Sidney Kess | June 18, 2018

In his Tax Tips column, Sidney Kess writes: The Tax Cuts and Jobs Act (TCJA), combined with rising mortgage rates, could impact homeowners. For now, prospective buyers and homeowners need to contend with what has and hasn’t changed with respect to tax breaks for homeownership as a result of this tax legislation.