Columns

Analysis

State Considers Allowing Co-Sponsorship of Hospitals by Out-of-State Health Systems

Francis J. Serbaroli | September 21, 2018

In his Health Law column, Francis J. Serbaroli of Greenberg Traurig, LLP discusses the laws and regulations governing the control of New York’s numerous not-for-profit hospitals and hospital systems. He reports that New York’s Public Health and Health Planning Council is considering allowing out-of-state not-for-profit hospital systems to become the co-operator of hospitals in New York.

Analysis

QBI Deduction Issues for Professionals

Sidney Kess | September 21, 2018

Tax Tips columnist Sidney Kess examines some key issues related to the QBI deduction for professionals in light of recently proposed regulations (REG-107892-18, released on Aug. 8, 2018 and published in the Federal Register on Aug. 16, 2018).

Commentary

Women Castigate Columnist Who Defended Brett Kavanaugh's Conduct as a Teenager

Vivia Chen | September 21, 2018

In my last column, I took a look at Brett Kavanaugh’s alleged behavior in the teenage context, and I received an avalanche of responses—largely divided along gender lines.

Analysis

Pointers for Drafting an Effective Appellate Brief

Scott M. Himes | September 21, 2018

Think about these pointers the next time you put pen to paper for an appellate brief. They will make a difference in persuading the appellate court to right a lower court’s wrong.

Letter to the Editor

Sexual Misconduct Statute Becomes Monstrosity

Lainie R. Fastman | September 20, 2018

Presumably, the young woman knew what the condom was for and thus, presumably, the young man was convinced there was implied consent.

Analysis

Fair Use, First Sale and Marilyn Monroe

Robert W. Clarida and Robert J. Bernstein | September 20, 2018

Copyright Law columnists Robert W. Clarida and Robert J. Bernstein write: On July 20, the Southern District of New York resolved a question that neither the Southern District nor the Second Circuit had ever squarely faced: Can the lawful owner of an art object create and post a photograph of that object in connection with the sale of the object through an online platform such as eBay, without the permission of the owner of copyright in the object?

Analysis

Further Ticket Sale (and Resale) Reforms Come to New York State

Anthony J. Dreyer and Andrew Green | September 20, 2018

This past July, Gov. Andrew Cuomo signed Senate Bill 8501-B, which amends and extends the current provisions of ACAL Article 25 until June 30, 2021. This article discusses the recent amendments, the majority of which become effective on Dec. 28, 2018.

Analysis

Partnership Dissolution: Court of Appeals Decides Question of First Impression

Arthur J. Ciampi | September 20, 2018

Law Firm Partnership Law columnist Arthur J. Ciampi analyzes a recent decision which will likely influence law firm partnership dissolutions in the future.

Analysis

The Market for Lead Plaintiffs

John C. Coffee Jr. | September 19, 2018

In his Corporate Securities column, John C. Coffee Jr. writes: A drama is playing out in Boston federal court before a respected judge that could prove to be a legal “Watergate,” one that could reshape class action practice.

Analysis

‘United States v. Sertich’: Affirmative Obligations of Taxpayers

Jeremy H. Temkin | September 19, 2018

In his Tax Litigation Issues column, Jeremy H. Temkin discusses 'U.S. v. Sertich'. While criminal statutes often set forth prohibited conduct, in 'Sertich' the Fifth Circuit followed several other circuits in concluding that §7202 imposed affirmative duties that defendants must satisfy in order to avoid committing a crime.

Analysis

'Obey-the‑Law' Injunctions: Is Time Running Out for the SEC?

Elkan Abramowitz and Jonathan S. Sack | September 19, 2018

White-Collar Crime columnists Elkan Abramowitz and Jonathan S. Sack discuss a recent EDNY decision and then examine the views of other courts as to whether the SEC may use an obey‑the‑law injunction to sidestep the five-year limitations period in 28 U.S.C. §2462. Lastly, they consider the decision's practical implications—how the SEC will likely respond and what defense counsel should anticipate.

Analysis

The High Bar for Challenging an Improperly Revived Patent

Scott D. Locke | September 19, 2018

The recent decision 'In re Rembrandt Technologies LP Patent Litigation' is a reminder of both the potential consequence of a patent holder’s disingenuous assertion of unintentionality and the challenges that defendants face when raising the improper filing of a petition to revive a lapsed patent as a defense.

Analysis

Realty Law Digest

Scott E. Mollen | September 18, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses ‘Sanjana v. King,’ where the sellers were entitled to keep the deposit where the buyers failed to obtain a mortgage commitment and timely cancel the contract; ‘230 E. 48th St. LLC v. Campisi,’ where the court found that by renting her stabilized apartment through Airbnb, the tenant “commercialized her apartment” and treated it as a de facto hotel; and ‘E. Midtown Plaza Hous. Co. v. Gamble,’ where the landlord established entitlement to summary judgment of possession of the subject apartment based on illegal use of the premises.

Analysis

Cross-Examination: Beyond Lead, Lead, Lead

Ben Rubinowitz and Evan Torgan | September 18, 2018

Trial Advocacy columnists Ben Rubinowitz and Evan Torgan write: To be effective with cross-examination, the trial attorney must know what her objective is and how to get there. All crosses must start at the end—with what attorney intends to prove. Once the attorney knows what she intends to prove, she can use different techniques such as changing the tone of her voice, focusing the question for the witness, asking low risk open ended questions and making statements with a question at the end.

Analysis

Defense Costs Coverage 101

Howard B. Epstein and Theodore A. Keyes | September 18, 2018

Corporate Insurance Law columnists Howard B. Epstein and Theodore A. Keyes write: Upon receipt of a claim, the risk manager or in-house counsel should coordinate with the company’s insurance broker to make sure notice is submitted to the insurer. However, even earlier, in anticipation of claims, counsel should review the terms of the relevant insurance policies and develop an understanding of the defense cost coverage provisions.

Analysis

EDNY: U.S. Securities Laws Can Be Used to Prosecute ICO Fraud

Deborah Meshulam, Benjamin Klein and Richard Kelley | September 18, 2018

On Sept. 12, 2018, an EDNY judge issued an order finding that a federal indictment adequately pled that defendant promoted digital tokens through initial coin offerings (ICOs) in violation of U.S. securities laws. This is the second known instance where a federal judge has found that offer or sale of digital tokens can qualify as investment contracts subject to federal securities laws.

Analysis

No-Poaching and Non-Compete Provisions: Long-Time Practices Go Under the Microscope

Rupert M. Barkoff | September 17, 2018

Franchising columnist Rupert M. Barkoff discusses a new employment issue that is taking center stage—the subject of employee “poaching” in the franchising context.

Analysis

The Foreseeability Charge in Medical Malpractice Defense

John L.A. Lyddane | September 17, 2018

Medical Malpractice Defense columnist John L.A. Lyddane writes: The foreseeability defense is frequently blended into the issue of causation, but there are clear advantages to the defense where the distinction can be articulated.

Analysis

Making a Spectacle of Making Spectacles

Stephen M. Kramarsky | September 17, 2018

Intellectual Property columnist Stephen M. Kramarsky discusses a case in which the court examined improper use of confidential information for business evaluation.

Analysis

Tipping Liability in the Wake of ‘Martoma II’

Nicole M. Argentieri, Andrew J. Geist and Robert Ennis | September 17, 2018

As reflected in the split decisions in 'Martoma I' and 'Martoma II', there will continue to be litigation post-'Salman' about what constitutes a personal benefit.

Analysis

What Really Happened in 'Carlos Rodriguez v. City of New York'?

Timothy R. Capowski and Jonathan P. Shaub | September 14, 2018

'Rodriguez' does not represent a tectonic shift in summary judgment practice but is actually the next logical step in the drive towards achieving litigation efficiencies.

Expert Opinion

The Opioid Epidemic Hits Lawyers at Work, in the Community and at Home

Priscilla Lundin | September 14, 2018

Drug overdoses killed about 72,000 Americans last year, a record number that reflects a rise of around 10 percent, according to new preliminary estimates from the Centers for Disease Control.

Analysis

Abortion Protesters, Robocalls and Virtual Currency Fraud

Harvey M. Stone and Richard Dolan | September 13, 2018

In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan discuss cases involving anti-abortion protesters, unsolicited robocalls, and extensive fraud in the sale of virtual currencies.

Analysis

A Data-Driven Defense Against “Short and Distort”

Joshua Mitts | September 12, 2018

In his Securities Law column, Joshua Mitts discusses how smaller public companies are being attacked by predatory short sellers who drive down stock prices by buying put options prior to posting hit pieces on blogs and social media.

Analysis

Justice Scalia’s Contributions to the Development of Bankruptcy Law

Carlos Cuevas | September 12, 2018

Justice Scalia had a profound impact on the development of American law, and he especially had a significant impact on the development of bankruptcy law.

Expert Opinion

State Attorneys General and Their Influence on Merger Enforcement

Shepard Goldfein and Karen Hoffman Lent | September 12, 2018

Although the Department of Justice (DOJ) and the Federal Trade Commission (FTC) are the principal merger enforcers in this country, state attorneys general (state AGs) can, and often do, play a major role in merger review as well.

Expert Opinion

NY’s Expanded Ingredient Disclosure Requirements for Household Cleaning Products

Michael B. Gerrard and Edward McTiernan | September 12, 2018

This article examines the new DEC requirements for disclosure of the contents of, and risks associated with, chemicals used in household cleaning products and also compares some of the key features of New York’s requirements with those in California.

Analysis

Recent Opinions Address the Equitable Defense of Copyright Misuse

Lewis R. Clayton and Eric Alan Stone | September 11, 2018

In their column on Intellectual Property Litigation, Lewis R. Clayton and Eric Alan Stone report on the interpretation and application of the copyright misuse doctrine in three cases decided this year.

Realty Law Digest

Scott E. Mollen | September 11, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses two landlord-tenant cases: “Park N. Realty v. Cheik,” where the court dismissed a claim for possessory judgment based on laches, and “Matter of Sung v. Jiha,” where tenants defeated NYC Department of Finance’s effort to recoup DRIE credits.

Beware of the AIA Form of Performance Bond

Patricia Kane | September 11, 2018

In their Construction Law column, Kenneth M. Block and Joshua M. Levy advise against the use of performance bonds, writing: The performance bond is for the benefit of the owner and, theoretically, allows the owner to make claims on the bond if the contractor defaults and recover its damages for nonperformance. We say “theoretically” because the performance bond portion of the A312 is so full of conditions and traps for the unwary owner that it may be of little value.

Analysis

The Oddly Confrontational Strategies in 'Bank of Tokyo-Mitsubishi-Union v. DFS'

Robert Axelrod | September 11, 2018

The position of the DFS is that to allow a bank to jump to another regulator when the state is poised to continue discipline punctuated with prior consent orders is like letting a thief find sanctuary by crossing state lines.

Analysis

Court of Appeals Reins in Excited Utterance Exception – A Little

Joseph Nohavicka | September 10, 2018

Explaining to a client the excited utterance exception to the hearsay rule that permits the statement of a person who cannot be cross-examined at trial is embarrassing, and for them, often frightening.

Analysis Expert Opinion

Warranty Period for Non-Functioning Software: Does it Accrue?

Richard Raysman and Peter Brown | September 10, 2018

The warranty is among the most essential terms of a software license, as the provision often concerns the functionality and capability of the software.…

Analysis

Privacy and Protective Confidentiality Orders

Michael Hoenig | September 07, 2018

In his column on Complex Litigation, Michael Hoenig encourages use of the protective order: a flexible device that harmonizes the demanding party's need for access with the producing party's competing right to privacy.

Analysis

Litigation Remains Powerful for Property Owners to Secure Requested Access

David Cohen and Kelly D. Schneid | September 07, 2018

Once negotiations prove fruitless or circumstances indicate that the neighbors do not intend on granting access on fair terms within a reasonable time frame, property owners can and should proceed to litigation.

Analysis

What Is Wrong With the 'Transmar' Decisions

Franco Ferrari | September 06, 2018

There is still some confusion about when the United Nations Convention on Contracts for the International Sale of Goods applies and how a choice of law clause affects its application.

Expert Opinion

Presumption of Death: What Happens When an Individual Vanishes From Society?

C. Raymond Radigan and Jennifer F. Hillman | September 06, 2018

Recently, there has been new attention placed on the decades old disappearance of Kathleen Durst who disappeared in 1982. At the time of her disappearance,…

Expert Opinion

Insurers Overcome Defendants’ Efforts to Delay or Avoid Judgment Day

Evan H. Krinick | September 06, 2018

In his column on Insurance Fraud, Evan H. Krinick, looks at how insureds are raising a variety of arguments in an effort to delay—and sometimes to significantly delay—the insurers’ actions.

Expert Opinion

Recent Case Demonstrates Risk of Sales Tax in Affiliate Transactions

Joseph Lipari and Aaron S. Gaynor | September 06, 2018

It is common for groups of affiliate companies to record transactions within the group by "book entry" rather than actual transfers of cash. It is also common for one member of an affiliate group to undertake an activity that benefits all of the members of the group without necessarily passing on the cost of such activity.

Analysis

Computerized Test Interpretations in Custody Litigation

Timothy M. Tippins | September 05, 2018

In his column on Matrimonial Practice, Timothy M. Tippins explores some of the evidentiary issues presented when computer-based test interpretations are used by expert witnesses.

Marijuana Use and Supervised Release

Steven M. Witzel and Andrew B. Cashmore | September 05, 2018

In their Corporate Crime column, Steven Witzel and Andrew Cashmore review the issues that district courts face when confronted with the violation of a supervised release for using marijuana, at a time when the nation’s views on drug use are rapidly evolving.

Analysis

The Latest Fashion in Fashion Patents

Patricia Werschulz and Sandra Holtzman | September 05, 2018

What do fashion designers and famous clothing brands such as Jimmy Choo®, Christian Dior®, Louis Vuitton® and Crocs® have in common?

Realty Law Digest

Scott E. Mollen | September 04, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses two commercial landlord-tenant cases: “325 E. 14th St. Corp. v. Marie France Realty,” where neither party was a “prevailing party”; and “D’Jesus Rest. Corp. v. 1133 Boston Rd. LLC,” where the court held that the landlord did not tortiously interfered with tenant’s sale of her restaurant.

Apartment Transfers: Can Tenants Take Their Status With Them?

Warren A. Estis and Jeffrey Turkel | September 04, 2018

Sometimes a landlord and a tenant agree that the tenant will move from one apartment in a building to another. In their Landlord-Tenant column, Warren Estis and Jeffrey Turkel examine the questions: (1) If the tenant is rent controlled, can she take that status with her, even though the new apartment cannot be rent controlled by law? And, (2) if the tenant is stabilized and moves into a deregulated unit, has he forfeited his stabilized status?

Expert Opinion

When Is a Building's Rooftop Considered an Apartment Terrace?

Eva Talel | September 04, 2018

This column features an important recent decision by the Supreme Court, New York County, regarding who has the exclusive right to use a building’s rooftop, and succinctly summarizing current law on when directors may be held personally liable for board actions.

Commentary

Review of Personal Injury Awards: Questioning Reasonable Compensation

Thomas R. Newman and Steven J. Ahmuty Jr. | September 04, 2018

The jurisdiction of the Court of Appeals to review questions of fact is severely curtailed by the New York State Constitution (art. 6, § 3[a]), and the court’s primary role is its law-making function, to unify, clarify and pronounce the law for the state of New York.

Authentication of Social Media

Mark A. Berman | August 31, 2018

In his State E-Discovery column, Mark Berman uses case law to demonstrate how courts have been flexible as to the manner of authenticating electronic evidence, with often comes from a combination of sources.

Expert Opinion

First Amendment Retaliatory Arrest Claims: A Look at ' Lozman'

Martin A. Schwartz | August 31, 2018

In his Section 1983 Litigation column, Martin A. Schwartz notes that probable cause is a complete defense to a § 1983 Fourth Amendment false arrest claim. But is it also a complete defense to a § 1983 First Amendment retaliatory arrest claim?

Expert Opinion

New Ethics Opinion on Litigation Funding Gets It Wrong

Anthony E. Davis and Anthony J. Sebok | August 31, 2018

The New York City Bar ethics committee recently issued Formal Opinion 2018-5: Litigation Funders’ Contingent Interest in Legal Fees.

Analysis

CPLR 5511, the Pitfalls of Aggrievement, Beyond the Basics, Part I

Elliott Scheinberg | August 30, 2018

Aggrievement occurs when requested relief is denied in whole or in part or when someone demands relief against another, who opposed the application, and the relief is granted in whole or in part.