Columns

Analysis

Charitable Deduction and Other Indexed Tax Adjustments for 2018

Conrad Teitell | April 20, 2018

In his Estate Planning and Philanthropy column, Conrad Teitell writes: Not exciting—but important to know: Each year IRS adjusts charitable gift premium rules, tax tables, personal exemptions, standard deductions and other tax provisions. Here are the key charitable figures for 2018 from Rev. Proc. 2017-58, 2017-45 IRB 489 (Nov. 6, 2017) and Rev. Proc. 2018-18, 2018-10 IRB 392 (March 5, 2018).

Analysis

The Impact of New York City’s New Mandatory Construction Site Safety Training Requirements Under Local Law 196

John V. Barbieri and Jennifer R. Loyd | April 20, 2018

New York City recently enacted new construction safety training legislation that established a program to provide equal access to construction site safety training (SST) for workers, in addition to existing federal, state and local requirements.

Analysis

Judicial Approval of Disclosure-Only Class Action Settlements

Thomas J. Hall | April 19, 2018

In his Commercial Division Update column, Thomas J. Hall discusses recent Commercial Division decisions applying a new standard for judicial approval of non-monetary class action settlements in New York.

Analysis

Defamation, Search and Seizure, Presumption of Legitimacy and More

E. Leo Milonas and Andrew C. Smith | April 19, 2018

In their Appellate Division Review column, E. Leo Milonas and Andrew C. Smith highlight some of the Appellate Division’s closely watched cases—including a number of reversals—from the first quarter of 2018.

Analysis

'Matter of Reno': A Curious Case of Attorney Discipline Under the 'Fitness' Provision of Rule 8.4(h)

Ralph A. Catalano | April 19, 2018

'Matter of Reno' is a rare exception that gives us some insight into how the Appellate Division, Second Department views professional fitness in the context of an attorney’s handling of a transaction with an unrepresented and vulnerable party.

Analysis

Recent Developments Regarding Contributions to Capital

Elliot Pisem and David E. Kahen | April 18, 2018

In their Taxation column, Elliot Pisem and David E. Kahen: The change made by the TCJA to §118 has obviously narrowed the scope of the exclusion from income for non-shareholder capital contributions to corporations. Uniquest, and the statement in the TCJA Conference Report underscoring that §118 is applicable solely to corporations, may cause the courts to be even more reluctant to seriously consider any argument for an exclusion from income of non-partner contributions to partnerships.

Analysis

Jurisdictional Scope of Franchise Act, Future Royalties, Vicarious Liability

David J. Kaufmann | April 18, 2018

Franchising columnist David J. Kaufmann discusses recent decisions tackling issues of scope of the New York Franchise Act, lost future royalties, and vicarious liability of a franchisor.

Analysis

The Power of the Trifecta: Parsing the Meaning of Mentors, Sponsors and Networks for the Millennial Lawyer

Xiyin Tang | April 18, 2018

Sheryl Sandberg’s story was aspirational but not inspirational, because it didn’t feel replicable. The trifecta approach, however, is not just replicable—it gives young lawyers something to actually work towards, rather than wish for.

Does Local Law 50 Enact an Unconstitutional Taking?

Todd Soloway and William Charron | April 17, 2018

In their Hospitality Litigation column, Todd Soloway and William Charron discuss Local Law 50 which bans conversion of more than 20 percent of rooms in hotels with over 150 rooms. They argue the law "holds large hotel owners hostage, and imposes restrictions on their ability to put hotel properties to their highest and best use," and examine how this may violate the Federal and New York State constitutions.

Analysis

A Review of 'Rodriguez v. City of New York'

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

In their New York Court of Appeals Roundup, Lynn K. Neuner and William T. Russell Jr. discuss a fascinating 4-3 split decision in which the Court of Appeals has tackled what one judge has called “a vexing issue regarding comparative fault”—namely, whether a tort plaintiff must establish that there are no material disputed facts about whether he or she was comparatively negligent in order to prevail on a motion for partial summary judgment as to a defendant’s liability.

Analysis

The Tax Cuts and Jobs Act—How It Affects Real Estate (Part II)

Peter M. Fass | April 17, 2018

Real Estate Securities columnist Peter M. Fass continues his discussion of changes affecting real estate including the pass-through business deduction adopted in new §199A of the Tax Cuts and Jobs Act.

Analysis

Crypto Industry Sweep: ICOs Under Increasing Scrutiny by U.S. Regulators

Benjamin Klein, Deborah Meshulam and Jason Chang | April 17, 2018

Regulators are now taking a more active role in investigating not just ICOs but also the companies developing funds or other investment vehicles focused on cryptocurrencies or ICOs.

Realty Law Digest

Scott E. Mollen | April 17, 2018

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law discusses “Emigrant Bank v. Rosabianca,” where the court found no meritorious defense to a foreclosure action.

Analysis

Client Poaching or ‘Blatant Money Grab’ in Flint Water Cases?

Thomas A. Dickerson | April 17, 2018

Hopefully, the court will quickly resolve the competitive tensions between interim co-class counsel and co-liaison counsel so that the affected residents of Flint may have unified and vigorous representation.

Analysis

Copyright Law in the Age of Twitter

Shari Claire Lewis | April 16, 2018

In her Internet Issues/Social Media column, Shari Claire Lewis writes: A recent decision by the U.S. District Court for the Southern District of New York involving Twitter may have significant implications for online publications and, ultimately, for how people view the news.

Analysis

Enforcement of Settlement Agreements—A Case in Point

Edward M. Spiro and Judith L. Mogul | April 16, 2018

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul discuss Judge Pauley’s detailed and thorough analysis in 'United States v. Prevezon Holdings', which provides valuable insights for counsel negotiating and seeking to enforce settlement agreements.

Analysis

The ATA: Some Sense Brought Back Into the Mix

Lanier Saperstein and Krista Bolles | April 16, 2018

The Second Circuit’s decision in 'Linde v. Arab Bank' has reintroduced some much needed discipline into the application of the Anti-Terrorism Act.

Analysis

New Focus on Cryptocurrency, Familiar Questions of Jurisdiction and Territoriality

Philip Patterson and Vera Kachnowski | April 13, 2018

International Criminal Law and Enforcement columnists Philip Patterson and Vera Kachnowski write: As regulators increase their scrutiny of virtual currency markets, other foreign issuers are likely to come into their crosshairs. What actions such players take to make, or avoid, contact with the United States and whether it is enough for personal jurisdiction will continue to evolve. Similarly, the ability of U.S. securities laws to reach these marketplaces at all will be further tested as the case law develops in the near future.

Analysis

‘Mockingbird’ Stage Adaptation Raises Issues of Content Control

Michael I. Rudell and Neil J. Rosini | April 13, 2018

In their Entertainment Law column, Michael I. Rudell and Neil J. Rosini use an action filed last month concerning a live stage adaptation of 'To Kill a Mockingbird' to illustrate how critical the contractual clauses that govern the extent of the author’s creative control are when artistic visions clash between an author and (here) a producer.

Analysis

'BHUSD v. FTA': How the Court Departed From NEPA’s Presumptive Remedy to Justify a Popular Infrastructure Project

Jennifer S. Recine, Lauren Tabaksblat and Tiffany L. Ho | April 13, 2018

When a court finds that an agency has violated NEPA by overlooking or omitting an important impact from its review and remands the decision to the agency for further study, the court almost always vacates the record of decision associated with the project, stopping the project until the remand analysis is completed. In two recent decisions, however, courts departed from this presumptive remedy.

Analysis

Ineffective Assistance Claim Rejected, DACA Rescission Barred, Virtual Currency Injunction Granted

Harvey M. Stone and Richard H. Dolan | April 12, 2018

Eastern District Roundup columnists Harvey M. Stone and Richard H. Dolan discuss decisions declining to grant collateral relief to a petitioner alleging that he would not have pled guilty had counsel accurately explained the risk of deportation; granting a preliminary injunction barring the Secretary of Homeland Security and others from rescinding the DACA Program; and granting the CFTC’s application for an injunction against deceptive practices regarding virtual currency “spot” trading.

Analysis

Third-Party Funding of Lawsuits Permeates the Legal Landscape

Neal M. Eiseman | April 12, 2018

The answers are not entirely clear, but one thing is certain: Third-party funding and financing is a developing, unsettled area of the law. As such, as in any new endeavor, attorneys and their clients should proceed with caution.

Analysis

Stockholder Challenges to Executive Compensation

Joseph M. McLaughlin and Shannon K. McGovern | April 11, 2018

Corporate Litigation columnists Joseph M. McLaughlin and Shannon K. McGovern write: The Delaware Supreme Court recently clarified the limits of the stockholder ratification defense in litigation challenging director compensation awarded under the parameters of a stockholder-approved compensation plan.

Policy Exhaustion

David M. Barshay | April 11, 2018

In his No-Fault Insurance Law Wrap Up, David M. Barshay discusses the issues involved when an insurance policy is at or near exhaustion, including whether an insurer can ever be deemed to have waived its policy exhaustion defense.

Analysis

‘Possession, Custody or Control’—Got It?

Michael B. de Leeuw | April 11, 2018

What does it actually mean these days to have “possession, custody or control” of a document or a few bytes of ESI? It is a critical question because discovery failures can lead to adverse inferences, sanctions and infamy!

Analysis

DOJ Brings First ‘No-Poach’ Prosecution Since Issuing Antitrust Guidance for HR Professionals

Juan Arteaga and Richard Stella | April 11, 2018

A careful review of this settlement and the Antitrust Division’s accompanying press release indicates that there is a significant likelihood that no-poaching and wage-fixing agreements that were entered into or that continued after the Antitrust Division issued its guidelines for human resource professionals will be prosecuted as criminal violations.

Analysis

An Interview With Judge Dan Polster

Abby Tolchinsky and Ellie Wertheim | April 10, 2018

Impressed by Judge Dan Polster's commitment to the mediation process and what are clearly exceptional skills, Mediation columnists Abby Tolchinsky and Ellie Wertheim had the opportunity to speak with the judge about his theory and process. While all mediators help parties come to autonomous resolutions, his unique methodology entails employing the gravitas of the robe.

The New World of Prescriptive Easement Cases

Adam Leitman Bailey and John M. Desiderio | April 10, 2018

In their Land Use column, Adam Leitman Bailey and John M. Desiderio discuss how New York appellate courts determine whether or not a party is entitled to claim a prescriptive easement over another party’s land, and review a number of recent cases and claims.

Analysis

Defining Characteristics of Consummate Dealmakers

Aaron Y. Strauss | April 10, 2018

Consummate dealmakers enjoy elevated reputations in the market place. Clients seek them out. What distinguishes these star performers from the pack? Though each differs in some ways, the commonalities among the top dealmakers are instructive.

Commentary

Book Review: Lessons From the Chinese Exclusion Act

Jeffrey M. Winn | April 09, 2018

As the book reminds us, Chinese exclusion was hurtful, harmful, ineffective, misguided and shortsighted.

Analysis

An Injunction for Copyright Infringement Can Depend on if the Property Is the Software or the Underlying Source Code

Richard Raysman and Peter Brown | April 09, 2018

In their Technology Law column, Richard Raysman and Peter Brown discuss a recent decision in which the court partially granted and partially denied an injunction, while laying out the difference between injunctive relief as applied to software itself and the core source code.

Analysis

When the Criminal Lawyer Shields the Client

Joel Cohen | April 09, 2018

In his Ethics and Criminal Practice column, Joel Cohen discusses whether Trump's lawyer, John Dowd, could have personal criminal exposure if what the The New York Times reported is true—that early on in the Mueller investigation, he communicated to Paul Manafort and General Michael Flynn that Trump would ultimately pardon them.

Analysis

AT&T/Time Warner: How Judge Leon’s Experience in ‘Comcast/NBCU’ May Shape the Trial

Shepard Goldfein and Karen Hoffman Lent | April 09, 2018

In their Antitrust Trade and Practice column, Shepard Goldfein and Karen Hoffman Lent continue their discussion of the DOJ's suit to block AT&T/DirecTV’s proposed acquisition of Time Warner. At the approximate midpoint of the trial, they return to consider how a vertical mega-merger from a few years ago—and a familiar face from that case—may provide some clues of what is to come.

Analysis

Creating Cooperation in Discovery: Musings on Building Trust

Andrew Peck, Dawson Horn and David Kessler | April 09, 2018

Where parties cooperate, discovery disputes are limited, narrowed and, sometimes, even eliminated. Where parties do not cooperate, there are more disputes, they are uglier, and the costs escalate.

Analysis

The Courts Have Given Clear Guidance on Child Support. Why Is It Not Being Followed?

Yonaton Levoritz | April 09, 2018

While the Judicial Departments of the New York Appellate Division and the State Court of Appeals are in tandem in their holdings concerning the manner in which lower courts are to handle split custody arrangements and child support, New York practitioners are reporting that lower courts recently have been misapplying the law.

Analysis

Reversals of NLRB Precedent Have Significant Implications for Employers

David E. Schwartz and Risa M. Salins | April 06, 2018

Labor Relations David E. Schwartz and Risa M. Salins discuss recent significant reversals by the NLRB, including the Board’s rulings on joint employer relationships, the standard for determining whether workplace policies applicable to represented and unrepresented employees violate the National Labor Relations Act, an employer’s obligation to bargain prior to implementing changes consistent with past practice, and the ability of unions to organize so-called micro-units.

Analysis

Enforcing New York Convention Awards in the United States: Getting It Right

John Fellas | April 05, 2018

International Arbitration columnist John Fellas discusses the various distinctions made by the Second Circuit in 'Gusa' and their implications for parties applying to U.S. courts to reduce an award to judgment.

Analysis

Should Respondents in Family Offense Cases Be Granted Credit for Time Served When Proceedings Are Protracted?

David Laniado | April 05, 2018

Though Family Court proceedings are deemed civil, fairness, justice and due process cry out for respondents to be granted credit for the time they are “temporarily” subjected to an order of protection pending a final determination. It is time that the Family Courts follow suit and grant such credit to respondents, especially when a temporary order of protection is issued and the hearing is protracted.

Analysis

Insurance Broker Liability: A Tale of Two States

Robert D. Chesler and Carrie Maylor DiCanio | April 05, 2018

New York and New Jersey courts have adopted radically different approaches to the liability of insurance brokers to their customers.

Analysis

Playing Both Sides: Facing the Harsh Truth of Law Firm Service Duality

Marcie Borgal Shunk | April 05, 2018

Recently, Hugh A. Simons wrote for American Lawyer an enticing argument advocating elite law firms increase their rates. In one striking comment, Simons suggests elite law firms jettison any and all commodity services.

Analysis

Limiting Liability of Lenders: The Lyondell Case

Barbara M. Goodstein | April 04, 2018

In her Secured Transactions column, Barbara M. Goodstein writes: The changes in law arising from the Great Recession were certainly considerable. But it may come as a surprise to many that as much as 10 years later court decisions continue to emerge from those turbulent times.

Analysis

Protecting Attorney-Client Privileged Communications Disclosed to Retained Professionals

Michael J. Hutter | April 04, 2018

Evidence columnist Michael J. Hutter writes: In today’s increasingly complex legal environment, attorneys may need the assistance of professionals, e.g., scientists, engineers, physicians, accountants, investment bankers and even, public relations specialists to effectively and competently advise their clients. Working with these professionals will often require the disclosure to them of attorney-client privileged information. Does such disclosure result in the loss of privilege protection?

Analysis

Safe Harbor After ‘Merit Management’

Christopher Harris and Kevin Mallen | April 04, 2018

In 'Merit Management Group v. FTI Consulting', the Supreme Court settled a circuit split over whether the Bankruptcy Code §546(e) safe harbor applies when the only covered entity involved in the challenged transaction was an “intermediary,” i.e., was involved in a “component part” of the transaction, but was not the initial transferor or the ultimate transferee

Analysis

Anatomy of a Cyber Attack

Benjamin Dynkin and Barry Dynkin | April 04, 2018

Lawyers have a duty to educate themselves on at least the basics of cybersecurity. An attorney’s obligations in relation to cybersecurity extend beyond his or her core duty to safeguard the data of his or her clients and extends to every aspect of the role of attorney as counselor.

Analysis

The Coming Storm Over the 2020 Census

Christopher Dunn | April 04, 2018

Civil Rights and Civil Liberties columnist Christopher Dunn writes: While it’s too early to predict the cases the Supreme Court might see over the 2020 Census, an examination of three of its most recent decisions provides important insights into what types of disputes might come to the court, who can bring those disputes and when, and what types of constitutional and statutory claims the cases may offer.

Analysis

In 'Redbridge,' Court Allows Waiver of Right to Seek Yellowstone Relief

Warren A. Estis and Michael E. Feinstein | April 03, 2018

In their Landlord-Tenant column, Warren A. Estis and Michael E. Feinstein discuss 159 MP Corp. v. Redbridge Bedford, a "milestone decision" where Second Department held that a commercial tenant may waive its right to seek 'Yellowstone' relief.

Analysis

Strategies for Preventing Sexual Harassment

Jeffrey S. Klein and Nicholas J. Pappas | April 03, 2018

Employment Law columnists Jeffrey S. Klein and Nicholas J. Pappas provide some suggestions regarding how employers might want to assess their workplace cultures, and then offer thoughts regarding common issues leaders should consider in seeking to improve their cultures.

Analysis

New York's Medical Marijuana Law Comes of Age

Geoffrey A. Mort and Desiree Gustafson | April 03, 2018

What originally was seen as one of the most restrictive medical marijuana laws in the country, viewed by some as so narrow and limited in scope that it was intended to fail, has evolved considerably as the atmosphere in the United States with regard to legal access to marijuana has changed.

Realty Law Digest

Scott E. Mollen | April 03, 2018

Scott Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law discusses three cases: “Cambridge Leasing Prop. v. Ortega,” “Mogul Media Inc. v. City of New York,” and “74-78 Post Ave. Heights Assoc. v. Reyes.”

Analysis

Issuing Guidance on ESI Custodians, Court Defers to Responding Party

H. Christopher Boehning & Daniel J. Toal | April 02, 2018

In their Federal E-Discovery column, H. Christopher Boehning & Daniel J. Toal write: 'In re EpiPen' breaks new ground on the standards for designating ESI custodians and, more broadly, on the proper scope of discovery under Federal Rule of Civil Procedure 26(b)(1). Judge James provides a clear and coherent set of principles for practitioners.