Celebrating Five Distinguished Members of the College of Law Community

Article - Ruling Highlights Narrow Path in Defending Sexual Harassment Complaints (Legal Intelligencer)

The #MeToo era has prompted employers across the country to review their internal mechanisms for screening and investigating complaints of sexual harassment in the workplace. Federal, state, and local laws—and more recently, cultural mandates—require companies to implement prophylactic and remedial procedures to address or mitigate sexual misconduct.

Those procedures often require in-house counsel to participate in crafting defensible measures to address employee complaints, perhaps with the assumption that involvement by counsel will provide a cloak of privilege surrounding internal investigations. However, a recent decision from the Southern District of New York, Barbini v. First Niagara Bank, No. 16-cv-7887, highlights the challenges companies can face in protecting attorney-client privilege when defending claims that arise from or turn in some way upon internal investigations involving in-house counsel.

Article - The New York Law Journal publishes  “Canada Proposes Requiring Consent for Transfers of Personal Data Across Its Border,” an article authored by Patrick Burke, Chair, Data Technology & Cybersecurity Group, and Anne-Sophie Hutteau-Hiltzer, referendare with the Group. (Subscription Required)

Authored by Patrick Burke, Chair, Data Technology & Cybersecurity, and Anne-Sophie Hutteau-Hiltzer, referendare with our Data Technology & Cybersecurity, German and Corporate & Business Law Practices

Excerpt:

Canada’s Privacy Commissioner, Daniel Therrien, recently announced his intention to obligate companies to obtain Canadians’ consent before an organization engaged in commercial activities may legally transfer their personal information across the border for processing, including to the United States. Canada’s Office of the Privacy Commissioner (OPC) released a consultation paper on April 9, 2019 communicating this proposed change of direction, and calling for stakeholders’ commentary by June 4, 2019 (April 9, 2019 OPC Consultation on Transborder Data Flows). It is unclear at present whether the anticipated consent requirement will be applied to transborder transfer for processing of employees’ personal information by employers, which until now has not explicitly been required.

This is a significant turnabout for Canada. Consent for such transfers is not explicitly required under Canada’s Personal Information Protection and Electronic Document Act, S.C. 2000, c.5 (Can.) (PIPEDA). Until now, the OPC did not require the consent of consumers or other “data subjects” for transborder transfers of personal information for processing. Instead, it applied an “accountability principle” that was satisfied if a Canadian-based entity informed data subjects of transborder transfers in its posted privacy policy and remained legally accountable for the protection of personal data sent abroad to a third party for processing. Principle 4.1.3 of schedule 1 of PIPEDA provides as follow: “An organization is responsible for personal information in its possession or custody including information that has been transferred to a third-party for processing. The organization shall use contractual or other means to provide a comparable level of protection while the information is being processed by a third party.”

Media - Thomas Jackson, Chair of the Technology Practice, is quoted in "Challenges Facing Hospitality In the Next Five Years - An Inhospitable Environment" published in the D/SRUPTION Magazine report, The Future of Hospitality. | Read here

To read the full Hospitality Report, click here.

Thomas Jackson, partner at Phillips Nizer LLP, explains that the industry’s extraordinarily rich data market brings with it a much higher risk of identity theft. This is particularly the case, he says, “when the breach involves dates of birth, passport numbers, travel itineraries, and other kinds of discrete data that one would not expect to see in a typical payment system.” 

Article - Collecting Biometric Information Just Became Riskier Under Illinois Law (Pratt's Privacy & Cybersecurity Law Report, April 2019) authored by Patrick Burke and Alisha McCarthy | Read here

The authors Patrick J. Burke and Alisha L. McCarthy discuss a recent Illinois Supreme Court ruling, which is a boost to plaintiffs in Biometric Information Privacy Act lawsuits, and carries a cautionary note for companies that collect biometric information from consumers or employees in Illinois.

Article - CoinReport publishes, "The Lost Treasure of Quadriga CX: A Teachable Moment," an article by Patrick Burke, Chair of the Data Technology & Cybersecurity Group | Read here

Customers of QuadrigaCX, the Canadian virtual currency exchange, have been left in limbo without access to their funds after it was reported the company's founder and CEO Gerald Cotton had passed away leaving no other company executive with the private keys to their accounts.

Article - ThomsonReuters/Westlaw publishes, "The impact of the government shutdown on U.S. cybersecurity defenses and the lessons learned," by Thomas Jackson, Chair of the Technology Practice | Read the article

Article - PaymentsSource publishes "PayThink Quadriga case a wake-up call to investors on crypto storage" by Patrick Burke (February 20, 2019)

Article - Recognition of foreign estate fiduciaries and the enforcement of foreign estate determinations within the state of New York (Trusts & Trustees, February 1, 2019)

The purpose of this article is to describe and explain the likely approach that a New York court will take with respect to recognizing the status of fiduciaries appointed under the laws of non-US jurisdictions and the extent to which a New York court will accept and enforce judgments concerning the inheritance of property in accordance with the laws of non-US jurisdictions. We first consider how New York’s approach to these issues must be viewed in the context of New York’s position as a state of the USA. We next consider the ways in which a New York court may assert jurisdiction over the inheritance of property of a decedent who was not domiciled in New York at the time of their death. We then consider the way in which the New York personal property of a foreign decedent may be distributed without court intervention and finally proceed to consider the rules for the administration of the New York property of a foreign decedent where court intervention is necessary and how such property may be distributed, especially when it passes to foreign beneficiaries.

Article - The New York Bar Foundation features article, "What the New York Bar Foundation Means to Me," by Lauren Wachtler, co-chair of the litigation department, in their 2018 Annual Report.

Zur Information - Tortious Interference with Contracts (Winter 2018/19) | Published in German

Publication - "Trees have no tongues, but the Lorax has one," a blog post authored by Eileen Millett, partner in our Environmental Law Practice, featured by the American College of Environmental Lawyers (ACOEL). 

Last week, in Cowpasture River Preservation Association v. Forest Service a panel of the 4th Fourth Circuit rejected the U.S. Forest Service approval of a pipeline development that would have crossed 21 miles of national forest land, and the Appalachian National Scenic Trial...more

China Finalizes New Cyber Security Law, November 28, 2016 

The News In the Journal: Member Spotlight featuring Eileen Millett (New York State Bar Association Journal)

Article - Golden Oldies: The Music Modernization Act (Intellectual Property Magazine, July-August 2018)

Zur Information - Scheinselbstständigkeit nach US-Recht - Employees vs. Independent Contractors (Sommer/Summer 2018)

Article - U.S. Taxation of U.S. LLCs: Concerns About 'Hybrid' Tax Planning (Part 3 of 3) (TaxStringer, a publication of the New York State Society of Certified Public Accountants)

Website Accessibility Suits Threaten Omnichannel Sales (Law360)

In the course of the development of the common law, with its unique dependence on a sometimes unholy alliance between enacted and judge-made law, curiosities will arise. Retailers, auction houses and others with consumer websites that support physical sales facilities have seen this recently, as lawyers around the country have driven in fifth gear to their nearest federal courthouses to file lawsuits on behalf of the visually impaired, claiming that those websites exclude the visually impaired from equal access in violation of federal law.

Article - U.S. Taxation of U.S. LLCs: Major Considerations in the International Context (Part 2 of 3) (TaxStringer, a publication of the New York State Society of Certified Public Accountants)

Article - Intellectual Property Magazine published "Seeking Approval," an article written by Technology Practice chairman, Thomas Jackson, in its June 2018 issue about the harvesting of data gathered from as many as 87 million Facebook user profiles by the former data mining firm Cambridge Analytica.

Excerpt:

"What attracted so much ire in response to the Cambridge Analytica episode was not only that collected personal data of as many as 87m Facebook users in the US but also the nature of the data that was collected and how it was used.

The data was harvested using a personality test that, unbeknown to the Facebook users who took the test, not only gave a third-party access to their personal information but also the personal information of their friends for use in a political campaign."

Article - U.S. Taxation of U.S. Limited Liability Companies (Part 1 of 3) (TaxStringer, a publication of the New York State Society of Certified Public Accountants)

Article - Decision Leaves Fate of Employee Class Actions to Congress and the Court of Public Opinion (Legal Intelligencer)

Zur Information - Accidental Franchise (Frühling/Spring 2018)

Understanding The Realities Of The ADA And Your Website (Total Food Service)

Website accessibility is a hot topic right now which means you should be checking if your website is compliant with Title III of the Americans with Disabilities Act (ADA). If your website is not accessible to individuals with disabilities, you might get slapped with an unwanted and expensive lawsuit.

Article - Making Sense of Four Transatlantic Estate Tax Treaties: US-France, US-Germany, US-Netherlands, US-United Kingdom (Update April 25, 2018)

This is a revised version of an article that originally appeared in the New York International Law Practicum (Spring 2014).

Publication - Lauren Wachtler co-authors “If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in ADR,” adopted by the New York State Bar Associaiton’s House of Delegates.

Going, going, but not quite gone: Trials Continue to Decline in Federal and State Courts. Does it Matter?

Zur Information - US Legal Opinions – Bedeutung und Inhalt von Capacity und Enforceability Opinions (Herbst/Fall 2017)

The Intersection of Guardianship and Matrimonial Law (New York State Bar Association, Elder and Special Needs Law Journal)

When residents reject the flip...TRY, TRY AGAIN (HABITAT magazine)

A Step Too Far From a "SEP" In The Right Direction (The Practical Real Estate Lawyer)

Is this the real life? (IP Pro The Internet)

With emerging technologies, such as virtual reality (VR), breaking into the mainstream, already antique laws must rise to the occasion.

Zur Information - Kauf und Verkauf von Immobilien in den USA (Sommer/Summer 2017)

When malls were the disruptors of retail (Chain Store Age)

Conflict Ridden Homes, Harm to Children, and Reform of DRL 234 (Family News & Views, a publication of the Association of Family and Conciliation Courts (AFCC) - New York Chapter)

Article - International Estate Planning for United States Citizens (Revised August 2017)

Most of the material appeared originally in an article in the October 2009 edition of Estate Planning magazine, a publication of Thomson Reuters.  The article has been updated from time to time since its original publication but the article does not purport to give legal advice about the laws and taxes of any of the jurisdictions discussed in the article.  Details about such laws should be reviewed with legal counsel competent to give advice about the laws of relevant jurisdictions before taking action in any way reliant on the information contained herein.

Hightailing to Better Retailing Options (New York Law Journal, Outside Counsel column)

The Separate Property Credit in Divorce Actions (New York Law Journal)

Law Firm Succession Planning (New York Law Journal)

Article - US expatriate persons and property owners, the European Union Succession Regulation and the choice of New York law (Trusts & Trustees, April 1, 2017)

The EU Succession Regulation represents perhaps the most ambitious and comprehensive effort to date to regularize the rules about choice of law that apply to the succession of decedents' estates in any part of the world. The Article highlights the significance of the Regulation not only in planning for U.S. persons who live in the European Union, but also in planning for U.S. persons who live outside the European Union but who own property there. The Article also discusses the reception that a choice of law made under the Regulation may be expected to receive in New York State–one of the most prominent jurisdictions of the United States where issues of cross-border succession planning constantly arise and for which the Regulation may be especially relevant.

Zur Information - Der US-amerikanisches Jury Trial (Winter 2016/2017)

Questions Abound: FTC Antitrust Actions Under the New Administration (Deal Lawyers)

Duran Duran Case Shouldn't Affect Paul McCartney Contracts (Law360)

Potential Effects of a Trump Administration on Corporate Boards (Bloomberg BNA, Corporate Law & Accountability Report)

Lessons from Las Vegas: The Golden Knights and Trademark Registration (IP Frontline)

Zur Information - US-amerikanisches Arbeitsrecht (Herbst/Fall 2016)

Zur Information - Die Zuständigkeit amerikanischer Gerichte für ausländische Unternehmen nach Daimler AG v. Bauman (Sommer/Summer 2016)

Court Intervention in Child Alienation Cases (New York Law Journal)

by Elliot J. Wiener and Dr. Bernice Schaul (clinical psychologist)

Why Choose New York Law? (New York State Bar Association, New York Dispute Resolution Lawyer)

Reprinted with permission from New York Dispute Resolution Lawyer, Spring 2016, Vol. 9, No. 1, published by the New York State Bar Association, One Elk Street, Albany, New York 12207.

Zur Information - Die „Doctrine of Consideration“ - Grundlegendes Prinzip des US-/ Common Law-Vertragsrechts - „Eine Falle, die es zu vermeiden gilt“ (Frühling/Spring 2016)