In their Transactional Real Estate column, Mitchell L. Berg and Peter E. Fisch, partners at Paul, Weiss, Rifkind, Wharton & Garrison, write that most courts apply a "business judgment" test to a debtor's decision to reject an executory contract whereby, in order to obtain court approval, a debtor must demonstrate that in the "best 'business judgment'" of the debtor, it would be "beneficial . . . to the estate" to reject the contract.
Specific Performance Remedies in Bankruptcy
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Marketplace
Two new leases have been signed by Madison Logic and the Environmental Defense Fund, both long-term tenants at 257 Park Ave. South, also known as the Gramercy Park Building.
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Reducing Legal Hurdles to Combined Heat and Power in New York
In his Environmental Law column, Michael B. Gerrard, Andrew Sabin Professor of Professional Practice and director of the Center for Climate Change Law at Columbia Law School, writes that an interdisciplinary team at Columbia University has been working on methods to advance the use of Combined heat and power in New York, with financial support from the Earth Institute's Cross Cutting Initiatives program.
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Realty Law Digest
Scott E. Mollen, a partner at Herrick, Feinstein, analyzes recent rulings, including a case where two different groups of shareholders claimed to be the legitimate board of a co-op and became locked in pre-emptive litigation with each other.
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Federal Circuit Declines to Endorse Doctrine of Patent Marking Estoppel
Scott D. Locke, a partner at Dorf & Nelson, writes: A number of courts have taken the position that by placing a patent number on a product, a manufacturer who has paid royalties is estopped from denying that its product embodies the patent for purposes of liability for both patent infringement damages and patent license royalties. However, the Federal Circuit had not until March 15 of this year ever directly confronted the issue.
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The IRS, Email Privacy and the Legislative Answer
In his Tax Litigation Issues column, Jeremy H. Temkin, a principal in Morvillo Abramowitz Grand Iason & Anello, discusses the protection afforded to electronic communications, the IRS' position on the need for a warrant to read emails, the negative publicity generated by the disclosure of the IRS' position, and recent legislative developments that would require the government to obtain warrants based on probable cause before accessing electronic communications and files stored on "cloud-based" services.
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New Deals
Business software vendor BMC Software has agreed to sell itself to a consortium of private investors led by buyout firms Bain Capital and Golden Gate Capital for $6.9 billion in cash, the companies announced on May 6.
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Finding and Refining Boundaries in Copyright Law
In his Intellectual Property Litigation column, Paul, Weiss, Rifkind, Wharton & Garrison partner Lewis R. Clayton reviews recent decisions of interest, including one where a Second Circuit panel recognized generous protection for creators of appropriation art under the copyright doctrine of fair use and another in which the Federal Circuit clarified the pleading standard for patent complaints.
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'Faragher' and 'Ellerth': Revisited 12 Years Later
Paul Millus, of counsel to Meyer, Suozzi, English & Klein, writes that in 1998 the Supreme Court decided two cases on the same day that changed employment discrimination law and spurred a cottage industry: the redrafting of every employer's handbook then existing.
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We're All on First: Coordinating Data Breach Response
In his Data Security column, Steven Beede, founder and general counsel of Crest Over Ventures, writes: The complex matrix of external risks and regulations has given rise to a proliferation of management positions with overlapping responsibility for responding to data beaches. Without a thoughtfully structured response framework, the key players in IT Security, Compliance, Privacy Security, Human Resources, Operations, and, of course, Legal, can end up stumbling into a "Who's on first" fiasco, putting at risk the preservation of key evidence, the attorney-client privilege and the efficacy of the crisis response.
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Sending U.S. Employees to China: Things to Consider
In his Employment Issues column, Littler Mendelson partner Philip M. Berkowitz discusses the benefits and challenges for both the individual and employer in structuring an overseas assignment as an expatriation, with the employee remaining on the payroll of the U.S. entity but assigned to a Chinese affiliate, or a local hire, with the U.S. employee signing an employment contract directly with the affiliated company in China.
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Insider Trading: Examining Tipper and Tippee Liability
Greg Kramer, a partner at Kleinberg, Kaplan, Wolff & Cohen, writes that recent SEC enforcement actions demonstrate that even casual disclosures of material, non-public information between friends risk drawing regulatory scrutiny if the recipient of the information trades or further disseminates the information to someone who does trade.
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Trial Lawyers: Reality and the Constitution
In a speech given after receiving the Federal Bar Council's Learned Hand Award on Law Day, Second Circuit Judge Barrington D. Parker Jr. said: In thinking about cases such as 'Loving v. Virginia' and 'Hurd v. Hodges,' I asked myself what would this country look like if any of them had been lost. Who knows? The point is, they were not lost. Trial lawyers saw to that and, as a consequence, the nation before our very eyes became more decent and more just.
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Three Decisions Address Actions Involving Government Entities
In their Eastern District Roundup, Harvey M. Stone and Richard H. Dolan, partners at Schlam Stone & Dolan, write that Judge Dora L. Irizarry, largely denying the parties' motions for summary judgment, found triable issues of fact that could establish the civil liability of defendant Credit Lyonnais under the Antiterrorism Act of 1992 and three other judges ruled in cases involving government entitites.
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Court of Appeals Decisions Clarify Primary Assumption of Risk Defense
Brian W. McElhenny, a partner at Goldberg Segalla, discusses the application of a doctrine that remains under fire in tort litigation to athletic activities occurring under suboptimal conditions and to recreational activities on public sidewalks or streets.
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Comments on Proposed Enhanced Standards for Non-U.S. Banks
In her International Banking column, Kathleen A. Scott, counsel at Arnold & Porter, writes that, while one can understand the FRB's interest in having the prudential standards for the large non-U.S. banks with U.S. banking operations resemble those of the prudential standards for large U.S. banks, their basic differences need to be taken into account, most importantly, non-U.S. banks already have home country regulators and prudential standards to which they must conform.
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Dodd-Frank Brings Regulatory Change to Investment Advisers
Patrick D. Sweeney, a partner at Herrick, Feinstein, and Matthew H. Kunkes, an associate at the firm, write that Dodd-Frank enacted various new exemptions that focus on specific types of investment advisory activities, including exemptions and exclusions for (i) advisers who solely manage venture capital funds, (ii) advisers who solely manage private funds with less than $150 million in AUM, (iii) foreign private advisers, and (iv) family offices.
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How a Man Named Brady Made History 50 Years Ago
Zuckerman Spaeder partner Paul Shechtman recounts the crime of John Leo Brady and Donald Boblit, Boblit's multiple confessions (not all of which were provided to Brady's defense), the appeals of Brady's conviction, and the Supreme Court loss that became a landmark due process decision.
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Income Deferral Strategies for High-Income Taxpayers
In his Tax Tips column, Sidney Kess, of counsel at Kostelanetz & Fink, writes: In 2013, there is a new, harsher tax landscape for high-income taxpayers. The top rates on ordinary income, capital gains, and qualified dividends are higher than in 2012. There are new phase-outs for itemized deductions and personal exemptions that limit write-offs for these taxpayers. And there are additional Medicare taxes on earned income and net investment income. All of these changes combine to make tax planning more challenging than ever.
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New and Proposed Research Rules Create Compliance Challenges for Banks
Lanny A. Schwartz, a partner at Davis Polk & Wardwell in New York, and Jeffrey T. Dinwoodie, an associate in the firm's Washington, D.C., office, write that, prompted in part by allegations of misconduct associated with the sale of auction rate securities, FINRA has proposed debt research requirements for member broker-dealers.
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