Patterson Belknap Webb & Tyler LLP (JD Supra United States)

1973 results for Patterson Belknap Webb & Tyler LLP (JD Supra United States)

  • Split First Department Panel Re-examines the Continuing Wrong Doctrine

    If a party hires an investment advisor that goes on to allegedly systematically abuse its role by engaging in self-dealing in violation of its contractual obligations and fiduciary duties, when does the applicable statute of limitations period begin?  Does the wrongdoing give rise to a single claim with a single statute of limitations period starting at the first incident of self-dealing, or does

  • IRS Publishes Detailed Guidance Relating to ARPA COBRA Premium Assistance

    On May 18, 2021, the Internal Revenue Service (“IRS”) published Notice 2021-31 (the “IRS Notice”) containing detailed guidance relating to premium assistance for COBRA benefits under the American Rescue Plan Act of 2021 (“ARPA”). The guidance provides much needed clarification on a number of practical questions for employers that arise in implementation of ARPA COBRA subsidies, which may be...

  • New Bankruptcy Court Ruling on When a Creditor Can File a Late Proof of Claim

    A creditor in bankruptcy must normally file a proof of claim by a certain specified time, known as the bar date, or have its claim be barred. Bankruptcy Rule 3002(c)(6)(A) provides a narrow exception to this rule when a creditor files a motion and “the notice was insufficient under the circumstances to give the creditor a reasonable time to file a proof of claim because the debtor failed to...

  • Does the COVID-19 Pandemic and Subsequent Emergency Actions by the Governor Make a Commercial Lease Voidable?

    In the wake of the COVID-19 pandemic (“COVID”), a common question that arises is whether commercial leases are enforceable when COVID and subsequent governmental responses frustrate the purpose of the lease or render its performance impossible.  There is not a one-size-fits-all answer, as the answer will turn on the underlying facts, but the lack of a contractual force majeure provision in the...

  • You Can Keep Your Curtains: Judge Schofield Denies Preliminary Injunction

    On May 26, 2021, United States District Judge Lorna G. Schofield (S.D.N.Y.) denied a preliminary injunction request from Plaintiffs Sure Fit Home Products, LLC, SF Home Décor, LLC, and Zahner Design Group, Ltd. (collectively, "Plaintiffs"). Plaintiffs allege that Defendant Maytex Mills, Inc. ("Defendant") infringes their design patent and trade dress by selling a hookless shower curtain.

  • Blurred Immunity: California Cannot Escape Adversary Proceeding on Grounds of Sovereign Immunity

    In 2018, the liquidating trustee for Venoco, LLC and its affiliated debtors (collectively, the “Debtors”) commenced an action in the United States Bankruptcy Court for the District of Delaware seeking monetary damages from the State of California and its Lands Commission (collectively, the “State”) as compensation for the alleged taking of a refinery (the “Onshore Facility”) that belonged to the...

  • Biden Administration Sets Sights on Cybersecurity with Executive Order

    The Biden Administration is zeroing in on cybersecurity.  In the wake of a high-profile wave of cyberattacks, including the SolarWinds supply chain attack and the more recent Colonial Pipeline ransomware attack, President Biden has issued an Executive Order (“EO”) designed to strengthen the federal government’s cybersecurity defenses.  And for good reason.  The SolarWinds supply chain attack in...

  • Circuit Clarifies Precedent, Holds That Sentencing Court Need Not Separately Explain Reasons For Imposition of 20-Year Supervised Release Term

    In United States v. Williams, a per curiam decision, the Second Circuit (Pooler, Sullivan, Park) affirmed the imposition of a 20-year term of supervised release on a defendant convicted of child pornography offenses, holding that it is plain from the record that the sentence was based on permissible factors.

  • Circuit Rejects “Listening Circle” Release Condition For Defendant Who Threatened To Assassinate Member of Congress

    In United States v. Carlineo, the Second Circuit (Parker, Lohier, Menashi) vacated a special condition of supervised release requiring the defendant to participate in a restorative justice program, concluding both that the condition was impermissibly vague, and that it improperly delegated excessive authority to the Probation Office.

  • New Federal and State Guidance Regarding Vaccinated Employees

    OSHA Adopts CDC Vaccine Guidance. On May 17, 2021, the federal Occupational Health and Safety Administration (“OSHA”) updated its online COVID-19 portal to announce that OSHA is revising its employer materials to reflect recent interim guidance from the Centers for Disease Control and Prevention (“CDC”). In the meantime, OSHA recommends that employers “refer to the CDC guidance for information...

  • Bankruptcy Court Dismisses NRA’s Ch. 11 Petition

    United States Bankruptcy Judge Harlin Hale recently dismissed the National Rifle Association’s Chapter 11 petition as not filed in good faith.  The decision leaves the 150-year-old gun-rights organization susceptible to the New York Attorney General’s suit seeking to dissolve it.

  • Two (Out of Three) Thumbs Down: Divided Ninth Circuit Panel Rules Rigged Product Reviews Can Be Actionable False Advertising

    When you’re in the market for a fresh haircut or a new restaurant, innumerable business and product reviews are available to guide you towards a cleaner trim or tastier takeout. But what happens when the reviewer is not an impartial arbiter, but a less-than-honest broker disguising a financial interest in the service or product they’re applauding? And can a reviewer be held liable for false...

  • Second Circuit Affirms Dismissal of Class Action Based on Claimed “Increased Risk” of Harm

    Is there standing to bring a lawsuit when an employee’s personal information is mistakenly circulated to all employees at the company?  A recent decision addressed exactly this question. In McMorris v. Carlos Lopez & Assocs., LLC, No. 19-4310, 2021 WL 1603808 (2d Cir. Apr. 26, 2021), the Second Circuit affirmed the district court in finding that the harm plaintiffs alleged (an increased risk of...

  • Second Circuit Joins Majority On Circuit Split, Finding Attempted Hobbs Act Robbery Qualifies As Crime of Violence under Section 924(c)

    In United States v. McCoy (Kearse, Parker, Sullivan), the Second Circuit held that attempt to commit Hobbs Act robbery qualifies as a crime of violence, siding with the majority of circuit courts, and parting ways with the Fourth Circuit and numerous district courts within the Second Circuit. The panel decision also drew a fine distinction, holding that aiding and abetting Hobbs Act robbery...

  • New York Imposes New Workplace Safety Measures with Passage of the HERO Act

    On May 5, 2021, New York enacted the New York Health and Essential Rights Act, or NY HERO Act ("the Act"), which amends the New York Labor Law, adding two sections aimed at curbing the spread of airborne infectious diseases (such as COVID-19, the flu, and other bacterial, viral, and fungal diseases) in the workplace. Section One of the bill requires employers to implement plans to combat the...

  • Judge Netburn Grants Transfer Venue Motion

    On April 29, 2021, District Judge Sarah Netburn (S.D.N.Y.) granted defendant, Inc.’s ("Salesforce") motion for transfer of venue to the Northern District of California ("the NDCA")—where it is based—pursuant to 28 U.S.C. § 1404(a).

  • Ignore the Court at Your Own Peril: First Circuit Affirms Denial of Discharge Based on Debtor’s Failure to Comply with Orders of the Bankruptcy Court

    Debtors who ignore instructions from the Bankruptcy Court do so at their own peril, as a recent case from the First Circuit Court of Appeals illustrates. In In re Francis, the First Circuit reminds debtors and practitioners that “the road to a bankruptcy discharge is a two-way street, and a debtor must comply (or at least make good-faith efforts to comply) with lawful orders of the bankruptcy...

  • Judge Cogan Acknowledges the Error of Precluding Evidence of Secondary Considerations of Nonobviousness

    On April 27, 2021, United States District Judge Brian M. Cogan (E.D.N.Y.) granted Plaintiff Leviton Manufacturing Co., Inc. ("Leviton") motion for a new trial based on the Court's exclusion of secondary indicia of nonobviousness.

  • Fourth Circuit Door War Leaves Groundbreaking Divestiture Order Intact

    The Supreme Court is the only avenue left for JELD-WEN Inc. after the Fourth Circuit denied the door manufacturer’s motion for rehearing en banc of a panel’s decision in Steves & Sons, Inc. v. JELD-WEN, Inc., 988 F.3d 690 (4th Cir. 2021), to affirm an order directing JELD-WEN to sell a plant it acquired in 2012.  That leaves intact a District Court’s divestiture order—a remedy typically obtained...

  • Commercial Division Clarifies Application of “Sufficiently Close Relationship” Requirement for Pleading Unjust Enrichment Claims

    Unjust enrichment offers an avenue for recovery in situations where no actual agreement exists between parties to a dispute. But this theory of quasi-contract does not apply to just any type of commercial arrangement.

  • New York DFS Announces Settlement With Insurance Company Under Cybersecurity Regulation

    On April 14, 2021, the New York Department of Financial Services (“DFS”) announced a cybersecurity settlement with insurance company National Securities Corporation, which suffered four separate breaches, two of which went unreported in violation of 23 NYCRR § 500.17(a). The settlement not only includes a monetary penalty but also mandates increased training and implementation of security tools,...

  • Preference Avoidance Actions: When Late is Ordinary

    A recent case shows how even late payments can be used to satisfy the ordinary course of business defense in a preference avoidance action.  Baumgart v. Savani Props Ltd. (In re Murphy), Case No. 20-11873, Adv. Pro. No. 20-1070, 2021 Bankr. LEXIS 1035 (Bankr. N.D. Ohio Apr. 19, 2021)...

  • Fourth Circuit Affirms Local Government Antitrust Immunity for Atrium Health

    The Fourth Circuit ruled last month that the Charlotte-Mecklenburg Hospital Authority, which does business as Atrium Health, is immune from antitrust damages as a “special function governmental unit” under the Local Government Antitrust Act of 1984 (the “Act”).  The decision in Benitez v. Charlotte-Mecklenburg Hospital Authority clarifies the scope of local government antitrust immunity and...

  • Judge Oetken Rejects Fee Award Despite Plaintiff’s Failure to Prove Standing

    On March 5, 2021, the Federal Circuit affirmed U.S. District Judge J. Paul Oetken’s (S.D.N.Y.) order dismissing the remaining claims of plaintiff Bobcar Media, LLC (“Bobcar”).  On March 30, 2021, Judge Oetken denied a motion for attorneys’ fees by defendant Aardvark Event Logistics, Inc. (“Aardvark”).

  • Commercial Division Enforces Forum-Selection Clause

    Can the purchasers of promissory notes containing non-New York forum-selection clauses enforce the notes in the Commercial Division? Not without an extraordinary showing as to why the clauses should be set aside, according to Commercial Division Justice Elizabeth Emerson’s recent decision in Stein v. United Wind, Inc. In Stein, Justice Emerson granted a motion to dismiss an action to enforce...

  • Update: Seventh Circuit Revives Fulton Circuit Split

    In January, we reported that the Supreme Court had resolved a split among the Circuit Courts of Appeals regarding property seized from a debtor pre-petition, holding that “merely retaining possession of estate property does not violate the automatic stay.” The underlying dispute in Fulton arose when individual debtors demanded that the City of Chicago return cars that were impounded for non-paymen

  • Fifth Circuit Impax Decision Validates FTC’s Post-Actavis Approach to Reverse Payments

    On April 13, 2021, the Court of Appeals for the Fifth Circuit issued its long-anticipated decision in Impax v. FTC, marking the first time an appellate court has weighed in on the merits of a so-called reverse payment case prosecuted by the Federal Trade Commission (“FTC”) since the Supreme Court’s Actavis decision in 2013. 

  • Supreme Court Denies Petition for Certiorari in Tribune Creditors’ Case

    In March, we reported on a brief filed by the Solicitor General recommending denial of a petition for certiorari filed by Tribune creditors seeking Supreme Court review of the Second Circuit ruling dismissing their state-law fraudulent transfer claims. This morning, the Supreme Court denied the petition, letting the Second Circuit decision stand.

  • Did You See That? Defeating Class Certification Where Class Members Did Not See the Challenged Advertisement

    In putative class actions alleging false advertising, plaintiffs often argue that class certification is appropriate because the language being challenged appeared on the defendant’s marketing materials or product label, thereby making the class members’ experience—and the question(s) to be resolved—common. These plaintiffs invariably claim that individualized questions of deception and reliance

  • CDAC Rule Proposal to Loosen Requirements To Become A Neutral Evaluator Still Pending

    On December 4, 2020, the Administrative Board of the Courts sought public comment on the Commercial Division Advisory Council’s (“CDAC”) proposed amendment to Commercial Division Rule 3(a), 22 NYCRR § 202.70(g). The current language of Rule 3 permits the court to direct, or for counsel to seek, the appointment of an uncompensated mediator for the purpose of mediating a resolution of all or some...

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