Friday, October 28, 2016

The Chicago Cubs and Supreme Court history - courtesy of Prof. Barrett

For the Jackson List:


United States Supreme Court Justice John Paul Stevens, a Chicago native, has been rooting for the Chicago Cubs almost since they last won a World Series—that was in 1908, just twelve years before Stevens was born.


As Justice Stevens explained in a great interview posted on SCOTUSblog this morning (click here), he has seen many Cubs baseball games in Wrigley Field.  On October 1, 1932, for example, he attended the third game of that year’s World Series and witnessed Babe Ruth’s famous “called shot” home run … and thus saw the New York Yankees beat the Cubs, 7-5, on their way to sweeping that World Series.


On that day in 1932, a man named James M. Marsh, age nineteen, was listening to that game on the radio in western Pennsylvania and keeping score in his scorebook.  Fifteen years later, Jim Marsh was clerking for Justice Robert H. Jackson at the Supreme Court.  Marsh became a close friend of John Stevens, who was clerking then for Justice Wiley Rutledge.  Marsh learned of Stevens’s love for the Cubs, and that he had seen Babe Ruth hit the called shot.  In time, Marsh located his 1932 scorecard and gave it to Stevens.  Justice Stevens then displayed it on the wall of his Supreme Court chambers.


In contrast to Stevens and Marsh (and many of us), Justice Robert H. Jackson was no baseball fan.  In 1951, for example, when Major League Baseball had leadership troubles and Jackson was reported to be under consideration to become its next commissioner, he found the idea distasteful.


In summer 1950, as Jackson was preparing to take a cross-country train trip with his friend Harrison Tweed, a leading New York City lawyer, and he wrote Jackson to suggest that they see a baseball game on a layover day in Chicago, Jackson wrote back immediately, voting no:


Personally, I don’t care much about baseball and haven’t seen a game in a good many years.  Why don’t we take our chances on what we can do during the day[?]  Maybe some good friend like [Chicago lawyer] Tap Gregory will come to our rescue.  I may get in touch with him.


Two summers early, indeed while Jim Marsh was beginning his second year as Jackson’s law clerk, Jackson commented privately, and not approvingly, that Babe Ruth’s death had garnered more news attention than had the death of Tweed’s law partner Walter Hope.  (Really.)


But Justice Jackson did have a near-brush with the Chicago Cubs, and, indeed, with the Cubs in the World Series.  In early October 1945, beginning on the 6th of the month, Jackson was working in Berlin, in preparation for the impending prosecution of Nazi war criminals that he would be leading in Nuremberg.  Jackson kept busy during the next four days with numerous meetings, some social occasions, and his own work.  But really he was waiting for U.S. and other nations’ judges to arrive in Berlin so that the International Military Tribunal could hold its first session there (in the Soviet zone of military occupation), formally receiving the prosecutors’ indictment of the defendants, before adjourning to Nuremberg (in the U.S. zone) to conduct the trial.


By October 10, 1945, Jackson, knowing that he had much work to do in Nuremberg, was fed up with waiting around in Berlin.  He left two of his deputies to continue the work there.  Jackson had command of a military plane, and he ordered it to fly him and some of his team that evening to Nuremberg.


During the flight, Justice Jackson stayed in his seating area on the plane, I am sure.  But others, including his son and executive assistant Bill Jackson, crowded around the cockpit.  They managed to listen there to a radio broadcast of the final game of the World Series, which was being played in Wrigley Field.  (Alas for Cubs fans such as then-first year law student John Paul Stevens, just back in Chicago and civilian life after four years of wartime service in the U.S. Navy, the Detroit Tigers won that World Series game seven, beating the Chicago Cubs, 9-3, and thus the Series.)


In 2016, the long wait of Justice Stevens and all Cubs fans for a World Series championship is compelling.


It bears at least passing note, however, that another Justice, Harold H. Burton (1888-1964), would be rooting the other way.  Justice Burton was colleague of Justice Jackson and Justice Rutledge on the Court, and Burton was everyone’s model of judicial diligence and fairness.  Harold Burton had served as Mayor of Cleveland, Ohio, from 1935 until 1940.  He then became a U.S. Senator from Ohio, serving from 1941 until he resigned following his appointment to the Supreme Court.


Justice Burton was commissioned a Supreme Court justice on September 22, 1945.


That autumn, seventy-one years ago, was only three years before the Cleveland Indians, the Cubs’ opponent this year, won their most recent World Series.

Friday, July 15, 2016

Charles Desmond Inn of Court launches new FB page

Wednesday, June 22, 2016

Chautauqua Institute

I am very pleased to report that Tracey Meares, Ward Hale Hamilton Professor of Law at Yale University, will deliver Chautauqua Institution’s 12th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 11, 2016, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

Tracey L. Meares is a leading scholar, teacher and writer, focusing on criminal procedure and criminal law policy and emphasizing empirical investigation of those subjects.  She has worked extensively with the United States government, including from 2004-11 as a member of the Committee on Law & Justice, a National Research Council Standing Committee of the National Academy of Sciences, and on National Research Council committees that reviewed, respectively, research on police policy and practices, and the National Institute of Justice.  In November 2010, Attorney General Holder appointed Professor Meares to serve on the U.S. Department of Justice’s newly-created Science Advisory Board.  In December 2014, President Obama named Professor Meares a member of his Task Force on 21st Century Policing.

Professor Meares has been a Yale Law School professor since 2007.  She previously was Max Pam Professor of Law and Director of the Center for Studies in Criminal Justice at the University of Chicago Law School.  At both the University of Chicago and at Yale, Professor Meares was the first African American woman law professor to be granted tenure.  Before going into academia, Tracey Meares was a law clerk for the Honorable Harlington Wood, Jr., of the U.S. Court of Appeals for the Seventh Circuit and then an Honors Program Trial Attorney in the Antitrust Division of the U.S. Department of Justice.

Chautauqua Institution, a special venue of arts, education and recreation in western New York State, was a very significant part of Robert H. Jackson’s life, his broad and self-directed education, his public speaking training and experiences, and his thinking.

For an earlier Jackson List post on Chautauqua Institution, click here.

For Chautauqua Institution’s website, click here.

The Jackson Lecture at Chautauqua Institution is a leading annual consideration of the Supreme Court of the United States, on which Justice Robert H. Jackson served from 1941-1954, in the weeks following the completion of the Supreme Court’s annual Term.  Chautauqua’s Jackson Lecturers have been:
2005:  Geoffrey R. Stone, University of Chicago professor;
2006:  Linda Greenhouse, New York Times writer and Yale Law School professor;
2007:  Seth P. Waxman, WilmerHale partner and former Solicitor General of the United States;
2008:  Jeffrey Toobin, staff writer at The New Yorker and CNN senior legal analyst;
2009:  Paul D. Clement, Bancroft PLLC partner and former Solicitor General of the United States;
2010:  Jeff Shesol, historian, communications strategist and former White House speechwriter;
2011:  Dahlia Lithwick, senior editor at Slate;
2012:  Pamela Karlan, Stanford University professor;
2013:  Charles Fried, Harvard University professor and former Solicitor General of the United States;
2014:  Akhil Reed Amar, Yale University professor (click here for video); and
2015:  Laurence H. Tribe, Harvard University professor (click here for video).
For further information on Professor Meares’s upcoming lecture, click here.
Coincidentally (and not), this year’s Jackson Lecture at Chautauqua Institution will occur on July 11th, the 75th anniversary of Justice Jackson’s appointment to the Supreme Court of the United States.
Please share this information with others, and thank you for your interest.


John Q. Barrett
Professor of Law, St. John’s University, New York, NY
Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY

Thursday, April 14, 2016

ABL spoke to pre-law students at Niagara University yesterday

Thank you for the invitation professor Kevin Hinkley, a fellow Skadden alumnus.

Friday, April 25, 2014

NYS Trial Academy proposes language for retainer agreements to reflect new rule from the Appellate Division (see prior post)

Monday, April 21, 2014

ABL cited by SCOTUSBLOG in its "Petition of the Day"

        ABL went last week for the cherry blossoms, and hopes to return to appear before the USSC.

NWS">">NWS v. State of Idaho, (USSC 2014)

Thursday, April 17, 2014

Appellate Division amends rule concerning contingency fee arrangements

Thank you to Mike Ross, who presented to the NYS Academy of Trial Lawyers on this topic.  The old rule permitted 1/3 of the net recovery, whereas the new rule permits either (1) 1/3 of net recovery (i.e., fee calculated & deducted after costs are paid) IF client pays disbursements as they become due (or uses evergreen account) or (2) 1/3 of gross recovery (i.e., fee calculated & deducted before costs are paid).  This rule does not apply to medical malpractice actions.  It is important to revise retainer agreements to explain this choice in clear language. 

Friday, December 13, 2013

new subpoena rules in federal court

The ABA published a summary of the amendments to Rule 45.

Some of the more interesting changes:

Issuing court is the court in which the case is pending (no longer the court in which the recipient is located).  -- 45(a)(2)

Nationwide service permitted -- 45(b)(2)

Reminder that other parties must be served BEFORE the subpoena is served on the recipient -- 45(a)(4)

Monday, October 28, 2013

Witness reliability (or not)

Here is an interesting presentation by Dr. Elizabeth Loftus

Friday, March 15, 2013

CLE on Legal Ethics & Social Networking

On Thursday March 28, 2013, the Charles S. Desmond Inn of Court presented a CLE on "Legal Ethics & Social Networking" hosted by ABL. 

ABL will borrow generously from the work of fellow Skadden alumnus Nicole Hyland, whose research and comments are found at

Some of her links include (and lead to these interesting links on the subject)

Likewise, ABL also stumbled across this law review article from Touro Law Review ( 

Here is a short video on the subject, including an interesting hypothetical at the end discussing the differences between an investigator watching a plaintiff versus an investigator "friending" a plaintiff on FB etc. (

See also ABL's 4/29/11 post below. 

NY ethics opinions:

NYSBA Opinion 899 (12/21/11):  lawyer may answer questions in "real time" chatgroup, but may only provide general answers (not individual advice).  If person makes specific request seeking to engage the attorney, then the attorney may provide contact informnation (phone, e-mail etc.) permitting the person to contact the attorney outside of the "real time" site.

NYSBA Opinion 873 (6/9/11):  Offering a prize to join attorney's social networking sites is not prohibited as long as offer is not illegal conduct (which may be governed by other laws, such as those governing games of chance)

NYSBA article (9/2012)

Social Media liability risks

presentation to Theodore Roosevelt Inn of Court (Nassau County), 11/2011

ABA article re pitfalls

Monday, February 11, 2013

NY's Uniform Notice of Claim Act

In December, Governor Cuomo signed the Uniform Notice of Claim Act, which was not subject to much (if any) debate in the Legislature.

This law, among other things:

Adds CPLR 217-a:  making statute of limitations 1 year and 90 days for "every action for damages or injuries to real or personal property, or for the destruction thereof, or for personal injuries or wrongful death, against any political subdivision of the state . . . " 

Adds General Municipal Law sections 50-e(3)(f) and 53:  which permits claimants to either serve the NOC on the public entity (as is the case now) or to serve the NY Secretary of State, who may charge a fee of up to $250 and who will transfer the NOC to the named entities within ten days. 

Media accounts state the the sponsors of the bill signed by the Governor were seeking to "demystify" the NOC process to avoid meritorious claims being dismissed based on "technicalities."  It is not clear, however, that this law accomplishes that.  Any "technicalities" in a NOC that will result in dismissal will continue to remain fatal because Section 53(1) notes in relevant part that "[a]ll the requirements relating to the form, content, time limitations, exceptions, extensions, and any other procedural requirements imposed [under 50-e] . . . shall correspondingly apply to a notice of claim served upon the secretary of state as permitted by this section."

Moreover, if a claimant names the wrong entity (i.e., the Port Authority versus the City of New York), then serving the wrong entity via the NYSOS will not do anything to cure the problem. 

The NYSOS is allowed to charge up to $250 per NOC (and to split it with the named entities IF they have provided the NYSOS with "current and timely statutory designation" for service).  It would seem likely that parties serving a NOC will continue to do so in the normal course to save the fee, especially because many NOC's never ripen into a suit -- and because service via the NYSOS does not appear to do anything to "demystify" the NOC process.  Rather, it adds, at claimant's option, another layer of bureaucracy that delays notice to the municipality -- thus undermining the purpose of the NOC statutes (i.e., giving public entities timely notice of a claim in order to investigate the claim).  The NOC process becomes less efficient while giving claimants little, if any, additional benefit.

Despite its name, the Act does not appear to make the NOC process any more uniform than it already is.

Friday, November 16, 2012

Olma v. Collins -- dismissed by the 2d Circuit

The 2d Circuit agreed with ABL and dismissed claims against the former County Executive and three county employees based on absolute legislative immunity.

Thursday, May 24, 2012

Title VII retaliation must relate to EEOC charge

In Townsend v. Benjamin Enterprises, Inc., the 2d Circuit addressed an issue of first impression -- whether Title VII's "participation clause covers internal [i..e., employer] investigations not associated with a formal EEOC charge."  The court answered the question in the negtive, holding that Title VII's participation clause only extends to a formal EEOC investigation; "it does not include participating in an employer's internal, in-house investigation, conducted apart from a formal charge with the EEOC."

Tuesday, December 20, 2011

ABL and former County Attorneys -- Christmas celebration

ABL met with former Erie County Attorneys for a holiday celebration.  Pictured from right to left are:  Hon. Eugene F. Pigott, Jr., Larry Rubin, Fred Wolf, Ken Schoetz, Cheryl Green, Jim Magavern, Jeremy Colby, Hon. Patrick H. NeMoyer, and Hon. William Straub.

Friday, November 11, 2011

federal courthouse should be named after Justice Robert Jackson

Friday, April 29, 2011

Metadata Ethics Opinions

Sunday, February 13, 2011

Happy Birthday Justice Robert Jackson

Courtesy of Prof. John Q. Barrett of St. John's:

On February 13, 1952, Justice Robert H. Jackson celebrated his 60th birthday. Although the Supreme Court was in recess that week, Jackson and other justices were working in the building. Late that Wednesday afternoon, they were invited to Jackson’s chambers (today Justice Clarence Thomas’s chambers) for a small celebration that included a birthday cake. Chief Justice Fred Vinson and Associate Justices Felix Frankfurter, Harold Burton, Tom Clark and Sherman Minton attended, along with Jackson’s secretary Elsie Douglas, his law clerks and other Court employees.

Justice Burton, a scrupulous diarist, later made this little entry about the occasion:

Late in PM Justice Jackson had a birthday party in his chambers – the Chief Justice, + Justices Frankfurter, Clark + Minton + I attended – also his law clerks his law clerk C. George Niebank Jr + the other.

Niebank’s name was uncommon, but he had been clerking for Jackson for over a year and Burton clearly had gotten to know him. “The other,” apparently Jackson’s second law clerk, had joined the Jackson staff only a few weeks earlier following his December 1951 graduation from law school. His name, William Rehnquist, also was not common. I am sure that Burton in time came to know both the name and the young man. Rehnquist served as a Jackson law clerk through early June 1953 and then went into private law practice in Arizona.

Wednesday, February 02, 2011

e-filing in NYS court

Online Demonstration Video of New
E-Filing System Now Available

A demonstration of the new E-Filing System of the New York State Courts (NYSCEF) is now available online at The demo will allow attorneys to get a password and learn the benefits of e-filing and serving documents through NYSCEF. Free training sessions are also available through the NYSCEF Resource Center, for which attendees can obtain CLE Credits. For more information, contact them at 646-386-3033 or

Thursday, January 13, 2011

Facebook authorizations

In ROMANO v. STEELCASE, INC., (N.Y. Sup. 2010) Supreme Court in Suffolk County (Justice Spinner) engaged in a thorough analysis of whether or not defense counsel is entitled to seek an authorization for social networking sites such as Facebook and MySpace. The court held that a plaintiff in a personal injury action who is claiming physical limitations and loss of enjoyment are required to provide consents that authorize defense counsel to review plaintiff's Facebook/MySpace pages. Justice Spinner examined federal and Canadian case law because "there is no New York case law directly addressing the issues raised by this application, there are instructive cases from other jurisdictions." Justice Spinner also found that a plaintiff "has no legitimate reasonable expectation of privacy" in their online postings.

A month later, the Fourth Department decided McCANN v. HARLEYSVILLE INS. CO. of NY (2010 WL 4540599 (4th Dep't 2010), which held that it was error to grant a protective order prohibiting defendant from seeking disclosure of plaintiff's Facebook account. Although the court also affirmed the lower court's decision denying defendant's motion to compel, that decision was based on defendant's failure to establish the necessary factual predicate.

Wednesday, October 20, 2010

Thank you Mr. Chief Justice, may I have another!

Last night, John G. Roberts, Jr. (USSC CJ) was the Frank J. Raichle Lecturer. "A Conversation with the Chief Justice" was a conversation (thus appropriately titled) between the Chief Justice and his former partner, Joseph M. Hassett, who asked questions presented by Canisius College students, faculty, alumni . . . and even Chief Judge Skretny. It was an unparalleled evening for the WNY legal community and Buffalo's favorite son.

JGR was entertaining and informative. He deftly handled some not-so-deftly crafted questions (ABL wanted to know what JGR's favorite sit-com is and whether he mows his lawn). JGR also offered other bits of wisdom, such as, you should always eat a donut offered by a Court of Appeals judge. He also recollected that, while clerking for then Justice Rehnquist (6 years pre-CJ for WHR), assisted in writing an article on the duties of the Chief Justice, a position that both men would later hold). Generous references to Justice Robert H. Jackson (Jamestown's favorite son).

ABL almost hit for the cycle, shaking hands with judges on each level of the federal judiciary and two of the three levels of the NY State Court system.

Friday, August 13, 2010

Desmond & Jackson

Officers of the Charles S. Desmond (Buffalo) and Robert H. Jackson (Jamestown) Inns of Court met at the Robert H. Jackson Center. ABL and Greg Peterson, Judge Marshall, Judge Walker, and Arthur Bailey are pictured standing around the chair used by Justice Jackson at the USSC.
The Inns are meeting together on October 16, 2010 in Jamestown in conjunction with a play at the Jackson Center on the career of Clarence Darrow. Members of the bench and var who are interested in joining the Inn should contact ABL.

Tuesday, May 04, 2010

Attorney Advertising -- Alexander v. Cahill

recent non-compete decision

by Judge Ramos.

Wednesday, April 28, 2010

How Social Networking can impact your cases & clients

Today's Desmond meeting will discuss this topic.

Attached are some useful links:

Monday, April 19, 2010

USSC decision on attorneys' fees

Perdue v. Kenny A. (pdf is linked).

Tuesday, March 30, 2010

Sen. Orrin Hatch speaks to Federalists & Canisius

Sen. Hatch addressed the Buffalo Chapter of the Federalist Society yesterday afternoon -- and gave the Frank J. Raichle presentation at Canisius (at the wonderfully restored Montante Center). Both events were far better than ABL expected. Hatch is an engaging speaker. It is no wonder he has been in the Senate for 34 years.

The Raichle speech discussed the proper role for federal judges, which is to interpret the Constitution and laws as written, not to interpret them in light of changing social mores or the judge's personal preferences or ideology. He references the umpire analogy used by Chief Justice John Roberts (ABL is ready to clerk for you, have your people call my people) in his confirmation hearing. Judges should be like an umpire at a baseball game, calling balls and strikes as they see them, not as they would like them to have been thrown, and not predicting the outcome of the game based on the pre-game review of the teams' rosters. Sen. Hatch decried judicial activism. Although he admitted that conservative judges can also be activists, it is much more common in liberal judges because it is part of their philosophy to believe that the law is a living breathing thing rather than a written set of rules designed to govern behavior and to constrain government and judges. Sen. Hatch referred to the Dred Scott and Roe v. Wade decisions as examples of what happens when judges decide cases without Constitutional moorings.

Friday, March 19, 2010

"virtual parade of linguistic horrors"

"Less substantive but also adding to the confusion, the Court observes that in a world where spell-checking and grammar-checking devices are ubiquitously employed, the proposed amended complaint stands resolutely alone, offering a virtual parade of linguistic horrors. After cavalierly invoking the “jurisdication” (sic) of the Court, plaintiff refers to the defendants using dozens of different abbreviations and acronyms, in some cases so far removed from defendants' names as to render them unidentifiable. She converts bulleted lists into separate paragraphs comprised of inscrutable, open-ended sentence fragments, flouts the rules of grammar and sentence construction to the point that many allegations are entirely nonsensical, and vacillates constantly between referring to herself in the first person and third person narrative modes."

This was after the Court noted that the proposed amended complaint was worse than the originally file pro se version. ABL is only a spectator in this one.

Thursday, March 18, 2010

Deliberate Speed

Seven years ago, ABL submitted a proposal to the Committee responsible for considering changes to the Federal Rules of Civil Procedure. This proposal remains pending (2 of 5 from 2003 that have not been closed). The is a hyper-link to a list of other such proposals. ABL's proposal is still pending. I recall hearing from the Committee that the process takes a "long, long" time. They were not kidding.

Friday, February 26, 2010

USSC adopts nerve center test

In Hertz v. Friend, the USSC recently adopted the 7th Circuit's nerve center test for ascertaining a corporation's principal place of business for purposes of diversity jurisdiction, ending a 50 year split amongst the circuits.

Thursday, October 22, 2009

2009 Celebration of Excellence

ABL attended the Celebration of Excellence. Met Justices Scalia and O'Connor (I am sure it was the highlight of their evening). Enjoyed fabulous food (the pumpkin soup was rivaled only by the crab cakes). Reconnected with friends. Thanks to SouthWest, ABL was free to move about the USSC. Thank you Cindy Dennis!

Federal Bench & Bar dinner

As always, it was an excellent event. A great opportunity to see colleagues and meet a few new ones. Judge Arcara fondly recalled the life and career of Judge Elfvin (n.b. one friendly supplement: Elfvin started his law school career at Harvard while working at GE and that he transferred to Georgetown when he went to DC to work for the Department of the Navy).

Sunday, April 12, 2009

2d Cir. on arbitrators' authority to sanction bad faith

In ReliaStar Life Ins. Co. of New York v. EMC National Life Co., (2d Cir. 2009), the Second Circuit Court of Appeals construed a broad arbitration clause and held that the arbitrators were given discretion to sanction a party for bad faith conduct during the arbitration, including attorneys' fees.

Monday, March 02, 2009

Whistleblowers protect Federal Taxpayers

To protect itself against fraud, the federal government allows people who are aware of fraud to sue companies who bilk the government. The False Claims Act (a.k.a. the qui tam statute) allows private citizens to people or companies who fraudulently bill the federal government. Actions under this law typically involve government spending programs such as health care, education, social security or the U.S. military. Several states have also created similar False Claims statutes that enable whistleblowers to recover money at the state level.

People who file actions under the False Claims Act are often called whistleblowers. The Department of Justice may assume a qui tam suit or it may allow the whistleblower to litigate the case.

If the Department of Justice takes over the case, the qui tam plaintiff is entitled to between 15 percent and 25 percent of the recovery. If the Department of Justice does not intervene and the qui tam plaintiff pursues the lawsuit on behalf of the government, the qui tam plaintiff is entitled to between 25 percent and 30 percent of the recovery. Any person can be a qui tam plaintiff regardless of whether he or she has first-hand knowledge of the fraud as long as the fraud has not previously been publicly disclosed. If it has already been publicly disclosed, a person can bring a qui tam action only if he or she has first-hand knowledge of the fraud.

The False Claims Act also protects qui tam plaintiffs who are retaliated against by their employer due to their participation in a qui tam action. The protection is available to any employee who is suspended, demoted, threatened, harassed or otherwise discriminated against by his or her employer because the employee investigates, files or participates in a qui tam action. The protection includes reinstatement, double back pay, interest on the back pay, litigation costs and reasonable attorneys' fees.

ABL handles qui tam cases and welcomes inquiries.

Saturday, February 28, 2009

Learned Brother, where art thou?

The other day ABL referred to opposing counsel in court as "my learned brother." The presiding judge remarked that he had never heard that phrase before. Although uncommon, ABL wondered why (and when) the practice of so referring to one's adversary fell out of mainstream parlance. Although the practice remains prevalent in other common law jurisdictions, it has declined in the United States (perhaps in correlation with the purported decrease in collegiality and civility the bar has experienced over the last several generations). The practice was common in the U.S. at the turn of the last century. It appeared in a New York Times article from 1895 discussing the entry of learned sisters into the profession. (
ABL's quick perusal of case law shows that the practice continues to breathe in some parts of the country (especially Louisiana), although it appears most frequently (not surprisingly) where judges refer to other judges. A Google search also unearthed recent usage in a February 2009 review of Third Department decisions here in New York (

Thursday, February 12, 2009

4th Dep't addresses course of performance

In Westfield Family Physicians, P.C. v. Healthnow New York, Inc., 2009 WL 281296 (4th Dep't 2009), the 4th Department held that an ambiguous contract provision (i.e., not drafted by ABL) was best interpreted through the lens of the parties' course of performance. The case involved a risk-sharing provision in an agreement governing the compensation between a health insurer and a medical group. The group claimed entitlement to X and the insurer contended that the group was entitled to X-Y. The distributions were settled annually. In the first contract year with a supplement, the group was paid X-Y. They did not object. The next year there was no surplus (and thus no payment). That year, the individual physicians were also presented with provider contracts (in case they left the group). Due to a clerical error that caused a missing page, the provider agreements appeared to suggest that the physicians would get X. The following year, there was a surplus, and the group was paid X-Y. This time they objected. The Group's president also testified that the provider agreements (which he believed replaced the group agreement) were a "welcome change" because they clarified that the physicians would get X rather than X-Y.

The 4th Dep't. held that the group's failure to timely object when they were paid X (i.e., $90K less than what they claimed) rather than X-Y -- as well as deposition testimony elicited by ABL -- showed that the parties intended the contract to provide compensation under the X-Y formula.

Wednesday, February 04, 2009

NY WARN Act took effect on 2/1/09

The NY WARN Act will require employers with 50 or more employees to give 90 days advance written notification to employees for mass layoffs, plant shutdowns, or relocation. The Act includes a $500 per day penalty for each day notice is not given. It also includes exceptions such as the big three (i.e. war, terrorism, and natural disaster, oh my), if the layoff/closing was the result of the end of a contract/project that the employee knew to be of limited duration, if the need for the notice was not "reasonably foreseeable" (ABL sees litigation over this one), if the notice would have adversely affected the employer's active attempts to secure capital that would have staved off the job losses/closing, or, where the triggering event is caused by an "industrial action" (whatever that is).

This law applies to more companies than does the federal WARN Act, which applies to companies employing 100 or more workers and only requires 60 days notification.

The Act also appears to have been hastily drafted (i.e. legislators trying to look like they are doing something in response to the recession). For example, it is not clear what amounts to a relocation (i.e., does the termination of an employee who works from home and the hiring of another employee a "relocation"? What about consolidation of several offices?).

Although their heart may be in the right place, this measure makes it more onerous for companies (and thus less likely) to do business in NY. Although the same can be said of any regulation -- the benefits of the NY WARN Act outweigh its benefits. Borrowing from Lord Byron, it is better to have worked and lost than never to have worked at all.

Sunday, February 01, 2009

Subs contractually indemnifying GC's

In Brooks v. Judlau Contracting, Inc., 11 N.Y.3d 204 (2008) the Court of Appeals held that a subcontractor may contractually indemnify a general contractor, but that it may only indemnify the GC to the extent of the subcontractor's negligence. In other words, a sub cannot indemnify a GC for the GC's negligence. As noted by Prof. Siegel, the importance of contractual indemnification is especially important in cases such as this one -- where there was no "grave injury" and thus no common law indemnification (despite injuries sufficient to command a $3M settlement).

Thursday, January 22, 2009

Serving la vita loca

Professor Siegel's Law Digest for January 2009 notes that the recent Court of Appeals case in Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383, .... N.Y.S.2d .... (Nov. 20, 2008) holds that a summons may be served outside NY using NY service rules (including CPLR 308) unless there is a treaty that requires that the country's SOP rules must be followed. Where the Hague Convention applies, the country's service rules must be followed, but where the Inter-American Convention on Letters Rogatory applies, NY rules may be followed (because the IACLR is permissive, not mandatory.

In Morgenthau, the DA served numerous parties in Brazil via various means, including methods set forth in CPLR 308 and 311, to pursue a civil forfeiture action against $21 million that was illegally transferred from Brazil to NY (then NJ).

Professor Siegel's comment:

The Court of Appeals has handed down a major decision on the service of process outside the state. The Court holds that as long as a basis for extraterritorial jurisdiction exists, CPLR 313 – the main statute in point – provides that all of the methods of service, whether on individuals or corporations, that are available for service inside the state may be used for the service outside the state, regardless of the methods the foreign state may use as an internal matter. And this includes all of the substituted service methods for individuals available under the several paragraphs of CPLR 308 as well as the substituted method for service on corporations available under CPLR 311(b).

In this case, Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383, .... N.Y.S.2d .... (Nov. 20, 2008), Brazil was where the defendants were and the service on them was made there, exploiting a number of the methods supplied by CPLR 308 and 311. As long as there’s no treaty that requires deference to the law of the foreign state as to method of service, the New York provisions have an unfettered run, the Court holds, and there was no treaty barrier here.
Brazil does require that service by a foreign party on a local domiciliary be made by a letter rogatory – a request by one state’s court addressed to another’s to lend a hand with something – and a treaty, the Inter-American Convention on Letters Rogatory, to which both Brazil and the U.S. are signatories, addresses the letter rogatory. The treaty doesn’t make the letter rogatory exclusive, however, thus leaving the door open to the New York's methods, the Court finds. Another treaty, on the other hand, the well known Hague Convention, which does require that foreign process honor local requirements respecting service and would seem to require the honoring of the Brazilian letter rogatory rule, does not – alas for the defendants – apply here: Brazil never signed the treaty. Thus CPLR 313 and its small parade of New York's internal service methods are found to have free reign in Brazil as well.

The case was a civil forfeiture action seeking seizure by the district attorney of local assets of the defendants based on their alleged multi-million dollar wrongdoings inBrazil. There appeared to be no question but that the defendants were subject to New Yorkjurisdiction, which left the validity of the foreign service methods as the sole issue.

Nor was the amorphous doctrine of comity found to require deference to Brazil. In an opinion by Judge Ciparick, the Court explains that while it has sometimes applied comity when a party to New York litigation has asked that effect be given to a foreign law, “we have never applied the doctrine to import the laws of a foreign country into a New York lawsuit – and we decline to do so in this case”. Hence the removal of another fetter that might have qualified the extraterritorial reach of the New York methods of service.

The Court admonishes not to read too much into a statute that has a simple and straightforward instruction, such as CPLR 313 has here when it authorizes extraterritorial service. We must look, the Court says, not only at what the statute requires, but also at what it does not require. Absent in the plain text [of CPLR 313] is any requirement to fulfill a foreign locale’s service of process ­requirements in order to effectuate service in a New York ­action upon a defendant in another country.

Wednesday, January 07, 2009

WDNY legal commuity mourns loss of Judge Elfvin

Wednesday, December 31, 2008


The 2d Department recently agreed with the 3d Department in holding that a Hold Harmless Provision “was clearly intended to encompass a situation like the one at hand.” Meirowitz v. Bayport-Bluepoint Union Free School Dist., 2008 WL 5376578, at *1 (N.Y.A.D. 2 Dept. 2008) (citing Elmira Teachers' Assn. v. Elmira City School Dist., 53 AD3d 757, 760 (3d Dep't 2008), lv denied 11 NY3d 709) -- which ABL discussed here

These cases show the importance of including releases and hold harmless provisions in contracts -- including salary reduction agreements associated with 403(b) plans.