New York

Expert Analysis

• COVID-19 Orders Unlikely To Constitute Temporary Takings

  

  Although public agencies have issued a broad range of orders intended to slow the spread of COVID-19, they are likely safe from temporary takings claims due to the high hurdles for such claims and the expanded police powers granted to governments during public health emergencies, say Gene Tanaka and Emily Chaidez at Best Best.

• Opinion

  Time To Consider Percentage Rental Agreements For Lawyers

  

  It has long been the law that attorneys cannot use percentage rental agreements because doing so would constitute an impermissible sharing of fees with nonlawyers, but such arrangements can help lawyers match expenses with revenues in lean times like now, say Peter Jarvis and Trisha Thompson at Holland & Knight.

• Handling Employee Vacation Requests During COVID-19

  

  While there is little precedent for dealing with employee vacation requests during a pandemic, companies can protect workers by carefully asking about travel plans, and following public health agency and local guidelines when advising employees to self-isolate, say attorneys at Baker McKenzie.

• How Force Majeure Provisions Are Being Tested In New York

  

  The Southern District of New York's recent rulings in E2W v. KidZania and Latino v. Clay, together with prior precedent, are illustrative of New York state and federal courts' attitude toward force majeure and whether such provisions might excuse contract performance during the pandemic, say Stephanie Denker and Christie McGuinness at Saul Ewing.

• Corporate Investigation Lessons From EBay Stalking Scandal

  

  The recent eBay criminal cyberstalking scandal reminds companies and law firms that investigative activities, even if undertaken solely using online research tools, could easily risk criminal or civil legal liability and violations of attorney ethics rules, says Joseph DeMarco at DeVore & DeMarco.

• High Unemployment May Threaten Restrictive Covenants

  

  Restrictive covenants in employment agreements will face greater scrutiny from courts if high unemployment persists, but the analysis will depend on whether the company aims to protect trade secrets, client relationships or its interest in unique employees, says Reid Skibell at Harris St. Laurent.

• A Midyear Look At Key US Sanctions Developments

  

  During an active first half of 2020, the Office of Foreign Assets Control strengthened its sanctions programs, issued new guidance documents and announced several enforcement actions, underscoring that even during a pandemic, sanctions compliance is indispensable, say attorneys at Ropes & Gray.

• Reinsurance Implications Of COVID-19 Biz Interruption Laws

  

  In light of legislative and public pressure in the U.S. and U.K. on insurers to cover business interruption losses related to COVID-19, reinsurers will face new questions regarding their obligation to cover claim payments, say Robin Dusek at Saul Ewing and Susie Wakefield at Shoosmiths.

• What You Say In Online Mediation May Be Discoverable

  

  Mediation conducted online with participants in different states makes it harder to determine where communications were made, increasing the risk that courts will apply laws of a state that does not protect mediation confidentiality, say mediators Jeff Kichaven and Teresa Frisbie and law student Tyler Codina.

• Key Defense Approaches To 'Other Similar Incident' Evidence

  

  A New York state court's recent ruling in Marshall v. Port Authority of New York and New Jersey shows that, while product liability plaintiffs seek to use so-called other similar incident evidence to argue that manufacturers know their products are unsafe, defense counsel can successfully challenge such evidence, says Timothy Freeman at Tanenbaum Keale.

• Arbitration Pact Rulings Show Signature Snags For Employers

  

  Two recent appellate opinions highlight the challenges in proving specific employees signed arbitration agreements, but employers can take certain steps to defend such claims and ensure enforcement, say Ryan Glasgow and Tyler Laughinghouse at Hunton.

• Cert. Denial In Televisa May Embroil 3rd-Party Asset Managers

  

  A New York federal court's recent refusal to grant class certification to investors in Grupo Televisa in a FIFA scandal stock-drop case may lead to additional discovery burdens for asset managers performing third-party management services for pooled investment vehicles, say attorneys at Ropes & Gray.

• EPA Limits On States' Project Reviews Likely To Face Lawsuits

  

  The U.S. Environmental Protection Agency's recently announced rule limiting the scope of states' reviews of planned energy infrastructure projects will likely mean more litigation between states and the federal government — and more uncertainty for businesses and other stakeholders, says Philip Sholtz at Goldberg Segalla.

• A Legal Guide To What Happens Next In US Atty Berman Saga

  

  Although the next moves following the dramatic ouster of Geoffrey Berman as U.S. attorney for the Southern District of New York, and the status of Audrey Strauss as acting U.S. attorney, are largely circumscribed by the Federal Vacancies Reform Act, open questions remain, says Daniel Levy at McKool Smith.

• Mass. Court Deadline Tolling Will Cause Problems For Years

  

  While Massachusetts' 106-day tolling period for all civil statutes of limitations ends Tuesday, the pandemic-related pause will complicate calculation of limitations periods and have ripple effects in many jurisdictions for years to come, says Christian Stephens at Eckert Seamans.