NYSBA SUMMER/FALL 2013 | VOL. 19 | NO. 2 Commercial and Federal Litigation Section Newsletter A publication of the Commercial and Federal Litigation Section of the State Bar Association

Message from the Message from the Outgoing Chair Incoming Chair

It has been an honor and It is my privilege and honor privilege to serve as Chair—in- to serve as the twenty-fi fth Chair deed the fi rst Chair of color—of of the Commercial and Federal the Commercial and Federal Litigation Section. That calls for Litigation Section. This has been a celebration (of the Section’s an extraordinary year for all of accomplishments, not my acces- us. Because of the hard work sion to the Chairmanship), and and dedication of your offi cers, the Section will celebrate its 25 the Executive Committee, and years of existence on October so many talented members, I 23, 2013, with a reception at the can report that our growing and Tracee E. Davis Stanley H. Kaplan Penthouse Gregory K. Arenson strong Section is in wonderful condition. I know I am in the Samuel B. and David Rose Building in New York leaving you in the most capable hands. Greg Arenson City. All Section members are invited. will be a great Chair. Looking back at the 25 years of the Section’s history Refl ecting on the past year, we should all be proud (and I have been a member the entire time), I see that, of our Section’s accomplishments. There are so many, among other things, the Section has played major roles the confi nes of this article will not permit me to list them in the formation of the Commercial Division, the elimi- all. So I will highlight only a few. nation of occupational exemptions for jurors, the enact- ment of Local Rule 26.3 of the Rules of the The Section’s newly formed Committee on Com- District Courts for the Southern and Eastern Districts of mercial Jury Charges, headed by Judge Andrea Masley, New York providing for uniform defi nitions for discov- (continued on page 3) (continued on page 4) Inside Spring Meeting 2013: From Tomb Raiders to Whistleblowers Third-Party Litigation Funding Explored by the Section...... 13 with Detours for Third-Party Litigation Funding (James M. Wicks) and Procedure in SDNY Complex Cases ...... 6 (Mark A. Berman) CPLR Amendments: 2013 Legislative Session ...... 14 Section Presents Its Seventh Annual “Smooth Moves” 2013 Amendments to the Uniform Rules for Supreme CLE Program for Attorneys of Color and the and County Courts, Rules Governing Appeals, and Honorable George Bundy Smith Pioneer Award Certain Other Rules of Interest to Civil Litigators ...... 14 to Esteemed Attorney Ken Standard ...... 11 (Carla Miller) Notes of the Section’s Executive Committee Meetings ...... 16 Fordham Law Student Receives the New York Bar Foundation’s Former Section Chairs Meet to Discuss Section’s Plans Commercial and Federal Litigation Section and Advise Current Officers for the Coming Year ...... 17 Minority Fellowship ...... 12 HON. IRA B. WARSHAWSKY Former Supreme Court Justice of the state of New York, Nassau County, has joined NAM’s New York Metro panel

Judge Warshawsky has been a distinguished member of the New York judiciary for the past 25 years. As a New York Supreme Court Justice in Nassau County’s Commercial Division from 2002 through 2011, he presided over various high-stakes business claims and disputes, including business valuation proceedings, corporate and partnership disputes, class actions and complex commercial cases. Immediately prior to this appointment, Judge Warshawsky handled general litigation, including products liability, from 1998 to 2002. From 1987 to 1997, he sat in the Nassau County District Court presiding over a wide variety of matters.

According to the 2009/2010 New York Judge Reviews, Judge Warshawsky has been praised for keeping a “calm” demeanor, even during highly charged, high-profile cases. Lawyers interviewed described Judge Warshawsky as “one of the hardest working, intelligent, even-handed judges who has a very good sense of justice.” He has been described as a Hon. Ira B. Warshawsky “top-notch judge” who is known for encouraging settlement Former Justice of the Commercial Division negotiations without being overly aggressive. One attorney of the Supreme Court, Nassau County stated, “Judge Warshawsky is one of the best judges I have ever appeared before in the nation.”

Judge Warshawsky is available to hear cases in any of NAM’s offices throughout the New York Metropolitan area.

The Better Solution

122 East , Suite 803, New York, New York 10168 Additional Locations: Garden City, Brooklyn, Staten Island, Westchester and Buffalo (800) 358-2550 www.namadr.com

2 NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 Message from the Outgoing Chair (Continued from page 1) who with the incredible work of former Section Chair Practices Guide to E-Discovery, which was adopted by Lauren Wachtler, Commercial Division Justice Shirley the NYSBA. Our Federal Judiciary Committee, under Jay Kornreich, and one of our newest jurists, Judge Melissa Safer’s and John Winter’s leadership, produced an update Crane, presented several substantive reports, including to our Section’s Guide to Individual Practices of Federal proposed jury instructions, which were enthusiastically and Magistrate Judges in the Southern and Eastern Dis- received by the official Pattern Jury Instructions Com- tricts. Our Committee on CLE, headed by Kevin Smith, mittee. Through their efforts, we have managed this year, presented our Section’s highly touted Commercial Trial hopefully, to establish a solid working relationship with Academy for the second straight year. Finally, our Com- the official PJI Committee that will continue to grow un- mittee on Diversity, through the tireless dedication of der Greg’s leadership. Hon. Barry Cozier, Carla Miller, and former Section Chair Lesley Friedman Rosenthal, presented the Smooth Moves During this past year, the Section also established a Event at Lincoln Center for the seventh straight year. Committee on Legislative and Judicial Initiatives, headed by former Section Chair Vince Syracuse. With the Com- Needless to say, we have achieved a good deal, and mittee serving as a vehicle, the Section can now effective- having had the wonderful opportunity to work with our ly work on issues and legislation affecting the state and Section’s Executive Committee and, in particular, my fel- federal judiciary and the advancement of commercial liti- low offi cers Greg, Paul Sarkozi, Jim Wicks, Rebecca Hol- gation. Indeed, this year, with the Committee’s assistance, lis, and Jackie Grodin, I am certain our Section’s tradition the Section became one of the leading voices of the New of making signifi cant contributions to the bench and the York State Bar Association in advocating before Congress bar will continue to grow. the need for adequate funding of the federal judiciary and in extolling the deleterious impact budget cuts will have I owe Greg, Paul, Jim, Rebecca, and Jackie an enor- on the administration of justice. mous debt of gratitude, for without them this year would not have been the success that it was. I also give special During the year, the Section also established what thanks to all of Section’s former chairs whose visionary may be the fi rst of its kind, a Committee on Social Media, leadership is what’s made our Section great. Particularly, to address the legal issues that crop up in discovery of I thank former Section Chairs Lauren Wachtler, Jay Safer, social media and in the use of social media by attorneys. Jonathan Lupkin, and Vince Syracuse for rolling up their Due to the leadership of Co-Chairs Mark Berman and sleeves and contributing even more of their time, extraor- Ignatius Grande, the Section now has a presence on Twit- dinary talent, and expertise to the Section. I also thank ter and can be followed at @nysbacomfed. Also another Judge Stong for offering me the once-in-a-lifetime oppor- fi rst, the Section was invited to join the American Bar As- tunity to travel to Cambodia and to speak about the great- sociation’s delegation to Cambodia. Headed by Eastern ness of our wonderful legal system. And a very special Bankruptcy Court Judge Elizabeth Stong, our Section par- thanks to my fi rm, Zeichner Ellman & Krause, LLP. They ticipated in a week-long international legal exchange that generously sponsored my trip to Cambodia and permit- focused on the rule of law in the U.S., the role of judges ted me to hold this second “full time” job during the past in facilitative case management, and the importance of year. I personally thank Justice Charles E. Ramos, who, in establishing specialized commercial courts. addition to everything else, graciously hosted the Cambo- dia Delegation, which came to New York two weeks after As I said at the onset, these are just a few of the Sec- my return. tion’s numerous accomplishments this past year: time and space do not allow me to list them all. However, I Finally, I thank all of you for the honor of allowing cannot leave this subject without mentioning some of the me to serve as your Chair this past year. It was truly a contributions made by our other committees, which were privilege. tremendously active all year. For instance, our Commit- tee on E-Discovery, headed by Connie Boland and Adam Tracee E. Davis Cohen, produced an update to our highly acclaimed Best

NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 3 Message from the Incoming Chair (Continued from page 1) ery requests, and the promotion of civility in litigation re- This spring, the Section adopted a report outlining is- sulting in the New York State Standards of Civility, which sues regarding third-party litigation funding and contin- are now Appendix A to the Rules of Professional Conduct ued the dialog with a CLE panel at our spring meeting. I adopted by the Appellate Divisions effective April 1, 2009. am encouraging the Section’s Ethics and Professionalism We have taken the lead in promoting diversity and in Committee, co-chaired by Jim Wicks and Tony Harwood, mentoring young lawyers. We have also become one of to distill the learning and produce a report expressing a the premier sources of policy proposals for the entire New reasoned view of third-party litigation funding that can York State Bar Association. be adopted as the policy of the State Bar. As I said at the Section’s spring meeting on May 4, Last winter, the Section created one of the fi rst bar as- I have three themes for my year as Chair: continuation, sociation committees devoted to social media, co-chaired communication, and celebration. I have already discussed by Ignatius Grande and Mark Berman. The Social Media the last; I will now turn to the other two. Committee has already instituted the Section’s Twitter feed and has organized a CLE program on How Social Continuation Media Is Changing the Practice of Law. I anticipate that the Committee will comment on proposed legislation We must continue our major role in the development and continue to educate the Section about the risks and of the law and practice in New York. In June 2012, as the benefi ts of using social media. culmination of former Chair David Tennant’s initiative, the Section adopted the report of its Faster-Cheaper- Last year, the Section formed a Special Committee on Smarter Working Group describing ways to reduce the Commercial Jury Charges, co-chaired by Judges Andrea time and cost of traditional commercial litigation, with Masley and Melissa Crane, to comment upon and de- some emphasis on alternative dispute resolution. Many of velop recommendations for pattern jury instructions to the same ideas re-surfaced in the Report and Recommen- be considered by the New York State Offi cial Commit- dations to the Chief Judge of the State of New York of The tee on Pattern Jury Instructions. The Section submitted Chief Judge’s Task Force on Commercial Litigation in the recommendations concerning piercing the corporate veil, 21st Century. Now, Chief Judge Jonathan Lippman has bona fi de and good faith purchasers for value, breach of appointed a Commercial Division Advisory Council to fi duciary duty, aiding breach of fi duciary duty, breach implement those ideas. I expect the Section to support the of contractual warranty, and fraudulent inducement. I efforts of the Advisory Council through its members on expect that in the upcoming year the Committee will the Council (including my three immediate predecessors present further recommendations concerning pattern jury as Chair—Tracee Davis, David Tennant, and Jonathan instructions relating to contract issues. Lupkin—and my successor, Paul Sarkozi) and through The Section published version 2.0 of its Best Practices further proselytization of the ideas underlying the Sec- in E-Discovery in New York State and Federal Courts. At tion’s commitment to faster, cheaper, and smarter com- its April 5, 2013, meeting, the Executive Committee of the mercial litigation. We also will explore ways to support State Bar adopted it as the policy of the entire Associa- the New York International Arbitration Center created tion. It provides practical, concise advice and a reference earlier this year. for best practices in a rapidly evolving area of the law. We The Section has long had a commitment to diversity. now must make it available electronically and otherwise We have an annual networking program, Smooth Moves, to as many judges and practitioners as feasible. Career Strategies for Attorneys of Color, which, under the For two decades, the Section has commented upon leadership of previous Chair Tracee Davis, Carla Miller, proposed changes in the Federal Rules of Civil Procedure and former Judge Barry Cozier, had its highest attendance and Federal Rules of Evidence. The Standing Committee (in excess of 250 persons) last spring. The Section also on Rules of Practice and Procedure of the Judicial Confer- sponsors a minority law student summer fellowship with ence of the United States has authorized the publication a Commercial Division justice. For the last two years, the for comment of substantial revisions to Rules 1, 4, 16, Section has conducted the Theodore T. Jones Jr. Students 26, 30, 31, 33, 34, 36, 37, and 84 of the Federal Rules of of Color Moot Court Competition at the University of Civil Procedure proposed by the Advisory Committee Buffalo Law School. I hope to continue and expand these on Federal Rules of Civil Procedure. I hope the Section initiatives. will comment on the proposals, including controversial

4 NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 changes in the scope of discovery and the implementation 2013. For Section members only, it includes archived of sanctions for preservation failures. and searchable editions of this publication, our Section’s magazine NYLitigator (published twice a year), archived This past year’s Chair, Tracee Davis, has been at the CLE program books, and substantive case reviews from forefront of the State Bar’s efforts to bring to Congress’s Loislaw LawWatch. For all visitors, it includes special re- attention the debilitating impact of sequestration on the ports, committee activities, and a calendar of events. It is ability of the third branch of the government, the federal my goal to provide information to Section members that judiciary, to fulfi ll its constitutional mandate and provide will aid them in their daily practice of law and provide a a forum where our commercial clients may resolve their tangible benefi t for membership in the Section. disputes fairly and expeditiously. I will continue these efforts. In sum, I see my role as Chair of the Commercial and Federal Litigation Section as facilitating the work of the Communication outstanding Section committees through CLE, reports, and articles; enabling communications with our many All these activities are less meaningful if Section Section members through traditional, electronic and social members cannot learn about and participate in them. media; and encouraging new members and participation The key is communication. Thanks to the Social Media in the Section’s many worthy activities. Committee, the Section now tweets. Our handle is: @NYSBAComFed. Our website at www.nysba.org/ Greg Arenson ComFed i s scheduled to be re-launched in the fall of

NYLitigator Invites Submissions

The NYLitigator welcomes submissions on topics of interest to members of the Section. An article published in the NYLitigator is a great way to get your name out in the legal community and advertise your knowledge. Our authors are respected statewide for their legal expertise in such areas as ADR, settlements, depositions, discovery, and corporate liability.

MCLE credit may also be earned for legal-based writing directed to an attorney audience upon application to the CLE Board.

If you have written an article and would like to have it considered for publication in the NYLitigator, please send it in electronic document format (pdfs are NOT acceptable), along with biographical information to its Editor:

Teresa M. Bennett Menter, Rudin & Trivelpiece, P.C. 308 Maltbie Street Suite 200 Syracuse, NY 13204-1498 [email protected]

Authors’ Guidelines are available under the “Article Submission” tab on the Section’s Web site: www.nysba.org/NYLitigator.

www.nysba.org/NYLitigator

NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 5 Spring Meeting 2013: From Tomb Raiders to Whistleblowers with Detours for Third-Party Litigation Funding and Procedure in SDNY Complex Cases By Mark A. Berman

Picturesque Saratoga Springs in May—what could be cultural property to their na- better! More than 150 people attended the Commercial tive lands, often museums, and Federal Litigation Section’s Spring Meeting on May rather than risk negative 3-5 at the Gideon Putnam Hotel. The meeting was at- publicity, now contact coun- tended by 32 judges, including recently confi rmed New sel in advance concerning a York State Court of Appeals Judge Jenny Rivera and other purchase of art to see if there appellate and trial court judges from the federal and state are any “issues” with the courts. The Section was honored to have among the at- piece’s provenance. Appar- tendees President-Elect James R. Silkenat of the American ently, over 200,000 pieces Bar Association and President-Elect David M. Schraver of of art stolen by the Nazis the New York State Bar Association, who praised the Sec- remain unaccounted for. tion for its excellent work. Howard Spiegler of Herrick Saturday morning wel- Feinstein speaking on comed a presentation near Friday night about stolen to every practitioner’s heart: artworks an overview of the Southern District of New York’s new “Pilot Project Regarding Case Management in Com- plex Civil Cases,” which seeks to streamline motion practice, discovery, and trial in civil matters, and a pre- view of proposed changes in the Federal Rules of Civil The Friday night audience was entranced by Howard Procedure regarding case Spiegler’s description of stolen artworks and their recovery management, discovery, and preservation. The program Former Section Chair Jay Safer introducing the fi rst Over salmon, during the opening banquet, we lis- was moderated by former Saturday morning panel tened intently to a program reminiscent of “Raiders of Section Chair Jay Safer of on the Southern District of the Lost Ark” entitled “From Tomb Raiders in Turkey to Locke Lord LLP and was New York Pilot Program and Hitler’s Crimes Against Humanity: Recovering Stolen led by United States District Practice in Complex Cases Artworks and Other Cultural Property.” Presented by Howard N. Spiegler of Herrick Feinstein, LLP, all that was missing was Indiana Jones’ fedora. The presentation high- lighted an area that many are curious about, but few have any conception of—the utter magnitude of antiquities that have come into the possession of museums and pri- vate collections that had been stolen from their owners by grave robbers or by the Nazi regime. Because museums in the past have sought to remain blind to this situation, we learned that, to prove that a specifi c piece of art that a mu- seum may have purchased for tens of millions of dollars was stolen, native countries seeking to recover such art incredibly often rely upon the testimony and documents of the actual grave robbers to verify the artifact’s prov- From left to right: SDNY Judge Victor Marrero, Former EDNY enance. We also heard that because of the notoriety and Chief Bankruptcy Judge Melanie Cyganowski, and Jones success of certain cases that have resulted in the return of Day’s Steven Bennett listening to Judge Scheindlin

6 NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 Judge Shira A. Scheindlin, proposed new FRCP 26(b)(1), which would eliminate the also a former Section Chair, current two tiers of relevance and would require “propor- who was instrumental in tionality” to be addressed in connection with the permit- the drafting of and adoption ted scope of discovery. She also spoke about the proposed by the SDNY of this Project. new amendment to FRCP 37(e), which would, for failure Other panelists were SDNY to preserve information, allow for curative measures, District Judge Victor Mar- but would impose sanctions only for willful or bad faith rero, former EDNY Chief conduct. Judge Scheindlin commented, however, that Bankruptcy Judge Melanie the factors listed as relating to an actor’s state of mind L. Cyganowski, and Steven do not make sense for determining bad faith or willful- C. Bennett of Jones Day. ness, but do make sense for determining negligence or recklessness. We learned that over 2,000 cases have been made Then-NYSBA President- A panel discussing part of the Pilot Project elect, now President, third-party litigation fi nanc- Dave Schraver welcoming since it was adopted in 2011. participants in Saturday ing (“TPLF”) followed, Judge Scheindlin empha- morning’s MCLE programs which was organized by sized that under the Pilot Section Treasurer James Project a proportionality assessment of discovery costs Wicks and moderated by needs to be made at the initial court conference. The audi- Professor Patrick Connors of ence heard that judges really do listen to what counsel Albany Law School. While say about case management and, as a result, for instance, TPLF is a new concept to “timed” trials, suggested by counsel, have successfully many, it is a “hot button” is- taken place. Judge Scheindlin stressed that under the sue that must navigate New Pilot Project judges are required to expedite decisions York’s Rules on Professional on discovery motions. Judge Marrero added that requir- Conduct, including con- ing letters to be sent to the court concerning contem- cerns that the transmittal of Then-Section Treasurer, plated motions actually resulted in fewer motions being highly sensitive and privi- now Vice-Chair, Jim Wicks introducing the Saturday made; and, in some instances, with counsels’ consent, leged information to a third- morning panel on Third- disputes were decided on the letters submitted. Judge party fi nancing company Party Litigation Funding Cyganowski noted that a Federal Judicial Conference could result in the waiver of survey of attorneys in approximately 400 recently closed the attorney-client privilege. Addressing the ethics issues, cases found that pre-motion conferences actually helped. the audience had the benefi t of hearing from Jeremy Fein- Judge Scheindlin told the audience that she was surprised berg, Statewide Special Counsel for Ethics in the Offi ce of that lawyers appearing before her are not asking for FRE Court Administration. Other panelists included Professor 502(d) orders, which would otherwise protect a privilege Anthony Sebok of Benjamin N. Cardozo Law School, John from being waived by an improper discovery disclosure. H. Beisner of Skadden Arps, John P. “Sean” Coffey, then Managing Director of BlackRobe Capital Partners, LLC, Judge Scheindlin then spoke about the proposed and Harvey R. Hirschfeld, President of LawCash. new Federal Rules of Civil Procedure. She highlighted

SDNY Judge Shira Scheindlin explains the details of the The Third-Party Litigation Funding panel from left to right: SDNY Pilot Program and proposed changes in the Federal moderator Albany Law School Professor Patrick Connors, Rules of Civil Procedure Skadden Arps’ John Beisner, BlackRobe’s then-Managing Director Sean Coffey, OCA’s Jeremy Feinberg, LawCash’s President Harry Hirschfeld, and Cardozo Law School Professor Anthony Sebok

NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 7 Simply, TPLF companies company is not entitled to provide money to a party repayment of its money. In so it is able to “afford” to both cases, due diligence commence or continue a by the funding company is lawsuit in return for a share performed before money of a future damage award is advanced. However, we or monetary settlement. learned that, in complex The panel addressed those commercial cases, the inves- situations where, in a multi- tigation of the facts and the million dollar commercial analysis of the legal issues dispute, a large company, could take months before because of perhaps limited a funding company would risk tolerance to expense or Attendees at the SDNY Pilot Program learning about agree to “invest” in a lawsuit. budgetary constraints, could proposed changes in the Federal Rules of Civil Procedure In such cases, which may not or would not be willing seek recovery in excess of $50 to fund a multiple-year litigation that might incur mil- million, it was noted that the fi nancing company often lions of dollars per year in attorneys’ fees. At the other has an interest in seeing that counsel for the plaintiff also end of the spectrum, the panel addressed the somewhat assumes some risk as well, such as by taking the case on a more mundane, but equally as important, situation where partial contingency. a personal injury plaintiff needs to have his or her life After having the after- needs paid during the course of an ongoing litigation, noon off to golf or enjoy the but simply is unable to afford them. These expenses springs, judges and lawyers could include tuition, food, gathered to honor Chief or, for instance, mortgage Judge Carol Bagley Amon payments that need to be of the Eastern District of made to stave off foreclo- New York with the Robert sure of the plaintiff’s home L. Haig Award for Distin- while a negligence action guished Public Service. The makes its way to trial. John award was presented by Beisner commented that, Second Circuit Judge Reena in the commercial case, the Raggi, a prior winner of core ethical issue is control the Award and a friend of while, in the consumer case, Second Circuit Judge Judge Amon for the past the ethical dilemma is the Reena Raggi describing the accomplishments of EDNY thirty years, who proudly intrusion of the funder into Chief Judge Carol Amon described Chief Judge Then-Section Vice-Chair, the settlement process. now Chair-Elect Paul Sarkozi Amon as the Eastern District’s “biggest cheerleader.” In presenting the awards Under either scenario, receiving her award, Chief Judge Amon spoke fondly for outstanding golfi ng TPLF is non-recourse, and, about the history of the Eastern District and honored achievements at the spring if there is no recovery by her fellow judges of the District. She especially “shouted meeting the plaintiff, the funding out” Senior Judges Weinstein, Wexler, Spatt, Glasser, and

Questioning by the audience of the Third-Party Litigation From left to right: Then-Section Chair Tracee Davis, EDNY Funding panel Chief Judge Carol Amon, the Robert L. Haig Award for distinguished public service, Second Circuit Judge Reena Raggi, and then Chair-Elect, now Chair, Greg Arenson

8 NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 Platt, all from the “Great- Sunday morning est Generation,” for their brought together a trio of leadership and for what awesome panels focusing they have added to the on the Federal and State intellectual prowess of the False Claims Act, as well as District. Chief Judge Amon the SEC’s “whistleblower” also noted the importance program, moderated by of Magistrate Judges for the attorneys from Getnick & effi cient functioning of the Getnick (Richard J. Dircks District. and former Criminal Court Judge At the gala dinner, Sec- Margaret J. Finerty) and by tion Chair Tracee E. Davis Dana Syracuse, Assistant Then-Section Chair Tracee spoke about the achieve- EDNY Chief Judge Carol Davis summarizing her New York State Attorney Amon accepting the accomplishments during the ments of the Section, which General. The “take away” Robert L. Haig Award for previous year included drafting new pat- from these panels was that distinguished public service tern jury instructions, fol- the New York State “whis- lowing legislative initiatives tleblower” statute passed in 2007 is the broadest of its that would affect the Section type in the nation—a tribute to our State—and that “whis- and its members, and the tleblower” cases are in effect a public-private partnership adoption of the second edi- with government and counsel representing our citizenry tion of the Section’s “Best working together to recover money from companies and Practices” on electronic individuals who have discovery. Tracee presented defrauded, in effect, the Section’s Service Award the taxpayers of the to New York City Civil United States and Court Judge Andrea Masley New York State. The for her work on, among speakers spoke about things, assisting in the the difference between drafting of new pattern jury the United States and Then-Section Chair-Elect, instructions. certain foreign coun- now Chair, Greg Arenson welcoming the attendees Gregory K. Arenson, tries where employees at the Saturday night gala Chair-Elect of the Sec- are concerned that, dinner tion, laid out his ambitious if they “blew” the mission for the upcoming whistle on a company, year as the three “Cs”—“communication, continuity and Then-Section Chair Tracee a government offi cial Davis presenting the Section’s who “learned” of the celebration.” As for “communication,” he highlighted the Outstanding Service Award to Section’s new social media committee, which will seek Judge Andrea Masley for her “issue” might then through the use of social media to increase the presence work on changes to New York conspire with the com- of the Section in the New York State Bar Association and State pattern jury instructions pany to “cover-up” the beyond. Greg stressed the Section’s “continu- ity” of all the excel- lent work it had done during the past year. Lastly, the Section will “celebrate” its 25th year anniversary in 2013 and Greg, one of the founding mem- bers of the Section, announced that a gala event will be held at Lincoln Center on Second Circuit Judge Reena Raggi The fi rst Sunday morning panel on the Federal False Claims October 23, 2013, to presenting the Robert L. Haig Act, from left to right: Getnick & Getnick’s Richard Dircks, honor the Section’s Award for distinguished public Getnick & Getnick’s Neil Getnick, Assistant U.S. Attorney achievements. service to EDNY Chief Judge Carol Pierre Armand, and WilmerHale’s Jennifer O’Connor Amon

NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 9 “situation,” with the com- ties and cities located within pany, then retaliating against the state. In fact, because of the employee. the broad scope of the New York State False Claims Act, A panelist currently the New York State Attorney employed by a government General created the Taxpayer agency (Assistant United Protection Bureau, which is States Attorney Pierre Ar- the fi rst bureau to be created mand), as well as a panelist in the Attorney General’s who formerly worked for offi ce in years. The audience government (WilmerHale’s also learned that, unlike its Jennifer O’Connor), each federal counterpart, the New spoke proudly of the suc- York State False Claims Act cess of the federal “whistle- The second Sunday morning panel on the New York False Claims Act, from left to right: Assistant Attorney General protects against “blacklist- blower” program. The third ing” by other companies panelist was Neil V. Getnick, Dana Syracuse, Special Assistant Attorney General Sally Blinken, New York Attorney General Taxpayer Protection in the industry where the co-chair of the Section’s Bureau Chief Randall Fox, and Senior Advisor and Counsel “relator” or “whistleblower” Civil Prosecution Commit- to the Attorney General Gregory Krakower works. tee. We heard that in 2012, for instance, federal “whistleblower” cases resulted in The last panel, made up of current and former SEC the recovery of over $9 billion to the United States. Even attorneys, SEC Assistant Regional Director Michael J. Os- though “whistleblowers” receive a considerable amount nato, Jr. and Jordan A. Thomas of Labaton Sucharow, and of any recovery, the government’s “return on such invest- an attorney from the defense bar, Nixon Peabody’s Caro- ment” in such cases is often as high as 15-1. Each of the lyn G. Nussbaum, spoke about the SEC’s “whistleblower” speakers emphasized the need for private counsel to pres- program. It should be axiomatic to all counsel that the ent the government with a “well-packaged” dossier of the best person to evaluate and analyze a potential securities “situation,” given that 80% of “whistleblower” cases are fraud is one who formerly worked on the “inside.” Thus, not joined by the federal government. The panelists also taxpayers should be pleased to learn that the SEC actively discussed the benefi ts of the statute’s lengthy limitations hires individuals who formerly worked in the fi nancial period, as well as the various defenses that defendant services industry, so it will have the “fi repower” to prop- companies have to “whistleblower” actions. Interestingly, erly evaluate tips it receives. Unfortunately, the audience we learned of a surprising statistic: 82% of “whistleblow- learned that a 2009 survey found that, while 70% of em- ers” in one form or another inform their employer of the ployees knew of wrongdoing, 60% thought “whistleblow- ”situation” before consulting private counsel or com- ing” would not help, and 40% did not think they would municating with the government, but frequently such be protected from retaliation by an employer for “whistle- disclosure does not make it to the right person or is disre- blowing.” The SEC is seeking to counter this perception garded because it is vague or and points to the option of unsubstantiated. “whistleblowers” before the SEC to remain anonymous. We heard from two The uniform advice of panel- New York State Assistant ists on both sides of the “v” Attorneys General, Sally G. was that companies that Blinken and Randall M. Fox, are the subject of potential and the Senior Advisor and claims should not focus on Counselor to the Attorney who the whistleblowers are General Gregory M. Krakow- but on whether they have a er, that the New York State “problem.” False Claims Act applies not just to Medicaid fraud but The weekend ended with also to non-Medicaid fraud a beautiful afternoon left to The last MCLE panel of the spring meeting on the SEC and includes tax, procure- explore Saratoga Springs and Whistleblower Program, from left to right: Getnick & perhaps the museum at the ment, grant, and pension Getnick’s Margaret Finnerty, Nixon Peabody’s Carolyn fraud. The statute also covers Nussbaum, SEC Assistant Regional Director Michael Osnato, horse track. fraud committed on coun- Jr., and Labaton Sucharow’s Jordan Thomas

10 NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 Section Presents Its Seventh Annual “Smooth Moves” CLE Program for Attorneys of Color and the Honorable George Bundy Smith Pioneer Award to Esteemed Attorney Ken Standard By Carla Miller

In 2013, the Commercial and Federal Litigation Sec- schooling but always emphasized to him the importance tion presented its seventh annual “Smooth Moves” pro- of obtaining a quality education. Taking that advice to gram, which is the Section’s premiere diversity event heart, Standard graduated from and organized to attract attorneys of color to more active par- later Harvard Law School—the only African American ticipation within the Section. Since its inception in 2007, graduate in his law school class. Standard has been a Smooth Moves has included both a CLE program and a member of the Harvard Club of New York City since 1962 networking reception, culminating in the presentation and became the Club’s fi rst minority President in 1999. of the Section’s Honorable George Bundy Smith Pioneer During that time, he helped to foster a relationship be- Award. The Pioneer Award is given each year to an at- tween the Club and StreetSquash, a Harlem-based youth torney of color whose career accomplishments exemplify enrichment program that combines squash instruction those of the retired Court of Appeals jurist for whom the with academic tutoring, college preparation, college vis- award is named: legal excellence, community involve- its, community service, and mentoring for its members. ment, and mentoring. Standard’s career in the law has been equally distin- guished by the range of his experience in his practice, by The CLE program this year was entitled “Enhancing his leadership and participation in professional and other Your Professional Profi le through Board Service: Oppor- organizations—including a stint as the President of the tunities in the For-Profi t and Non-Profi t Sectors.” The pro- New York State Bar Association, and his current seat on gram featured two outstanding attorneys, Sharon Bowen the American Bar Association’s Board of Governors—and (Partner, Latham & Watkins LLP) and Alfonso Carney by the work he has done to enhance diversity and inclu- (Principal, Rockwood Partners LLC and Chairman, NY sion nationally, regionally, and individually. Over the State Dormitory Authority), and Commercial Division course of his professional life, he has had pioneering and Justice Jeffrey Oing, all of whom have spent a substantial challenging positions in both the private and public sec- portion of their professional careers in service on numer- tors and extensive experience as a counselor and litigator. ous boards. Michele Coleman-Mayes (Vice President, General Counsel, and Secretary for the New York Public Past recipients of the Section’s Pioneer Award include Library) provided engaging moderating for the panel’s Hon. George Bundy Smith himself (JAMS—New York); discussion, which focused on the panelists’ perspectives Cesar A. Perales (New York Secretary of State, and Co- on the career and business development opportunities Founder, and past President and General Counsel, Puerto afforded by service on for-profi t and not-for-profi t corpo- Rican Legal Defense and Education Fund); Elaine R. Jones rate boards, with an emphasis on the ethical challenges (Director-Counsel Emeritus, NAACP Legal Defense and presented for attorneys serving on such boards Educational Fund); the Honorable Carmen Beauchamp Ciparick; the pioneering, father-son law practice of Kee & The George Bundy Smith Pioneer Award was estab- Lau-Kee; and Associate Justice Samuel Green (retired). lished by the Section in recognition of Judge Smith’s work in the civil rights movement and his 30 years of public Finally, the Section awarded the Commercial Divi- service in the New York judiciary, including 14 years as sion’s Minority Law Student Fellowship at the event to a an associate judge of the Court of Appeals. This year’s fi rst year law student, who will spend the summer work- Pioneer Award was presented to Kenneth G. Standard, ing in the chambers of a Commercial Division justice. The Esq., who has been one of the most respected leaders of New York Bar Foundation provides a stipend for the fel- the New York bar for decades. lowship recipient. Catalina Ford, a fi rst year law student at Fordham University School of Law, was selected as this The youngest of fi ve siblings, born to working class year’s Minority Fellow. Ms. Ford spent the summer of immigrant parents in Brooklyn toward the end of the 2013 in the chambers of Commercial Division Justice Jef- Great Depression, Standard’s parents had limited formal frey Oing.

NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 11 Fordham Law Student Receives the New York Bar Foundation’s Commercial and Federal Litigation Section Minority Fellowship

Catalina Ford, a fi rst- “We received several year student at Fordham commendable applications University School of Law, for the Commercial and is the 2013 recipient of the Federal Litigation Sec- Commercial and Federal tion Minority Law Student Litigation Section Minor- Summer Fellowship. We are ity Fellowship, the New delighted to present the 2013 York Bar Foundation has fellowship to Ms. Ford, a announced. remarkable and bright young woman,” said Tracee E. Davis As the recipient of the (Zeichner Ellman & Krause), $6,000 fellowship, Ford then-chair of the Commercial worked this summer in the and Federal Litigation Sec- chambers of New York State tion. “Our goal is to increase Supreme Court Commercial the representation of lawyers Division Justice Jeffrey Oing. Left to right: Catalina Ford, recipient of the Commercial and students from a diverse and Federal Litigation Section Minority Fellowship, with the “We are thrilled to pres- range of backgrounds in Honorable George Bundy Smith; Kenneth G. Standard of the commercial litigation and ent this prestigious fellow- Kenneth G. Standard Diversity Internship Program and past- ship to Catalina Ford. She President of the New York State Bar Association; and Glenn to provide fellows with an has excelled in her fi rst year Lau-Kee, then-President-elect designee of the New York Bar opportunity to gain practical of law school,” said Bar Association experience by clerking in the Foundation President Commercial Division. We are Cristine Cioffi (Cioffi •Slezak•Wildgrube). “We expect pleased to join with the New York Bar Foundation to offe r that this fellowship will help her achieve her goal of be- this opportunity.” coming a commercial litigator.” “I am extremely honored to be chosen as this year’s A graduate of Agnes Scott College, Ford expects to Commercial and Federal Litigation Section Fellow. I look graduate from law school in May 2015. She is a member forward to working with Justice Oing and hope to take of the Latin American Law Students Association and the full advantage of the opportunities this summer pres- recipient of the Patricia M. Hynes Scholarship for Women. ents,” said Catalina Ford. She also is a hotline volunteer with WomensLaw.org and To learn more about the New York Bar Foundation a volunteer research assistant at the Moving Minds For- and how to support its charitable programs, go to www. ward Foundation. tnybf.org, phone 518-487-5650 or email foundation@tnybf. org.

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12 NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 Third-Party Litigation Funding Explored by the Section By James M. Wicks

The Section has embarked on a study of the ethical sion: fi rst, champerty and maintenance; second, attorney- and legal ramifi cations of third-party litigation funding client privilege and confi dentiality; third, confl icts of (“TPLF”). On April 16, 2013, the Section unanimously interest; fourth, control over the proceedings; and fi fth, adopted a Report on the Ethical Implications of Third-Party fee-sharing with non-lawyers. Litigation Funding prepared by the Committee on Ethics Regarding champerty and maintenance, some states and Professionalism. It is available on the Section’s web- have not adopted any prohibitions and, therefore, would site; and, while not recommending a particular position, not prohibit TPLF: Arizona, California, Connecticut, Mas- the Report provided a framework for a panel discussion sachusetts, New Jersey, New Hampshire, New Mexico, of the topic at the Section’s Spring Meeting. South Carolina, and Texas. Other jurisdictions today have The Report provides a useful overview of what TPLF abandoned champerty restrictions. Several states, how- involves, namely, providing funding to a party to pursue ever, still recognize champerty, and thus possibly TPLF a lawsuit in return for a share of any damages award or prohibitions, such as Minnesota and Delaware. New York settlement. TPLF takes various forms, the most popular takes a more progressive view, adopting a more lenient of which is either consumer funding or large-scale com- stance towards its application. mercial or corporate fi nancing. Funding for litigation has Maintaining confi dentiality and privilege is critical been in existence for many years in this and other coun- in litigation. However, it is important to TPLF lenders tries. A fundamental question, however, is whether such and their investors to fully understand the risk in which arrangements are in fact “loans” at all. they are investing. As with due diligence in any corporate In New York, the Association of the Bar of the City transaction, the more information gathered, the better one of New York issued Formal Opinion 2011-2 identifying can assess the risk. Accordingly, the lender often requires the key ethical concerns involved with TPLF. Opinion the lawyer to release client information. But do these dis- 2011-2 takes the view that “[i]t is not unethical per se for closures involve waivers of confi dentiality and privilege a lawyer to advise on or be involved with such arrange- that require the client’s consent? The Report identifi es ments.” However, the City Bar cautions against fi ve the cases and other legal authorities addressing this very potential pitfalls, including: (i) the potential illegality of sensitive issue. the TPLF arrangement; (ii) issues with the attorney failing The Report also addresses the concern over who has as an advisor; (iii) possible confl icts of interest; (iv) failure “control” of the proceeding. Mere payment by a third par- to obtain a waiver of privilege; and (v) losing control over ty of legal fees for another has traditionally not entitled the proceeding. the payor to obtain information ordinarily protected by According to the Report, many states have consid- client confi dentiality. Nonetheless, TPLF may cause some ered and approved of third-party litigation fi nancing, confusion as to who actually owns the claim, who con- so long as certain disclosures are made. In addition, the trols the lawsuit, and how confl icts between competing U.S. Chamber of Commerce’s Institute for Legal Reform directions of the funder and the client should be resolved. (“ILR”) raised a critical analysis of TPLF, particularly Finally, fee-sharing or fee-splitting is an issue often large-scale corporate TPLF, as opposed to consumer fund- raised by critics of funding arrangements. In New York, a ing. The ILR takes the position that commercial litigation lawyer may not share legal fees with a non-lawyer under fi nance should be subjected to federal regulation under the Rules of Professional Conduct. Where does this leave the Federal Trade Commission, similar to the regulation TPLF? Is it really fee-sharing with a non-lawyer? The of the securities markets by the Securities and Exchange Report identifi es the current authorities that address this Commission. issue. The Report identifi es and examines recurring themes The Committee on Ethics and Professionalism expects that have developed through case law, ethics opinions, to further explore this issue and, if possible, articulate a bar association reports, and legislation throughout the reasoned view to be adopted by the Section. country. Although many issues and sub-issues exist, there seem to be fi ve principal issues surrounding the discus-

NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 13 C PLR Amendments: 2013 Legislative Session (2013 N.Y. Laws ch. 1-283, 285-308)

CPLR § Chapter, Part Change Eff. Date (Subpart, §) 217-a 24(1) Clarifi es cross-references to notice of claim provisions 6/15/13 1101(f) 55(E)(16) Extends expiration of CPLR 1101(f) until Sept. 1, 2015 3/28/13 3012-b 306(1) Adds provision on certifi cate of merit in certain residential foreclo- 8/30/13 sure actions 3015(e) 21 Repeals proviso 5/2/13 3101(d)(1)(iv) 23(4) Repeals CPLR 3101(d)(1)(iv) 2/17/14 3103(a) 205 Authorizes anyone about whom discovery is sought to move for a 7/31/13 protective order 3408 306(2) Requires fi ling of proof of service within 20 days regardless of meth- 8/30/13 od of service 4106 204 Changes selection, deliberation, and discharge of alternate jurors 1/1/14 5241(a)(13) 270(1) Adds defi nition of “issuer” 4/27/14 5241(b)(1), (d), (f) 270(2), (4), (5) Changes “creditor” to “issuer” 4/27/14 5241(c)(1) 270(3) Changes contents of income execution 4/27/14 5241(g) 270(6) Changes contents of remitted payments and requires notifi cation to 4/27/14 issuer when debtor no longer receives income 5242(c)-(g) 270(7) Reletters paragraphs; changes “respondent earns wages” to “debtor 4/27/14 has income”; changes contents and transmittal of income deduction order; adds income payors and changes contents and recipient of payments; requires notifi cation to issuer when debtor no longer re- ceives income Notes: (1) 2013 N.Y. Laws ch. 22, deemed eff. as of 11/1/13, makes technical changes to Jud. Law §§ 478, 484, and 485-a, as amended by 2012 N.Y. Laws ch. 492, relating to practicing or appearing as an attorney-at-law without being admitted or registered. (2) 2013 N.Y. Laws ch. 113, eff. 7/12/13, adds Nassau County to the list of counties in which certain classes of cases in supreme court may be commenced by electronic means.

* * * 2013 Amendments to the Uniform Rules for Supreme and County Courts, Rules Governing Appeals, and Certain Other Rules of Interest to Civil Litigators (West’s N.Y. Orders 1-20 of 2013)

22 NYCRR § Court Subject (Change) Adds provisions on signatures, proof of service, format of e-fi led documents, no- 202.5-b(b), (d)-(f), tifi cation of e-fi ling, fi ling in NYSCEF system, service of interlocutory documents, Sup. (h) service of notice of entry; adds provisions on e-fi ling in small claims assessment (SCAR) proceedings Deletes certain defi nitions; permits SCAR representatives to claim exemption from 202.5-bb(a),(b), (e) Sup. e-fi ling; authorizes court to require additional hard copy from persons exempt from e-fi ling; adds RPTL to service alternatives Adds provision on requesting appearances at conferences by telephone or other 202.10 Sup. electronic means

14 NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 22 NYCRR § Court Subject (Change) Adds provision on consequences of plaintiff failing to fi le proof of service of sum- 202.12-a(b)(3) Sup. mons and complaint within 120 days after commencement of action in certain counties 202.16-a(1) Sup. Amends provisions on automatic orders Adds provision requiring notifi cation to court of discontinuation of actions in cer- 202.28 Sup. tain instances 202.58(b), (e), (f) Sup. Adds provisions on e-fi ling Requires submission of other cited materials not readily available; requires request 500.1(h), (o) Ct. App. for acknowledgement of receipt be accompanied by additional copy of papers Adds cross-reference to § 500.27(e); requires compliance with clerk’s instructions for 500.2(a), (b), (f) Ct. App. submission; authorizes clerk to reject non-complying briefs and record material 500.5 Ct. App. Changes procedures for sealing documents 500.9(a) Ct. App. Clarifi es that appeal is taken by serving as well as fi ling notice of appeal 500.10 Ct. App. Adds that Court may transfer appeal Requires material submitted digitally pursuant to § 500.11 to comply with clerk’s specifi cations and instructions and changes reference from Appellate Division to 500.11(k), (l) Ct. App. intermediate appellate court; requires compliance with sealing and redaction re- quirements of § 500.5 Reduces number of copies of brief required to be fi led from 19 to 9 (plus original); clarifi es that appeal is taken by serving as well as fi ling notice of appeal; requires 500.12 Ct. App. material submitted digitally comply with clerk’s instructions; requires compliance with sealing and redaction requirements of § 500.5 Requires that briefs also contain questions presented and point headings; deletes 500.13(a) Ct. App. authorization for supplementary appendix in respondent’s brief Reduces number of copies of appendices or full records required to be fi led from 19 to 9 (plus original); encourages that appendices and supplementary appendices be separately bound; requires that full records contain the CPLR 5531 statement; re- 500.14 Ct. App. quires full records be authenticated or stipulated to; changes reference from Appel- late Division to intermediate appellate court; requires material submitted digitally comply with clerk’s instructions; requires compliance with sealing and redaction requirements of § 500.5 500.17(c) Ct. App. Deletes reference to Albany sessions Reduces from 19 to 9 copies of briefs required to be fi led; transfers provision on contacting Clerk’s Offi ce and on website; deletes authorization for amicus movant 500.23 Ct. App. on motion for leave to appeal to also request permission to submit amicus brief on appeal itself (a new motion is required) Reduces from 25 to 10 number of copies of appellant’s Appellate Division brief and record or appendix and of respondent’s brief; reduces from 24 to 9 number of cop- 500.26 Ct. App. ies of appellant’s letter with arguments (plus original) and of respondent’s letter in opposition 500.27(e) Ct. App. Requires clerk to notify parties of time periods for fi ling briefs in digital format Requires presiding justice to appoint departmental advisory committee on civil ap- 800.24-b 3d Dep’t peals management program 1210.1 All Amends content of Statement of Client’s Rights

Note that the court rules published on the Offi ce of Court Administration’s website include up-to-date amendments to those rules: http://www.nycourts.gov/rules/trialcourts/index.shtml.

NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 15 Notes of the Section’s Executive Committee Meetings

February 13, 2013 March 12, 2013 Guest speaker Douglas C. Palmer, Guest speaker, Hon. Marcy S. Fried- Clerk of the Court, United States man, Commercial Division Justice, New District Court, Eastern District of New York County, discussed her experience in York, discussed the likely impact of Housing Court, discovery in the Com- sequestration on the Eastern District mercial Division, and her approach to specifi cally and the Federal Courts motions. The Executive Committee generally. discussed the work of the Special Com- mittee on Pattern Jury Instructions, the The Executive Committee discussed E-Discovery and CPLR Committees’ the work of the Section’s new Commit- work on uniform rules on e-discovery, tee on Social Media and also suggested the Committee on Social Media, the changes to the E-Discovery Committee’s Antitrust Committee, and the Alterna- and CPLR Committee’s proposed revisions to tive Dispute Resolution Committee. the Unifi ed Court System’s E-Discovery Working Group Proposed Amendments to the Uniform Rules of the Trial Courts (22 NYCRR § 202.12(b) and (c)(3)) and the Rules April 16, 2013 of the Commercial Division (22 NYCRR § 202.70(g) (Rule Guest speaker, Michelle A. Levitt, Associate General 8)) requiring counsel to confer prior to the preliminary Counsel of AIG, discussed AIG’s litigation expense reduc- conference in cases reasonably likely to involve electronic tion measures. The Section’s Chair-Elect discussed the discovery. The Bankruptcy Committee provided an up- e-discovery guidelines approved by the NYSBA Execu- date on the Stern v. Marshall Report and noted that the tive Committee on April 5. At the request of the Section’s American Bar Association had approved the resolution CPLR Committee, the Executive Committee approved the as amended by the Section. The Special Committee on Committee on Courts of Appellate Jurisdiction’s Recom- Pattern Jury Instructions reported on its work with the PJI mendation for Uniform Rules Governing Omission and Committee of the New York State Supreme Court Judges’ Redaction of Sensitive Information from Court Filings. Association. The Executive Committee also approved the adoption of the Section’s Report on Third Party Litigation Funding. February 27, 2013 The Executive Committee approved for submission May 8, 2013 to the PJI Committee of the New York State Supreme Hon. A. Gail Prudenti, Chief Administrative Judge Court Judges’ Association the memoranda of the Sec- of the Courts of the State of New York, discussed the tion’s Special Committee on Pattern Jury Instructions and importance of keeping open the lines of communication the Appellate Practice Committee regarding Bona Fide between bench and bar; the role of the newly formed Ad- Purchasers for Value and Piercing the Corporate Veil. The visory Council, which will examine the recommendations Executive Committee also discussed changes to the E- of the Chief Judge’s Task Force on Commercial Litigation; Discovery Committee’s and CPLR Committee’s proposed the Task Force Report’s proposals on expert disclosure response to the Unifi ed Court System’s E-Discovery and electronic fi lings; and the Chief Judge’s top legislative Working Group’s Proposed Amendments of the Uniform initiatives for the coming year. Rules of the Trial Courts (22 NYCRR § 202.12(b) and (c) (3)) and the Rules of the Commercial Division (22 NYCRR The Executive Committee heard updates on the Sec- § 202.70(g) (Rule 8)) requiring counsel to confer prior to tion’ s report on third party litigation funding, the work the preliminary conference in cases reasonably likely to of the Committee on Social Media, an upcoming Section involve electronic discovery. report on a Congressional proposal to apply the federal judicial code of conduct to the United States Supreme Court, and the work of the Special Committee on Pattern Jury Instructions.

16 NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 Former Section Chairs Meet to Discuss Section’s Plans and Advise Current Officers for the Coming Year

Former chairs of the Section gathered June 27 to advise current offi cers on activities for the upcoming year. Pictured from left to right are: David H. Tennant, Robert L. Haig, Tracee E. Davis, Hon. Shira A. Scheindlin, Mark C. Zauderer, Jay G. Safer, Lewis M. Smoley, Sharon M. Porcellio, Vincent J. Syracuse, Carrie H. Cohen, Paul D. Sarkozi, Lesley F. Rosenthal, Gregory K. Arenson, Peter Brown, Jonathan D. Lupkin, Deborah E. Edelman, Jaclyn H. Grodin, and Mark H. Alcott

Mark H. Alcott, Deborah E. Edelman, Tracee E. Davis, Sharon M. Porcellio, and David H. Tennant discuss the Section’s plans for the upcoming year

* * *

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NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 17 Section Committee and Chairs ADR Commercial Division Diversity Charles J. Moxley Jr. Mitchell J. Katz Sylvia Ometa Hinds-Radix MoxleyADR LLC Menter, Rudin & Trivelpiece, P.C. Supreme Court Kings County 850 , 14th Fl. 308 Maltbie Street, Ste. 200 360 Adams, Room 1140 New York, NY 10022 Syracuse, NY 13204-1498 Brooklyn, NY 11201 [email protected] [email protected] [email protected] Antitrust Julie A. North Carla M. Miller Aidan Synnott Cravath, Swaine & Moore LLP Universal Music Group Paul, Weiss, Rifkind, Wharton 825 Eighth Avenue 1755 , 4th Fl. & Garrison LLP New York, NY 10019-7416 New York, NY 10019 1285 Avenue of the Americas [email protected] [email protected] New York, NY 10019-6064 [email protected] Commercial Division Law Report Electronic Discovery Scott E. Kossove Constance M. Boland Jay L. Himes L’Abbate Balkan Colavita & Contini, LLP Nixon Peabody LLP Labaton Sucharow LLP 1001 Franklin Avenue, Ste. 300 437 , 23rd Fl. 140 Broadway Garden City, NY 11530-2901 New York, NY 10022 New York, NY 10005 [email protected] [email protected] [email protected] Daniel K. Wiig Adam I. Cohen Appellate Practice Muncipal Credit Union Ernst & Young Megan P. Davis 22 Cortlandt Street Fraud Investigations & Dispute Svcs Flemming Zulack Williamson New York, NY 10007 5 Zauderer LLP [email protected] New York, NY 10036 One Liberty Plaza [email protected] New York, NY 10006 Commercial Jury Charges [email protected] Andrea Masley Employment and Labor Relations New York City Civil Court Gerald T. Hathaway David H. Tennant 111 Centre Street Mitchell Silberberg & Knupp LLP Nixon Peabody LLP New York, NY 10013 12 East 49th Street, 30th Fl. 1300 Clinton Square [email protected] New York, NY 10017 Rochester, NY 14604 [email protected] [email protected] Melissa A. Crane Appellate Division, First Department Robert Neil Holtzman Bankruptcy Litigation 27 Madison Avenue, Room 406 Kramer Levin Naftalis & Frankel LLP Douglas T. Tabachnik New York, NY 10010 1177 Avenue of the Americas Law Offi ces of Douglas T. Tabachnik, PC [email protected] New York, NY 10036-2714 63 West Main Street, Ste. C [email protected] Freehold, NJ 07728 Continuing Legal Education [email protected] Kevin J. Smith Ethics and Professionalism Shepherd Mullin Richter & Hampton LLP James M. Wicks Civil Practice Law and Rules Farrell Fritz PC James Michael Bergin New York, NY 10112 1320 RXR Plaza Morrison & Foerster LLP [email protected] Uniondale, NY 11556-1320 1290 Avenue of the Americas [email protected] New York, NY 10104-0012 Corporate Litigation Counsel [email protected] Jamie E. Stern Anthony J. Harwood UBS Anthony J. Harwood Law Firm Thomas C. Bivona 1285 Avenue of the Americas, 14th Fl. , 18th Fl. Milbank Tweed Hadley McCloy LLP New York, NY 10019 New York, NY 10022 One Chase Plaza, 45th Fl. [email protected] [email protected] New York, NY 10005-1413 [email protected] Creditors’ Rights and Banking Litigation Federal Judiciary S. Robert Schrager Jay G. Safer Civil Prosecution Hodgson Russ LLP Locke Lord LLP Neil V. Getnick , 24th Fl. 3 World Financial Center, 20th Fl. Getnick & Getnick LLP New York, NY 10036 New York, NY 10281 620 [email protected] [email protected] New York, NY 10020 [email protected] Michael Luskin Carol E. Heckman Luskin, Stern & Eisler LLP Harter Secrest & Emery LLP Richard J. Dircks 12 Fountain Plaza, Suite 400 Getnick & Getnick New York, NY 10036 Buffalo, NY 14202-2293 620 Fifth Avenue [email protected] [email protected] New York, NY 10020 [email protected]

18 NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 Federal Procedure Legislative and Judicial Initiatives State Court Counsel Michael C. Rakower Vincent J. Syracuse Deborah E. Edelman Rakower, Lupkin PLLC Tannenbaum Helpern Syracuse Supreme Court of the State of New York 488 Madison Ave, 18th Fl. & Hirschtritt LLP 60 Centre Street, Rm 232 New York, NY 10022 900 Third Avenue New York, NY 10007 [email protected] New York, NY 10022-4728 [email protected] [email protected] James F. Parver Richard Lovinger Margolis & Tisman, LLP Membership Appellate Division, First Department 280 Madison Avenue, 5th Fl. Heath J. Szymczak 41 Madison Avenue New York, NY 10016 Jaeckle Fleischmann & Mugel, LLP New York, NY 10010-2202 [email protected] Avant Building, Ste. 900 [email protected] 200 Delaware Avenue Hedge Fund and Capital Markets Buffalo, NY 14202 State Judiciary Litigation [email protected] Charles E. Dorkey III Benjamin R. Nagin McKenna Long & Aldridge LLP Sidley Austin LLP Anna S. Park 230 , 17th Fl. 787 Seventh Avenue Zeichner Ellman & Krause LLP New York, NY 10169-0005 New York, NY 10019-6018 575 [email protected] [email protected] New York, NY 10022 [email protected] Jeffrey Morton Eilender Stephen Louis Ascher Schlam, Stone & Dolan Jenner & Block LLP Nicole F. Mastropieri 26 Broadway , 37th Fl. Nixon Peabody LLP New York, NY 10004-1703 New York, NY 10022 437 Madison Ave [email protected] [email protected] New York, NY 10022-7001 [email protected] White Collar Criminal Litigation Immigration Litigation Evan T. Barr Sophia M. Goring-Piard Mentoring Steptoe & Johnson LLP Law Offi ces of Sophia M. Goring-Piard Jonathan D. Lupkin 1114 Avenue of the Americas, 35th Fl. 1825 Park Avenue, Ste. 1102 Rakower Lupkin PLLC New York, NY 10036-7703 New York, NY 10035 488 Madison Avenue, 18th Fl. [email protected] [email protected] New York, NY 10022 [email protected] Joanna Calne Hendon Jill A. Apa Spears & Imes LLP Damon & Morey, LLP Matthew R. Maron 51 Madison Avenue Avant Building, Ste. 1200 Tannenbaum Helpern Syracuse New York, NY 10010-1603 200 Delaware Avenue & Hirschtritt LLP [email protected] Buffalo, NY 14202-4005 900 Third Avenue, 17th Fl. [email protected] New York, NY 10022 Task Force on the State of Our [email protected] Courthouses International Litigation Gregory K. Arenson Ted G. Semaya Securities Litigation and Arbitration Kaplan Fox & Kilsheimer LLP Eaton & Van Winkle LLP James D. Yellen 850 Third Avenue, Ste. 1400 Three Park Avenue, 16th Fl. Yellen Arbitration and Mediation Services New York, NY 10022-7237 New York, NY 10016 156 East 79th Street, Ste. 1C [email protected] [email protected] New York, NY 10021-0435 [email protected] Melanie L. Cyganowski Clara Flebus Otterbourg, Steindler, Houston & Rosen 60 Centre Street, Room 401 Jonathan L. Hochman 230 Park Avenue New York, NY 10007 Schindler Cohen & Hochman LLP New York, NY 10169-0075 clara.fl [email protected] 100 Wall Street, 15th Fl. [email protected] New York, NY 10005-3701 Internet and Intellectual Property [email protected] Sharon M. Porcellio Litigation Bond Schoeneck & King, PLLC Joseph V. DeMarco Social Media 40 Fountain Plaza, Ste. 600 DeVore & DeMarco, LLP Ignatius A. Grande Buffalo, NY 14202-2200 99 Park Avenue, Ste. 330 Hughes Hubbard & Reed LLP [email protected] New York, NY 10016 One Battery Park Plaza [email protected] New York, NY 10004 [email protected] Peter J. Pizzi Connell Foley LLP Mark Arthur Berman 888 7th Avenue Ganfer & Shore LLP New York, NY 10106 360 Lexington Avenue, 14th Fl. [email protected] New York, NY 10017-6502 [email protected]

NYSBA Commercial and Federal Litigation Section Newsletter | Summer/Fall 2013 | Vol. 19 | No. 2 19 NEW YORK STATE BAR ASSOCIATION PRSRT STD COMMERCIAL AND FEDERAL LITIGATION SECTION U.S. POSTAGE PAID One Elk Street, Albany, New York 12207-1002 ALBANY, N.Y. PERMIT NO. 155 ADDRESS SERVICE REQUESTED

Former Chairs COMMERCIAL AND FEDERAL LITIGATION SECTION NEWSLETTER Robert L. Haig Jay G. Safer Editor Michael A. Cooper Cathi A. Baglin Mark L. Davies Hon. Shira A. Scheindlin Lewis M. Smoley 11 East Franklin Street Harry P. Trueheart III Lauren J. Wachtler Tarrytown, NY 10591 Hon. P. Kevin Castel Stephen P. Younger [email protected] Mark H. Alcott Lesley F. Rosenthal Gerald G. Paul Carrie H. Cohen Section Officers Mark C. Zauderer Peter Brown Chair Bernice K. Leber Vincent J. Syracuse Gregory K. Arenson John M. Nonna Jonathan D. Lupkin Kaplan Fox & Kilsheimer LLP Jack C. Auspitz David H. Tennant 850 Third Avenue, Suite 1400 Sharon M. Porcellio Tracee E. Davis New York, NY 10022-7237 [email protected] This Newsletter is distributed to members of the New York Chair-Elect State Bar Association’s Commercial and Federal Litigation Paul D. Sarkozi Section without charge. The views expressed in articles in Tannenbaum Helpern Syracuse & Hirschtritt LLP this Newsletter rep re sent only the author’s view point and not 900 Third Avenue necessarily the views of the Association, the Section or its New York, NY 10022 Officers. [email protected] Accommodations for Persons with Disabilities: NYSBA welcomes participation by individuals with disabili- Vice-Chair James M. Wicks ties. NYSBA is committed to complying with all applicable Farrell Fritz PC laws that prohibit discrimination against individuals on 1320 RXR Plaza the basis of disability in the full and equal enjoyment of its Uniondale, NY 11556-1320 goods, services, programs, activities, facilities, privileges, [email protected] advantages, or accommodations. To request auxiliary aids or services or if you have any questions regarding accessibility, Secretary please contact the Bar Center at (518) 463-3200. Jaclyn Hillary Grodin Tannenbaum Helpern Syracuse & Hirschtritt © 2013 by the New York State Bar Association 900 Third Avenue ISSN 1530-4043 (print) ISSN 1933-8570 (online) New York, NY 10022 [email protected] Treasurer Deborah E. Edelman Supreme Court of the State of New York 60 Centre Street, Rm 232 New York, NY 10007 [email protected]