NYSBA SUMMER 2010 | VOL. 15 | NO. 1 NYLitigator A Journal of the Commercial & Federal Litigation Section of the New York State Bar Association Commercial and Federal Litigation Section Annual Meeting • Remarks • Awards • Presentation: Stanley H. Fuld Award to Hon. Jonathan Lippman • Presentation: A Frank Discussion About Our Appellate Courts • Presentation: Finding Opportunity in a Changing Economy Also Inside • Mandatory E-Filing in Supreme Court • Sealing Documents in Business Litigation • The Continuing Surge in Immigration Appeals Commercial and Federal Litigation Section OFFICERS Delegates to the The NYLitigator House of Delegates: Chair: Editor Vincent J. Syracuse Jonathan D. Lupkin Tannenbaum Helpern Syracuse & David J. Fioccola Flemming Zulack Williamson Hirschtritt LLP Morrison & Foerster LLP Zauderer LLP 900 Third Avenue 1290 Avenue of the Americas One Liberty Plaza, 35th Floor New York, NY 10022 New York, NY 10104 New York, NY 10006 [email protected] dfi [email protected] [email protected] Jonathan D. Lupkin Student Editorial Board Chair-Elect: Flemming Zulack Williamson St. John’s University School of Law David H. Tennant, Esq. Zauderer LLP Nixon Peabody LLP One Liberty Plaza, 35th Floor Editor-in-Chief 1100 Clinton Square New York, NY 10006 Timothy T. Parker Rochester, NY 14604-1792 [email protected] Managing Editor [email protected] Matthew Bates Joseph V. DeMarco Vice-Chair: DeVore & DeMarco, LLP Associate Managing Editor Tracee E. Davis, Esq. 99 Park Avenue, 16th Floor Joel Vago Zeichner Ellman & Krause LLP New York, NY 10016 Notes and Comments Editor 575 Lexington Avenue [email protected] Benjamin Blum New York, NY 10022 [email protected] Alternate Delegate to the Associate Articles Editor House of Delegates: Gerard Emershaw Secretary: David Rosenberg Associate Articles Editor Erica Fabrikant, Esq. Marcus Rosenberg & Diamond LLP Rena Weiner Flemming Zulack Williamson 488 Madison Avenue, 17th Floor Senior Staff Zauderer LLP New York, NY 10022-5702 One Liberty Plaza, 35th Floor [email protected] Drew Gewuerz New York, NY 10006-1404 Danna Brown [email protected] Former Chairs: Richard A. Brodt Robert L. Haig Staff Members Treasurer: Michael A. Cooper Erika Maurice Paul D. Sarkozi Shira A. Scheindlin Uri Horowitz Tannenbaum Helpern Syracuse & Harry P. Trueheart, III Berel Judowitz Hirschtritt LLP P. Kevin Castel Mark Hochbaum 900 Third Avenue Mark H. Alcott Alyssa Prunty New York, NY 10022 Gerald G. Paul Amanda Venturi [email protected] Mark C. Zauderer Bernice K. Leber Andrew Tealer John M. Nonna Daniel Merker Jack C. Auspitz Allen Rosner Sharon M. Porcellio Charles Kee Jay G. Safer Julissa Torres Cathi A. Hession Lewis M. Smoley Lauren J. Wachtler Stephen P. Younger Lesley F. Rosenthal Carrie H. Cohen Peter Brown Vincent J. Syracuse © Copyright 2010 by the New York State Bar As so ci a tion ISSN 1085-4193 (print) ISSN 1933-8589 (online) Cite as NYLitigator Table of Contents Summer 2010 • Vol. 15, No. 1 Page A Message from the Outgoing Chair ........................................................................................................................2 By Vincent J. Syracuse Annual Meeting Remarks, Awards and Presentations Presentation of the Stanley H. Fuld Award for Outstanding Contributions to Commercial Law and Litigation at the Commercial and Federal Litigation Section Annual Meeting, January 27, 2010 Presentation Remarks by the Honorable Judith S. Kaye ............................................................................4 Acceptance Remarks by the Honorable Jonathan Lippman .....................................................................5 Presentation: Behind the Veil: A Frank Discussion About Our Appellate Courts .........................................8 Presentation: The Future Ain’t What It Used to Be: Finding Opportunity in a Changing Economy .......24 Articles Mandatory E-Filing in New York County Supreme Court—May 2010 ........................................................33 By Hon. Sherry Klein Heitler and Jeffrey Carucci Reports Sealing Documents in Business Litigation: A Comparison of Various Rules and Methods Applied in Federal, New York State and Delaware Courts ....................................................................35 Prepared by the Commercial Division Committee The Continuing Surge in Immigration Appeals in the Second Circuit: The Past, the Present and the Future ..........................................................................................................41 Prepared by the Committee on Immigration Litigation Committee Spotlight: Committee on Immigration Litigation ........................................................................57 NYSBA NYLitigator | Summer 2010 | Vol. 15 | No. 1 1 A Message from the Outgoing Chair It has been often said that • Amendment of the Second Circuit’s Pro Bono Panel the strength of our Section is Plan to provide a larger pool of attorneys the op- the direct result of the work of portunity to engage in pro bono representation; our committees. I am happy to • A requirement that the Board of Immigration say that this year has been no Appeals make all of its decisions available to the exception. Two of our com- public; mittees produced reports that have been well received and • Encouragement of The Department of Homeland are excellent examples of how Security to exercise its prosecutorial discretion and our Section repeatedly takes allow eligible aliens to apply for relief from remov- the lead on important com- al, despite possible procedural bars; and mercial and federal litigation • Elimination of the BIA’s practice of issuing af- issues. fi rmances without opinion and the creation of a requirement that the BIA issue fully reasoned deci- The fi rst report was prepared by the Section’s Immi- sions in all cases. gration Litigation Committee, chaired by Clarence Smith, Jr. and Michael D. Patrick. The report was approved in Another important and timely report addresses the January by both the NYSBA’s Executive Committee and importance of the sealing of documents in business litiga- House of Delegates. It is now the offi cial position of the tions. It was prepared by Bob Schrager, Howard Fischer, NYSBA. Special thanks are owed to Charlotte Smith, Steve Madra and Megan McHugh from our Section’s Kamaka Martin and Sophia Goring-Piard, who presented Commercial Division Committee. The report, which was the report to the House of Delegates. The report reviews adopted by our Section’s Executive Committee in Decem- the continuing impact of immigration cases in the Sec- ber and approved by the NYSBA’s Executive Committee ond Circuit Court of Appeals and the efforts taken by the in January, reviews New York, Federal and Delaware Law Second Circuit to reduce the backlog of cases, including and recommends that in business cases in New York, the use of a Non-Argument Calendar for asylum appeals. justices should be given greater discretion in weighing the It makes several recommendations that were adopted by competing policy concerns with respect to the sealing of the House of Delegates, including: documents. The report emphasizes the need to provide greater confi dence to both counsel and litigants that infor- • Expansion of the size of the Board of Immigration mation will be kept confi dential and, in turn, continue to Appeals from 15 to at least 23 members; make the New York State courts, specifi cally the Com- • Increasing the number of immigration judges na- mercial Division, the forum of choice for the resolution of tionwide by at least 75 judges, with commensurate commercial disputes. increases in staff and law clerk support; Our Annual Meeting, ably chaired by Section Vice- • Creation of a training and mentoring program for Chair David H. Tennant, was a huge success and we poorly performing immigration attorneys and the are publishing transcripts of the two outstanding CLE expansion of pro bono representation; and programs that we presented. Former Chief Judge Judith S. Kaye moderated “Behind the Veil: A Frank Discus- • Increasing the sanctioning power of members of sion About Our Appellate Courts,” in which she “inter- the Board of Immigration Appeals and immigration viewed” Chief Judge Jonathan Lippman and U.S. Circuit judges. Judge Richard Wesley about the workings of our appel- In an example of inter-bar association cooperation, late courts. Responding to the needs of lawyers in chal- our Section and the House of Delegates endorsed a report lenging economic times, we offered a second program, by the Committee on the Federal Courts of New York entitled “The Future Ain’t What It Used to Be: Finding County Lawyers’ Association and NYCLA’s additional Opportunity in a Changing Economy,” that was led by recommendations to promote the effi cient and just resolu- Prof. Gary Munneke of Pace Law School and tackled a tion of immigration appeals in the Second Circuit: tough question: How can lawyers not just survive, but thrive in a changing economy? The panel consisted of • The Second Circuit’s adoption of a liberal remand Harry P. Trueheart, Chairman, Nixon Peabody LLP; policy for decisions that lack suffi cient clarity and Teresa Wynn Roseborough, Senior Litigation Counsel, reasoning to enable the Second Circuit to provide MetLife; Michael Rakower, Law Offi ce of Michael C. Ra- effective and meaningful review; kower, P.C.; and Jim Hassett, LegalBizDev. • Discouragement of government opposition to mo- Of course, the highlight of the day was our Section’s tions to stay; annual luncheon. We were honored by the presence