Publications

Before September 11th, the risk of a terrorist attack destroying commercial real estate was borne by the insurance industry. While “all risk” insurance was required by lenders, the cost of providing such coverage was not overly significant. In the wake of September 11th, insurance commissioners in 45 states have approved broad exclusions from coverage for […]

Introduction Long used in the area of equipment-financing as a way to secure “off balance sheet financing,” the “synthetic lease” is now recognized as a viable real estate financing option for businesses looking for ways to manage their financial statements more effectively. As its name implies, the synthetic lease is a hybrid form of financing, […]

Several years ago our client, Cross-Sound Cable Company LLC, began its efforts to construct and operate a high-voltage direct current (HVDC) electric transmission and fiber optic cable system from New Haven, Conn. to Long Island, N.Y. capable of transporting 330 MW of electricity between the points in either direction. The most direct route from New […]

Reprinted with permission from The Connecticut Law Tribune (January 19, 1998) [pp.12-13.] As public companies expand into international business markets, the Securities and Exchange Commission its use of the Foreign Corrupt Practices Act. Early last year, the Securities and Exchange Commission brought a civil enforcement action against Triton Energy Corp. and two former officers for […]

This article is reprinted with permission from the July 30, 1997 edition of New York Law Journal. ©1997 NLP IP Company. In October 1996, President Clinton signed into law the Investment Advisers Supervision Coordination Act (Coordination Act). 1 The Coordination Act (and rules promulgated under it) became effective on July 8, 1997, and operate to […]

On July 31, 2001, the General Accounting Office (“GAO”) issued its report on the Federal Trade Commission’s (“FTC”) Enforcement of the Franchise Rule.[1] In response to a request from three Republican Senators[2], the GAO spent ten months interviewing numerous federal and state officials and trade association representatives, and “obtain[ing] and analyz[ing] data” from the FTC, […]

For many politicians (and elected judges), opposition to the death penalty is often an electoral death sentence. But recently, even ardent death penalty supporters have questioned the fairness of its application. In January 2000, Illinois Gov. George H. Ryan-a pro-death-penalty Republican-took to heart his state’s “shameful record of convicting innocent people and putting them on […]

Some of the U.S. Supreme Court’s most historic decisions-including the Steel Seizure, the Nixon Tapes and the Nazi Saboteurs cases-have been issued without benefit of a court of appeals ruling. In those cases, the Supreme Court exercised its little known, but “extraordinary power” (Ohio v. Price, 360 U.S. 246, 247 (1959)) to grant certiorari before […]

Overturning an arbitral award on appeal is notoriously difficult because the standards of review under the Federal Arbitration Act (FAA) and analogous statutes are extremely narrow. Understanding those standards and how they have been applied may give you at least a fighting chance to prevail.   Arbitration is a creature of contract between parties who […]

The patent bar is awaking from what seems like a Rip Van Winklean slumber to finally take the offensive with respect to patent reform initiatives that threaten to undermine the patent system for patent users and the general public alike.

In the same month that the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice released their Antitrust Guidelines for Collaborations Among Competitors (“Collaboration Guidelines”), the New York State Attorney General won a decisive victory in a case that challenged a collaborative arrangement between two not-for-profit competitor hospitals.

As our eighty-fifth annual Waldorf-Astoria dinner in honor of the Federal Judiciary approaches, we have an opportunity to reflect on statements made a decade ago, at the seventyfifth dinner, by two distinguished federal judges. Those statements appear to have a bearing on the current battle being waged between KSR and Teleflex in the Supreme Court […]

The recent exchange in these pages between Michael Dady and Michael Lockerby on the subject of market withdrawals was not the typical fare of most scholarly legal journals. Several readers have suggested that the tone of the Lockerby piece may have been too harsh. I understand and respect that reaction, but do not share it. […]

A female Police officer who was involuntarily transferred to a lateral, although less desirable, assignment did not make out a case of gender discrimination under Title VII because the transfer was not a demotion, ruled the 7th U.S. Circuit Court of Appeals.

On February 19, 2008, the New York Court of Appeals issued decisions in Bi-Economy Market, Inc. v. Harleysville Insurance Company, 10 N.Y.3d 187, and Panasia Estates, Inc. v. Hudson Insurance Company, 10 N.Y.3d 200. In these decisions, the Court of Appeals held that the insurers violated their contractual obligations of good faith and fair dealing […]

The PTO released a sweeping 21st Century Strategic Plan, in 2002, spurring public debate on many of its proposals. The proposed “Periodic Certification for Registered Practitioners” stayed under the radar, however, avoiding comment and debate despite the fact that this proposal might lead to a periodic mandatory exam, a periodic optional exam, or a combination […]

The United States Patent and Trademark Office recently implemented two electronic databases in an effort to make patent records available to the public. These databases should prove very useful to applicants and patent practitioners in the coming years.

I. INTRODUCTION II. STATE SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT A.Parameters of state sovereign immunity B. Recent Eleventh Amendment developments State courts and state sovereign immunity The scope of congressional abrogation power Market participation and state sovereign immunity But what about the spending power? III. THE DORMANT COMMERCE CLAUSE A. State action that violates the […]

Class-based claims for “unintentional” job discrimination predicated on the disparate impact theory of recovery are relatively uncommon, at least as compared to the volume of disparate treatment litigation. Therefore, while the analytical paradigm governing disparate impact claims is largely statutory and well established, case law of recent vintage is somewhat sparse. In an unusual flurry […]

Physician participation in the implementation of the death penalty is a highly contentious issue, spawning voluminous professional and academic debate. Society has long provided a role for physicians in the execution process, but as the death penalty has become more and more medicalized, the appropriate contours of such participation have come under increasing scrutiny. Should […]

Registered nurses were not supervisors ineligible to vote in a union election because they did not exercise independent judgment, did not supervise patient care and had a limited role in evaluating and reprimanding lower-level employees, the 1st U.S. Circuit Court of Appeals recently held.

Brand development is the process of creating in consumers’ minds an image, an awareness, and a preference for a product or service. A franchisor typically invests enormous sums in its trademark or service mark and accompanying system, which guide the public to a particular product and service experience and assist franchisees with delivering that experience. […]

In Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S. Ct. 1396 (2008), the United States Supreme Court held, in a 6-3 decision, that parties seeking to enforce an arbitration award under the Federal Arbitration Act (“FAA”) cannot contractually expand the scope of a court’s review of the award beyond the limited standards of review […]

Catherine P. Baatz, an associate at Wiggin and Dana, gave this presentation on “News for Senior Living Communities: Legal Update.”

Franchisors that own intellectual property (patents, copyrights, or trademarks)for use as part of the franchise system have long been confronted with an unfortunate and misguided presumption that their intellectual property rights automatically gave them market power — an essential element of many antitrust claims — in the system’s patented, copyrighted, or trademarked products and services. […]

Over the past months we have been receiving an increasing number of questions about the effect of the Sarbanes-Oxley Act (“SOA”) on nonprofit organizations. We have therefore prepared the enclosed guide “Governance and Nonprofit Corporations: Requirements and Expectations in a Post-Sarbanes-Oxley World. We hope this Primer, which reviews the relevant provisions and principles of SOA […]

The patenting of inventions resulting from research collaborations between individuals,between two or more companies,and between universities and companies all stand to gain from the support provided by both Houses of Congress for the Cooperative Research and Technology Enhancement (“CREATE “)Act.

An employee who suffered from occasional bouts of pain and dizziness due to ovarian cysts could not be considered disabled under the Americans with Disabilities Act (ADA) because her condition did not substantially limit a major life activity, according to the 1st U.S. Circuit Court of Appeals.

In Ofori-Tenkorang v. American Int’l Group, Inc., the U.S. Court of Appeals for the Second Circuit held that the Civil Rights Act of 1871, codified at 42 U.S.C. § 1981 (“Section 1981”), which prohibits race-based discrimination against “persons within the jurisdiction of the United States” in the making and enforcement of contracts, does not extend […]

Most large business entities are organised as corporations, which can be either privately or publicly held. Public corporations can be listed on a stock exchange. The two major US stock exchanges are the New York Stock Exchange (NYSE) and the National Association of Securities Dealers Automated Quotation system (NASDAQ).