January 2012 Archives


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January 2012 

Dear Young Lawyers Section Members:


Welcome to the latest edition of Electronically-In-Touch, the e-publication of the NYSBA Young Lawyers Section. We are excited about the progress our publication has made over the past 15 months and are proud to announce that Erin K. Flynn, Esq. will be taking over as EIT editor. The current issue includes information regarding section events at the upcoming NYSBA annual meeting and the YLS Outstanding Young Lawyer Award. We then proceed onto four articles, covering areas from business law to mediation. Please keep your articles coming to Electronically-In-Touch.


Nilesh Yashwant Ameen, Esq. & Erin K. Flynn, Esq.

Editors, Electronically-In-Touch

Chair's Message

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Welcome to the New Year 

As we settle into the post-holiday winter stretch and first days of 2012, the Young Lawyers Section is getting ready for an action packed year.  Prior to looking ahead, let's take a quick look back at some of the highlights from the last quarter of 2011.  In early October, the Section kicked off its inaugural law school mentoring program at Cardozo Law School in New York.  The program pairs young lawyer mentors with law school mentees.  One mission of our Section is to aid in the transition from law school to practice.  Mentoring is an important component of making the transition a success.  The law students at Cardozo were eager to join the program, and we are proud to say that our members overwhelmingly heeded the call to serve as mentors.  This pilot program will be used as a model to institute similar mentor programs in law schools across the State.

In late October, the Section held its statewide Fall Meeting in Albany, and Chair-Elect, Michael L. Fox, Esq., served as program chair.  The Section's Executive Committee meeting was followed by a special behind the scenes tour of the New York State Court of Appeals.  Chief Judge Jonathan Lippman welcomed our group, and Judge Victoria Graffeo provided both a historical and modern perspective of the Court.  It was truly an incredible experience to take in the rich history of the highest Court in our State, while meeting Judge Lippman and Judge Graffeo.  The group walked a short distance from the Court to a reception at Jack's Oyster House on State Street, where a large group of members and lecture faculty from the next day's CLE program were able to enjoy a relaxing evening with old and new friends.  The following day featured an 8 credit hour CLE program, including topics such as pleadings in state and federal court, an overview of bankruptcy practice, depositions and discovery, ethics in practice and litigation, jury selection, and an overview of arbitration and mediation.  A networking reception following the program concluded the Meeting.  We had an excellent turnout for the Meeting, including many new faces.  We are thankful for everyone who made this program a success, including the CLE faculty, the Bar staff and Mike.

Throughout the Fall, the YLS has been very active in the various districts of the State.  Our district representatives have been doing a great job of organizing events, which are critical to giving our statewide organization a local presence.  YLS members were also involved in NYSBA events at law schools across the State.  I am pleased to report that our membership numbers are strong, as we now have in excess of 4,000 members.  There is work to do, though, because we believe that every New York young lawyer would value from being a member of our Section.

On to 2012!  First stop, the NYSBA Annual Meeting.  Each year in late January, the entire New York State Bar Association descends on New York City for an Association-wide meeting at the Hilton in mid-town Manhattan.  If you have never been to an Annual Meeting event, I strongly encourage you to attend.  There will be many YLS events that week (January 23-27, 2012), and I encourage you to look into some of the programs being held by other sections and committees as well.  It always amazes me to see the diversity in our profession, and there is no better setting to witness this diversity than the Annual Meeting.

On Monday, January 23, 2012, the New York State Bar Association is hosting its ninth annual "Celebrating Diversity in the Bar" networking reception.  The event begins promptly at 6:00pm with a brief awards ceremony recognizing three recipients of the 2012 Diversity Trailblazer Award, to be followed immediately by a networking reception.  Our Section will have a table at the event, so we encourage you to come and meet us.

Our Section's Annual Meeting program will be held on Wednesday, January 25, 2012.  The day begins at 9:00am with a 3.5 credit CLE program entitled "Overview of Representation of Non-U.S. Citizens."   Alena Shautsova, Esq., is serving as program chair for the CLE.  Speakers will present topics focusing on representation of non-U.S. citizens in employment discrimination and labor disputes, immigration courts and criminal courts.  The Section's Executive Committee meeting and luncheon will immediately follow the CLE (12:30pm), and we invite all members to attend to learn more about how to become active in our Section.  One NYSBA event taking place the same day is the Presidential Summit, which is held from 2:00pm to 5:00pm.  This year's program focuses on state court funding and representation in immigration matters (a nice tie-in with our morning program).  A complimentary reception follows the program, and all NYSBA members are welcome to attend.

On Thursday and Friday, January 26 and 27, 2012, our Section is pleased to host the 2012 Bridging the Gap CLE program entitled "Transforming Preparation into Practice."  Jason Clark, Esq., and Simone Archer, Esq., are serving as chairs for this two-day program which offers 16.5 credit hours of CLE.  It is designed, in part, to assist young attorneys in fulfilling their CLE requirements in a short period of time at an extremely reasonable price.   Topics for the Thursday program include elder law basics, transactional negotiations, an overview of landlord/tenant law, data security and identity theft, litigation techniques for state and federal court, representation involving securities violations, and corporate investigations.  Friday's programming includes presentations on depositions, time management and work-life balance, ethics for young attorneys, New York State law and policy, and starting your own practice.  One of the speakers on Friday will be Hon. Governor David A. Paterson.  All of the speakers are highly experienced in their fields, and will provide an interesting perspective on the topic under consideration.

Finally, the Young Lawyers Section is proud to annually present one attorney with the Outstanding Young Lawyer Award.  A presentation and reception will be held on Thursday, January 26, 2012, starting at 5:15pm.  This award recognizes one of our colleagues each year who demonstrates outstanding service to both the community and the legal profession through public service and professional activities.  The 2012 recipient of the Outstanding Young Lawyer Award is Karen I. Wu, Esq., of Perlman & Perlman in New York.  Please join us as we recognize a deserving colleague for helping to advance the interests of our profession.

As you can see, the Annual Meeting promises to be an exciting week for our Section, and we look forward to seeing each of you there.  Please keep in mind that our Section's third annual Trial Academy is set for March 21-25, 2012 at Cornell Law School in Ithaca.  Register now to ensure your spot at NYSBA's premiere trial techniques program for young attorneys .  All the best for 2012!

- James R. Barnes, Esq.

Section  Chair

NYSBA Annual Meeting

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Young Lawyers Section members can view information regarding the section Bridge the Gap event here: www.nysba.org/am2012btg and information regarding the section annual meeting program here: www.nysba.org/am2012yls.

YLS Outstanding Young Lawyer Award

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We are privileged to invite you to attend The New York State Bar Association's Young Lawyers Section Outstanding Young Lawyer Award Presentation and Reception. The Award Presentation and Reception will be held during the Annual Meeting on Thursday, January 26, 2012, at 5:15 PM, immediately following the conclusion of the Bridging the Gap CLE program, in the Murray Hill Suite "A", 2nd floor, at the New York Hilton in New York City.

Each year the Young Lawyers Section of the New York State Bar Association honors a young lawyer who has rendered outstanding service to both the community and legal profession. The Outstanding Young Lawyer Award recognizes an attorney who has a distinguished record of commitment to the finest traditions of the Bar through public service and professional activities. This year's recipient is Karen I. Wu of Perlman & Perlman in New York. In an effort to showcase our Outstanding Young Lawyer Award recipients to law students, new attorneys and young lawyers alike, this year's award presentation and reception will take place following the Law Student Council's program for law students, and the Young Lawyers Section Bridge-the-Gap program.

This year's Outstanding Young Lawyer Award Presentation and Reception is being sponsored by the Association's Law Student Council, the Committee on Membership's Sub-committee on New Attorneys and the Young Lawyers Section.


We hope you can join us in celebrating Karen I. Wu as our 2012 Outstanding Young Lawyer at the Annual Meeting.  www.nysba.org/am2012


Banking Law

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The Separate Entity Rule After Kohler v. Bank of Bermuda Ltd.


By Philip Lem, Esq.




In Kohler v. Bank of Bermuda Ltd., the New York Court of Appeals in 2009 held that a New York court may order a garnishee bank over which it has personal jurisdiction to deliver stock certificates located outside of the state into New York under CPLR 5225.  While the decision has been criticized for its potential for inducing forum shopping by judgment creditors, equally significant is Kohler's impact on New York's separate entity rule.  This article discusses Kohler's effect on the relevant CPLR Article 52 judgment enforcement mechanisms vis a vis the separate entity rule, and the extent to which that rule still survives with respect to pre-judgment attachments.

Please click on the following link to read more of this article:


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         Mediation Basics for Lawyers and their Clients

                         by David B. Ramsey and Justine Borer


Mediation as a method of alternative dispute resolution is growing rapidly in popularity and appeal.  Regardless of your practice area, or your desire to mediate cases yourself, it behooves you to understand some mediation basics so that you can respond to client questions, and direct clients to mediation when appropriate.  Many clients do not understand what mediation is; in turn, many capable lawyers are unable to provide basic, cogent explanations of what mediation is and of what the process of mediation will entail.  In this article, we arm lawyers unfamiliar with mediation with some basic information about it, and with some ideas about how to field client questions about it.

Read more of this article.


Securities Law

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New Trading Platforms For Small Cap Stock Companies


By: Jonathan Achiron, Esq.


Earlier this year the SEC approved the request of the NASDAQ OMX Group to establish the BX Venture Market, a new lower level stock exchange for smaller companies with lower liquidity. The BX Venture Market, which is expected to launch in the spring of 2012, will provide companies that cannot meet the minimal quantitative listing standards imposed by other national securities exchanges, with the opportunity to list and trade their stock in a well regulated and transparent environment that has more relaxed requirements.

The BX Venture Market will provide an option for companies that have been delisted from a national securities exchange and are seeking a new listing alternative, or are interested in first exchange listing that supports capital formation for early stage and smaller, private, venture-backed companies, either in the context of an initial public offering or as a step forward from the over the counter markets. 

In order to be eligible for listing, the BX Venture Market requires that companies must, among others, adopt a code of conduct, hold an annual meeting of shareholders, be registered under Section 12(b) of the Exchange Act and current in their reporting requirements, and have a fully independent audit committee and three independent directors; although in contrast to companies listed on NASDAQ, there is no requirement to have a majority of independent directors on the board. Furthermore, companies would be required, among others, to have at least 200 public shareholders, 200,000 publicly held shares, and a minimum market value of listed securities of $1 million for continued listing and $2 million for initial listing. Minimum initial listing price will be $1.00 in most cases and a continuing price of $0.25 will be necessary to keep the listing (this is more than NYSE Amex, which has no minimum price to maintain a listing).

Companies listed on NASDAQ are required to obtain shareholder approval for any stock issuance of 20% or more at a price less than the greater of book or market value, any stock issuance that could result in a change of control, and certain stock issuances in connection with acquisitions. However, the BX Venture Market requires shareholder approval for certain equity compensation arrangements but not for other issuances of securities (although a notice is required for any 5% change in the number of outstanding shares).

Interesting enough, the BX Venture Market has some caveats.  For example, shell companies and companies that satisfy NASDAQ's quantitative requirements, will not be eligible for listing on the BX Venture Market.  While securities listed on NASDAQ enjoy an exemption from the "blue sky" rules, no such exemption will be offered to securities listed on the BX Venture Market.  Companies that are listed on the BX Venture Market, will not be able to use the term "NASDAQ" by referring to themselves as listed on NASDAQ; doing so may result  in an immediate delisting from the BX Venture Market. Thus, companies must refer to their listing as on the BX Venture Market, unless otherwise required by applicable rules or regulations.

As alternatives to the BX Venture Market, the OTC Markets Group has introduced new marketplace options for SEC reporting companies, which includes the OTCQX, OTCQB, and OTC Pink.

OTCQX, which is the top tier of the OTC market, requires companies to meet high financial standards and undergo a qualitative review. OTCQX may serve companies as a final step toward a NASDAQ or NYSE listing.  OTCQX offers companies that are listed on a qualified non U.S. stock exchange easy access to U.S. investors. International companies are required to have a Level 1 Sponsored ADR program in the U.S. or a foreign ordinary that is DTC eligible. All OTCQX companies appoint a qualified, third-party Principal American Liaison/PAL (OTCQX International) or Designated Advisor for Disclosure/DAD (OTCQX U.S.) sponsor to help them with the admission process, and be available as a trusted resource regarding all aspects of investor information needs and market protocols. DAD eligibility is limited to reputable securities attorneys or FINRA member investment banking firms, and PAL eligibility is limited to a FINRA member investment banking firm or ADR Bank.

OTCQB is the middle tier of the OTC market. OTCQB companies report to the SEC or a U.S. banking regulator. There are no financial or qualitative standards to be in this tier.

OTC Pink has no financial standards or reporting requirements, but companies in this tier choose the level of information they provide to investors and may have current, limited or no public disclosure.

Jonathan Achiron is an associate attorney at the New York office of Zysman, Aharoni, Gayer and Sullivan & Worcester LLP, an international joint venture law firm. Jonathan received his law degree from Northwestern University. He is admitted to practice law in New York and in Israel.  Jonathan's practice focuses on mergers and acquisitions, banking and finance, start-ups and technology, and capital market and securities. Jonathan is actively involved in assisting domestic companies and foreign private issuers in evaluating and listing on the BX Venture Market, as well as other emerging listing venues including the OTCQX.





Bankruptcy Law

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What to Expect: New York Bankruptcy 341 Creditor's Meeting


                                           by Sapna Gupta, Esq.

The 341 or Creditor's Meeting is generally the only Court appearance in a Chapter 7 Liquidation Bankruptcy case and is the first hearing of two hearings in Chapter 13 Reorganization Bankruptcy. 

In New York, upon acceptance of the filing, the Court will issue a 341 hearing date which should be within 45 days of the date of filing.   In preparation for the hearing, attorneys should bring with them a printed copy of the entire Bankruptcy filing, and anything that the Trustee's office has specifically requested.  The Debtor must bring his/her driver's license (or other government-issued photo ID) and social security card.  If the Debtor is unable to present the ID and Social Security card to the Trustee, the Trustee will usually adjourn the hearing. 

A schedule is sometimes posted outside of the conference room door indicating the order of the meetings.  The Trustee will be sitting at a table in the front of the room facing awaiting debtors and attorneys.  It is helpful to go a little early and listen to the previous cases in order to determine common questions the Trustee asks each debtor.    

During the meeting, the Trustee will investigate the Debtor's financial status. Creditors are notified of the meeting but rarely appear.  The attorney may interject if necessary to correct any discrepancies, but otherwise the hearing is conducted as a recorded conversation between the Trustee and the Debtor.  The Trustee will ask the Debtor to swear under oath and then ask the attorney to note their appearance.  Attorneys note appearance by saying "[Their Name] attorney for the debtor, admitted in the [name of District]."  The Trustee will then proceed by asking the debtor a series of questions based on the filing.

Common topics covered by most Trustees:

1) Real and Personal Property owned by the debtor and any associated liens

2) Monthly income and job-related questions

3) One Trustee always asks what has put the debtor in this financial situation.  A common answer is "Living above my means"

4) Factors surrounding residency of the debtor

5) Debtor's Monthly expenses- in a Chapter 7 case, it is good practice to balance out the Monthly Expenses and Monthly Income on the Schedules.  If expenses are extraordinarily high, the Trustee will further examine the Debtor. 

If the Trustee notes errors or inconsistencies in the filing, attorneys should undertake to amend the filing.  Absent any serious defect or inconsistency, the meeting should be quick and painless.   The Trustee will thereafter recommend dismissal or discharge and the Court will issue a final Decree some months later. 

Sapna Gupta is a partner of Pantano & Gupta, LLC a general practice law firm located in Downtown Financial District.  Sapna is admitted in the Southern and Eastern Federal Districts of New York and focuses on individual Chapter 7 and 13 and Corporate Chapter 7 Bankruptcy.  Before co-founding the firm with her partner, Anthony Pantano, Sapna worked with a solo practice Bankruptcy attorney at Troy & Associates, and received her JD from Case Western University.  She is an active member of the New York State Bar Association, South Asian Bar Association of New York and New York County Lawyers' Association.     


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Electronically-In-Touch is the monthly electronic news-publication of the NYSBA Young Lawyers Section (YLS). It is a member driven publication, encouraging YLS members to write articles, and as such we would welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life advice, and information regarding upcoming meetings and events. Please submit articles to Erin K. Flynn, Esq., at erin.k.flynn@gmail.com, no later than the 10th of the month.

About this Archive

This page is an archive of entries from January 2012 listed from newest to oldest.

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February 2012 is the next archive.

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