November 2008 Archives

BigLaw Lawyers on Twitter

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BigLaw Lawyers on Twitter

This is Securities Docket's running list of BigLaw Lawyers on Twitter. The loose criteria for inclusion is anyone currently or formerly with a major law firm who is posting on Twitter primarily about business law topics.

Annual Meeting - Tuesday, January 27, 2008, 9:00 A.M. to 1:00 P.M.

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As secretary of the General Practice Section, I am involved in preparing the presentation for the General Practice Section at the Annual Meeting. I just want to advise the Forum that we believe that we have an excellent program scheduled and you should make every effort to attend. These are the speakers in the order of appearance:

The Hot Tips from the Experts section is back to one hour or more - Bill DaSilva will continue to handle this portion. He always has good speakers.

David Rosen, a law secretary in Queens Supreme Court, will give the CPLR update. He spoke last year and was very good. His materials alone are worth the price of admission.

Joel Sharrow and Vince Gallo, who are active on the Real Estate Forum, will speak on the current mortgage foreclosure situation. Joel will speak from the lender’s viewpoint and Vince will speak from the borrower’s viewpoint. They will speak at the end of the program so we can allow time for questions. Those of you who are on the Real Estate Forum know that they both have a lot of knowledge on the subject and a lot of good things to say.

Martin S. Kera
240 Madison Avenue-7th Floor
New York, NY 10016
Phone (212) 681-1600
Fax (212) 681-1601, 1603


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New HUD-1 Form

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RESPA - Real Estate Settlement Procedures Act Home Page - HUD

From HUD:

For the first time in more than 30 years, the U.S. Department of Housing and Urban Development has issued long-anticipated mortgage reforms that will help consumers to shop for the lowest cost mortgage and avoid costly and potentially harmful loan offers. HUD will require, for the first time ever, that lenders and mortgage brokers provide consumers with a standard Good Faith Estimate (GFE) that clearly discloses key loan terms and closing costs. HUD estimates its new regulation will save consumers nearly $700 at the closing table.

RESPA Final Rule
Good Faith Estimate
Regulatory Impact Analysis

FINDLAW:Daily Opinion Summaries for New York Court of Appeals - 11/25/08

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Court of Appeals Rules on "Attorney Approval" Clauses in Real Estate Contracts:


Moran v. Erk, No. 176
Where a real estate contract contains an attorney approval contingency providing that the contract is "subject to" or "contingent upon" attorney approval within a specified time period and no further limitations on approval appear in the contract's language, an attorney for either party may timely disapprove the contract for any reason or for no stated reason. Judgment for plaintiffs is reversed.



People v. Hawkins, No. 175
In consolidated but otherwise unrelated criminal appeals, both convictions are affirmed where defendants did not properly preserve for appellate their challenges to the legal sufficiency of the evidence.


People v. Jean-Baptiste, No. 174
Reduction of conviction to manslaughter in the second degree is affirmed where, because the Appellate Division properly applied the present standard for depraved indifference murder, the evidence introduced at trial was not legally sufficient to establish defendant's guilt of depraved indifference murder.


People v. Castellano, No. 173
Order affirmed where defendant's argument that the evidence presented at trial was insufficient to support his conviction for depraved indifference murder is unpreserved for this Court's review.


People v. George, No. 172
Order of the Appellate Division should be affirmed, where contrary to the People's contention, defendant properly preserved for our review his challenge to the legal sufficiency of his depraved indifference murder conviction.


Continental Casualty Co. v. Stradford, No. 180
In an action to determine whether plaintiff-insurer timely disclaimed coverage in defense of two dental malpractice actions on the basis of defendant's non-cooperation, grant of summary judgment to defendants is reversed where issues of fact remain with respect to the timeliness of plaintiff's disclaimer.

FINDLAW:Daily Opinion Summaries for New York Court of Appeals - 11/24/08

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In the Matter of Gormley v. New York State Ethics Commission, No. 162
Imposition of a civil penalty under Public Officers Law section 73(18) does not require the New York State Ethics Commission to prove that petitioner knew the conduct was prohibited and acted intentionally to violate the statute.


Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., No. 171
Order denying plaintiffs' motion to confirm a special referee's report, which recommended that defendant be compelled to produce a non-U.S. resident for oral deposition in New York and testimony and documents relating to a foreign arbitration in which defendant is not a party, is affirmed where evidence did not support the special referee's recommendation.


People v. MacShane, No. 220 SSM 40
Order of the Appellate Term is affirmed where defendant failed to meet his burden of establishing a prima facie case of discrimination under step one of the three-step protocol in Batson v Kentucky (476 US 79 [1986]).


People v. Naradzay, No. 188
Convictions for attempted murder in the second degree, attempted burglary in the first degree, and criminal possession of a weapon in the fourth degree are all affirmed over defendant's challenges to the legal sufficiency of the proof supporting his attempted burglary and murder convictions.


People v. Johnson, No. 166
In a child pornography case, the court's application of the Board of Examiners of Sex Offenders risk Factor 7, indicating an increased level of risk when a crime "was directed at a stranger," is affirmed over defendant's claim that Factor 7 be interpreted in a way that makes it inapplicable to his case, where the factor's plain language precludes such a result.


Helmsley-Spear, Inc. v. Fishman, No. 164
In a nuisance action brought by managers of the Empire State Building against a union that was loudly picketing and drumming outside the property, the private nuisance cause of action is not preempted by the National Labor Relations Act (NLRA), as loud drumming is not an "integral part of the legislative scheme" of the NLRA. Matter remanded for consideration of issues raised but not determined. .

FINDLAW:Daily Opinion Summaries for New York Court of Appeals - 11/21/08

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Morgenthau v. Avion Res. Ltd., No. 167
In a civil forfeiture action seeking to obtain proceeds of an allegedly illegal international monetary transfer scheme, dismissal of complaint is reversed where service of process pursuant to CPLR 313 on defendants in Brazil was sufficient to confer personal jurisdiction, and plaintiffs were not compelled to serve defendants in accordance with Brazil's service requirements via letters rogatory.


White House Manor, Ltd. v. Benjamin, No. 155
In an unjust-enrichment action arising out of plaintiff's sale of land to defendant, and a third party's subsequent entry into a conditional contract to purchase that land, summary judgment entered against the third party is reversed where: 1) a stipulation concerning the third party's obligation to pay defendants' pro rata share of property taxes could be enforced by the court; but 2) no party had moved for summary judgment under CPLR 3212; and 3) issue had not been joined by the third party, and summary judgment against the third party regarding claims for breach of the contract was therefore inappropriate.


People v. Ennis, No. 168
In a case where defendant was convicted on drug-related conspiracy and assault charges, denial of defendant's post-conviction motion to vacate his convictions on Brady and ineffective assistance of counsel grounds is affirmed where: 1) the Brady violation did not contribute to the guilty verdict, since defendant's counsel was aware during the trial of the information withheld by prosecutors; 2) no cognizable conflict of interest arose from the fact that defendant's attorney was aware of the exculpatory evidence, but did not act on it out of a desire not to reveal his source for the information; and 3) defense counsel was not ineffective for failing to act on the exculpatory information, because there would ultimately have been no way for defendant to present the information to the jury.


In the Matter of Abraham XX, No. 165
In a petition seeking repayment by the state of funds in excess of a Medicaid lien, summary judgment for the state is affirmed where the state was entitled to recover from the assets of a Supplemental Needs Trust the total medical assistance paid on behalf of the recipient.


Briggs Ave. LLC v. Ins. Corp. of Hannover, No. 163
In a declaratory-judgment action seeking to compel defendant-insurer to defend a personal-injury action brought against plaintiff-insured, upon a question certified by the U.S. Court of Appeals for the Second Circuit, the court answers that a liability insurer is entitled to disclaim coverage when the insured, because of its own error in failing to update the address it had listed with the Secretary of State, did not comply with a policy condition requiring timely notice of a lawsuit. .

NYSBA News Release
November 24, 2008

Grassroots Efforts of Association Members Prove Essential in Winning Important Extension

New York State Bar Association President Bernice K. Leber (Arent Fox LLP) released the following statement praising the Federal Deposit Insurance Corporation's (FDIC) decision to extend unlimited insurance coverage to Interest on Lawyer Accounts (IOLA) under the FDIC's new Temporary Liquidity Guarantee Program (TLGP):

"The FDIC's decision to grant IOLA funds unlimited deposit insurance coverage is a resounding victory that protects precious funding that is so desperately needed in order to deliver vital civil legal services to the poor, not only in New York but also in the 36 other states that rely on interest generated from lawyer accounts. The FDIC’s considerate action ensures the safety of client funds deposited in IOLA, regardless of the amount. With home foreclosures and evictions on the rise, and with a growing number of low-income people - from single mothers to the elderly - struggling to survive, we must continue to do everything we can to protect this critical source of legal funding. This announcement brings a ray of good news during these difficult economic times.

I applaud the members of our New York State Bar Association for their outstanding grassroots efforts in making the FDIC and our congressional leaders aware of this important issue. More than half the letters received by the FDIC came from members of the State Bar Association. We place the fight for access to justice for the poor among our top legislative priorities. Throughout New York and the nation, bar associations of all sizes, as well as individual lawyers and law firms, joined state and national political leaders in forming a bipartisan coalition that answered our call. I thank everyone for getting involved and for truly making a difference."

The FDIC's October 23 Interim Rule establishing TLGP provides full deposit insurance coverage on noninterest-bearing transaction accounts.

PCWORLD: OLPC 'Give 1 Get 1' Laptop Program Now Available on Amazon

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OLPC 'Give 1 Get 1' Laptop Program Now Available on Amazon - PC World

The One Laptop Per Child (OLPC) association launched its Give 1 Get 1 program for a second time, allowing people to buy one of their iconic green mini-laptops and donate one to a child in the developing world at the same time for just US$399.

This year, OLPC teamed up with Amazon for smoother ordering and distribution.

Amazon will begin taking orders for the XO laptops [today]. The devices will be shipped within 30-days in the U.S. or longer for people ordering from the U.K. or other parts of the world.
There are several ways to participate in the Give 1 Get 1 program.

In Give 1 Get 1, people pay US$399 for two XO laptops, one sent to a child in a developing country and the other sent to the donor. Those who don't want an XO can also simply give as many laptops as they want at $199 each.

People in the U.S. can order at

People outside the U.S. can order at

Failed Bank List

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FDIC: Failed Bank List

The FDIC is often appointed as receiver for failed banks. This page contains useful information for the customers and vendors of these banks. This includes information on the acquiring bank (if applicable), how your accounts and loans are affected, and how vendors can file claims against the receivership.

This list includes banks which have failed since October 1, 2000.


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Add your Twitter backlog feed to your favorite calendar application and browse through your personal Twitter diary, making your Twitter history both fun and useful!

Subscribe to messages from any Twitter user in any popular desktop or online calendaring application (iCal, Google Calendar, etc.). Those messages are then automatically added to the calendar, at the appropriate day and time.

Caught in the legal recession? - ABA Journal Survey

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The ABA Journal would like you to put in your 2 cents worth about the "legal recession".

The ABA Journal is surveying lawyers about the job market and the current state of the economy. We'd appreciate it if you could let readers know about our survey with a mention on your blog. Here is the link:

Survey results will be published in the January ABA Journal. If you post a note about our survey on your blog and send us the link, we'll be sure you're among the first to know when we're ready to post the results. Answers will be kept confidential and used only in combination with all other responses received. If you have any questions or suggestions, please feel free to contact me.

Thanks for your help.


Stephanie Francis Ward
Legal Affairs Writer
ABA Journal

Albany Law Hosts Tribute to Siegel

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Albany Law School will host an event to celebrate the career of Distinguished Professor of Law Emeritus David D. Siegel on Tuesday, Nov. 18 at 5:30 p.m. A tribute will be given by Chief Judge Judith S. Kaye, New York Court of Appeals, as well as other special guests.

Professor Siegel, who joined the Albany Law School faculty in 1972, has taught and still writes extensively on civil procedure, federal jurisdiction and practice, conflict of laws, and New York practice. He is the author of New York Practice, the leading treatise on New York practice, and one of the few commentators appearing in the United States Code Annotated.

For more information, or to share memories of Professor Siegel, visit

Judge: No cryptographic hash analysis without warrant

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(Full Text of Article by Dan Goodwin from The Register)

Child porn case, from MD PA which sets forth warrant requirement for search of computer, even when "only" making a copy of the hard drive and doing a "hash analysis" i.e., adding up sums of numerical identifiers for various files without opening the files.

The hash analysis program was EnCase, which is in common use amongst law enforcement computer forensic experts.

Read the full text of the decision here.


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Google Flu Trends

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Google Flu Trends

Google has found that certain search terms are good indicators of flu activity. Google Flu Trends uses aggregated Google search data to estimate flu activity in your state up to two weeks faster than traditional systems
For those of us who qualify as chronically ill or elderly; i.e., at high risk during flu season, there is also a "Flu Shot Locator", which works by ZIP Code and tells you how far you are from the nearest flu shot.

This is an excellent example of an "unintended consequence" from Google's enormous user base. I expect we'll be seeing more "mashups" of this type.

Albany Panel Dismisses Judicial Pay Suit

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The New York Law Journal - Albany Panel Dismisses Judicial Pay Suit

By Joel Stashenko
November 14, 2008

ALBANY - An upstate appeals panel yesterday dismissed a suit filed by judges seeking to force the state to grant them their first pay raise since 1999.

While its decision in Maron v. Silver, 504084, was peppered with words such as "deplorable" to describe the raise drought, the Appellate Division, Third Department, nevertheless decided 4-1 that the judges lacked grounds to bring their claims for higher compensation.

The decision will be published Wednesday.

The majority dismissed the remaining two grounds recognized by Acting Supreme Court Justice Thomas J. McNamara (See Profile) last year, that the lack of a raise imperiled judicial independence by driving good judges from the bench and that the refusal to increase judges' salaries was in retaliation for their rulings on controversial issues such as ordering higher school aid for New York City (NYLJ, Dec. 3, 2007).


The suit before the Third Department yesterday was brought by Nassau County Court Judge Edward A. Maron ..., Supreme Court Justice Arthur Schack of Brooklyn ... and former Supreme Court Justice Joseph A. DeMaro of Brooklyn.

It is one of three suits brought on behalf of the judiciary seeking higher pay and the first to reach the Appellate Division.

A second suit, Larabee v. Governor, 112301/07, is scheduled to be heard by a First Department panel on Tuesday. In that case, Supreme Court Justice Edward H. Lehner ... ruled that lawmakers and the governor had unconstitutionally linked passage of a judicial pay raise to unrelated public policy issues, such as campaign finance reform or a pay raise for lawmakers themselves (NYLJ, June 11).

A third suit, Kaye v. Silver, 400763/08, is also before Justice Lehner in Manhattan. He is considering a motion for summary judgment filed by Chief Judge Judith S. Kaye and motions to dismiss the action from the governor and legislative leaders.

2008 NYSBA Solo and Small Firm Survey

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Bernice K. Leber, the President of the New York State Bar Association, has formed a Special Committee on Solo and Small Firm Practice. The Committee’s charge is to make a comprehensive study of particular issues and challenges which confront solo and small firms practices, and to recommend ways in which the bar associations, the Courts, and other entities may assist them in meeting those challenges and in achieving successful practices and balanced lives.

I am asking that you take a few moments to complete this brief survey to help us find ways to help you and other solo and small firm practitioners. Complete the survey online by December 5, 2008 and enter your name for a prize drawing* for a free CLE program (live or recorded) presented by the Law Practice Management (LPM) Committee.

2008 NYSBA Solo and Small Firm Survey

Robert Ostertag,
Chair, Special Committee on Solo and Small Firm Practice

* Members who complete the survey online by December 5, 2008 and enter their contact information in the prize drawing question will be automatically entered into a drawing for a free LPM sponsored CLE program. Three winners will be selected randomly.

Chief Judge Judith S. Kaye's final State of the Judiciary speech

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(NY Times (James Barron): State's Top Judge, Now 70, Gives Her Farewell Speech)

After delivering what she called her "swan song," an hourlong speech on Wednesday in which she said her role as "chief plaintiff" in a lawsuit over judicial pay "sickens me," the state's chief judge said she had not endorsed anyone as her successor. "I'm waiting to see the list" of seven potential candidates recommended by a state commission, the chief judge, Judith S. Kaye, said after her speech on the state of the state judiciary. The panel will forward the names to Gov. David A. Paterson next month, and he is expected to nominate a new chief judge in January. Judge Kaye also said that if the governor called and asked for her thoughts, "I would hand him my state of the judiciary and tell him to read it carefully." Judge Kaye, who was the first woman to become chief judge when she was elevated in 1993 and is now the longest-serving chief judge in the state's history, will step down at the end of the year, having reached 70, the mandatory retirement age for judges. She had been an associate judge on the Court of Appeals for 10 years when Gov. Mario M. Cuomo promoted her to chief judge.


Webcast Available to View Online

Chief Judge Judith S. Kaye's final State of the Judiciary speech will be available over the Internet at

The chief judge, who is stepping down Dec. 31 because of the courts' mandatory retirement age of 70, is speaking today at 1 p.m. at the Skirball Center for the Performing Arts at New York University, 566 Laguardia Place, in Manhattan.

It is the first State of the Judiciary address Chief Judge Kaye has given outside of Albany in her 15 years as chief judge.

Tour the Legal Web's New Sites

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Legal Technology - Tour the Legal Web's New Sites

By Robert J. Ambrogi
Law Technology News
November 7, 2008

This month, Bob Ambrogi's column for Law Technology News rounds up new legal Web sites that have recently debuted.


Bob Ambrogi has put together the latest legal sites, so you don't have to.

2008-2009 Presidential Transition Resources

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Presidential Transition Team

Message to Presidential Nominees and Appointees, and Members of the President-elect's Transition Team:

The Presidential Transition Act of 2000 (P.L. 106-293) authorizes the General Services Administration (GSA) to develop a transition directory in consultation with the National Archives and Records Administration (NARA). The Act provides that the transition directory "

shall be a compilation of Federal publications and materials with supplementary materials developed by the Administrator that provides information on the officers, organization, and statutory and administrative authorities, functions, duties, responsibilities, and mission of each department and agency."
Senate Report 106-348 clarifies that the directory is intended to "
assist in navigating the many responsibilities that fall on a new administration" that is "confronted by an overwhelming amount of material.

GSA and NARA hope that this online directory will introduce you to the operation of the Federal government and the resources available to help you begin your service in the new Administration. If you have questions or comments about this directory, please contact us.


The site may be of interest to lawyers and law firms who will be doing business with the new administration.


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Office of the President

Dear New York State Bar Association member:

I am writing to ask that you assist the New York State Bar Association’s (Association) efforts concerning a critical unintended consequence of the Federal Deposit Insurance Corporation’s (FDIC) new Temporary Liquidity Guarantee Program (TLGP). Simply put, the new program would not cover New York’s Interest on Lawyer Accounts (IOLA) in order to provide unlimited insurance coverage for those accounts. Since 1983, the accumulating interest on money in those accounts has been earmarked for New York’s IOLA Fund. The IOLA Fund has been, and continues to be, an important source of funds for programs that provide civil legal services to New Yorkers who are unable to afford them.

It is important to persuade the FDIC to construe IOLA as non-interest bearing transaction accounts under TLGP. Alternatively, we urge you to support us in persuading the FDIC to grant an exception in the TLGP rules explicitly stating that funds in IOLA accounts have unlimited deposit insurance coverage regardless of dollar amounts. Additional information below explains the impact of this new rule on New York’s IOLA Fund.

Also, the links below will lead you to the Association’s Legislative Action Center, where you will be able to enter your zip code and send a message on this matter to your member of the House of Representatives and both US Senators from New York. A separate link below will enable you to send a message directly to the FDIC.

The FDIC’s new rules were published in the Federal Register on October 29, 2008. The period for public comment on the TLGP ends on November 13, 2008. Please act now!

To send a message to your Senators or Representatives, click here.

To send a message to the FDIC, click here.

STRAUSS V. HORTON (Full Text of Petition)
(California Supreme Ct., Nov. 5, 2008) - Six same sex couples, along with Equity California, filed a petition for relief from the recently passed Proposition 8, which sought to change California’s Constitution by adding "only marriage between a man and a woman is valid or recognized in California." The suit argues that Proposition 8 is an invalid revision, rather than an amendment of California’s Constitution, which cannot be enacted through ballot initiative. Petitioners seek an immediate stay against enforcement of Prop 8 until its validity is determined.

Related Resources
California Constitution Article 18 on Amending versus Revising the Constitution
Same-Sex Marriage: A Historical Introduction
March 2005 California Supreme Court Opinion Recognizing Same Sex Marriage Rights
FindLaw Special Coverage: Same Sex Marriage

Municipalities File Suit Against CA Prop. 8

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Legal groups and three city attorneys asked the California Supreme Court on Wednesday to invalidate Proposition 8, arguing that the voter-approved ban on gay marriage is a constitutional revision that should have been processed through the Legislature, not the ballot box.

The lawsuit throws the hot-potato issue of same-sex unions back to the high court just six months after four justices infuriated social conservatives by declaring that marriage rights extend equally to both gay and straight couples. And it snares Chief Justice Ronald George, author of the majority opinion in In re Marriage Cases, in a political vise as his scheduled 2010 retention election approaches.

The Pleadings and points of law filed by the municipalities can be viewed here.

Twitter 101 for Lawyers

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Twitter 101 for Lawyers « Practicing Law in the 21st Century

Niki Black has an excellent article on how lawyers can use Twitter:

Twitter is a free, Web-based communications platform that allows users to share information with others who have similar personal and professional interests. Users communicate using text-based posts (“tweets”) of up to 140 characters in length.

Twitter currently has more than 3.2 million accounts registered, and its user base is expanding quickly. Companies and individuals use Twitter in a variety of unique ways, which are constantly evolving.

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