Current Developments in Commercial Division Practice

Synopsis

Commercial Division justices and practitioners give a review and update on practice and procedure in the Supreme Court's Commercial Division, from assignment of the case through trial. The presenters cover recent noteworthy commercial decisions rendered in the Commercial and Appellate Divisions on discovery, motions to dismiss, and summary judgment. They also address the topics of e-discovery and the confidentiality and sealing of records.



Outline

 

I. Current Developments
        A. Introduction of Topics
        B. Getting Your Case Into the Commercial Division
            1. Does the Case Belong There?
            2. Exceptions to the Rule
            3. Requirements for Getting a Case In
            4. Transferring a Case In or Out of the Division
            5. E-Filing
            6. Pre-Answer Motions
        C. Time Is of the Essence
            1. Rule 1 and Rule 7
            2. Rule 8
            3. Discovery Rules and Disputes
            4. Adherence to Discovery Schedule
            5. Discovery Discussion
            6. Sanctions
            7. Discovery and Motions Discussion
        D. E-Discovery, Expert discovery and Recent Decisions
            1. Background
            2. Data Preservation
            3. Proposed Rule 1(b)
            4. Cost Shifting Case Law
            5. More Case Law
            6. What Is at Issue?
            7. E-Discovery Cost Discussion
            8. Reform and Expert Discovery
        E. Summary Judgment and Trial Preparation
            1. Rule 19-a
            2. Failure to Comply With Rule 19-a
            3. CPLR 3213
        F. Questions Answered
            1. Part I
            2. Part II
        G. Sealing of Records



Content Provided
By



The Association of the Bar of the City of New York

The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.





Speakers / Authors:

Photo of Bernard J. Fried

Bernard J. Fried
NY Supreme Court

 

Justice Bernard J. Fried is currently a judge for the NY Supreme Court Commercial Division. Justice Fried graduated from Alfred University in 1962 and Brooklyn Law School in 1965, where he served as Editor-in-Chief of the Brooklyn Law Review. Following three years in the Judge Advocate General Corps, U.S. Army, he was a Law Clerk to Charles D. Breitel, then Associate Judge of the New York Court of Appeals from 1969-70. From 1970-72, he was a Senior Fulbright Scholar in Seoul, Korea. Thereafter, he was an Assistant United States Attorney for the Eastern District of New York, becoming Chief Assistant United States Attorney in 1978.

In 1980 he was appointed a Judge of the Criminal Court of the City of New York. Designated in 1984 as an Acting Justice of the Supreme Court, he first served in the Criminal Branch in Bronx County, and in 1989 was reassigned to New York County, Supreme Court, Criminal Branch. While in New York County, he was also assigned to civil cases.

Justice Fried is a member of The Commission on the Jury. His participation in legal educational programs includes the New York State-Federal Council Seminar on expert witnesses and the International Moot Court in the Hague, The Netherlands in 2001, 2005 and 2007. Since 1981 he has been an adjunct Professor of Law at Brooklyn Law School.

Photo of Bill Sushon

Bill Sushon
O’Melveny & Myers LLP

Bill Sushon is is a partner in O’Melveny & Myer’s New York office and a member of the Securities Litigation Practice. Mr. Sushon focuses on securities class actions, shareholder derivative lawsuits, hostile-takeover litigation, partnership disputes, breach of contract actions, bankruptcy litigation, and a host of other matters.

He has appeared in state and federal courts throughout the country on behalf of Fortune 100 companies, their officers and directors, alternative asset management entities, investment partnerships, and other sophisticated commercial clients.

Over the years, Mr. Sushon also has developed a significant practice advising clients on litigation avoidance strategies and disclosure issues, as well as litigation advice in complex mergers and acquisitions and other corporate transactions. He has also given pre-litigation advice to several major financial institutions in disputes concerning securities-lending programs, collateralized debt obligations, mortgage-backed securities, and similar investments.

Mr. Sushon is co-author of “The Securities Act, Underwriters and the Due Diligence Defense,” New York Law Journal, February 15, 2010, with Brad Butwin and Asher Rivner); “New York Landscape Affected by Subtle Change,” New York Law Journal, December 16, 2002, with Jonathan Rosenberg.

Mr. Sushon received his J.D. Columbia University in 1995 and his A.B., cum laude, from Dartmouth College in 1992. He is admitted to the New York bar.

Photo of Christopher G. Kelly

Christopher G. Kelly
Holland & Knight LLP

Christopher Kelly is a partner and Litigation Practice Group Leader in the New York office of Holland & Knight LLP. Mr. Kelly also serves on the firm’s Directors Committee. Mr. Kelly’s practice focuses primarily on the defense of mass torts, toxic torts, federal and state court class actions (consumer, labor and privacy), contracts and product liability.

Mr. Kelly has represented aviation clients including BAE, Air France, Varig and JetBlue Airways. He was lead trial counsel to JetBlue on its nationwide privacy class action litigations and has represented clients across the country as lead and trial counsel in class actions in state and federal courts, stemming from West Nile virus spraying, Medfly control and overtime wage claims.

He has negotiated long term multimillion dollar leases on behalf of marine terminal tenants, and has successfully prosecuted and defended actions in state and federal courts throughout the United States in matters dealing with bank fraud, shareholder disputes, distribution agreements, unfair competition, fraud, trademark and copyright infringement, interference with contracts, marketing practices, product liability, rights of secured and unsecured creditors, bankruptcies, destruction of natural resources and serious personal injury.

Prior to becoming a lawyer, Mr. Kelly was employed as Director of Development at Regis High School in New York City. Mr. Kelly served as moderator for Holland & Knight external CLE, “Data Privacy Breach.” He has spoken at Air Finance Seminars as well as spoken or moderated panels at ABA TIPS and ABA Air & Space Forum on litigation related topics, including demonstrative evidence, criminalization of negligence claims, and the rights of secured creditors. He regularly speaks at conferences overseas for European insurers and their insureds on product liability litigation in the United States.

Mr. Kelly received his J.D. from Duke University School of law and his B.A., with honors, from Haverford College. He is admitted to the bar in New York.

 

Photo of Christopher P. Malloy

Christopher P. Malloy
Skadden, Arps, Slate, Meagher & Flom LLP

Christopher Malloy is a partner in the New York office of Skaden, Arps, Slate, Meagher & Flom LLP. Mr. Malloy represents corporations and individuals in complex commercial litigation in state and federal courts, including securities class actions and shareholder derivative suits. Mr. Malloy also advises clients on a broad range of litigation and corporate governance matters and has assisted corporate boards and committees in conducting internal investigations relating to accounting, financial and other matters.

Among other matters, Mr. Malloy has represented corporations and individual corporate officers and directors in securities class action litigations involving allegations of accounting and financial fraud. He also has represented clients, both as plaintiffs and defendants, in corporate control disputes, commercial real estate litigation, including foreclosures and lender liability disputes, and disputes involving allegations of tortuous interference with business relations, breach of contract and breach of fiduciary duty.

Mr. Malloy received his J.D. from the St. John’s University School of Law in 1993, and a B.S. in Electrical Engineering from the State University of New York at Buffalo in 1987. He served as a law clerk to Hon. Roger J. Miner, U.S. Court of Appeals for the Second Circuit from 1993-1994. His is addmitted to the New York bar.

 

Photo of Lea Haber Kuck

Lea Haber Kuck
Skadden, Arps, Slate, Meagher & Flom LLP

Lea Haber Kuck is a partner in the New York office of Skaden, Arps, Slate, Meagher & Flom LLP. Ms. Kuck concentrates her practice on complex litigation involving a wide range of corporate, commercial and securities matters. She has experience in all phases of litigation, both at the trial and appellate levels, and in federal and state courts in the United States, as well as in international arbitrations conducted under UNCITRAL, ICC, ICDR and other arbitration rules.

Ms. Kuck regularly represents clients in disputes arising out of international business transactions and advises clients on a variety of issues relating to international dispute resolution, including forum selection, jurisdiction, service of process, extraterritorial discovery and enforcement of judgments.

Ms. Kuck served as a law clerk to Hon. Steven D. Pepe, U.S. Magistrate Judge for the U.S. District Court for the Eastern District of Michigan from 1990-1992. Ms. Kuck received her J.D. from New York University School of Law and her A.B., magna cum laude, from Hamilton College in 1987. She is admitted to the New York Bar.

Photo of Robert A. O'Hare Jr.

Robert A. O'Hare Jr.
O’Hare Parnagian LLP

Robert O’Hare is the litigation practice group leader for O’Hare Parnagian LLP.He concentrates on complex business, financial, and commercial matters before federal and state trial and appellate courts, and in representing clients in securities and regulatory investigations and arbitrations. On all of the firm's major litigations, Robert is either lead counsel or the firm partner having primary responsibility for the matter.

Mr. O’Hare co-founded O’Hare Parnagian LLP in 1999. Before starting O’Hare Parnagian LLP, he practiced in the litigation departments of Haight, Gardner, Poor & Havens (now Holland & Knight LLP) and Skadden, Arps, Slate, Meagher & Flom LLP. At each of these firms, he handled a variety of complex securities, corporate, business, accounting, and insurance litigations, as well as investigations and regulatory matters. Mr. O’Hare is the chair of the Litigation Committee of the New York City Bar Association.

Prior to practicing law, Robert served for eight years as a police officer and sergeant in the New York City Police Department in various enforcement and administrative assignments. Robert was also a federal law clerk to Judge Collins J. Seitz of the United States Court of Appeals for the Third Circuit.

In 1993, Mr. O’Hare earned his J.D. from St. John’s University School of Law where he served as articles and notes editor of the St. John's Law Review and was awarded the Louis R. Harolds Award. In 1988, he earned a B.A. in economics from Fordham University. Mr. O’Hare is admitted to the bars in New York, U.S. Supreme Court, U.S. Courts of Appeals for the Second and Third Districts, and the U.S. District Courts for the Southern, Eastern and Northern Districts of New York.

 

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Details

Course Code : 773150

Release Date: 8/2/2011 12:00:00 AM
Length: 2hr 23min
Recorded Date: 5/2/2011
Format Type: Video

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