Month: June 2008

NYSBA | Archive of June House Webcast Now Available


For the first time ever, the New York State Bar Association House of Delegates meeting, which was held in Cooperstown on Saturday, June 21, 2008, was broadcast live on the Association Web site. Interested members of the Association were able to access the Webcast and watch the meeting as new President Bernice K. Leber (Arent Fox LLP)was sworn in and the House debated a full schedule of items of interest including reports from the Committee on Civil Rights, the Committee on Senior Lawyers and the Committee on Professional Discipline, as well as the Commercial and Federal Litigation Section report on electronic discovery.

The archived Web cast will remain on the association site for several monthsand be available for members to view at their convenience.

View the archive at www.nysba.org/JuneHOD.

Adobe Acrobat 9.0 Released


Adobe has officially released the new 9.0 version of Acrobat, which allows you to combine different file types into one PDF Portfolio. The new version is available as afree download on a 30 day trial basis (Windows only).

Rick Borstein has posted more details on his site, Acrobat for Legal Professionals.

PDFCreator | pdfforge.org


PDFCreator is a free tool to create PDF files from nearly any Windows application.

Key Features:
Create PDFs from any program that is able to print
Security: Encrypt PDFs and protect them from being opened, printed etc.
Send generated files via eMail
Create more than just PDFs: PNG, JPG, TIFF, BMP, PCX, PS, EPS
AutoSave files to folders and filenames based on Tags like Username, Computername, Date, Time etc.
Merge multiple files into one PDF

PDFCreator is free, even for commercial use! It is Open Source and released under the Terms of the GNU General Public License.

Download PDFCreator now. Sorry, Windows only.

Clear: The Fast Pass for Airport Security


Clear is the fast pass for airport security. Clear members are pre-screened and provided with a high-tech card which allows them to access designated airport security fast lanes nationwide. Clear members pass through airport security faster, with more predictability and less hassle.

Clear’s first year price is $100 plus the TSA vetting fee of $28 for a total charge of $128.

NOTE: If you are concerned about providing images of your irises and fingerprints, then this is not the service for you.

SHIPtool


SHIPtool brings pricing and timing information from different carriers to your finger tips. It allows the shipper to see and compare different shipment pricing and delivery options from the same page and then guides them to Carrier page to process their shipments.

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Tracking included

FINDLAW: Daily Opinion Summaries for New York Court of Appeals – 6/25/08


BANKING LAW, BANKRUPTCY LAW, CIVIL PROCEDURE, DISPUTE RESOLUTION & ARBITRATION, ETHICS & PROFESSIONAL RESPONSIBILITY, INJURY AND TORT LAW, SECURITIES LAW

AG Capital Funding Partners v. State Street Bank and Trust Co., No. 114

In an action alleging breach of contract, violation of federal Trust Indenture Act, breach of fiduciary duty, and negligence based on defendant’s alleged failure to deliver debt transaction registration statements required to secure a debt, the court of appeals finds that: 1) plaintiffs’ contract and Trust Indenture Act claims were barred by a release previously executed by plaintiffs as part of a bankruptcy settlement and that no fiduciary duties existed; however; 2) because negligence claims were not barred by the release and there were issues of fact as to whether defendant owed and violated a duty of care, plaintiffs’ cause of action for negligence is reinstated.

 

CIVIL PROCEDURE, CORPORATION & ENTERPRISE LAW, JUDGMENT ENFORCEMENT

Landau, P.C. v. LaRossa, Mitchell & Ross, No. 99
A judgment dismissing a complaint without prejudice on the basis of a corporation’s lack of capacity does not have res judicata effect on a subsequent action brought by the corporation’s successor.

 

CORP. GOVERNANCE, CORPORATION & ENTERPRISE LAW, ETHICS & PROFESSIONAL RESPONSIBILITY, SECURITIES LAW

People v. Grasso, No. 120
In an action charging defendant Richard Grasso, former chairman and CEO of a public corporation, with receiving excessive compensation from NYSE, judgment for defendant is affirmed where: 1) each of the challenged causes of action sought to ascribe defendant’s liability based on the mere “size” of his compensation package; however; 2) the legislature’s specifically enacted statute requires more to overcome the hurdles of the business judgment defense.

 

CRIMINAL LAW & PROCEDURE

People v. Baret, No. 123
Guilty plea to drug related-offenses is affirmed where were no grounds to support defendant’s allegation that that his plea was involuntary as a result of being threatened by his co-defendant.

 

CRIMINAL LAW & PROCEDURE

People v. Montilla, No. 116
When the Penal Law does not define a particular term, it is presumed that the term should be given its precise and well settled legal meaning in the state’s jurisprudence, and thus borrowing the Criminal Procedure Law’s definition of a “conviction” to give meaning to the word “convicted” in Penal Law is justified.

 

ETHICS & PROFESSIONAL RESPONSIBILITY, INJURY AND TORT LAW

Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Cmty. Synagogue, No. 115
In an action for breach of fiduciary duty against a cleric-defendant premised on his alleged inducement of a consenting sexual relationship which lasted for over 3 years, the court of appeals finds no breach of fiduciary duty when: 1) plaintiff had only shown that she was deceived by the cleric, not that she was vulnerable as to surrender her will and capacity to determine her own best interest; and 2) in absence of a prima facie showing of a fiduciary obligation owed by defendant, no cause of action can be maintained for an extended voluntary sexual affair between consenting adults, even if plaintiff could prove that her acquiescence was obtained through lies, manipulation, or other morally opprobrious conduct.

 
FOOD & BEVERAGES, LABOR & EMPLOYMENT LAW

Morales v. D & A Food Serv., No. 117
Summary judgment for defendant is reversed where: 1) plaintiff made a prima facie showing of entitlement to judgment as a matter of law on a Labor Code section 240(1) claim; and 2) nothing supported defendant’s contention of lacking the sufficient nexus with plaintiff for liability under section 240(1).

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court – 6/26/08


ADMINISTRATIVE LAW, COMMERCIAL LAW, CONTRACTS, PUBLIC UTILITIES, WHOLESALE

Morgan Stanley Capital Group Inc. v. Pub. Util. Dist. No. 1 of Snohomish County, No. 06-1457
In a case involving wholesale-energy contracts and the Mobile-Sierra doctrine under which the FERC must presume that the rate set out in a freely negotiated wholesale-energy contract meets the “just and reasonable” requirement imposed by law, judgment granting petitions for review of FERC decisions upholding certain contracts is affirmed where: 1) contrary to the Ninth Circuit’s view, the FERC was required to apply the Mobile-Sierra presumption in evaluating the contracts in this case and the FERC may abrogate a valid contract only if it harms the public interest; 2) the Ninth Circuit’s “zone of reasonableness” test, used to evaluate a buyer’s rate-challenge, fails to accord an adequate level of protection to contracts; but 3) nevertheless, two flaws in the FERC’s analysis provided alternate grounds for affirmance.

 

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE

Dist. of Columbia v. Heller, No. 07-290
The District of Columbia’s prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. The Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

 

CONSTITUTIONAL LAW, ELECTIONS, GOVERNMENT LAW

Davis v. Fed. Elec. Comm’n, No. 07-320
In the context of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat, the Court rules that sections 319(a) and (b) of the Bipartisan Campaign Reform Act of 2002 (BCRA) violate the First Amendment.

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court – 06/25/08


ADMIRALTY, CIVIL PROCEDURE, CORPORATION & ENTERPRISE LAW, ENVIRONMENTAL LAW, INJURY AND TORT LAW, OIL & GAS LAW, REMEDIES

Exxon Shipping Co. v. Baker, No. 07-219
In an action brought against Exxon for economic losses resulting from the Exxon Valdez oil spill, a circuit court ruling remitting the punitive damages award to $2.5 billion is vacated and remanded for further reduction where: 1) the Court was equally divided on the question of whether a shipowner may be liable for punitive damages without acquiescence in the actions causing harm, and thus the circuit court’s opinion is undisturbed on the issue; 2) federal statutory law does not bar a punitive award on top of damages for economic loss; but 3) the award in this case should be limited to an amount equal to compensatory damages, or approximately $500 million.

 

BANKING LAW, CIVIL PROCEDURE, CIVIL RIGHTS, CONTRACTS, INDIAN LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE

Plains Commerce Bank v. Long Family Land & Cattle Co., No. 07-411
In a discrimination, breach of contract, and bad faith suit brought in Tribal Court by an Indian couple against a non-Indian bank, which sold land that it owned, and had previously leased to plaintiffs, on a tribal reservation to non-Indians, judgment and award for plaintiffs is reversed where the tribal court lacked jurisdiction to adjudicate a discrimination claim concerning the non-Indian bank’s sale of fee land it owned.

 

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE

Kennedy v. Louisiana, No. 07-343
The Eighth Amendment of the Constitution bars a state from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.

 

CRIMINAL LAW & PROCEDURE, EVIDENCE

Giles v. California, No. 07-6053
The theory of forfeiture by wrongdoing accepted by the California Supreme Court, which holds that a criminal defendant forfeits his right to confront the victim’s testimony when the defendant commits an intentional criminal act that makes the victim unavailable to testify, is not a founding-era exception to the Sixth Amendment confrontation right. 

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court – 06/23/08


CIVIL PROCEDURE, COMMERCIAL LAW, COMMUNICATIONS LAW, CONTRACTS

Sprint Communications Co., L.P. v. APCC Servs., Inc., No. 07-552
An assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor.

 

CIVIL RIGHTS, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW

Rothgery v. Gillespie County, No. 07-440
A criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. The Court rules that attachment of the right does not also require that a prosecutor (as distinct from a police officer) be aware of such initial proceeding or be involved in its conduct.

 

CRIMINAL LAW & PROCEDURE, SENTENCING

Greenlaw v. US, No. 07-330
In a criminal case in which, over the government’s objection, a district court made an error when calculating defendant’s sentence, a circuit court’s decision imposing a longer sentence on defendant after he appealed is reversed where, absent a government appeal or cross-appeal, the sentence defendant received should not have been increased.