I recently wrote about structured legal fees for lawyers through the New York State Bar Association.1 For nearly 30 years, plaintiff lawyers have been structuring contingent legal fees based on the seminal tax cases of Childs v. Commissioner, 103 T.C. 634 (1994), aff’d without opinion, 89 F.3rd 856 (11th Cir. 1996). Payments over time can flatten the peaks … Continued

It is hard to believe that it has been a year since I took over the reins as the chair of the Commercial and Federal Litigation Section. It has been a privilege to serve as section chair during the first full year when the section returned to in-person programming after the COVID-19 pandemic. Our ComFed … Continued

As we stand on the precipice of another economic downturn, a new Commercial Division case arising from the great financial crisis of 2007-2008 is a timely reminder of the limitations on the recovery of lost profit damages. The Commercial Division, Kings County, recently precluded plaintiffs from seeking to recover lost profit damages, finding that such … Continued

It is fascinating how the roads we travel in life can lead us to intriguing intersections. Four of the varied professional paths I have navigated during my career inspired this article: (1) as a commercial litigator and commentator, studying and acquiring a wealth of knowledge regarding the law of fraud; (2) as an advocate and … Continued

Introduction Article III of the U.S. Constitution limits federal courts’ jurisdiction to “Cases” and “Controversies.”1 This limitation ensures that the federal judicial power extends only to resolving actual disputes, and not hypothetical disagreements, between parties. Accordingly, to satisfy Article III, the U.S. Supreme Court has long held that the plaintiff, as the party invoking federal jurisdiction, … Continued

In a shareholder derivative action, the plaintiff is usually required to name the corporation as a “nominal defendant” in order to obtain jurisdiction over it, even though the lawsuit ostensibly seeks relief on behalf of that very corporation. Can the same law firm represent both the company and management, in a derivative suit alleging breach … Continued

Under the so-called “American Rule,” litigants must pay their own lawyer fees, even if they win, unless a contract, statute, or court rule provides otherwise. But in business divorce and other private company disputes against or between closely held business co-owners, there are a variety of ways for individual defendants to cause the business entity … Continued