• New Supervisory Standard by SEC Increases Risk for Corporate Counsel

    On September 8, 2010, a decision by a U.S. Securities and Exchange Commission administrative law judge in In the Matter of Theodore W.Urban, 2010 WL 3500928 (SEC Release No. 43-31655, Sept 8, 2010) cleared Urban, former General Counsel and Executive Vice President of Ferris, Baker Watts, Inc., of all charges of failing to reasonably supervise broker Stephen Glantz. While the good news for Urban is that his supervision was found to be reasonable, the bad news for in-house legal and compliance personnel is that Urban was found to be a supervisor at all. The administrative law judge (ALJ) deemed that ...

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    Saturday, June 11th, 2011

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  • New Higher Standard for Accredited Investors in Private Offerings

    Amendment to Accredited Investor Standard The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) approved by Congress last year significantly narrowed the definition of “accredited investor,” a standard for investors to participate in certain private offerings of securities. Prior to the enactment of the Act, an individual accredited investor could include the value of his/her primary residence in $1,000,000 net worth requirement for accredited investors. After passage, the value of one’s primary residence is no longer included in the calculation of net worth. Accordingly, many individuals who relied on the value in their homes to meet the ...

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    Saturday, June 11th, 2011

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  • Inadvertent Creation of Month-to-Month Tenancy

    In its recent decision in Islands Heritage Realty Corp. v. Joseph, LT-002642-10, NYLJ 1202492662252, at *1 (Dist., NA, Decided April 28, 2011), Judge Scott Fairgrieve, in deciding a motion brought on by order to show cause to vacate a judgment of possession and warrant of eviction, determined that a month-to-month tenancy had been created by the parties’ conduct after they executed a settlement stipulation, even though the tenant agreed to vacate the demised premises no later than September 30, 2010. Shortly before the day tenant agreed to vacate, Landlord’s agent signed an agreement dated September 9, 2010 that provided: This 9 September ...

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    Friday, June 10th, 2011

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  • New ADA Employment Regulations Finalized Effective May 24, 2011

    The Equal Employment Opportunity Commission “EEOC” issued its final revised Americans with Disabilities Act “ADA” regulations and accompanying interpretive guidance, the ADA Amendments Act “ADAAA”, which will become effective on May 24, 2011. The expanded regulations were designed to simplify the determination as to when employees qualify as disabled. The Amendments Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways, therefore ...

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    Monday, April 11th, 2011

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  • Employers: Beware of the Cat’s Paw

    On March 1, 2011, the US Supreme Court issued an important decision affirming the viability of the “cat’s paw” theory of liability against employers in employment discrimination cases. Under the cat’s paw theory, an employer may be liable for discrimination against an employee when a supervisor is motivated by bias against the specific employee; performs an act that is intended to cause an adverse employment action (i.e. demotion, termination, write-up, etc.); and ultimately and that supervisor’s bias act is the proximate cause for the adverse employment action against that employee. In Staub v. Proctor Hospital, Vincent Staub sued Proctor Hospital under ...

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    Monday, April 11th, 2011

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  • Failure to Timely Obtain Yellowstone Injunction Results in Lease Termination

    Yellowstone injunctions — an injunction to stay the available cure period provided in a commercial lease and in the landlord’s notice to cure while the merits of the alleged default are litigated — have been commonplace since the Court of Appeals’ decision in First Nat. Stores v. Yellowstone Shopping Center, 21N.Y.2d 630, 290 N.Y.S.2d 721 (1968). Two recent Appellate Division cases from the First and Second Departments remind us of the consequences of failing to promptly seek and obtain a Yellowstone injunction. In Goldcrest Realty Company v. 61 Bronx River Owners, Inc., 2011 WL 1206171 (2d Dep’t 2011) the plaintiff sponsor of ...

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    Sunday, April 10th, 2011

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  • Intro to the Wonderful World of Wills, Trusts & Estates

    In case you didn’t know, this is my first foray into the world of blogging. That being the case, I thought that I’d spend this month just explaining some of the more general concepts of Elder Law and Estate Planning; a general introduction to begin. Although they are pretty basic (at least to me), I’ve found that there are a large percentage of people that don’t know anything about these primary ideas. The first concept is “What are Elder Law, Estate Planning, and Trusts and Estates?” Unlike tax law or criminal law or motor vehicle law, there is no one body ...

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    Friday, April 01st, 2011

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  • Security Deposits – A Cautionary Tale

    Landlords routinely collect a security deposit from tenants at the commencement of a lease term with the deposit generally to be used to ensure the tenant’s compliance with its lease obligations. These obligations typically include the payment of rent or additional rent and payment for any damage to the leased premises caused by the tenant. While most experienced landlords understand and comply with GOL §7-103 as it relates to security deposits, some do not. As demonstrated by the following case, the failure to comply with GOL §7-103 can have harsh results. Pritzker v. Park South Lofts LLC, 117192/09, NYLJ 1202475879547, at ...

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    Tuesday, March 15th, 2011

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  • New York Wage Theft Prevention Act

    The Wage Theft Prevention Act (“Act”) was recently signed into law and becomes effective April 11, 2011. The Act significantly modifies employer requirements regarding wage notices, wage statements and payroll records, and posting requirements. Additionally, the Act includes more stringent anti-retaliation provisions and criminal and civil penalties against noncooperating employers. Below, we highlight some of the new changes and expectations. First, there are considerable changes to wage notice requirements to new and current employees. Prior to this act the law required that employers provide every new hire a written notice that included information such as regular wage rate, the overtime rate, ...

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    Friday, March 11th, 2011

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  • New Rules for Contractors Classifying Workers as Employees v. Independent Contractors

    New York government recently enacted the New York State Construction Industry Fair Play Act (“New Act”). The intent behind this new law is to address misclassification of construction workers as independent contractors instead of employees. This law created a new standard for determining whether a construction worker is an employee or independent contractor. Additionally, it provides new penalties for employers who fail to properly classify their employees. The law is likely to have an ongoing impact on the construction industry and the costs associated with a construction work force. Under this law, which became effective on October 26, 2010, a construction ...

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    Friday, February 11th, 2011

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Fred Eisenbud