We are all guilty of the same poor buying habits when walking into a supermarket resulting in some not-so nutritious purchases.  Researchers know these bad habits. And of course, so do the supermarkets who are selling us their products.  For instance, although most of us know what we want to buy even before we enter those sliding doors we often walk out with other purchases-some of which we probably don’t need at home.  Here’s why: unless you are laser like in knowing what you want to purchase it is very easy to get distracted with all the other items at… Read more

Did an “absentee bid form” signed by a successful auction sale bidder satisfy the statute of frauds? Answer: Yes. In William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 2013 NY Slip Op 08373 (decided December 17, 2013), the Court of Appeals noted that: The underlying dispute arises from Jenack’s claim for damages resulting from Rabizadeh’s failure to pay for an item offered at a Jenack public auction. The central issue in contention between the parties is whether the sale of the auction item to Rabizadeh is memorialized in a writing that satisfies the Statute of Frauds.

Over the last several months, the New York Court of Appeals addressed a panoply of insurance-related issues relating, inter alia, to an insurers’ duty to defend; the statute of limitations for a claim under a fire insurance policy; and the special relationship between an insured and its broker. The Court also addressed diverse questions relating to medical monitoring and the enforceability of an auction sales agreement.

Was the City of New York authorized to amend the hotel occupancy tax to cover revenue from fees charged by “online” booking services?  Answer:  Yes.  In Expedia, Inc. v. City of New York Dept. of Fin., 2013 NY Slip Op 07759, the Court of Appeals addressed the constitutionality of a New York City law that imposed a hotel room occupancy tax on online travel companies.

Much research in my industry has focused on the question of what factors actually impede the wealth transfer process. While we have written extensively about the confiscatory nature of the estate tax system, the tax code alone is not the only culprit. Ask any trusts and estates attorney about what it means when we say there is a failure of wealth transfer, and our stories are plentiful: Children losing their incentive to be productive working adults due to having more wealth than they need; family planning that incites generational litigation; poor architectures for investment management of the family’s capital; and… Read more

J.P. Morgan Securities Inc. v. Vigilant Insurance Company, 21 NY3d 324 (2013), involved an “insurance dispute arising from the insured’s monetary settlement of a Securities and Exchange Commission (SEC) proceeding and related private litigation predicated on the insured’s violations of Federal securities laws.” The Supreme Court denied the carrier’s motion to dismiss. The Appellate Division reversed and dismissed the complaint. And the Court of Appeals granted leave to appeal, reversed and reinstated the complaint of the insured.

One only need look at any of the old wills online, such as George Washington’s or Benjamin Franklin’s, to realize how the issues involved in estate and trust planning have evolved over the years. We see this evolution today especially in the areas of trustee responsibility and delegation. The landscape of family succession planning is constantly shifting to accommodate planning structures which allow families to maintain an element of control, while also allowing other professionals to step in with their particular areas of expertise. This is the essence of what is known as open architecture trust design or “OATD.” The primary driver of OATD is the advent of the directed trustee concept which allows for the bifurcation of… Read more

Court Strikes Down NLRB Rule Mandating Union Posters In early May, a federal court of appeals struck down a controversial National Labor Relations Board (NLRB) rule that would have required employers to post information informing their employees of their rights to unionize. The court noted that the National Labor Relations Act ensures an employer’s right to free speech as long as the employer does not use threats. The court reasoned that this gave employers the right to remain silent. Therefore, the court ruled that mandating the posters would be the equivalent of mandating speech and violated the employer’s right to… Read more

In Overstock.com, Inc. v. New York State Dept. of Taxation & Fin., the Court of Appeals considered a 2008 amendment to Tax Law § 101(b)(8)(vi) (the “Internet Tax”) that defined a vendor as an out-of-state person selling tangible personal property or services to residents of the state, either directly or through independent contractors or representatives.

Franchisees Bound by Arbitration Clauses The U.S. Court of Appeals in Boston found that a group of janitorial business owners, who became franchisees as transferees of franchise agreements, had adequate notice of the arbitration provisions contained in those agreements prior to their transfer.  Thus, the court ruled that the franchisees were required to arbitrate their myriad claims against the franchisor. The transfer agreements executed by the franchisees incorporated the arbitration clauses by reference, and each of the franchisees had guaranteed the performance of “all responsibilities, duties, indebtedness and obligations of the [previous [f]ranchisee] under the [Franchise] Agreement.”  While the franchisees… Read more