The Firm represents 344 former senior executives of Lehman Brothers Inc. (“LBI”) in hotly contested defense of an effort by the Trustee of the LBI bankruptcy Estate to subordinate and thereby extinguish their deferred compensation pension retirement entitlements that the clients funded in the 1980s. Those claims total more than $260 million and the issues being litigated are the only litigation remaining in the 10+-year-old LBI bankruptcy.
A copy of the Firm’s opening brief before the United States Second Circuit Court of Appeals can be found here.
In April 2019, Steven C. Bennett was appointed to the Advisory Council for the American Arbitration Association/ICDR. He also serves as a member of the AAA Complex Case Advisory Committee, and as an arbitrator and mediator on the Commercial Panel for the AAA.
Also in April 2019, Mr. Bennett was appointed Co-Chair of the ADR Ethics Committee of the New York State Bar Association. He has previously served as Co-Chair of the State Bar ADR and the Courts Committee and Co-Chair of the State Bar E-Discovery Committee.
In April 2019, Steven C. Bennett will speak at the ABA annual Dispute Resolution Conference (in Minneapolis) and at two New York State Bar Association events in New York City.
Mr. Bennett will speak on April 12, 2019 at the ABA Dispute Resolution Section’s Spring Conference on the subject of Tools for Controlling Discovery in Arbitration.
He will speak on April 16, 2019 at a meeting of the International Dispute Resolution Committee of the NYSBA on the subject of Parallel Proceedings in Arbitration.
He will speak on April 23, 2019 at New York Law School on the subject of Cutting Edge Topics in Arbitration.
Dan Brooks’ amicus curiae brief filed with the U.S. Court of Appeals for the Federal Circuit in Oracle America, Inc. v. Google Inc. addressed to “fair use issues” in the case was cited by the Federal Circuit in its recent decision on the brief’s central point (the brief was filed on behalf of the New York Intellectual Property Law Association).
The brief can be found here. The Federal Circuit’s decision can be found here, with the citation to the brief appearing at p. 39, n.8.
The issue and the decision were described by the New York Intellectual Property Law Association as follows:
On March 27, 2018, the U.S. Court of Appeals for the Federal Circuit handed down its much-anticipated opinion in Oracle America, Inc. v. Google Inc., Appeal Nos. 2017-1118, 2017-1202. Oracle was appealing from a judgment of the U.S. District Court for the Northern District of California holding, after a jury trial, that Google’s unauthorized use of Oracle’s Java computer source code in the Android mobile operating system did not constitute copyright infringement because it was protected by the affirmative defense of fair use. The Federal Circuit reversed the District Court’s rulings and remanded for a trial on damages.
The New York Intellectual Property Law Association (“NYIPLA”) filed a brief amicus curiae in support of neither party, but urging the appellate court to reject the district court’s rationale for holding that a reasonable jury could have found transformative use under the first fair use factor simply because of a change in “context,” namely, the use of Oracle’s computer programming code in smartphones and tablets, rather than in desktop and laptop computers. The Federal Circuit endorsed NYIPLA’s argument, holding that moving copyrighted material to a new context without either altering its expression, meaning, or message, or using it for a different purpose, was not transformative and did not militate in favor of a finding of fair use. Specifically, citing to the NYIPLA amicus brief, the Federal Circuit held that, if a change in context alone qualified as a transformative use, such a rule would “encroach upon the copyright holder’s right to ‘prepare derivative works based upon the copyrighted work.’” Slip Op. at 39, n.8 (citing to the Brief of Amicus Curiae N.Y. Intell. Prop. L. Ass’n at 17-20).
Scarola Zubatov Schaffzin PLLC Partner Jonathan M. Landers Authors Two New Articles Addressed to Fraudulent Transfers
A New Look at Fraudulent Transfer Liability in High Risk Transactions: Historically, it has been difficult for creditors to recover transfers as constructive fraudulent transfers in connection with LBOs and leveraged recap. However, recent cases (most importantly, a 2016 circuit-splitting decision by the Seventh Circuit) may signal that the pendulum may be swinging in the other direction and, also, raise ethical and discovery issues with regard to “actual intent” fraudulent transfers. This article explores these cases and the historical and policy considerations that led to them.
You can view the article here.
Actual-Intent Fraudulent Transfers and the Crime/Fraud Exception: This article discusses actual intent fraudulent transfers and the application of the crime-fraud exception to disclosure of privileged communications to discovery in such transactions.
You can view the article here.
This article appeared in The Chicago-Kent Journal of Intellectual Property and can be accessed here.