Firm Seeks Judgment for Lehman Brothers Bankruptcy Claimants Seeking $270 Million+ in Unpaid Pensions

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 extinguish their deferred compensation pension retirement entitlements that the clients self-funded in the 1980s.   Those claims total more than $270 million.  The bankruptcy Trustee has said that the issue being litigated is the only litigation remaining in the 12+-year-old LBI bankruptcy.

A copy of the Firm’s most recent opening filing before the United States Second Circuit Court of Appeals, where the Trustee is seeking to defeat the client group’s rights to the individual’s purchased pensions, can be found here.

Discussion of the Trustee’s abandonment of its earlier arguments and abandonment of the rationale of the decision below upon reaching the Second Circuit can be found here.

Bart Eagle Speaks on ADR Issues at NYSBA with NYS Judicial Leaders

On January 20, 2021, Bart J. Eagle participated on a panel presentation at the New York State Bar Association Commercial & Federal Litigation Section’s Annual Meeting, moderated by John S. Kiernan, Esq., former President of the New York City Bar Association.   He joined a panel comprised of the Hon. Deborah A. Kaplan, Administrative Judge, Supreme Court of the State of New York, Civil Branch, Hon. Norman St. George, Administrative Judge, Supreme Court of the State of New York, Nassau County, Hon. James P. Murphy, Administrative Judge, 5th Judicial District, Lisa M. Courtney, Esq., NYS Statewide ADR Coordinator, and Yvonne R. Marin, Esq., Nassau County ADR Coordinator.  The panel was introduced by Chief Judge Janet DiFiore and addressed the topic:  “How Attorneys Can Use Court-Sponsored ADR Programs and Other Tools to Move Along Their Pandemic-Delayed Cases,” with Mr. Eagle presenting the perspective of a commercial litigator for over 30 years and a mediator for over 10 years.

Cassandra Porsch Authors Expert Analysis Article for Law360: “NY COVID-19 Commercial Lease Decisions Lack Consistency”

Cassandra Porsch has authored the article “NY COVID-19 Commercial Lease Decisions Lack Consistency,” featured in the Expert Analysis section on Law360.

The article explores three recent New York Supreme Court decisions in cases where commercial landlords sued their tenants for failure to pay rent during the COVID-19 crisis.   Despite similar facts and legal theories advanced, motion practice in the cases has resulted in differing results depending on the judge.   The article also discusses some recent Appellate Division precedent that may prove helpful to tenants wishing to appeal unfavorable results from the trial court.

The article can be viewed in its entirety here:  NY COVID-19 Commercial Lease Decisions Lack Consistency – Law360

Issues in “Fair Use” ― Four Factors Collapsing into One

Dan Brooks’ essay titled “Appropriation Art: Creating by Taking” on the current state of the fair use defense to copyright infringement actions ― especially as it relates to the appropriation of artists’ works ― has been published in “The Routledge Companion to Copyright and Creativity in the 21st Century.”

The publisher’s abstract of Dan’s article is here:

The tradition of appropriating objects or artworks created by others is widespread and reflects an important strand in art history. When the appropriated element incorporated into a new work is an artwork also protected by the copyright laws, rather than a commonplace object, the copyright owner’s rights and the appropriator’s fair use defense to copyright infringement are implicated, placing limitations on the artist’s right to create a new work by taking from another artist. The transformative use standard for fair use determines whether the use has substantially altered the original work, or merely copied it. This standard has come to dominate other fair use factors. This essay argues that the transformative use standard has become problematic when applied to appropriation art as the determination of fair use falls to the subjective views of judges, and erodes the exclusive rights of copyright owners to create derivative works. Creativity will be maximized if the legality of appropriation art focused not just on whether the original work was transformed, but more on the purpose and character of the appropriation, the nature of the copyrighted work and the amount it had been copied, thereby restoring meaning to all four fair use factors.

The book can be found here.

SZS Welcomes Cassandra Porsch to the Firm

The Firm is pleased to announce that Cassandra Porsch has joined the Firm, bringing to our practice her broad experience in commercial litigation and dispute resolution:

Photo of Cassandra PorschCassandra Porsch is a graduate of Yale University (2001, B.A. with distinction), Georgetown University Law Center (J.D., 2005), and the New York University Stern School of Business (M.B.A., 2012). Cassandra is a commercial litigator who has successfully handled matters at all stages, from pre-litigation to trial and appeals, including matters in alternative dispute resolution forums. After law school, she spent ten years in the New York City office of Andrews Kurth LLP before moving to boutique law firm practice. She has practiced in state and federal court in a wide array of commercial, class and derivative actions and multi-district litigation. Cassandra has particular expertise in handling business disputes involving breach of fiduciary duty, fraud, accountants’ liability, restrictive covenants/non-competes, professional negligence, breach of contract and disputes concerning partnerships. Her clients have included individuals, small businesses, investment funds and large corporations. She has also represented investors in securities class actions and creditors in bankruptcy proceedings. Outside of the office, Cassandra serves on the Board of Directors of several non-profit and professional organizations. Cassandra is admitted to practice law in both New York and New Jersey.

Ms. Porsch can be reached by e-mail at cp@szslaw.com.

Dan Brooks’ Files Amicus Curiae Brief in the U.S. Supreme Court in Oracle America, Inc. v. Google Inc.

On February 19, 2020, Dan Brooks filed an amicus curiae brief, available here, on behalf of 25 law professors in the fields of journalism and media with the U.S. Supreme Court.

The brief follows the grant of certiorari to the Federal Circuit Court of Appeals in Oracle America, Inc. v. Google Inc. addressed to “fair use issues” in which Dan’s earlier amicus brief was cited by the Federal Circuit in its recent decision on the brief’s central point. Oracle appealed, successfully, 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 brief in the Federal Circuit 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.

Dan Brooks’ Amicus Curiae Brief Cited by the Federal Circuit in “Fair Use” Case

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).

Jon Landers Authors Two New Articles Concerning Fraudulent Transfers

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.