Commercial and Federal Litigation Section Mission Statement:

The Purpose of the Section is to improve the quality of representation of clients, provide a forum for the improvement of law and procedure in the areas of commercial and federal litigation, and enhance the administration of justice.

The Section serves its mission by:

• Developing relationships and sharing practice experiences with fellow commercial and federal litigators, with state and federal judges, and with regulatory and administrative bodies;
• Establishing committees for the purpose of promoting research and discussion on current issues affecting our practice;
• Influencing and proposing legislation affecting our practice;
• Developing continuing legal education programs on topics relevant to our practice; and
• Providing networking opportunities for its members.

Current Section News:

Spring Meeting 2013:
The Section held its 2013 spring meeting at the Gideon Putnam Resort in Saratoga Springs from May 3 through May 5, 2013.  At the Saturday gala dinner attended by 160 people Second Circuit Judge Reena Raggi presented to Eastern District Chief Judge Carol Amon the Section’s Robert L. Haig Award honoring a member of the legal profession who has rendered distinguished public service.  The CLE programs included one on third-party litigation funding moderated by Albany Law School Professor Patrick Connors, a topic which the Section has also addressed in a recent report.  See the link to the Section’s report here. 

Among other things, the panelists drew a distinction between funding of commercial cases for a share of the outcome and funding of consumer cases in which the consumer is personally lent money secured by a portion of any recovery.  A second panel on the Southern District of New York pilot program for complex cases was headlined by Southern District Judges Shira Scheindlin and Victor Marrero.  They described the pilot program, some metrics for complex cases resolved in the Southern District in 2010 and 2011, and prospective changes in the Federal Rules of Civil Procedure, including a narrowing of the scope of discovery, a reduction in presumptive discovery limitations, and new provisions for sanctions for preservation failures.  Sunday’s CLE programs focused on whistleblowing in relation to commercial fraud under the federal False Claims Act, the New York False Claims Act (the strongest in the nation) and the SEC Whistleblower Program established in 2010.  Two surprising statistics emerged.  In 80% of the cases under the federal False Claims Act, the federal government declined to intervene or take over the case after investigation.  In 82% of the cases involving the SEC whistleblower statute, the relator complains internally first.  The meeting was kicked off by a riveting lecture regarding the recovery of stolen art and other cultural property from the recipients of such works from tomb raiders in Turkey to Hitler’s henchmen. 

A fuller report on the meeting will appear in the next issue of the Section’s newsletter.  Look for it!

The Ethics Committee recently put out a report on Ethical Implications of Third-Party Litigation Funding. To see a copy of the report please click here 

The Federal and Commercial Litigation Section held a very successful half day CLE session at the NYSBA Annual Meeting, which was held in New York City on January 23, 2013.  The first panel, “The Chief Judge's Taskforce Report on Commercial Litigation in the 21st Century: From Ideas to Implementation," was moderated by former New York Court of Appeals Chief Judge Judith S. Kaye.  The panel debated the challenges in executing reforms to the New York State Court Commercial Division in light of budgetary constraints.   The second panel,  “Financial Crisis Litigation in the Commercial Division and Federal Courts," examined the effects of the explosion of litigation in New York's state and federal courts following the financial collapse of 2008.   The panelists discussed how New York courts have been inundated by lawsuits between large financial entities fighting over extremely complex investment instruments, and how these cases have created new law with uncertain consequences.   The panels were followed by a luncheon where the Hon. Jed S. Rakoff of the U.S. District Court for the Southern District of New York was presented with the Stanley H. Fuld Award for Outstanding Contributions to Commercial Law and Litigation.    Press Coverage of the Section’s Annual Meeting can be found at: www.nysba.org/ComFedAMNYLJ  and www.nysba.org/ComFedAMLaw360 .

Best Practices in E-Discovery in New York State and Federal Court Version 2.0
The Commercial & Federal Litigation Section and its Committee on Electronic Discovery have issued an updated report to set out the "Best Practices" for the entire e-discovery process in New York State and Federal Court.  One of the most unique aspects of this report, which will be updated yearly, is that it highlights key differences that exist between e-discovery in the state and federal fora.    

Proposed Jury Instructions 
The Committee on Pattern Jury Charges, led by Civil Court Judge Andrea Masley, joined by Commercial Division Justice Shirely Kornreich, former Section Chair Lauren J. Wachtler and Committee Co-Chair on Appellate Practice Melissa A. Crane, has taken a leading role in drafting pattern jury instructions for commercial cases. This Special Committee produced draft instructions on piercing the corporate veil and breach of fiduciary duty that the Section approved and presented to the Official Pattern Jury Instructions Committee of the Association of Supreme Court Justices of the State of New York.

Proposal for Enhanced Expert Disclosure
The Commercial & Federal Litigation Section's Proposal for Enhanced Expert Disclosure in the New York State Commercial Division has been approved by the New York State Bar Association.  Click to view/download (pdf) the Proposal.

Individual Practices of Judges and Magistrate Judges in the Southern District of New York, prepared by the Section's Committee on Federal Judiciary.  Click to view/download (pdf) the Report.