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 L E G A L   B R I E F
October 2013
Newsletter Archive
Litigation #1
Litigation #2
Negotiating Update
Wills, Trusts & Estates Update
Firm News
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Campolo, Middleton & McCormick, LLP, is a full-service business law firm that represents clients in a wide variety of legal matters including litigation and appeals; corporate and technology; real estate development and zoning; wills, trusts and estates; labor and employment; personal injury matters including the defense of general liability, construction, premises liability and transportation cases.
4175 Veterans Highway Suite 400
Ronkonkoma, NY 11779
p 631-738-9100
f  631-738-0659

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The information contained in this newsletter is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The Firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship. No recipients of information from this newsletter, clients or otherwise, should act or refrain from acting on the basis of any information included in this newsletter without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this newsletter contains general information and may not reflect current legal developments. The Firm disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this newsletter.

 Litigation #1

NY Labor Law Reform Died in Legislation but Proponents Continue the Fight

by Nicole U. Marmanillo, Esq.


We previously reported that a bill, carried by Senator Gallivan (R) and Assemblyman Morelle (D) that sought to reform the New York Labor Law 240(1), was to be proposed over the 2013 legislative session this past Marmanillo summer. New York Labor Law 240(1) provides in part that "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." The law imposes absolute liability on general contractors and property owners when construction workers sustain injuries as a result of gravity-related accidents; it is 130 years old and New York is the only state in the country that has not yet repealed or amended it.

The Gallivan/Morelle reform bill sought not to abolish the law in its entirety but to allow juries hearing these types of personal injury suits to consider the workers' actions with regard to personal negligence. In other words, rather than imposing absolute liability on general contractors and property owners, without allowing them an opportunity to defend themselves, juries would be allowed to consider if the worker was partially or entirely responsible for his/her own accident.


To read more click here >>


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Litigation #2

The Common-Interest Doctrine and Its Effect on Attorney-Client Privileged Communications
by Jeffrey Basso, Esq.

It is widely understood that communications between an attorney and his/her client are protected from disclosure under the attorney-client privilege. It should be equally understood that the attorney-client privilege is lost Basso or waived if a third party is present for those communications. However, there is an exception to the latter rule: the common-interest doctrine.

The common-interest doctrine holds that a third party may be privy to an attorney-client privileged communication, and the privilege will stay intact, if the communication is made for the purpose of furthering a nearly identical legal interest shared by the client and the third party. Hyatt v. State Franchise Tax Bd., 105 A.D.3d 186, 205 (2d Dep't 2013). Courts have interpreted the "furthering a nearly identical legal interest" portion of the doctrine to require that the communication be made in pending litigation or in reasonable anticipation of litigation where the client and third party have a common legal interest. Id., Aetna Cas. And Sur. Co. c. Certain Underwriters at Lloyd's London, 176 Misc.2d 605 (N.Y. Sup. 1998), aff'd, 263 A.D.3d 367 (1st Dep't 1999).

In a recent decision dated October 16, 2013 from the New York County Supreme Court, the Court refused to expand the reach of the common interest doctrine to communications between two parties involved in a merger and one of the parties' counsel. In Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2013 NY Slip Op 51673(U), the Court reviewed the determination of a Special Referee following a discovery dispute who decided not to extend attorney-client privilege protection over communications related to a merger between Countrywide Home Loans, Inc. ("Countrywide"), its counsel, and co-defendant Bank of America Corp. ("BOA").

To read more click here >>


Negotiating Update

5 Hard-nosed Negotiation Tips from Steve Jobs 
by Joseph N. Campolo, Esq.

A judge ruled last month that Apple violated antitrust laws in conspiring with some of the largest book publishers to fix e-book prices. While Apple continues to fight the allegations, there is a lot to be learned from the released Campolo3 e-mail exchange between Steve Jobs and James Murdoch. The e-mails had an important role in the lawsuit, but they also provide an savvy high-stakes negotiation between the leaders of two powerful firms.

Eric Sherman writer for Inc.com, reviews the series of e-mails and the negotiation principles used to create the best conditions for winning.

"A series of emails about ebook prices between Apple and HarperCollins, including ones written by Steve Jobs, were recently released as part of the Department of Justice price-fixing suit against Apple and a number of major publishers. As the site Quartz pointed out, these offer some great insight into how Jobs negotiated.

However, Zachary Seward at Quartz called it an example of "hard-nosed" negotiation at which Jobs excelled. I'd take a different view. This is not hard-nosed. The emails show how an excellent negotiator used a series of principles to create the best conditions for winning. Let's look in greater detail at the exchange between Steve Jobs and James Murdoch, son of Rupert Murdoch and the ultimate decision maker, and see how Jobs ultimately got his way."

To read the full article, click here >>


 SCOTUS Update 

Supreme Court Sharpens Focus on Arbitration
and Class Actions
by Lauren Kanter, Esq.
This blog previously explored the Supreme Court's June 2013 decision in American Express Co. v. Italian Colors Restaurant, in which the Court validated the credit card company's contract with merchants mandating arbitration Kanter and eliminating the possibility of a class action (a result Justice Elena Kagan memorably described as "Too darn bad").

Shortly before deciding the apparently contentious Italian Colors case, however, the Supreme Court unanimously decided Oxford Health Plans LLC v. Sutter. The facts leading up to this case began over a decade ago, when physician Ivan Sutter and Oxford Health Plans entered into an agreement whereby Oxford would pay Dr. Sutter for the medical services he provided to Oxford members. The agreement contained an arbitration clause prohibiting litigation of disputes in court, instead mandating arbitration.

Several years into the agreement, Dr. Sutter filed a class action on behalf of himself and other physicians in Oxford's network, claiming that Oxford had failed to promptly and fully pay the doctors for their services. Oxford moved to compel arbitration, which request was granted by the New Jersey Superior Court. The parties then agreed that the arbitrator should decide whether their agreement authorized class arbitration.

During the course of the arbitration proceedings, the Supreme Court decided Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662 (2010), holding that the Federal Arbitration Act ("FAA") prohibits class arbitration absent contractual evidence that the parties had agreed to allow it. Meanwhile, in Sutter, the arbitrator found that the contract between Oxford and Sutter did allow for class arbitration.

To read more click here >>

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Wills, Trusts & Estates Update

Should You Talk to Your Heirs?
by Martin Glass, Esq.

Last month I discussed how to avoid a Will contest. I noted that one way to at least minimize that risk is to talk to your heirs about your estate plan. It sounds simple, but the subject of inheritance is one that most people Glass arduously avoid for a number of different reasons: superstition, fear, lack of knowledge, or a misguided desire for secrecy.

Many adults, such as my parents, were raised to believe that money was a private affair, and that talking about it was inappropriate. But beyond that, many people simply fear that if they talk about their estate plan with their heirs, they will meet with resistance, disagreement or, in a worst-case scenario, their heirs will try to counter the estate plan with legal action of their own. If that scenario exists, then a revocable trust should probably be part of your plan. But that's a topic for another time.

While in some families and circumstances these fears are justified, in most circumstances being silent about your estate plan can have more disastrous consequences. If nothing else, a refusal to talk about money or your estate plans with your children means that they will have a difficult time following your wishes in regards to your medical treatment or protection of your assets should disaster strike. Most adult children are actually eager to fulfill their parents' last wishes, regardless of how it may or may not impact their own inheritance, especially if they understand why their parents are doing what they're doing.

To read more click here >>


Firm News

     CM&M Kicks off Executive Breakfast Series   

We cordially invite you to join us for our kickoff Executive breakfast Series on November 6, 2013 from 8 am to 10 am. The 2013 Tax Update presentation will be led by Eliatt Di Lieto & Timothy McHale, partners at Cerini & Associates, and will review new developments in the tax community and keep you one step ahead this tax season. For a complete schedule of upcoming events laid out through the Spring of 2014, click here >>


                          WE'VE MOVED! 

          CM&M Relocates to New Office Space 

Campolo, Middleton & McCormick has relocated and tripled the size of its office space. The expansion will assist in the firm's strategic growth plans while improving daily operations to provide outstanding service that their clients have grown to expect.  Now located on the fourth floor of 4175 Veterans Memorial Highway in Ronkonkoma, at the entrance to MacArthur Airport, the new space offers state of the art technology, more offices, a more efficient layout and larger event space. 
To learn more click here >>   


   Two CM&M Partners named 2013 SuperLawyers
MiddletonCampolo, Middleton & McCormick is pleased to announce that 2 of their attorneys have been selected for inclusion in the 2013 New York Super Lawyers -- Metro Edition. Partner Scott Middleton, Esq. and partner, Patrick McCormick, Esq. have been selected among the 5 percent of the lawyers in the state selected using a rigorous, multiphase process that includes independent research, peer nominations and peer evaluations.

       CM&M Welcomes Ellen Bissett DeRiggi to Firm
Campolo, Middleton & McCormick is pleased to announce that the law office of Ellen Bissett DeRiggi, P.C., a general practice focused upon business law and commercial transactions, is merging with CM&M.  Ellen Bissett DeRiggi shall be Of Counsel to the firm, where she will be a member of the Corporate, Real Estate, Trusts and Estates and Labor and Employment practice groups.   
To learn more click here >>     

     CM&M Sponsored HIA-LI Mark Lesko Breakfast
CM&M was a proud sponsor of the HIA-LI's Young Entrepreneur's Committee's networking breakfast on Wed, Oct 23, 2013 featuring Mark Lesko, Executive Director of Accelerate Long Island. The event discussed the many different programs that Accelerate Long Island has available for startup companies and young entrepreneurs.  
To learn more click here >>

           Imagine Awards Deadline Extended
CM&M is a proud sponsor of the 2nd Annual Imagine Awards event created to formally recognize the most effective and innovation nonprofit organizations on Long Island.
To learn more about application eligibility, or sponsorship opportunities, click here>>


Campolo, Middleton & McCormick, LLP
4175 Veterans Highway, Suite 400
Ronkonkoma, NY 11779
p 631-738-9100 | f 631-738-0659
contact@cmmllp.com | www.cmmllp.com