Francis Facciolo, Assistant Director of the Securities Arbitration Clinic and Professor of Legal Writing, published an article, Exculpatory Clauses, in the February 2014 issue of The Investment Lawyer. The article was co-authored with Professor Facciolo’s former student and St. John’s law school alum, Leland Solon ’10, who is currently an associate at the Law Firm of Gary N. Weintraub, LLP.
Here’s an excerpt of the article:
This article describes how the SEC’s posi- tion on hedge clauses has evolved in light of the IAA’s anti-fraud provisions, culminating in the 2007 no-action letter of Heitman Capital Management, LLC,4 which granted new and unexpected leeway to advisers. In Heitman Capital, the SEC stated that it would no longer provide no-action guidance on hedge clauses; therefore, the only avenue for further develop- ment of the law in this area is in the courts or SEC enforcement actions. Although hedge clauses have been raised by plaintiffs in a number of cases, there has only been one case with a published opinion that addresses the effect hedge clauses have on a contract between an investment adviser and its advisee.
The New York State Bar Association Journal has re-published Professor Vincent Di Lorenzo’s article, “Individual Liability of Board Members After Fletcher v. The Dakota” in its February 2014 issue. The Fletcher decision changed the legal standard under which corporate directors would be held individually liable for tortious conduct including violations of the civil rights laws. In 2006 the appellate court in Pelton v. 77 Park Avenue Condominium had ruled that directors could be held individually liable based on allegations of discrimination or other similar wrongdoing only if plaintiffs could plead with specificity “independent tortious acts by each individual defendant.” In the Fletcher decision, the appellate court concluded the Pelton decision had misinterpreted the governing case law. It rejected the independent tortious act requirement and ruled that the “participation of an individual director in a corporation’s tort is sufficient to give rise to individual liability.”
This article first explores if the Fletcher court was correctly interpreting earlier decisions in the New York courts. Second, the article explores the possible meaning of the “participation” requirement embraced in Fletcher, and asks the Court of Appeals to clarify this requirement. The article concludes that earlier decisions in the federal courts can be read as requiring active participation or personal involvement by the individual corporate director in the discriminatory action or conduct before imposing personal liability. Ultimately, however, the differing viewpoints in the Pelton and Fletcher decisions reflect a difference as to which public policy deserves primacy under the New York civil rights laws and laws governing homeowner communities. Professor Di Lorenzo’s article had previously appeared in the N.Y. Real Property Law Journal.
On Wednesday, February 19, Professor Jeremy Sheff presented his draft article, Dilution at the Patent and Trademark Office, at the Michigan IP Colloquium at the University of Michigan.
On January 30th, Professor John Q. Barrett was appointed to the Board of Trustees of the Historical Society of the New York Courts. The Society, founded in 2002, preserves, protects, and promotes the legal history of New York State, including its courts and the rule of law, through educational outreach, public programs and publications. Other members of the Society’s Board include esteemed law school alumni Hon. Carmen Beauchamp Ciparick ’67, ’03 HON (Chair), Roy L. Reardon ’54, ‘00HON, Hon. Randall T. Eng ‘72, and Mary Kay Vyskocil ‘83.
This Thursday, February 13, 2014, Professor Leonard M. Baynes, Director of The Ronald H. Brown Center for Civil Rights and Economic Development, will present on the struggles of Ronald H. Brown’70 in his rise to success as the first African-American to serve as U.S. Secretary of Commerce. The event, in honor of Black History Month, will take place at Albany Law School and will be moderated by the law school’s dean and president, Penelope Andrews.
On Thursday, February 13, 2014, Jennifer Baum, Assistant Professor of Clinical Legal Education and Director of the Child Advocacy Clinic, will join a panel of judges and trial lawyers to train lawyers for pro bono cases in the Southern District of New York. This CLE program, entitled, Trial Advocacy Training for Pro Bono Lawyers, is organized by the United States District Court for the Southern District of New York and the FBC Public Service Committee. The full day, free training ”is designed for both new (transitional) and experienced lawyers who are interested in developing their trial skills in order to accept pro bono cases.”
The Hoover Institution (Stanford) published Professor Mark Movsesian’s recent interview of Samuel Tadros, a research fellow at the Hudson Institute’s Center for Religious Freedom and a Professorial Lecturer at the Paul H. Nitze School of Advanced Inter-national Studies (SAIS) at Johns Hopkins University and author of Motherland Lost: The Egyptian and Coptic Quest for Modernity (Hoover Institution Press, 2013). In the piece, For the Copts, Disaster and Diaspora, Movsesian, who is the Frederick A. Whitney Professor of Contract Law and the Director of the Center for Law and Religion, questions Tadros about the history and culture of Egypt’s Coptic Christians and the impact of the Arab Spring on this religious group. Here’s an excerpt:
Movsesian: You argue that the Arab Spring has been a disaster for Copts. Why? And why has the Coptic Church taken such a public position in support of the military’s ouster of the Muslim Brotherhood?
Tadros: The Arab Spring emboldened Islamist movements on the national and local levels. The removal of the state’s constraints allowedIslamists to dominate national politics and, more important, to enforce their vision on society on a local level, with Copts paying the heaviest price. The collapse of the state’s repressive arm, the police, gave the mobfree rein. As a result, we have seen the continuation of previous patterns of discrimination as well as the emergence of newer ones.The Coptic Church’s choice to support the military coup was of course tobe expected. President Morsi was hardly inclusive in his rule. He clearly indi-cated that he cared less what befell Copts. Their concerns in the constitution were ignored, he never made any reassuring gesture towards them, and under his rule, the Coptic cathedral in Cairo, the very center of Christianity, was attacked for hours by thugs and the police. Copts recognized that under the Muslim Brotherhood they would become second-class citizens.
Rosemary Salomone, Kenneth Wang Professor of Law, was a featured speaker on Saturday, February 8th at the “National Conference on Girls’ Education 2014″ in Philadelphia. In her presentation, “Why the ACLU Is Right and Wrong on Single-Sex Schooling and Why It Matters,” she sorted through the key arguments made in the ACLU’s current “Teach Kids, Not Stereotypes” campaign, underscoring the legal and policy implications both domestically and globally and offering research evidence to refute claims that same-sex programs are intrinsically harmful to students.
Tomorrow, Friday, February, 7, 2014, Professor and Associate Dean for Faculty Scholarship Janai S. Nelson will speak at the Thirteenth Annual Richard E. Nelson Symposium at the University of Florida Levin College of Law. The symposium will focus on the “rights and wrongs” of Florida elections. Professor Nelson will present on voter ID laws, felon disenfranchisement, and voter roll purges. Attorneys Nicholas M. Gieseler and Steven Geoffrey Gieseler of Gieseler & Gieseler, P.A. will serve as respondents.
The Nelson Symposium, named to honor Richard E. Nelson, who served with distinction as Sarasota County attorney for 30 years, and his wife, Jane Nelson, is presented by the law school, and co-sponsored by The Florida Bar City, County and Local Government Law section, and Environmental and Land Use Law section.