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cone-jpg-1387257-m.jpgThere really is no way any more to avoid technology, and all of the good and the bad that goes along with it. Recent news articles point out how technology is the one place where business, science, and the law intersect; why every business owner should stay up to date on the developments within it; and why, no matter how careful you are, you can never stop being vigilant.

Technology and computing were not always everywhere. As an article in the May 17-May 18, 2014 Weekend Edition of the Wall Street Journal points out, fifty years ago, computers were the domain of a select minority of scientists, mathematicians, and engineers; only they could use, or understand, the complicated instructions necessary to run them. Then two Dartmouth College professors, John Kemeny and Tom Kurtz, along with some enthusiastic students, created a different sort of way to control and operate computers. They believed, according to the article, that the best way to get the biggest benefit from the technology was to open it up to as many people as possible. They created the computer language BASIC, or Beginner’s All-purpose Symbolic Instruction Code. They designed it to be accessible to the everyman. They allowed, and encouraged, wider access to computers, even for those off-campus through remote access phone lines. They helped democratize computing and foresaw that it would impact most businesses and private lives in the not distant future, though they couldn’t be sure of all of the good and the bad that would come from it.

Fast-forward to today: Businesses rely on computing for much of their day to day operations. As we’ve previously written, they use, possess, and maintain large amounts of their customers’ personal and financial information. Use a credit card or debit card, and think of all the important information you are turning over, all of which thieves like to steal: credit card numbers, dates of birth, addresses, and social security numbers. The legal importance of all this information being passed around is easy to see: If it gets stolen people will be hurt financially and they’ll look for someone to cover their losses. We’ve also previously written about how the Federal Trade Commission is seeking to force businesses to take reasonable precautions to safeguard their customers’ private information. Businesses evidently realize there is a problem and many now are trying to do something about it.
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dumbbells-1356802-m.jpgThere’s a new term that’s making the rounds, which might make us reconsider whether common wisdom is always wise and might make trial lawyers re-think how they select jurors: pre-crastination. As we’ll see, it means that maybe trial attorneys shouldn’t decide whether someone can be a good juror in spite of his old age and frailty, but because of them.

Everyone’s heard of procrastination: Why do something today when it can wait until tomorrow? Most people procrastinate even though they know it’s not a good idea. There might be nothing more productive than the last minute but, when you’re counting down to a deadline, you always could use more time. The right thing to do, we all know, is to get it done now, right away, with time to spare. The only problem is that might lead us to make bad choices and irrational decisions.

We previously wrote about how older jurors might be a better fit for some cases. They generally have a wealth of knowledge and experience to draw from. It might take them a little longer to come to an answer, but that’s because of the large amount of information they have to process, not necessarily because they are becoming feeble minded. Maybe, if you can convince them, they can sway the other members of the jury for you. That, however, may not be the only reason to select an elderly juror.
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Posted in: Trials
Tagged: Juries
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puzzles-1439091-2-m.jpgAs we just talked about in our last article, in order for an insurance company to deny a first-party property claim in New York because of arson, and make that denial stand up in court, it has to prove that the insured intentionally caused the fire, and it has to do so by clear and convincing evidence. That is not always an easy burden of proof to meet. There reportedly is an exciting new tool being developed that might make proving arson, i.e., that a fire was intentionally set, easier and help arson investigators become even more effective in determining who caused the fire.

Researchers from the University of Alberta and the Royal Canadian Mounted Police, working in tandem, have developed a new computer program that can pinpoint the presence of gasoline in debris taken from a fire scene. What makes this so important is that gasoline, according to the researchers, is the most common accelerant found in arson fires; evidently preferred by arsonists everywhere. By making it easier to detect, and confirm, the presence of gasoline, you stand a good chance of making arson easier to prove and less profitable to attempt.

What makes the new tool so helpful, is that it often is difficult to confirm the presence of an accelerant in debris taken from a fire scene. No two houses, buildings, or fire scenes, are exactly alike; they contain different mixes of materials. Different materials leave behind different chemical compounds when burned, and these can mask the presence of an accelerant such as gasoline. The researchers, in effect, developed a computer filter that can by-pass the background noise to pinpoint the tell-tale signs of gasoline. They developed their tool by examining data from 232 samples taken from fires across Canada; by using real-life debris rather than merely relying on simulations, the researchers say their tool is dependably accurate.

Currently, determining whether there are traces of an accelerant left behind at a fire scene is time-consuming work. According to the researchers, the Royal Canadian Mounted Police have two separate forensic scientists examine each sample to see if their findings agree; this can take several hours for each sample, and there normally are three to four samples per fire. The newly developed computer program shrinks this time substantially. The first scientist still will have to analyze the debris herself, but will be able to confirm her findings in seconds, rather than hours, by using the computer program. A second forensic scientist will not have to analyze the debris unless the computer program’s findings disagree with those of the first scientist.
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candle-light-burning-1437374-m.jpgIt takes a lot to deny a first-party property claim in New York because of arson. It is not much easier to make that denial hold up in court. As we’ve previously mentioned, when an insured seeks to recover for fire damage under his own policy of insurance, i.e., when he makes a first-party property claim, the burden of proof is on the insurer to establish the affirmative defense of arson, and it has to do so by clear and convincing evidence. Perhaps the best way to understand what that abstract legal rule means, though, is to see how it is applied to actual, real-life claims. There is a case, from not that long ago, Maier v. Allstate Ins. Co., 41 A.D.3d 1098, 838 N.Y.S.2d 715 (3rd Dept. 2007), that does a good job of showing just what type of evidence you need in order to establish an arson defense in a civil case.

The Plaintiff in Maier v Allstate, supra, owned a home in the Town of Sand Lake in Rensselaer County, in upstate New York. For a long time he lived half of the year in Sand Lake and the other half of the year he rented a home in Florida. The same day he was going to move to Florida permanently, a fire completely destroyed his Sand Lake house. The Insured tried to recover for the property damage under his homeowner’s policy of insurance with Allstate; he submitted a sworn statement in proof of loss, making claim to recover a total of $240,000.00 for damage to the house, personal property, and debris removal. The insurance carrier paid off the $92,000.00 remaining on his mortgage, pursuant to the standard mortgagee clause in the policy, but denied the Insured’s claim. When the Insured sued to recover under his policy, the insurance carrier asserted arson as an affirmative defense. After a bench trial, the carrier won and the complaint was dismissed. Not liking the verdict, the Insured appealed. The Appellate Division, Third Department, upheld the verdict. In other words, the carrier met its burden of establishing, by clear and convincing evidence, that the Insured intentionally caused the fire. The evidence the insurance company used, and the trial and appellate court relied on, shows how arson sometimes can be established through even conflicting, circumstantial evidence.

Arson means that the fire was intentionally set. One thing you normally look for to establish arson is the presence of an accelerant, which is a combustible material used to help start, or spread, the fire; think of a flammable liquid such as gasoline. If you find evidence that an accelerant was used, chances are the fire did not start accidentally. Here, there was conflicting evidence about whether or not an accelerant was used:

  • The County’s fire investigator used a specially trained dog to determine that traces of accelerant were found near the entrance to a bedroom that had a burnt-out mattress. The Insured argued the dog’s actions did not clearly confirm the presence of an accelerant; the court disagreed.
  • The insurance company’s origin and cause investigator, based on his own inspection, determined that the fire began in the same location, on the burnt-out mattress. Presumably he determined this from the burn patterns on the mattress.
  • The lab analysis of the mattress, however, found no traces of an accelerant.

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the-ardennes-1284651-m.jpgIt is not unusual for a Plaintiff to sue more than one defendant. It happens all of the time in New York.

Think of when a homeowner hires a contractor and the contractor damages a neighbor’s property. The neighbor will most often sue both. In New York City it is not uncommon to have a lawsuit that involves two adjacent buildings. The first one is demolished but, because the shoring used to protect the remaining building is inadequate, the land under the second building shifts a little and the second building cracks. The owner of the second building wants to get paid to repair his damaged property. He sues the owner of the first building, the contractors that performed the work, and possibly even his own insurance carrier if he doesn’t like the way the carrier adjusts his first-party property claim.

What happens, though, when the plaintiff settles with only one defendant and goes to trial against the rest? How does a court decide how much the plaintiff can collect from the remaining defendants?

The rules in New York are fairly straightforward. New York General Obligations Law §15-108 permits a plaintiff to settle a claim with a defendant tortfeasor without risking the discharge of other tortfeasors who might be liable for the injury. When one tortfeasor settles with the injured party, the settlement relieves the settling tortfeasor of liability to any other person for contribution. It entitles the non-settling tortfeasor to assert the settlement as a defense to the injured party’s claim and to obtain an appropriate reduction in damages. In order to keep the rule clear, think of the “tortfeasor” as the party who allegedly did something wrong. In our examples it could be the contractor, the homeowner, or the owner of the first building.

New York General Obligations Law §15-108, provides in relevant part:
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butterfly-1427284-m.jpgMost people by now have heard of the Heartbleed bug. It’s the programming flaw in one of the most common encryption methods on the internet: OpenSSL. It makes what should be secure websites, and the personal information they contain, vulnerable to hackers. It is more important, though, than just another internet threat. Every business should consider whether it can be liable for depending on the vulnerable encryption software in the first place. This is especially important in light of the Federal Trade Commission’s efforts to ensure that businesses take reasonable precautions to protect their customers’ digital data.

The same day the Heartbleed bug was announced, April 7, 2014, Federal District Court Judge Esther Salas, upheld the Federal Trade Commission’s right to police corporate cybersecurity practices. As we previously mentioned, the court denied Wyndham Worldwide Corp.’s motion to dismiss a suit the FTC brought against it which arose out of three separate alleged hacking incidents that occurred over a two year period.

According to a story by Matt Egan published on April 8, 2014 in Fox Business.com, the FTC sued Wyndham Worldwide Corp. and three subsidiaries, alleging that Wyndham, unreasonably and unnecessarily, exposed consumers’ personal data to unauthorized access and theft that resulted in hundreds of thousands of customers having their payment card account information exported to a domain registered in Russia and a fraud loss of more than $10 million. The suit reportedly alleged that, among other things, Wyndham:

  • Failed to use readily available security measures like firewalls;
  • Allowed software to be configured inappropriately;
  • Failed to ensure hotels implemented adequate information security policies;
  • Failed to remedy known security vulnerabilities.

[Emphasis supplied]

What makes the ruling especially relevant to the Heartbleed bug is the way that the encryption software the bug affects is developed and maintained.
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illustration-card-1441198-m.jpgJust in case anyone thinks that cybersecurity is nothing more than an esoteric exercise for computer geeks and technicians, of no importance to the average person or business, the Heartbleed bug has come along to show us all how wrong that is. It was only just discovered two weeks ago and its impact was felt around the world almost immediately.

According to an article in the April 9, 2014 Daily Mail, the Heartbleed bug bypasses the normal safety features of websites. It can affect many of those sites that you might have noticed, which begin with an “https://” in front of their internet address, and which often appear with the symbol of a lock, both of which are supposed to mean they are safe. The bug, though, makes them vulnerable. It reportedly could affect more than 500,000 websites
The bug reportedly allows hackers to bypass normal encryption safety measures to get at encrypted information, including the most profitable types such as credit card numbers, user names, and passwords. The unauthorized user can even obtain the digital keys to impersonate other servers or users and eavesdrop on communications.

It’s not considered malicious software or malware because it is more of programing flaw; but that really is not important. What is important is that the flaw, and the vulnerability, went undetected for more than two years until it recently was discovered, independently, by researchers at Google and the Finnish company Codenomicon. A fix is possible, and reportedly fairly easily applied. The problem seems to be that the fix has to be manually applied by the people who run each individual site. That, unfortunately, will take time.
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classified-1432995-m.jpgThere are a few recent developments in the field of cybersecurity that businesses, individuals, and fraud investigators alike should take note of. One is a recent case which, if followed, could expand a business’ liability for security breaches and the others are new tools businesses possibly could use to protect against that same liability.

Digital information, including how to protect it and prevent fraud, is always a fascinating topic. New advances in digital security go hand in hand with ingenuous ways to steal digital information. It is fun to follow, in the same way it is fun to watch Wile E. Coyote chase the Roadrunner: the chase never really ends, they always come back for more, and they use bigger and better gadgets every time.

Cybersecurity, though, is more than just a fun-read. It has real-world implications. According to a report published in the Wall Street Journal, Federal District Court Judge Esther Salas, on Monday, April 7, 2014, upheld the Federal Trade Commission’s right to police corporate cybersecurity practices to ensure businesses take reasonable precautions to safeguard their customers’ data. The FTC reportedly sued Wyndham Worldwide Corp. and three subsidiaries, in 2012, after hackers broke into the company’s corporate computer system and the systems at several individual hotels, between 2008 and early 2010, and allegedly stole credit and debit card information from hundreds of thousands of customers. The FTC alleged that Wyndham did not take reasonable measures to protect its customers’ information from theft. It cited what it alleged were wrongly configured software, weak passwords and insecure computer servers. Wyndham argued that the FTC did not have the statutory authority to police corporate cybersecurity. The FTC argued that its authority came from its 100 year old statutory power to protect consumers from businesses that engage in unfair or deceptive trade practices. There was no finding of liability, but the court reportedly upheld the FTC’s right to bring the suit. The lawsuit reportedly seeks to have the court order Wyndham to improve its security measures and fix whatever harm its customers suffered.

With the possibility of federal enforcement of what amounts to a “reasonable-precautions” cybersecurity standard, businesses, not just fraud investigators, should pay attention to the potential tools at their disposal to protect their clients’ information.

The technological advances in keeping things secret are ingenuous. Much like the mythical jackalope, or my favorite, the basselope, they use things that do not seem to have anything to do with each other, to come up with something better: A more effective lock and key to turn away prying eyes from private information they should not see.
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cd-box-1428586-m.jpg How to vacate a default judgement in New York is something every potential litigant should know. It is a topic filled with cautionary tales of second chances, heartache and redemption, as we have talked about in the past. It also demonstrates the importance of thinking outside the box when you try to solve an otherwise intractable problem.

Normally, when a Defendant comes to you for help vacating a default, he is in a state of panic; the only question is how much. Bad things can happen if the default stands; a defendant might have to pay a judgement on a claim that it could have been able to defeat on the merits. There are ways to ameliorate the damage; but the best course is to avoid a default if possible.

Sometimes, the best way to fix a problem is to view it with an open mind and approach it without any preconceived notions. Sometimes the best way to change the end result is to go back to the beginning. Vacating a default judgement is no different. Sometimes the best way to vacate a default judgement is to determine when exactly the Defendant’s deadline to answer was, and determine how much he missed it by, if he really missed it at all.

When someone, whether a business or a person, is sued, when does it have to answer the complaint or take some other sort of action to make sure it can defend itself, in court, on the merits? In New York, the answer is, as most answers seem to be, dependent on the circumstances: the method of service or how the Defendant receives the summons and complaint; the court in which it is sued; where the Defendant is when it receives the service of process; and how many copies of the summons and complaint it ultimately receives. Maybe the most surprising of all is that in New York, a Defendant’s deadline to answer can depend upon what the Plaintiff does after it serves the summons and complaint on the Defendant.
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abstract-circles-and-lines-shape-1187591-m.jpgDisputes involving adverse possession of property, or boundary line disputes, in New York always are contentious. As we have previously written, most people take umbrage when someone tries to take their property; property that they paid for, pay taxes on, and have a deed that says belongs to them. Similarly, most people who claim title to land through adverse possession truly believe it belongs to them and only bring claim to it when they find out someone else actually holds legal title to it.

Adverse Possession law in New York has been so contentious that major changes were enacted to it in 2008. Those changes generally make it harder for someone to obtain title to the land through adverse possession. They reflect the belief that obtaining title to land through adverse possession generally is not favored; in many ways it is not fair or equitable. The problem is that the change in the law complicated the issue. Does the new law apply to claims brought after the law was changed, just because they were brought, i.e., an action was commenced in court, after the law was changed? As with all good legal questions, there is a very definitive, straightforward answer, which just happens to be good for business: It depends.

What law applies depends on when the adverse possessor claims he gained title to the disputed property. For anyone who alleges that their claim to title vested prior to 2008, when the Real Property Actions and Proceedings Law §§ 501, 522, and 543, were amended, the law as it existed prior to 2008 applies to their claim. See Shilkoff v. Longhitano, 94 A.D.3d 974, 943 N.Y.S.2d 144, 145 (2nd Dept. 2012); Asher v. Borenstein, 76 A.D.3d 984, 986, 908 N.Y.S.2d 90, 92 (2nd Dept. 2010).

The Second Department stated the applicable rule, and the reasoning behind it, in Hogan v. Kelly, 86 A.D.3d 590, 591-92, 927 N.Y.S.2d 157, 158-59 (2nd Dept. 2011):
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