June 2010 Committee Reports
Communications and Media Law
Copyright and Literary Property
Report expressing opposition to S.6790, which would prohibit the use “for advertising purposes” or “for the purposes of trade” of the “persona” – defined as the “name, portrait, voice and/or picture” – of any person who died up to 70 years before the effective date of the legislation or who dies on or after the effective date without the written permission of such person’s heirs, estate, or licensees. The report notes that the bill’s retroactive application of rights creates concern. In applying to uses created years before enactment of the legislation, the bill would make previously permissible activities suddenly subject to liability and interfere with rights created under existing contracts.
Council on Children
Letter to Governor Paterson commenting on several provisions in the Article VII budget legislation which impact children and families, including: 1) amendments to subsidized kinship guardianships, 2) modifications to court-ordered investigations, 3) permission for electronic court appearance in family court proceedings, and 4) short-term crisis centers for young victims of sexual exploitation.
Report expressing opposition to A.9523-B/S.6361-B, which would permit a parent, social worker, or person with whom a child has a “close personal relationship” to go to court and allege that the child 1) has a drug abuse problem, 2) presents a risk to himself or herself or to another person, 3) needs drug “detoxification and stabilization,” and 4) should be examined by a credentialed alcoholism and substance abuse counselor to determine whether he or she should be admitted to a detoxification facility. The bill would further allow a judge, satisfied that the youth should be examined by a counselor, to issue a warrant for the youth’s apprehension and examination. The counselor may then seek a detoxification order from the court. The bill, the report argues, is vague and fails to provide due process protections for the youth or the parents of the youth.
Report expressing support for A.8524/S.3868-A, which would amend the New York State Family Court Act and Social Services Law to permit the restoration of parental rights in certain limited circumstances after a termination of parental rights (TPR) has previously been ordered by the Family Court. The bill, the report argues, would provide a mechanism for restoration of parental rights by the Family Court after a determination that it is in the child’s best interests for parental rights to be restored. The report offers one suggested modification: that the bill apply to children over the age of 14 and their siblings who are under the age of 14. In its current form the bill only allows for restoration of parental rights when a child is over the age of 14.
Employee Benefits and Executive Compensation
Letter to the IRS commenting on Notice 2010-6, which gives taxpayers the opportunity to correct documentary failures regarding Section 409A of the Internal Revenue Code of 1986. While the letter supports the decision to give taxpayers this opportunity, it notes that there are elements to the proposed change that are unnecessarily punitive or restrictive that should be eliminated or revised.
Estate and Gift Taxation
Trusts, Estates, and Surrogate’s Courts
Report supporting with modifications A.9857-C, which would modify the Estates, Powers and Trusts Law in relation to credit shelters and similar formula provisions in wills and trusts and provisions in wills and trusts relating to the unused generation-skipping transfer (“GST”) tax exemption since the repeal of the federal estate and GST tax in 2010. The report argues that the legislation is necessary to remedy unintended and potentially severe consequences that may result from formula bequests or other dispositions under documents executed prior to the repeal, but that any remedial legislation must be tailored narrowly to the specific circumstance of a GST bequest that is a direct skip to a natural person.
Proposed amendment Section 10-6.6(b) of the Estates, Powers and Trusts Law and Restatement of the Statute as Section 10-6.6-A. The proposed amendments would make a number of notable clarifications and changes to the existing statute as well as add several important new concepts, including 1) clarifying that no trustee shall be liable for failing to use the statute, and 2) clarifying that the exercise of the power to invade principal is not prohibited by the fact that the invaded trust includes a spendthrift clause or a provision that prohibits amendment or revocation of the trust.
Proposals for the 2010 Duke Conference Regarding the Federal Rules of Civil Procedure. The report sets forth a number of recommendations to amend the Federal Rules of Civil Procedure and improve the federal civil litigation system in the following areas: pleadings and dispositive motions, discovery, electronic discovery, judicial management of process, and settlements. The recommendations are based on a six-month study and endeavor to balance changes designed to improve the exchange of information for resolving disputes in a more cost-effective manner with the realities associated with practicing in an adversarial system.
Proposed Revision to the UNCITRAL Arbitration Rules. The report approves of the proposed revisions to the Rules subject to some suggested changes to individual provisions.
Legal Issues Pertaining to Animals
Report expressing support for A.6077-A/S.5144, which would expand the existing definition of aggravated cruelty to animals so that the killing of any animals in New York with the intent to cause extreme physical pain, or through means that are especially depraved or sadistic, would be prosecuted as a felony.
Report expressing opposition to A.9449-D/S.6412-D, which would require public shelters or pounds, authorized humane societies, and societies for the prevention of cruelty to animals to release animals to any non-profit (as defined in section 501(c)(3) of the internal revenue code), animal rescue, or adoption organization that requests possession of them. The bill, the report argues, requires release of animals to any 501(c)(3) animal rescue or adoption organization that requests them without requiring the non-profits to demonstrate they can provide even minimal responsible, humane care and treatment or to establish they are “responsible” or “reputable" organizations.
Reports and testimony on New York City Council Intro. 35 and Intro. 86, both of which concern the laws regarding horse drawn carriages in New York City. The reports oppose Intro. 35, which seeks to improve some conditions under which New York City carriage horses live and work but fails to address the most critical concerns relating to the carriage horse industry. The reports express support for Intro. 86, which would amend the New York City Administrative Code to gradually reduce the number of licenses issued for horse drawn carriages so that all licenses will be eliminated or expired by May 31, 2012, and urges that an outright ban of carriage horses is necessary due to the dangerous and harsh conditions inherent in operating carriages on New York City streets.
Report expressing support for H.B.1411/S.B.843, which would amend the Pennsylvania Consolidated Statutes to prohibit the use of live animals, including wild birds, for targets at trap shoots and block shoots. This bill, the report argues, is of concern to New York because many of the wild birds used for the Pennsylvania trap shoots are illegally captured in New York and transported across state lines.
Alternative Dispute Resolution
Report expressing support for A.8697, which would allow attorneys to attach a charging lien to awards and settlement proceeds that clients receive through alternative dispute resolutions and settlement negotiations. This, the report argues, would encourage both out-of-court settlements and ADR by providing attorneys with the same fee protections that are available to attorneys in court-filed cases.
Taxation of Business Entities
Report Offering Proposed Guidance on the Federal Income Tax Treatment of Post-Closing Contingent Consideration in Reorganizations. There is great uncertainty about how to treat for income tax purposes contingent arrangements when the acquisition is intended to take the form of a reorganization pursuant to Section 368(a). The report therefore proposes certain guidance in this area.