This Week at the City Bar
Coming April 15: The Judge George Bundy Smith Lecture
by Neal K. Katyal

Around the Bar
Recent Committee Activity
City Bar in the News

This Week at the City Bar
8:30 AM – 6:15 PM,
Eighth Annual Conference on International Arbitration and Mediation – Day One

6 PM – 8 PM,
Ethics & Professionalism: Best Practices for Attorneys

8:30 AM – 1 PM,
Eighth Annual Conference on International Arbitration and Mediation – Day Two

9 AM – 1 PM,
Hedge Funds in the Current Environment

6 PM – 8 PM,
Friday Evening Chamber Music

Upcoming Highlight
April 15th: The Judge George Bundy Smith Lecture by Neal K. Katyal

The New York City Bar Association proudly presents the Judge George Bundy Smith Lecture focused on legal issues relating to race and ethnicity. Co-sponsored by the Metropolitan Black Bar Association, this lecture series is named in honor of the former Associate Judge of the New York Court of Appeals and long-standing advocate of civil rights and racial justice. A reception will follow.

Professor Katyal will survey the Executive Branch’s conduct in times of war, focusing on the U.S. Justice Department's activity during World War II. Many have criticized the U.S. Supreme Court decisions in Korematsu and Hirabayashi. What is less known is the role of the Solicitor General in leading the Court to adopt these decisions. Building on a statement he made about the historical record while serving as Acting Solicitor General, Professor Katyal will use the searing experiences in that litigation to reflect upon the role of government lawyers, and lawyers in general, in pursuit of the truth and justice. He will relate the role of the Justice Department in World War II to the very different role played by the Justice Department in the aftermath of the September 11, 2001 attacks.

For more information and to register click here.

Around the Bar
George J. Mitchell Delivers Leslie H. Arps Lecture

On April 2nd, former U.S. Senate Majority Leader George J. Mitchell delivered the Leslie H. Arps Lecture on “The Rule of Law.”

Recent Committee Activity
Settlement of Cases in Federal Court

Rule 68 of the Federal Rules of Civil Procedure was designed to encourage settlement of civil cases in federal court, yet it provides little incentive to do so. In an effort to promote discussion within the bar of how best to promote the settlement of civil cases in the federal courts, the Committee on Federal Courts issued a report which provides an overview of Rule 68, reviews the issues related to the settlement of cases in federal court, and analyzes how best to encourage settlement, including the pros and cons of amending the Rule to include a fee-shifting provision.

In addition, the Committee on Federal Courts wrote to the Administrative Office of the U.S. Courts recommending that Rule 68 be amended to permit plaintiffs as well as defendants to make offers of judgment under the Rule. The Committee expressed its concern that Rule 68 has not succeeded in its ostensible purpose of encouraging early case settlement, at least in commercial cases, and is rarely used in that category of cases. In addition to making the Rule reciprocal, the Committee recommended further study of possible methods to enhance the costs recoverable by plaintiffs who successfully invoke Rule 68 by, for example, imposing a multiplier on recoverable costs or some other mechanism, to make a symmetrical rule more fair to plaintiffs and defendants, and to motivate plaintiffs to use the Rule.

Non-Party Deposition Subpoenas

In a letter to the Administrative Office of the U.S. Courts, the Committee on Federal Courts proposed that the Federal Rules of Civil Procedure be amended to provide non-parties who are served with a Rule 30(b)(6) deposition subpoena greater protections against undue burdens. Specifically, the amendments call for the adoption of a minimum notice period for such non-party depositions, as well as an automatic stay of such depositions upon the filing of a motion for a protective order. Such an amendment, the letter notes, would address the problem that non-party recipients of deposition subpoenas cannot postpone or limit the scope of such a deposition without moving for and obtaining a protective order before the date of the scheduled deposition, which can be required by subpoena on very short notice.

Changing Gender Designation on a Birth Certificate

The Committee on Lesbian, Gay, Bisexual and Transgender Rights issued a report on the need to modernize New York State policy regarding the proof required to change gender designation on a New York State birth certificate. Current Department of Health policy provides that transgender individuals may only alter the gender designation on their New York State birth certificate if they can provide four separate and distinct substantiating documents from both medical and psychological professionals to show that they have “completed” specific surgical procedures. This requirement, the report notes, runs counter to contemporary professional standards of care, which acknowledge gender transition as a highly individualized and personal process, and surgical intervention as an inappropriate benchmark for legal or social recognition of one’s gender identity. A modernized policy for transgender people seeking to amend their birth certificate’s gender designation, the report argues, should require only one document from a treating or evaluating healthcare provider that demonstrates clinically appropriate treatment has been provided based on the person’s individualized and particular medical needs.

Consolidated Animal Crimes Bill

The Committee on Animal Law expressed support for A.775/S.1776 (the Consolidated Animal Crimes Bill), which would relocate many of the criminal provisions currently found in the Agriculture and Markets Law to a new Title Q in the Penal Law. The bill also re-defines statutory terms, creates new statutory terms, re-titles animal crimes offenses, reclassifies existing animal crimes, delineates sentencing provisions, and introduces various new animal crimes offenses and creates a hierarchy of offenses for charging, plea-bargaining, and sentencing purposes. The Committee believes such a change would clarify, modernize, and restructure the animal crimes law of New York State and promote greater enforcement and consistent interpretation of animal crimes.

Humane Education

In a joint report the Committees on Animal Law, Children and the Law, and Education and the Law expressed support for A.2484, which would require the Commissioner of Education to notify every school district of the existing requirement that elementary schools provide instruction in the humane treatment of animals, their importance in the environment, and the importance of spaying and neutering programs. The amendment also authorizes the Commissioner to appropriate grants to teachers for training, workshops, videos, and other resources used for humane education instruction and that all applicants for a teaching certificate or license complete two hours of course work or training in humane education instruction.

Sprinklers in Pet Stores

The Committee on Animal Law supports with recommendations A.972, which would require the installation and testing of fire equipment and sprinkler systems for animal housing maintained by pet dealers. As drafted, the proposed legislation would only apply to pet dealer facilities housing dogs and cats and would not cover pet stores that sell only birds, rabbits, and/or reptiles. The report therefore recommends that the proposed legislation be expanded to cover all companion animals housed by pet stores.

Animal Licensing Exemption

A.1123/S.1700 would provide that commercial dog breeders are only exempt from New York State licensing, vaccination, and control regulations where the breeder sells dogs exclusively to USDA registered research facilities and has obtained a certificate of exemption. The Committee on Animal Law expressed support for this legislation as it would close a loophole that currently allows certain commercial dog breeders to escape the licensing, vaccination, and other dog control requirements simply because the breeder is registered as a Class A dealer with the USDA.

Theft of a Companion Animal or Pet

The Committee on Animal Law expressed support for A.1643/S.2336-A, which would amend the Penal Law to provide for first and second degree felony offenses for the theft of a companion animal or pet. The proposed legislation would create a second degree felony offense where a person steals a companion animal or pet and a first degree felony offense where a person commits pet theft in the second degree and either 1) the stolen pet or companion animal is sold for scientific research purposes or 2) the person who stole the pet or companion animal with no justifiable purpose…intentionally kills or intentionally causes serious physical injury to such companion animal or pet with aggravated cruelty.

Unweaned Birds

In a letter to the Legislature, the Committee on Animal Law provided comments on A.738/S.1922, which would prohibit the sale of unweaned baby birds by pet dealers. The Committee supports the intent of the law, to protect unweaned baby birds and to protect consumers who may not know how to properly care for these birds, but expressed concern that as drafted the bill would not apply to many bird sellers. Under the proposed law only bird sellers who also sell dogs or cats would be subject to the law. The Committee recommends amendments which would keep the bill substantively the same but ensure that it applies to bird sellers generally. The Committee also suggested two other legislative approaches: establishing a fuller regulatory system for the sale of unweaned birds, and banning their sale altogether.

City Bar in the News
New York Law Journal, April 2, 2013

City Bar Chooses New Executive Director
“The New York City Bar has chosen Bret Parker, an in-house counsel at Elizabeth Arden, as its new executive director to oversee the 24,000-member group. Parker, 45, will succeed Barbara Berger Opotowsky, who announced last year she will step down on May 21 after 15 years in the post. Parker begins his new job on April 29 to allow for transition. Parker is vice president and associate general counsel at cosmetic and fragrance company Elizabeth Arden, where he has handled intellectual property, corporate and regulatory matters, among other work.”

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