Author: sewellnylaw


Law Journal Publication: Landlords and Loft space


The LAW FIRM of DAYREL SEWELL, PLLC is pleased to announce that Mr. Dayrel S. Sewell, Esq. and Mr. Lance Willoughby penned an article entitled, “Landlords and Loft space” that is now published in the Richmond County Bar Association’s Spring 2017 Journal.

The Richmond County Bar Association (“RCBA”) was founded in 1909 to provide access to legal services for the Richmond County community. RCBA is dedicated to advancing members’ professional development and promoting the highest standards of excellence in the practice of law. RCBA journal first published in the spring of 1984.  The journal is published quarterly featuring legal articles, book reviews, product reviews or other items of interest to RCBA.

Law Journal Publication: Landlords and Loft space

“Landlords and Loft Space” discusses the complexities of the “NYC Loft Law.” The article provides the legislative history and intent for the creation of NYC Loft Law. Also, the article discusses the negatives and positives for landlords and tenants under the NYC Loft Law. The NYC Loft Law is unique and ought to be understood by those who possess and/or plan to possess loft interest.

A willing, abiding landlord can legalize a building into residential loft spaces by taking the steps to receive a Certificate of Occupancy. See Legalization Process, http://www.nyc.gov/html/loft/html/legalization/legalization.shtml (last on visited Feb. 11, 2017). The landlord must file an alteration application with the Department of Buildings (“DOB”), obtain an approved alteration permit from the DOB, and then perform the described work in the permit as approved by DOB inspectors. Prior to the building improvements, landlords must go through a Narrative Statement Process (“NSP”). NSP is a planning process that involves the landlord, tenant, and Loft board so that any objections to the landlord’s legalization process can be heard. Tenants’ objections usually relate to unreasonably interference of the tenant’s enjoyment of the loft space during the landlord’s improvements. Alternately, Landlords can file an alternate plan during an NSP. Once the NPS is approved, the landlord can proceed with the improvement process. The loft board regulates the landlord’s deadlines as required by the alteration permit. Landlords can apply for deadline extensions if good faith efforts are proven and they reasonably could not comply with the law for reasons beyond its control. Failure to meet deadlines and apply for an extension will result in high fines against the landlord from the Loft Board.

This publication represents the continuation of our firm’s commitment to providing value to the greater NYC community and service excellence to our clients.



Winner – Litigation Lawyer of the Year


The LAW FIRM of DAYREL SEWELL, PLLC is pleased to announce that Dayrel S. Sewell, Esq. has been selected as the outright winner and recipient in the category of – Litigation – Lawyer of the Year – USA by Finance Monthly.  Finance Monthly selection criteria is dynamic, relying on matters such as legal expertise and innovation; peer recognition and personal achievement; and involvement in significant legal cases and legal activity.

The Finance Monthly Law Awards 2017 recognizes the achievements of law firms, lawyers, barristers and those connected to the legal world who have a proven track record in delivering results for their clients over the past twelve months.  The awards are divided into individual and form categories.  Each category has been selected to represent the diversity of skills and knowledge that the profession has to offer clients across the globe. The voting and nomination is inclusive consisting of a three-month process.  Voting procedures are sent to Finance Monthly’s readership database – over 195,880 contacts.  All readers evaluate the nominees based on all the Law Awards criteria. This accomplishment for Dayrel S. Sewell, Esq., by Finance Monthly – Law Awards, exemplifies innovation in client care; strategic thinking and planning; and superior qualifications.

The Finance Monthly is a trusted source for business and corporate professionals, specifically legal practitioners, either in-house counsel or private practice.



Demonstrative evidence: friend or foe?


          A jury’s job throughout a trial is to comprehend, understand and process all of the information conveyed by both the attorneys and witnesses.  Plainly hearing this information without any form of aids (e.g., picture, graphs, physical objects, etc.) can lead to forgetfulness when it comes time for deliberations.  That is why it has been common practice in the trial world to use evidence to help these juries pair aids with facts throughout a trial.  Lawyers are afforded the ability to use demonstrative and substantive evidence throughout the presentation of their case: both to simplify information and make it more memorable.  Demonstrative evidence is used to give the jury a chance to experience the issues and facts of a case in the eyes of the presenting party.  The main purpose of demonstrative evidence is to make the jury believe that your theory of the case is the one that should prevail.

 

What is Demonstrative Evidence?

 

          There are three general categories of evidence recognized in trial practice: real, testimonial and demonstrative.  For the purposes of this article, demonstrative and real evidence are the focus.  Real evidence is considered evidence that was actually involved in the case at trial.  For example, the gun that was used to commit an alleged murder, or the defective part of a product being questioned in a liability case would be considered substantive evidence.  Demonstrative evidence on the other hand, is used purely to enhance oral testimony.  Unlike real evidence, this type of evidence has no independent probative value because it had no part in the actual events of the case.  Demonstrative evidence is solely used to help the jury understand one’s theory of the case at hand.  Distinctive from substantive evidence, this type of evidence can be anything you can touch, see or hear as long as it was created for the purposes of litigation.  For example, the gun that was used to commit an alleged murder, mentioned above is substantive evidence, but a computer generated image of that gun or an exact replica of that gun, used for the purpose of making the jury better understand is demonstrative.  The most important distinction between real and demonstrative evidence is that real evidence can be taken into the jury room during their deliberations, while demonstrative evidence most certainly cannot.  The only relevance demonstrative evidence has to a case is to help explain the facts, and to help give a witness’s testimony greater probative value.  This kind of evidence does not have any independent relevance outside of that.

 

 

Demonstrative evidence, jury trial

 

How is Demonstrative Evidence Admissible?

 

          If demonstrative evidence has no independent probative value, and no objective relevance to the case, then we must wonder what rationale the courts could have for this evidence to be admissible.  That answer is simple, it makes the trial easier and more entertaining for the jury to follow. It makes listening to the potentially boring and confusing testimony of multiple witnesses less boring and less confusing, thus ultimately more believable. As McCormick put it:

 

“Since ‘seeing is believing’, and demonstrative evidence appeals directly to the senses of the trier of fact, it is today universally felt that this kind of evidence possess an immediacy and reality which endow it with particularly persuasive effect.” [1] McCormick On Evidence §212 (E. Cleary 2d ed. 1981).

 

          Demonstrative evidence is not automatically admissible however.  The same rules of evidence that are followed to bring in substantive evidence must also be followed to bring in demonstrative evidence.  The trial judge does however have immense amounts of discretion when it comes to admissibility.  These requirements involve a showing of relevancy to the facts at issue and the laying of a proper foundation once the evidence is deemed relevant.  To do this an attorney must show that the demonstrative evidence will be used for the purpose of either educating, simplifying or informing the jury.  Both the relevancy and foundational requirements are usually met through the testimony of the witness the demonstrative evidence is meant to enhance.  Because demonstrative evidence is supposed to explain a witness’s testimony, their testimony alone would bring out the relevancy.  The witness can then be asked questions throughout the course of their testimony that will authenticate and therefor lay the foundation for the evidence.  The main difference between the admission of demonstrative evidence in comparison to substantive evidence is that substantive evidence is required to be introduced and admitted into evidence before it can be referred to at trial.  Demonstrative evidence can be displayed and referred to without being formally admitted.  Although that is not suggested because then the evidence is not part of the record, and cannot be referred to on appeal.

 

          While the requirements for admissibility of demonstrative evidence are not hard to meet the trial judge must still use a balancing test to determine whether the evidence can be used at trial.  Just as with any other kind of evidence the judge must weigh the probative effect the evidence can have on explain the case against the prejudicial effect that this evidence could potentially have on the defendant.  A popular example of this would be pictures of a crime scene or dead body after a murder.  If the pictures are just being used to enhance the jury’s understanding of the case a judge will most likely say they are too prejudicial.  However, if these pictures add something to the case, such as clarifying a dispute of the angle a person was shot, a judge would most likely conclude that the probative value outweighed the prejudicial one.  

 

Is Demonstrative Evidence more helpful or harmful?

 

          In most cases demonstrative evidence is one of the most helpful tools in the litigation book.  Why wouldn’t it be, when demonstrative evidences main purpose is to help enhance the understanding of all of the evidence being thrown at the jurors.  Scientifically speaking it has been shown that using visual aids combined with oral testimony can increase retention and understanding by almost 65 percent,[2] and in the mind of a juror the use of demonstrative evidence allows for some excitement and dramatic effect in what they might otherwise consider a relatively boring day.  One of the greatest reminders of how influential demonstrative evidence can be stems from the infamous O.J. Simpson murder trial.  Some people say O.J. Simpson wasn’t convicted because of his race, and other say that a jury was never going to convict a man of his stature, but what lawyers saw was the effective use of demonstrative evidence.  Clearly, we are talking about the image of O.J. Simpson standing in front of that jury and trying on a glove that was supposed to be the same size and brand as the glove he was wearing when he killed his ex-wife.  The glove did not fit and therefore diminished the prosecution’s theory and enhanced the defense’s theory, in a highly dramatic way that the jury would remember when it began deliberations.  So, can demonstrative evidence be a helpful courtroom tool? Of course; it can have a huge effect on enhancing the credibility of a witness or a jury’s perception of the theory of the case in general, but as always there is a down side to the use of demonstrative evidence as well.

 

O.J. Simpson, jury trial, evidence

 

          When making the decision to bring in demonstrative evidence a lawyer must be very careful that the potential benefits outweigh the potential harms.  As stated above the potential benefits could be immense, but so could the potential harms.  For example, since the judge has an extremely broad discretion in deciding what demonstrative evidence is too prejudicial and what is admissible, the use of demonstrative evidence thus opens up the door to use as an issue on appeal.  

 

          An appeal relating to demonstrative evidence can be brought for a variety of reason.  For instance, the demonstrative evidence could have been too prejudicial and therefore should not have been deemed admissible.  Or the demonstrative evidence could have been used incorrectly and therefore produced an erroneous verdict.  This can lead to retrials and reversals, which not only lengthens the trial process, but also adds to the courts already overflowing dockets.  The 7th Circuit Court of Appeals recently reversed the jury verdict in the case of Baugh v. Cuprum for this very reason. 730 F.3d 701 (2013).  The case was reversed for improper use of demonstrative evidence, because the evidence was allowed into the jury room during deliberations.  Erroneous use of demonstrative evidence can easily become a widespread and persistent problem, due to the ambiguity in the definition and instruction on the use of demonstrative evidence.  The lack of uniformity throughout the court system can also add to this problem, because of the trial judge’s discretion pertaining to the ways in which demonstrative evidence can be used varies between circuits and therefore leads to inconsistent case results within the court system.

 

          This leaves us with the question of whether demonstrative evidence should continue to be used in trial practice, and the answer is yes.  While it is true that a lawyer opens the case up to greater chance of objections and reversal on appeal the helpfulness of the evidence outweighs that the potential negatives.  Not only does it make a trial more interesting and more dramatic, but it also increases the likelihood that the jury pays better attention.  It also helps the jury to actually understand the facts of the case, which can ultimately lead to more informed decision making.  Although there can never be a guarantee that the jury will correctly apply the facts to the law and return with the right verdict, the effective and skilled use of demonstrative evidence during trial makes it more probable.

 

[1] Stephen P Lindsey, “Do You Hear What I Hear?” Why Demonstrative Evidence Makes a Difference, Fed. CJA Trial Skills Academy (2010).

[2] Karen D. Butera, Seeing Is Believing: A Practitioner’s Guide to the Admissibility of Demonstrative Computer Evidence, 46 Clev. St. L. Rev. 511, 513 (1998).



The Search For Equitable Remedies For Breach of Contract


by Augustus Balasubramaniam, Esq.

 

Contracts Overview

 

In New York, for a legally enforceable agreement to exist at contract, the Plaintiff must establish an offer, acceptance of that offer, consideration moving between the parties, mutual assent, and intent to be bound.  See Kwalchuk v. Stroup, 61 A.D.3d 118, 121 (1st Dep’t 2009).  An Offer is defined as “…the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it” (see Restatement (Second) of Contracts §24).  “…(I)t must create a reasonable understanding in the offeree that the offeree has the power to create a contract by simply manifesting an assent to the offer…”  See Dr. John E. Murray, Jr., Corbin on Contracts (Desk Edition 2015) § 1.05.[2]  Acceptance of an Offer is a “…manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer…”  See Restatement (Second) of Contracts §50 (1).  Acceptance can be by performance or a promise to perform[1], if the offer invited such mode of acceptance.  Acceptance must be a voluntary act on the part of the offeree.  Consideration is the bargained for exchange moving between the parties.[2]  Generally, in an arms length bargain, the Courts will not inquire into the adequacy of consideration[3].  However, the bargained for exchange must move between the parties simultaneously, meaning generally, consideration must not be something done in the past, or something the party is already legally obligated to do[4].  Lastly, for an enforceable agreement to exist, it must meet the requirements of the Statute of Frauds.[5]

 

Breach of Contract

 

A Breach of contract occurs, when performance of the contractual obligations is due, but one or more of the parties to that contract fails to perform their obligations.  “…[A] contract is not breached until the time set for performance has expired…”  See Cole v. Macklowe, 64 A.D.3d 480, 480 [1st Dep’t 2009].  Alternatively, anytime before performance is due, if a party makes a clear, and unambiguous statement of an intent not to perform, or from that party’s conduct, it can be reasonably deduced that the party does not intend to perform, there is anticipatory breach of the contract.  The party to whom performance is due may have recourse to remedies at this point in time, not withstanding performance is due sometime in the future.[6]

 

Remedies

 

Generally, a party that suffers a loss due to a breach of contract may sue for remedies under law or equity.  The most common type of remedy under the law would be damages.  Providing it is foreseeable, the law will afford the aggrieved party monetary damages, the measure generally, being to put the aggrieved party in the position as if the contract had taken place.  See Restatement (Second) of Contracts §§ 344-352 et al.  If, on the other hand, the facts of the case dictate that damages are not feasible, equity may step in to afford what is known as an equitable remedy such as specific performance or injunction.  This is especially so in real property contracts, or contracts where the subject matter of the contract is a unique good.  It should be noted however that specific performance will not be available to compel individual performance of a contract due to constitutional issues that arises, specifically the 13th Amendment of the U.S. Constitution, thus varying somewhat from other common law jurisdictions.  See Vanderbilt University v. DiNardo, 174 F.3d 751 (6th Cir. 1999).

Equitable Remedies For Breach of Contract

Implications for Equitable Remedies in Day-to-Day Practice

 

It is not uncommon, when an attorney drafts a pleading for a breach of contract case, to see a wrongly chosen remedy, which sometimes could be fatal to the litigation at issue.  It is essential therefore that attorneys ensure the remedy chosen fit the elements of the remedy they seek, and which in turn applies to the facts of the case.  This is especially true when attorneys are faced with a situation in their clients’ cases where there is no clear remedy in law.  Courts are varied in their approach to the grant of equitable remedies for breach of contract.  While, generally, it could be agreed the courts will look at ‘all the circumstances of the case’, and if it is ‘just and equitable’ to grant equitable relief in the case, what that means in practice will vary greatly.  Drafters of contracts include what is known as “equitable relief clauses” in contracts in the hopes, at least to some extent, to try to limit the uncertainty surrounding the grant of equitable relief by the courts.  Some jurisdictions such as Delaware, interpret equitable relief clauses in contracts as giving rise to a presumption of irreparable harm, a factor to be established by the plaintiff in order to succeed in getting equitable relief from the courts.  See Gildor v. Optical Sols., Inc., No. 1416-N, 2006 WL 4782348 (Del. Ch. June 5, 2006).  Other jurisdictions, including The Federal Courts, on the other hand, place very little-to-no weight to these equitable relief clauses in contracts.  See La Jolla Cove Inv’rs, Inc. v. GoConnect Ltd., No. 11CV1907 JLS JMA, 2012 WL 1580995 (S.D. Cal. May 4, 2012).  See also Smith, Bucklin & Assocs., Inc. v. Sonntag, 83 F.3d 476, 478 (D.C. Cir. 1996).  Our own courts here in New York have taken the middle ground in cases that have come before them in relation to the equitable relief clauses in contracts.  The courts have shown willingness to consider the existence of the said clauses in their overall analysis of whether equitable relief should be granted.  See Imprimis Investors LLC v. Indus. Imaging Corp., QDS 22701503, 2008 N.Y. Misc. LEXIS 7384, at *16–17 (N.Y. Sup. Ct. Sept. 7, 2008).  See also Gramercy Warehouse Funding I LLC v. Colfin JIH Funding LLC, No. 11 CIV. 9715 KBF, 2012 WL 75431 (S.D.N.Y. Jan. 6, 2012).

 

Is breach of contract illegal?

 

Breach of contract itself, per se, is not illegal in New York. A breach of contract occurs when one party fails to fulfill their obligations under a legally binding agreement without a valid excuse. However, when a breach of contract happens, the non-breaching party has legal remedies available to them. They can sue the breaching party for damages, specific performance (forcing the breaching party to fulfill their obligations), or other appropriate remedies as specified in the contract or allowed by law. Legal consequences arise from the failure to fulfill contractual obligations, rather than the breach itself being illegal. It’s important to consult with a qualified attorney for specific legal advice related to contract disputes in New York or any other jurisdiction.

 

Bottom line is, when dealing with breach of contract cases seeking equitable relief; it is prudent for the practitioner to ensure airtight arguments to further their client’s case.  The old English saying from some 350 years ago, which articulated a common complaint amongst the legal practitioners of yesteryear, to some extent, holds true even today…‘Equity is a roguish thing.  For Law we have a measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity.  ‘T is all one as if they should make the standard for the measure we call a “foot” a Chancellor’s foot; what an uncertain measure would this be!  One Chancellor has a long foot, another a short foot, a third an indifferent foot.  ‘T is the same thing in the Chancellor’s conscience.  See Edward Fry, Life of John Selden, in “Table Talk of John Selden” (Fredrik Pollock edition, 1927) at page 177.

 

[1] See Restatement (Second) Contracts §§50 (2), (3), 53-54.

[2] See Restatement (Second) Contracts §71.

[3] See Moezinia v. Ashkenazi, 136 A.D.3d 988 [2d Dep’t 2016].

[4] See Braka v. Travel Assistance Intern., 25 A.D.3d 456 [1st Dep’t 2006].

[5] Contracts for goods of $500 and more are covered by the Uniform Commercial Code which mirrors the Statute of fraud provisions.

[6] See O’Connor v. Sleasman, 37 A.D.3d 954, 956 [3d Dep’t 2007].

 



Commercial Lease Parties Beware: Lessons from Tarrytown


by Andrew Fine, JD (NYS Bar admission pending; firm alumnus)

 

 

 

Through a recent appellate court decision, New Yorkers were gravely reminded that the age-old commercial concept of “caveat emptor” – which is Latin for “buyer beware” –  applies with equal force to those seeking commercial leases. Due diligence and factual investigation, it appears, are burdens naturally imposed on buyers and lessees alike.

 

On September 14, 2016, the Second Department of the New York Supreme Court, Appellate Division, decided 1357 Tarrytown Road Auto, LLC v. Granite Properties, LLC.[1] In this case, the plaintiff was a company that operated an automobile dealership (hereinafter, “Tarrytown”) which sought to expand its business by leasing additional property from the defendant (hereinafter, the “Landlord”) in the Town of Greenburgh, New York. After negotiation, the two parties entered into an agreement whereby the Landlord assigned an existing lease to Tarrytown. The agreement was finalized in July of 2013.

 

For the next two months, it was business as usual. In September, 2013, however, Tarrytown discovered that local law prohibited vehicles without license plates from parking on the leased premises (hereinafter, the “local ordinance”). Because Tarrytown intended to operate an automobile dealership on the premises, this local ordinance presented an unwelcome surprise as well as a serious obstacle. Tarrytown argued that the practice of parking cars without license plates on a dealership lot was “essential to the business of selling automobiles.”[2] Indeed, common sense would tend to support that argument.

 

Despite knowledge that Tarrytown intended to operate a car dealership on the premises, the Landlord had not disclosed the existence of this local law to Tarrytown during their lease negotiation, and the lease itself contained no mention of the local ordinance. The terms of the lease explained instead that provisions in the lease related to the parking of automobiles were subject to “any restrictions of local law, zoning, or ordinance.”[3] The relevant local ordinances were neither mentioned nor described in the lease outside of this generalized provision. Surprised and frustrated by its discovery, in September, 2013, Tarrytown asked the Landlord for a release from the Lease given the commercially frustrating nature of this local ordinance. The Landlord refused.   

negotiate commercial lease, Commercial Lease Attorney

Tarrytown subsequently brought suit in New York supreme court against the Landlord seeking release from the lease. Specifically, it alleged that the Landlord fraudulently induced Tarrytown into signing the lease by refusing to disclose the local ordinance, and that the Landlord had breached an implied covenant of good faith and fair dealing by failing to disclose the ordinance. The Landlord brought a motion to dismiss Tarrytown’s complaint. The New York supreme court granted this motion to dismiss, but only in part, with respect to the cause of action alleging fraudulent inducement. The Landlord, believing that the supreme court erred by declining to dismiss the complaint in its entirety, and appealed the supreme court’s order.

 

On appeal, the Second Department ruled in favor of the Landlord, and found that the lower supreme court should indeed have dismissed Tarrytown’s complaint in its entirety. But why?

 

The Second Department explained that the implied covenant of good faith and fair dealing is breached “when a party acts in a manner that would deprive the other party of the right to receive the benefits of their agreement.”[4] Simply put, this covenant constructively includes any promises “which a reasonable [person]…would be justified in understanding were included” with the rest of the written contract.[5] It was Tarrytown’s contention that the lease carried with it an implied promise from the Landlord that the premises were legally suitable for their intended purposes. The Second Department, however, felt otherwise. It explained that the lease explicitly provided that “no representation concerning the suitability of the premises for [Tarrytown’s]…intended business” was made in the lease. Accordingly, the court declined to “impos[e] a duty on the Landlord to disclose zoning or local law restrictions” on the basis that doing so would impose a duty on the Landlord that was expressly disclaimed by the lease.[6] The Second Department even went one step further by explaining that, generally speaking, contracts such as this may “conclusively establish a defense to causes of action alleging breach of the implied covenant of good faith and fair dealing.”[7] In essence, this means that contracts which state that no representations are being made therein with respect to a certain matter cannot be later invalidated on the basis that the contract should have made such a representation. This judicial analysis appears not to hinge on fairness, but rather on the express defensive language within the contract.

 

This case may understandably leave New York entrepreneurs and commercial lessees feeling uneasy. After all, this precedent places the burden on lessees to conduct their own due diligence before signing a lease by researching and identifying local zoning laws, local ordinances, and other rules and regulations that could disturb business on the premises. Commercial lessees would be prudent to carefully negotiate with landlords for the inclusion of express warranties and assurances in the lease itself. By the same token, lessees should be wary of those clauses which disclaim representations in the agreement.[8] Otherwise, lessees may fall prey to obscure and unknown regulations that serve to plague the premises that they paid so much to lease. To all business people who are shopping now or in the future for commercial leases: good luck, and caveat emptor.

 

 

 

 

[1] See generally 1357 Tarrytown Rd. Auto, LLC v. Granite Properties, LLC, 37 N.Y.S.3d 341 (N.Y. App. Div. 2d Dept. 2016).

[2] Id. at 342.

[3] See id. at 343.

[4] Id., citing Frankini v. Landmark Constr. of Yonkers, Inc., 937 N.Y.S.2d 80 (N.Y. App. Div. 2d Dept. 2012)

[5] Id., citing Dalton v. Educ. Testing Serv., 663 N.E.2d 289 (N.Y. 1995)

[6] Id.

[7] Id., citing Minovici v. Belkin BV, 971 N.Y.S.2d 103 (N.Y. App. Div. 2d Dept. 2013)

[8] See “New York Court Reminds Tenants to Do Their Due Diligence,” Westlaw Practical Law Real Estate, Oct. 28, 2016.



The National Black Lawyers – Top 100


National Black Lawyers Top 100, best lawyer, best attorney

The LAW FIRM OF DAYREL SEWELL, PLLC is pleased to announce that Dayrel S. Sewell, Esq. has been selected for inclusion into The National Black Lawyers – Top 100 Lawyers, an honor given to only a select group of lawyers for their superior skills and qualifications in the field.

 

The National Black Lawyers – Top 100 is an elite, professional honorary organization composed of the Top 100 Black Lawyers from each state who serve individuals, families and businesses needing attorneys to represent them in the American legal system. Only The Top 100 lawyers from each state who are actively practicing in the select specialty practices are eligible for invitation. Invitees must demonstrate superior qualifications, leadership skills, and results as a legal professional. The selection process for this honor is based on a multi-phase process based upon objective and uniformly applied criteria which includes peer nominations combined with third party research.

 

The National Black Lawyers provides accreditation to distinguished attorneys, and also aims to provide essential legal news, information, and continuing education to lawyers across the United States.

 

With the selection of Dayrel S. Sewell, Esq. by The National Black Lawyers – Top 100, Dayrel has shown that he exemplifies superior qualifications, leadership skills, and client results. As The National Black Lawyers – Top 100 is an essential source of networking and information for attorneys throughout the nation, the final result of the selection process is a credible and comprehensive list of the most outstanding lawyers chosen to represent their state or region.

 

Resoucre by:- http://www.nbltop100.org/profile-view/Dayrel/Sewell/10564/



Non-U.S. (foreign) copyrighted works should be registered with the U.S. Copyright Office


by Henry Park, Esq.
Of Counsel and Registered U.S. Patent Attorney
Copyrights are territorial rights, which means that they are granted by—and limited to—the jurisdiction in which the copyright claimant seeks protection. To avoid this limitation, 171 countries have signed the Berne Convention for the Protection of Literary and Artistic Works.

 

Under the Berne Convention, signatories recognize that the works from one contracting state must be given the same protection in each of the other contracting states as the latter gives to its own nationals. See Berne Summary at http://www.wipo.int/treaties/en/ip/berne/summary_berne.html (1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union […] the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

 

See Berne Convention, Article 5(1) at http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P109_16834. Moreover, that protection must not be conditioned upon compliance with any formality. See supra Berne Summary.

(2) The enjoyment and the exercise of these rights shall not be subject to any formality[.]
See Berne Convention, Article 5(2) at http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P109_16834.

Non-U.S. copyrights, Best Law Firm in Brooklyn New York | Law Firm of Dayrel Sewell

When the U.S. became a signatory to the Berne Convention, it amended its copyright laws through the Berne Convention Implementation Act of 1988. Specifically, the U.S. amended Section 411 to require the registration of only domestic works before a copyright lawsuit can be filed. See 17 U.S.C. § 411(a).

Thus, a non-U.S. copyright claimant (i.e., foreign claimant) can initiate a copyright infringement lawsuit in the U.S. based on its foreign copyrights without registering them.

 

The U.S., however, did not amend Sections 410(c) or 412. Section 410(c) grants a presumption of validity to registered works, which affects the order of proof. See 17 U.S.C. § 410(c). Section 412 makes timely registration a prerequisite for certain remedies: the award of statutory damages and of attorneys’ fees. See 17 U.S.C. § 412.

 

[The committee] has concluded that the statutory incentives for registration contained in the provisions of sections 410(c), 412, and 205 of the Copyright Act are not preconditions for the ‘enjoyment and exercise’ of copyright. While those provisions substantially enhance the relief available to the proprietor of a registered work, they do not condition the availability of all meaningful relief on registration, and therefore are not inconsistent with Berne.

 

Elsevier B.V. v. UnitedHealth Group, Inc., 93 U.S.P.Q.2d (S.D.N.Y. Jan. 10, 2010) (quoting from Senate Report No. 100-352).
To avail oneself of the benefits associated with Section 412, the copyright holder must timely register its works.

 

 

– for an unpublished work, that the work is registered before any infringement

– for a published work, that the work is registered within three months of its first publication See 17 U.S.C. § 412. Once timely registered, the copyright holder may claim statutory damages instead of having to prove actual damages and the actual infringer’s profits. See 17 U.S.C. § 504(c). Statutory damages are determined by the court and range from between $750 – $30,000 per infringed work, and can go up to $150,000 per work if the infringement was willful. See 17 U.S.C. § 504(c). Additionally, the copyright holder may recover its costs and, if it is the prevailing party, its reasonable attorney’s fees. See 17 U.S.C. § 505; see also Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. ___ (2016) (a court examines a variety of factors when determining whether to award attorney’s fees, but should put substantial weight on the reasonableness of the losing party’s position). Both of these benefits are particularly strong negotiating tools. Thus, foreign copyright claimants should timely register their foreign copyrights with the U.S. Copyright Office to avail themselves of all potential relief under U.S. Copyright Law.



Advanced Technology and Global Security: Friend or Foe?


 
 

The LAW FIRM OF DAYREL SEWELL, PLLC is pleased to announce that Mr. Sewell will be the moderator of the upcoming panel discussion, Advanced Technology and Global Security: Friend or Foe, held by The Johns Hopkins University NYC Law Affinity Group at the Princeton Club in New York City at 6:30 p.m. on Tuesday, April 26, 2016. For registration details and more, click on the event name above.
We have seen the emergence of technology into every facet of our daily lives. Social media and cell phones are indisputably ubiquitous. The result, in part, is the compilation of vast amounts of data on each individual. Access to this data gives unprecedented insight into our privacy by government, industry and the criminal element. How they choose to use this data is of concern to all.
People are increasingly aware of the dilemma between privacy and global security. According to the Wall Street Journal, FBI Director James Comey said that the FBI paid more than $1 million for a hacking tool that opened the iPhone of a terrorist gunman in San Bernardino, California.
The rapid growth of technology has created unexplored legal challenges, civil liabilities, social consequences, and potential for incursion of individual privacy. Couple these issues with the legitimate requirements of law enforcement and the intelligence community and you have a variety of questions around law, policy and practice. Join the panel with Mr. Sewell in a dynamic discussion covering all of the issues outlined and more!

Advanced Technology and Global Security

 


The Duality of the U.S. Supreme Court’s Janus Decision


The Duality of the U.S. Supreme Court’s Janus Decision

 

The LAW FIRM OF DAYREL SEWELL, PLLC is pleased to announce its latest publication, “The Duality of the U.S. Supreme Court’s Janus Decision”, appearing in the 2015 American Bar Association Securities Litigation Fall Newsletter ( See The Duality of the U.S. Supreme Court’s Janus Decision ). The Duality of the U.S. Supreme Court’s Janus Decision Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder prohibit, among other things, the making of untrue and misleading statements of fact in connection with the purchase and sale of any security. In light of this prohibition, a seminal question is who has the liability for making the untrue or misleading statement? The United States Supreme Court addressed this question in its decision in Janus Capital Group, Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011). The Janus decision made an impact on the securities fraud landscape. It initially appeared to be a well-constructed guiding principle, yet different courts have come to disparate conclusions with respect to its application; thus creating the “duality” that exists – ironically – in the aftermath of the Janus decision. In Janus, the Court held that only a person who has the “ultimate authority” over a statement, including its content and whether and how to communicate it, can be the “maker” of the statement for purposes of Section 10(b) and Rule 10b-5. The Janus Court held that the investment advisor to a mutual fund cannot be primarily liable under Section 10(b) for statements made in in the fund’s prospectus because the investment advisor did not have the ultimate authority in making the statements. The Court held that to “make” these statements for purposes of rule 10b-5, the alleged maker must have “ultimate authority over the statement, including its content and whether and how to communicate it,” and that the fund managers did not have that authority. Janus, 131 S. Ct. at 2302. The Court concluded saying it is the entity that has control over the content of the statements and the authority of how and when to make them, that will have the primary liability. Id. at 2301. The government’s broader view of interpreting the word “make” as “create” thereby extending the primary liability to all parties who had a significant role in the creation of the misinterpretations, and the dissent’s broader view of interpreting the “maker” based on the facts and circumstances of the particular case, were both rejected. Id. at 2311. You are encouraged to comment and receive free updates by subscribing to the firm’s Blog and Press Release sections.

 


Redskins Trademark Fumble


Redskins Trademark Fumble

 
 

The LAW FIRM OF DAYREL SEWELL, PLLC is pleased to announce that Messrs. Sewell’s and Fine’s recent, featured publication, “The “Redskins” Trademark: Turn-over on Downs”, appears in this month’s IPFrontline newsletter (Trademark Turn-over on Downs).

 

Redskins Trademark Fumble

 

For decades, the National Football League’s “REDSKINS” trademarks have been under siege. Activists, concerned citizens, Native American groups, lawyers, and politicians have boisterously levied meritorious arguments against a trademark that has defined an American professional football team for almost a century. While this coalition has attracted a great deal of societal attention, it has only recently secured judicial support.

 

For decades, the NFL has stood firmly behind its “Redskin” trademark, as has the majority of Redskins fans. The term “redskin” subsequently no longer enjoys widespread use in America as a word describing the Native American people. The case, Pro-Football Inc. v. Blackhorse, offers an extensive analysis of the term and its implications. After carefully weighing the evidence, the Eastern District of Virginia ultimately determined that the term “redskin” is disparaging to the Native American population, and is subsequently undeserving of continued federal registration.

 

In sum, the Eastern District of Virginia affirmed the TTAB determination that the term “redskins” would not enjoy continued registration as a trademark on the basis that the term is, and was always, likely to disparage a “substantial composite” of the Native American population.

 

Today, it is largely undisputed that the term “redskin” is, by definition, offensive as a descriptor for Native Americans. Fast-forwarding, several years later, the NFL’s Washington Redskins team is now known as the Washington Commanders; it was only a matter of time before the team’s ownership wilted under the mounting legal, economic, and public policy pressures.

 

You are encouraged to comment and receive free updates by subscribing to the firm’s Blog and Press Release sections.