Jed I Bergman

September 26, 2017 | New York Law Journal

Jed I. Bergman and Marissa E. Miller write: Even though in pari delicto is an affirmative defense, and case law suggests that a balancing of the parties' relative fault is required, New York courts often dismiss plaintiffs' claims on the face of the pleadings, without balancing and without discovery. The frequency of such dismissals has only increased since the Court of Appeals decided 'Kirschner v. KPMG' in 2010. Given this trend, surviving a motion to dismiss can significantly enhance a plaintiff's leverage.

By Jed I. Bergman and Marissa E. Miller

7 minute read

August 03, 2017 | New York Law Journal

Jed I. Bergman and Cynthia M. Jordano summarize the key principles courts generally apply in deciding whether to permit Fifth Amendment adverse inferences in civil suits against corporate defendants. To support drawing such adverse inferences, a plaintiff must satisfy three prerequisites. First, there must be independent evidence corroborating the inference. Second, the plaintiff must persuade the court to impute that inference to the corporate defendant. Third, the probative value of the inference must outweigh any unfair prejudice.

By Jed I. Bergman and Cynthia M. Jordano

21 minute read