Martin Flumenbaum

April 25, 2017 | New York Law Journal

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss a recent decision that indicates the court's willingness to expand Title VII to prohibit sexual orientation discrimination, or at least to view gender stereotyping more broadly, an issue the Supreme Court is likely to take up soon.

By Martin Flumenbaum and Brad S. Karp

14 minute read

March 28, 2017 | New York Law Journal

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp review a recent decision where the court clarified the procedure that applies to enforcement proceedings under §207 of the FAA against named award-debtors, but failed to address the procedure when an award-creditor seeks to enforce a foreign arbitral award against an alleged alter-ego that is not named on the award.

By Martin Flumenbaum and Brad S. Karp

12 minute read

February 21, 2017 | New York Law Journal

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: In spite of its reputation as a natural and architectural wonder, the system that provides New York City's tap water has been the subject of a series of lawsuits over the past two decades brought by environmental organizations that fear pollution in New York's waters. A recent decision likely puts to rest this protracted legal battle, as well as clarifies the circuit's jurisprudence on 'Chevron' deference.

By Martin Flumenbaum and Brad S. Karp

15 minute read

January 24, 2017 | New York Law Journal

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: Over the past year and a half, the circuit, along with the Southern District, have issued three important decisions interpreting arbitration clause enforceability in both the consumer and employment contexts. At first glance, these decisions all seem to turn on practical considerations, tracking factors like the prominence of the arbitration clause. But arbitration enforceability is not merely an empirical inquiry. In fact, the recent opinions analyze these practical factors to underscore a more fundamental judicial concern: preserving the integrity of contractual bargaining.

By Martin Flumenbaum and Brad S. Karp

13 minute read

December 27, 2016 | New York Law Journal

In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp examine two decisions which appear to reflect the court's growing interest in the constitutionality of the government's use of location information obtained by GPS. In both 'U.S. v. Caraballo' and 'U.S. v. Gilliam', the Second Circuit considered whether a defendant's Fourth Amendment right is violated when law enforcement determines his location by acquiring GPS information from a cellular phone provider, and then uses this information to carry out an arrest.

By Martin Flumenbaum and Brad S. Karp

15 minute read

November 29, 2016 | New York Law Journal

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss 'GAMCO Investors v. Vivendi Universal', where the court discussed one of the key issues in securities litigation—how to rebut the fraud-on-the-market presumption of reliance. The circuit found the defendants in the case had successfully rebutted the presumption by demonstrating that certain opt-out plaintiffs would have purchased the securities at issue even if they had known of the fraud.

By Martin Flumenbaum and Brad S. Karp

15 minute read

October 26, 2016 | New York Law Journal

Second Circuit Review columnists Martin Flumenbaum and Brad S. Karp note that two recent decisions by the Second Circuit demonstrate the court's increasing hesitation to apply U.S. law to foreign jurisdictions. In 'Waldman v. PLO' and 'In re Vitamin C Antitrust Litigation', the court relied upon recent Supreme Court jurisprudence to continue the trend of narrowing the extension of U.S. law to foreign jurisdictions. In each case, the court vacated a nine-figure jury award, relying on jurisdictional precedents and international comity to limit the reach and application of U.S. law.

By Martin Flumenbaum and Brad S. Karp

13 minute read

September 28, 2016 | New York Law Journal

Martin Flumenbaum and Brad S. Karp review the performance of the U.S. Court of Appeals for the Second Circuit in the Supreme Court. Six of the Supreme Court's 80 merits decisions this term arose out of the Second Circuit, and the column explores those cases and compares the reversal rates with other circuits.

By Martin Flumenbaum and Brad S. Karp

23 minute read

August 23, 2016 | New York Law Journal

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp point out that the court has consistently granted fewer petitions for rehearing en banc than any other circuit court, a pattern that has become more pronounced in recent years. Since the beginning of 2011, the Second Circuit has reconsidered only two appeals en banc, compared to an average of 12 across all circuits during the same period. Now, other views are emerging among judges as to the merits of such review.

By Martin Flumenbaum and Brad S. Karp

18 minute read

July 26, 2016 | New York Law Journal

In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp review a case in which the court considered the question of whether to permit intervenors to participate in lawsuits without requiring that they independently possess standing. The circuit adopted a more expansive construction of the federal judicial power and narrower construction of the case or controversy requirement.

By Martin Flumenbaum and Brad S. Karp

12 minute read