Antoinette Lanteri, ESQ.

What is Corporate Litigation?

Corporate litigation refers to the legal disputes and lawsuits that arise in the context of business and corporate activities. It involves companies, their stakeholders (such as shareholders, employees, or board members), and other related parties engaging in legal battles over a wide range of issues, often concerning the operations, governance, and obligations of a business entity. Corporate litigation can occur between two companies, within a company, or between a company and external parties such as government agencies or customers.

Common Types of Corporate Litigation:

1. Breach of Contract: One of the most frequent causes of corporate litigation involves breach of contract disputes. These occur when one party fails to fulfill their contractual obligations, leading to financial losses or other damages for the other party. Breach of supply agreements, licensing agreements, or joint ventures are common examples.
2. Shareholder and Partnership Disputes: Shareholders or partners may sue the company or each other over issues such as mismanagement, breach of fiduciary duties, minority shareholder rights, or disputes related to dividends and profit sharing. Shareholder derivative actions, where shareholders sue on behalf of the corporation, are also a type of corporate litigation.
3. Mergers and Acquisitions (M&A) Disputes: Disagreements often arise during or after mergers, acquisitions, or other corporate transactions. These disputes may involve breach of representation and warranties, issues over the valuation of assets, or disagreements regarding the terms of the sale or merger agreement.
4. Employment-Related Litigation: Companies can face lawsuits from current or former employees related to issues like wrongful termination, discrimination, harassment, wage and hour disputes, or breach of employment contracts. Corporate litigation in this area also covers issues like non-compete agreements and intellectual property protection from departing employees.
5. Intellectual Property (IP) Disputes: Companies may engage in litigation to protect their intellectual property rights, such as patents, trademarks, copyrights, and trade secrets. These disputes often involve infringement claims, licensing disagreements, or challenges to the validity of intellectual property.
6. Securities Litigation: This involves lawsuits related to the trading of securities, such as stocks and bonds. Common cases include allegations of securities fraud, insider trading, or violations of the Securities and Exchange Commission (SEC) regulations. Shareholders may sue companies or executives for misrepresentation in financial statements, misleading investors, or other fraudulent activity that affects stock prices.
7. Antitrust and Competition Issues: Antitrust litigation arises when a company is accused of anti-competitive practices, such as price fixing, monopolization, or unfair trade practices. These cases often involve both government enforcement actions and private lawsuits.
8. Corporate Governance Disputes: Disputes over the governance of a corporation, such as board member decisions, executive compensation, or conflicts of interest, may lead to litigation. These cases often involve questions about the duties and responsibilities of directors and officers.
9. Regulatory and Compliance Issues: Companies may face litigation from government agencies for failing to comply with regulations, such as environmental laws, labor laws, or industry-specific rules. Regulatory litigation can result in fines, penalties, or injunctions against the company.
10. Product Liability and Consumer Protection Claims: Companies that manufacture or sell products may face litigation if their products cause harm to consumers. These lawsuits can involve claims of defective products, false advertising, or violations of consumer protection laws.

Corporate Litigation Process:

• Pleadings: The process begins when a party files a complaint outlining the legal claims. The defendant then files an answer, responding to the allegations.
• Discovery: Both sides gather evidence through depositions, document requests, and interrogatories.
• Pre-Trial Motions: Parties may file motions to dismiss the case or resolve it without trial (summary judgment).
• Trial: If the case isn’t settled, it proceeds to trial, where a judge or jury decides the outcome.
• Appeals: After a decision, the losing party may appeal the verdict to a higher court.

Why Corporate Litigation Is Important:

Corporate litigation can have significant financial, operational, and reputational impacts on a business. It is a crucial mechanism for resolving business disputes, protecting rights, and ensuring companies adhere to laws and contracts. However, it is often costly and time-consuming, making alternative dispute resolution methods like mediation and arbitration appealing for many corporations.

Importance of retaining a lawyer for a criminal matter

Retaining a lawyer for a criminal matter is critically important for several reasons, as it ensures that your rights are protected and that you receive expert guidance throughout the legal process. Criminal charges, whether minor or serious, can have significant consequences, including fines, imprisonment, and long-lasting damage to your reputation and future opportunities. Here’s why hiring a criminal defense lawyer is crucial:

1. Protection of Constitutional Rights:

A criminal defense lawyer safeguards your constitutional rights, such as your right to remain silent (under the Fifth Amendment) and your right to legal representation (under the Sixth Amendment). Without proper legal counsel, you may unintentionally waive these rights, which could harm your defense.

2. Legal Expertise and Knowledge of the Law:

Criminal law is complex and varies depending on the type of offense and jurisdiction. A skilled lawyer understands the legal system, the charges you face, and the best defense strategies. They can explain the charges against you, possible penalties, and the steps in the criminal process.

3. Developing a Strong Defense Strategy:

A lawyer will assess the specifics of your case, investigate the evidence, interview witnesses, and identify weaknesses in the prosecution’s case. They can build a defense strategy tailored to your circumstances, whether it involves challenging the evidence, seeking to suppress illegally obtained evidence, or negotiating a plea deal.

4. Navigating the Legal System:

The criminal justice system involves various procedural rules and deadlines. A lawyer will ensure that all paperwork is filed correctly, court appearances are made on time, and that you meet all legal requirements throughout the process. They also have experience negotiating with prosecutors and understanding court procedures.

5. Plea Bargains and Negotiations:

In many criminal cases, a plea bargain may be an option, where the defendant agrees to plead guilty to a lesser charge in exchange for reduced penalties. An experienced lawyer can negotiate with the prosecutor to secure a favorable deal, potentially avoiding a lengthy trial or minimizing your sentence.

6. Mitigating Consequences:

If a conviction is likely, a lawyer can work to minimize the consequences, such as reducing the charges, seeking alternative sentencing options (like probation, community service, or rehabilitation programs), or advocating for reduced fines and jail time. They may also help you avoid a permanent criminal record.

7. Understanding the Evidence:

Lawyers have the skills to scrutinize the evidence presented by the prosecution. They may uncover issues such as mishandled evidence, improper police procedures, or violations of your rights. Challenging such evidence can lead to the dismissal of charges or a more favorable outcome.

8. Representation in Court:

If your case goes to trial, having a lawyer represent you is essential. They will present your case to the judge or jury, cross-examine witnesses, challenge the prosecution’s arguments, and work to persuade the court of your innocence or the weaknesses in the prosecution’s case.

9. Emotional and Legal Support:

Facing criminal charges is highly stressful and overwhelming. A lawyer provides not only legal guidance but also emotional support, helping you understand the situation, reduce anxiety, and make informed decisions.

10. Appeals and Post-Conviction Relief:

If you are convicted, a lawyer can file an appeal on your behalf, arguing that errors were made during the trial that affected the outcome. They can also seek post-conviction relief, such as having your sentence reduced or your conviction overturned.

11. Avoiding Long-Term Consequences:

Criminal convictions can have long-term consequences beyond fines and jail time, such as loss of employment, difficulty finding housing, loss of professional licenses, and damaged reputation. A lawyer’s expertise can help you avoid or mitigate these outcomes.

In summary, retaining a lawyer for a criminal matter is vital to ensure you have the best possible defense. A knowledgeable criminal defense attorney can guide you through the legal process, protect your rights, and work to secure the most favorable outcome in your case.

Why is it important to have an Estate Plan?

 Having an estate plan is important for several key reasons, as it provides a comprehensive strategy for managing and distributing your assets, protecting your loved ones, and ensuring your wishes are carried out after your death. Here’s why estate planning is crucial:

1. Control Over Asset Distribution:

An estate plan allows you to decide how your assets will be distributed after you pass away. Without an estate plan, state intestacy laws will dictate who inherits your property, which may not align with your intentions. With tools like a will or trust, you can ensure your assets go to the people, organizations, or causes that matter most to you.

2. Minimizing Family Disputes:

Clearly outlining your wishes in an estate plan reduces the likelihood of family conflicts over your estate. Disagreements over inheritance or asset distribution can lead to legal battles, which are often costly and emotionally draining for loved ones.

3. Protection for Minor Children:

For parents with minor children, an estate plan allows you to name guardians who will take care of your children if you and your spouse pass away. Without a designated guardian in place, the court would decide who raises your children, potentially choosing someone you wouldn’t have selected.

4. Avoiding Probate:

Estate planning tools like living trusts can help your estate avoid probate, a legal process where a court oversees the distribution of your assets. Probate can be time-consuming, expensive, and public, leading to delays in distributing assets and exposing private family matters. Trusts can transfer assets directly to beneficiaries without the need for court intervention.

5. Reducing Estate Taxes:

Proper estate planning can minimize the impact of estate taxes, inheritance taxes, and capital gains taxes on your heirs. By using strategies such as gifting, charitable contributions, or establishing trusts, you can reduce the taxable portion of your estate, preserving more wealth for your beneficiaries.

6. Healthcare and Financial Decisions:

An estate plan allows you to make critical decisions about your healthcare and finances in case you become incapacitated. Documents like a durable power of attorney and a healthcare proxy appoint trusted individuals to make medical and financial decisions on your behalf if you are unable to do so. This ensures that your wishes regarding medical treatment, life support, and other important matters are respected.

7. Protecting Assets for Future Generations:

Through estate planning, you can protect assets for future generations by setting up trusts or other legal mechanisms. This is particularly useful in blended families or where specific provisions need to be made for a spouse, children, or grandchildren, ensuring your wealth is preserved and passed down according to your wishes.

8. Planning for Special Needs Family Members:

If you have a family member with special needs, an estate plan can provide for their care without jeopardizing their eligibility for government assistance programs like Medicaid or Supplemental Security Income (SSI). A special needs trust can be created to provide financial support without disqualifying them from these essential benefits.

9. Business Succession Planning:

If you own a business, estate planning can help you ensure a smooth transition of ownership upon your death or retirement. A well-designed business succession plan can prevent disputes among heirs and ensure the continuity of the business.

10. Peace of Mind:

Having an estate plan in place provides peace of mind, knowing that your affairs are in order and your loved ones will be taken care of according to your wishes. It also relieves your family of the burden of making difficult decisions during a time of grief and uncertainty.

In sum, an estate plan is a vital tool for protecting your assets, ensuring the financial security of your loved ones, and safeguarding your legacy. It allows you to take control of your future, prevent conflicts, and ensure that your wishes are respected.

What is Medicaid Asset Protection Planning?

Medicaid asset protection planning in New York is a legal and financial strategy used to help individuals preserve their assets while becoming eligible for Medicaid, a government program that provides health coverage, including long-term care services for those with limited income and resources. This type of planning is especially important for seniors or individuals facing the high costs of nursing home care or in-home care, as Medicaid eligibility is determined by strict income and asset limits.

Key Elements of Medicaid Asset Protection Planning in New York:

1. Understanding Medicaid Eligibility Requirements:
• Medicaid has strict income and asset thresholds. In 2024, the asset limit for an individual applying for Medicaid long-term care in New York is $32,396 while the monthly income limit is $1,800 (for nursing home care).
• Certain assets, like the applicant’s primary residence (up to a certain equity value), personal belongings, and some income-producing properties, may be excluded, but many assets, such as savings, investment accounts, and additional real estate, are counted against these limits.
2. Protecting Assets from Medicaid “Spend-Down”: Without planning, individuals must often spend down their assets to meet Medicaid’s eligibility requirements. Medicaid asset protection planning helps individuals avoid depleting their life savings to qualify for care by using various legal strategies, including trusts, gifts, or transfers.
3. Medicaid Asset Protection Trust (MAPT): One of the most common tools in asset protection planning is the Medicaid Asset Protection Trust (MAPT). By placing assets into this irrevocable trust, individuals can transfer ownership of their assets, allowing them to reduce their countable assets for Medicaid purposes. Importantly, once assets are placed in this trust, they cannot be accessed by the grantor, but the trust can protect assets for future generations.
4. The Medicaid “Look-Back” Period: New York Medicaid has a 5-year look-back period for nursing home care, meaning that any asset transfers made within five years of applying for Medicaid may result in a penalty period, delaying eligibility. Proper planning ensures that asset transfers or trust creations are done well in advance of needing long-term care to avoid penalties.
5. Gifting Strategies: Asset protection planning may involve gifting assets to family members or other trusted individuals. However, gifts must be carefully structured to comply with Medicaid’s rules and avoid penalties during the look-back period.
6. Spousal Protections: For married couples, Medicaid allows certain protections for the healthy spouse (known as the “community spouse”). The community spouse can keep a portion of the couple’s assets and income without jeopardizing the Medicaid eligibility of the spouse who needs long-term care.
7. Life Estate Deeds: Another strategy involves creating a life estate deed, where the individual retains the right to live in their home for the rest of their life but transfers ownership to their heirs. This can protect the home from being counted as an asset for Medicaid purposes after the look-back period.
8. Long-Term Care Insurance: While not technically a Medicaid strategy, purchasing long-term care insurance can help cover the cost of care without depleting assets. For those who do not plan ahead, Medicaid becomes the primary option for long-term care.

Why Medicaid Asset Protection Planning Is Important:

Medicaid asset protection planning in New York is crucial for individuals who want to qualify for Medicaid without losing their life savings. It allows for access to necessary medical care, including nursing home or in-home care, while preserving assets for future use or inheritance by family members. Planning should be done with the help of an experienced elder law attorney or financial planner to ensure compliance with New York Medicaid rules and to optimize the strategies based on individual circumstances.

What is Probate?

Probate in New York is the legal process through which a deceased person’s will is validated and their estate is administered. This process ensures that the deceased’s assets are distributed according to the terms of their will, and if there is no will, according to New York’s intestacy laws.

Here are the key steps involved in probate in New York:

1. Filing the will: The process begins when the executor named in the will files a petition with the Surrogate’s Court in the county where the deceased person lived. If there is no will, a family member can petition the court to be appointed as the estate administrator.
2. Validating the will: The court reviews the will to ensure it was properly executed according to New York law, including checking for signatures and witnesses. If the will is valid, the court admits it to probate.
3. Appointing the executor: Once the will is admitted, the court formally appoints the executor (or administrator if there’s no will) to manage the estate. The executor receives “letters testamentary,” which give them the authority to act on behalf of the estate.
4. Notifying beneficiaries and creditors: The executor must notify the beneficiaries named in the will, as well as any known creditors of the deceased, giving them a chance to file claims against the estate.
5. Managing the estate: The executor collects and manages the deceased’s assets, pays outstanding debts, taxes, and funeral expenses, and resolves any disputes or claims.
6. Distributing assets: Once all debts and obligations are settled, the remaining assets are distributed to the beneficiaries according to the terms of the will, or according to New York’s intestacy laws if there is no will.
7. Probate can be time-consuming, taking several months to over a year depending on the complexity of the estate and whether there are disputes. It can also involve court fees and legal costs, which is why some individuals use tools like living trusts to avoid probate altogether.

Reason for Real Estate Lawyer

A real estate lawyer in New York plays a critical role in ensuring that property transactions are legally sound and protected. Here are several reasons why hiring a real estate lawyer is important:

1. Navigating Complex Laws and Regulations:

New York’s real estate laws and regulations are complex, especially in cities like New York City with its additional ordinances. A lawyer helps ensure that buyers and sellers comply with all state and local laws during the transaction process.

2. Drafting and Reviewing Contracts:

Real estate transactions involve legally binding contracts, such as purchase agreements, lease agreements, and mortgage documents. A lawyer will draft, review, and negotiate these contracts to protect their client’s interests and ensure all terms are clear and favorable.

3. Title Search and Insurance:

Lawyers conduct title searches to verify that the property is free from liens, claims, or disputes that could affect the buyer’s ownership. They also assist with obtaining title insurance to protect against potential legal issues related to property ownership.

4. Handling Complex Transactions:

If a property transaction involves unique circumstances—such as foreclosures, short sales, co-ops, or multi-family units—legal guidance becomes even more essential. A lawyer helps navigate these complexities to prevent issues from arising.

5. Closing Process:

A real estate lawyer oversees the closing process, ensuring all legal documents are in order and signed correctly. They ensure that the title is transferred properly, the necessary funds are exchanged, and the transaction complies with state law.

6. Dealing with Disputes:

Should any disputes arise during the transaction—such as contract disagreements, boundary issues, or defects in the property—a lawyer can represent their client’s interests and help negotiate solutions or take legal action if necessary.

7. Ensuring Compliance with State Disclosure Requirements:

New York law requires sellers to disclose specific information about the property’s condition. A lawyer ensures that sellers comply with these disclosure laws and that buyers are aware of any potential issues with the property.

8. Tax and Financial Advice:

A real estate lawyer can provide advice on the tax implications of buying or selling property, including capital gains tax, property taxes, and other financial matters related to the transaction.

In New York, hiring a real estate lawyer is not only common practice but often necessary, particularly in more complicated transactions. The lawyer’s expertise helps safeguard the client’s investment and ensures the transaction proceeds smoothly and legally.

Transfer tax in New York

 In New York, a transfer tax is a tax imposed on the transfer of real estate or certain other types of property. The two primary types of transfer taxes related to real estate are the New York State Real Estate Transfer Tax and the New York City Real Property Transfer Tax, which apply under different circumstances.

1. New York State Real Estate Transfer Tax (RETT)

• This tax is applied when real property (such as land, buildings, or homes) is transferred from one party to another.
• The standard rate is $2 per $500 (or 0.4%) of the sale price of the property.
• For high-value properties—those sold for $1 million or more—an additional “mansion tax” of 1% is imposed on the sale price.
• The seller typically pays this tax, though the buyer may agree to cover it as part of the transaction negotiations.

2. New York City Real Property Transfer Tax (RPTT)

• In New York City, an additional transfer tax is imposed on real property sales.
• The rate for residential property sales is 1% if the sale price is $500,000 or less, and 1.425% if the sale price exceeds $500,000.
• For commercial property, the rates are 1.425% for properties sold for $500,000 or less and 2.625% for properties over $500,000.
• This tax applies to transfers of real property or shares in cooperative buildings.

Exemptions

Certain transactions may be exempt from the transfer tax, such as transfers between spouses or certain government agencies.

Overall, transfer taxes are one of the closing costs involved in buying or selling property in New York, and they contribute to the cost of real estate transactions in the state.

Difference Between Irrevocable Trust and Revocable Trust

 In New York, the key difference between a revocable trust and an irrevocable trust lies in the level of control and flexibility the grantor retains. A revocable trust allows the grantor to maintain control over the assets within the trust and modify or revoke the trust at any time during their lifetime. This type of trust is commonly used for estate planning, as it enables the grantor to avoid probate while retaining the flexibility to adjust the terms as needed. However, the assets in a revocable trust remain part of the grantor’s estate for tax and creditor purposes, meaning they do not provide protection from estate taxes or creditors.

In contrast, an irrevocable trust cannot be modified or revoked once it is established, except under very limited circumstances and with the consent of the beneficiaries. The assets placed in an irrevocable trust are removed from the grantor’s taxable estate, offering potential tax benefits and protection from creditors. Since the grantor relinquishes control over the assets, this type of trust is often used for long-term planning, such as Medicaid eligibility or reducing estate taxes for large estates.

Reason for a Will

People in New York create a will for several important reasons:

1. Control over asset distribution: A will allows individuals to dictate how their assets, such as property, money, and personal belongings, are distributed after their death. Without a will, New York’s intestacy laws determine who inherits, which may not align with the deceased’s wishes.
2. Appointing guardians for minor children: Parents can use a will to designate guardians for their minor children, ensuring that someone they trust will take care of their children if both parents pass away.
3. Minimizing family disputes: By clearly outlining their wishes, individuals can reduce the chances of family disputes or misunderstandings regarding inheritance, which can lead to costly and emotional legal battles.
4. Choosing an executor: A will allows someone to appoint an executor, the person responsible for managing the estate, paying debts, and ensuring that assets are distributed according to the terms of the will.
5. Charitable giving: A will enables individuals to leave part of their estate to charities or causes they care about, which can provide a lasting legacy and potentially offer tax benefits for the estate.
6. Avoiding New York’s default laws: Without a will, New York’s intestacy laws determine how assets are distributed, which may result in an outcome that doesn’t reflect the deceased’s true intentions.

Creating a will helps ensure that a person’s wishes are carried out after their death and can offer peace of mind that their affairs will be handled according to their preferences.