Time to Welcome Elizabeth A. Rizzo, Esq.!

By Elizabeth A. Rizzo, Esq.
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Elizabeth Rizzo is pleased to announce that she has joined Weiss Zarett Brofman Sonnenklar & Levy, P.C. with 3 years of client relations and healthcare law experience. Elizabeth earned her bachelor’s degree from Adelphi University and her law degree from Maurice A. Deane School of Law at Hofstra University. 

Elizabeth is proud to be part of the Weiss Zarett team, as Elizabeth carries with her Weiss Zarett’s attention to detail with a strong emphasis on clear and focused communication with clients.

Weiss Zarett is a prominent and well-respected Long Island-based Firm known for assisting members of the healthcare industry and general business clients.  In the healthcare field, Weiss Zarett represents physicians and physician groups, other healthcare providers and health-related businesses with a wide array of legal services including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, governmental and commercial payor audits, bankruptcy, and commercial real-estate transactions.  Weiss Zarett brings decades of experience to this complex and ever-changing area of practice. 

Equally experienced outside of the healthcare industry, Weiss Zarett advises and represents businesses and business owners in corporate and commercial matters, business disputes, employment practice, commercial, bankruptcy and commercial real estate and commercial landlord and tenant litigation, creditor’s rights, financing, documenting secured transactions and all phases of commercial real-estate transactions. 

Looking to the future, Elizabeth is excited to build and further develop valuable relationships at Weiss Zarett with her abilities and services now available to be called up at the Firm. Please feel free to call upon us for your legal needs.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

Welcome, Lisa Giunta-Popeil, Esq.!

By Lisa Giunta-Popeil
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Lisa Giunta-Popeil, Esq. is pleased to announce that she has joined Weiss Zarett Brofman Sonnenklar & Levy, P.C.  Lisa brings with her over ten years of general and commercial litigation experience in both federal and state courts in New York, including a clerkship for a U.S. District Court judge in the Eastern District of New York.  She has expertise in handling a wide range of matters, including contract disputes, shareholder disputes, commercial arbitrations, business tort actions, creditor’s rights litigation and securities fraud litigation.

Lisa shares Weiss Zarett’s commitment to providing a thoughtful and comprehensive approach to litigation.  This includes open and candid communication with clients, exploring all potential avenues for the resolution of disputes and considering all possible legal claims and defenses.  The Weiss Zarett litigation team will zealously advocate on behalf of their clients, whether in the courtroom or at the negotiation table.

Weiss Zarett is a prominent and well-respected Long Island-based firm known for assisting members of the healthcare industry and general business clients.  In the healthcare field, Weiss Zarett represents physicians and physician groups, other healthcare providers and health-related businesses with a wide array of legal services including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, governmental and commercial payor audits, bankruptcy, and commercial real-estate transactions.  Weiss Zarett brings decades of experience to this complex and ever-changing area of practice. 

Equally experienced outside of the healthcare industry, Weiss Zarett advises and represents businesses and business owners in corporate and commercial matters, business disputes, employment practice, commercial, bankruptcy and commercial real estate and commercial landlord and tenant litigation, creditor’s rights, financing, documenting secured transactions and all phases of commercial real-estate transactions.

Lisa is excited to be joining Weiss Zarett and looks forward to providing you with a broad array of litigation services.  Please call us to see how we can help you with your legal needs. 

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

JOSHUA SUSSMAN ELEVATED TO PARTNER

By Joshua D. Sussman, Esq.
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Weiss Zarett Brofman Sonnenklar & Levy, P.C. is pleased to announce that Joshua Sussman has been promoted to Partner of the Firm. Since joining the firm as Senior Counsel in early 2020, Mr. Sussman has been essential to success and operations of the Firm’s Litigation Department. Mr. Sussman is lead attorney on many of the Firm’s commercial disputes, while also taking a critical role in managing and developing Weiss Zarett’s Litigation Department. Mr. Sussman handles complex commercial litigation pending before federal and state courts and in arbitration about an array of actions, including proceedings between shareholders, partners, or members of closely held companies, lockouts and valuation disputes, breaches of fiduciary duties, breaches of sale agreements, restrictive covenant litigation, and commercial real estate disputes. While Mr. Sussman is a talented and tenacious litigator, he has also proven exceptionally valuable to the Firm’s clients by helping to resolve their issues in a practical manner before they become costly litigations. 

On behalf of the Firm, David Zarett said, “Since the day he walked in the door, Josh has exceeded all expectations and it is my honor and privilege to call him a Partner.” “Josh’s passion for the law, his dedication to the clients and his ability to collegially work with the other attorneys in the Firm, makes his elevation to Partner very much deserved,” added Michael Brofman.

“Joining Weiss Zarett was the best decision of my career,” Josh added. “The Firm and the Partners have provided me with a unique opportunity to develop as an attorney and a leader and to work with exceptional clients and professionals on an array of challenging legal issues. I look forward to continuing my professional growth here and being an integral part of the future of the Firm.”

Please join us in congratulating Josh on such a significant milestone in his professional career.

Google Wins-Client Privilege Dispute, Court Finds Attorney Silent Communications Are Privileged

By Joshua D. Sussman, Esq.
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Email is now the preferred means of communication in the business world. Both within an organization, and between the organization and its third-party vendors, customers and others, virtually everyone emails. Sometimes, those communications are sent without much forethought. Not unexpectedly, a business’s email files have become a treasure trove for far-reaching and intrusive discovery in virtually any lawsuit or arbitration. It is not unusual for the proverbial “smoking gun” pivotal evidence to be found within one brief, spontaneous email communication from among terabytes of digital material. 

In response, some companies have adopted creative strategies to attempt to shield their routine emails from discovery production. One such example is highlighted by a recent antirust case that the U.S. Department of Justice commenced against Alphabet, Inc. and Google LLC, and raises the interesting legal issue of whether routine emails can be shielded from discovery simply by copying or “cc’ing” a lawyer.  

Generally speaking, the attorney-client privilege protects certain communications between a lawyer and their client that concern legal advice from being produced during discovery. However, can merely copying in-house general counsel on emails shield them from discovery production under the attorney-client privilege? 

A federal court Judge considered this issue in the context of a motion to sanction Google and to compel it to produce emails withheld on attorney-client privilege grounds under  its “Communicate with Care” program, which advised employees to add a lawyer as a recipient to emails. The DOJ argued that Google implemented the program so that it could assert the attorney-client privilege over those emails, thus shielding them from disclosure to an adverse party in a lawsuit even though the attorneys did not participate in the communications.  The Court  ordered Google to produce a random sample of emails for the Judge to review and inspect to determine whether Google properly asserted the privilege.

The U.S. Department of Justice argued it does not, and there is precedent to support their position. In Boca Investerings Partnership v. United States, 31 F.Supp.2d 9, 11 (D.D.C. 1998), the Court held that before the privilege applies it must determine whether the attorney was acting primarily in a professional legal capacity. If the attorney is being consulted on business decisions, those communications may not be privileged. Ultimately, “[a] court must examine the circumstances to determine whether the lawyer was acting as a lawyer rather than as business advisor or management decision-maker.” Id. 

After the Court’s inspection of the sample, the Court denied the DOJ’s motion to compel and for sanctions, but directed Google to re-review the remaining “silent-attorney emails” to determine whether are protected from disclosure. The transcript containing the Court’s decision is not yet available, but by denying the motion, the Court apparently found that sample contained emails where employees were seeking legal advice. If the Court had granted the DOJ’s motion and found that attorney-client privilege did not apply to the withheld emails, then the Court could have forced Google to produce some or all of the emails it sought to protect.

In the immortal words of coach Herm Edwards: “Don’t press send!” And if you are going to, think twice before you do, because once that email or text message is sent it may become the subject of litigation. 

Should you need the assistance of skilled and experienced counsel to assist you in litigation, do not hesitate to contact Joshua Sussman at jsussman@weisszarett.com.  

Beware the Risks of Taking Cryptocurrency as Collateral

By Mauro Viskovic, Esq.
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A lender who takes cryptocurrency as collateral for a loan must be careful to follow the specific requirements applicable to perfecting a security interest in crypto assets.  Otherwise, if the borrower ends up in bankruptcy, that lender would be deemed an unsecured creditor and possibly have no recourse for recouping any of its loan to the borrower.     

Article 9 of the Uniform Commercial Code provides instruction on how to perfect a security interest in loan collateral, however, the instructions are different depending on the type of asset provided as collateral.  The potential categories that crypto assets may fall under are: (1) money; (2) investment property; or (3) general intangibles.  

Cryptocurrency is not recognized as “money” under the UCC because it is currently not a form of currency authorized by a government.  The analysis of whether crypto assets would be deemed “investment property” is more complicated.  A crypto asset is not a “security” under the UCC if it is not an obligation of an issuer or an interest in the issuer.  However, it is possible that cryptocurrencies may nevertheless qualify as “investment property” under applicable provisions of the UCC if a securities intermediary and a customer agree that that the specific crypto assets are financial assets and those assets are held by the securities intermediary in a securities account.  If the crypto asset does not so qualify, then it would fall in to the catch-all “general intangibles” category.  

If the crypto asset is deemed an investment property, then the associated security interest is perfected by taking “control” of the asset.  Conversely, perfecting a security interest in general tangibles requires the mere filing of a UCC financing statement identifying the debtor and describing the collateral in the appropriate jurisdiction.  

For practical purposes, however, irrespective of the designation as investment property or general intangible, the lender should both take control of the crypto asset and file the UCC financing statement.  Control over the asset is critical because, once a crypto asset is sold on an exchange or elsewhere, a lender may not be able to track down the transferee (who may be anonymous and located overseas) to assert the lender’s rights to the assets under its lien.  Establishing control over a crypto asset can be accomplished by placing the crypto asset in a digital wallet controlled by the lender and held there until full repayment of the loan.  

As cryptocurrencies continue to increase in value and become more common, more borrowers will seek to pledge those assets as loan collateral.  Accordingly, lenders who accept such collateral will need to ensure that they take the necessary steps to be deemed a secured creditor with respect to such crypto assets.  Should you have any questions or require assistance with the loans secured by crypto assets, please contact Mauro Viskovic at 516-751-6537 or mviskovic@weisszarett.com.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.