Converting a Fifth Amendment Invocation Into a Negative Inference

By Leo K. Barnes Jr.* *Mr. Barnes, a member of Barnes & Barnes, P.C., can be reached at

Last month we addressed the transformation of a criminal court plea or guilty verdict into civil court liability, relying upon collateral estoppel. This month we take a step back. Assume that the civil case […]

Maximizing Criminal Court Results, in the Civil Arena, Through Collateral Estoppel

By Leo K. Barnes Jr.* *Mr. Barnes, a member of Barnes & Barnes, P.C., can be reached at


For civil counsel engaged to right criminal wrongs committed by a Corporation’s former officer or employee, the frustration of the delays incident to a parallel criminal proceeding can nonetheless ultimately bear fruit […]

Money Isn’t Everything – Undermining An Injunction Application by Quantifying Damages

By Leo K. Barnes Jr.* *Mr. Barnes, a member of Barnes & Barnes, P.C., can be reached at

The adage “money isn’t everything” has particular significance for injunction applications. A January 2011 decision by Eastern District Judge Nicholas Garaufis reminds counsel that no matter how solid a liability and damages analysis appears, […]

Leveling the Playing Field for Chronic Non-Compliance

By: Leo K. Barnes Jr.

In a recent column, we addressed recent Appellate Division authority concerning the ultimate sanction for failure to disclose, a CPLR 3126 Order striking a pleading. In December, the Court of Appeals issued Gibbs v. St. Barnabas Hospital, 2010 N.Y. Slip. Op. 09198 (2010) reversing a Supreme Court decision […]

Divided Loyalty: Damages for Employee Disloyalty Claims

By: Leo K. Barnes Jr.

At first blush, two principles regarding the loyalty due to a current employer from an employee seem irreconcilable: on the one hand, an employee owes his employer complete loyalty; on the other, an employee may incorporate a competitive business prior to departure from employment as long as he […]

CPLR 3126(3) — The Ultimate Remedy for Willful Failure to Disclose

By: Leo K. Barnes Jr.

In two opinions issued on the same day this spring, the First and Second Departments continued a trend of affirming trial court rulings striking pleadings pursuant to CPLR 3126 once a willful failure to disclose is documented. Although the result is severe, both the trial and appellate courts […]

Substantiating Malice for Tortious Interference Claim Getting Difficult

By: Leo K. Barnes Jr.

Several weeks before then-President George W. Bush defeated presidential candidate John Kerry, CBS News correspondent Dan Rather narrated a “60 Minutes” piece assailing President Bush’s service in the Texas Air National Guard. According to Mr. Rather, subsequent to Mr. Bush’s re-election in November 2004, CBS reduced his role […]

Easy to Allege, Difficult to Substantiate: Piercing the Corporate Veil

By: Leo K. Barnes Jr.*

With Plaintiffs seeking to maximize a source of recovery and Defendants seeking to minimize the same, discovery in commercial matters may focus upon the liability of an individual shareholder for a claim asserted against a corporation. Plaintiffs are quick to name shareholders as defendants in their individual capacities […]