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June, 2014


M&B Victory on Motion to Dismiss Complaint


On June 12, 2014, Judge Martin Solomon of the Kings County Commercial Division denied in its entirety Defendants' motion to dismiss claims brought by Moskowitz & Book's client against his former employer. The claims include breach of contract claims, quasi-contract claims, and fraud claims for, among other things, the former employer's failure to issue shares in the Company that had been promised to M&B's client when he became the Company's COO. The Defendants sought dismissal of the entire case, but the Court's decision allows M&B's client to proceed to the discovery phase of the case on all of his claims.

M&B Victory on Motion to Dismiss Criminal Information

M&B's client was arrested in a prostitution sting and charged with patronizing a prostitute. Penal Law � 230.04 requires as an element of the offense that the Defendant's request be for "sexual conduct". M&B moved to dismiss the Criminal Information as facially insufficient on the grounds that the ambiguous language alleged in the Information did not constitute "sexual conduct", a term which is undefined in the statute. In its brief, M&B detailed New York case law interpreting the statute, arguing that no court had found that the type of ambiguous language alleged in the Information constituted "sexual conduct" and that the Information was therefore facially insufficient as a matter of law. The Court agreed, concluding that the Information "failed to provide reasonable cause to believe that the defendant committed the offense." Accordingly, the Court granted the motion to dismiss the charge against M&B's client.


Supreme Court Establishes Right to Cell Phone Privacy

In Riley v. California, ---S.Ct.---, 2014 WL 2864483 (June 25, 2014), the U.S. Supreme Court considered whether the Fourth Amendment permits the police to search a cell phone "incident to a lawful arrest" without first obtaining a search warrant. The "incident to arrest" exception to the search warrant requirement has been recognized for a century, but Riley marked the first time the exception has been analyzed with regard to cell phones.  

To determine whether to exempt a cell phone search from the warrant requirement, the Court balanced "the degree to which [the search] intrudes upon an individual's privacy" and "the degree to which [the search] is needed for the promotion of legitimate governmental interests." In concluding that the balance tipped in favor of protecting cell phone privacy, the Court detailed the types and extensiveness of private data stored on most cell phones, noting that "90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives---from the mundane to the intimate." Accordingly, because cell phones "hold for many Americans 'the privacies of life' . . . Our answer to the question of what police must do before searching a cell phone incident to an arrest is accordingly simple---get a warrant."

Riley is a significant decision from the Court that recognizes the substantial privacy interests at stake in our mobile devices. The implications of the decision may well extend beyond the Fourth Amendment realm and into questions of cell phone privacy in the workplace, including employee expectations of privacy in cell phones that are used for work-related purposes and company policies on employee cell phone privacy.


If you have further questions regarding any of these items, feel free to contact Chaim Book, or Todd Parker,    




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