The Investors’ Control of Their Investment Advisers. Who Has the Final Word?

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel discusses an emerging issue affecting financial advisers—when a client may exercise control over the actions of the adviser. Frankel relates the story of an investment adviser that did not follow the client’s orders to cease certain investments, at a cost of almost $5 million to the client. As Frankel explains, the Securities and Exchange Commission (SEC) got involved, resulting in the investment adviser’s settlement for a significant payment to the client and other conditions.

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People v. Francis

Citation: 2020 NY Slip Op 00996

Opinion Date: February 13, 2020

Judge: Garcia

Areas of Law: Criminal Law

The Court of Appeals affirmed the judgment of the Appellate Division affirming the judgment of Supreme Court denying Defendant's motion to set aside his sentence of six months of incarceration, imposed upon his guilty plea to third-degree criminal possession of a weapon, on the ground that the sentence was illegally lenient, holding that the denial of Defendant's motion was not reviewable. Over a fifteen-year period, Defendant committed numerous felonies, some of them violent, yet avoided enhanced sentences. In 1997, Defendant was sentenced as a persistent violent felony offender based upon his criminal convictions in 1988 and 1991. In 2015, Defendant collaterally moved to set aside his 1988 sentence of six months of incarceration under N.Y. Crim. Proc. Law 440.20 on the ground that the sentence was illegally lenient. Supreme Court denied the motion. The Appellate Division affirmed, holding that because Defendant was not adversely affected by the error in sentencing on the 1988 conviction, his motion must be rejected without consideration of its merits. The Court of Appeals affirmed, holding that when a defendant moves to vacate a sentence on the ground that it is illegally lenient, denial of the motion is not reviewable because any purported error in the proceedings has not adversely affected the defendant.

Leggio v. Devine

Citation: 2020 NY Slip Op 00999

Opinion Date: February 13, 2020

Judge: Wilson

Areas of Law: Government & Administrative Law, Public Benefits

The Court of Appeals confirmed the determination of a local services agency, confirmed by a state agency, that child support payments a parent receives, made for the benefit of her five children living at home, are included as "household" income in deciding whether the household is eligible for benefits under the Supplemental Nutrition Assistance Program (SNAP), holding that, for the purposes of SNAP, child support directly received by a parent is household income, even if it is used for the benefit of an ineligible college student living at home. The Suffolk County Department of Social Services (DSS) discontinued the household's benefits because its income exceeded the upper limit for the household. Because the two college children were ineligible for SNAP, DSS did not count them as household members but did include the full amount of child support in its calculation of household income. The mother appealed, arguing that the college children's pro rata share of the child support payment should be excluded from household income, rendering the household SNAP-eligible. The Office of Temporary and Disability Assistance (OTDA) upheld the determination. The Appellate Division confirmed the OTDA's determination. The Court of Appeals also confirmed, holding that the OTDA's interpretation of the relevant federal statutes was not irrational and was entitled to deference.

Bohlen v. DiNapoli

Citation: 2020 NY Slip Op 00997

Opinion Date: February 13, 2020

Judge: Fahey

Areas of Law: Labor & Employment Law

The Court of Appeals upheld a determination of the Comptroller's Office that a Port Authority compensation adjustment program artificially enhanced certain employees' final average salaries so as to increase their retirement benefits, holding that substantial evidence supported the Comptroller's determination. The Comptroller concluded that the payments made pursuant to the compensation adjustment program were not pensionable compensation under N.Y. Retire. & Soc. Sec. Law 431(3), which provides that "any additional compensation paid in anticipation of retirement" must be excluded from final average salary calculations. Petitioner employees commenced this N.Y. C.P.L.R. 78 proceeding challenging the determination of the Comptroller's Office. The Appellate Division annulled the Comptroller's determination and granted the petition, concluding that the payments did not artificially inflate Petitioners' final average salary in anticipation of retirement. The Court of Appeals reversed, holding that there was substantial evidence to support the Comptroller's determination that the Port Authority's compensation adjustment program constituted "additional compensation paid in anticipation of retirement."