Precedent Setting Author?

As promised here is a new blog!!  Life can be very strange at times that is for sure.  Sometimes we do things or participate in things/events that don't seem to have any real significant meaning only to learn later on in life exactly how significant it is or was.  This is an example of that very thing, although I still dispute the amount of significance this has (despite what my beautiful wife says!)

In 2011 I co-authored an article (along with my boss and another co-worker) that appeared in the November/December issue of The Journal of Multi-State Taxation and Incentives.  The article was about New York's new discretionary tax incentives program which is called The New York Excelsior Jobs Program.  It took us probably 6 or 7 months to write because the article is very technical (and not terribly exciting) and it went through a number of revisions and edits before we submitted it to the publisher.  Unfortunately, I am unable to provide a link to the article because I don't believe it appears anywhere online.  If you want I can email you a copy for your reading pleasure.  I promise it will cure even the worst case of insomnia!

While it is always exciting to see something you have written appear in print (this was my third time being published) I didn't think it was anything to get too worked up about.  I mean it wasn't an earth shattering article that was going to change someone's life or anything.  It appeared in the Journal with limited (and that is being generous) fanfare, even here at the firm.

Thus it was with great surprise that last Sunday night while sitting on my couch watching The Killing (which looks to be an amazingly better show than last time around) I received an email indicating our article was cited in a recent court case (a fairly significant one at that!) In addition, myself along with my co-authors were cited in such a way that our article now has the weight of legal precedent and as an authority on how the Excelsior Program should be administered.

The case involved Fresh Direct and its recent move from Brooklyn to the Bronx which involved the securing of a very generous incentives package from New York State.  The whole project (i.e. moving to the Bronx) was highly controversial here in New York, especially after New Jersey got involved and tried to steal the project from New York by offering a very competitive package to lure Fresh Direct to Jersey City.

Eventually a "citizen's rights" group got together and sued Fresh Direct and everyone they could think about in New York State to prevent the move.  If New York City residents aren't good for anything else you can guarantee they will have no problem whining about something incessantly and then file a lawsuit over their perceived slight or offense.  As an example, residents of New York City have been bitching about the new bike sharing program here in the city (Citibikes) because it ruins the aesthetic look of their apartment building and it is going to drive down the price of their condo.  As if there aren't more important things to worry about!  Ugh! Okay sorry...I digress...back to the court case.

I won't bore you with all the details of the lawsuit but basically the plaintiffs brought the lawsuit under four different causes of action.  The fourth cause of action was a claim that Fresh Direct didn't qualify for the Excelsior program because it is a retailer (i.e. grocery store) and said industry is not "strategic industry" allowed to take advantage of the program.  However, as our article (and the program regulations) stated, it is not the industry of the parent company that is controlling, rather it is the type of industry/business that is going on at the specific site in New York.  In this case Fresh Direct was moving a distribution center to the Bronx. The regulations make it clear that a distribution center is a qualified industry as long as the taxpayer is creating enough jobs.  You can read more about it here.

The entire lawsuit was dismissed on all four causes of action.  Our article simply was used as precedence for dismissing this fourth cause of action.  However, it was very cool to see something that I didn't think was such a big deal used in a court case that was significant here in New York.

Not to be undone of course I am sure "Citizens Unite!" will appeal the decision and it will be interesting to see what the appeals court has to say about the District Court's decision.  The bottom line is that this project is badly needed as part of the economic development of the Bronx in an attempt to revitalize the area.  I would be shocked if the court reversed the decision but we will see!