red herring

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Red Herring has two distinct meanings in the law:

(1) The primary meaning, in a legal and rhetorical context, is a legal or factual issue that is irrelevant and used to divert attention away from the main issues of a case. (The origin of the term is derived from the practice of training hunting dogs by dragging cured herrings across the scent trail of a fox.) For example, in U.S. v. Martinez, the Second Circuit accepted the government’s characterization of defendant’s baseless argument that government witnesses were simply “rats… [with] the most incredible motive to lie” as “distractions and red herrings.”

(2) The term may also refer to the first step in the procedure for a governmental approval of apartment conversion plans. For example, the Southern District of New York, in Banque Arabe Et Internationale D’Investissement v. Maryland Nat. Bank, described this stage, where:

In the red herring stage, the sponsor submits a draft proposed offering plan, or “red herring”, to the Department of Law and simultaneously provides copies of the red herring to existing tenants of the building. The Department of Law reviews the contents of the red herring and either accepts the plan for filing, issues a deficiency letter to the sponsor, or rejects the plan for filing. The Department of Law is required to take one of these actions within six months of the red herring's submission. During the red herring stage, no advertising, offers, or sales can legally take place. If the Department of Law issues a deficiency letter, the sponsor is given an opportunity to cure the deficiencies. If the Department of Law rejects the red herring, a revised red herring must then be filed if the sponsor wishes to proceed with the conversion.


[Last updated in December of 2020 by the Wex Definitions Team]