GC New York 2009 Archives
FROM THE DECEMBER ISSUE
The SEC has weathered the storm and emerged not merely intact, but stronger. For a company under investigation, changes in approach within the SEC could provide opportunities for constructive dialogue and reasonable resolutions.
Employees' social networking activities have opened an even larger avenue through which investigators can find potentially relevant information, but accessing and understanding this evidence is often challenging.
FROM THE NOVEMBER ISSUE
While instant messaging predates the Internet, businesses are beginning to view it as a tool for enhancing work force productivity. But as with any type of communication, corporate use of instant messaging in the workplace raises a variety of issues.
The rigidity of CAFA's requirement that defendants must provide details about the membership of the class to government officials within 10 days of the filing of a proposed settlement, along with the inherent assumption that the information is always available, ignores the reality of many class action cases.
FROM THE OCTOBER ISSUE
When a tragedy strikes, companies must prepare to defend against lawsuits right away, but insurance companies usually take the position that their duty to defend isn't triggered until plaintiffs actually file suit. Avoiding common and costly mistakes will allow a company to maximize its ability to recover pre-litigation costs.
Although some cases over the past 17 years that have refused to recognize theories such as the action for "deepening insolvency" have left Delaware directors feeling a bit more confident of their ability to navigate treacherous financial waters free of judicial second-guessing, counsel should remind boards of the importance of considering creditors' interests as soon as the corporation becomes financially distressed, even though directors do not yet owe fiduciary duties to those creditors,.
FROM THE SEPTEMBER ISSUE
In our global community of increasingly aggressive law enforcement, it is imperative that communications and decisions regarding one nation's investigation be very carefully considered in the context of other possible actions.
An efficient and principled approach to contracting has never been more important. Rather than focus on the pressures the current economic climate is putting on supplier/customer relationships, use the conditions as the impetus for communications to ensure that both parties are getting the most they can from the relationship.
FROM THE AUGUST ISSUE
Liability and Exposure
Although no new claim trends against in-house counsel have emerged in 2009, an unemployment rate of 9.5 percent, the liquidity crisis, congressional investigations, the collapse of industry giants, massive frauds via Ponzi schemes, regulations to help the planet "go green," shrinking legal departments, pandemics, an explosion of online modes of communication, and new rules for a broad cross-section of industries all affect the ways in which in-house counsel practice law now and into the sustainable future.
Steps lenders and borrowers should take when signs of the borrower's deteriorating financial situation appear and, if the lender and borrower agree to a consensual restructuring of the loan, what each party should look for in negotiations.
FROM THE JULY ISSUE
Insurance and Investigations
During these challenging economic times, paying for mounting legal fees and costs associated with responding to subpoenas and investigations is a substantial issue for many companies. Whether insurance coverage is available for those costs almost always boils down to whether or not the subpoena comes within the policy's definition of a "claim." Although insurers frequently assert that a subpoena does not constitute a "claim," decisions by courts that have addressed this issue vary.
Marketing and Labeling
Going green is becoming good business. The trouble is that there is no real definition of what constitutes "green," nor are there reliable measuring sticks available to sort out products and services from companies actually making the effort to be environmentally responsible and those that only claim to be eco-friendly.
FROM THE JUNE ISSUE
In this new economic reality, as companies consider developing the typically less-expensive non-traditional marketing and promotional campaigns, they should be aware that there is a wide array of issues to consider (some old and some new) including intellectual property, clearance and claim substantiation rules and other laws and regulations.
A pair of recent decisions on accountants' liability claims arising from the Refco bankruptcy show that early fears that the Second Circuit's CBI decision would make "Wagoner Rule" dismissals impossible at an early Rule 12 stage, before a full plenary factual inquiry into management's subjective intent, were overblown.
FROM THE MAY ISSUE
Any e-discovery crisis will undoubtedly lead to a sit-down between a company's GC and chief technology officer, but if a company is serious about dealing with e-discovery and record-management risk over the long term, an ad-hoc group dealing with the day's crisis doesn't work; the company will just lurch to the next e-discovery problem. The twist is to turn the crisis meeting into a working group comprised of key legal and IT professionals that meets regularly throughout the year, a group whose formality and structure lead to accountability and whose existence will demonstrate good faith to the court.
As federal regulators ramp up enforcement activity in areas as varied as immigration law and environmental law, the creation and active implementation of an effective internal compliance program is an essential protection for any company that could face investigation. The Federal Energy Regulatory Commission is no different from other regulators, having stated that the primary mitigating factor that it will consider when assessing penalties for violations is an effective compliance program. In its Policy Statement, FERC identified the four factors that it considers important in establishing a successful compliance program.
FROM THE APRIL ISSUE
Two recent decisions alter the landscape for New York City workplace harassment law: one holds that the long-standing "severe and pervasive" federal standard for determining whether there exists a hostile work environment does not apply to claims brought under the City Human Rights Law; the other, that New York City employers accused of sexual harassment are not entitled to an affirmative defense under which there is no employer liability where the plaintiff unreasonably fails to utilize an existing internal complaint investigation and resolution process.
The perception of excessive fees can grow from the same fundamental flaws that affect the more traditional attorney-client relationship: poor communication about fees and staffing; the lack of meaningful consideration of alternatives to pure hourly rate arrangements; the selection of a law firm without a focus on most of the particular lawyers who would be involved; insufficient descriptions on bills of work performed; and a lack of proper incentives.
FROM THE MARCH ISSUE
Like it or not, lawyers involved in e-discovery matters must become project managers, helping clients to select and supervise vendors of e-discovery services, from simple photocopying, to forensic analysis, to data retrieval and production, to expert testimony on the adequacy of e-discovery efforts. A few key steps can help ensure such projects proceed successfully.
Thanks to continuing turmoil in the economy, pricing for all types of executive liability insurance will continue to rise, with insurers pulling back on limits and capacity, and being far more particular about whom they are willing to insure. Companies are already discovering that securing and negotiating coverage in this market calls for new strategies.
FROM THE FEBRUARY ISSUE
Given the scale of the current upheaval, it may be time to rethink the way your law department operates. One area that's ripe for simplification is the process your company uses in drafting (based on templates), negotiating, signing, archiving, and monitoring performance under a high volume of commercial contracts: an essential process that can require commitment of resources on a grand scale, particularly when it's handled inefficiently.
A conversation with Rick Palmore, executive vice president, general counsel and chief compliance & risk management officer of General Mills Inc., who has led a renewed effort to increase diversity within the legal profession. In creating a new Call to Action, he urged corporate signatories to take their commitment to diversity beyond the "disappointing plateau" that had been reached.
FROM THE JANUARY ISSUE
Over the judges' bench in the Moot Courtroom at the Cornell Law School is the famous legal maxim: "The Law must be stable, yet it cannot stand still." That maxim, of course, is the very embodiment of the common law - wise and sober judicial precedent, built upon earlier, wise and sober judicial precedent. But it does not always work that way. Case in point: Niesig v. Team I.
Although many emerging market countries are making bona fide efforts to reduce the barriers to fair foreign trade and are actively pursuing foreign investment opportunities, U.S. companies should not expect a quick transformation away from the "accepted practices" of doing business that have been firmly in place, in some instances for literally thousands of years.