GC New York 2010 Archives
FROM THE DECEMBER ISSUE
The issue of whether representing the opponent of a client's subsidiaries or affiliates is permissible has bedeviled lawyers, their clients, courts and commentators for years. Now the Second Circuit has entered the fray.
With litigation on the rise, the dangers from not being prepared with a repeatable, defensible response process are just too great.
FROM THE NOVEMBER ISSUE
The law has always taken a schizophrenic approach to the attorney-client privilege, which provides absolute protection when properly created and maintained, but is difficult to create, remarkably fragile, and easily lost.
An organization's ability to respond and react to its preservation obligations relies greatly on the education, training and compliance of its employees.
FROM THE OCTOBER ISSUE
The Supreme Court's holding on F-cubed actions was inevitable, and attempts to get around it, the most creative of which is becoming known as the "listed securities" theory, must fail as well.
Assess management's attitude and decide what can reasonably be accomplished before negotiating with a plaintiff.
FROM THE SEPTEMBER ISSUE
Notable exceptions to New York rules which must be considered when structuring an asset purchase agreement.
Investigations and Privilege
While the SEC and the DOJ have issued new policies prohibiting demands for privileged material under certain circumstances, the decision whether to waive and the scope of any such waiver exists in every investigation.
FROM THE AUGUST ISSUE
It is increasingly popular to bring suits alleging violations of state consumer fraud and deceptive trade practices statutes, which permit recovery of attorney's fees as well as damages. But just because a complaint alleges intentional conduct, a requirement under such statutes, does not mean that any injuries flowing from that conduct were not accidental and, therefore, potentially covered by insurance.
FROM THE JULY ISSUE
The success of consumer advocacy groups in having companies change their labels and campaigns based on unsubstantiated product health claims has emboldened the plaintiffs' bar. All indications are that this trend toward more challenges to health claims and more FDA enforcement of regulatory standards will continue unabated.
Foreign Corrupt Practices Act
While a growing chorus is calling for the elimination of the "facilitating payments" exception to the FCPA, a solution involving an outright FP ban is not the better course. Aspirationally, it is preferable for companies not to pay FPs. But theory must sometimes accommodate to reality.
FROM THE JUNE ISSUE
Too often companies make commitments regarding their information practices that fail to anticipate changes in business circumstances. A broad assertion in a privacy notice, which could limit or preclude a bankruptcy sale of customer lists, should raise red flags.
Just because data falls within the broad sweep of a litigation hold notice and will be preserved does not mean a company must necessarily collect and process it. By keeping irrelevant or duplicative material out of the vendor pipeline, companies can recognize significant savings.
FROM THE MAY ISSUE
Courts are increasingly reluctant to find that the CFAA is a replacement for a federal trade secrets act, even where the theft involves electronic information. General counsel should work toward increasing the possibility that a federal court will find jurisdiction under the CFAA in the unfortunate, but increasingly likely, event that an employee does steal a company's trade secrets.
Comfort-seeking keyboarders can buy ergonomic laptop mice, ergonomic desk chairs as well as ergonomic pens and coffee cups, but do they know the real power of the word?
FROM THE APRIL ISSUE
As private equity has become more prominent in the mergers and acquisitions market and transactions involving significant conflicts such as take-privates, controlling shareholder and management buy-outs have increased, the Delaware courts have had the opportunity to develop a body of case law regarding special committee formation and process.
In late 2009 a federal District Court sitting in Orlando sent shockwaves through the in-house general counsel world. The case, Swofford v. Eslinger, is the first reported case to sanction in-house counsel for spoliation of electronic evidence.
FROM THE MARCH ISSUE
As in-house counsel continue to be examined, many conclude that in order to counteract threats of personal liability, an additional buffer from regulators, shareholders, outside third parties, and the corporate employer may be necessary.
Once the decision is made to implement social media capabilities on a company's site, certain basic legal issues need to be addressed, including the potential liability of the Web site host for the actions and statements of users.
FROM THE FEBRUARY ISSUE
When two (or more) jurisdictions' employee-protection laws might possibly reach a single employee, a release tailored to the standards of just one of the jurisdictions leaves the employer exposed to a lawsuit filed in the courts of the other.
Beyond budgets, new software tracking systems and fixed fee arrangements, what role can in-house counsel play in maximizing the relationship with outside counsel?
FROM THE JANUARY ISSUE
Despite the law's passage over a decade ago, despite all of the attempted education, and despite all of the previous enforcement activities, companies are still getting into hot water over Children's Online Privacy Protection Act violations.
Even the best "bargain" acquisition can become a financial drain and a distraction if the transaction leads to disputes.