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GC New York 2010 Archives

FROM THE DECEMBER ISSUE

Conflicts

Opposing Client's Subsidiary: Is It a Conflict of Interest?

By John F. Cambria and Michael P. De Simone

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.

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E-Discovery

A Team-Centric Model for Planning and Response

By Christopher Lang and Scott M. Giordano

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

Attorney-Client Privilege

The 'Gucci' Privilege Case: Context and Lessons

By Marshall Beil and Thomas E. Spahn

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.

E-Discovery

Urgent Need for Legal Hold Policies and Procedures

By Thomas W. Tobin and Daniel M. Braude

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

Securities

Postscript to 'Morrison v. National Australia Bank'

By George T. Conway III

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.

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Litigation

Whether to Negotiate When Claims Are Baseless

By Andrew M. Riddles and Sean E. Jackson

Assess management's attitude and decide what can reasonably be accomplished before negotiating with a plaintiff.

FROM THE SEPTEMBER ISSUE

Acquisitions

Purchasing Company's Assets Without Taking on Liabilities

By Judi Abbott Curry and Jessica Saunders Eichel

Notable exceptions to New York rules which must be considered when structuring an asset purchase agreement.

Investigations and Privilege

Rethinking Selective Waiver

By Robert W. Trenchard and Peter K. Vigeland

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

Insurance

Coverage for Defense Costs in Consumer Fraud Actions

By Robin Cohen, Keith McKenna and Sheri Hametz

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

Litigation

Food Litigation: The New Frontier

By Lauren J. Elliot and Richard A. Jacobsen

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

Narrow, Don't Abolish, FCPA Facilitating Payments Exception

By Joel M. Cohen and Adam P. Wolf

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

Privacy Policies

Emerging Privacy Issues in Bankruptcy

By Lisa J. Sotto, Scott H. Bernstein and Boris Segalis

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.

Discovery

How to Spend Less on Electronic Discovery

By Jeffrey S. Jacobson

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

Trade Secrets

Computer Fraud Act Aids in Trade Secret Protection

By Peter J. Toren

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.

Regulation

Ergonomics Back in the Game: OSHA's End Run on Congress

By James K. Vines and William Clarkson

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

Transactions

Special Committees: Process Makes Perfect

By Stephen Fraidin and Stefanie M. Wool

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.

Electronic Evidence

Avoiding Sanctions Over Duty to Preserve Evidence

By Michael L. Chartan and Brian J. Markowitz

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

Insurance

Protection for In-House Counsel Under the Microscope

By Susan F. Friedman

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.

Social Networking

Becoming Social: Issues in Creating Networking Sites

By Stephen W. Feingold and Barry M. Benjamin

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

Employment

Severance Releases and International Employees

By Donald C. Dowling Jr.

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.

Litigation

Clearing the Way to Work Effectively With Outside Litigation Counsel

By Robert W. Lehrburger and Robert W. Millen

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

Marketing to Kids in the Online Age

By Barry M. Benjamin

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.

Avoiding Purchase Price Adjustment Disputes

By George R. Zuber and Neal S. Barlia

Even the best "bargain" acquisition can become a financial drain and a distraction if the transaction leads to disputes.