Corporate Update

John C. Coffee Jr.

Lessons of DuPont: Corporate Governance for Dummies

By John C. Coffee Jr. |

In his Corporate Securities column, John C. Coffee Jr., the Adolf A. Berle Professor of Law at Columbia University Law School, analyzes some obvious truths that stand out in the recent battle between Trian Fund Management and DuPont that will apply to future contests.

Time Warner Cable's corporate headquarters are in the Time Warner Center at Columbus Circle.

Big Deals

By Tali Arbel |

As TV watchers increasingly look online for their fix, cable companies are bulking up. In the latest round, Charter Communications is buying Time Warner Cable for $55.33 billion, and executives say they're confident regulators will allow the creation of another U.S. TV and Internet giant.

David A. Katz and Laura A. McIntosh

Dealing With Director Compensation

By David A. Katz and Laura A. McIntosh |

In their Corporate Governance column, David A. Katz and Laura A. McIntosh of Wachtell, Lipton, Rosen & Katz discuss director compensation, which, due to a recent Delaware Chancery Court ruling, has become a topic that currently is facing an uncharacteristic turn in the spotlight.

Big Deals

The Ascena Retail Group is buying the owner of Ann Taylor and Loft in a deal valued at about $2.16 billion. Washington, D.C.-based Danaher plans to purchase Port Washington, New York-based filtration specialist Pall for $13.6 billion.

Wireless Companies to Pay $158M for Illegal Charges

By Jenna Greene |

The settlement with Verizon Wireless and Sprint Corp. for unauthorized third-party charges is much like the $112.5 million penalty T-Mobile USA Inc. paid in December and the $105 million hit against AT&T Mobility in October. But there's one big difference in the enforcement actions: the agency that brought the suit.

Lawyers and PR Strategy: The Privilege, and the Limits

By Philip M. Berkowitz |

In his Employment Issues column, Philip M. Berkowitz writes: Employment lawyers often advise on sensitive matters. But what if a matter is so sensitive, or electric, that it is likely to attract the attention of the press? Is formulating a public relations strategy the appropriate role of counsel? If counsel retains an expert to implement a public relations or other strategy, should the attorney-client privilege shield the advice from discovery?

Traders work at AOL's post at the New York Stock Exchange on Tuesday.

Big Deals

Verizon is buying AOL for about $4.4 billion, advancing the telecom's push in both mobile and advertising fields. Also, Alexion Pharmaceuticals Inc. will acquire Synageva BioPharma Corp. for $8.4 billion in a mix of cash and shares.

Steven M. Witzel

Private Equity Firms Under Increasing Regulatory Spotlight

By Steven M. Witzel |

In his Corporate Crime column, Steven M. Witzel writes: While it remains to be seen whether the government's focus on private equity will result in significant FCPA-related and other enforcement activity, it is clear that transparency throughout the private equity industry is a priority.

Dissenting SEC Commissioner Blasts Deutsche Bank Waiver

By Sue Reisinger |

An official with the U.S. Securities and Exchange Commission has criticized the agency's practice of waiving certain penalties for large corporations, and she publicly blasted Deutsche Bank AG for engaging in "nearly a decade of lying, cheating and stealing."

Apple Headquarters at 1 Infinate Loop.

Apple Hit With Patent Suit Over Health App

By Zack Needles |

A New Jersey software developer has filed a patent infringement suit over Apple Inc.'s recently introduced Health App and HealthKit products.

Mark Lemley, Stanford University, William H. Neukom Professor of Law

Circuit Signals Nuisance Settlements Should Factor in Fee-Shifting

By Scott Graham |

Two judges on the Federal Circuit seemed to suggest Monday that a patent owner's pattern of suing multiple parties and then settling for modest amounts—known as "cut and run" settlements—should be a factor judges consider when deciding whether to award attorney fees under the U.S. Supreme Court's 'Octane Fitness' ruling.

John Couriel and Megha Charalambides

Implications of Brazil's Anti-Corruption Movement

By John Couriel and Megha Charalambides |

John D. Couriel and Megha J. Charalambides write: Brazil's example demonstrates how, now more than ever, it is imperative that U.S. counsel to those embroiled in corruption scandals be mindful of cross-border asset seizure and recovery considerations in advising their clients.

Actos.

Takeda Pharmaceuticals Allocates $2.4B to Settle Actos Cases

By Amanda Bronstad |

Takeda Pharmaceuticals USA Inc. has agreed to pay $2.4 billion to settle lawsuits by 9,000 people alleging that the company failed to warn of bladder cancer risks from taking its Type 2 diabetes drug Actos.

FCC Resistance Doomed Comcast Deal, Lawyers Say

By Jenna Greene |

Facing stiff regulatory resistance, Comcast Corp. and Time Warner Cable Inc. are expected to pull the plug on their $45 billion merger more than a year after the deal was announced.

Corinne Ball

Risk Management in Exiting an Equity Investment: 'Tristar'

By Corinne Ball |

In her Distress Mergers & Acquisitions column, Corinne Ball discusses a recent decision in which the Ninth Circuit held that a creditor's debt claim that was based on a state court judgment should be subordinated because the judgment arose from a dispute years prior regarding the purchase of an equity interest.

Big Deals

By Jennifer Henderson |

Dozens of New York lawyers have landed lead roles on the dissolution of General Electric Co.'s financial unit in a bid by the industrial conglomerate to return $90 billion to shareholders.

Munchkin Loses Appeal in Diaper Pail Litigation

By Amanda Bronstad |

The U.S. Court of Appeals for the Ninth Circuit on Monday struck down attempts by the maker of the Arm & Hammer Diaper Pail to revive a $13.5 million false advertising verdict against rival Playtex Products LLC, maker of the Diaper Genie.

Wal-Mart Wins Gun Case With Reversal by Third Circuit

By Saranac Hale Spencer |

The court reversed a decision from the District of Delaware that had ruled Wal-Mart would have to include in its annual report to shareholders a proposal from one of its shareholders, an Episcopal church in New York that filed under the name Trinity Wall Street, that would ask them to vote on putting the oversight of policies concerning the sale of certain merchandise, including guns with high-capacity magazines, in the hands of the board.

SEC Settles With Former Freddie Mac Executives

A former CEO and two former top executives at mortgage giant Freddie Mac have settled a government lawsuit. They were accused of understating the amounts of high-risk mortgages that Freddie held just before the housing bubble burst in 2007.

David E. Kahen and Elliot Pisem

Inclusion of Refundable Tax Credits in Income

By David E. Kahen and Elliot Pisem |

In their Taxation column, David E. Kahen and Elliot Pisem discuss a recent decision of the Tax Court, which concluded that state tax credits that are not needed to reduce actual state tax liabilities to zero and that are nevertheless "refundable" create accessions to wealth required to be included in federal taxable income.

FCC Fines AT&T $25M in Agency's Largest Cyber Enforcement

By Sue Reisinger |

In addition to paying a record $25 million penalty, AT&T Services Inc. must hire a senior compliance officer, conduct a privacy risk assessment and undertake several other reforms after it settled a cyberbreach case involving personal data of nearly 280,000 customers.

Joseph M. McLaughlin

Standing to Bring Consumer Data Breach Claims

By Joseph M. McLaughlin |

In his Corporate Litigation column, Joseph M. McLaughlin writes: More and more companies have been experiencing data breaches, and predictably, consumers who believe their information was compromised have been suing the breached companies. But courts have been grappling with a threshold question: Have the consumer plaintiffs suffered an actual harm sufficient to establish standing to sue in federal court under Article III of the Constitution?

Big Deals

By Michelle Chapman and Candice Choi |

Some of the most familiar names in ketchup, pickles, cheese and hot dogs are set to come under the same roof after H.J. Heinz Co. announced plans on March 25 to buy Kraft and create one of the world's largest food and beverage companies.

Barbara M. Goodstein

The Dilemma of Transferability of Mortgage Loans

By Barbara M. Goodstein |

Barbara M. Goodstein discusses the issues presented in transferring mortgage loans in the context of current financing structures.

Judge Kaplan

Judge Trims 'Unreasonably High' Requested Fee Award

By Scott Flaherty |

A federal judge on Tuesday awarded $28.5 million in fees to plaintiffs lawyers who negotiated a settlement with underwriters of IndyMac mortgage-backed securities, but only after questioning how long the lawyers worked on the case and cutting a substantial slice from their "unreasonably high" requested award.

David A. Katz and Laura A. McIntosh

The Unintended Consequences of Proxy Access Elections

By David A. Katz and Laura A. McIntosh |

In their Corporate Governance column, David A. Katz and Laura A. McIntosh of Wachtell, Lipton, Rosen & Katz discuss the proliferation of proxy access proposals and write that it is very much an open question whether proxy access will become an established part of U.S. corporate governance.

John C. Coffee Jr.

Delaware Throws a Curveball

By John C. Coffee Jr. |

In his Corporate Securities column, John C. Coffee Jr. discusses the Corporation Law Council's recommendation of statutory amendments to prohibit "loser pays" fee shifting bylaws and charter provisions. Although the Council usually dictates corporate law legislation in Delaware, lobbyists are at work on both sides, and the outcome is uncertain.

Irving Picard

Trustee for Madoff Victims Urges Court to Overturn Circuit

By Larry Neumeister |

The trustee recovering money for victims of Bernard Madoff's epic fraud asked the U.S. Supreme Court Tuesday to overturn a ruling he says may prevent the recovery of nearly $4 billion, reward those who unwittingly profited from the Ponzi scheme at the expense of those who did not, and have far-reaching effects for future victims of financial frauds.

SEC and EEOC's Interest in Confidentiality Agreements

By Philip M. Berkowitz |

In his Employment Issues column, Philip M. Berkowitz writes that notwithstanding their differences in enforcement technique, the SEC Office of the Whistleblower and the EEOC share an interest in assuring that employers not restrain employees and other protected individuals from reporting alleged unlawful activities to either agency.

Pharmacyclics' main product, the cancer drug Imbruvica

Big Deals

By Jennifer Henderson |

Biopharmaceutical company AbbVie Inc. will buy Pharmacyclics, which specializes in cancer treatment, for $21 billion.

Jason Derulo.

Antitrust Hearing Pits Songwriters Against Consumers

By Mike Sacks |

For just over two hours on Tuesday, songwriters and those who profess their best interests had an audience at the Senate, but their messages were hardly harmonious.

Richard Cordray.

Study Questions Value of Consumer Arbitration Contracts

By Jenna Greene |

For years, businesses have argued that mandatory arbitration is good for consumers, that it’s faster and cheaper and the outcome is as good or better than going to court. A new study by the Consumer Financial Protection Bureau contradicts many of those claims.

William F. Johnson

High-Frequency Trading: Enforcement Trends Emerge

By William F. Johnson |

In his Corporate Crime column, William F. Johnson, a partner at King & Spalding, writes: A review of recent actions related to high-frequency trading confirms the uncertainty of the role of law enforcement, but also suggests an emerging trend.

<b>Lost Case:</b> A federal judge rejected the EEOC’s challenge to CVS Pharmacy’s severance policy.

EEOC Effective Despite Fewer Cases, Lower Penalties, Lawyers Say

By Jenna Greene |

The U.S. Equal Employment Opportunity Commission has seen a sharp decline in the number of lawsuits filed and amount of penalties collected last year, but officials and the defense bar agree that the numbers don't tell the whole story.

Corinne Ball and Jessica Kastin

'Tackett' Reverses Precedent in the Labor, Retiree Arena

By Corinne Ball and Jessica Kastin |

Corinne Ball and Jessica Kastin of Jones Day write: In 'Tackett', the Supreme Court overruled long-standing precedent in the Sixth Circuit, which will likely make it easier for employers and acquirors to defeat arguments that retirees are entitled to lifetime health benefits.

Big Deals

By Alex Veiga |

Canadian drugmaker Valeant Pharmaceuticals International Inc. has agreed to buy Salix Pharmaceuticals Ltd. for about $10 billion in cash.

Judge Preserves Retaliation Claim of Ex-Bank Analyst

By Scott Flaherty |

Lawyers at Gibson, Dunn & Crutcher were unable to end retaliation claims by a former UBS AG research analyst who alleges he was pressured to write overly rosy reports about the bank's commercial mortgage-backed securities.

Miguel Estrada.

Tobacco Companies Fight Court-Ordered Health Warnings

By Zoe Tillman |

A federal appeals court on Monday questioned whether a judge went too far in ordering tobacco companies to pay for public notices declaring that the cigarette makers "deliberately deceived the American public."

David E. Kahen and Elliot Pisem

'MoneyGram' Tackles Definition of 'Bank'

By Elliot Pisem and David E. Kahen |

In their Taxation column, Elliot Pisem and David E. Kahen, members of the law firm of Roberts & Holland, discuss a recent Tax Court case that interprets and applies the statutory definition of "bank" in the context of special provisions providing liberal rules under which "banks" may claim deductions for bad debts.

Litigation Funder in Ecuador Case Settles With Chevron

By Scott Flaherty |

A key financial supporter of litigation claiming that Chevron Corp. damaged the Amazon rainforest in Ecuador has renounced his association with the case.

Ex-Goldman Programmer Alleges Malicious Prosecution by FBI

By Charles Toutant |

A former Goldman, Sachs & Co. vice president who was accused of stealing computer code from the company claims in a suit that the FBI put his ex-employer’s interests ahead of the interests of justice by maliciously prosecuting him.

Circuit Finds Allstate Offer to Workers Was Valid in EEOC Case

By Saranac Hale Spencer |

A company can fire its employees and offer them their jobs back as independent contractors under the condition that they drop any claims—including discrimination claims—they may have had against the company, the Third Circuit has ruled.

Bank of America Can't Dodge $1.27B Countrywide Verdict

By Scott Flaherty |

Southern District Judge Jed Rakoff told Bank of America Corp. Tuesday that it "utterly failed" to offer a compelling reason to retry a mortgage fraud case that put the bank on the hook for $1.27 billion.

<b>EDITH RAMIREZ:</b>

Lawyers Search for Insight on Enforcement Plans in FTC Report

By Jenna Greene |

With future legal battles over security and privacy all but certain, lawyers say the Federal Trade Commission's new report on the "Internet of Things" provides helpful guidelines, but few hard and fast answers.

Van Beckwith of Baker Botts

Baker Botts Derails $1.37B Gazprom Case

By David Bario |

In the middle of a $1.37 billion trade secrets trial against Russian oil giant OAO Gazprom, plaintiff Moncrief Oil International Inc. abruptly agreed to drop the case after Gazprom's lawyers at Baker Botts uncovered evidence that a key document in the trial had been faked.

Barbara M. Goodstein

The New York UCC Comes of Age: Part II

By Barbara M. Goodstein |

In her Secured Transactions column, Barbara M. Goodstein, a partner at Mayer Brown, discusses amendments to Articles 1, 7 and 9 contained in the 2014 Modernization Act and focuses on non-uniform provisions, including the transition provisions (or lack thereof) for the Act.

David A. Katz and Laura A. McIntosh

Engagement and Activism in the 2015 Proxy Season

By David A. Katz and Laura A. McIntosh |

In their Corporate Governance column, David A. Katz and Laura A. McIntosh of Wachtell, Lipton, Rosen & Katz write: As the 2015 proxy season approaches, a counter-current of high-profile activist aggression—particularly aimed at boards of directors—runs alongside the dominant theme of cooperation and engagement.

Report Says Securities Class Actions Fizzled in 2014

By Amanda Bronstad and Scott Flaherty |

Securities class action filings rose slightly from 2013 to 2014, but the cases involved some of the smallest investor losses on record as companies in the S&P 500 index skirted much of the litigation, according to a report released Tuesday.

Standard & Poors

S&P Settles With SEC, But Faces More Legal Challenges

By Jenna Greene and Scott Flaherty |

Although Standard & Poor's Rating Services last week paid nearly $80 million to settle charges by the SEC and state regulators that it misled investors by issuing inflated ratings, but its legal woes are far from over.

U.S. District Judge J. Paul Oetken

Judge Dismisses Suit Filed by Ex-Executives of Marsh & McLennan

By Julie Triedman |

A federal judge on Monday tossed a lawsuit filed by two former Marsh & McLennan Companies executives who were implicated in a major insurance bid-rigging investigation. The decision, which defense lawyers said may be the first of its kind in the Southern District of New York, signals that companies facing government probes can reasonably expect employees to cooperate with internal investigations even if they risk self-incrimination.

U.S. Fails in Bid to Set Deadline for Title VII Cases

By Saranac Hale Spencer |

The U.S. Department of Justice can't set a six-year deadline for federal workers to sue their employer for Title VII violations, the Third Circuit has ruled, finding that the specificity of the standards for filing a claim set forth in Title VII trump the more general rules set out in Section 2401 of Title 28 of the U.S. Code.

John C. Coffee Jr.

Federal Preemption and Fee Shifting

By John C. Coffee Jr. |

John C. Coffee Jr., the Adolf A. Berle Professor of Law at Columbia University Law School, writes: This issue of federal preemption will inevitably be litigated because, even if Delaware legislature acts to curb 'ATP Tour', issuers incorporated in other jurisdictions have already adopted such a provision.

Dish Wins Copyright Arguments in Dispute With Fox Broadcasting

By Scott Flaherty |

Dish Network LLC and its lawyers at Orrick, Herrington & Sutcliffe largely escaped Fox Broadcasting Co.'s copyright claims over technology that records network television and replays it commercial-free in an important early test of the U.S. Supreme Court's decision in 'American Broadcasting Companies v. Aereo.'

The MetLife building at 200 Park Ave.

MetLife Taps Two Firms for Federal Regulation Battle

By Scott Flaherty |

MetLife Inc. has enlisted Gibson, Dunn & Crutcher partner Eugene Scalia and Sullivan & Cromwell senior chairman H. Rodgin Cohen to lead its efforts in a first-of-its-kind lawsuit challenging the federal government's designation of the company as a "systemically important" financial institution subject to stricter regulation.

Steven M. Witzel

Grand Jury Practice, Protests and Reform

By Steven M. Witzel |

In his Corporate Crime column, Steven M. Witzel explains the history and purposes of the grand jury, highlights the differences between federal and New York state practice, addresses the prosecutor-law enforcement conflict issue and reviews the legislation designed to ameliorate it.

Coal mine.

Lawyers Debate Role of 'Conciliation' in Job Bias Cases

By Marcia Coyle |

Lawyers for the Obama administration and an Illinois mining company clashed sharply before the U.S. Supreme Court on Tuesday over whether federal courts should review employer claims that the federal officials failed to conciliate job bias charges as required by law.

Top 10 International Employment Law Issues in 2015

By Philip M. Berkowitz |

In his Employment Issues column, Philip M. Berkowitz writes: This past year brought to the fore some challenging international labor and employment law issues that are likely to grow in importance in 2015. Some of these issues became front-page headlines—the Sony Pictures data breach and the Volkswagen union drive in Tennessee, among others—while other developments illustrate the increasing strength of global unions and the ever-growing importance of corporate compliance.

Circuit Won't Rehear Travelers' $500M Asbestos Case

By Scott Flaherty |

Thirty years after asbestos liability drove Johns-Manville Corp. into bankruptcy, related litigation involving Travelers Indemnity Co.'s obligations to asbestos claimants may not be over.

National Labor Relations Board in Washington, D.C.

Business Groups Sue NLRB Over New Union Election Regulation

By Jenna Greene |

The U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Association of Manufacturers, the National Retail Federation and the Society for Human Resource Management filed suit to block a massive new regulation that speeds up and simplifies the process for holding union elections.

General Motors Headquarters in Detroit, Michigan.

Plaintiffs Culled, but Defect Claims Advance Against GM

By Amanda Bronstad |

A federal judge in New York has allowed a consolidated consumer class action to go forward against General Motors Co. over its ignition switch recalls, although on a limited basis.

David E. Kahen and Elliot Pisem

Income Classification Pitfalls for Executives of Startups

By David E. Kahen and Elliot Pisem |

In their Taxation column, David E. Kahen and Elliot Pisem of Roberts & Holland discuss a recent Tax Court memorandum decision that tackles various issues faced by key employees of startup businesses.

Lehman Trustee Takes Barclays Fight to the Supreme Court

By David Bario |

The long and tortured legal brawl over Barclays PLC’s firesale acquisition of Lehman Brothers’ brokerage business has finally arrived at the highest court in the land.

Big Deals

By Brian Baxter |

Phoenix-based PetSmart announced an agreement to sell itself for $8.7 billion to a consortium led by London-based private equity firm BC Partners.

Joseph M. McLaughlin

Pleading Corporate Scienter: Circuits Split on Standard

By Joseph M. McLaughlin |

In his Corporate Litigation column, Joseph M. McLaughlin writes that some circuits have adopted the view that scienter may be imputed to the corporation only where the person who made an alleged misstatement attributable to the company did so with knowledge of its falsity, while others have adopted a broader view of collective corporate scienter. A recent Sixth Circuit decision struck a middle ground.

High Court Justices Gingerly Debate Internet Sales Taxes

By Tony Mauro |

The U.S. Supreme Court on Monday scratched the surface of the looming battle over state taxation of Internet retailers and seemed troubled by what it saw.

Courts Seek Special Masters for Commercial Division

By Amaris Elliott-Engel |

The Office of Court Administration has taken the next step in an attempt to provide support for the motion-heavy Commercial Division.

CBS Deal Ends Blackout, Litigation Risk for Dish

By Lisa Shuchman |

After failing for two years to neutralize Dish Network's ad-skipping AutoHop feature in the courts, CBS reached a deal over the weekend that will keep the ads flowing.

<b>COSTLY:</b> Critics say “government overreach” too high a price for safety in NHTSA’s would-be plan to require vehicle-to-vehicle communications systems.

Vehicles-to-Vehicle Communication Stirs Privacy, Liability Debate

By Jenna Greene |

At first glance, it seems like an easy call: adopt technology that allows cars to "talk" to each other, averting more than 500,000 crashes and saving 1,000 lives each year. But a host of difficult legal issues threaten to stall a tentative proposal by the National Highway Traffic Safety Administration that would require new vehicles to come equipped with such communication systems by 2019.

Sirius Hopes New Legal Team, Old Case Law Can Undo Copyright Rulings

By David Bario |

Last month, Sirius XM Radio Inc. reacted to a string of courtroom losses by firing its law firms and bringing in new lawyers from O'Melveny & Myers. Since then the O'Melveny team has been fighting to reverse those losses, citing a 74-year-old ruling that they say is directly on point—even though their predecessors never mentioned it in their briefs.

Barbara M. Goodstein

'Momentive' Provides a Reminder About Intercreditor Agreements

By Barbara M. Goodstein |

In her Secured Transactions column, Barbara M. Goodstein discusses a very recent decision by Bankruptcy Judge Robert D. Drain on intercreditor agreements, worth reviewing for its rulings both on the interpretation of an intercreditor agreement, as well as on the meaning of the UCC term "proceeds."