In her Secured Transactions column, Barbara M. Goodstein discusses the recent 'Forest Capital v. Blackrock' case, which brought to the fore the tension between UCC Articles 8 and 9—articles that have not always meshed seamlessly when it comes to the duties of securities intermediaries.
One day after President-elect Donald Trump agreed to pay $25 million to settle lawsuits over Trump University, he posted on Twitter that the payment was a "small fraction of the potential award." But Jason Forge, one of three plaintiffs attorneys at San Diego's Robbins Geller Rudman & Dowd who was involved in the settlement talks, said the amount each class member can expect to receive is unprecedented.
Two Atlanta lawyers have asked the U.S. Supreme Court to overturn a $2.7 million attorney fee sanction against Goodyear Tire & Rubber Co. awarded by the Ninth Circuit, saying the punishment is excessive and violates established rules for making such awards.
In his Corporate Securities column, John C. Coffee Jr. of Columbia University Law School examines executive compensation and clawback provisions, writing: The case for broad clawbacks comes into clearer focus when one looks closely at a series of recent corporate scandals, which each raise the same jaw-dropping question: What were those guys thinking?
The Delaware Court of Chancery appears positioned to once again decide whether to keep afloat a once-promising multibillion-dollar merger that has since struck the rocks in a pair of dueling breach of contract lawsuits.
Employment Issues columnist Philip M. Berkowitz discusses a risk alert released by the SEC Office of Compliance Inspections and Examinations on Oct. 24 warning that the agency "is reviewing a variety of documents," including compliance manuals, codes of ethics, employment agreements, and severance agreements, for language that is contrary to SEC regulations on disclosure of information in pursuit of whistleblower claims. This includes policies that would prohibit disclosures of confidential information and require employees to notify or obtain consent from the employer prior to disclosing confidential information. The commission, he writes, is going after companies that have internal policies, practices or agreements that contain offending language.
At issue in the consolidated cases 'Bank of America v. Miami' and 'Wells Fargo v. Miami' is a threshold question of standing, which does not often make headlines but is a crucial factor in gaining access to the courts for plaintiffs seeking redress from corporations. Rec
Brian Parsons has handled some big litigation assignments since joining the law department of Macy's Inc. in 2010, including appellate oral arguments and a deposition of a class representative in a nationwide class action. It's the kind of work often done by seasoned law firm partners, Parsons acknowledges.
The Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice have issued guidance signaling their interest in further cracking down on companies that make agreements with others that have the effect of limiting employees' mobility or keeping their wages down.
In his Corporate Crime column, William F. Johnson writes: To maintain maximum protection of legal privilege and confidentiality, corporations and their counsel would be well-advised to take a hard look at their disclosures to regulators and monitors, as recent court decisions have indicated that even compelled, narrowly-tailored disclosure could erode the expectations of privilege and confidentiality historically associated with such disclosures.
Appellate courts have wrestled for more than 20 years over where to draw the line between a copyrightable design and a useful article's function. The Supreme Court did not appear to be having it any easier on Monday.
In her Distress Mergers and Acquisitions column, Corinne Ball of Jones Day discusses the recent Second Circuit decision in 'Chesapeake Energy v. Bank of New York Mellon Trust', writing: 'Chesapeake' involved a dispute between bondholders and the issuing company regarding whether a "make whole" or pre-payment premium was required when the bond issue was refinanced. While the issue was discreet, the efficacy of a resort to the court for a speedy determination is now subject to question if there is an appeal pending—even one without a stay pending appeal.
A $4 million settlement this year between a group of female in-house claims litigators and Farmers Group Insurance served to highlight that gender pay inequity—and court actions to challenge it—are increasingly found among the upper echelons of Corporate America.
The AARP filed a lawsuit in federal court in Washington on Monday seeking to enjoin final rules for workplace wellness programs recently issued by the Equal Employment Opportunity Commission, claiming they allow employers to illegally access private health information of employees and use the data in a potentially discriminatory manner.
Elliot Pisem and David E. Kahen of Roberts & Holland discuss surprising and unfavorable results recently stemming from Internal Revenue Code §1234A, which governs the character of gain or loss attributable to the cancellation, lapse, expiration, or other termination of a right or obligation with respect to "property which is (or on acquisition would be) a capital asset."
The Equal Employment Opportunity Commission unveiled its latest strategic plan Monday, which will prioritize three new pieces of the agency's enforcement agenda: tackling nontraditional employment, protecting Muslims and Sikhs and ensuring the fairness of data-driven employment screening tools.
A lawsuit in North Dakota federal district court could provide an early test of the reach of a federal appeals court decision that confronted what the judges called the “massive, unchecked power” of the Consumer Financial Protection Bureau.
Corporate Litigation columnists Joseph M. McLaughlin and Yafit Cohn provide insight from the case 'SEC v. Jensen', where the U.S. Court of Appeals for the Ninth Circuit provided needed guidance on the scope of distinct requirements under the Sarbanes-Oxley Act—the certification requirement and the clawback provision.
The U.S. Securities and Exchange Commission saw a record number of enforcement actions this past fiscal year, a sign the commission is looking beyond headline-grabbing cases involving hundreds of millions of dollars, according to one attorney.
U.S. Justice Department lawyers, repudiating the misconduct allegations that Aetna Inc. and Humana Inc. raised in the government's blockbuster antitrust suit, accused attorneys for the health insurers of a "transparent" push to unravel the case before it's ever presented to a judge.
In her Secured Transactions column, Barbara M. Goodstein, through a discussion of a recent decision in the 'Aéropostale' case in the Southern District of New York, highlights issues and risks that arise when non-traditional lenders find themselves entangled with the debtor in more ways than just debt financing.
The Illinois treasurer's office suspended billions of dollars in trading activity with Wells Fargo & Co. on Monday, becoming the second state to cut off business with the bank after its $185 million settlement over charges it created as many as 2 million unauthorized accounts.
The harrowing robbery of Kim Kardashian in Paris, Jesse James’ historical bank heists and even notorious bank robber Willie Sutton played into U.S. Supreme Court arguments on Tuesday as the justices wrestled with the level of intent needed to prove federal bank fraud.
In a request for sanctions filed in Washington federal district court, Aetna and Humana lawyers alleged the government withheld about 1 million documents. And they argued the government's alleged obstruction has "gravely undermined" the ability of the health insurers to mount a defense against claims from antitrust enforcers that Aetna's acquisition of Humana would drive up the price of insurance.
Daniel A. Fliman and Isaac S. Sasson provide an introduction to ad hoc committees, including insights into their benefits and operations, and an overview of certain legal considerations unique to such committees.
As business disputes grow in size and complexity, would a specialized court with judges who are experts in the matters, and who could speed up rulings and appeals, be a good idea in the United States? That was among the topics at a discussion given last week by The Hon. Mr. Justice Blair at the Times Square offices of Brown Rudnick.
State regulators, industry attorneys and vehicle manufacturers greeted the Federal Automated Vehicles Policy, published by the National Highway Traffic Safety Administration and U.S. Department of Transportation on Tuesday, as a positive step toward providing clarity and preventing an undesirable patchwork of local laws.
In their Corporate Governance column, David A. Katz and Laura A. McIntosh write: Overseeing FCPA compliance is no easy task. As a legal matter, boards are required to create and follow procedures designed to ensure compliance with applicable laws. Directors succeed in this task by fostering a culture of high ethical standards, by prioritizing compliance oversight, and often by personally investing time and effort in the company outside the boardroom.
In a win for Broadcast Music Inc. and the American Society of Composers, Authors and Publishers, a federal judge has shot down a recent determination from the U.S. Department of Justice that these performance rights organizations can't engage in so-called fractional licensing, which is crucial to their business model.
A new lawsuit against Samsung Electronics Co. alleges that the South Korean device maker had problems with exploding smartphone batteries even before the recent recall of its Galaxy Note 7, leaving at least one man with third-degree burns.
In his Corporate Securities column, John C. Coffee Jr. of Columbia Law School discusses the spread of "entrepreneurial litigation" to Europe, where major securities class actions have recently settled, and he writes that the most striking fact about those actions is the key organizational role in structuring them played by traditional American plaintiff law firms.
Loyal followers of Apple Inc. were excited last year when the company started a program that let them pay a little extra with the promise of getting the latest device each year. But now lawyers for a disgruntled subset of those consumers have sued Apple, saying they’ve been told to wait.
Whistleblower plaintiffs firm Phillips & Cohen announced Tuesday that Sean McKessy, the former chief of the U.S. Securities and Exchange Commission's Whistleblower Office, is joining the firm as a partner in Washington, D.C.
Applying a Delaware use of the business judgment rule, a Manhattan judge has dismissed a shareholder class action that alleged corporate breach of fiduciary duties connected to the 2015 merger of dry bulk shipping companies Baltic Trading Ltd. and Genco Shipping & Trading Ltd.
In his Corporate Crime column, Steven M. Witzel writes: In dealing with issues involving electronically stored information, Congress, courts and commentators are struggling to find the proper balance between preserving Fourth Amendment rights and providing effective tools for government investigations.
A former Monsanto Co. executive received a $22.5 million whistleblower award Tuesday for alerting U.S. securities regulators to improper accounting that inflated the agrichemical company's reported sales of Roundup, according to the lawyer who represented the tipster.
In her Distress Mergers and Acquisitions, Corinne Ball of Jones Day discusses a recent decision that established precedent for an emerging debtor that seeks insolvency relief locally to impose the local insolvency framework upon its financing affiliate, despite reliance upon a different jurisdiction for domicile and choice of law to enable such affiliate to raise capital from U.S.-based investors.
Four months after new rules adopted by the U.S. Department of the Treasury foiled Pfizer Inc.'s plans to acquire Allergan plc in a $160 billion tax inversion deal, the New York-based pharmaceutical giant has moved on to pick up a cancer drug maker with four Am Law 100 firms in tow.
A litigation funder facing a fraud investigation has asked a federal judge to rule that the U.S. Securities and Exchange Commission's administrative enforcement proceedings against unregulated parties are unconstitutional.
A federal appeals court panel on Friday upheld the federal government's seizure of more than $75 million in overseas assets from the founders of Megaupload Ltd., a now-defunct file-sharing site accused of massive copyright infringement.
U.S. securities regulators on Tuesday punished another company for using severance agreements to restrict departing employees from pursuing whistleblower rewards, a fresh warning to employers, following a similar action last week, not to interfere with the path of would-be tipsters.
In their Corporate Litigation column, Joseph M. McLaughlin and Yafit Cohn write: Where the right to advancement of legal fees is provided in both corporate bylaws and an indemnification agreement, and the scope of the advancement rights provided therein differs, the question arises whether the two agreements should be read together or separately. A recent Delaware Court of Chancery opinion provides guidance.
A Delaware federal judge has signed off on automaker Jaguar Land Rover North America's request for more than $2 million in "exceptional case" attorney fees and expenses over a patent infringement case that was deemed "objectively baseless."
A federal judge Tuesday dismissed a shareholder fraud case against renewable energy company SolarCity Corp., which is on the cusp of a merger with Tesla Motors, after lawyers at Pomerantz failed for a third time to make claims stick.
In her Secured Transactions column, Barbara M. Goodstein discusses the Model Intellectual Property Security Agreement and writes: While the MIPSA is definitely a step in the right direction, there remains an overriding need for reform through federal legislation to resolve the uncertain boundaries between IP law and Article 9.
OmniVere Holding Co. has won its bid to move a fraud suit by e-discovery competitors from Delaware federal court to New York's Southern District, where the parties are already locked in a messy and convoluted legal battle.
"The writing on the wall is not enough," Judge Ilana Rovner wrote of claims of discrimination based on sexual orientation under Title VII of the Civil Rights Act of 1964. "Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent."
Volkswagen A.G. and four of its senior executives have moved to dismiss claims brought by U.S. investors over the damage its emissions scandal has had on share values, arguing in their brief that the case "exceeds the territorial reach" of U.S. securities laws.
David A. Katz and Laura A. McIntosh discuss director tenure, or "board refreshment," and write: The best way to achieve healthy board turnover is not term limits or retirement ages but a robust director evaluation process combined with an ongoing director succession process.
Former New York Yankees shortstop Derek Jeter will have to defend against allegations that he defrauded RevolutionWear Inc., which alleges he fraudulently induced the luxury underwear maker to bring him on board with a 15 percent ownership stake by hiding obligations under his promotional contract with Nike Inc.
U.S. District Judge Charles Breyer of the Northern District of California expressed satisfaction with elements of the settlement that will allow owners of VW vehicles with 2.0 liter engines to have their cars fixed or bought back by the automaker, as well as component directed at ameliorating the environmental impact of the scandal.
In his Corporate Securities column, John C. Coffee Jr. of Columbia University Law School addresses the questions: Is a "takeover" or other control change at Internet Corporation for Assigned Names and Numbers (ICANN) likely, or even feasible, as a result of the proposed restructuring of ICANN? Can China, a private entrepreneur, or anyone else, "steal" control of ICANN?
Attorneys for a former Goldman Sachs computer programmer are appealing the Delaware Court of Chancery's ruling last week that blocked their client's bid to recover legal fees for defending himself against charges of stealing investment bank source code.
In this year's showdown between Apple Inc. and the DOJ, government lawyers invoked a centuries-old law to argue that a federal judge had the power to force the tech company to unlock a terror suspect's iPhone. A pharmaceutical case in Washington is now highlighting the scope of the All Writs Act as a judge navigates a fast-paced, multibillion-dollar dispute over generic drugs.
Winning a lawsuit and being awarded a large sum of money is not necessarily cause for celebration, according to a new report. In fact, companies are likely losing out on billions of dollars because of unenforced judgments.
In his Employment Issues column, Philip M. Berkowitz writes: It is essential for counsel and human resources executives advising banks to become familiar with the "Heightened Standards" issued by the Office of the Comptroller of the Currency for certain banks in more than a passing way.
The U.S. Justice Department is urging a Washington federal judge to reject a challenge to a sweeping new rule that requires investment advisors to work in their clients' best interests—a heightened standard aimed at protecting retirement savers from billions of dollars in fees.
The long-awaited sale of the Ultimate Fighting Championship was officially announced Monday morning, with eight high-powered law firms grabbing roles on the largest sports organization sale in history.
A federal appeals court in Washington on Tuesday refused to revive Tennis Channel Inc.'s claims that Comcast Cable Communications' video programming distribution discriminates against the sports network.
In his Corporate Crime column, William F. Johnson of King & Spalding reviews the pattern of recent FIRREA cases, examines the 'O'Donnell' decision and its potential effect on the trend of FIRREA enforcement, and offers insights for defense counsel.
Bonnie J. Roe of Cohen & Gresser discusses recent remarks from SEC Chair Mary Jo White, which were seen as a warning that the SEC had begun investigating unicorns (privately held companies with a valuation in excess of $1 billion) and the loftier ends of the venture capital market.
When San Francisco's board of supervisors passed an ordinance in June putting Airbnb on the hook for users who advertise rentals without registering with the city, the mayor's office warned of a "near-certain legal challenge." On Monday, Airbnb took San Francisco to federal court—the sharing company's first ride as a plaintiff.
Some general counsel in Silicon Valley question the need for the recent wave of salary hikes for associates at leading California firms. If firms raise rates now that they're paying associates more, these GCs say they'll have to reconsider how they assign out legal work.
In her Distress Mergers and Acquisitions column, Corinne Ball of Jones Day writes: Defaults on onshore and offshore obligations by companies in Greater China, as well as other Emerging Markets, have been increasing. Restructuring of this debt via a scheme of arrangement in tandem with a U.S. bankruptcy case may present an effective restructuring mechanism for Emerging Market enterprises.
In their Taxation column, David E. Kahen and Elliot Pisem of Roberts & Holland delve into two recent IRS Office of Chief Counsel memoranda concerning the disallowance as deductions under IRC §162(f) of amounts that would otherwise constitute ordinary and necessary business expenses, where the amount is a "fine or similar penalty paid to a government" and otherwise within the scope of that provision.