February 22, 2019

The Misunderstood but Critically Important Merger Clause

By: Timothy Murray , Murray Hogue & Lannis ONE TIME IN AN ARBITRATION, THE PLAINTIFF CLAIMED that my client, the defendant, breached an alleged oral agreement that my client denied entering into. It was undisputed that after the alleged oral agreement, the parties entered into a written contract that dealt with the same subject matter but that omitted the rights and obligations of the supposed oral agreement. The...

February 22, 2019

Restrictive Covenant and Trade Secret Misappropriation Claims: Key Initial Considerations and Tips for Seeking TROs and Preliminary Injunctions

By: Daniel Turinsky , Evan D. Parness , and Britt C. Hamilton , DLA Piper LLP (US) This article provides guidance on substantive and procedural considerations involved in pursuing temporary restraining orders (TROs) and preliminary injunctive relief to help protect employer trade secrets and enforce restrictive covenants against former employees. FOR EMPLOYERS, RESTRICTIVE COVENANTS HAVE BECOME a vital tool for protecting...

February 22, 2019

Extraterritorial Reach of U.S. Antitrust Laws

By: Abram Ellis , John Terzaken , and Jonathan Myers , Simpson Thacher & Bartlett LLP This article addresses the extraterritorial reach of U.S. antitrust laws—that is, their application to international trade or commerce—specifically discussing the interplay between the Sherman Act, which prohibits anticompetitive conduct, and the Foreign Trade Antitrust Improvements Act (FTAIA), which defines the Sherman...

February 21, 2019

Restrictions on Bank Affiliate Transactions: Federal Reserve Act §§ 23A and 23B and Regulation W

By: Eric S. Yoon , K&L Gates LLP This article covers Sections 23A and 23B of the Federal Reserve Act (FRA), which establish certain quantitative limits and other prudential requirements for loans, purchases of assets, and certain other transactions between a member bank and its affiliates. Regulation W, promulgated by the Board of Governors of the Federal Reserve System (Federal Reserve), implements Sections 23A...

February 21, 2019

Market Trends: Employee Stock Ownership Plans

By: Rebecca G. DiStefano and Jeffrey S. Kahn , Greenbert Traurig, P.A. This market trends article covers employee stock ownership plans (ESOPs), which are a combination of a tax-qualified retirement plan and a corporate finance tool, and addresses recent trends in ESOPs relating to the design and structuring of the transaction, setting the price of the ESOP shares, and governing the post-ESOP company. Although sometimes...

February 20, 2019

Seven Summary Judgment Survival Skills

By: Jim Wagstaffe and the Wagstaffe Group In federal and state court cases, the litigator’s survival kit frequently has as its principal tool motions for summary judgment. For defendants, the winning case strategy frequently involves executing the summary judgment escape plan to survive the costs and risks of litigation. Conversely, for plaintiffs, staying alive for settlement and trial is quite often all about...

December 19, 2018

Securities Regulation and Enforcement

By: David L. Kornblau and Gerald W. Hodgkins Overview The enforcement and regulatory priorities of the Securities and Exchange Commission (SEC) have begun to come into focus now that SEC Chairman Jay Clayton has been in office for nearly a year and a half. Courts have also issued decisions that will significantly affect future securities enforcement moving forward. This article discusses the U.S. Supreme Court’s...

December 19, 2018

Freedom of Information Act

By: Christine N. Walz, Cynthia A. Gierhart, and Madelaine J. Harrington The Freedom of Information Act (FOIA) is a federal statute that mandates public access to certain U.S. government and administrative agency records upon submission of a request to the appropriate federal agency. Under FOIA, any person is afforded access to federal agency records unless such records are exempt or protected from disclosure. Each federal...

December 19, 2018

Wetlands Regulations: Considerations for Project Developers

By: Mark A. Chertok and Elizabeth Knauer This article discusses considerations for developers contemplating the purchase or development of real property that contains or is likely to contain regulated wetlands. The presence of regulated wetlands on a site proposed for development can often present complications in terms of time and expense in securing permits as well as restrictions on the type or magnitude of development...

December 19, 2018

In-house Counsel as Gatekeeper: Wearing Many Hats; Weighing Multiple Risks

By: Devika Kewalramani IT IS NOT UNUSUAL FOR IN-HOUSE COUNSEL TO WEAR many hats in an organization’s business, legal, compliance, regulatory, risk management, or business development matters. Playing different internal roles can create possible risks for both in-house counsel and the organization that is advised by and employs in-house counsel. Some of these risks can range from potential violations of the rules...

December 19, 2018

Drafting Exclusion of Consequential Damages Clauses

By: Timothy Murray ONE TIME, I WAS REVIEWING THE TERMS OF A PROPOSED contract with an executive for a client that was buying a product for a significant sum of money. The document had been drafted by the seller, and it contained the customary provision excluding the seller’s consequential damages. The executive made clear that he had no desire to discuss this clause. “We give up consequential damages...

December 19, 2018

Top 10 Practice Tips: Secondary Offerings

By: Steven J. Slutzky, Kevin R. Grondahl, and Nicholas P. Pellicani THIS ARTICLE COVERS 10 PRACTICAL TIPS THAT COUNSEL in a secondary offering can use to facilitate execution and avoid common pitfalls. Secondary offerings of equity securities by stockholders of public companies are one of the more frequent capital markets transactions. However, many secondary offerings are conducted on short notice and transactions...

December 19, 2018

Brexit: What U.S. Lawyers Need To Know

By: Edward J. Hannon and Nicole A. Bashor On June 23, 2016, voters in the United Kingdom (UK) were asked to determine whether the UK should leave the European Union (EU). The result of the referendum was in favor of leaving. Under what has become known as Brexit, which comes from a merging of the two words Britain and exit, the UK triggered Article 50 of the Lisbon Treaty in March 2017, which set a firm timetable for...

December 19, 2018

Investigation Requirements for #MeToo Complaints

By: Genevieve Ng A few hundred people demonstrated at Michigan State University (MSU) on April 20, 2018, calling on the Michigan State University Board of Trustees to resign. They were joined in the call by the editorial board of the Michigan State University newspaper, The State News , and the MSU Faculty Senate. This demand stemmed from MSU’s handling of the Larry Nassar sexual abuse scandal. 1 MUCH HAS BEEN...

December 19, 2018

Arbitration Agreement and Class Action Waiver Enforcement in Employment Litigation and the Impact of the Supreme Court's Decision in Epic Systems

By: John B. Lewis and Dustin D. Dow This article provides step-by-step guidance to consider when enforcing arbitration agreements and class action waivers in employment cases. Arbitration agreements are agreements that force individuals to bring legal claims in arbitration, rather than in court. A class action waiver is an agreement, or a section in a broader agreement, that restricts an individual’s ability to...

December 19, 2018

Guidance for Employers on Direct Contracting With Health Care Providers

By: Jason Brocks This article highlights some key considerations for attorneys representing employer sponsors of group health plans that are considering contracting directly with health care providers. As the idea of direct contracting arrangements between plan sponsors and health care providers becomes more mainstream, clients will want not only legal advice on these arrangements but also counsel on the potential benefits...

December 19, 2018

Updates and Legal Developments

ABA Releases New Guidelines For Lawyers Who Experience Data Breaches By: Lexis Practice Advisor Attorney Team THE AMERICAN BAR ASSOCIATION (ABA) RECENTLY issued Formal Opinion 483, addressing lawyers’ ethical obligations to their clients after a data breach “exposes [their] confidential information.” Importantly, the ABA noted that compliance with these ethical obligations does not necessarily satisfy...

November 03, 2018

Making the Motion for Summary Judgment (Federal)

By: Jim Wagstaffe and The Wagstaffe Group                       This article discusses how to file a motion for summary judgment in a federal case and covers topics such as the advantages and disadvantages of moving for summary judgment, deadlines, formatting the motion, the notice of motion, memorandum of points and authorities...

November 03, 2018

Making the Motion for Class Certification (Federal)

By: Jim Wagstaffe and The Wagstaffe Group CLASS CERTIFICATION PROCEDURES ARE GOVERNED BY Rule 23(c)(1)(A) of the Federal Rules of Civil Procedure (Rule 23): “At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” 1 If the court denies certification, the action will proceed as an individual...

November 03, 2018

Commencing a Lawsuit: Evaluating Whether to File Suit in Federal Court

By: Michael Bahler and Mike Stefanelli Deciding whether to commence a federal lawsuit requires the attorney to evaluate the potential client, analyze the applicable legal and procedural landscape, and examine the possibility of resolving the dispute without litigation. Failing to consider these issues before bringing suit can expose the attorney to financial and reputational risk and result in prompt dismissal of the...

November 03, 2018

Litigation Hold Memorandum (Federal)

Form provided by Jim Wagstaffe and the Wagstaffe group. This memorandum (also called a litigation hold notice or simply a litigation hold) notifies a client’s relevant employees of their duty to preserve and ensures that the client meets its legal responsibilities. Once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policies and put in place a litigation...

November 03, 2018

Class Action Rule 23(a) Prerequisites Standards Chart (2d Cir.)

By: Jim Wagstaffe and The Wagstaffe Group A PARTY SEEKING CLASS CERTIFICATION MUST SATISFY THE four requirements set forth under Fed. R. Civ. P. 23(a) (Rule 23(a)). Numerosity. A class is so large that joinder of all members is impracticable. Commonality. Questions of law or fact are common to the class. Typicality. Named parties’ claims or defenses are typical of the class. Adequacy of representation...

November 03, 2018

Pretrial Injunctive Relief: Enforcing Pretrial Injunctions

By: Jim Wagstaffe and The Wagstaffe Group This article discusses how to enforce a preliminary injunction or temporary restraining order (collectively, pretrial injunctive relief) in a federal case and covers topics such as the court's authority to enforce its orders; types of sanctions, including monetary, imprisonment, and fee-shifting; procedures to enforce contempt; distinguishing civil and criminal contempt;...

November 03, 2018

Motion for Temporary Restraining Order and Preliminary Injunction Standards Chart (9th Cir.)

By: Jim Wagstaffe and The Wagstaffe Group This article provides an overview of the factors the U.S. Court of Appeals for the Ninth Circuit evaluates in deciding an application for a preliminary injunction and/or a temporary restraining order (TRO). It also provides a chart listing these factors alongside language from representative cases explaining each factor. IN DECIDING AN APPLICATION FOR A PRELIMINARY INJUNCTION...

November 03, 2018

Submitting Evidence in Support of a Motion for Summary Judgment (Federal)

By: Jim Wagstaffe and The Wagstaffe Group This article discusses how to submit evidence with a summary judgment motion in federal court and covers topics such as the burden to show admissibility, declarations and affidavits, the sham affidavit doctrine, expert witness declarations, exhibits, deposition transcript errata, requests for judicial notice, oral testimony, stipulations, and how to make objections to evidence...