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...

November 03, 2018

Settlement Fundamentals (Federal)

By: Jim Wagstaffe and The Wagstaffe Group This article discusses how to negotiate and finalize a settlement in a federal case and covers topics such as pre-suit settlements, settling after a complaint is filed and after entry of judgment, releases and interpreting them, overbroad and standard terms in a release, confidentiality issues, oral settlements, judicial settlement conferences, partial settlements, and class...

November 03, 2018

Drafting a Settlement Agreement Checklist (Federal)

Settlement Negotiations Make preparation for a settlement from the start of the case. You should generally do all of the following: ✔ Retain relevant documents. To avoid the loss of documents potentially relevant to settlement agreement negotiations, send a retention of documents notice (also known as a litigation hold letter) to all appropriate parties as soon as possible. ✔ Decide whether (and when) to make...

November 03, 2018

Reviewing a Settlement Agreement Checklist (Federal)

This checklist explains how to review a settlement agreement and covers topics such as preparatory steps, communicating with adversaries, settlement terms, ambiguity, confidentiality, relevant parties, breach provisions, releases, and final approval. When reviewing a draft settlement, make sure the document reflects the parties’ agreements about the settlement terms and eliminates any ambiguity. The agreement...

November 03, 2018

Settlement Agreement and Release (Federal)

This form is a settlement agreement and release that may be used in a federal district court case. It contains drafting notes and optional clauses When drafting or reviewing the agreement, try to address all the issues about the settlement terms and eliminate any ambiguity. For example, specify deadlines for making settlement payments. The agreement should list the rights, claims, obligations, or interests that will...

November 01, 2018

While State Voting Leave Laws Remain Unchanged, Businesses and Advocacy Groups Push for Expansion

Although federal law does not require employers to provide leave, either paid or unpaid, to make it easier for employees time to vote during their work day, the majority of the states have laws addressing some type of voting leave. Legislation in states that require employers to grant voting leave follows a pattern, granting. employees anywhere from one to three hours to vote during the work day unless there is sufficient...

September 13, 2018

Special Coverage: Broader Implications of California's Sweeping Online Data Privacy Statute

Broader Implications of CALIFORNIA’S SWEEPING ONLINE DATA PRIVACY STATUTE THE SIGNING OF A WIDE-RANGING DATA PRIVACY LAW in California should serve as a signal to all businesses that collect personal information about state residents to review and update their data collection, storage, and disclosure practices. The California Consumer Privacy Act of 2018 (CCPA), signed into law by Governor Edmund G. Brown on...

September 13, 2018

Current Updates and Legal Developments Fall 2018

PUBLIC SECTOR UNIONS CANNOT IMPOSE FEES ON NON-MEMBERS, SUPREME COURT RULES PUBLIC SECTOR UNIONS CANNOT REQUIRE NON-MEMBERS to contribute to expenses related to union business, the U.S. Supreme Court ruled, overturning a 41-year-old decision. Janus v. AFSCME, Council 31, 2018 U.S. LEXIS 4028 (June 2018). In a 5-4 ruling, the high court held that the imposition of socalled agency fees on public sector employees violates...

September 13, 2018

Enforcing Settlements and Consent Decrees

By: Jim Wagstaffe , The Wagstaffe Group COURTS HAVE INHERENT POWER TO ENFORCE SETTLEMENTS between the parties in cases pending before them. 1 However, courts have no inherent power to enforce settlement agreements after a case has been dismissed: “Enforcement of the settlement agreement . . . is more than just a continuation or renewal of the dismissed suit, and hence requires its own basis for jurisdiction.”...

September 13, 2018

Top 10 Practice Tips: Risk Factor Disclosures

By: Stuart Gelfond and Joshua Wechsler , Fried, Frank, Harris, Shriver & Jacobson LLP, Hayley Cohen , Tradeweb Item 503(c) (17 C.F.R. § 229.503) of Regulation S-K requires that an issuer include in its registration statement a risk factor disclosure, which sets forth the possible circumstances or situations that could make investing in a company’s securities risky or speculative. While it is rare that...

September 13, 2018

Drafting Blunder: Hiding Contractual Provisions in Documents That Don’t Look, Feel, or Smell Like Contracts

By: Timothy Murray , Murray, Hogue & Lannis BUSINESSES OFTEN CONDUCT THEIR TRADES BY UTILIZING documents that don’t appear to be contractual in nature but that contain contractual provisions—the information brochure accompanying a smartphone might include a mandatory arbitration clause; a dry-cleaning ticket might have a limitation of liability printed on the back; an online retailer’s order page...

September 13, 2018

Taxing Online Sales: Impact of the South Dakota v. Wayfair Decision

Includes Analysis by: Carolynn Kranz , Kranz & Associates PLLC Mark Muntean , Charles Swenson and Iris Kitamura , Kranz & Associates PLLC This article discusses the impact of the U.S. Supreme Court’s landmark decision in South Dakota v. Wayfair, Inc. 1 and provides guidance related to resulting changes. In addition to evaluating the ruling in Wayfair and the precedents that went before it, this article...

September 13, 2018

Telemedicine and Digital Health: Strategic Opportunities and Legal Considerations for Private Equity Investment

By: Christopher Donovan , Heidi Jeffery , Nathaniel Lacktman , and Melesa Freerks , Foley & Lardner LLP THIS ARTICLE ASSESSES THE CHARACTERISTICS OF THE digital health industry and examines whether the market is ripe for notable private equity investment. The broad scope of digital health includes categories such as mobile health, health information technology, wearable devices, telehealth and telemedicine, and...

September 13, 2018

Ransomware Planning and Response Best Practices

By: Nolan Goldberg and Anisha Shenai-Khatkhate , Proskauer Rose LLP Ransomware attacks have become a prevalent cybersecurity threat. These attacks pose significant legal and financial risks to both individuals and organizations. This article addresses steps to take to minimize the risk of a ransomware attack and reduce the harm that a successful attack can cause What Is Ransomware? Ransomware is a form of malicious...

September 13, 2018

Pros and Cons of Shared Space Agreements

By: Daniel A. Suckerman and Stacey C. Tyler , Lowenstein Sandler LLP With co-working spaces such as WeWork growing in popularity, real estate attorneys are frequently called upon to help clients navigate the pitfalls of shared space agreements. This article discusses shared space agreements generally, how these agreements differ from leases, advantages and disadvantages of these agreements from the user’s perspective...

September 13, 2018

Strategic Use of Patent Examiner Interviews

By: Frank DeLucia and Luciano Ricondo , Merchant & Gould After a patent application is filed in the U.S. Patent and Trademark Office (USPTO), and during the stage in which the application is being examined by a patent examiner, it can often be helpful to conduct an interview with the examiner in an attempt to advance the prosecution of the application towards allowance. This article provides guidance for practitioners...

September 13, 2018

Unwinding the Department of Labor’s Fiduciary Rule

By: George M. Sepsakos and Michael P. Kreps , Groom Law Group, Chartered This article discusses the implications of the Fifth Circuit Court of Appeals’ vacatur of the Department of Labor’s (DOL) Fiduciary Rule 1 and related amendments to other prohibited transaction exemptions (PTEs) in Chamber of Commerce of the United States v. United States Dep’t of Labor, 885 F.3d 360 (5th Cir. 2018). BY REPLACING...

September 13, 2018

Key Considerations for Drafting Compliant English-Only Policies

By: Jamala S. McFadden , Chandra C. Davis , and Raquel H. Crump , McFadden Davis, LLC This article provides guidance for drafting, implementing, and enforcing effective and legally compliant English-only policies in the workplace. English-only policies require employees to speak English while on the job. While there are definite benefits to employers from enacting such policies, they are not without risk. BECAUSE...

September 13, 2018

Market Trends: Structured Finance, Securitization and Derivatives

By: Jordan Yaret , Mikhel Schecter , and Bryant Mendel , Paul, Weiss, Rifkind, Wharton & Garrison LLP STRONG ECONOMIC GROWTH AND HISTORICALLY LOW interest rates boosted U.S. structured finance issuance to $510 billion in 2017, a 37% increase over 2016 volume. This growth occurred across a wide range of asset classes. Up and down the credit curve, spreads (i.e., the difference between what the issuer receives from...

June 23, 2018

Confidentiality and Whistleblowing: Where In-House Counsel’s Competing Interests Collide

By: Devika Kewalramani, Moses & Singer                       With a changing legal landscape, increasing regulatory compliance, and global economic uncertainties, corporations—foreign and domestic—are under greater pressure to meet their business objectives in a more cost-effective way. In this evolving corporate...