June 23, 2018

Insuring Construction Risks Through Commercial General Liability Policies

By: Ellen M. Chapelle , Gould & Ratner LLP In most construction projects, the general contractor traditionally takes control of the site and is responsible for its means and methods of construction, and, therefore, should bear primary liability for damage arising from construction operations. MOST CONSTRUCTION CONTRACTS REQUIRE THE GENERAL contractor to purchase commercial general liability (CGL) coverage to assure...

June 23, 2018

Due Diligence: Antitrust Issues

By: Michael B. Bernstein , Matthew A. Tabas , and Matthew H. Fine , Arnold & Porter Even in the very earliest stages of planning a merger or an acquisition, it is never too soon to begin considering the antitrust issues. In fact, it is critical to provide parties with guidance about ensuring compliance with the antitrust laws during due diligence, including guidance on avoiding inappropriate information sharing...

June 23, 2018

Stored Communications Act: Practical Considerations

By: Michael E. Lackey and Oral D. Pottinger , Myer Brown LLP The Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., governs the disclosure of electronic communications stored with technology providers. Passed in 1986 as part of the Electronic Communications Privacy Act (ECPA), the SCA remains relevant to address issues regarding the privacy and disclosure of emails and other electronic communications. ...

June 23, 2018

Stored Communications Act Issues Checklist

This is a high-level checklist for examining issues involving the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., which comprises one of the major components of the Electronic Communication Privacy Act (ECPA). The other major component of the ECPA is the Wiretap Act, 18 U.S.C. § 2510 et seq. The Wiretap Act generally governs when communications (whether electronic, oral, or wire) are “intercept...

June 23, 2018

Issues Related to Human Resources Outsourcing

By: James E. Meadows and Terese M. Connolly , Culhane Meadows PLLC This article discusses special issues that may arise in the context of Human Resources Outsourcing (HRO). HRO is a form of business process outsourcing (BPO) focused on the functions that have typically been performed or managed through a company’s human resources (HR) or personnel department. The accepted industry definition of an HRO transaction...

June 23, 2018

The GDPR Compliance Deadline Has Arrived—Are You Prepared?

By: Nicholas R. Merker, Ice Miller LLP The deadline for organizations to comply with the European Union (EU) General Data Protection Regulation (GDPR) is upon us. 1 As of May 25, 2018, all entities covered under the GDPR must be able to demonstrate their compliance to EU regulators. The expanded territorial reach of the GDPR means organizations in the United States must comply if they either offer goods or services...

June 23, 2018

Climate Change Considerations in M&A Transactions

By: Annemargaret Connolly and Thomas Goslin, Weil Gotshal & Manges LLP Introduction CLIMATE CHANGE IS ARGUABLY THE MOST HIGH-PROFILE and rapidly evolving environmental issue facing the global business community today. Governments of nearly every nation have acknowledged the risks posed by a warming climate and taken some action either to combat those risks, to mitigate the physical effects of climate change, or...

June 23, 2018

Court-Ordered Alternative Dispute Resolution

By: Jim Wagstaffe And The Wagstaffe Group The article discusses the various types of alternative dispute resolution (ADR) for a federal case and covers topics such as the courts’ requirement to develop ADR procedures and their power to require parties to consider or participate in them, cases exempt from ADR, mediation, arbitration, early neutral evaluations, judicial settlement conferences, and summary jury trials...

June 23, 2018

Pharmaceutical Patent Litigation Strategies

By: Jeffrey Alan Hovden, Robins Kaplan LLP This article discusses strategies that counsel for brand-name and generic drug companies may employ in pharmaceutical patent litigation under the Drug Price Competition and Patent Term Restoration Act of 1984, commonly known as the Hatch-Waxman Act. It focuses on litigating infringement and validity of active pharmaceutical ingredient (API), formulation, and treatment patents...

June 23, 2018

Liquidated Damages Drafting Blunders

By: Timothy Murray , Murray, Hogue & Lannis Parties drafting contracts often want to set in stone the precise dollar amount of damages that will be awarded in the event of a breach, commonly called liquidated damages. The idea is that if a breach occurs, this provision makes it unnecessary for the aggrieved party to prove actual damages. The benefits of such a provision—promoting certainty and eliminating...

June 23, 2018

Top 10 Practice Tips: Private Placement Transactions

By: Chris Kelly, Jones Day IN RECENT YEARS, THE STAFF OF THE U.S. SECURITIES AND Exchange Commission (SEC) has undertaken an initiative to bolster capital formation, including by providing companies more flexibility to access U.S. capital markets. As a result, recent changes to law and SEC interpretations provide companies with a broad range of potential private financing opportunities that can be executed more quickly...

June 23, 2018

Current Updates and Legal Developments—Summer 2018

SUPREME COURT AFFIRMS CONSTITUTIONALITY OF AIA PATENT REVIEW PROCESS A PROVISION IN THE AMERICA INVENTS ACT (AIA) allowing for pre-trial review of existing patents does not violate Article III or the Seventh Amendment of the U.S. Constitution, the U.S. Supreme Court has held. In Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 2018 U.S. LEXIS 2630 (April 24, 2018), the high court affirmed, 7-2, a...

April 19, 2018

Current News and Updates Labor and Employment Special Edition 2018

LABOR DEPARTMENT RESUMES OPINION PROGRAM, REISSUES 17 RESCINDED LETTERS THE U.S. DEPARTMENT OF LABOR (DOL) HAS REISSUED 17 opinion letters originally issued in January 2009 during the last few weeks of the Bush administration but later withdrawn by the Obama administration “for further consideration.” The Obama administration subsequently discontinued the practice of issuing opinion letters, opting instead...

April 19, 2018

2017 Tax Act Impact on Employee Benefits and Executive Compensation

By: Richard Lieberman , Dykema Gossett PLLC THE TAX REFORM LEGISLATION ENACTED IN LATE 2017, known as the Tax Cuts and Jobs Act (Pub. L. No. 115-97) (the Tax Act), made relatively few far-reaching and substantive changes in the area of executive compensation and employee benefits. These changes, summarized in this article, primarily focus on (1) the non-deductibility of excessive employee compensation by publicly held...

April 19, 2018

Conducting Pay Equity Audits

By: Jeffrey M. Landes and Ann Knuckles Mahoney , Epstein Becker & Green, P.C. This article provides advice and guidance to employers regarding how to ensure compliance with equal pay laws, particularly the Equal Pay Act of 1963 (EPA). ALTHOUGH THE EPA HAS BEEN IN EFFECT FOR 50 YEARS, it gained renewed momentum with the Obama administration’s creation of the National Equal Pay Enforcement Task Force, composed...

April 19, 2018

Wage and Hour Self-Audits Checklist

By: Michael S. Kun , Jeffrey H. Ruzal , and Kevin Sullivan , Epstein Becker & Green, P.C. This checklist identifies the main risk categories for wage and hour self-audits. To avoid potentially significant liability for wage and hour violations, employers should consider wage and hour self-audits to identify and close compliance gaps. Preserve the Attorney-Client Privilege/Work Product Audits often involve the...

April 19, 2018

Admissibility of “Me Too” Evidence

By: Kathryn T. McGuigan and Justin Hanassab , Morgan, Lewis & Bockius LLP Introduction In early Fall 2017, the #MeToo campaign exploded into a movement across social media demonstrating the prevalence of sexual assault and harassment in the workplace. Countless public revelations of sexual misconduct allegations against Hollywood producer Harvey Weinstein and other well-known powerful men ignited the movement...

April 19, 2018

Counseling Employers on the Legal Implications of Artificial Intelligence and Robots in the Workplace

By: Richard R. Meneghello , Sarah J. Moore , and John T. Lai , Fisher & Phillips LLP This article provides guidance and best practices for counseling employers on the legal implications of integrating artificial intelligence (AI) and robots into their workplaces. Reductions in Force Due to Artificial Intelligence and Robotics Thanks to recent technological advances, AI algorithms and robots are developing the...

April 19, 2018

Separation Agreements: Drafting and Negotiation Tips For Employers

By: Marc E. Bernstein , Paul Hastings LLP This article addresses initial preparations for drafting a separation agreement and common terms that employers ordinarily should include, or at least consider including, in separation agreements. WHEN TERMINATING AN EMPLOYEE’S EMPLOYMENT, THE employer often requests that the departing employee execute a separation agreement. In doing so, the employer seeks to obtain...

April 19, 2018

Guidance for Employers on ERISA Discrimination, Retaliation, and Whistleblower Claims

By: Brian M. Murray , Baker & Hostetler LLP This article discusses aspects of Section 510 of the Employee Retirement Income Security Act (ERISA) (29 U.S.C. § 1140), which prohibits interference with benefits and retaliation for the exercise of rights under ERISA and ERISA employee benefit plans. The prohibition applies to employee pension benefit plans and employee welfare benefit plans, to vested and unvested...

April 19, 2018

Partnership and LLC Equity Compensation

By: Richard Lieberman , Dykema Gosset PLLC This article addresses fundamental considerations in structuring equity compensation for general and limited partnerships, as well as limited liability companies (LLCs) that are classified as partnerships for federal income tax purposes. IT SUMMARIZES THE EQUITY-BASED ARRANGEMENTS USED by entities taxed as partnerships to provide key service providers the opportunity to become...

April 19, 2018

Locating Missing Retirement Plan Participants

By: Hannah DeLuca , W. Andrew Douglass , and Elizabeth Bray , Polsinelli P.C. This article addresses the steps that plan sponsors and fiduciaries must take to locate and notify missing participants in qualified defined contribution and qualified defined benefit plans regarding benefits that are due to them under the plan. PLAN ADMINISTRATORS ARE OBLIGATED UNDER THE Employee Retirement Income Security Act (ERISA) to...

April 19, 2018

Recourse for Trade Secret Misappropriation under the Federal Defend Trade Secrets Act

By: Bret Cohen , Nelson Mullins and Amanda Carozza , Mintz Levin, P.C. THE DEFEND TRADE SECRETS ACT OF 2016 (DTSA), 130 STAT. 376, allows U.S. employers to protect against and remedy misappropriation of trade secret information in federal court. Before the enactment of the DTSA, in the absence of diversity jurisdiction, employers seeking redress had no choice but to sue in state court. While most states have adopted...

April 10, 2018

NEW – Lexis Practice Advisor Special Alert: Civil Procedure Issues in the Stormy Daniels – President Trump Case Featuring Jim Wagstaffe

The case of President Trump and Stormy Daniels actually raises some interesting federal civil procedure. In the following video, noted expert Jim Wagstaffe of The Wagstaffe Group speaks about the high profile case and contends that the lawyers for both President Trump and Stormy Daniels would benefit from the practical guidance in his Lexis content, specifically the sections on removal, venue, and arbitration clauses...

March 01, 2018

Current Updates and Legal Developments Spring 2018

U.S. DEPARTMENT OF LABOR SETS NEW GUIDELINES FOR INTERN COMPENSATION THE U.S. DEPARTMENT OF LABOR (DOL) HAS ADOPTED new guidelines for determining whether interns working at for-profit companies are entitled to compensation under the federal Fair Labor Standards Act (FLSA). The DOL abandoned its six-part analysis for deciding if an intern meets the requirements for employee status under the FLSA in favor of a seven...