June 08, 2017

Proxy Season 2017 Q&A with Keir Gumbs

By: Keir Gumbs , Covington & Burling LLP PARTNER AT COVINGTON & BURLING LLP Keir Gumbs, vice chair of the Securities & Capital Markets Group and partner in the Washington, D.C. office of Covington & Burling LLP, regularly provides insights about the trends he observes in securities law and shareholder activism. Prior to joining Covington & Burling, Keir served in the Office of Chief Counsel in...

June 08, 2017

Drafting a Trademark Cease and Desist Letter

By: Roberta Jacobs-Meadway and Roger LaLonde, ECKERT SEAMANS CHERIN & MELLOTT, LLC BEFORE SENDING A TRADEMARK CEASE AND DESIST LETTER on behalf of a client, it is imperative to conduct due diligence and to carefully consider the content and tone of the letter. Such letters may range from a polite invitation to negotiate terms for coexistence, to a request for information as to how the alleged infringer is willing...

June 08, 2017

Brokered Deposits and Strategic Planning Considerations

By: John Popeo Overview Brokered deposits are often viewed by insured depository institutions (IDIs) as a cost-effective source of liquidity and funding. Federal bank regulatory agencies, however, consider brokered deposits to be a less stable source of funding that contributed to the 2008 global financial crisis. This article provides an overview of brokered deposits and discusses applicable regulatory restrictions...

June 08, 2017

The Bona Fide Prospective Purchaser Defense in Bankruptcy

By: Nicholas C. Rigano , Esq. RIGANO LLC Under the Comprehensive Environmental Response, Compensation, and Liability Act ( 42 U.S.C. § 9601 et seq. ) (CERCLA), current owners and operators of real property are strictly liable for costs to clean up environmental contamination regardless of whether the contamination existed prior to their ownership. Upon closing, a purchaser becomes a current owner under the statute...

June 08, 2017

Preparing for Artificial Intelligence in the Legal Profession

By: Dennis Garcia, Microsoft Assistant General Counsel One of the very hot topics so far in 2017 is artificial intelligence (AI) and its potential disruptive impact on the legal profession. Questions ranging from, “Will AI replace lawyers?” to “Does it make sense to attend law school with the rise of AI?” to “How will AI impact the delivery, cost, and quality of legal services?” are...

June 08, 2017

Strategies for Bringing Counterclaims or Separate Lawsuits Against Plaintiff Employees

By: Daniel A. Kaplan , FOLEY & LARDNER LLP This article provides guidance to employers on bringing counterclaims or separate lawsuits against plaintiff employees who have initiated claims against the employer. Employers and their attorneys are usually well versed in the types of claims that employees can bring. However, the employee might not be the only one with a potential claim after an employment relationship...

June 08, 2017

Contract Drafting Concerns: Beware Browsewrap

By: Timothy Murray , MURRAY, HOGUE AND LANNIS With the e-commerce explosion, sellers are peddling goods and services over their websites at unprecedented rates. From a contract law perspective, this ought to be a seller’s nirvana: the seller alone establishes the legal terms to govern transactions conducted over its website without any haggling or negotiating, and without any battle of the forms in which a transaction...

June 08, 2017

Contractual Joint Ventures – Drafting and Negotiating Joint Marketing Agreements

By: Candice Choh and Kari Krusmark, GIBSON, DUNN & CRUTCHER LLP A joint marketing agreement is a contract pursuant to which one or both of the parties will collaborate in order to promote the sale of product and service offerings of the other party. Such a contractual joint venture agreement may also be known as an alliance agreement, strategic alliance agreement, or co-marketing agreement, depending upon the client’s...

June 08, 2017

U.S. Patent Office Launches PTAB Procedural Reform Initiative - Practice News, Summer 2017

THE UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO) With the enactment of the America Invents Act in 2011, the PTAB was charged with conducting proceedings to address challenges to existing patents. Those proceedings “have significantly changed the patent landscape by providing a faster, cost-efficient quality check on issued patents,” the USPTO said. “Since AIA trials debuted in 2012, the USPTO...

June 08, 2017

Avoiding Company Liability When Using Cross-Device Tracking Data

By: Nicholas R. Merker and Blaine L. Dirker, ICE MILLER LLP   As Internet-connected mobile devices (e.g., smartphones, laptops, tablets, wearables, smart appliances, etc.) have become seemingly ubiquitous, consumers now have more ways than ever to access the Internet to interface with social media accounts, check e-mail, purchase goods and services, seek medical advice, watch cat videos, etc. However, consumers...

April 13, 2017

Corporate Counsel Oversight of the Risk Assessment Process

By: Gary Deutsch M.B.A, C.P.A.                                       AS COUNSEL FOR ONE OR MORE BUSINESSES TYPES (for-profit and/or non-profit), you are often asked to advise on many different types of legal and regulatory compliance issues, but how well prepared is any business to incorporate your advice into...

April 13, 2017

Profiles of Lexis Practice Advisor Journal™ Advisory Board Members - Claudia Simon & S.H. Spencer Compton

Claudia Simon : Partner, Schulte Roth & Zabel LLP CLAUDIA SIMON IS A PARTNER AT Schulte Roth & Zabel LLP. She represents public and private clients in mergers and acquisitions transactions, including tender offers, stock acquisitions, asset acquisitions, joint ventures, divestitures, cross-border acquisitions, auction transactions, defensive strategies, and going-private transactions. She has extensive experience...

April 13, 2017

Drafting Paid Sick Leave Policies

While no federal statute requires that employers provide paid sick leave for employees, Executive Order 13706 mandates that, effective January 1, 2017, covered federal contractors give employees up to seven days of paid sick leave each year. See 80 FR 54697 . It remains to be seen if the Trump Administration will rescind this executive order. IN ADDITION, RECENT LEGISLATION AT THE STATE AND local level has increasingly...

April 13, 2017

Market Trends: High Yield Debt Offerings

By: David Azarkh and John O’Connell , Simpson Thacher & Bartlett LLP. Overview: The High Yield Roller Coaster Continues The most appropriate word to describe the high yield market in 2016 is volatility. There were some rough patches when few issuers tested the waters—particularly during the first quarter—but over the course of the year, a number of windows opened up with favorable market backdrops...

April 13, 2017

Guidance for Employers on Navigating Paid Sick Leave Laws

This chart summarizes state paid sick leave laws and notes which states do not have such laws. It does not discuss municipal ordinances but does indicate local governments that do have such laws where there is no statewide law. This chart is intended for private employers. Note also that while no federal statute requires that employers provide paid sick leave for employees, Executive Order 13706 mandates that, effective...

April 13, 2017

Guidance on Emerging Growth Companies

Q&A with Michael Labriola , Michael Nordtvedt , and Megan Baier , Partners at Wilson Sonsini Goodrich & Rosati LLP. What is an Emerging Growth Company (EGC)? Under the Jumpstart Our Business Startups Act (the JOBS Act) (112 P.L. 106, 126 Stat. 306), which was passed in April 2012, a company qualifies as an emerging growth company (EGC) if at the time of its initial public offering (IPO) total annual gross...

April 13, 2017

Real Estate Due Diligence in Corporate and M&A Transactions

By: Joseph M. Marger , Reed Smith LLP. In almost every asset purchase, stock purchase, and merger transaction (generally referred to in this article as M&A transactions), the purchaser will acquire an ownership or leasehold interest in at least one real estate asset. However, the real estate asset(s) do not drive a typical M&A transaction. In most cases, a particular real estate asset will only have significance...

April 13, 2017

The Recharacterization of Loan Agreements under Applicable Bankruptcy and Non-Bankruptcy Law

By: Ira L. Herman , Blank Rome, LLP The Statutory Predicate for Recharacterization To increase their share of a finite bankruptcy pie, creditors, debtors and other parties in interest in a case will seek to reduce or eliminate competing claims. This objective may be accomplished using various provisions of the Bankruptcy Code. Section 502(b)(1) is the statutory provision providing for the objection to, and disallowance...

April 13, 2017

Contract Drafting Concerns

By: Timothy Murray , Murray, Hogue & Lannis. RECENTLY A TEXAS COURT CONSTRUED A CONTRACT replete with common provisions designed to limit the supplier’s financial exposure in the event of its breach and proceeded to hold every one of them inoperative in the interest of fairness. CGBM 100 v. Flowserve US , 2016 U.S. Dist. LEXIS 179517 (S.D. Tex. December 29, 2016 ) is a cautionary tale about the limitations...

April 13, 2017

Examining Harassment Claims

By: Richard D. Glovsky , Locke Lord LLP. THIS ARTICLE ADDRESSES PROTECTED STATUS HARASSMENT issues, a subset of discrimination claims that arise where an employee alleges that he or she was subjected to unwelcome conduct in the workplace due to the employee’s protected status (race, sex/gender, age, disability, national origin, etc.). It focuses on the elements of these claims and defenses to them. It also provides...

April 13, 2017

Taxation of Carried Interest

By: Robert D. Starin , K&L Gates LLP. The tax treatment of carried interest has for many years been a high-profile target for potential reform. “Carried interest” refers to the share of profits or gains from investment received by a manager of a private equity fund, hedge fund, or similar investment vehicle, which is typically unrelated to any capital investment by the manager. UNDER EXISTING LAW APPLICABLE...

February 10, 2017

How to Become A Trusted Advisor—Richard Rothman

By: Richard Rothman , Weil, Gotshal & Manges LLP. Young professionals in a wide array of fields will have the opportunity to become a trusted advisor —someone to whom more senior executives or partners, clients, colleagues or friends turn when contemplating important decisions or in times of trouble. There is no playbook for how to either become someone’s trusted advisor or perform this critical role...

February 10, 2017

Profiles of Lexis Practice Advisor Journal™ Advisory Board Members - Andrew Bettwy & Alexandra Margolis

Andrew Bettwy : Partner, Proskauer Rose LLP ANDREW BETTWY IS A PARTNER IN Proskauer Rose’s corporate department and a member of the finance group. His principal focus is the representation of financial institutions, private equity sponsors, and public and privately held companies in leveraged finance and other financing transactions. Andrew represents both lenders and borrowers in a wide range of transactions...

February 10, 2017

Patent Litigation Strategies Against Patent Trolls

By: Matthew Bernstein , Perkins Coie LLP. THE MAJORITY OF PATENT CASES ARE BROUGHT BY non-practicing entities (NPEs), also called patent trolls or patent assertion entities (PAEs). These parties litigate or license their patents but have no real products or services. NPE Lawsuits are commonly brought against U.S. companies and pose unique challenges. For example, many NPEs are represented on a contingent fee basis,...

February 10, 2017

Market Trends: Indemnification Provisions in Asset Purchase Transactions

Indemnification provisions are among the most highly negotiated and critical deal points in private M&A transactions. In general, the parties provide mutual indemnification to each other for breaches of representations, warranties, and covenants. In practice, indemnification provisions are a tool to allocate the risk of known and unknown liabilities between the buyer and seller. Key terms that are typically negotiated...