Electronic Discovery Reference Model Project Launched
June 27, 2005
A group of 29 organizations has formed a group that will follow an open process to develop a reference model describing the concepts and relationships that comprise the electronic discovery processes. Called the Electronic Discovery Reference Model Project, the group will develop The Electronic Discovery Reference Model (EDRM) that will provide a common, flexible and extensible framework for the development, selection, evaluation and use of electronic discovery products and services.
Business Valuation in Divorce
June 27, 2005
The question of how to value private companies in marital dissolution proceedings has been wrestled with for many years. Several valuation methods have been used, although some that are commonly used, and perhaps favored, for other valuation purposes are effectively banned from use in divorce cases due to interpretations of existing case law. Two significant valuation methods, the Guideline Public Company Method (GPC method) and the Discounted Cash Flow Method (DCF method), have been largely excluded from use in divorce cases in some states. This article addresses the GPC method, and when it would be appropriate to use. At a later date, Part Two of this article will address the DCF method.
Compliance in the Era of 'Undersight'
June 27, 2005
The thesis of this article is that the new civil and criminal whistleblower provisions of Sarbanes-Oxley (SOX), coupled with growing acceptance of whistleblowing in both the law and popular culture, may create a climate in which employees more frequently engage in "undersight" to report violations of law or policy. "Undersight" is a term this author has coined to describe corporate employees who witness potential fraud first-hand and voice their concerns, in contrast with "oversight" through which corporate outsiders attempt to detect fraud relying on second-hand information.
Contingency Fees: A New Option For Complex Business Litigation
June 27, 2005
For many years, there have been qualified attorneys performing contingent fee services in securities class actions, consumer class actions, toxic tort and personal injury cases. But, historically at least, the contingent fee approach has not been a viable option for complex business cases. Why has this been the case? There seem to be three key reasons: Supply, demand, and tradition.
You Just Can't Give it Away
June 27, 2005
Companies in Chapter 11 may have capital structures consisting of multiple tiers of debt and equity that have competing priorities of payment vis-'-vis the company and its assets. The claims and interests of these competing stakeholders may be resolved in a Chapter 11 plan. To emerge from Chapter 11, the company must obtain approval of a plan that deals with all creditor claims and equity interests in accordance with the (sometimes complicated) rules contained in the Bankruptcy Code. In an effort to achieve an agreed-upon Chapter 11 plan, some creditors may give up (or gift) a portion of the recovery to which they would otherwise be entitled to another class of creditors or equity holders.
Fen-Phen: The Never-Ending Story
June 27, 2005
The national settlement of the fen-phen lawsuits was intended, among other things, to help defendant Wyeth, one of the world's largest pharmaceuticals manufacturers, put the lawsuits behind it. However, the number of claimants who opted out of the settlement is huge, and many of their cases are now coming to trial, with mixed results. Recently approved changes to the settlement process are also altering plaintiffs' rights. In short, the last chapter of this epic litigation is a long way from being written. So, what is happening with the fen-phen settlement and litigitions?
CD: What's It Worth to You? What Legal marketing professionals command for full-time salary.
June 16, 2005
This web audio conference gives marketers and lawyers a glimpse into what the marketing professionals in the legal field command for full-time salary, bonuses and other benefits. Focusing on the results of the highly anticipated LMA Compensation Survey, this event will serve as a snapshot into the strategic position the legal marketing professionals hold, or should hold, in firms.
Vioxx and the FDA Advisory Committees: Yesterday, Today, and the Search for Tomorrow
June 14, 2005
Amid a cacophony of wailing and gnashing of teeth decrying the Food and Drug Administration's ("FDA's") failure to protect the public from unsafe drugs, the FDA held an emergency advisory committee meeting, which included consultants, to address the safety issues associated with the use of COX-2 selective and non-selective non-steroidal anti-inflammatory drugs ("NAIDs"). The meeting was scheduled and held at warp speed. It provided a transparent dispassionate opportunity to address the safety issues for scientists, affected parties and the public. The decisions of the advisory committee were to some extent, unexpected. This accelerated review process differs from the current advisory committee process of reviewing limited data in a product pre-approval setting. However, this use is a natural extension of the FDA's historic use of advisory committees, <i>ie</i>, analysis of voluminous data on any active ingredient over a period of years and application of the analysis to specific drug products containing the active ingredient.
A Word from the Defense: Is Defending Vioxx a Recipe for Disaster? Take a Careful Look at Who Is Sounding the Alarm
June 14, 2005
The message from our plaintiffs' lawyer colleagues has been steady and direct: "Don't bother defending these cases — you're going to lose and you're going to lose big. Just pay us all lots of money now and save yourself a lot of pain and agony." And what other message would they send? Their goal is to reap the highest reward from the least amount of effort. Litigating every case on every level; financing and staffing hundreds of complex trials, and waiting for final appellate review of every verdict is no way to run a mass tort practice — at least not from the plaintiffs' perspective. Given this author's perspective, it makes sense to examine the options more carefully before deciding that the only way to avoid ruin is to wire massive sums into the trial bar's trust accounts.
Merck's Strategy for Dealing with Vioxx: Why the Old Recipes for Success Won't Succeed
June 14, 2005
It seems that the same question is asked every time two pharmaceutical plaintiffs' lawyers get together these days: "Don't you think Merck can just pull a Baycol?" Referring to Bayer's strategy for resolving the recent litigation over Bayer's dangerous — and withdrawn — statin drug, these lawyers are concerned that Merck, like Bayer, can somehow escape compensating thousands of victims. No doubt due to the widely read article in The Wall Street Journal (May 3, 2004) that essentially gave Bayer an "academy award" for its handling of Baycol, reporters across the country, trying to analyze the emerging Merck debacle last fall, were asking the same question of their trial lawyer interviewees. What these inquiring minds are inquiring about is whether Merck, clearly faced with thousands of actions, can "lump and split" them. On the one side, Merck would place a very large pile of cases it deems non-compensable, and on the other, a much smaller pile comprised of those cases that Merck will agree to discuss and value. The answer to this question seems to be, at this relatively early date, that even if Merck wishes it could approach the problem this way, it cannot. Moreover, it cannot use the strategy it used in the phenylpropanolamine ("PPA"), Propulsid, or Rezulin litigation, either. In fact, any attempt to apply the strategies employed in those litigations may end in sheer disaster.
