Lack of Director Independence Under Delaware Law
September 26, 2007
As readers are well-aware, Sarbanes-Oxley, the New York Stock Exchange and NASDAQ have established standards for director independence. These are not the only director independence standards that can affect a corporation and its board. Director independence is also significant under Delaware law. Although similar, the standards for director independence under Sarbanes-Oxley ('SOX'), stock exchange rules and Delaware law differ. A director who is independent under SOX may not be independent under stock exchange rules or Delaware law and vice versa.
Worst-Case Scenarios from the Files of an Employee Benefit Plan Litigator
September 26, 2007
Your company decides to establish a new employee benefit plan. As in-house counsel, you, naturally, are asked to get involved. The regulatory, compliance and tax issues will unquestionably be daunting. Qualified or non-qualified? Safe harbor? Contributory? Top-heavy? Defined benefit or defined contribution? All of these questions, and more, must be answered before you can finalize your company's plan. But there's more ...
Don't Take a Beating on Your Hit Rate
September 26, 2007
Faced with ever-increasing litigation costs, in-house lawyers are searching for effective and legally defensible means of limiting the costs of electronic discovery. Legal teams can effectively incorporate search techniques into their best practices by considering critical issues before they review a single page. Doing so will only eliminate a major nightmare: excessive costs associated with over-collection and technical challenges that will require teams of project specialists to resolve.
Avoiding Contracts That Make You Sick
September 26, 2007
Even sophisticated companies expose themselves needlessly to contract disputes. The author says that from representing them in litigation, that might have been avoided or shortened if only they had inserted one of his "top ten prophylactics" for avoiding "contractually transmitted disease.
Current Trends in IPOs
September 26, 2007
In 2007, Mergermarket was commissioned by Nixon Peabody LLP to conduct 'IPO Executive Insights 2007,' a survey of senior corporate executives (CEOs and CFOs) of 100 companies that had undertaken an IPO in the past three years (the 'Survey'). The Survey was designed to provide insights into key IPO market trends and issues related to the process of going public in the current regulatory environment that emerged after the passage of the Sarbanes-Oxley Act of 2002 ('SOX').
The High Cost of FCPA Violations
August 30, 2007
Earlier this year, Baker Hughes Inc. ascended to the top of an exclusive and prominent list, but it is one on which few companies would want to be mentioned. On April 26, 2007, the Texas-based oil field products and services company announced that it was settling a federal probe alleging that it violated the Foreign Corrupt Practices Act ('FCPA'), and that it would pay fines and penalties in excess of $44 million ' the largest combined punishment under that law. It was truly one for the record books ' at least for the time being.
Military Leave Laws Move to the Frontlines
August 28, 2007
The Uniformed Services Employment and Reemployment Rights Act ('USERRA' or the 'Act') tends to be the employment-related statute most frequently placed on the back burner. Of course, this quickly changes when an employee seeks its protection or privileges. When that happens, managers and human resource professionals are often caught behind the eight ball trying to navigate requirements and entitlements of the law.
Not Just Another Article on e-Discovery Review
August 28, 2007
The author believes that the best e-discovery-review best practices should be characterized as the application of real-life lessons. He believes they are not complicated, and that focusing on a few of these learned lessons with a thoughtful, deliberate approach will achieve a truly effective electronic discovery review.
Pleading Standard for Securities Fraud Complaints
August 28, 2007
In Tellabs v. Makor Issues & Rights Ltd. (June 21, 2007), the U.S. Supreme Court offered clarity on the requirement in the Private Securities Litigation Reform Act of 1995 (the 'PSLRA') that plaintiffs in securities fraud actions plead with particularity facts giving rise to a 'strong inference' of scienter. There has been some disagreement on the impact of the ruling.
Supreme Court's Leegin Decision Opens Door to Resale Price Controls
August 28, 2007
In June 2007, the United States Supreme Court revisited the per se ban on resale price maintenance. In a 5-4 opinion, the Court in <i>Leegin Creative Leather Products v. PSKS, Inc.</i>, overruled nearly a century of precedent, and adopted a 'rule of reason' analysis that allows an alleged violator to attempt to justify price controls. As a result, news reports predicted widespread changes in resale price agreements and a decline in competitive discounts, giving the impression that companies are now free to impose price controls with little or no oversight, without fear of legal consequence, regardless of the specific nature of their products. Is this true?
