Protecting Legal Data
November 28, 2006
In today's environment of well-deserved hypersensitivity to corporate compliance as mandated by the SEC and the Sarbanes-Oxley Act of 2002 (SOX), the thought of unauthorized parties viewing or altering privileged corporate records should strike fear in the heart of any corporate compliance officer. That threat can quickly evolve into a reality if your corporation's law department implements an electronic invoicing and matter management system in an application service provider (ASP) environment.
The Bell Keeps Tolling
November 28, 2006
Selective waiver of the attorney-client privilege is a lonely doctrine indeed. Since the Eighth Circuit first adopted it in the 1977 <i>Diversified Industries</i> case, the notion that a litigant may disclose privileged material to government enforcers without waiving the privilege as to third parties has hardly won fans among federal courts of appeal. Most recently, in June, 2006, the Court of Appeals for the Tenth Circuit weighed in on the viability of selective waiver. The <i>In Re: Qwest Communications Int'l</i> decision is precisely what advocates for selective waiver needed least; it is a comprehensive evaluation, and rejection, of nearly all of the cogent arguments advanced in favor of the doctrine.
NLRB Rulings Regarding Supervisors Provide Clarity and Controversy
November 28, 2006
Before the National Labor Relations Board (NLRB) issued its recent decisions in the Kentucky River cases, union leaders and activists predicted dire consequences ' potentially stripping millions of workers, especially in the healthcare industry, of their rights to join a union. Unions, which are trying to attract more employees to their ranks, staged rallies and other events to draw attention to these cases. <br>But the decisions did not dramatically redraw the lines for determining which workers are considered supervisors and which are not. Instead, they provided guidance that will be helpful to employers and unions alike in determining the status of workers whose classification falls into the gray area between supervisor and employee. The analysis remains highly fact-specific and appears unlikely to create the dramatic effects predicted.
The Importance of <i>Wa</i> When Doing Business in Japan
October 30, 2006
Volumes have been written on the supposed non-litigious nature of the Japanese, usually citing statistics showing there are hundreds of times fewer attorneys and lawsuits per capita in Japan as compared to the U.S. These statistics are generally misleading because they fail to take into account the structure of the Japanese court system itself, which presents significant barriers for litigants. <br>This article focuses on two aspects of Japanese culture that noticeably affect the Japanese approach to business relationships. First, the Japanese insistence on preserving harmony as evidenced by consensus decision-making, avoidance of confrontation and attention to formalities of rank and seniority. Second, the importance of mutual trust to the business relationship as evidenced by the emphasis on non-business discussions.
Competitive Intelligence: A Tool for In-house Counsel
October 30, 2006
Competitive Intelligence has long been used by corporate America to analyze trends, client feedback, and marketing strategies to get an edge. It's the newest buzzword among law firms to win more market share and retain clients. But it's barely a whisper in law departments, at least when it comes to selecting outside counsel.
<i>Trenwick America</i>
October 30, 2006
The issue of directors' and officers' liability for deepening insolvency has been the source of a significant number of judicial opinions over the past few years with little consensus being reached on the viability of these claims. This may have changed however. Despite the Delaware Bankruptcy Court's recent decision, <i>In re: Scott Acquisition Corp.</i>, 2006 WL 1732277 (Bankr. D. Del. 2006), which ruled that directors and officers of insolvent subsidiary companies owe fiduciary duties to both its creditors and the subsidiary itself. The Delaware Chancery Court, Vice Chancellor Leo E. Strine presiding, subsequently and resoundingly waded into the breach of fiduciary duty and zone of insolvency arena with its decision in ,<i>Trenwick America Litigation Trust v. Ernst &Young, L.L.P., et al.</i>
Backdating Issues
October 30, 2006
The recent wave of investigations and lawsuits involving the alleged backdating of stock options promises to become one of the most widespread corporate crises in recent years. As these allegations mount, targets of the investigations will look to their insurance companies to help pay their potentially substantial defense costs and any resulting liabilities. <br>At the same time, insurance companies will be looking for ways to minimize, or even evade entirely, their coverage obligations. As a result, targets of backdating investigations must move quickly to protect their insurance coverage.
Counseling the Corporate Board
October 30, 2006
The composition of the modern corporate board has evolved into a complex and sophisticated governing body that places increasing demands on the lawyers. In the post Enron and Sarbanes-Oxley world, corporate boards continue to be comprised of directors with their own myriad personal and business agendas. These boards, however, have also become more mindful and responsive to watchdog agencies, and have a renewed focus on board independence, financial expertise and diversity. There is, therefore, an increased need for adaptable, experienced, and informed lawyers ' both in house as well as outside a given company ' to counsel the board and its members on these and other controversial issues. The best practices for doing so, including those addressing how to better understand the client board's structure, culture and goals, as well as the board member's personal concerns, is the subject of this piece.
Recharacterization
October 30, 2006
In the recent case of <i>In re Dornier Aviation (North America), Inc.,</i> the United States Court of Appeals for the Fourth Circuit held that ' 105(a) of the Bankruptcy Code provides the bankruptcy court with authority to recharacterize a claim from debt to equity. In upholding the recharacterization of a parent's $84 million claim against its wholly owned subsidiary, the Fourth Circuit made clear that form will not prevail over substance in the context of inter-company transactions. The Fourth Circuit failed, however, to provide any guidance on how inter-company transactions might be structured to avoid recharacterization under ' 105(a). This article presents one obvious, albeit not often utilized, solution: Parent corporations should collect debts due and owing from their subsidiaries to avoid the possibility of being relegated to the unenviable position of an equity investor in the event of a bankruptcy proceeding.
ADA Mental Illness Claims Increase in The Workplace
September 28, 2006
As the stigma of mental illness lessens, employers are handling more frequent requests for accommodation under the Americans with Disabilities Act (ADA). Because serious physical impairments are often easier to identify and accommodate, learning to handle the gray areas of mental disorders as they relate to the ADA can be a challenge for employers.
