Patents No Longer Carry a Presumption Of Market Power in Tying Cases
April 26, 2006
The United States Supreme Court's recent decision in <i>Illinois Tools Works v. Independent Ink</i> reversed almost 50 years of precedent holding that the owner of a patent was presumed to have market power in patent-related tying cases brought under the Sherman Act. The Court noted that Congressional amendments to the patent code explicitly finding that tying was not a per se patent misuse, coupled by the widely accepted view in academia that patents did not inherently lead to market power, had so eroded the legal doctrine supporting the presumption of market power in patent-related tying cases, that a new rule was appropriate. The Court held that in all future tying cases, the plaintiff must allege and prove that the defendant has actual market power in the tying product ' the mere existence of a patent is no longer sufficient.
Limiting the Liability of Private Employees For Constitutional Violations
April 26, 2006
Over the last decade, one of the major trends in this country has been the privatization of services by governments. The federal government has increasingly ' with the approval of Congress ' contracted out to private entities functions that historically had been performed only by governments themselves.<br>This privatization of federal services has spawned a variety of legal issues. One of the most significant is whether employees of these private entities can be sued for monetary damages, in the same fashion that public employees can be sued, by people who assert that these employees violated their constitutional rights. The U.S. Court of Appeals for the Fourth Circuit recently shed light on this issue in the case of <i>Holly v. Scott</i>.
Clearing Up Executive Compensation
April 26, 2006
The U.S. Securities and Exchange Commission (SEC) published its proposal to revamp the rules governing the disclosure of executive and director compensation on Jan. 27, 2006. The proposed rules stand to significantly alter the compensation disclosure requirements applicable to registration statements, proxy statements, annual reports and Form 8-Ks, and are intended to ensure that investors receive disclosure that is 'clearer and more complete.' The regulations are the first attempt at a major overhaul of compensation disclosure since 1992 and were proposed in response to the widespread criticism that the current disclosure requirements do not engender a complete and accurate description of executive pay packages. <br>The proposal, to adapt the old saying, combines something old, something new and something borrowed.
Morgan Hops Over China's Hurdles
April 05, 2006
When Morgan, Lewis & Bockius announced that it had landed the right team of lawyers to open an office in Beijing and the permission of Chinese authorities to do it, it was a double coup. <br>While obtaining a license to practice in China isn't the mystery it used to be for U.S. firms, it's still an arduous process. Firms can wait as long as a year to get an answer from local officials and the Chinese Ministry of Justice, as Morgan, Lewis did. And that's after completing the lengthy application that must be notarized, approved by U.S. agencies and then translated into Mandarin.
Final Military Leave Regulations Issued By DOL
March 28, 2006
On Dec. 19, 2005, 11 years after Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA), the U.S. Department of Labor issued final regulations under USERRA which became effective Jan. 18, 2006. The final regulations can be found at 20 Code of Federal Regulations (CFR), Part 1002. The DOL suggests these final regulations do not impose any new obligations on employers, but rather, serve as an implementation of the statutory requirements, as well as to clarify and interpret areas of the law. However, these regulations, the first ever issued under USERRA, turn the internal guidance of the DOL into binding regulations.
Is Your Intellectual Property Portfolio Primed and Ready For A Financing Event?
March 28, 2006
A corporate lawyer must address a myriad of issues when called on to assist in a merger, acquisition or corporate financing transaction. If the company being acquired or financed has intellectual property assets, the first order of business should be to enlist the aid of IP counsel. <br>Although it is likely in transactions of this type that corporate counsel will experience some degree of sleep deficit, hopefully there will be fewer sleepless nights if an IP attorney is part of the due diligence team. Certain IP-related issues are readily dealt with by experienced corporate counsel. Frequently, however, corporate counsel lacks the time, specific IP legal expertise, or technology-specific knowledge required to identify and resolve issues involving intellectual property assets ' issues that may significantly affect the valuation of the company involved in the corporate transaction.
The Company's Right To Know v. The Anonymous Critic's Right To Remain Unknown
March 28, 2006
This question is becoming increasingly important with the proliferation of blogs and Web postings for corporate criticism ' from wakeupwal mart.com to www.googlereallysucks.blogspot.com. And whether companies and their in-house counsel pursue actions against bloggers in these cases involves more than the usual assessment of opportunity costs and the pure business interests of the company. There are limits to the rights of companies to compel an Internet Service Provider (ISP) to reveal the name of its customer, particularly when the ISP customer wishes to remain anonymous. This article explores what the courts are requiring companies to show before they will call for an ISP to divulge a blogger's identity and provides some guidelines in evaluating whether to pursue such a strategy.
Looking Ahead To The 2006 Proxy Season
March 28, 2006
As the 2006 proxy season gets underway, shareholder activism shows no signs of slowing. Over the last few years, high-profile corporate scandals and news stories about executive excess and corporate waste have compelled many investors to seek ' or demand ' a more active role in corporate governance matters of the companies they own. Now that most companies have implemented the changes required by the Sarbanes-Oxley Act of 2002 and the stock exchanges, the agenda of the shareholder activist is changing.
'Improper Benefit' Key To SEC Policy
March 28, 2006
On January 4, Securities and Exchange Commission Chairman Christopher Cox announced the SEC's unanimously adopted policy on the use of the its enforcement powers to impose monetary penalties on public companies for securities law violations. According to the policy, when deciding whether to impose fines, the SEC will focus on whether a corporation's violation provided an improper benefit to the company and its shareholders. If so, the SEC will be inclined to seek fines to deter future conduct. Conversely, the SEC will be less likely to pursue fines in cases where they would result in further harm to shareholders already injured by a corporation's actions. This article examines the new SEC policy regarding fines and its implications for corporations and shareholders.
Civil RICO Claims And Immigration Law Violations
February 27, 2006
Can a U.S. corporation and agents acting on its behalf constitute an "enterprise" under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. ''1961-1969 (RICO)? If the answer is yes, U.S. corporations which use outside entities to carry out any of their business functions could find themselves liable under RICO for a broader range of corporate conduct than ever before, which would almost certainly have a chilling effect on U.S. business activities. So far, the Courts of Appeals have split when addressing this question. However, as is customary when there is a conflict in the Circuits on an important federal issue, the U.S. Supreme Court recently agreed to resolve this conflict in <i>Mohawk Industries, Inc. v. Shirley Williams et al.</i>, and will soon provide much-needed guidance.
