Five Tech Steps For GCs To Nip Compliance Issues In The Bud
February 27, 2006
Good business practice requires that companies take steps to ensure that their employees comply with company policies as well as with the laws, rules, and regulations that apply to them and their industry. An increasingly important part of that practice involves monitoring and storing electronic documents, including e-mails and their attachments and managing these documents throughout the information lifecycle. While an electronic document may have a direct business use of only a few minutes ' perhaps to signal agreement to a contract term ' this same document may have an afterlife of many years, during which it needs to be retained and managed.
Libeling Lawnmowers?
February 27, 2006
The tort of commercial disparagement falls generally within the penumbra of libel and slander-related claims, although it is overshadowed by the more commonly recognized version of the tort relating to personal claims (like those celebrities frequently bring against supermarket tabloids). Yet not only are claims based upon the libeling of an object a legitimate cause of action, they can result in verdicts for plaintiffs. A better understanding of this little-known tort is necessary if a company is to evade the risks it poses.
Building A State- of-the-Art Anti-Bribery Program
February 27, 2006
Anti-bribery laws have serious consequences for ordinary companies doing business internationally. Violations come to light during routine M&A due diligence, when competitors complain or employees blow the whistle, or when companies voluntarily disclose as a part of their Sarbanes-Oxley reporting obligations. When they do come to light, strong internal controls may shield executives from some liability and restore confidence amongst shareholders and regulators. <br>To mitigate the risk arising out of events like these, every company operating internationally should have a compliance program. The critical elements of a robust program are clear. With the right combination of leadership, training, and follow-up, companies can increase their chances of preventing or catching employees determined to break the law. An effective anti-bribery program need not be expensive or labor-intensive, but it does require management commitment, a systematic roll-out, widespread training, and diligent follow-up.
Hotline
February 02, 2006
Government supervision of cleanup is part of the cost of pollutingIn an 8-2 en banc decision, the Third Circuit has overruled its own precedent and held…
Sarbanes Oxley And The Non-Public Subsidiary: A Non-Sequitur?
February 02, 2006
By now, corporate counselors are well acquainted with the fact that the Sarbanes-Oxley Act (SOX) and its whistleblower protections apply to publicly traded companies. What is less well known is that the Sarbanes-Oxley whistleblower protections can also apply to non-public subsidiaries of publicly traded companies. Although the Department of Labor Administrative Review Board noted that it has not addressed the issue at the appellate level, a number of OSHA Administrative Law Judges (who hear SOX whistleblower cases at the trial level) have done so, and their decisions uniformly hold that SOX <i>can</i> protect the employees of <i>non-public subsidiaries</i> of publicly traded companies under certain circumstances. Those decisions also provide practical guidance for corporate counselors who want to limit SOX coverage strictly to the publicly-traded parent.
Voluntary Waiver At The Barrel Of A Gun
February 02, 2006
The federal government is no friend to the attorney-client privilege. That's just simply a fact. Perhaps no other factor lately has applied greater pressure on the privilege than the government's practice of insisting on waiver of the privilege as an indication of cooperation. Certainly other agencies have gotten into the act, but the Justice Department and the Securities and Exchange Commission (SEC) lead the charge in requiring corporate investigation targets to sacrifice confidentiality for the benefits of cooperation. <br>But for the corporate target, the immediate and practical implications of a government-demanded waiver are serious. A party's decision to waive the privilege can have significant consequences, not the least of which may be the inability to assert the privilege in downstream or parallel litigation that so often accompanies a government investigation.
Litigation Budgeting: No Crystal Ball Required
February 02, 2006
Litigation may be simply one of the costs of doing business, but it's no secret that the difficulty in predicting those costs adds to the frustration in corporate legal departments. Concerns about costs and how to control or predict them weave their way throughout a survey of corporate litigation trends commissioned for the second consecutive year by Fulbright & Jaworski L.L.P., and conducted by an independent research firm. This article discusses one of the most effective, yet surprisingly underutilized tools for managing litigation costs: the litigation budget from outside counsel.
Defining Metadata
February 02, 2006
Recently, the term metadata has become an electronic buzzword for litigators, their clients, IT personnel, courts and lawmakers. From the English dictionary to the proposed amendments to the Federal Rules of Civil Procedure, many information sources are attempting to define and clarify metadata, and its role in modern litigation.
Confidential Client Communications? Maybe Not
January 18, 2006
Former SEC Chairman William H. Donaldson noted in a March 5, 2004 speech that SOX was needed to deal with "a general erosion of standards of <i>integrity and ethics</i> in the corporate and financial world ... The acquiescence by the gatekeepers, like accountants, who turned their backs or actually condoned such accounting manipulation, combined with stock option incentives to management, fueled the short-term focus." (emphasis added).) Ironically, the SEC and the Department of Justice, which enforce SOX's criminal provisions, appear ready to burden the traditional ethical obligations of corporate legal counselors to keep client communications confidential in an effort to police the integrity and ethics of other corporate gatekeepers. To that end, the SEC imposes certain reporting requirements on corporate counselors, attempts to preempt state ethics rules, and DOJ prosecutors routinely pressure "target" corporations to waive the attorney-client privilege to obtain "cooperation" points. Corporate counselors must be aware of those initiatives to properly balance their competing obligations.
Non-Compete Agreements: What Every Corporate Attorney Needs to Know
January 03, 2006
Successful businesses want to protect their proprietary information, whether it is a "secret ingredient" or a customer list. Many companies seek to achieve this goal by requiring that all employees sign a uniform "non-compete" agreement in an effort to reduce the risk of economic harm when the employment relationship ends and an employee goes to work for a competitor. Businesses often are surprised, however, to learn that the agreements that they were counting on for protection will not be enforced by a court. This unpleasant result can be avoided through careful drafting up front. The key to drafting an enforceable agreement is to remember that there is no "one-size-fits all" document. The laws governing non-compete agreements vary from state to state, and understanding the nuances among the states will help attorneys with the drafting process.
