Is Your General Release Enforceable?
October 03, 2005
In a decision that caught many employers by surprise, the U.S. Court of Appeals for the Fourth Circuit recently held in <i>Taylor v. Progress Energy, Inc.</i> that claims arising under the Family and Medical Leave Act(FMLA), including post-dispute claims, cannot be waived or settled via private agreement between an employee and employer. The only other Court of Appeals ever to consider this issue in the dozen years since the FMLA was enacted reached an opposite result. In light of <i>Taylor</i>, employers inside and outside of the Fourth Circuit must now review the language of their general release agreements and evaluate what, if any, changes are needed.
What You Need to Know About Managing a Patent Mega-Case
October 03, 2005
With the expanded use of patents to protect business innovation, high-stakes patent litigation has become an unwelcome byproduct of business success. Increasingly, such litigation involves numerous patents on different technologies asserted by each side in several forums around the world. The resulting "mega-case" presents a strategic and logistical challenge that tests the skills of the best patent litigators. Unless those challenges are met efficiently, the costs of the mega-case can quickly spiral out of control.
Post-<i>Phillips</i>: Will The Trial Courts Receive More Deference in Patent Cases?
October 03, 2005
The most important question in every patent case is "what do the claims mean?" The district court answers this question in its claim construction ruling. Presently, every aspect of a district court's claim construction is reviewed <i>de novo</i> by the United States Court of Appeals for the Federal Circuit. <br>The problem of <i>de novo</i> review is tied to the nature of patent claims themselves. Patent claims, the series of numbered paragraphs at the conclusion of the patent, define the scope of the patent owner's rights. Yet, because of the technical nature of inventions, the determination of the scope of rights is not easily made.
Arbitration Do's And Don'ts
October 03, 2005
When faced with a transaction in which the arbitration of potential future disputes would offer advantages over court litigation or other forms of dispute resolution, a critical first step is to create a workable, enforceable arbitration agreement. In most instances, this agreement will be the "arbitration clause" included in the contract. A poorly drafted arbitration clause can create time-consuming and costly delays to the arbitration process. Arbitration agreements must be drafted carefully, and expert advice should be sought on all but the most straightforward two-party, single-contract cases.
Corporate Minutes: What SOX Has Wrought
August 30, 2005
Until recently, the subject of corporate minutes seemed about as interesting -- and received about as much attention -- as watching paint dry (or, for those who prefer another metaphor, watching grass grow). However, for a number of reasons, the subject now receives considerable attention from the legal and corporate governance communities, and from boards of directors themselves.
The Increasing Importance of Corporate Minutes
August 30, 2005
As corporate scandals continue to dominate the financial press, the actions taken by members of corporate boards of directors are under attack by the civil class action bar, the Securities and Exchange Commission, federal prosecutors, and state regulators. As the activities of board members are increasingly subjected to challenge in civil and even criminal proceedings, the existence of a clear record of the board's activities has become an increasingly critical element in establishing a corporation's decision-making process. Thus, boards of directors should take a fresh look at how their decision-making process is described in corporate minutes to ensure that the minutes will permit the directors to defend the actions taken in the boardroom, as well as to demonstrate that the directors have performed their oversight duties with appropriate care.
Hotline
August 30, 2005
Evidence of Post-Accident Repairs PermittedThe Third Circuit has ruled that under Federal Rule of Evidence 407, a plaintiff who sues only the manufacturer…
New FLSA Regulations And Recent Opinion Letters By The DOL
August 30, 2005
The Department of Labor's new Fair Labor Standards Act (FLSA) (Wage and Hour Regulations) regulations, which went into effect Aug. 23, 2004, are an attempt to modernize pay scales, increase employee coverage, and clarify rules for employers. The salary levels had not been updated since 1975. The Korean War had not yet begun the last time the primary duties regulations were revised, and until last August, the regulations included such anachronistic titles as "legmen," "straw bosses," and "key punch operators." Nevertheless, if one were to judge merely by the sheer number of opinion letters the U.S. Department of Labor (DOL) has issued since the regulations went into effect, it would seem that the new regulations have generated as much confusion as the previous regulations.
Walking the Compensation Committee Tightrope
August 30, 2005
Many people believe that the most difficult job of a director is being a member of the Audit Committee. However, in many ways being a member of the Compensation Committee is more challenging and much more likely to result in the director becoming subject to public scrutiny and possibly criticism.
