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Business Crimes Bulletin
Challenges to the DOJ's Jurisdiction over Extraterritorial Conduct
David S. Krakoff, James T. Parkinson, Lauren R. Randell, Veena Viswanatha and Bree Murphy
Last month, the authors observed that the U.S. Supreme Court has in recent years attempted to limit the extraterritorial reach of federal courts, making it harder for them to get personal jurisdiction over foreign defendants The results of these efforts have been less than stellar. However, as the authors point out here, there are some defenses that may still work.
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Business Crimes Bulletin
In-House Counsel
Ty E. Howard and Todd Presnell
Internal investigations have always posed vexing issues for in-house counsel. They need to make difficult decisions on matters such as scope and purpose of the investigation, who will conduct the investigation, how costs will be controlled, and the work product that they will generate.
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Business Crimes Bulletin
Recent Developments in the Responsible Corporate Office Doctrine
Joseph F. Savage, Jr. and Kate E. MacLeman
Until recently, the typical FDCA case has involved an executive who pleaded guilty to one or more misdemeanors in the face of DOJ allegations of felony misconduct. But until the Supreme Court clarifies the bounds of the FDCA, district courts will struggle with identifying the necessary elements of individual criminal liability.
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Entertainment Law & Finance
Jeter Endorsement Dispute Examines Role As a Director of Apparel Company
Richard Birns, Benyamin Ross and Andria Montoya
Contracts between a corporation and a corporate director can give rise to certain difficulties in managing expectations of the director's obligations and responsibilities. Such contracts may create obligations that extend beyond those fiduciary duties inherent to the director position. This extension of the director's role may increase the risk of a conflict between a director's contractual obligations and his fiduciary duties.
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Entertainment Law & Finance
Beats Headphones Royalty Dispute Saga Heads to Trial
Amanda Bronstad
Former hedge fund manager Steven Lamar, who helped launch Dr. Dre's Beats headphones a decade ago, won the right to go to trial against the rap artist and record producer after the California Court of Appeal revived his $100 million case over unpaid royalties.
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Employment Law Strategist
The New FCPA Cooperation Plan
E. Fredrick Preis, Jr. and Rachael Jeanfreau
The DOL recently issued its final overtime rule revamping the white collar exemptions under the Fair Labor Standards Act for executive, administrative, professional, and highly compensated employees. This Final Rule, effective Dec. 1, 2016, rolls out major changes for employers.
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Entertainment Law & Finance
WB's Takedown Notices Aimed at Entertainment Co.'s Own Websites
Jennifer Williams-Alvarez
Critics of the DMCA got some ammunition recently, when Warner Bros. asked Google to take down hundreds of copyright-infringing websites ' only to later realize that it had included legitimate sites and some of the entertainment company's own official pages. The blunder dredges up questions about whether the current notice-and-takedown system is working for both copyright owners and service providers.
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The Intellectual Property Strategist
Supreme Court Term Promises to Be IP Blockbuster
Scott Graham
With four IP cases on the docket and several more knocking at the door of certiorari, the U.S. Supreme Court is poised for a banner year of patent, trademark and copyright decisions.
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Employment Law Strategist
Courts Address When an Alleged Employee Hacking Is a Crime
Results have been mixed for employees accused of hacking into the databases of their own companies, competitors and potential business partners. This article discusses three recent cases in this area of law.
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Employment Law Strategist
Why Cybersecurity Is an Important Employment Law Issue
The case described herein involved misuse of confidential information by present and former employees. Although this case involved mortgage companies, the lessons learned are valuable to any business.
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Employment Law Strategist
Commentary: Recent LGBTQ Laws Have Broader Effect on All Workers
Commentary: The 14th Amendment promises equal protection under the law, meaning that governments can't single out and punish groups of people for no reason. But the U.S. Supreme Court has been consistently vague about what that means for LGBTQ people. That may change soon.
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Commercial Leasing Law & Strategy
Going Green in Commercial Leasing
Courtney K. Hunt
Millennials have started altering consumer trends and pushing for sustainable offerings. In this environment, it becomes important for landlords and tenants alike to make a large, positive environmental impact by constructing and leasing facilities that are more energy efficient.
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Commercial Leasing Law & Strategy
Defining 'Occurrence' in Insurance Can Have Major Impact in Recovery
Jason L. Shaw
Occurrence" in an insurance policy is a fickle word. Sometimes it means only one. Other times it means many. Moreover, courts may treat the meaning of "occurrence" differently depending on whether it is an occurrence in a first-party property damage claim or in a third-party liability claim.
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Commercial Leasing Law & Strategy
Brokerage Commissions
David P. Resnick
When negotiating the terms of a new relationship with a leasing broker, an owner of a multi-tenant commercial property or a tenant seeking to sublease its space may be presented with a written brokerage agreement that is lengthy and complex. The amount of commission payable and the time and manner of that payment can be difficult to discern from boilerplate provisions.
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Cybersecurity Law & Strategy
Data Breach Prevention and Information Governance Go Hand-In-Hand
Jake Frazier
Information governance has a wide range of varying definitions, depending on whom you ask. Some consider it to be an amorphous collection of policies that are difficult to translate into the real world. Others view it as a holistic strategy document, or a series of discrete, tactical projects that implement best practices in data security or storage optimization.
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Cybersecurity Law & Strategy
China's Second Draft Cybersecurity Law's Expanded Data Localization Requirement
Tiana Zhang, Jodi Wu, Sally Han and Mike He
Cybersecurity has remained a priority for the Chinese government in 2016. The second draft of the Cybersecurity Law was released for public comment on July 5, 2016. Although still in draft form, when it is adopted, the Cybersecurity Law will impose a number of requirements on companies with business operations within the territory of China that have been subject to heated discussions among multinational companies (MNCs).
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Cybersecurity Law & Strategy
Cybersecurity Comes Together in Legal and Finance
Ricci Dipshan
Since the dawn of the new millennium, technology has been expanding the reach and ability of criminals at breakneck speeds. Regulators have constantly found themselves running behind a new era of cyberthreats and dangers, struggling to respond to accidents while fortifying the road ahead.
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Cybersecurity Law & Strategy
Four Ways Big Data Can Help Win Your Next Case
Lauren Bakewell
Analyzing data and providing the right kind of data is critically important to every aspect of legal activities. When you're expecting data to act as a secret weapon in the sales process, the courtroom, or to provide a strong foundation for your firm, the quality of your information is priceless. To uphold your firm's integrity and ensure its success, it's time to get your staffers off Google and arm them with data intelligence.
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Cybersecurity Law & Strategy
Legal Tech: Ten Technologies That Will Make You Smarter, Faster (and Better Looking)
Dan Lear
As a fan of technology, and legal technology specifically, I spend a lot of time researching what's new, helpful, or just plain interesting. Below are my top 10 as of this moment in 2016. All of them will either help improve how you run your law firm, plan for retirement, or will improve your personal life in some small but excellent way.
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Accounting And Financial Planning For Law Firms
Privacy and Security of Personal Information Collected by Benefit Plans
High profile cyberattacks and data breaches have become routine occurrences. Cyber threats are so pervasive that many privacy and security experts advise that responsible parties ' like fiduciaries of employee benefit plans ' should prepare for when a data breach occurs, not if. Plan sponsors and fiduciaries should be aware of, and address, security and privacy issues in connection with personal information.
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Accounting And Financial Planning For Law Firms
Outsourcing Is No Longer a Four Letter Word
With 70% of law firms outsourcing a portion of their back office and 45% considering outsourcing some middle office functions, it is clear that outsourcing is on the rise in law firms. This is because, when executed correctly, it can be an excellent management tool to increase service levels, broaden talent and manage costs.
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Accounting And Financial Planning For Law Firms
Retiring Boomers Pose Big Challenges For Firms
On June 30, securities litigator James Benedict, 66, walked out of his office at Milbank, Tweed, Hadley & McCloy for the last time as a partner and caught a plane to Vail, Colorado, to begin the next chapter of his life.
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Notice Requirement Clarified for Successor Liability Protection in Chapter 11 Asset Sale Orders
Michael L. Cook
A bankruptcy court's asset sale order limiting specific pre-bankruptcy product liability claims required prior "actual or direct mail notice" to claimants when the debtor "knew or reasonably should have known about the claims," held the Second Circuit in July.
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The Bankruptcy Strategist
Millennium Lab
Marion M. Quirk and Jonathan A. Grasso
Prepetition, Millennium Lab Holdings II, LLC, Millennium Health, LLC, and RxAnte, LLC reached a settlement with various government entities relating to, among other things, claims against the Debtors for violations of the Stark law, Anti-Kickback Statute and FCA. Here's a discussion of this pivotal case.
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The Bankruptcy Strategist
Bankruptcy Code, International Trade Treaty Collide over Expense Status
Michael J. Abatemarco and Anthony Michael Sabino
It is inevitable that the Bankruptcy Code will sometimes intersect with international trade law, as it has done for decades with domestic commercial law. Those three domains recently came together in the context of a creditor's Section 503(b)(9) administrative expense claim, and a federal district court was called upon to sort out which body of law took precedence.
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Equipment Leasing Newsletter
The Troubled Energy and Production (Oil and Gas) Sector
The oil and gas exploration sector in North America has been crushed by high debt, globally low oil prices and regional overcapacity. The result: Over 100 oil and gas exploration and production companies have filed for bankruptcy over the past 18 months, and dozens more are expected to follow.
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Joint Ventures and Strategic Partnerships After the Defend Trade Secrets Act of 2016
Christopher Pelham and Frederick D. Friedman
American companies, and foreign companies doing business in the United States, routinely collaborate with outside entities in mutually beneficial joint ventures and strategic partnerships. In that process, however, these companies can risk losing protection for their critical trade secrets to outsiders.
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The Corporate Counselor
Quarterly State Compliance Review
Sandra Feldman
This edition of the Quarterly State Compliance Review looks at some legislation of interest to corporate lawyers that went into effect between Aug. 1 and Oct. 1, 2016, including amendments to Delaware's corporation and LLC laws. It also looks at some recent cases of interest, including two decisions from the Delaware Chancery Court.
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The Corporate Counselor
Five Tips for Buying Cyberinsurance
Peri N. Mahaley
Massive cyberattacks and data breaches have become routine. The window of opportunity for obtaining insurance coverage for the resulting costs under "traditional" first-party or general liability policies is rapidly closing. Here's what you need to know.
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The Corporate Counselor
Employee Benefit Plan Information
Marc Bussone
High-profile cyberattacks and data breaches have become routine occurrences. Cyber threats are so pervasive that many privacy and security experts advise that responsible parties ' like fiduciaries of employee benefit plans ' should prepare for when a data breach occurs, not if.
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The Corporate Counselor
The Internal Audit Function
William L. Floyd
Among the many responsibilities of an audit committee, overseeing the function of internal audit can be among the more challenging and complex. As a result, it is common for an internal audit function to be required and the scope of that function subject to the oversight of the audit committee. From a governance perspective, what is the mission of internal audit?
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The Corporate Counselor
Clarifying the Meaning of 'Stockholder'
Jack Jacobs and S. Patrick Kelly
In a decision with facts egregious enough to justify two references to the definition of "chutzpah," Vice Chancellor Sam Glasscock III of the Delaware Court of Chancery provided helpful guidance on how to establish and refute "stockholder" status for purposes of bringing an action to inspect corporate books and records under 8 Del. C. Section 220.
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The Matrimonial Strategist
New Jersey and the Emancipated Child: Changes Are on the Way
The State of New Jersey will soon have new limits on the duration of child support in the case of emancipation, thanks to a law that goes into effect on Jan. 1, 2017. Until then, the courts are still being asked to clarify when child support for an emancipated child should stop, and under what circumstances.
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Law Firm Partnership & Benefits Report
Money Laundering Case Puts Spotlight on Law Firms' Use of Trust Accounts
A $3.5 billion asset forfeiture case that the DOJ brought in July grabbed the public's attention for the alleged purchases involved. But prosecutors also claim that prominent law firms used lawyer trust accounts to hold huge sums allegedly pilfered from the government of Malaysia and laundered through U.S. institutions.
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Marketing The Law Firm
Marketing Tech: 10 Technologies That Will Make You Smarter and Faster (and Better Looking!)
Dan Lear
If you needed any proof at all that we're living in an online world, this one simple fact should confirm it: There are over two million apps in the Apple store for iOS devices. Which make the most sense for you?
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Equipment Leasing Newsletter
Cross-Border Leasing
Court-appointed receivers typically assume control over all of a debtor's property, including the debtor's leased equipment. The receivership order will also typically grant the receiver a priority charge over the debtor's assets in order to secure the receivers' fees and other costs. This is sometimes a point of contention with equipment financiers who would rather have their equipment excluded from the receivership.
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Equipment Leasing Newsletter
Challenges in Solar Equipment Finance
This article is the second in a two-part series exploring state law limitations on various methods of financing solar equipment. It explores the laws in various states related to solar leases and the differences between solar leases and PPAs, as well as the implications of such laws on the financing industry and its customers.
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The Matrimonial Strategist
May a Judge Render a Scientific Opinion Without Expert Advice?
What if a judge decides to render a decision on an issue on which no one has asked the judge to opine, and on which no evidence has been presented? That is what a judge in Pennsylvania did in 2015 when she decided ' despite the fact that the issue had not been raised by either party ' that a litigant mother had a "severe undiagnosed and untreated mental illness."
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Medical Malpractice Law & Strategy
3D Printing and Product Liability in the U.S. and UK
The potential for product liability claims concerning objects created via 3D printing is obvious. Last month, the authors discussed some of these. Now, they look at how the law is developing in two countries ' the United States and Great Britain ' as their legal systems attempt to assign liability to the correct actors.
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Medical Malpractice Law & Strategy
The False Claims Act After Escobar: A Three-Part Test
In a unanimous opinion in Universal Health Servs. v. United States ex rel. Escobar, 195 the Supreme Court provided a new framework for assessing false certification liability under the False Claims Act (FCA).
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Product Liability Law & Strategy
Do Daubert Motions Really Work?
More than 20 years into the Daubert era, a surprising number of litigators still have doubts and disagreements about the effectiveness of motions in limine challenging the admissibility of federal court opinion testimony under Federal Rules of Evidence (FRE) 702.
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Internet Law & Strategy
Internet Content Changes White-Collar Criminal Litigation Tactics
The federal government engages in certain tactics to reduce the effort associated with white-collar criminal litigation. Among the most criticized are the government's efforts to pressure corporations to waive the attorney-client privilege or work-product protection.
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Law Firm Partnership & Benefits Report
Executive Presence
Lawyers who exhibit "executive presence" are more likely to make partner, to gain clients' trust and loyalty, and to receive referrals from others. This article discusses what executive presence is and how you can learn it.
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Marketing The Law Firm
Social Media Scene: 2016 -- The Year Everything Changed in Social Media Marketing
Larry Bodine
Three megatrends culminated in online business development in 2016, requiring attorneys to change their digital marketing tactics and to re-focus on what produces results.
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The Internet Is Not a Consequence-Free Zone
The widespread use of social media, and the corresponding ability to create, share, and misappropriate content ' all in an instant ' has radically increased the number of unwitting copyright owners and infringers.
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Marketing The Law Firm
Voice of the Client: Not If, But When Your Fortune 500 Client Goes Out of Business
When lawyers and marketers think about losing clients, they think primarily of being displaced by another law firm or, these days, by technology, in-sourcing, or an alternative service provider ' or even having the relationship partner take the client with her to another firm. But what if that big client was no longer buying from anyone?
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The Intellectual Property Strategist
IP News
Federal Circuit: Actual Controversy Existed When Patent Owner Did Not Know Existence of Specific Products
Federal Circuit Upholds Prosecution Estoppel Determination
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The 'Gray Divorce' Phenomenon
An 82-year-old client recently requested a divorce from her husband of 57 years. When asked why, she responded, "I want to live a little before I die." And she is far from the only one.
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Medical Malpractice Law & Strategy
Update: The ACOG's New Opinion on Obstetric Violence
In June, informed refusal and obstetric violence were the topics of a panel counsel discussion at the American Conference Institute's 13th Annual Advanced Forum on Obstetric Malpractice Claims. Also in June, ACOG an opinion on Refusal of Medically Recommended Treatment During Pregnancy. With the maturing of the topic in the media and legal discussions, it's time to take a look at the recent developments.
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Product Liability Law & Strategy
Selling Products Without Optional Safety Equipment
The American consumer is bombarded with advertisements extolling the features of thousands of products ranging from motor vehicles to smartphones. The ads focus on the most distinct features of each product and barely mention that many of these features can only be acquired if the consumer selects the most expensive version of the product.
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