• The Responsible Corporate Officer Doctrine

    December 01, 2016 |

    Briseno v. ConAgra

    The Food, Drug, and Cosmetic Act (FDCA) has historically allowed prosecutors to charge corporate employees with misdemeanors without having to prove personal participation or wrongful intent. But, as the use of the statute has become more frequent and penalties ha

  • The Bermuda Form

    December 01, 2016 |

    Declaring an Integrated Occurrence (or Not)

    Many Fortune 500 companies' product liability insurance programs use the Bermuda Form to insure alleged bodily injury and property damage. The Bermuda Form has many characteristics distinct from standard commercial general liability (CGL)

  • Protecting Counsel Privilege in a Post-Yates Memo World

    December 01, 2016 |

    In last month's newsletter, the authors put forward the proposition that attorney-client privilege issues, which can arise during internal investigations, have become even more complicated following the issuance of the Department of Justice's (DOJ) "Yates Memorandum." They continue their discussion

  • Will Ascertainability Split Finally Be Resolved?

    December 01, 2016 |

    Despite requests for change, the Judicial Conference Advisory Committee on Civil Rules declined to include ascertainability in its proposed changes to Rule 23. In addition, the U.S. Supreme Court recently rejected two petitions for certiorari earlier this year that would have addressed ascertainabil

  • Protecting Counsel Privilege in a Post-Yates Memo World

    November 01, 2016 |

    Part One of a Two-Part Article

    While the Yates Memo makes no formal changes to the DOJ's position on privilege with respect to cooperation credit for businesses, its practical implications could be far-reaching.

  • Optional Safety Equipment

    November 01, 2016 |

    Part Two of a Two-Part Article

    In last month's newsletter, the author began a discussion of the manufacturer practice of making increased safety features available to purchasers — but only for a price. The discussion concludes herein.

  • New York Rejects Federal Trend, Limits Common Interest Doctrine

    October 02, 2016 |

    Full and frank communication with another party's legal counsel is often necessary effectively to defend a client and to ensure compliance with the law. Thus, the question, "Under what circumstances may a company share privileged information with a third party?" is an important one.

  • Do Daubert Motions Really Work?

    October 02, 2016 |

    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.

  • Selling Products Without Optional Safety Equipment

    October 02, 2016 |

    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 t

  • Crisis: Controlling the Threats and Seizing the Opportunities

    September 02, 2016 |

    You might not be able to control when a crisis happens, but you can control how you respond, provided you've taken the time to prepare. While every crisis is different, there are a few key steps to follow to ensure that brands or businesses not only survive a crisis, but bounce back stronger.