Commercial Law

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The misappropriation theory of insider trading, which was first recognized by the Supreme Court in <i>United States v. O'Hagan</i>, 521 U.S. 642 (1997), establishes liability for individuals who are not typical 'insiders' of companies and also appears to offer such defendants a specific defense to insider trading charges. The O'Hagan Court based the misappropriation theory on a duty owed by the defendant to the source of non-public material information, rather than to the shareholders of the company whose stock was being traded. Because a defendant prosecuted under the misappropriation theory had a duty only to his source, the Court explained that a defendant's disclosure to the source of information prior to trading or tipping could neutralize the acts of deception necessary for a securities fraud claim.

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Litigation involving asbestos, which was used for decades as a fire retardant in many products, has littered the legal landscape for years. Several major companies have over the course of the last several years filed for bankruptcy as a result of the onslaught of this litigation. Since the 1980s, many asbestos manufacturers, including Johns Manville, declared bankruptcy under the weight of liability payouts. To date, an estimated 85 companies have filed for bankruptcy claiming asbestos liabilities as the cause. A Rand Institute for Civil Justice report indicates that more than 730,000 asbestos claims have been filed since the early 1970s. Roughly 200,000 claims are still pending in state and federal courts nationwide. Estimates predict that up to 2.4 million claims still may be filed before asbestos litigation finally runs its course.

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In the last ten years, the credit derivatives market has grown from its infancy to approximately $26 trillion of notional value according to the International Swaps and Derivatives Association, Inc. ('ISDA'). The most highly utilized type of credit derivative, the credit default swap, is used by investors to bet on a company's creditworthiness or hedge a position in a fashion that protects against the company's failure to make a payment or satisfy other terms.

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It has often been said that the most frequently violated federal employment-related statute is the Fair Labor Standards Act ('FLSA'), 29 U.S.C. '' 201-19 (Supp. 2006). This law, enacted in 1938, regulates, among other things, the payment of overtime to employees who work for employers. Our experience indicates that most, if not all, employers do not intend to violate the provisions contained in the FLSA but, instead, do so out of ignorance of its requirements. This article highlights some of the key provisions of the FLSA, makes reference to recent pronouncements by the United States Department of Labor (the federal agency principally responsible for interpretation of the statute) and presents advice on how to avoid the pitfalls inherent in the FLSA.

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An end-of-year (Nov. 29) Delaware Chancery Court decision, <i>Esopus Creek Value LP v. Hauf</i>, No. 2487-N (Del. Ch. Nov. 29, 2006), is receiving a great deal of attention from corporate transactional and corporate restructuring attorneys alike. In <i>Esopus</i>, the Delaware Chancery Court prevented a financially sound company that was prohibited by federal securities law from holding a shareholder vote, because it failed to meet its reporting requirements, from executing an agreement outside of bankruptcy to sell substantially all of its assets under Section 363 of the Bankruptcy Code without first obtaining common stockholder approval as required under Section 271(a) of the Delaware General Company Law ('DGCL').

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In today's litigation world, corporate counsel struggle to contain the ever-increasing costs of document discovery. The explosion of electronically stored information ('ESI') is often a huge contributor to the expense of discovery. Consultants, vendors, and e-discovery software can help bring greater efficiencies and cost-savings to the process. But while there is a dizzying array of options available, they are not all created equal. Finding the right solution requires that you do your homework.

A federal judge sitting in Philadelphia has struck down the 1998 Child Online Protection Act ('COPA') on March 22. The Act was challenged as unconstitutionally vague by health Web sites and the American Civil Liberties Union ('ACLU').

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In-depth analysis of the latest verdicts.