Features

In a substantial win for businesses, the U.S. Supreme Court recently issued a decision imposing strict requirements for lawsuits by private whistleblowers. Under the federal False Claims Act, once allegations of fraud are publicly disclosed, a relator (as citizen-plaintiffs are called) may bring suit on the government's behalf only if the relator is an 'original source.' In <i>Rockwell International Corp. v. United States</i>, the Court rejected the notion that a relator need only have knowledge of background facts about alleged fraud, even if those facts preceded the fraud. Instead, the Court held that a relator must have direct and independent knowledge of <i>the specific misconduct for which liability is actually imposed.</i>

As federal investigators examine the stock option programs of more than 160 companies, innumerable other companies launch internal investigations. As top executives resign, shareholders file dizzying numbers of derivative class action suits. Finally, as the Securities Exchange Commission and Department of Justice bring enforcement actions and criminal charges, the media is vilifying the so-called stock option backdating scandal as the biggest example of corporate abuse since Enron. The option backdating media frenzy focuses upon investigations by federal prosecutors and other regulatory agencies into public companies that have employed stock option compensation plans for corporate executives and employees.

On Feb. 8, 2007, the Internal Revenue Service ('IRS') made an usual offer to employers: on very short notice ' by Feb. 28, 2007, employers could inform the IRS of their intent to pay the back taxes and penalties owed by (non-insider) employees who exercised stock options with 'an exercise price of less than fair market value of the underlying stock on the date of grant in 2006.' Under this Program, companies with backdated options programs were 'allowed' to calculate and pay, by June 30, 2007, on behalf of their employees who exercised such options, a 20% penalty tax, and an additional 1% interest on underpayments, owed by such employees under ' 409A of the Internal Revenue Code ('IRC').

It is no longer acceptable ' if it ever was ' for in-house counsel merely to provide reactive assessments of legal risk presented by business people. Today, in-house lawyers must provide proactive solutions to their clients' problems, including solutions that mix legal advice with business-oriented suggestions. Of course, the attorney-client privilege protects only legal advice, and thus presents, at times, a difficult question: when has an in-house counsel provided non-privileged business advice instead of protected legal advice? That line is not always easy to draw, but a recent Second Circuit decision provides some guidance.

Climate change? Sustainable development? Greenhouse gases? Global warming? Traditionally, these concepts conjured up tree hugger-led environmental activists' warnings of the Earth's doom resulting from industrial fallout and natural resource use and misuse. Today, these hotly debated, frequently misunderstood scientific theories more often are the subject of critical analysis in corporate boardrooms, among business management and between leading U.S. CEOs. Despite some conflicting reports on the true effects of greenhouse gas emissions and other industrial-related impacts, all agree that the Earth's climate is warmer and continues to heat up annually. No consensus exists as to what can or should be done, how it shall be accomplished or by whom.

A rundown of national rulings.

Recent rulings of interest.

A long accepted and familiar concept in Anglo-Saxon countries, whistleblowing, for cultural and historical reasons, has proven to be a rather unwelcome legal obligation. France's total opposition to whistleblowing has softened over time and has been accompanied by a greater understanding and appreciation of its implications. Nevertheless, strong pervasive principles of French law continue to govern this domain.