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Headlines describing $500-plus million settlements with the Department of Justice (DOJ) in False Claims Act (FCA) cases initiated by whistleblowers -- often former employees of defense contractors, pharmaceutical companies, and others doing business with the government -- have encouraged many disgruntled employees to try it themselves. But they can have a hard time making their own case if the government declines to intervene. Although the 1986 FCA amendments generally made the private action more available, the courts' interpretation of the FCA has not been easy on whistleblowers who stand in court without the United States at their side. As judges weed out unworthy cases, two trends run against the legislative goal of encouraging more whistleblowers, and invite instead a tactical corporate response that undercuts the legislative goal.
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Ever since the indictment and demise of Arthur Andersen in 2002, the stakes for businesses under governmental scrutiny could not be higher. The pressure on companies to cooperate and reach agreement with government investigators is no longer simply a matter of "doing the right thing," but has become a practical necessity for survival. Issues being litigated in two high-profile cases right now -- one involving the Enron Task Force's prosecution of Messrs. Lay, Skilling and Causey, and the other involving an investigation by the Connecticut Attorney General's office into corporate governance issues at Mass Mutual -- are exposing severe pressure points, and potentially serious breaking points, in the current realm of corporate cooperation.
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Your Scout manual was right ' you should always be prepared. And for lawyers, clients and other advisers alike, there is no substitute for doing homework. You can't control whether you're the smartest person in the room, or whether your client has the most leverage, but you are completely in control of who will be the most prepared person in the room. An important part of preparation is knowing all of the strengths and weaknesses of your position, as well as the positions of the other stakeholders. Pre-negotiation pre-paration gives everyone a sense of their goals for the negotiation, and the point beyond which it no longer makes sense to continue negotiating.
Recent bankruptcies in the airline industry have highlighted the liabilities associated with underfunded defined benefit pension plans. Debtors seeking to restructure and reorganize into viable entities have to make difficult business decisions related to their sponsorship of defined benefit pension plans. The future funding costs and investment risks associated with continued sponsorship of underfunded defined
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In May of this year, a bankruptcy court allowed United Airlines to terminate certain of its defined benefit pension plans, clearing the way for the largest pension default in U.S. history. The default will save United an estimated $645 million a year in pension contributions, part of the $2 billion in annual savings it says it needs to emerge from Chapter 11. United's success has led to speculation that other corporations with generous and/or underfunded pension and other retiree benefit plans will also use bankruptcy to clean 'legacy costs' off their balance sheets. Modification or termination of such liabilities in Chapter 11, however, is not without difficulty.
Until recently, the subject of corporate minutes seemed about as interesting ' and received about as much attention ' as watching paint dry. 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.
Federal judiciary supports citing unpublished opinionsThe Judicial Conference of the United States has approved new Rule 32.1 of the Federal Rules of Appellate…
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What does it take for a corporation to win a punitive damages case? A traditional defense focus on liability and compensatory damages is insufficient. To win, a focused defense to punitive damages must be prepared. <br>Preparing a punitive damages defense requires careful crafting, based on the unique facts of the case and a clear understanding of the corporation. While the punitive damages defense of each case is unique, there are a few steps that must be addressed in every punitive damages case in order to win.
E-mail and wireless marketers have been coping with some confusion for the last 2 years over the application of the federal CAN-SPAM Act to certain kinds of promotional e-mail campaigns. The agencies responsible for promulgating regulations under the Act recently have provided some important, practical guidance on the use of e-mail messages sent to wireless devices such as cell phones and the conduct of joint e-mail campaigns. Now, with guidance from the regulators, corporate counsel can not only know the legal requirements, they can also guide their companies in using the regulations to their own best advantage.