Recent developments of interest to corporate counsel.

Features

When prospective purchasers of businesses don't perform a thorough due diligence on the sellers, the result can be unneeded and protracted litigation. Due diligence should include investigation into trade secrets, other potential purchasers, covenants not to compete, seller's liabilities and insurance coverage. The purchaser should consider all 'what ifs' including claims and remedies during the due diligence period. What if the seller defaults? What if the seller breaches the representations and warranties? What if the seller violates the covenant not to compete? What if the seller discloses or has already disclosed to others acquired trade secret information? Paying too much too early to a seller without substantial assets or sufficient holdbacks are red flags. In the event of a seller's breach and purchaser's lawsuit, any resulting judgment may be uncollectible.

Punitive damages, traditionally a form of compensation awarded to punish the wrongdoer and simultaneously deter future misconduct, have long been a divisive issue within American law and business. For the former, centuries of law recognize the efficacy of a sizeable financial punishment, deliberately outsized in order to properly punish a larger wrong, and to make the miscreant and others similarly minded think twice before doing it again. The public policy has long outweighed the possibility that the particular victim may be rewarded with a recovery usually well in excess of the actual harm suffered. Yet business, particularly large corporations, contend that awards of punitive damages have grown monsterous, and completely out of proportion to the harm suffered. Defying rationality, such damages threaten the very existence of the business defendant, and only give windfalls to undeserving and avaricious plaintiffs and their counsel.

Section 307 of the Sarbanes-Oxley Act of 2002 requires the Securities and Exchange Commission (Commission) to adopt new standards governing the conduct of attorneys who represent public companies before the Commission. On January 23, 2003, the Commission adopted final rules to implement Section 307. The rules, which become effective on August 5, 2003, establish minimum standards of professional conduct for attorneys appearing and practicing before the Commission in the representation of an issuer as well as reporting procedures that must be followed if an attorney becomes aware of a 'material violation.' As discussed herein, establishing a Qualified Legal Compliance Committee (QLCC) could save issuers valuable time and create a more controlled and efficient process in identifying and rectifying potential material violations.

With the United States economy still struggling to regain its footing, many unions see this period of economic, and employment, instability as an opportunity to sway employees to seek the 'protection' of union membership. Recent reports indicate that labor union organizing efforts are on the rise nationally. Furthermore, as unions focus on improving their campaign strategies, the average rate of union victory has increased slightly. Many employers are finding themselves in the midst of fierce union organizing campaigns, the outcomes of which could impact the continued viability of the companies.

According to recent reports, approximately 220,000 reservists and National Guard members are on active duty. With the first phase of the Iraqi war nearing an end, many of these individuals may soon return home. This article answers some of the most frequently-asked questions by employers concerning their obligations to employees both while such employees are on military leave as well as when they return to work as civilians. An employer's obligations with respect to these issues is governed by the Uniformed Services and Reemployment Rights Act (USERRA).

Many corporate and litigation counsel know that oral settlement agreements may be enforceable. However, such counsel should be aware that terms discussed as mere possibilities during settlement negotiations may be mistakenly or knowingly misconstrued by an opposing party as an actual settlement agreement or an offer to settle. The former, or acceptance of the latter, could lead to two undesirable results if opposing counsel seeks enforcement by the court. First, the court could require an unwanted lengthy and expensive evidentiary proceeding to determine whether or not such an agreement occurred ' an outcome which would be based solely on the credibility of the witnesses involved. Second, and even worse, the court could enforce an unintended settlement agreement. In fact, if the underlying lawsuit is pending in federal court, such unintended and unwanted results could occur even if the otherwise applicable state law has a writing requirement.

Features

A French acquaintance recently commented that my job is very '' la mode.' She was not referring to ice cream; rather, she was suggesting that the role of the corporate governance officer is very trendy. There certainly has been a lot of media buzz about corporate governance in recent months, including reports that a growing number of public companies have designated governance officers. However, neither corporate governance nor the role of the corporate governance officer should be viewed as a fad that will soon pass from the scene. The effort to achieve and maintain good governance is here to stay; there is much evidence that the corporate and investment establishments are creating permanent infrastructures to develop, evaluate and continuously improve governance practices.