Fear and Loathing in Preservation
April 25, 2008
Most in-house counsel know the types of inquiries that should trigger evidence preservation or collection protocols. Once there is reason to believe there will be litigation or investigation, the duty to preserve kicks in immediately. But what's next?
Spring-Loading Options
April 25, 2008
Delaware courts are beginning to analyze claims concerning the controversial practice of spring-loading options. Spring-loading is the granting of options just prior to the release of favorable company information (in the company's possession at the time of the grant). The options are granted at a market price on the day of the grant. They are said to be 'spring-loaded' because upon release of the favorable news, the stock price is expected to rise and the options would then become 'in-the-money.'
Parent Corporations and Their Subsidiaries' Liabilities: Guidelines
April 25, 2008
There are many reasons to insulate parent and sibling entities from known exposure to which a particular subsidiary is subject. These include, in addition to the tort and federal regulations at issue in the <i>Forsythe</i> and <i>Bestfoods</i> cases, mentioned herein, vulnerability to the taxes, regulation and jurisdiction of a state or foreign nation. Protecting against such vulnerabilities are an important task for corporate counsel. This article explains.
Employee Reassignments Under the ADA
April 25, 2008
The United States Supreme Court was poised this term to decide an important issue arising under the Americans With Disabilities Act ('ADA') that has vexed employers for years. At issue was whether the ADA requires employers to reassign an employee who, due to a disability, can no longer perform the essential functions of his position, to a vacant, equivalent position for which he is qualified or whether the disabled employer must merely permit the employee to compete for such a position with other applicants. Unfortunately, the case of <i>Huber v. Wal-Mart Stores, Inc.</i> settled after the Supreme Court had granted certiorari to decide this issue, leaving an existing split among the circuits.
Are the Sentencing Guidelines More Than 'Advisory'?
April 25, 2008
The Second Circuit's recent decision in <i>United States v. Cutler</i> cast a cloud over the question of how far a sentencing judge can depart from the so-called 'advisory' Sentencing Guidelines. In late December 2007, the Supreme Court appeared to have settled that issue. It remains to be seen how the Second Circuit's law will develop in this area.
Supreme Court Revisits Money Laundering
April 25, 2008
On March 3, 2008, the U.S. Supreme Court heard arguments in the case of <i>Cuellar v. United States.</i> The decision, expected by the end of June, will interpret the 'intent to conceal' provision of the federal Anti-Money Laundering statutes.
Danger Zone: Tightening Export Controls
April 25, 2008
Export controls are a morass of overlapping jurisdictions dotted with strict liability and criminal landmines. Worse, criminal and civil penalties have been severely ratcheted up recently, and more appear on the horizon.
The 'Unindicted Co-Conspirator'
April 25, 2008
The criminal justice process can be arcane, but one term is recognizable to the public. An indictment is a formal accusation by a grand jury that an indicted individual has committed a crime. While damning, the indicted defendant nonetheless has the constitutional right to say to the government, 'Prove it,' and, if the government fails, to be cleared of all criminal wrongdoing. Unlike the defendant who has a right to defend himself, the unindicted co-conspirator is not on trial but confined to a limbo in which vindication is never possible.
