Potential Criminal Liability for Subprime Lending Practices
March 28, 2008
In light of the complex and opaque nature of the subprime mortgage market, government investigators are probing the valuation and disclosure decisions made by market participants at multiple levels. It is not yet clear what charges prosecutors will assert to prove fraud claims against dishonest subprime market participants.
'Loss' in the Air Will Not Do
March 28, 2008
Sky-high loss enhancements are increasingly scrutinized in a post-<i>Booker</i> world. Drawing on civil securities law, recent decisions in several circuits endorse an approach holding a defendant responsible for only the portion of victims' losses that was proximately caused by the offense. Some courts' critical analyses bode well for future sentencings.
The Far-Reaching Effects of Inequitable Conduct
March 28, 2008
The Federal Circuit recently held that an applicant's failure to disclose material notes to the U.S. Patent and Trademark Office can result in a finding of inequitable conduct that may render a patent, and even related patents, unenforceable.
FRCP 26(f): Use a Map, Ask for Directions or Fly Blind?
March 28, 2008
In the quickly evolving world of e-discovery, the time to figure out and understand the organization's ESI is speeding by. The FRCP amendments and the courts that enforce them (both Federal and State) no longer provide a grace period where attorneys and litigants can 'fly blind' regarding ESI and figure things out as they go. If corporate counsel or supporting outside counsel is unsure of how to identify, preserve or collect ESI for a pending matter or in the overall course of conducting business, the time to ask for directions is now.
Boston Duck v. Super Duck: Court Rules That Sponsored Linking Can Ruffle Feathers
March 28, 2008
In <i>Boston Duck Tours, LP v. Super Duck Tours</i>, the District Court of Massachusetts ruled that sponsored linking qualifies as 'use in commerce' for purposes of trademark infringement under the Lanham Act. Although the court ultimately found no likely consumer confusion in this case, in holding that sponsored linking falls within the purview of the Lanham Act, the court joins a growing number of circuits and districts that have failed to take a cue from well-settled, and clearly analogous, offline trademark principles.
Think It's Found Money?
March 28, 2008
When a business needs to raise money it may consider hiring a 'finder,' which is normally a consultant that helps the company find investors in the business. The company should proceed with caution in retaining a finder due to the regulated nature of its business, and there are several 'market' terms in a written Finder's Fee Agreement that the company should insist upon.
Airing a Board's Dirty Laundry
March 28, 2008
The fallout from Hewlett-Packard's ('HP') controversial boardroom leak investigation has led to a variety of actions ' including an investigation by the California Attorney General's office and Congressional hearings on the practice of 'pretexting' ' a tactic employed by Hewlett-Packard to gain the confidential phone records of board members. Despite the considerable press attention devoted to the incident, it is an otherwise under-the-radar action by the SEC that could have the greatest long-term impact on corporate governance and compliance.
Drafting Market-Based MAC and Termination Fee Clauses
March 28, 2008
Two types of contract clauses are commonly cited when a buyer or financing source desires not to make good on its commitment. These clauses are material adverse change (MAC) clauses and termination fee clauses. Several recent cases show that good draftsmanship and a clear understanding of their intended effect are essential in heading off disputes when implementing these provisions.
Quarterly State Compliance Review
March 28, 2008
This edition of the Quarterly State Compliance Review includes a look at legislation of interest to corporate lawyers, that recently went into effect in Delaware and California, and a look at recent decisions of interest dealing with derivative suits from the high courts of Delaware, New York and California.
