Policing Employees' Online Access at Work
December 22, 2006
What are the risks for employers in instances where employees use company computers to access, view, download, store and possibly forward pornography or engage in illegal activities? How can corporate counsel both prevent these abuses and handle investigations if they suspect some kind of prohibited conduct is occurring in the workplace?
EEOC Information Requests
December 22, 2006
Understandably, companies have become more sensitive about protecting confidential, proprietary business information from disclosure to competitors and others outside the company. A recent ruling by the United States District Court for the District of Columbia, <i>Venetian Casino Report v. EEOC</i>, 2006 WL 2806568 (D.D. Cir. 2006), demonstrates that such disclosures may occur in the most unexpected ways.
The Price of Holiday Parties
December 22, 2006
Now that the holiday season is over, employers may be facing fallout from their holiday parties. Although a review of recent cases asserting social host and workers' compensation liability reveals few reported decisions, there is likely no corresponding reduction in risk, and the increasing number of employers hosting holiday parties in recent years prompts an analysis of the challenges employers face in planning their annual holiday parties. It is not too soon to plan for next year's celebrations, while the experience from this year is fresh. This article discusses illustrative cases and suggests a number of concrete steps employers may wish to consider to reduce injuries and potential liabilities in planning their next holiday parties.
Beware the Gatekeeper
December 22, 2006
Last month, we explained that valuation issues come into play throughout Chapter 11 business reorganization cases. We discussed how to recognize the uncertainties underlying expert valuation conclusions; enterprise/going concern value; and the fact that the goal of any valuation is to make an estimate based on an informed judgment that embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and conditions of the properties, the past earnings record, and all circumstances that indicate whether or not the record is reliable criterion of future performance. We conclude this month with a discussion of expert evidence.
Automotive Insolvencies
December 22, 2006
The unique environment of the automotive industry has resulted in the insolvencies of tier-one and tier-two suppliers developing distinct characteristics. Unlike many industries, automotive suppliers typically have only a handful of customers, without whom they have no business to reorganize or sell in an effort maximize values for creditors. This gives customers significant control in the options a debtor has when faced with severe financial distress. However, because of Original Equipment Manufacturers' (OEM) just-in-time methods of production ' unlike customers in many businesses that can simply decide not to do business with an insolvent entity ' OEMs and large tier-one suppliers cannot purchase automotive parts or assemblies elsewhere.
Claims Trading Restrictions Dealt Setback
December 22, 2006
In recent years, debtors in large corporate bankruptcies have sometimes sought and obtained, in varying degrees, authority at the outset of bankruptcy cases for severe restrictions on trading in claims against the debtors by substantial claimholders. In practice, however, these debt-trading orders have chilled the market for trading in debt securities and served to entrench existing management by effectively precluding substantial investors from acquiring meaningful positions in the debtor's debt securities.
Why Most Document Retention Policies in the Digital Era Are Ineffective
December 19, 2006
Many companies have document retention policies in which paper and electronic documents are discarded or deleted after specified time periods, depending on the content and type of document. Those policies serve to keep sensitive information from getting into the hands of others, as well as to control the amount of physical and digital memory space needed to store documents. <i>See Arthur Andersen LLP v. United States</i>, 544 U.S. 696, 704 (2005). Some companies, for example, automatically delete e-mails older than 3 months, unless specifically saved by an employee. <i>See Hynix Semiconductor, Inc. v. Rambus, Inc.</i>, No. C-00-20905 RMW, 2006 WL 565893, at *11 (N.D. Cal. 2006). Courts, including the U.S. Supreme Court, have recognized that there is nothing wrong with such policies, even where they might result in the destruction of documents that might be material in a later lawsuit, as long as that lawsuit was not reasonably foreseen at the time the documents were destroyed. <i>See Arthur Andersen</i>, 544 U.S. at 704 ('It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.'); <i>Samsung Elecs. Co. v. Rambus, Inc.</i>, 439 F. Supp. 2d 524, 543 (E.D. Va. 2006) (citing <i>Arthur Andersen</i>).
Cybersecurity Researcher Addresses 'Misplaced' Fears: Q&A with Professor Fred H. Cate
December 19, 2006
<i>The Privacy and Data Protection Legal Reporter</i> spoke recently with Professor Fred H. Cate, distinguished professor of law and adjunct professor of informatics at Indiana University, in Bloomington, IN, about what he sees as the hyperbole that, at times, overtakes the public discussion about ID theft and electronic security. As the director of Indiana University's Center for Applied Cybersecurity Research, Cate is a leading researcher and consultant on issues such as phishing, consumers' use of passwords, and cybersecurity.
Online Banking's Battle Against Phishing
December 19, 2006
Online banking, which has seen explosive growth in recent years, has made it faster, cheaper, and more convenient than ever before for consumers to manage their financial affairs. It also holds the promise of significant cost savings for the financial services industry, as rising numbers of customers are expected to shift from over-the-counter services to online transactions.
