Lies, Damn Lies And M&A Fraud
July 27, 2006
In <i>ABRY Partners V, L.P. v. F&W Acquisition LLC, et al.</i>, Vice Chancellor Strine of the Delaware Court of Chancery addressed the circumstances in which a seller may contractually insulate itself in a purchase agreement from claims by the buyer for rescission and post-closing damages due to intentional misrepresentations concerning the business or assets being sold. The court held that 'when a seller intentionally misrepresents a fact embodied in a contract ' that is, when a seller lies,' Delaware public policy compels Delaware courts to disregard provisions of a contract that purport to eliminate certain remedies, including the remedy of rescission. <br>This article examines Vice Chancellor Strine's decision in ABRY and highlights some of its implications for buyers and sellers in M&A transactions.
Risks of Hiring Employees from Another Firm
July 27, 2006
The scenario is a familiar one: An individual decides to leave his current employment and accept employment with a new employer. As it turns out, the employee has signed an agreement with the former employer restricting his or her right to compete with the former employer (non-compete agreement), prohibiting him or her from soliciting employees or customers of the former employer (non-solicitation agreement) and/or requiring him or her to maintain the confidentiality of the former employer's trade secret and/or proprietary information (confidentiality agreement). This article focuses on the risks faced by the new employer in hiring such an individual.
E-discovery As a Litigation Weapon?
July 27, 2006
The proposed amendments to the Federal Rules of Civil Procedure (FRCP) make clear what most companies engaged in complex litigation are already keenly aware of: that 'electronically stored information' is not only discoverable but is essential to the discovery process.<br>The new rules set forth a series of actions related to e-discovery that both parties must abide by or risk the imposition of sanctions. While the exact impact of these new rules, set to become effective on Dec. 1, is unclear, it is safe to say that the millions of dollars spent on e-discovery last year are sure to increase as companies and their counsel struggle to adapt their practices.
Blogging and the Workplace
July 27, 2006
You may not know about it, but it is happening: At least one, and probably more, of your business' employees has entered the 'blogosphere.' The world of blogs, or interactive diaries posted on the Internet, has expanded exponentially over the past 3 years, and 'bloggers' cannot seem to resist the urge to talk about their jobs. These sometimes quasi-journalistic postings raise a host of concerns for employers, such as protecting a hard-won public image, safeguarding confidential information, and preventing defamation of managers and co-workers. Such concerns arise because blogs can reach millions of readers long before the employer even learns about the posting.
<b>Online Exclusive:</b> Around the States
July 25, 2006
<b>Florida.</b> Global Mortgage Funding Inc. has been sued under Florida's 'Do Not Call' law. <br><b>Illinois.</b> Illinois Attorney General Lisa Madigan said that since the state's Identity Theft Hotline was launched in February 2006, it has logged nearly 3000 calls.<br><b>North Carolina.</b> Less than 2 weeks after a bill was introduced, the General Assembly passed a requirement that local and state governments must let citizens know when a security breach could lead to identity theft ' matching the mandate already faced by companies.
<b>Online Exclusive:</b> Government Data Breach Notification Deadline Trimmed to 1 Hour
July 25, 2006
In a White House memorandum dated July 12, the Office of Management and Budget's Electronic Government and Information Technology Division said that all suspected or confirmed data breaches must be reported within an hour of their discovery to the federal response center at the Department of Homeland Security. This is a significant change in reporting policy, as it brings suspected electronic breaches into the same realm of action as known electronic or physical breaches.
