Does Constructive Discharge Bar an Employer's Defense?
In last month's <i>Employment Law Strategist</i>, we explored the background to a growing conflict among the circuit courts regarding the availability of the so-called <i>Ellerth/Faragher</i> affirmative defense in constructive discharge cases. We began with an analysis of <i>Suders v. Easton</i>, 325 F.3d 432 (3d Cir. 2003), in which the Third Circuit held that holding an employer strictly liable for a constructive discharge resulting from the actionable harassment of its supervisors more faithfully adheres to the policy objectives set forth in <i>Ellerth</i> and <i>Faragher</i>. Granting <i>certiorari</i> to consider the Third Circuit's ruling, the U.S. Supreme Court has now undertaken to resolve the discord among the circuits.
Practice Tip
Multiple regression analysis, a statistical tool often used in litigation as evidence in employment-discrimination suits, can also be useful in product liability matters to show probable causation and also to show the probable range of economic damages.
Case Notes
Recent rulings of interest to you and your practice.
Electronic Discovery in Mass Tort Multidistrict Litigations
The ever-increasing use of electronic communications and storage systems, ranging from e-mail to word processing documents, to computerized databases, has greatly changed the nature of document preservation and production. As more and more people create, utilize and store electronic data in various formats, electronic discovery issues have become increasingly important in litigation.
Online
Web sites of interest to you and your practice.
Discovery of Trade Secrets: How Courts Analyze Disclosure Issues
The first part of this series, published last month, addressed the definition of trade secrets in the context of discovery. As efforts to obtain trade secret information increase, a clear definition of trade secret is vital for the courts to analyze this issue correctly. This second installment addresses that analysis, and the standards and terminology courts apply to decide whether trade secrets should be disclosed, the arguments and evidence that parties resisting this discovery can present to the trial court, and strategies to limit the potential for additional damage if trade secrets are ordered produced.
The Act and Your Annual Report
As widely reported, the Sarbanes-Oxley Act of 2002 (the Act) and rules adopted by the Securities and Exchange Commission pursuant to the requirements of the Act have added numerous requirements to the obligations of companies filing periodic reports pursuant to the Securities Exchange Act. A number of significant provisions are first effective with respect to annual reports filed with the SEC for fiscal years ended Dec. 31, 2003. This article provides a checklist and brief summary of each of these new requirements.
NYSE-Listed Corporations: Your Time Is Now
Much of the waiting for final rules promulgated by the Sarbanes-Oxley Act of 2002 (the Act), including new corporate governance standards approved by the SEC on Nov. 4, 2003 for New York Stock Exchange (NYSE)-listed companies, is over. It is now time for NYSE-listed corporations to set into motion the implementation and effective management of these myriad new rules. Extensive new disclosure is required to be included in proxy statements and Forms 10-K filed on or after Jan. 15, 2004, and consequently, processes should already have been put in place to allow adequate time for companies to review the effectiveness of newly adopted procedures.
Audit Committee Members: the Act Affects You!
The recent and seemingly endless series of high-profile corporate scandals and failures has caused the investing public and regulatory authorities to become increasingly concerned about corporate governance and financial disclosure. The congressional response to this concern, the Sarbanes-Oxley Act of 2002 (the Act) contains, among many other provisions, significant enhancements to the responsibilities of audit committees. As a result of the Act, audit committees can no longer be rubber-stamping "yes-men" in corporate governance. They must now meet specific qualifications of financial literacy and independence, and exercise reasonable diligence and good faith judgment in the monitoring of management, and internal and external auditors. If they do not, they could subject the company and themselves to shareholder lawsuits and the company to SEC actions and/or being de-listed by their respective exchange. The provisions of the Act that directly affect audit committees are presented by title and section and discussed in this article.
