401(k) Participants May Sue for Breach of Fiduciary Duty
May 27, 2008
In a closely watched case arising under the Employee Retirement Income Security Act of 1974, as amended ('ERISA'), the U.S. Supreme Court recently clarified the right of employees to sue plan fiduciaries for mismanaging their individual 401(k) accounts. <i>LaRue v. DeWolff, Boberg & Associates, Inc.</i>, 128 S. Ct. 467, 42 EBC 2857 (2008)
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.
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.
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.
