EEOC Targets 'Unconscious Bias'
July 30, 2007
Unconscious bias' is a fundamental element of the EEOC's recent initiative called Eradicating Racism and Colorism from Employment (E-RACE), an enforcement effort that focuses on filing lawsuits challenging 'subtle' discrimination and educating employers. Could your organization be hit with a race discrimination lawsuit for 'unconscious bias'? How do you prevent legal liability for unconscious acts? This is a question puzzling many legal counsel as they try to protect their organizations.
Case Management and Analysis
July 30, 2007
In the last few decades, 'going to trial' has lost its luster. Corporate counsel and business leaders have grown wary of the risk, expense and diversion of resources associated with trials. As plaintiff lawyers availed themselves of new theories of liability and liberal discovery, courts have grown congested and the road to verdict has grown longer. Trials have become synonymous within the business community with aberrant verdicts and wasteful expenditures of time and money.
Largest FCPA Fine in History Is Warning for All
July 30, 2007
Earlier this year, Baker Hughes Inc. ascended to the top of an exclusive and prominent list, but it is one on which few companies would want be mentioned. On April 26, 2007, the Texas-based oil field products and services company announced that it was settling a federal probe alleging that it violated the Foreign Corrupt Practices Act ('FCPA'), and that it would pay fines and penalties in excess of $44 million ' the largest combined punishment under that law. It was truly one for the record books ' at least for the time being.
Did the Delaware Supreme Court Break the 'Directors' Shield'?
July 30, 2007
<i>Credit Lyonnais Bank Nederland, N.V. v. Pathe Communications Corp.</i> stands for the proposition that directors and officers of a Delaware corporation that is either insolvent or in the 'zone of insolvency' owe fiduciary duties to creditors as well as stockholders. In essence, <i>Credit Lyonnais</i> provided a 'shield' to directors against shareholder suits alleging that directors breached their duties to shareholders by acting to protect creditors. Courts around the country have adopted this view, and attorneys have become accustomed to advising boards of directors based on the assumption that this is indeed the law. The Delaware Supreme Court, in <i>North American Catholic Educational Programming Foundation Inc. v. Gheewalla</i> might have 'broken the shield.'
The Looming Associate Crisis
June 28, 2007
An associate recruitment and retention crisis is looming for which there are no easy solutions. Law schools continue to graduate roughly 40,000 students a year, as they have over the last 20 years. The AmLaw 200 law firms have been steadily hiring an average of 4%+ more associates each year, resulting last year in a typical incoming associate class of 50. That means that AmLaw 200 firms now hire about 10,000 new associates a year, or about 50% of the graduates from the top 100 (hardly the Ivy League elite) of the nation's 200 law schools.
Mitigating Liability from Employee Use of Technology
June 28, 2007
Employee abuse of employer-provided equipment has always created a potential for liability, but the advent of the computer and the Internet has significantly altered the landscape. What is new about today's electronic tools, and what increases the level of employer exposure, is the fact that these devices enable employees to have instantaneous access to the outside world. The difference between giving an employee a telephone or a computer with Internet access is like the difference between giving a hunter a pea shooter or an AK47. The likelihood of success is much greater with the AK47, but so is the risk of a significant mishap.
Supreme Court Establishes New Standards for Buying Practices
June 28, 2007
Since the 2003-2004 term, the Supreme Court has heard a surprising number of antitrust cases ' nine in all ' reflecting its increasing interest in, and willingness to address, questions that significantly impact the business community. Equally remarkable is the array of issues the Court has addressed in these cases. In the past three years, the Court has heard cases concerning issues ranging from a unilateral refusal to deal with rivals, to pricing decisions by joint ventures to claims of tying involving a patented product. one opinion has been issued so far ' the unanimous decision in <i>Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.</i>, 127 S. Ct. 1069 (2007). This article discusses that opinion.
The Calm Before the Litigation Storm
June 28, 2007
Lawyers representing enterprises with complex information systems generating and storing vast amounts of data are familiar with the perils of e-Discovery. If this familiarity did not arise before Dec. 1, 2006, it certainly arrived with the e-discovery clarifications and codifications to the Federal Rules of Civil Procedure ('FRCP') that took effect on Dec. 1, 2006. Given the implications of these rules for compliance, it is imperative that businesses accelerate and elevate their planning for how to address every phase of electronic discovery ' identification and preservation, collection, processing, analysis and production. Unfortunately, dealing with these issues is not as simple as shopping for software packages or asking a consultant to apply industry best practices to the company's electronically stored information ('ESI') procedures. This article spells out a rational, comprehensive plan for achieving e-discovery preparation.
Navigating the Fair Credit Reporting Act
June 28, 2007
Employers of all sizes use third-party consumer reporting agencies to conduct background investigations such as credit, criminal, education and employment background checks. Such investigations are labor-intensive, costly and require specialized knowledge (especially if the employer has a multi-state presence). Therefore, a third-party vendor is the natural choice for outsourcing such a task. However, employers should beware that outsourcing the background check process does not automatically insulate the employer from liability when it relies on the information in a report. Using such third party reports places the employer squarely within the myriad of requirements under the Fair Credit Reporting Act ('FCRA'). 15 U.S.C. ' 1681.
Quarterly State Compliance Review
June 28, 2007
This edition of the Quarterly State Compliance Review looks at some amendments to state business entity laws that went into effect during the last three months. It also reviews a recent Delaware Supreme Court decision dealing with the right of public stockholders to bring a direct suit, and a recent Delaware Chancery Court decision dealing with the court's jurisdiction over an LLC member's derivative claim for ejectment.
