Broad View of Privilege in Second Circuit Ruling
April 30, 2007
It is no longer acceptable ' if it ever was ' for in-house counsel merely to provide reactive assessments of legal risk presented by business people. Today, in-house lawyers must provide proactive solutions to their clients' problems, including solutions that mix legal advice with business-oriented suggestions. Of course, the attorney-client privilege protects only legal advice, and thus presents, at times, a difficult question: when has an in-house counsel provided non-privileged business advice instead of protected legal advice? That line is not always easy to draw, but a recent Second Circuit decision provides some guidance.
Climate Change: Why It Matters for Your Business
April 30, 2007
Climate change? Sustainable development? Greenhouse gases? Global warming? Traditionally, these concepts conjured up tree hugger-led environmental activists' warnings of the Earth's doom resulting from industrial fallout and natural resource use and misuse. Today, these hotly debated, frequently misunderstood scientific theories more often are the subject of critical analysis in corporate boardrooms, among business management and between leading U.S. CEOs. Despite some conflicting reports on the true effects of greenhouse gas emissions and other industrial-related impacts, all agree that the Earth's climate is warmer and continues to heat up annually. No consensus exists as to what can or should be done, how it shall be accomplished or by whom.
Limiting the Effect of BAPCA
April 27, 2007
This article first discusses <i>In re Dana Corp.</i>, 351 B.R. 96 (Bankr. S.D.N.Y. 2006)(<i>'Dana I'</i>), in which the Southern District of New York bankruptcy court denied a debtor's proposed employee 'incentive' program. The article then highlights the differences between the program proposed in <i>Dana I</i> and the program approved by the Southern District of New York in <i>In re Dana Corp.</i>, 2006 WL 3479406 (Bankr. S.D.N.Y. 2006) (<i>'Dana II'</i>). Finally, this article proposes options other than those utilized in the foregoing cases that might be available to bankruptcy practitioners in need of a way to ensure that their clients' top executives do not walk out the door.
Movers & Shakers
April 27, 2007
News about the people leading the e-commerce industry.
<b>Online Exclusive:</b> Most GCs Not Licensed in Home State
April 04, 2007
Companies expect their general counsel to pay attention to all the little details, but some legal chiefs have fallen behind in keeping their own affairs in order. A survey by <i>The Corporate Counselor</i>'s ALM sibling magazine, <i>Corporate Counsel</i>, of the Fortune 250 found eight GCs who are not properly licensed in the state in which they work.
Protecting Your Company from Consumer Protection Claims
March 26, 2007
Companies in virtually every sector of the economy have become targets of allegations that their business practices or products have injured consumers. These cases often arise as class actions, frequently exposing target companies to the risk of significant defense costs, liability, or a product recall. In the face of the ever-increasing risk of consumer protection claims, most companies have put into place risk management strategies that principally rely on a variety of insurance policies. All too often, though, when a company needs its insurance most, it finds that it does not get the protection that it expects. Instead, insurers frequently make every effort to evade payment under their policies.
Wage Hour Laws Provide Traps for the Unwary
March 26, 2007
It has often been said that the most frequently violated federal employment-related statute is the Fair Labor Standards Act ('FLSA'), 29 U.S.C. '' 201-19 (Supp. 2006). This law, enacted in 1938, regulates, among other things, the payment of overtime to employees who work for employers. Our experience indicates that most, if not all, employers do not intend to violate the provisions contained in the FLSA but, instead, do so out of ignorance of its requirements. This article highlights some of the key provisions of the FLSA, makes reference to recent pronouncements by the United States Department of Labor (the federal agency principally responsible for interpretation of the statute) and presents advice on how to avoid the pitfalls inherent in the FLSA.
Paddling Down Esopus Creek
March 26, 2007
An end-of-year (Nov. 29) Delaware Chancery Court decision, <i>Esopus Creek Value LP v. Hauf</i>, No. 2487-N (Del. Ch. Nov. 29, 2006), is receiving a great deal of attention from corporate transactional and corporate restructuring attorneys alike. In <i>Esopus</i>, the Delaware Chancery Court prevented a financially sound company that was prohibited by federal securities law from holding a shareholder vote, because it failed to meet its reporting requirements, from executing an agreement outside of bankruptcy to sell substantially all of its assets under Section 363 of the Bankruptcy Code without first obtaining common stockholder approval as required under Section 271(a) of the Delaware General Company Law ('DGCL').
Enforcement Under State Security Breach Notification Laws
March 26, 2007
Thirty-four states have enacted security breach notification laws. And Michigan passed such a law with an effective date of July 2, 2007. These laws cover the notification that a company must make in the event of a breach of security of its system with respect to computerized personal information. How are these laws enforced in the event of a violation? These laws vary in terms of enforcement and penalties, as more particularly described below. This article provides an overview of the enforcement of these laws and describes examples of penalties.
