Who Decides the Validity of Your Contract?
May 30, 2006
Who do you turn to if you believe that an agreement is invalid? Should it make a difference if the agreement contains an arbitration clause? If it does have such a clause, can you nonetheless walk into court and have a judge decide? Or must the dispute go to arbitration? The Catch-22 is this: If an arbitrator were to determine that the agreement is invalid, the arbitrator logically would seem to have no jurisdiction over the matter to start with, because the arbitration clause therein should be invalid too. But if you were to litigate that dispute in court, and a judge determined that the agreement is valid, then an arbitrator should have resolved all disputes pursuant to the arbitration clause therein.
What Do You Want To Read?
May 26, 2006
We want to know how we can make this newsletter an even better resource for your professional needs. Are we covering all you want to see? Are there sections you would like to see enhanced or replaced?<br>Your views and opinions are essential in our effort to continue to provide you with the top notch News, Strategy and Analysis you have come to expect from Law Journal Newsletters.<br>Help us help you! Please click <a href="http://www.surveymonkey.com/s.asp?u=604771980045">here</a> to complete a short survey or type the following URL into your browser: http://www.surveymonkey.com/s.asp?u=604771980045.<br>Your answers will assist us in making this an even better newsletter for you! Thank you.<br>Regards,<br>Colin Graf<br>LJN Marketing Director
<b>BREAKING NEWS</b> Supreme Court Hopeful Leaves Bench
May 10, 2006
Appeals Judge J. Michael Luttig, a Supreme Court contender and longtime fixture of the conservative legal landscape, made a sudden announcement on May 10 that he was leaving the U.S. Court of Appeals for the 4th Circuit immediately for the job of senior vice president and general counsel of the Boeing Co.
Hotline
April 26, 2006
Companywide layoffs don't immunize an employer from age discrimination suits The Third Circuit has ruled that where an employee is able to demonstrate 'implausibilities and inconsistencies' in an employer's justification for his or her layoff, the employer is not entitled to summary judgment in an age discrimination suit, even if the plaintiff's layoff resulted from an overall reduction in force (RIF) and the employer was able to identify certain 'age neutral' determination criteria. Tomasso v. The…
FRCP Electronic Discovery Amendments: Understanding the Impact
April 26, 2006
When Judge Scheindlin ruled in a landmark case and made the statement 'that's going to be the most expensive curse word you ever said,' little did she realize the prophetic nature of her words. I am not sure whether Judge Scheindlin knew how 'codified' her electronic discovery rulings would become when she issued her opinions (five times, no less in Zubulake v. UBS Warburg). She probably could not have foreseen the resulting cost and risk impact on corporations faced with defending lawsuits containing (as part of the pool of potential evidence) large volumes of electronically stored information (ESI). <br>We are now at the brink of the 'codification.' The (amended) Federal Rules of Civil Procedure (where the Zubulake standards are extremely influential) governing electronic discovery will go into effect in December 2006.
Patents No Longer Carry a Presumption Of Market Power in Tying Cases
April 26, 2006
The United States Supreme Court's recent decision in <i>Illinois Tools Works v. Independent Ink</i> reversed almost 50 years of precedent holding that the owner of a patent was presumed to have market power in patent-related tying cases brought under the Sherman Act. The Court noted that Congressional amendments to the patent code explicitly finding that tying was not a per se patent misuse, coupled by the widely accepted view in academia that patents did not inherently lead to market power, had so eroded the legal doctrine supporting the presumption of market power in patent-related tying cases, that a new rule was appropriate. The Court held that in all future tying cases, the plaintiff must allege and prove that the defendant has actual market power in the tying product ' the mere existence of a patent is no longer sufficient.
Limiting the Liability of Private Employees For Constitutional Violations
April 26, 2006
Over the last decade, one of the major trends in this country has been the privatization of services by governments. The federal government has increasingly ' with the approval of Congress ' contracted out to private entities functions that historically had been performed only by governments themselves.<br>This privatization of federal services has spawned a variety of legal issues. One of the most significant is whether employees of these private entities can be sued for monetary damages, in the same fashion that public employees can be sued, by people who assert that these employees violated their constitutional rights. The U.S. Court of Appeals for the Fourth Circuit recently shed light on this issue in the case of <i>Holly v. Scott</i>.
Clearing Up Executive Compensation
April 26, 2006
The U.S. Securities and Exchange Commission (SEC) published its proposal to revamp the rules governing the disclosure of executive and director compensation on Jan. 27, 2006. The proposed rules stand to significantly alter the compensation disclosure requirements applicable to registration statements, proxy statements, annual reports and Form 8-Ks, and are intended to ensure that investors receive disclosure that is 'clearer and more complete.' The regulations are the first attempt at a major overhaul of compensation disclosure since 1992 and were proposed in response to the widespread criticism that the current disclosure requirements do not engender a complete and accurate description of executive pay packages. <br>The proposal, to adapt the old saying, combines something old, something new and something borrowed.
Morgan Hops Over China's Hurdles
April 05, 2006
When Morgan, Lewis & Bockius announced that it had landed the right team of lawyers to open an office in Beijing and the permission of Chinese authorities to do it, it was a double coup. <br>While obtaining a license to practice in China isn't the mystery it used to be for U.S. firms, it's still an arduous process. Firms can wait as long as a year to get an answer from local officials and the Chinese Ministry of Justice, as Morgan, Lewis did. And that's after completing the lengthy application that must be notarized, approved by U.S. agencies and then translated into Mandarin.
Final Military Leave Regulations Issued By DOL
March 28, 2006
On Dec. 19, 2005, 11 years after Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA), the U.S. Department of Labor issued final regulations under USERRA which became effective Jan. 18, 2006. The final regulations can be found at 20 Code of Federal Regulations (CFR), Part 1002. The DOL suggests these final regulations do not impose any new obligations on employers, but rather, serve as an implementation of the statutory requirements, as well as to clarify and interpret areas of the law. However, these regulations, the first ever issued under USERRA, turn the internal guidance of the DOL into binding regulations.
