Joining A Board: The Porcupine Approach
October 27, 2005
The answer to the question "should I join a board of directors?" has changed in recent years from "I'm deeply honored," to "you must be out of your mind." <br>Nonetheless, I still advise people to go on corporate boards. They should, however, recognize that it's not an honor. It's not a position of social prestige. It's a hard and risky job. People should make the decision to join a board the same way we've been told in the old proverb that porcupines make love: carefully, very carefully. It is not a snap decision. It's a decision that requires considerable thinking and research.
European SOX Compliance After <i>McDonald's</i> and <i>Wal-Mart</i>
October 27, 2005
The Sarbanes-Oxley Act (SOX), at '301 and '406, affirmatively requires SOX-regulated companies to set up anonymous hotlines or other mechanisms that encourage employees to "whistleblow" on co-workers who commit financial, auditing, or accounting frauds. For multinationals, this seemingly-simple rule raises an international law issue that has mushroomed into a vital concern: How does SOX's hotline requirement apply to employees abroad?
Hotline
October 27, 2005
Federal judiciary supports citing unpublished opinionsThe Judicial Conference of the United States has approved new Rule 32.1 of the Federal Rules of Appellate…
Flying on a Wing and a Prayer
October 03, 2005
In its zeal to eradicate perceived abuses and further clip the wings of executives who, based on press reports, took great pleasure in using the company's airplane for personal purposes, Congress amended section 274(e)(2) of the Internal Revenue Code (the Code). Effective on the date of enactment (Oct. 22, 2004), these amendments effectively reversed the decisions of the Tax Court and Eighth Circuit in <i>Sutherland Lumber-Southwest, Inc. v. Commissioner</i>, and prompted the IRS to issue guidance containing a myriad of rule changes and hinting at others, leaving tax practitioners scratching their heads and companies running for cover.
Hotline
October 03, 2005
Whistleblower suits by in-house counsel not barred by privilegeThe Fifth Circuit has ruled that employers cannot claim attorney-client privilege to exclude…
Is Your General Release Enforceable?
October 03, 2005
In a decision that caught many employers by surprise, the U.S. Court of Appeals for the Fourth Circuit recently held in <i>Taylor v. Progress Energy, Inc.</i> that claims arising under the Family and Medical Leave Act(FMLA), including post-dispute claims, cannot be waived or settled via private agreement between an employee and employer. The only other Court of Appeals ever to consider this issue in the dozen years since the FMLA was enacted reached an opposite result. In light of <i>Taylor</i>, employers inside and outside of the Fourth Circuit must now review the language of their general release agreements and evaluate what, if any, changes are needed.
What You Need to Know About Managing a Patent Mega-Case
October 03, 2005
With the expanded use of patents to protect business innovation, high-stakes patent litigation has become an unwelcome byproduct of business success. Increasingly, such litigation involves numerous patents on different technologies asserted by each side in several forums around the world. The resulting "mega-case" presents a strategic and logistical challenge that tests the skills of the best patent litigators. Unless those challenges are met efficiently, the costs of the mega-case can quickly spiral out of control.
Post-<i>Phillips</i>: Will The Trial Courts Receive More Deference in Patent Cases?
October 03, 2005
The most important question in every patent case is "what do the claims mean?" The district court answers this question in its claim construction ruling. Presently, every aspect of a district court's claim construction is reviewed <i>de novo</i> by the United States Court of Appeals for the Federal Circuit. <br>The problem of <i>de novo</i> review is tied to the nature of patent claims themselves. Patent claims, the series of numbered paragraphs at the conclusion of the patent, define the scope of the patent owner's rights. Yet, because of the technical nature of inventions, the determination of the scope of rights is not easily made.
Arbitration Do's And Don'ts
October 03, 2005
When faced with a transaction in which the arbitration of potential future disputes would offer advantages over court litigation or other forms of dispute resolution, a critical first step is to create a workable, enforceable arbitration agreement. In most instances, this agreement will be the "arbitration clause" included in the contract. A poorly drafted arbitration clause can create time-consuming and costly delays to the arbitration process. Arbitration agreements must be drafted carefully, and expert advice should be sought on all but the most straightforward two-party, single-contract cases.
Corporate Minutes: What SOX Has Wrought
August 30, 2005
Until recently, the subject of corporate minutes seemed about as interesting -- and received about as much attention -- as watching paint dry (or, for those who prefer another metaphor, watching grass grow). However, for a number of reasons, the subject now receives considerable attention from the legal and corporate governance communities, and from boards of directors themselves.
