e-Discovery Worries?
Concern has arisen among corporate counsel that despite their best efforts at development and monitoring of electronic document retention programs, sanctions ranging from fines or adverse jury presumptions to default judgments may be imposed if electronic information is not handled correctly. Consider, for example, that a company recently was sanctioned $2.75 million after 11 key employees failed to comply with a "freeze" and lost electronic information as their computer files were overwritten for several months. <br>Recent proposals to amend the Federal Rules of Civil Procedure to account for electronic documents and to provide a "safe harbor" limitation on sanctions could provide some relief.
Hiring Independent Contractors Carries Hidden Risks
While the number of workers choosing to become independent contractors is growing, companies who hire them may face a hidden downside to this trend ' lengthy IRS or state audits, heavy fines, and discrimination lawsuits ' all due to employer misclassification of "1099 workers."
The Powerful Impact of The Non-Foreclosure Notice of Pendency
RPAPL ' 1331 and RPAPL ' 1403 Notices of Pendency are requisite elements for foreclosing a mortgage. <i>See, Chiarelli v. Kotsifos</i>, 5 A.D.3d 345 (a notice of pendency is a prerequisite to obtaining a judgment in a mortgage foreclosure action); <i>Campbell v. Smith</i>, 309 A.D.2d 581, 582 (a notice of pendency is required in a foreclosure action under RPAPL Article 13). In contrast, an ex parte CPLR Article 65 Notice of Pendency (the "Notice") is not required but it is a significant tool in an action claiming title to, or an interest in or the use or enjoyment of, another's land. The filer does not have to make a meritorious showing or post a bond. Article 65 provides mechanisms for the defendant-owner to vacate the Notice that caused an unilaterally imposed restraint on its realty. But, recent case law establishes the near futility of such efforts if the plaintiff has satisfied the minimal statutory requisites for filing the Notice.
Keeping The Attorney-Client Privilege In-House
Attorney-client privilege should technically apply equally to in-house and outside counsel. However, it has been narrowed in the context of in-house counsel, partly due to the fear that mere participation of in-house counsel will be used to seal off disclosure of information about the basis for business transactions simply by funneling their communications through an attorney. <br>Determining when the attorney-client privilege applies to in-house counsel is a fact-specific analysis complicated by different roles that in-house counsel play.
Forum Selection Clauses
The U.S. Supreme Court has long recognized that forum selection clauses are enforceable. These clauses have become "boilerplate" in all types of commercial contracts, since today's business reality requires that companies transact business with each other in multiple legal jurisdictions. Of course, once a dispute does arise, the selected forum is often more convenient and desirable for one party than the other. So the case law is replete with decisions on whether and to what extent these clauses are enforceable.<br>So how do you make your forum selection stick?
The Top 5 Business Litigation Mistakes
In my experience with complex business litigation, I have seen my clients make some brilliant business litigation decisions, and I have seen some less than brilliant decisions. Some are critical and can spell the difference between success and failure. <br>In particular, I have repeatedly seen the same five business litigation mistakes
'An Ounce Of Prevention Is Worth A Pound Of Cure'
In 1998, the Supreme Court reminded employers that "an ounce of prevention is worth a pound of cure." Today, as a result of <i>Faragher v. City of Boca Raton</i>, <i>Burlington Indus. v. Ellerth</i>, and the many cases that followed, in-house counsel are responsible for ensuring that their companies avoid harassment and, if it unfortunately occurs, what steps can be taken to preserve the <i>Faragher/Ellerth</i> affirmative defense. <br>Every in-house counsel should adopt these nine steps to prevent and defend against a harassment claim.
Turning Off The Lights: Safely Shutting Down An Insolvent Subsidiary
It is not uncommon for a holding company (or private equity fund) to have at least one operating subsidiary (or portfolio company) that is underperforming relative to the other companies it owns. Sometimes problems can be fixed and fortunes reversed. Other times, however, the subsidiary/portfolio company continues to struggle and may eventually become truly distressed and even insolvent. At some point, the strategic decision will be made to discontinue the operating subsidiary's business. When this occurs, strategy must be quickly developed and executed to minimize any ongoing losses and to maximize the recovery for the subsidiary's stakeholders. <br>Any business strategy should be approached with an informed understanding of the overall legal landscape, as well as the specific risks and potential rewards associated with each of the parent's available options. Likewise, the parent must understand its position in the decision-making process relative to those of the insolvent subsidiary's other obligees ' its creditors.
Editor's Note
Our readers, from time to time, contact me to suggest that we run an article on one topic or another (and I always welcome such requests). A number of…
