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American Bar Association


The E-Usual Course of Business: ESI Application to Rule 34 Requirements

By Amanda E. Gordon

What exactly does "the usual course of business" mean in today's electronic world?

Bank Litigation Arising from Check Fraud Schemes and Client Trust Accounts

By Melissa M. Grand

A wide range of individuals can become prey to check fraud, including attorneys.

The Talk about Shell Companies

By Emily Lehmberg

The Panama Papers leak has brought attention to the role of lawyers in moving money offshore.

Why I Love Rule 36—and Why You Should Too

By Fitzgerald T. Bramwell

This rule, and state law equivalents, have a place in the discovery plan.

Lost Profits: Direct or Consequential Damages?

By Wendi J. Berkowitz

Significant sums hang in the balance.

Tips for Organizing ESI per the Document Request

By Amanda E. Gordon

Three practical pointers you can follow to (hopefully) avoid this task.

Who Can Sue after a Data Breach?

By Brittany Robbins

Courts disagree over whether plaintiffs whose data have not been misused have standing.

Tariff Act Section 337: USITC as a Fast and Effective Forum

By Jonathan J. Engler

The commission deserves a hard look by practitoners seeking a national remedy for unfair acts and deceptive trade practices.

Pleading a "Pattern of Racketeering Activity" under State and Federal Statutes

By Alicia M. Bendana

Is the government's requirement of "continuity" needed to establish a racketeering pattern?

Betwixt and Between: Finding Specificity in Trade Secret Misappropriation Cases

By Eric D. Welsh

The trend across the nation appears to be not requiring heightened pleading and instead permitting pre-discovery identification of the trade secrets.

How to Use the Rule 26(f) Conference to Avoid Data Dumps

By Kelly A. Frye

Courts have uniformly disapproved litigators drowning opposing counsel in useless data.

Can Economic Pressure Alone Give Rise to a Tortious Interference Claim?

By David L. Johnson and Beau C. Creson

Learn what the majority and minority of courts have to say about the line between proper and improper economic pressure.

Continued Employment: Lawful Consideration in Non-Competes?

By Stacy A. Alexejun, Andrea J. Fowler, and Brandon M. Krajewski

Wisconsin joins the expanding majority view.

How to Respond to Trade Secret Theft: The First 48 Hours

By Ryan M. Billings

Be prepared to take full advantage of what unfolds.

Tips for Navigating the "Greenwashing" Landscape

By Sarah E. Merkle

The FTC has brought numerous actions against companies who only claim to practice environmental friendliness.

"Good Faith" in the Binary World

By Bart L. Greenwald and Christopher C. Tieke

When old world concepts operate in the new age of electronic banking.

Alter Ego Liability in a Post-Tort World

By Wendi J. Berkowitz and Patrick Lai

What is an "inequitable result"?

How to Preserve Privilege during Data Breach Investigations

By Leslie C. Thorne and Laurel D. Brewer

What steps should a corporation take after a cyber attack?

Key Developments in Trade Secrets Litigation

By Randall E. Kahnke, Kerry L. Bundy, and Ryan J. Long

These cases continue to increase in importance as companies and the government focus more attention on them.

The Relationship between Hearsay and Business Records

By Zachary G. Newman

Don't get caught without this potentially critical piece of evidence.

How to Avoid Spoliation Sanctions

By Shelby Angel

Failure to preserve ESI could very well be the catalyst in the outcome of your client's next dispute.

Tips for Responding to Patent Trolls

By Linda Glover

Some of the most promising causes of action for responding to abusive tactics are standard business torts.

Cost-Saving Trends in Electronic Discovery

By Gerald E. Burns and Stuart Claire

Learn some tips to reduce costs related to this critical component of litigation.

The Intersection of Data Privacy and E-Discovery

By Andrea Donovan Napp

Although it is infrequently addressed, there is a significant nexus between the two concepts.

The Thirteenth Juror: Don't Let Virtual Reputation Trump Reality

By Jennifer Auer Jordan

The Internet can affect your case in ways you will never know—unless you get a handle on what the panel will see.

Limiting Lanham Act Claims after POM Wonderful

By Peter Meier and Elizabeth Dorsi

A "bridge too far" or a path to preclusion?

Slapping Away Claims of Trade Secret Theft

By Linda Glover

Learn how to use one of the most powerful tools for defenses against business tort claims.


Former Los Angeles Clippers Owner's Breach of Fiduciary Duty Claims

By Scott I. Unger

Donald Sterling's suit against the NBA faces a number of legal hurdles.

Examining the Duty of Loyalty and the Corporate Opportunity Doctrine

By Melissa M. Goodman and Janet Ayyad Ismail

When an employee resigns, many factors must be considered to determine whether the employer has any legal recourse.

The Risks of Lurking Fiduciary Duties in Business Transactions

By William R. Taylor and Joshua L. Fuchs

In joint ventures, crafting provisions addressing fiduciary duties in all agreements is imperative.

To Compete or Not to Compete: Is That the Question?

By Sye T. Hickey

Businesses today are keen to insert such clauses in employment contracts of all shapes and sizes.

Supreme Court Continues Down Pro-Arbitration Road

By Elizabeth S. Fenton and Shannon A.S. Quadros

Business litigators need to learn the lessons of recent cases.

Business Judgment Rule Now Available for Going-Private Mergers

By Travis Patterson

Read about the Delaware cases that have become significant for corporate law.

Defamation Per Se: Be Prepared to Plead (and Prove!) Actual Damages

By Andrew Bossory

The task is necessary even when liability is legally established.

Revisiting the Restatement's Tortious Interference Provisions

By Ryan M. Connor

The drafters of this important treatise should fashion a tort that is meaningful and enforceable.

Tips for Drafting, Accepting, Rejecting, or Simply Understanding a Rule 68 Offer

By Merritt B. Quigley

Many would argue that the rule has yet to live up to its promise of encouraging settlements.

Courses of Action after Allegations of Misconduct

By Frederick H. Riesmeyer II, Kendra D. Hanson, Andrew M. Zeitlin, and Alison P. Baker

What to do when a board of directors asks you to hatch a plan to handle a derivative action.

Using Expedited Discovery with Preliminary Injunction Motions

By Peter Meier and Elizabeth Dorsi

Both parties have a strong incentive to present their case in the most persuasive manner possible.

Twenty Questions to Ask Insurance Coverage Counsel in Business Litigation

By Jason M. Rosenthal

This area of the law can be a complex maze of twisted policy and regulations.

The False Claims Act: Protecting Your Client When Amending a Sealed Complaint

By Erin Campbell, Jonathan Kroner, Jennifer McIntosh, and Shankar Ramamurthy

The Civil War-era law is our primary tool in prosecuting government fraud.

Young Lawyers Corner: Observing Jurors During Trial

By Cynthia R. Cohen

Once the case is rolling, observation is telling.

Data Breaches in Finance: Reviewing Exposure, from Litigation and Legislation

By R. Andrew Patty II and Brook Thibodeaux

Financial institutions must be wary of hackers and unscrupulous employees alike.

Cyber-Defamation: What Is It and How Should Businesses Respond?

By Thomas J. Mew IV

A primer on defining and dealing with Internet attacks.

The Proportionality Problem: Emerging Trends in Case Law

By Andrea Donovan Napp and Amanda B. Barry

Although the concept is not new, widespread abuse of discovery as a blunt instrument has prompted courts to revisit the issue.

The Changing Landscape of Aiding and Abetting Breach of Fiduciary Duty Claims

By Linda M. Glover

Practitioners should anticipate encountering the claim with increasing frequency in the corporate arena.

When Facebook (et al.) Attacks

By Lorin Subar

Fighting business disparagement in the age of social media.

Justifiable Reliance Standards Differ Across States

By Patrick Keating and Tyler Beas

Similarities in "black letter" law conceal important differences in how states address common issues related to claims.

Trends in Piercing the Corporate Veil

By Elizabeth S. Fenton

The doctrine is a potent, albeit limited, exception to the general rule of corporate limited liability.

Admissibility of Settlement-Related Evidence at Trial

By Gerald E. Burns

To understand how settlement-related evidence may be used at trial, it is important to understand the parameters of Rule 408.

Third-Party Reliance in New York: Navigating Conflicting Case Law

By Michael Murtagh

Lawyers have to pay special attention to their duty to cite contrary, controlling authority in this especially unsettled area.


At Liberty to Lie? The Viability of Fraud Claims after Disclaiming Reliance

By Andrew M. Zeitlin and Alison P. Baker

Courts have taken different approaches regarding the enforceability of waiver of reliance provisions.

Decisions Highlight Split in Application of Computer Fraud and Abuse Act

By Thomas A. Dye

Should the act be construed broadly or narrowly?

Standardizing Efficiencies in Business Litigation

By Heath J. Szymczak

Litigators can distinguish themselves with practical, cost-saving litigation techniques.

Admissibility of ESI: How to Turn “Hot Docs” into Successful Verdicts

By Andrea Donovan Napp and Brian J. Wheelin

After obtaining electronically stored information, one critical step remains: ensuring it can be admitted as evidence.

A Mock Trial in a Complex Business Tort Case

By Frederick H. Riesmeyer II, Shannon Cohorst Johnson, Gregory B. Whiston, and Bret Dillingham

With 90 days left before the trial, the thought of a mock trial was daunting. What could we learn that we didn't know already?

Policing Trade Shows to Stop Knockoff Products

By Steven A. Weiss and William B. Berndt

Monitoring foreign companies for infringement is a key part of protecting your copyrights and trademarks.

When Does Preparation to Compete Become Unlawful Conduct?

By David L. Johnson and Junaid A. Odubeko

Courts strike a balance between duty of loyalty and free enterprise.

Young Lawyer's Corner: Video Games, Apps, and the Copyright Act

By Jordan Greenberger

How do copyright laws protect video games, smartphone games, and in-app purchases?

Preemption of Business Torts under the Uniform Trade Secrets Act

By Peter J. Boyer

Courts are split on the preemption provisions of the UTSA.

Enjoining a Fund Distribution Pending the Outcome of Litigation

By Meaghan E. Ryan

A preliminary injunction can "stop the bleeding."

Early Mitigation of Defamation Damages

By Amy B. Ginensky and Brian A. Berkley

A business defendant needs to know what it can and should do before a suit is filed.

Koehler v. Bank of Bermuda Three Years Later: Fewer Places to Hide

By George F. Hritz and Amy A. Lehman

Should international commercial creditors with large debts owed to them by solvent debtors be required to jump through hoops to collect final judgments?

Proving a Reasonable Royalty for Trade-Secret Misappropriation

By Chip Brooker

Calculating damages comes with inherent difficulties and inconsistencies in the law from one jurisdiction to the next.

A Primer on Recovering Lost-Profit Damages

By Zachary G. Newman and Anthony Ellis

Careful attention to providing sufficient evidence and abiding by evidentiary rules could be the difference between recovering damages and having the claim barred.

A Practical Guide to Admitting ESI at Trial

By Joseph A. Martin and Christine S. Baxter

The process for admitting ESI into evidence at trial involves largely the same considerations as admitting more conventional discovery materials.

Intentional Spoliation: No Evidence, No Tort, No Problem?

By Joseph C. Sullivan

Every jurisdiction should punish intentional and malicious conduct directly, especially where such conduct is aimed toward circumventing the search for truth.

The Permissible Use of Evidence of Insurance Coverage

By Andrew P. Hoppes

Depending on the facts and issues in the case, an insurance policy or indemnity agreement, or at least some reference to it, can easily end up in front of the jurors.

Affidavit Evidence: Heightened Scrutiny Due to Robo-Signing

By Rose Marie L. Fiore

Statements in an affidavit must be truthful, but it is equally important that the procedural aspects of obtaining affidavit evidence ensure its reliability and admissibility.

Summaries May Help, but Must Still Meet Rules 611(a), 1006

By James "Marty" Truss

Parties should not be allowed to enter into evidence case summaries or compilations of evidence tantamount to a written closing statement under the guise of Rule 1006.

LePage's, Cascade Health Solutions, and a Bundle of Confusion

By Jeff Jaeckel

The law for bundled discounts is more than just unsettled; it is a mess.

Section 2 Bundling Claims: Plaintiffs Be Scared, or Bundlers Beware?

By Bradley C. Weber and Ellen Miers Peeples

Iqbal and Twombly have made it difficult for antitrust plaintiffs to predict what any given court will require them to plead.

Economics and the Attribution Test for Bundled Discounting

By Sean Durkin

The method for determining anticompetitive bundle pricing is flawed and can yield false negatives.

Do Twombly and Iqbal Apply to Affirmative Defenses?

By Carla R. Walworth, Mor Wetzler, and Jessica Oliva

With little guidance from the courts, the old adage applies: Know your judge.

Updating Federal Procedures for Removal and Venue

By Thomas A. Gilson

The Federal Courts Jurisdiction and Venue Clarification Act resolves several disagreements and clarifies lingering ambiguities.

A Primer for the Alien Tort Claims Act

By Ashish S. Joshi and Gabriele Neumann

If the Supreme Court overturns Kiobel, corporations could be exposed to liability in U.S. courts for actions that occurred anywhere around the globe.

Evidentiary Challenges to Documents for Trial

By Zachary G. Newman and Anthony Ellis

The foundation for an evidentiary challenge begins with an understanding of the documents that are likely to be introduced at trial.

Staying Private Avoids SEC, but Not All Regulation

By Matthew J. O'Hara

Companies that stay private may avoid making disclosures about themselves to the public, but those that broaden their circle of investors still face significant risk.

E-Discovery: Getting to the Starting Gate

By James Worthington and Mor Wetzler

So much information is electronically stored that it is only a matter of time before e-discovery swallows all of discovery. How do you handle e-discovery at the start of a case?

Bankruptcy 101: Are You Smarter than a 1L?

By Aubrey Colvard

Test your bankruptcy knowledge by answering these questions and finding out if you’re smarter than a first-year law student.

Shareholder Oppression and Enhanced Fiduciary Duties

By David E. Lieberman

Lawyers representing a close corporation are well served to understand the common-law fiduciary duties and statutory rights and obligations in the governing jurisdiction.

Defending Against Breach of Fiduciary Duty in Bankruptcy

By Jeffrey Baddeley

When a company files for bankruptcy, directors and officers can be targets for creditors and their counsel looking for scapegoats.

Revival of the Adverse Domination Doctrine

By Michael White and Nathan Viavant

The death spiral of a corporation or a bank can be a long one, and if the directors work to prop up the institution, the discovery of misconduct may be delayed for years.

Supreme Court Examines the Fiduciary Exception to Privilege

By David Dodds

The Jicarilla decision is instructive as to the applicability and contours of the fiduciary exception to the attorney-client privilege.

The Arbitration of Consumer Unfair Trade Practices Claims

By Peter J. Boyer and Mariah N. Samost

Whether a consumer unfair trade practices claim is litigated or arbitrated can have a significant impact on the manner in which it is investigated and tried.

Civil Relief for Foreign Corrupt Practices Injuries

By Jeremy P. Evans and Andrew R. Booth

In certain narrow circumstances, Section 337 of the Tariff Act of 1930 could offer a company an opportunity to obtain relief in regard to conduct that resulted in an FCPA violation.

The Rise of Unfair and Deceptive Trade Practice Act Claims

By Michael C. Gilleran

Because of their enhanced remedies and their often low standards of proof, Unfair and Deceptive Trade Practice Acts have become a battleground in states that have them.

Use of the FCPA in State-Law Unfair Competition Cases

By Edward W. Little Jr.

There are state and federal civil statutes under which a would-be plaintiff may use a competitor's violation of the FCPA as a predicate act for liability.

When Business Torts Give Rise to Antitrust Liability

By Kevin McCann and Alyse L. Katz

Where the tortious business conduct of a powerful rival causes harm as the result of a disruption of the competitive process, antitrust laws will impose severe sanctions.

Achievable Steps to Discovery Cost Management

By Thom Wisinski and Randy Girouard

There is a tug of war between processing electronic discovery the proper, defensible way and managing discovery costs.

Using Virtual Data Rooms to Your Advantage

By Amy M. Stewart and Meghan E. Bishop

Virtual data rooms are changing the landscape of how corporate transactions are structured and changing the game for deal-related litigation.

Avoiding an Electronic Discovery Disaster with Litigation Holds

By Elizabeth S. Fenton, Diana Rabeh, and Jonathan M. Shapiro

We must advise clients of the triggers for the common-law duty to preserve evidence and assist them in developing practices to ensure that the duty is met when it arises.

Cyber-Defamation: It's Not Just Business as Usual

By Zachary G. Newman and Anthony Ellis

The question of whether a client should initiate a lawsuit for Internet defamation is one that requires careful consideration of the costs and risks.

Effectively Accessing Social Media Websites for Use at Trial

By Travis B. Swearingen

It is inevitable that an important player in your lawsuit will have potentially relevant and thus discoverable information located online.

Preserving Copayments and Deductibles to Contain Healthcare Costs

By Andrew O. Bunn and Wilson D. Antoine

Courts are allowing providers to effectively defraud insurers by allowing them to shirk their obligation to collect copayments.

Liability for Aiding and Abetting Securities Fraud Could Expand

By Edward W. Little Jr. and Peter Antonelli

The economic crisis has provided justification for new state and federal laws and regulations over the financial services industry.

Enhanced Damages for Elderly Victims of Consumer Fraud

By Zachary D. Schorr

The inconsistency in enhancements and penalties for elderly victims from state to state creates incentive for forum-shopping.

Using Contractual Merger Clauses in Defense of Fraud Claims

By Daniel P. Elms

Many courts have dramatically narrowed, or outright rejected, the use of these clauses as a per se defense to fraud claims.

Stomachaches for Food and Beverage Manufacturers Dealing with Recalls

By Carmine R. Zarlenga and Rosina “Nina” Hernández

Manufacturers now face consumer lawsuits alleging fraud, violations of warranty obligations, and false advertising claims predicated solely on economic injury.

Presenting Evidence when Businesses Have Limited Financial Information

By Neil Steinkamp, Gavin J. Fleming Esq., and Jacob Reed

In commercial litigation, a reasonable level of certainty relating to the cause of damages and the damages amount is required for damages to be awarded.

Guidelines for Nonparty E-Discovery under Rule 45

By Gary M. Pappas

Nonparty subpoenas raise the same issues relating to the discovery of ESI as do initial disclosures and requests for production between the litigants.

Travel Agents Appeal Airline Price-Fixing Decision to Supreme Court

By Rebecca Thai

If the U.S. Supreme Court grants certiorari, it will revisit the precedent-setting pleading standard set in Bell Atlantic Corp. v. Twombly.

Little FTC Acts and Statutory Treble Damages-Traps for the Unwary

By Christine Lipsey and Dylan Tuggle

Approximately half of the states permit treble damage recovery, but the state standards for recovery vary significantly.

State Attorney Generals Strong-Arm Mortgage Lenders By Use of State UDAP Statutes

By Shaun K. Ramey and Jennifer M. Miller

By broadly prohibiting deception, rather than confining the prohibition to a closed list of deceptive tactics, states can attack consumer transactions in a variety of settings.

Persuasive Brief Writing in Antitrust Cases: How to Win the Paper War

By Douglas F. Broder

Antitrust civil cases have been less likely than the typical federal case to go to trial. Now, fewer federal civil cases of any kind are going to trial.

Tag-Along Litigation: When an Indirect Purchaser Wants a Free Ride

By Amanda P. Reeves and Eric J. McCarthy

Illinois Brick gives a bright-line rule barring damage claims by indirect purchasers. But it does not preclude them from pursuing injunctive relief.

Prove the Value of Your Work for Your Clients and Partners

By David Cannella

Billing may not be a pleasant task, but if you can take the time to detail the specific nature of the work you've performed, you will make the life of your partner easier, demonstrate your value to the client, and—in turn—get more work.

Always Do Your Best Work for Your Partners

By Bart Greenwald

Give your best work to your partners. Your partners are your clients. If you are not giving them your best work, you are not succeeding in your job.

New Associates: Build up Your Goodwill Before Taking Personal Time

By Bart Greenwald

So you are a new associate at your law firm. After a summer clerking and working nine to five, you may be wondering what is expected of you. In a word: everything!

A Marketing Trip Is Not a Second Honeymoon

By Bart Greenwald

Aside from the obvious point that attorneys need to spend time with colleagues from other cities, many attorneys/marketers overlook the fact that sometimes your spouse can be your best asset.

Voir Dire in the Antitrust Case

By Jeffrey August Beaver

Knowledge gained from complex antitrust cases can be used to effectively voir dire the antitrust jury. This skill has many advantages for their clients.

Get Thee to the Library

By Bart Greenwald

In this computer age, I’ve found that young associates are about as likely to do manual research as they are to live of life of celibacy.

Making the Appellate Record While Persuading the Jury

By Gregory Huffman

Trying a tedious antitrust case is like recording a performance in stereo—one track with stories and themes, the other for the facts and explanations.

Trial Fundamentals and Strategies for the Civil Antitrust Attorney

By Thomas J. Horton

Seize the initiative and make the extra effort necessary to become a capable antitrust trial attorney.

Trying an Antitrust Class Action

By Jerry L. Beane

Hopefully this article will be of assistance to lawyers prosecuting a class action, but its suggestions are not limited to antitrust class actions.

Young Lawyers Corner

Affidavit Evidence: Heightened Scrutiny Due to Robo-Signing

By Rose Marie L. Fiore

Statements in an affidavit must be truthful, but it is equally important that the procedural aspects of obtaining affidavit evidence ensure its reliability and admissibility.

Reasonableness Standard Versus Business-Judgment Rule

By Mark Nichols

A review of the case law shows three approaches to reviewing the validity of an action challenging the decision of a condominium association’s board of directors.

E-Discovery: Getting to the Starting Gate

By James Worthington and Mor Wetzler

So much information is electronically stored that it is only a matter of time before e-discovery swallows all of discovery. How do you handle e-discovery at the start of a case?

Associate Pushback

The Partners I Want to Work With

By Elizabeth Hyatt

No partner is perfect, and associates quickly learn the types of partners they deal with best.

Keeping Time: The Unbillable Hour

By Elizabeth Hyatt

A wise man once told me that the most important marketing tool a lawyer has is his bill. Yet, associates often have no idea what goes into the process of transmitting billing entries into a final bill.

Share Your Enthusiasm for the Practice of Law with Your Associates

By Elizabeth Hyatt

If Benjamin Franklin were alive today, he would probably say, “in this world nothing is certain but death, taxes and law firm partners complaining that associates don’t bill as many hours as the partners did when they were young.”