Articles

 

Are Clawback Agreements Being Used to Their Full Extent?

By Jennifer F. Beltrami

Clawback orders can reduce the need for parties to concern themselves over whether their conduct would pass scrutiny under a reasonableness analysis.

The Rule 26 Amendments: One Year Later

By Louis E. Kempinsky and John C. Keith

Case law interpreting the 2010 amendments is still in the early stages, but a number of potentially significant issues have already emerged.

The Benefits of a Miranda-Type Approach to Upjohn Warnings

By Sehyung Daniel Lee

Employees should know that lying during an internal investigation could result in criminal penalties, even if it causes the employees to be less forthcoming.

Reviewing Privilege Issues During Transaction Negotiations

By Scott B. Murray

You never know when a deal is going to lead to litigation, so parties should be as protective during negotiations as they might be during litigation.

Negotiating Effective Search Terms Will Save Expense Later

By Angela M. Scafuri

Well-crafted search parameters are critical to the speedy resolution of cases and the reduction of litigation costs.

Privilege-Waiver Issues in Bankruptcy after MF Global

By Meryl B. Vinocur and Catherine G. Pappas

Management's fiduciary duty prior to bankruptcy is to the shareholders, but afterward, the trustee's role is to administer the estate for the benefit of creditors.

NLRB Rules Collective-Action Waivers Are Unlawful

By Breanna Harris

The NLRB ruled it is a violation of federal law to require employees to sign arbitration agreements that prevent them from joining to pursue legal claims.

Must Legal Holds Be Written to Avoid Spoliation Sanctions?

By Paul M. Kessimian and Travis J. McDermott

Steuben Foods shows that Pension Committee's rule of per se gross negligence and associated inference of spoliation will not necessarily be followed.

Shining a Spotlight on Adequacy of Class Counsel

By Jeremy Gilman

A Seventh Circuit decision is likely to sharpen the focus on the adequacy-of-counsel requirement in consumer class actions.

Commercial Litigation in the United Kingdom

By Gavin Foggo and Caroline Benham

The United Kingdom's procedural rules, practice conventions, and public policy pressures give its litigation landscape important differences from that of the United States.

Obtaining Evidence in Canada for Use in Foreign Proceedings

By Brett Harrison and Richard McCluskey

To effectively litigate disputes in the United States, U.S. attorneys need to know the steps necessary to compel evidence from a witness living in Canada.

Friendly yet Foreign: Litigating in Ontario, Canada

By Douglas Harrison

As with most of Canada, Ontario's legal system is based on the common law, passed down from when the province was an outpost within the British Empire.

Questions to Ask Before Starting International Arbitration

By B. Ted Howes

Although thinking ahead is important in all forms of dispute resolution, it takes on added importance in international arbitration.

Service Abroad under Fed. R. Civ. P. 4(f)(3)

By Aaron Weiss

Rule 4(f)(3) offers a method to save significant time and expense in serving defendants outside the United States.

Avoiding Lawsuits over Internet False Advertising

By Gary L. Beaver

Attorneys specializing in consumer-protection class actions are filing creative pleadings attacking companies for ads that may cost the company millions.

Contributory Trademark Infringement: An Issue for Web Hosts

By James Billings-Kang

Some web hosts are being held liable for assisting businesses in the sale of counterfeit goods.

Wikipedia Dispute Resolution

By Thomas C. Goodhue

Wikipedia has implemented procedures that address its potential for misuse.

Combating Jurors' Improper Internet Usage and Winning

By Robin H. Jones and H. Eli Lightner II

The Internet revolution is leaving courts and parties scrambling to preserve the sanctity of the jury trial.

Delaware Upholds Sanctions for Electronic Discovery Violation

By C. Malcolm Cochran and Travis S. Hunter

The Delaware Supreme Court affirmed an award of sanctions against a litigant who authorized the deletion of unallocated free space on a computer hard drive.

Attorney-Client Privilege and Former Directors and Officers

By Joshua Heidelman and Michael J. Schrier

What happens to attorney-client and work-product privilege if a director or officer leaves the corporation and then becomes adverse to it in litigation?

Delaware Court of Chancery Upholds Poison Pill in Airgas

By Jason J. Rawnsley

The court found that Airgas's board of directors acted consistently with its fiduciary duties in maintaining a poison pill in the face of an all-cash, all-shares hostile tender offer.

Fifth Circuit Refrains from Adjudicating OPEC Price-Fixing Claims

By Shain A. Khoshbin

The court affirmed the dismissal of two class actions brought by gasoline retailers against oil-production companies alleging antitrust violations.

Improving Multi-Jurisdictional, Merger-Related Litigation

By Mark Lebovitch, Jerry Silk, and Jeremy Friedman

The increased volume of merger-related class actions has led to unusual behavior by shareholders' and defense counsel alike.

Court of Chancery Issues New Guidelines for Preservation of ESI

By C. Malcolm Cochran

The Delaware Court of Chancery has issued a notice that follows recent rulings and public statements addressing the spoliation of ESI and the duty to preserve.

The "Selective Waiver" of Work Product Privilege

By Shain A. Khoshbin

In a recent federal case, a district court held that voluntary disclosure to a regulatory body waived the work product privilege.

Disguised Dividends, Improper Buyout, and Shareholder Oppression

By Shain A. Khoshbin

A "business divorce" between a minority shareholder-employee and a closely held company can involve emotionally charged allegations, legal issues, and equitable considerations.

New Jersey Certifies Class in Weight-Loss Supplement Case

By Ronald J. Campione

The case demonstrates the protective instinct of the New Jersey Supreme Court regarding individual consumer class actions alleging violations of the CFA.

The Delaware Corner: Poison Pills and a New Judge

By C. Malcolm Cochran and Jason J. Rawnsley

A recent decision of the Delaware Supreme Court approved the use of a "poison pill," and Leonard P. Stark joined the Federal bench.

Brand Enforcement on Social Networking Sites

By Darin M. Klemchuk and Roxana Sullivan

In today’s Web 2.0 world, businesses have inexpensive and far-reaching mechanisms through which to promote their brands and advertise their goods and services.

The Delaware Corner: A New Forum for Complex Commercial Disputes

By C. Malcolm Cochran

Delaware is a favored state for the formation of business entities, ranging from corporations and limited liability companies to limited partnerships and business trusts.

Attorneys Who Mishandle Their Clients’ Proofs of Claim Leave Themselves Open to Significant Blame

By Jeff Bohm, Brendetta Anthony Scott, and Suhani Desai

An assembly-line approach to signing and filing POCs may subject attorneys to quality control measures taken by courts.

An Overview of Landlord Rights Against Tenants in Bankruptcy

By Andrew Hardenbrook and Benjamin W. Reeves

A bankrupt tenant generally has three ways to treat a lease: assumption, assumption and assignment, or rejection.

Tips from the Mortgage Meltdown: Produce the Note . . . Of Course We Can

By Michael Winston

Much has been made in the media about securitized trusts' inability to produce final loan documents and the original note and mortgage, but this issue is largely a red herring.

Tips from the Mortgage Meltdown Trenches: Where’s the Rent?

By Michael Winston

Many properties in foreclosure were purchased by investors who intended to flip the property for a quick sale or hold it as a short-term rental.

Third, Eighth, and Ninth Circuits Weigh In on TILA

By Michael S. LeBoff

As Truth in Lending Act (TILA) claims proliferate, the federal appellate courts are being called upon to interpret borrowers’ rights and remedies.

Supreme Court Lets Stand Major Fifth Circuit Venue Ruling

By David Coale and Chris Kratovil

The U.S. Supreme Court recently denied certiorari in Singleton v. Volkswagen (In re Volkswagen II).

TILA Remedies: Damages vs. Rescission

By Michael S. LeBoff

In TILA cases, it is essential to understand the basic differences between damages and rescission, the primary remedies available for TILA violations.

Specific Engagement Letters: A Risk-Management Tool

The role of the engagement letter has assumed an increasingly heightened profile in the management of a law practice.

Alternative Privilege Log Techniques in an E-Discovery World

By Elizabeth T. Timkovich and Meghan A. O’Donnell

Manual data entry can be time-consuming, especially in cases where many documents are being withheld and individual privilege descriptions must be entered for each.

ESI: Now That You’ve Got It, How Do You Get It In?

By Bradford S. Babbitt and Kori Termine Wisneski

Another Federal Circuit Knocks Out Class Action Waiver Provision in Arbitration Agreement Based on Public Policy under Federal Antitrust Laws

By Angelo A. Stio

Disclosure of Electronic Documents in International Commercial Arbitration

By Troy L. Harris

Third Circuit Punts on Auditor’s In Pari Delicto Defense

By William Tobolsky

Keeping It Real: Making White Collar Witnesses Blue Collar Friendly [PDF]

By Alison Bennett, Tara Trask, Bruce Collins, Michael Barta, and Amy E. Davis

Privilege and Email

By William Heyman

Third Circuit Enforces Class Action Waiver and Affirms Order Compelling Individual Arbitration of Putative Class Action

By Marc J. Zucker

Edgar Extends Moench Abuse of Discretion Standard to EIAPs

By William Tobolsky

Producing ESI under Amended Rule 34(b): Native Files, Metadata, and Load Files

By Alan B. Sutton

Five Common Mistakes Lawyers Make in Electronic Discovery

By Gary L. Beaver

Top Ten Mistakes Clients Make in Electronic Discovery

By Gary L. Beaver

Young Lawyers

Give Associates the "Big Picture" of the Case

By Sally K. Sears Coder

The information sought in discovery not only enables your client to prove its claims or defenses, but it can also impact the cost of litigating the case.

Your First Guaranty Case: Twelve Things To Know about Guaranties

By John P. McCahey

There is a lot to know about guaranties, but this primer can be a good starting point.

Ten Tips for Advocates New to Arbitration

By John Arrastia, Jr.

Arbitration has its own body of substantive and procedural law, but it also happens to be subject to the rules promulgated by the sponsoring body.

Five Common Provisions in Construction Contracts

By Lindsay R. Barton

Construction contracts often contain payment and damages provisions specific to the construction industry.

Daubert and Summary Judgment: A Two Step Analysis

By Thomas L. Cubbage III and David S. Coale

A "no evidence" summary judgment motion involving a challenge to expert testimony requires a two-step analysis.

Practical Pointers for Managing Defensive E-Discovery Projects

By Irene S. Fiorentinos

Here are some suggestions for junior attorneys managing defensive electronic discovery.

The Delaware Corner

Delaware Upholds Sanctions for Electronic Discovery Violation

By C. Malcolm Cochran and Travis S. Hunter

The Delaware Supreme Court affirmed an award of sanctions against a litigant who authorized the deletion of unallocated free space on a computer hard drive.

Delaware Court of Chancery Upholds Poison Pill in Airgas

By Jason J. Rawnsley

The court found that Airgas's board of directors acted consistently with its fiduciary duties in maintaining a poison pill in the face of an all-cash, all-shares hostile tender offer.

Improving Multi-Jurisdictional, Merger-Related Litigation

By Mark Lebovitch, Jerry Silk, and Jeremy Friedman

The increased volume of merger-related class actions has led to unusual behavior by shareholders' and defense counsel alike.

Court of Chancery Issues New Guidelines for Preservation of ESI

By C. Malcolm Cochran

The Delaware Court of Chancery has issued a notice that follows recent rulings and public statements addressing the spoliation of ESI and the duty to preserve.

The Delaware Corner: Poison Pills and a New Judge

By C. Malcolm Cochran and Jason J. Rawnsley

A recent decision of the Delaware Supreme Court approved the use of a "poison pill," and Leonard P. Stark joined the Federal bench.

The Delaware Corner: A New Forum for Complex Commercial Disputes

By C. Malcolm Cochran

Delaware is a favored state for the formation of business entities, ranging from corporations and limited liability companies to limited partnerships and business trusts.

An Associate's View

Give Associates the "Big Picture" of the Case

By Ashley Schumacher

The partner, the associate, and, most importantly, the client, will benefit when the associate has a fuller understanding of all the elements of the case.