BLT: June 2018


Feature Articles

Business & Corporate

Gagosian Gallery Faces Two Lawsuits Over Non-Delivery of Koons Statues

There is a very tiny world out there in which people pay millions of dollars in advance payments for “factory-manufactured” balloon animal stainless steel sculptures—some in the shape of Greek and Roman goddesses—only to be told by “sales and contract performance drones” that there would be years of delay due to “the high volume of data” from “numerous scans of balloons,” along with technical difficulties in “reverse engineering” and “Computer-Aided Design processes (known as ‘CAD’).”

Business & Corporate

Employers Triumph: Arbitration Class and Collective Action Waivers Are Enforceable, but What Should Employers Do?

In a landmark victory for employers, the U.S. Supreme Court held that agreements requiring employees to arbitrate claims on an individual basis are enforceable. The case, Epic Systems Corp. v. Lewis, 584 U.S. ____ (2018), consolidated three different cases on appeal from the Fifth Circuit, Seventh Circuit, and Ninth Circuit. Murphy Oil U.S.A., Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015); Epic Systems Corp. v. Lewis, 823 F.3d 1147 (7th Cir. 2016); Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016).

Business & Corporate

CFPB Re-Examination of Disparate Impact and ECOA

The Consumer Financial Protection Bureau's (“CFPB”) Acting Director, Mick Mulvaney, recently announced that the CFPB will re-examine its position on disparate impact liability under the Equal Credit Opportunity Act (“ECOA”). Based on recent federal developments that reflect a trend of repudiating Obama-era financial reform and limiting the regulatory discretion of the CFPB, the end of disparate impact enforcement by the CFPB seems likely.

Business & Corporate

MHS Capital LLC v. Goggin: Reviewing Fiduciary Duty and Exculpation Provisions in Limited Liability Company Agreements

In MHS Capital LLC v. Goggin, the Delaware Chancery Court, in addressing claims for breach of contract and breach of fiduciary duty, provided guidance to members and managers of limited liability companies (LLCs) and their counsel regarding issues to consider when negotiating and adopting fiduciary duty modifications and exculpatory provisions in limited liability company agreements.

Business & Corporate

Why Destruction of Information Is So Difficult and So Essential: The Case for Defensible Disposal

The information universe is expanding in truly mind-numbing ways. There is a new exabyte of data created every few hours across the globe. (One exabyte of data is the equivalent of 50,000 years of continuous movies.) That Mount-Everest-sized pile of information is replicated many times every day and continues to grow faster and faster. Big companies typically have millions or billions of files stored in multiple locations, including third-party-owned Clouds. For many companies, that means they can’t keep all their information forever because they are collapsing under its weight. So why are companies hard-pressed to clean house of unneeded information?

Business & Corporate

20 Questions and Answers on the Fundamentals of Records Management

Lawyers should not expect their clients to have the expertise of a professional records manager; however, there are some basic fundamentals about how records should be managed that every organizational employee should know to protect company interests. Many large organizations can afford to employ an army of professional records managers, but for the hundreds of thousands of organizations that either cannot afford that luxury or who depend on its lawyers for that expertise, it is the lawyers’ responsibility to make sure an organization’s employees have the fundamentals of records management permanently inscribed in their daily work.

Business & Corporate

SEC Issues New Guidance on Cybersecurity Disclosure and Policies

In February, the SEC announced that it had adopted long-awaited new guidance on cybersecurity disclosure. While the new guidance builds on Corp Fin's 2011 guidance on this topic, it carries more weight because it bears the imprimatur of the Commission itself rather than its staff. The guidance itself is not a revelation: its significance is less in what it says than in the fact that the SEC felt compelled to issue it.

Business & Corporate

SEC Brings Enforcement Action for Failure to Issue Timely Disclosure of Cyber Breach

In the previous installment, SEC Issues New Guidance on Cybersecurity Disclosure and Policies, we explored the text and implications of the recently issued SEC guidance. When that guidance was issued, the SEC had not yet brought a formal enforcement proceeding for failure to make timely disclosure regarding cybersecurity risks and/or cyber incidents.

Business & Corporate

Dodd-Frank Rollback Law Includes Increased Flexibility for Growth Companies and Venture Funds

On May 24, 2018, President Trump signed into law a broad rollback of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. In addition to a number of changes applicable specifically to financial institutions, the Economic Growth, Regulatory Relief, and Consumer Protection Act (the Act) contains a number of reforms to federal securities laws and regulations that will affect privately held, high-growth companies; venture capital funds; and public reporting companies, including: