BLT: October 2018



Business & Corporate

#MeToo, Confidentiality Agreements, and Sexual Harassment Claims

The growing wave of sexual harassment cases against high-profile figures has revealed that the use of nondisclosure or confidentiality provisions in settlement agreements has forced many women to keep their sexual harassment allegations private, which, in some respects, may allow harassers to continue their misconduct. When confidentiality is made a term of a settlement agreement, the parties are generally prohibited from disclosing not only settlement terms, but also facts relating to the underlying dispute. The controversy over settlement agreements that include confidentiality provisions reached a fever pitch when it came to light that dozens of women and girls who accused former USA Gymnastics team doctor Larry Nassar of abusing them had signed such agreements.

Business & Corporate

Supreme Court Hears Argument on Applicability of Section 1 of the Federal Arbitration Act

On October 3, 2018, the United States Supreme Court held oral argument for New Prime Inc. v. Oliveira, No. 17-340, a case concerning Section 1 of the Federal Arbitration Act ("FAA"). Section 1 of the Federal Arbitration Act ("FAA") provides that the FAA does not apply "to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1. Specifically, the Court is addressing two issues: (1) whether a court or an arbitrator must determine the applicability of Section 1; and (2) whether Section 1 of the FAA's exemption for contracts of employment includes, as a matter of law, independent contractor agreements. The underlying dispute arises from an independent contractor agreement between the parties pursuant to which Oliveira’s trucking company,located in Missouri, provided services to New Prime, a national trucking company.

Business & Corporate

Colombian State-Owned Companies and the Implications of Doing Business in Colombia Under the FCPA

Uncertainty is bad for business. The interpretation by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) of “an instrumentality of a foreign government” under the Foreign Corrupt Practice Act (FCPA) might discourage business between U.S. and Colombian companies. The compliance programs of American companies can turn into lengthy procedures with long chains of people involved, making business decisions expensive and time-consuming because they could involve hiring foreign attorneys, mitigating a broad category of risks, and hiring employees that understand the Colombian political situation and its laws.

Business & Corporate

The Anniversary of #MeToo: A Time of Reckoning for Law Firms

For the past year the #MeToo movement has altered the landscape of corporate conduct and accountability, not only for senior management but for corporate boards as well, as evidenced by the recent controversy surrounding CBS’s former Chairman and CEO Moonves. Since the disclosures last October regarding Harvey Weinstein’s conduct, over 100 senior executives, across a variety of industries, resigned or were fired as a result of allegations regarding sexual misconduct. Workplace sexual harassment is prevalent, and until the #MeToo movement, largely silent.