BLT: July 2019

     

    Featured Articles

    Business & Corporate

    Combating Gray Market Goods: Using the ITC to Solve the Gray Market

    Paul Tanck, Neal McLaughlin

    This year marks the 10th anniversary of the ABA’s publication “Combating gray market goods,” which provided helpful insights on how to use the Lanham Act to protect clients. Since that publication, manufacturers and their distributors have continued to utilize the Lanham Act to protect against the gray market with a particular focus on enforcement at the U.S. International Trade Commission (ITC). As a result, the ITC has emerged as the go-to venue in the fight against the importation of gray-market goods, in part due to its simple in rem jurisdiction, quick schedules, ability to join many respondents, and broad exclusionary powers.

    Business & Corporate

    Drafting ADR Clauses for Financial, M&A, and Joint Venture Disputes

    Leslie Ann Berkoff, Andrew Barton, Serena K. Lee, Peter R. Day, Susan Tomaine

    Many enterprises and lawyers that handle financial, M&A, and joint venture transactions are now turning to alternative dispute resolution (ADR) processes as an effective way to resolve disputes. ADR institutions have seen a significant increase in these types of disputes over the last few years. Unfortunately, contract drafters oftentimes fail to appreciate the nuances of ADR or the various options that should be considered at the front end for a possible dispute down the road. Business corporate lawyers should include the litigators in their firms in this drafting process because the litigators will be in charge of any form of ADR process, be it mediation or arbitration, once the deal is complete and should a dispute arise.

    Business & Corporate

    Kentucky Supreme Court Strikes Down Waiver of Claims Between Child and For-Profit Business

    Thomas E. Rutledge

    Recently, the Kentucky Supreme Court issued an opinion addressing whether a waiver signed by a parent on behalf of a minor child is enforceable. Restricting its analysis to a situation in which the party seeking the waiver is a for-profit business enterprise, the court answered “no.” In Re: Miller v. House of Boom Kentucky, LLC, ___ S.W.3d ___, No. 2018-SC-000625-CL, 2019 WL 2462697 (Ky. June 13, 2019).

    Business & Corporate

    Legal Framework for the Evolving Faster Payments Landscape

    Stephen Krebs, Paul Holbrook

    With the introduction of a variety of new, faster payment methods, including Same Day ACH, The Clearing House’s RTP® network, and Early Warning Services’ Zelle® payment service, the payments landscape is evolving rapidly.[1] These systems and services are subject to an extensive set of legal requirements. Those aiming to understand this legal framework must look not only to laws and regulations, but also to payment system rules. Core laws include the Electronic Fund Transfer Act (EFTA) and its implementing regulation, Regulation E, and Article 4A of the Uniform Commercial Code (Article 4A). In many cases, the applicability and operation of these requirements, a financial institution’s obligations, and a customer’s rights are dependent on the nature and features of a particular payment transaction. This includes, for example, whether the transaction is a consumer or commercial transaction; whether funds are moved via a “debit pull” or a “credit push” payment;[2] and whether the transaction is reversible or final.

    Business & Corporate

    Critical Cybersecurity Compliance Issues for Canadian and U.S. Companies Operating across the Border

    David Aschkinasi, Andrew C. Alleyne, William R. Denny, Michael McEvoy

    Enforcement activities of cybersecurity and privacy laws in both Canada and the United States are on the rise. Canada has one federal statute governing commercial privacy matters across the country, except in three provinces where “substantially similar” legislation governs, and by specific requirements for particular industries (i.e., banking and health). This approach differs from the United States, where there are multiple federal laws and a growing number of state statutes and regulations that govern privacy and cyber security. For businesses engaged in Canada-U.S. cross-border transactions understanding the laws and regulations on both sides of the border and having an appropriate cybersecurity compliance program in place are imperative to assuring that personal and proprietary information are protected and to minimizing the legal, financial, and operational risks to businesses that may occur through noncompliance with laws.

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