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Business Torts & Unfair Competition


In-depth analysis and practical advice on topics relevant to your practice. Find all of the Business Torts & Unfair Competition Committee’s articles in this archive.


Following Federal Indictment, SEC Charges Ringleader and Additional Co-Conspirators in Years-Long, Eye-Popping Fraud
By John Marsh – August 31, 2023
The defendants allegedly promised increasingly higher returns throughout the scheme, all the way up to $56.25 billion in return for an investment of $100,000.

How Are Directors of Crypto Companies Liable?
By Sona Sulakian – August 31, 2023
As crypto companies face heightened regulatory and investor scrutiny, directors will need to reassess their personal exposure to liability.

Fraudulent Conveyance Choice of Law: New York Is Not All Uniform Just Yet
By Lauren F. Dayton – August 31, 2023
Choice-of-law rules can vary significantly in different jurisdictions and, with New York’s adoption of the Uniform Voidable Transactions Act, can even vary within a single jurisdiction based on the date of the alleged fraudulent transfer.

Neurodiversity—Another Front in the Battle for Diversity, Equity, and Inclusion in the Legal Industry
By Xochitl S. Strohbehn – August 31, 2023
To be effective, the legal industry’s DEI efforts should include consideration of neurodiversity—differences in brain operations—which can bring benefits to organizations and support compliance with the Americans with Disabilities Act.

Following Federal Indictment, SEC Charges Ringleader and Additional Co-Conspirators in Years-Long, Eye-Popping Fraud
By John Marsh – August 30, 2023
The defendants allegedly promised increasingly higher returns throughout the scheme, all the way up to $56.25 billion in return for an investment of $100,000.

How Can Litigators Avoid Preemption to Protect Company Trade Secrets and Confidential Information?
By Parker E. Thoeni and Courtney B. Amelung – April 20, 2023
Statutes such as the Uniform Trade Secrets Act and Defend Trade Secrets Act may preempt common-law remedies for violations of trade secrets, but certain strategies could allow for litigation of broader claims.

Pay Transparency Laws Challenge Employers’ Ability to Advance Trade Secret Arguments Regarding Employee Salary
By Lauren Frisch – April 20, 2023
Labor and employment and trade secret practitioners can use certain strategies to help ensure their clients’ confidential employee compensation information is protected.

Top Five Things American Lawyers Should Know about Trade Secrets in Europe
By Bastiaan Bruyndonckx, Yves Lenders, and Françoise Billen – April 20, 2023
The European Union’s 2016 Trade Secrets Directive governs uniform trade secrets substantive rights and remedies and enforcement processes in Europe. These five tips can help American practitioners protect their clients’ trade secrets in Europe.

What Every Young Lawyer Should Know about Professionalism
By Ebony S. Morris – April 20, 2023
Remembering commonsense lessons of civility and clear communication can help young lawyers maintain professionalism. Strong mentorship and sponsorship relationships can help.

Tortious Interference: Judicial Application of the Third Restatement
By Brian A. Hill and Rob Cetrino – January 12, 2023
The Third Restatement revolutionizes how courts should approach claims for tortious interference. But how are judges applying the new guidelines in practice?

Comparing Fiduciary Duties in Various Asset-Management Relationships
By James An – January 12, 2023
Although many managers and advisors are considered “fiduciaries,” the particulars of their fiduciary obligations differ significantly depending on the exact relationship involved. Some of these differences are clearly justified; others are less so.


How to Counter Fraud Through the Use of Equity Receiverships
By Rick Rein – August 26, 2022
An equity receivership can be an effective tool to address financial fraud related to a business’s mismanagement or improper use of assets.

Hashlets, HashStakers, and Hashpoints: The Strange Quantum World of Cryptocurrency Meets the Howey Test
By Rick Rein – August 26, 2022
As courts apply longstanding securities law to the new realm of cryptocurrency, the industry appears likely subject to securities registration, enforcement actions, and fraud claims.

New Materials? Jury Instructions on Materiality in Post-Escobar False Claims Act Cases
By Sarah Barney, Brian A. Hill, and Jason N. Workmaster – August 26, 2022
Materiality under the FCA remains a hotly litigated topic, and proposed legislation may undercut the Escobar decision’s stringent standard.

Restrictive Covenants and the War for Talent
By Maria L. Kreiter and Katheryn Mills Ybarra – August 26, 2022
Colorado and other states enact more employee-friendly laws.

Double Duty: Fiduciary Duties of Joint Venture Directors
By James Bamford, Tracy Branding Pyle, Lois D’Costa Fernandez, and Meghan McGovern – August 1, 2022
Structurally reducing the number of conflicts, incorporating appropriate fiduciary duty contractual language, and introducing proactive company practices all are viable means to reduce the zone of conflict.

Trade Secrets: The Fashion Industry’s Trendiest Secret
By Denisse Garcia – April 21, 2022
Trademarks, patents, and copyright are usually the weapons of choice to protect fashion companies’ intellectual property, but trade secret protection can and should also be used to fill in the gaps.

Best Practices for Negotiating and Entering into Nondisclosure Agreements
By Rebecca Edelson and Patrick McGill – April 21, 2022
Can the parties actually live with and abide by an NDA’s terms?

Combatting Foreign Trade Secret Theft
By Randall E. Kay – April 21, 2022
Expanded use of the ITC and international arbitration have helped trade secret victims of foreign wrongdoing obtain relief in the United States.

Flexible and Imaginative Approaches to Reasonable Royalty-Related Discovery in Trade Secret Matters
By Abel Teshome – April 21, 2022
How the University Computing framework could serve as a starting point for a proactive and targeted discovery strategy to assess reasonable royalty damages.

Practical Steps for Addressing Employee Theft of Trade Secrets
By John Duffey, Sarah Horstmann, and Ann Motl – April 21, 2022
Your client’s former employee has stolen trade secrets—what do you do?


Why Do Non-Compete Agreements Get All the Press?
By Christopher W. Tackett – December 14, 2021
Other restrictive covenants are more important for protecting a business.

What You Need to Know About Washington, D.C.'s Non-Compete Agreements Ban
By Risa B. Boerner – December 14, 2021
The act goes beyond the reach of other restrictive non-compete statutes by virtue of invalidating agreements barring “simultaneous” competitive employment, as well as encompassing “prospective” employees.

Recent Developments in Restrictive Covenants in California: What Is Allowed?
By Robert Milligan and Sierra J. Chinn-Liu – December 14, 2021
The Golden State is widely known for its hostility to restrictive covenants, but its Supreme Court offers clarifications that this hostility does not extend to every agreement involving competitive restrictions.

Amendments to the Illinois Freedom to Work Act: Sweeping Changes Are on the Horizon
By Michael P. Avila – December 14, 2021
Employers and practitioners must be aware of some of the key financial and legal risks created by the amendments. These risks come in two potentially painful flavors.

Controlling Stockholder or Member Status under Delaware Law—A Table of Key Decisions
By Christopher B. Chuff, Joanna J. Cline, Matthew M. Greenberg, and Taylor B. Bartholomew – July 8, 2021
A guide for corporate stockholders and LLC members seeking to minimize the risk of being deemed a controlling stockholder or member that owes fiduciary duties under Delaware law.

Advisors, Beware: Delaware Court Eases the Pleading Standard for Alleging a Claim of Aiding and Abetting Breach of Fiduciary Duty
By Jeremy K. Beecher – July 8, 2021
The shifting of this standard has potentially significant consequences for financial advisors and other entities that are repeat players in the world of mergers and acquisitions.

Bäcker v. Palisades Growth Capital II, LP: Corporate Coups, Deception, and Walking Away
By Brian A. Hill and Joshuah R. Turner – July 8, 2021
The Delaware Supreme Court reminds us that if corporate directors engage in deception on their road to corporate control, they may never make it to their destination and that sometimes the best defense is to leave the table.

Measuring Valuation Damages for Breach of Fiduciary Duty Claims in Shareholder Disputes During the COVID-19 Pandemic
By John Levitske – July 8, 2021
When the situation changes rapidly as it has during the COVID-19 pandemic, the degree of precision in selecting the valuation date and the adequacy of the financial forecast may have a significant impact on the resulting quantification of valuation damages.

Can’t We All Just Get Along? Tips for Avoiding Fiduciary Litigation
By Erika L. Haupt and Jeremy S. Young – July 8, 2021
Common scenarios that can lead to fiduciary litigation and suggestions to avoid litigation or resolve matters among the interested parties.

Supreme Court to Interpret the Scope of the Computer Fraud and Abuse Act
By Cameron Roberts – March 18, 2021
Appellate courts are split over whether a person violates the act by accessing information for an unauthorized purpose or in violation of a use restriction. The Supreme Court is poised to resolve that question.

Mission Creep: The Evolving Impact of the Supreme Court’s Heightened Materiality Standard for False Claims Act Cases on Common-Law Fraud Claims
By T. Brandon Waddell – March 18, 2021
Elements of the Escobar standard have begun showing up in garden-variety, common-law fraud cases.

Tips for Handling Fraud and Related Malfeasance in Closely Held Businesses
By Todd Campbell – March 18, 2021
Practical advice and guidance on how to identify, litigate, and prevent these issues.

Doxing and Online Harassment: Considerations, Precautions, and Mitigation
By David L. Hecht, Antonio Rega, and Patricia Rodriguez – March 18, 2021
Learn how to protect yourself against exposure of personal information in our increasingly virtual world.

Lessons from COVID-Era Litigation at the Intersection of Price Gouging and Unfair Competition Relating to Medical Supplies
By Christopher W. Tackett – March 18, 2021
An overview of the law governing price gouging claims from a broad multi-jurisdictional perspective and lessons learn from the string of novel price gouging litigation in the medical context.

The Defend Trade Secrets Act and Extraterritoriality
By Kurt A. Kappes and Lupe R. Laguna – January 14, 2021
The question of whether misappropriation that occurred outside the United States is subject to the DTSA will likely be litigated with increased frequency.

How Can Digital Forensics Prevent the Misappropriation of Trade Secret and Confidential Information?
By Maria L. Kreiter, Maggie Cook, and Rebeca Lopez – January 14, 2021
By acting swiftly to uncover potential theft, employers increase the chances of recovering stolen information, preventing further misappropriation, and deterring others.

Damages in Trade Secret Matters: Lessons Learned in Patent Litigation
By Jim Pampinella and Chris Schulte – January 14, 2021
Valuation approaches that have been extensively vetted in the context of patent infringement damages can be useful starting points in trade secret litigation.

How Do We Protect Trade Secrets in Unprecedented Times?
By Charles Throckmorton and Michael Zilber – January 14, 2021
An evaluation of COVID-19’s impact on the “reasonableness” standard in trade secret litigation.


Tips for Protecting Trade Secrets in the Face of Remote Workforces, New Technology, and Laid-Off Employees
By Jeremy Cohen, Marcus Mintz, and Erik Weibust – September 28, 2020
As companies adapt to our rapidly changing circumstances, they may inadvertently place the protection of their trade secrets on the backburner.

Why Companies Must Ensure Their Non-Solicitation Agreements Are Fit for the Social Media Era
By Christopher W. Tackett – September 28, 2020
When is “friending” a breach of contract?

Top 10 Things Companies Can Do to Protect Their Trade Secrets When an Employee Resigns
By Susan Guerette – September 28, 2020
Employee departures always create the possibility of trade secret misappropriation. Here’s how to protect against that danger.

Restrictive Covenants: One Size Does Not Fit All
By Ryan M. Billings – September 28, 2020
An analysis of how employee non-compete enforceability tests are ill-suited to govern the enforceability of non-solicitation and nondisclosure agreements.

Considerations for the Use of Digital Forensics and Related Expert Services in Intellectual Property and Trade Secret Matters
By Antonio Rega – September 28, 2020
When and how a forensic expert is engaged can make or break a case. Making sure you get the right expert for your stage of the investigation can make all the difference.

Beware of Your Broker: Duties Arising from Agency Representation of Real Estate Professionals
By Nicole Levy Kushner – July 9, 2020
Brokers for the transactions may owe duties to no one but themselves.

Hiding in Plain Sight: Considerations Regarding Protections Given to Obvious Trade Secrets
By Kevin P. McCoy, William “Ty” Giltinan, and Michael G. Zilber – July 9, 2020
What happens when the secret is obvious but the information it interacts with is not?

Fiduciaries and the Rise of Stakeholder Capitalism
By Patrick McKnight – July 9, 2020
Successful corporations serve their shareholders by serving their customers.

The High Risks of Neglecting Fiduciary Duties in Start-Up Firms
By Christopher W. Tackett – July 9, 2020
How high-growth start-up companies and their directors, including venture capital firm designees, could face huge liabilities if they don’t start taking their fiduciary duties seriously with respect to corporate governance.

Special Legal Considerations for Telehealth Care Providers
By Sara Richman and Brian Callaway – April 2, 2020
With virus fears spreading, healthcare providers need to be aware of the special considerations involved in treating patients without seeing them face-to-face.

Challenging State Court Dismissals in Federal Court: Rooker-Feldman’s Murky Fraud Exception
By Samuel D. Harrison – April 2, 2020
Fraud-on-the-court can be an exception to state court judgment finality. Learn how to use that exception.

Method to the Madness: Tips for Separating Lay Opinion Testimony from Expert Testimony
By Danny Enriquez – April 2, 2020
Helpful tips on how to challenge lay opinion testimony.

Eight Steps to Protect Your Client’s Competitive Intelligence During Key Employee Departures
By Maria L. Kreiter, Margaret R. Kurlinski, Jennifer L. Gregor, Erin (Maggie) M. Cook, Rebeca M. López – April 2, 2020
A proactive enforcement plan can prevent the loss of client relationships, unfair competition and disclosure of competitive intelligence. Time is of the essence, including steps an employer takes day one.


Trade Secrets in the Medical Device Industry: The Role of Company Documentation
By Marta Villarraga and Jorge A. Ochoa – December 17, 2019
Navigating the competing demands of regulatory disclosure and competitive advantage requires a strong trade secrets program.

How Much Is It Worth? A Look at Trade Secret Damages
By George F. Ritchie and Lauren E. Lake – December 17, 2019
Top tips for proving (or disproving) damages in trade secrets cases.

Three Years into the Defend Trade Secrets Act, How Do Its Remedies Differ in Practice from the Uniform Act’s Remedies?
By Christopher W. Tackett – December 17, 2019
Unsure about different remedies under the DTSA and the UTSA? Look no further for a DTSA remedy primer and update.

How a Victim of Trade Secret Misappropriation May Obtain Unjust Enrichment Damages Based on Cost Avoidance Calculations
By John A. Stone – December 17, 2019
An in-depth analysis of the interplay between common law unfair competition and trade secret law.

Why Litigators Should Care about Trade Secret Management
By Nicole D. Galli – December 17, 2019
Top reasons a litigator’s perspective on trade secret management may be more valuable than you think.

Effective Juror Selection Strategies: Part 3
By Steven Ginsburg – July 22, 2019
Voir dire is ostensibly for choosing an objective, impartial jury, but nothing could be further from the truth.

The Business Judgment Rule: A Shield and Sword
By Iván Resendiz Gutierrez – July 22, 2019
Key tips to know about the business judgment rule when litigating shareholder derivative actions.

Don’t Feel Pressured to Settle a Case That You Don’t Want to Settle
By Matthew B. Barr – July 22, 2019
Courts can require parties to participate in the settlement process, but they cannot pressure parties to settle.


Well Established but Often Forgotten: Breach of Fiduciary Duty Claims Against Employees
By John S. Adams – October 17, 2018
Many courts will impose at least a duty of loyalty.

Interference with Economic Relations: A Comparative Analysis of American and Anglo-Canadian Approaches
By Marco Falco – October 17, 2018
The breadth of the American approach has been criticized, but Anglo-Canadian jurisprudence has unnecessarily narrowed the tort.

Is a Covenant Not to Compete Enforceable in Bankruptcy?
By Kim K. Hillary – October 17, 2018
At least two fundamental disagreements have arisen in the courts.

Considerations Regarding Attorney-Client Privilege in the Joint Representation of Multiple Clients
By Merrick L. “Rick” Gross and Yolanda P. Strader – Octoer 17, 2018
But what happens when infighting arises among those who were parties to the joint representation?

Is There Insurance Coverage for Trade Secrets Litigation?
By Brian Esler and Seth Row – June 19, 2018

The Defend Trade Secrets Act after Two Years: A Practical Perspective on Its Development
By T. Brandon Waddell – June 19, 2018
What to watch for at least until the DTSA’s three-year statute of limitations catches up to its 2016 effective date.

Effective Juror Selection Strategies: Part 2
By Steven D. Ginsburg – June 19, 2018
Your jurors' opinions about you and your case are not always logical or fair.

So You’ve Discovered a Case of Employee Fraud: Six Steps to Take Immediately
By Teddy Brown and Nicole Ponziani – March 5, 2018
Two forensic accountants share advice they give to business owners who suspect fraud.

Student Loan Class Actions Take Aim at “a Massive Effort to Defraud Student Debtors”
By Lynn E. Swanson – March 5, 2018
Many courts are finding that student lenders have misused the U.S. Bankruptcy Code.

A Chill in the Air: Recent Attempts to Turn Defamation into Mail and Wire Fraud
By Lance Koonce – March 5, 2018
When does an allegedly false statement become a fraudulent one?


The Big Case: How to Win the Budget Battle
By Brian A. Berkley – November 6, 2017
Winning this can often be as important as winning on the merits of your case. These tips can help give your clients certainty and keep you focused on your practice.

Tips for Ensuring That Your Client’s Trade Secret Security Measures Are Reasonable under the Circumstances
By Daniel Kaufmann – November 6, 2017
Courts often look to indicators such as restricted physical and electronic access, the use of nondisclosure agreements, and clear markings indicating a document’s secrecy or confidentiality to guide their inquiry.

Deponents Behaving Badly: Should Their Lawyers Be Sanctioned Too?
By Alexandra L. Sobol – November 6, 2017
The Rules of Civil Procedure give courts the power to sanction bad conduct by a deponent. But under certain circumstances, the deponent’s attorney could also be on the hook.

Tips for Protecting Trade Secrets and Proprietary Information
By Steven D. Ginsburg – November 6, 2017
Best practices for ensuring that owners are protecting their trade secrets to the fullest extent possible.

Proving Lost Profits for a New Business
By Katie Lasky and Kerry Murphy – May 31, 2017
Many courts apply a reasonable certainty standard for proving lost profits, some apply a more stringent standard, and others do not allow new businesses to recover lost profits at all.

Post-Election Non-Compete Update
By Robin Morse – May 31, 2017
With silence on the federal front, states continue to take diverging approaches.

Tips for When Not to Bring a Claim under the Defend Trade Secrets Act
By Kevin C. Quigley – May 31, 2017
State law—and state courts—often remain a plaintiff’s best hope of avoiding, halting, and remedying trade secret misappropriation.

Six Factors to Consider for a Successful Settlement Strategy
By Anthony Baish – January 19, 2017
You and your client want the upper hand in those negotiations.

Triggering Insurance Coverage for Success in Commercial Litigation
By Susan Schellinger – January 19, 2017
Learn how to “plead to coverage” to ensure the best chances of a monetary recovery.

The Defend Trade Secrets Act of 2016: A Summary
By Maria L. Kreiter – January 19, 2017
The act marks a critical advancement in trade secret law.


The E-Usual Course of Business: ESI Application to Rule 34 Requirements
By Amanda E. Gordon – June 16, 2016
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 – June 16, 2016
A wide range of individuals can become prey to check fraud, including attorneys.

The Talk about Shell Companies
By Emily Lehmberg – June 16, 2016
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 – June 16, 2016
This rule, and state law equivalents, have a place in the discovery plan.

Lost Profits: Direct or Consequential Damages?
By Wendi J. Berkowitz – March 21, 2016
Significant sums hang in the balance.

Tips for Organizing ESI per the Document Request
By Amanda E. Gordon – March 14, 2016
Three practical pointers you can follow to (hopefully) avoid this task.

Who Can Sue after a Data Breach?
By Brittany Robbins – March 14, 2016
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 – March 14, 2016
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 – March 14, 2016
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 – August 20, 2015
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 – August 20, 2015
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 – August 21, 2015
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 – August 20, 2015
Wisconsin joins the expanding majority view.

How to Respond to Trade Secret Theft: The First 48 Hours
By Ryan M. Billings – June 16, 2015
Be prepared to take full advantage of what unfolds.

Tips for Navigating the "Greenwashing" Landscape
By Sarah E. Merkle – June 16, 2015
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 – June 16, 2015
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 – June 16, 2015
What is an "inequitable result"?

How to Preserve Privilege during Data Breach Investigations
By Leslie C. Thorne and Laurel D. Brewer – March 11, 2015
What steps should a corporation take after a cyber attack?


Cost-Saving Trends in Electronic Discovery
By Gerald E. Burns and Stuart Claire – December 17, 2014
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 – December 17, 2014
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 – December 17, 2014
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 – December 17, 2014
A "bridge too far" or a path to preclusion?

Slapping Away Claims of Trade Secret Theft
By Linda M. Glover – December 17, 2014
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 Andrea Donovan Napp – December 17, 2014
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 – September 16, 2014
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 – September 16, 2014
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 – September 16, 2014
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 – June 3, 2014
Business litigators need to learn the lessons of recent cases.

Business Judgment Rule Now Available for Going-Private Mergers
By Travis Patterson – June 3, 2014
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 – June 3, 2014
The task is necessary even when liability is legally established.

Revisiting the Restatement's Tortious Interference Provisions
By Ryan M. Connor – June 3, 2014
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 – June 3, 2014
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 – March 3, 2014
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 – March 3, 2014
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 – March 3, 2014
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 – March 3, 2014
The Civil War-era law is our primary tool in prosecuting government fraud.


Young Lawyers Corner: Observing Jurors During Trial
By Cynthia R. Cohen – September 18, 2013
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 – November 11, 2013
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 – November 11, 2013
A primer on defining and dealing with Internet attacks.

Cyber-Defamation: What Is It and How Should Businesses Respond?
By Thomas J. Mew IV – November 11, 2013
A primer on defining and dealing with Internet attacks.

The Changing Landscape of Aiding and Abetting Breach of Fiduciary Duty Claims
By Linda M. Glover – November 11, 2013
Practitioners should anticipate encountering the claim with increasing frequency in the corporate arena.

When Facebook (et al.) Attacks
By Lorin Subar – July 31, 2013
Fighting business disparagement in the age of social media.

Justifiable Reliance Standards Differ Across States
By Patrick Keating and Tyler Beas – July 31, 2013
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 – July 31, 2013
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 – July 31, 2013
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 – July 31, 2013
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 – April 23, 2013
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 – April 23, 2013
Should the act be construed broadly or narrowly?

Standardizing Efficiencies in Business Litigation
By Heath J. Szymczak – April 23, 2013
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 – April 23, 2013
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 – April 23, 2013
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 – February 19, 2013
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 – February 19, 2013
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 – February 19, 2013
Is the government's requirement of "continuity" needed to establish a racketeering pattern?

Preemption of Business Torts under the Uniform Trade Secrets Act
By Peter J. Boyer – February 19, 2013
Courts are split on the preemption provisions of the UTSA.


Enjoining a Fund Distribution Pending the Outcome of Litigation
By Meaghan E. Ryan – October 22, 2012
A preliminary injunction can "stop the bleeding."

Koehler v. Bank of Bermuda Three Years Later: Fewer Places to Hide
By George F. Hritz and Amy A. Lehman – October 22, 2012
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 – October 22, 2012
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 – October 22, 2012
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 – July 18, 2012
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 – July 18, 2012
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 – July 18, 2012
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 – July 18, 2012
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 – July 18, 2012
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 – June 28, 2012
The law for bundled discounts is more than just unsettled; it is a mess.

Economics and the Attribution Test for Bundled Discounting
By Sean Durkin – June 28, 2012
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 – June 13, 2012
With little guidance from the courts, the old adage applies: Know your judge.

A Primer for the Alien Tort Claims Act
By Ashish S. Joshi and Gabriele Neumann – May 8, 2012
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 – May 8, 2012
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 – May 8, 2012
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 – August 3, 2011
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 – May 2, 2012
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 – February 29, 2012
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 – February 29, 2012
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 – February 29, 2012
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 – February 29, 2012
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 – October 17, 2011
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 – October 17, 2011
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 – October 17, 2011
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. – October 17, 2011
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 – October 17, 2011
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 – July 13, 2011
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 – July 13, 2011
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 – July 13, 2011
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 – July 13, 2011
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 – July 13, 2011
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 – April 18, 2011
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 – April 18, 2011
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 – April 18, 2011
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 – January 27, 2011
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 – January 27, 2011
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.

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, Esq.
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, Esq.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!

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, Esq.
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.

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.