Commercial & Business Litigation

Articles

2019

Avoiding Unintentional Waiver of a No-Waiver Clause
By Julia K. Whitelock – April 11, 2019
Will a boilerplate no-waiver clause preserve a party’s rights when it has acquiesced to non-conforming performance?

When and Why to Consider Self-Disclosure of Criminal Conduct
By Ariel A. Neuman and Jen C. Won – March 21, 2019
A white-collar primer for civil litigators.

Five Hot Topics in Health Care Litigation
By Richard K. Rifenbark and Melissa S. Ho – March 21, 2019
Trends for white-collar practitioners and practical advice for clients..

Carpenter v. United States: A Six-Month Retrospective
By Eileen Rumfelt – March 21, 2019
Is it the landmark privacy decision experts predicted?

Cautionary Lessons in Analyzing Foreign Misconduct
By Christopher DeSá, Gavin Parrish, and David Lasater – March 21, 2019
How to navigate claims involving potential extraterritorial white-collar crime.

Effective Use of Merger Clauses: Part V
By Jason R. Scheiderer and Michael Malone – February 13, 2019
Rule of practical construction of merger clauses in the context of the parol evidence rule.

2018

When Your Expert Becomes Their Expert
By Robert L. Byman and Nathaniel K.S. Wackman – December 05, 2018
The professional you've hired for your case has an opinion to support the other side. What to do?

Better Safe Than Sorry: Experts Should Apportion Damages in Trade Secret Cases
By Travis S. Hunter and Renée M. Mosley – December 05, 2018
In trade secret misappropriation cases, experts should consider apportioning damages on a trade-secret-by-trade-secret basis; otherwise, they risk exclusion.

How Not to Fail at Trial Because of Your Expert: Getting Started
By Jeffrey D. Gardner and Jimmie W. Pursell Jr. – December 05, 2018
Some introductory tips on best practices when working with expert witnesses.

Tips for Working with Damages Experts to Establish Lost Business Value
By Brent K. Bersin – December 05, 2018
Familiarity with common valuation methods and the evidence needed to support them is an essential part of working with your damages expert.

Causation and the Role of the Damages Expert
By Peter Rybolt – December 05, 2018
What legal and analytical traps do experts often fall into when misapplying the concept of proximate causation?

Could Your Law Firm Forfeit Its Fees Due to an Undisclosed Conflict?
By Michael S. LeBoff – October 17, 2018
The California Supreme Court finds that an undisclosed conflict renders a retainer fee agreement unenforceable, but leaves open quantum meruit recovery.

Eight Ways In-House Lawyers Can Make You a Better Trial Lawyer
By Michael S. LeBoff – September 7, 2018
Taking the initiative to tap in-house counsel’s unique experience and knowledge base can be the difference between winning and losing at trial.

Social Media Content: What Is It and How Do I Use It at Trial?
By Marie V. Lim – September 7, 2018
In today’s digital age, a basic understanding of social media and how to use social media content at trial will enhance your practice.

Preparing the Corporate Client for Trial
By Clifton L. Brinson – September 7, 2018
From the law’s perspective, a corporation is a “person” just like an individual. But in preparing for trial, there are important distinctions between the two.

Live Testimony from Rule 30(b)(6) Witnesses at Trial: What’s Fair Game?
By Bradford S. Babbitt – September 7, 2018
How can an opponent compel a 30(b)(6) witness to testify live at trial, and what constraints apply to that testimony?

Guide for Young Lawyers Going to Trial in Civil Cases
By Mark A. Romance – September 7, 2018
For those in a small firm without a supervising attorney, or for those who are uncomfortable asking for help, here are some recommendations for young lawyers who need to get ready for their first trial.

The Trial Bible: An Outline of Proof
By Edward A. Marshall – September 7, 2018
Preparing an outline of proof, dismissed by some as a superfluous task, helps materially refine a litigator’s thought process and strategy as a case moves from briefing to trial.

When Wonderland Is Really a Bleak House: Reid v. Siniscalchi, Due Process and Plaintiff Abuse in “Conspiracy Theory” Jurisdiction
By Paul J. Vincenti and Elyse C. Pillitteri – July 16, 2018
Measures to prevent the misuse of conspiracy theory jurisdiction against non-resident defendants.

Taking the Time to Ensure You Don’t Miss Deadlines: Standardized Policies and Procedures for Calendar Management and Ten Considerations to Get You Started
By Jason A. Landro – May 22, 2018
Technology, imprecision, and unclear division of responsibility can lead to disaster. Adopting standardized policies and procedures is the key to ensuring that you don’t miss important deadlines.

Cybersecurity and the Lawyer’s Standard of Care
By Joseph Salvo and Brian Middlebrook – May 22, 2018
Legal malpractice claims stemming from a data breach or other cybersecurity event are on the rise and—now more than ever—law firms must be aware of the theories behind the claims and how to avoid them.

Lessons Learned as a Lawyer’s Lawyer
By John Storino and Katie Ciliberti – May 22, 2018
Practical tips that may help you avoid some of the more common pitfalls leading to legal malpractice claims.

Is Cooperation with the Government a “Consequence-Free Event” or a Waiver?
By Alan D. Strasser – May 22, 2018
Presentations to the SEC may waive work-product protections as to other litigation.

The GDPR—New EU Law on Personal Data
By Wojciech Wandzel, Grzegorz Pobożniak, and Paula M. Bagger – April 27, 2018
What are the implications for U.S. corporations?

Key Strategies to Protect Your Client from a Former Employee
By Mark A. Romance – March 7, 2018
Protecting clients against former employees who take customers and use company information requires quick action to investigate the underlying facts, identify the employer’s legal rights, and create a strategy to pursue claims in court efficiently.

A Growing March Toward Equality in the Workplace or an Outlier?
By Ali Razzaghi and Brice Smallwood – March 7, 2018
The Seventh Circuit becomes the highest court to hold that Title VII covers sexual orientation.

Is a “Long-Term Leave of Absence” a Reasonable Accommodation?
By Carolyn A. Davis and Devin M. Spencer – March 7, 2018
Growing disagreement between the EEOC and the courts creates uncertainty.

Defend Trade Secrets Act of 2016: Important Take-Aways to Combat Those Who Take Away
By Christopher S. Koller and Kathleen M. Laubenstein – March 7, 2018
A new federal law gives companies another tool to protect their trade secrets, along with a clear path to federal court to bring their claims.

Law Firms and Companies Must Combat Growing Cybersecurity Threats
By Robert E. Anderson – January 30, 2018
Basic protective steps to take now.

2017

If You Build It, They May Sue: Floor Plans, Elevations, and Copyright Infringement
By Gary L. Beaver – December 18, 2017
Some owners of copyrights on run-of-the-mill house plans are aggressively pursuing those who build similar homes.

Escobar and the False Claims Act: Clearer after a Year of Interpretation
By Joshua S. Bolian – December 18, 2017
In the year since the U.S. Supreme Court’s Escobar decision, lower courts have provided guidance on open questions regarding falsity and materiality.

Payment Card Data Breach Class Actions: Who Foots the Bill?
By Shireen Meer, Claire MacKoul, and Robin Cantor – December 18, 2017
Examine the economic consequences of payment card data breaches for financial institutions in class action lawsuits.

New Horizons and High Stakes: Money Laundering Through Skill-Based Gaming
By Reid J. Schar, Wade A. Thomson, and Emily K. McWilliams – December 18, 2017
Electronic skill-based games are being beta tested in certain casinos, and present new challenges for casinos’ anti-money laundering programs.

Vito Corleone's Guide to Negotiation
By Hon. Michael R. Panter (Ret.) – August 30, 2017
A Hollywood classic offers lessons on how to prioritize, compromise, and realize your goals.

Confirming Arbitration Awards Made Abroad
By Stuart M. Riback – August 30, 2017
The Second Circuit clears up the confusion under the New York Convention.

The Scope of Dodd-Frank’s Whistleblower Protections Is Hotly Disputed
By Rafael E. Rosario Jr. – August 30, 2017
Pending Supreme Court review, a Ninth Circuit ruling further complicates the terrain.

Managing the Battlefield, Part 1: Appreciating the Value of Consolidated Arbitration
By Peter C. Sheridan and Alex Linhardt – August 30, 2017
The first article in a two-part series discussing the benefits of consolidation and joinder in multiparty proceedings.

Managing the Battlefield, Part 2: The Uniform Construction Arbitration Agreement
By Peter C. Sheridan and Alex Linhardt – August 30, 2017
The second article in a two-part series offers suggestions for drafting consolidation and joinder provisions.

The Perfect Arbitration Clause?
By Wojciech Wandzel and Maciej Truszkiewicz – August 30, 2017
Key considerations when drafting an arbitration clause for your client.

Proposed Fairness in Class Action Litigation Act of 2017
By G. Gabriel Zorogastua and Parker J. Smith – May 1, 2017
Potential expansion of protections for class action defendants.

Understanding Split-Recovery Punitive Damages Statutes
By Michael K. Robertson – May 1, 2017
Familiarity with the nuances can help you manage client expectations and reach a meaningful settlement.

Obtaining Actual Damages in Addition to Liquidated Damages
By Michael Hidalgo and Daniel Blau – May 1, 2017
Are liquidated damages an exclusive remedy? Drafters beware.

On Balance: The “Amount in Controversy” Factor in a Proportionality Analysis
By Julia M. Nahigian – May 1, 2017
How quantifying damages may offset burden or expense of discovery sought.

Intellectual Property Damages: Using the Book of Wisdom
By Jennifer Vanderhart – May 1, 2017
When post-infringement information can and cannot be used to calculate royalty damages.

Unsteady Bedfellows: Joint Defense Agreements after the Yates Memo
By Michael A. Brockland – February 14, 2017
Practice pointers for entering into joint defense agreements with white-collar defendants.

Dawn of a New Age: Trade-Based Money Laundering Enforcement
By William Ezzell and Scott A. Stringer – February 14, 2017
Currency is rarely used nowadays—rather, a significant portion now involves the international trade of goods and services.

Federal Rule of Criminal Procedure 17(c) in Light of United States v. Rand
By Jeanne M. Cors – February 14, 2017
Exploring the current conflict among federal courts regarding the standard applicable to subpoenas issued to third parties.

Eleventh Circuit Nudges Operation Choke Point Toward a More Proportional Remedy
By Edward A. Marshall – February 14, 2017
Payment card processors and ISOs have been subjected to increasing scrutiny when the merchants those processors and ISOs serve engage in consumer fraud.

Common Revenue Recognition Accounting Issues in White-Collar Litigation
By Nicholas Czapor – February 14, 2017
Tips for SEC’s issue du jour: How are companies violating U.S. GAAP to paint a rosier picture of their bottom line?

2016

Why Diversity on the Federal Bench Matters
By Andrea C. Kramer – November 29, 2016
Substantive, symbolic, and legitimacy reasons for a racially and gender-varied judiciary.

To Succeed at Business Development and Client Relationships, Female and Minority Attorneys Face Challenges and Opportunities
By Concepcion Montoya and Rick McNeil – November 29, 2016
Good starting points that also apply to male and majority race populations.

Mentoring and Sponsorship: Retaining Diverse Attorneys in a Commercial Litigation Practice
By Wesley R. Payne – November 29, 2016
In many respects, mentoring for the retention of diverse attorneys is the right thing to do.

Implicit Bias and Clients: An Overview
By Bide Akande – November 29, 2016
Research suggests that our implicit biases can influence how effectively we represent our clients.

International Forensic Investigations—Practice Management and Tips
By Alexander Walther, Robert Gray, Melissa Ho, and Emma Cecil – September 19, 2016
The final piece in a three-part series from the ABA’s White Collar Crime Subcommittee.

Reexamination of Direct-Derivative Distinction Under Tooley for Common Law 'Holder Claims'
By John T. Bender – June 28, 2016
It can be a major barrier to shareholders seeking to recoup individual losses from falling stock prices caused by corporate mismanagement.

The Death of Merger Litigation?
By Donald H. Tucker Jr. and Clifton L. Brinson – August 8, 2016
Recent Delaware decisions and novel corporate bylaws may rein in—but won't eliminate—merger lawsuits.

Delaware Supreme Court Sets a High Bar for Financial Advisor Aiding and Abetting Liability
By John A. Sensing and Andrew H. Sauder – August 8, 2016
Significant misconduct is likely required to find scienter by a financial advisor.

Fund Performance Indicators the Securities and Exchange Commission May Be Watching
By Aaron Dolgoff and Tiago Duarte-Silva – August 8, 2016
What signals is the SEC monitoring for accounting or investment performance fraud?

Cooperation Credit in Enforcement Proceedings: The Importance of Independence
By Jonathan C. Schwartz and David G. Buffa – August 8, 2016
Use of an outside investigator may curry greater credit from regulators.

Federal Securities Regulators' Enforcement Focus Turns to "Gatekeepers"
By Eliot T. Burriss and Nicole Figueroa – August 8, 2016
Tips on how audit professionals can mitigate the risk of enforcement proceedings.

A Brief Introduction to the Bank Examiner Privilege
By Mark M. Haddad – April 28, 2016
What counsel handling banking litigation need to know about this statutory privilege.

Defending Banks from Civil Money Penalties
By Kevin J. Handly – April 28, 2016
Be on the watch for early warning signs and proactive in addressing and disarming bank examiners' concerns.

International Forensic Investigations—Cultural Considerations
By Alexander Walther, Robert Gray, Melissa Ho, and Emma Cecil – February 29, 2016
Part Two of a quick reference guide to differences when conducting investigations outside the United States.

International Forensic Investigations—Local Laws and Regulations
By Alexander Walther, Robert Gray, Melissa Ho, and Emma Cecil – February 29, 2016
A quick reference guide to differences when conducting investigations outside the United States.

The New Biosimilars Frontier
By Sapna W. Palla and Monica A. Kolinsky – January 26, 2016
Drug companies are testing the limits of the "patent dance" under the Biologics Price Competition and Innovation Act.

Delaware's Two Courts for Trade Secrets and Restrictive Covenants
By C. Malcolm Cochran IV, Steven J. Fineman, Selena E. Molina, and Nicole K. Pedi – January 26, 2016
Known nationally for their corporate expertise, Delaware's business courts are also well suited for trade secret and restrictive covenant cases.

The U.S.–EU Privacy Safe Harbor Is Invalid
By Thomas Carey – January 26, 2016
What can companies do now to avoid its enforcement, what regulatory framework will replace it, and how can clients prepare?

Likelihood of Preclusion?
By John Blattner – January 26, 2016
How a recent Supreme Court decision may impact trademark litigation.

Three Key Distinctions Between the Uniform Trade Secrets Act and the Common Law
By Gregory S. Bombard – January 26, 2016
Trade secrets law in MA and NY, the two remaining common-law jurisdictions, continues to differ significantly from the UTSA.

AICPA Rules of Professional Conduct
By Dennis S. Medica – January 4, 2016
Understanding your accounting expert's ethical standards can avoid risk for your client.

2015

E-Discovery and the Internet of Things
By Maureen O'Neill – November 3, 2015
The pervasive nature of online connectivity dramatically changes our lives, but it also brings material changes to electronic data in litigation.

The 2015 Amendment to Federal Rule of Civil Procedure 37(e)
By Neil E. Aresty – November 3, 2015
So, you forgot to preserve all that ESI--now what?

Maintaining Control of a Company's Social Media Accounts
By Joseph J. Blyskal and Delaney M. Busch – November 3, 2015
Appropriate policies are necessary to avoid the inadvertent destruction of ESI or waiver of trade secret protection.

Understanding the Payment Card Fraud Liability Shift
By Edward A. Marshall and Maayan Lattin – November 3, 2015
New credit card processing technology has led to a change in liability rules for counterfeit transactions--one which turns on how quickly businesses adapt.

Inadvertent Disclosure in E-Discovery: How to Avoid Waiver of Privilege
By Lisa M. Gonzalo – November 3, 2015
Basic preventative measures can be used to heighten protection and avoid costly disputes in large-volume ESI cases.

Pitfalls of Practicing in the Electronic Age
By Diana C. Manning, Benjamin J. DiLorenzo, and Jenny R. Caruso – November 3, 2015
Keep ethical considerations at the forefront when using modern technology.

A Challenge to Corporate Counsel to Regain Control of the Discovery Process
By Zachary G. Newman – November 3, 2015
Stop fueling discovery disputes and focus on managing discovery and strategically pursuing fee-shifting.

Protecting Draft Expert Reports from Discovery
By John M. Barkett – July 20, 2015
Expert notes and communications not independently protected as attorney work product might not be shielded.

Expert Scrutiny at the Class Certification Stage
By Melissa Colón-Bosolet and Kate Englander – July 20, 2015
Ensure your experts can withstand a Daubert challenge.

Expert Disclosure Lessons Learned in a Recent Trial
By Rudy R. Perrino – July 20, 2015
Adherence to the federal rules and a careful review of the discovery record can help prevent exclusion of expert testimony.

Becoming an Expert at Experts: A Guide for Young Attorneys
By Travis J. McDermott – July 20, 2015
Learning how to retain, communicate with, and prepare witnesses is a critical skillset that can help in developing experienced litigators.

Plowing in the Daubert Fields: Recent Applications of the Standards
By William Frank Carroll – July 20, 2015
A review reveals a checklist for attorneys seeking to strengthen or weaken an expert opinion.

United States ex rel. Garcia v. Novartis AG
By Shain Khoshbin – June 23, 2015
A good primer on adequate allegations of qui tam fraud, the "first-to-file" rule, and the public disclosure bar.

The Art of Writing a Persuasive Fact Section
By Emily Ambrose – May 20, 2015
A well-written work can sway a judge's mind in favor of your legal argument before the argument is even made.

When Former Employees Are Fact Witnesses: A Guide to the Ethical Landscape
By Andrew Graeve – May 20, 2015
Be sure to research the state's ethics rules, opinions, and case law before doling out compensation.

A Young Lawyer's Perspective on Upcoming Changes to the Federal Rules of Civil Procedure
By Amber Davis-Tanner – May 20, 2015
Upcoming changes narrow the scope of discovery and allow sanctions for certain failures to preserve electronically stored information.

A Tale of Two Cities: Honolulu and San Francisco
By Nick Kacprowski – May 20, 2015
Why are "Big Law" lawyers so young compared with top firms in smaller markets?

Be Confident, Not Arrogant: How Not to Cross That Thin Dividing Line
By Angela A. Turiano – May 20, 2015
Understanding how to believe in yourself without appearing condescending and self-important is critical to your development as a young lawyer.

Truth in Lending Act Loan Rescission Claims
By Maria Kreiter, Nina Beck, Maggie Cook, and John Kirtley – May 18, 2015
Borrowers may rescind under the Truth in Lending Act without filing a lawsuit by providing notice to the lender.

Ethics Issues in Pro Hac Vice Admissions
By David L. Finger – February 23, 2015
Both pro hac vice counsel and local counsel need to be aware of potential ethical pitfalls.

Ethical Considerations in Dealing with Expert Witnesses
By George Carr – February 23, 2015
Selecting and working with expert witnesses, both friendly and adverse, involves a variety of ethical issues.

Ethical Issues Implicated by Lawyers' Use of Third-Party Cloud Services
By Amelia Toy Rudolph – February 23, 2015
Proceed with caution when entering the cloud.

Ethical Concerns and Best Practices in Cross-Border Internal Investigations
By Katrina A. Hausfeld – February 23, 2015
When conducting a multijurisdictional investigation, don't get caught in the privilege trap.

Tips for Young Lawyers: Ethics and Social Media
By Angela M. Scafuri – February 23, 2015
Be mindful of these ethical and professional responsibility considerations when utilizing social media in legal practice.

2014

The Scope of the False Claims Act's First-to-File Bar
By Bryce L. Friedman and Yafit Cohn – November 21, 2014
The Supreme Court will determine whether the bar functions as a one-case-at-a-time rule.

Protecting Your Business Against Rogue Employees
By Aaron Krauss – November 21, 2014
How can you limit the damages of a former worker?

Where Do Whistleblowers Stand with FCA "Worthless Services" Cases?
By Maria C. Rivera-Lupu – November 21, 2014
Substandard healthcare provider services do not equate to worthless services.

Independent Contractor Whistleblowers
By Boris Peyzner – November 21, 2014
Employers face a new area of potential liability with the increase in laws protecting against retaliation.

Separate Entity Rule for Foreign Banks Lives on in New York
By John P. McCahey – November 5, 2014
Service of restraining notice ineffective to freeze assets held in bank's foreign branches.

The Ascertainability Requirement for Class Actions Now Has Teeth
By Joseph C. Merschman and David R. Roth – October 31, 2014
A trio of recent decisions could reshape the consumer class action landscape.

Operation Choke Point Casts Cloud over Payment Systems Industry
By Edward A. Marshall – August 7, 2014
FTC enforcement actions against payment card processors due to deceptive acts of their merchants are on the rise. Following industry guidelines on underwriting and monitoring of merchant risk could help mitigate exposure.

Standing to Bring Data Breach Class Actions Post-Clapper
By Heidi J. Milicic – August 7, 2014
The risk of future harm is likely too speculative to meet Article III standing in post-Clapper data breach cases. Where will plaintiffs go from here?

Developing Cybersecurity Plans to Protect Intellectual Assets
By Emily Duke – August 7, 2014
Businesses can make themselves "tough targets" by developing cybersecurity plans to prevent hackers and rogue insiders from stealing company secrets and consumers' protected personally identifying information.

Payment Processor's "In-House" Data Security Compliance Program Under Attack
By Edward A. Marshall – August 7, 2014
No good deed goes unpunished: payment processors could face antitrust and unfair competition liability risks when offering PCI compliance services to their merchants.

Tips for Young Lawyers: Privacy Issues in Discovery of Social Media
By Angela M. Scafuri – August 7, 2014
When pursuing discovery of social media, lawyers should keep in mind the evidence and ethics rules.

Federal Cases Addressing Arbitrability Continue to Change the Landscape
By Marc J. Zucker – May 30, 2014
A review of these decisions and their progeny for any commercial litigator braving this complex area.

Third Circuit Rejects Delaware Court of Chancery's Confidential Arbitration Program
By Chad M. Shandler – May 30, 2014
Court affirms earlier ruling finding confidentiality provisions unconstitutional.

Branding the Post-Closing Dispute
By Jennifer L. Sullivan – May 30, 2014
Some of the issues to consider before summoning your inner Draper a la Mad Men and casting a claim as one for adjustment or breach.

"Entry of Judgment" Language in Arbitration Clauses
By Sarah Rubin and Judy Barrasso – May 30, 2014
What language is required for confirmation of judgment?

The Standing Neutral—Low-Cost Insurance to Prevent Disputes on Construction Projects
By Margaret "Peggy" Landry and James P. Groton – May 30, 2014
Employing a neutral expert to act as a dispute resolver has proven successful in keeping construction projects on schedule and on budget.

Tips for Young Lawyers at Mediation
By Celeste R. Coco-Ewing and Maria-Vittoria "Giugi" Carminati – May 30, 2014
Use this checklist to prepare.

Shareholder Oppression: Texas Supreme Court to Weigh In on National Debate
By Kelli Hinson and Lyndon Bittle – February 5, 2014
Resulting decisions could have impact far beyond the state.

The Tyranny of the Minority
By Daniel D. Quick and Erin M. Pawlowski – February 5, 2014
The case for reining in minority shareholder oppression litigation.

The Unclear Application of Bullock
By Devin Burke Hahn – February 5, 2014
What constitutes a defalcation in a closely held business context?

Minority Shareholder Threats to Subchapter S Elections
By Paula M. Bagger – February 5, 2014
Reviewing recent judicial responses.

Supreme Court Strengthens Forum-Selection Clauses
By Bradford S. Babbitt – February 5, 2014
These clauses should be enforced in all but "the most exceptional cases."

2013

Detroit's Pitch for a Pension Pinch
By Devin Burke Hahn – November 21, 2013
The City of Champions faces three key challenges in its bankruptcy case.

Deepening Insolvency as a Method for Calculation of Damages
By Viraj Deshmukh and Radha Gordon – November 21, 2013
The possibility of recovering damages from deep pockets makes treading through these murky waters worthwhile.

A Trade Creditor's Guide to Defending "Wrong Payor" Fraudulent Transfer Cases
By Lucian B. Murley and Neil Steinkamp – November 21, 2013
We offer guidance in defense strategy and preventing these actions in the first place.

"Make-Whole" Claims Triggered by Automatic Acceleration
By Brendan M. Gage – November 21, 2013
Courts are split over what to do when loan agreements fail to address this issue.

Banking on Liability: Claims Against Ponzi Scheme Professionals
By Gene R. Kohut, Scott A. Wolfson, and Adam L. Kochenderfer – November 21, 2013
The law neither persecutes nor pardons every professional who worked with the Ponzi debtor.

Second Circuit Vacates Class Certification in Google Case
By Joseph C. Merschman and John Doroghazi – November 20, 2013
In The Authors Guild, Inc., et al. v. Google Inc., the Second Circuit tells the district court to rule on Google's fair use defense first.

Three Years Later: Examining the Rule 26 Amendments
By Maria-Vittoria G. Carminati – September 16, 2013
There's an elephant in that rising fog! A look at the lingering questions.

Using Experts in an Expert Way
By Kelli Hinson – September 16, 2013
Tips on effective use of an expert witness to best position your case pretrial.

Inviting the Cook to the Grocery Store: An Expert's Role in the Discovery Process
By Benjamin I.S. Bershad, Jason E. Bodmer, and Jacob M. Reed – September 16, 2013
Leverage a financial expert early and often to protect your client's best interests.

Avoiding Application of the Missing-Witness Rule
By Michelle M. Rutherford – September 16, 2013
Think your expert may end up getting shelved? It's important to understand the risks.

Expert Testimony and Proximate Cause in Legal Malpractice Cases
By Michael A. Brockland – September 16, 2013
Counsel should carefully analyze the issues in the underlying litigation.

An Introduction to Litigation Trusts
By Paige Holden Montgomery and Casey A. Burton – May 30, 2013
A look at these "relatively new creatures" and the emerging issues in litigation they've sparked.

The Enforceability of Fiduciary Duty Waivers
By Zachary G. Newman and Alison M.C. Schrag – May 30, 2013
A careful review of the underlying agreements is critical before taking any court action.

Using Forensic Accounting in Trust Disputes
By Michael N. Kahaian and Thomas M. Schehr – May 30, 2013
In an era of Ponzi schemes and other financial scandals, this new breed of accountant plays a key role in fraud investigations.

Breaking Down the Business-Judgment Rule
By Lindsay C. Llewellyn – May 30, 2013
A defense to shareholder derivative suits against corporate directors for breach of fiduciary duty.

Trustee Bank's Breach of Investment Management Fiduciary Duties
By O.A. Ishmael – May 30, 2013
Advice for avoiding pitfalls while adhering to a higher standard of care.

"Lawfully Made under This Title"
By Christopher A. Mitchell and Matthew J. Snider – May 28, 2013
The new, global reach of the first-sale doctrine.

Written Litigation Holds and Per Se Negligence: An Evolving Law
By Paul M. Kessimian and Travis J. McDermott – April 29, 2013
Since the Pension Committee decision, the rules governing document preservation and spoliation have been in flux.

The Battle over Confidential Arbitration
By Jason J. Rawnsley – February 27, 2013
The controversy about the Delaware Court of Chancery's business arbitration program moves to the Third Circuit.

Predictive Coding Goes Mainstream
By Paula M. Bagger – February 27, 2013
Last year saw a flurry of feedback from the bench on computer-assisted document review.

Limiting Reviewability of Transfer Venues in Texas
By Maria-Vittoria G. Carminati and Ammad Waheed – February 27, 2013
Courts have deemed transfer orders untouchable at the slightest intimation of a justice and convenience ground.

Banks' Duty to Speak
By John P. McCahey and Alison M.C. Schrag – February 27, 2013
What "special circumstances" require disclosure of customers' financial information?

A Simpler Solution to Federal Rule 30(b)(6) Depositions
By Joseph W. Hovermill and Jonathan A. Singer – February 27, 2013
More reasonable methods of discovery may be available.

2012

Protecting the Secrets of In-House Counsel
By Kelli Hinson – November 12, 2012
Knowing the rules affecting the privileges of in-house counsel is essential during litigation. Knowing them before litigation begins is even more valuable.

Young Lawyers: Avoid Falling into Ethical Holes
By Kelli Hinson – November 12, 2012
Rules of ethics provide young lawyers with a comprehensive structure to practicing law and can guide them in a firm, in developing their own practice, and in building relationships with clients.

Settlement Agreements, Restrictions on Right to Practice Law
By Terri L. Mascherin and Michael L. Cebula – November 12, 2012
Any settlement provision that potentially affects an attorney's ability to practice or represent clients must be carefully drafted to comply with Rule 5.6(b).

'Justice as Fairness' as a Guiding Principle in Arbitration
By Robert L.C. Houston – November 12, 2012
Arbitrators need a framework for decision-making—namely, John Rawls’s“Justice as Fairness” theory of the social contract as applied to international commercial arbitration.

Litigation 101: Ethics Related to the Use of Contract Attorneys
By Gregory M. Boyle and J.H. Jennifer Lee – November 12, 2012
It is critical for attorneys to understand the ethical considerations that apply to work performed by their contract brethren.

Chancery Arbitrations after Year One: Annotated New Form
By Greg Varallo, Rich Rollo, and John Mark Zeberkiewicz – August 16, 2012
After a year of hands-on experience with binding private arbitration in the Court of Chancery, a second-generation dispute resolution form has evolved.

Using Employees Retained after an Acquisition in Litigation
By Mark R. Jacobs – August 16, 2012
Retained employees might be the most valuable source of information in litigation against the seller of a business, but their involvement presents challenges.

Private Equity Valuations: Standards and Recent Developments
By Brett D. Jaffe and Oliver S. Haker – August 16, 2012
With the SEC's focus on and private civil litigations regarding private equity valuation, it is worth considering the standards and the recent developments in the law.

Fiduciary Duties in the Alternative Entity Context
By Srinivas M. Raju and Jillian G. Remming – August 16, 2012
Although the same fiduciary duties apply to Delaware LPs and LLCs as apply to Delaware corporations, there are distinctions that can lead to different results.

Forum Alternatives for Purchase Price Adjustment Disputes
By Jeffrey S. Torosian and Kimberly M. DeShano – August 16, 2012
Courts tend to order alternative dispute resolution where the parties agreed to it, but they look to the intent of the agreement to assess the scope of that process.

Are Clawback Agreements Being Used to Their Full Extent?
By Jennifer F. Beltrami – April 30, 2012
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 – April 30, 2012
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 – April 30, 2012
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 – April 30, 2012
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 – April 30, 2012
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 – April 30, 2012
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 – February 7, 2012
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 – January 31, 2012
Steuben Foods shows that Pension Committee's rule of per se gross negligence and associated inference of spoliation will not necessarily be followed.

2011

Shining a Spotlight on Adequacy of Class Counsel
By Jeremy Gilman – December 28, 2011
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 – December 22, 2011
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 – December 22, 2011
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 – December 22, 2011
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 – December 22, 2011
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 – December 22, 2011
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 – November 3, 2011
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 – November 3, 2011
Some web hosts are being held liable for assisting businesses in the sale of counterfeit goods.

Wikipedia Dispute Resolution
By Thomas C. Goodhue – November 3, 2011
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 – November 3, 2011
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 – August 29, 2011
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 – August 26, 2011
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 – April 28, 2011
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 – February 25, 2011
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 – February 14, 2011
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 – January 25, 2011
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.