Corporate Counsel

Practice Points

What you need to know in a quick-to-read format. Find all of the Corporate Counsel Committee’s practice points in this archive.

2020

Seven Tips for IP Portfolio Management in Turbulent Times
By Jennifer L. Gregor – August 2, 2020
The trick is to be pragmatic, strategic, and efficient in managing the portfolio.

Do You Need to WARN Your Employees?
By Peter L. Albrecht – August 2, 2020
The WARN Act did not anticipate how it should be applied in the face of a pandemic. 

CCPA Enforcement Begins amid Pandemic
By Zachary R. Willenbrink – August 2, 2020
Businesses must not wait to ensure compliance with the CCPA’s provisions.

Arbitrating in the Age of Zoom
By Henry R. Chalmers – August 2, 2020
Now is the time to revise contracts to take advantage of the shift to remote arbitrations.

California Consumer Privacy Act: A Practice Overview
By Sarah A. Sargent and Justin P. Webb – April 12, 2020
The CCPA will likely give rise to a new wave of privacy litigation in California.

Force Multiplication for Contracts
By Taylor Brown – April 12, 2020
Lawyers need to be force multipliers and train contract managers and the like to deal with some contracts issues.

The "Ordinary Business Exception" for Shareholder Proposals in Corporate Proxies
By Amanda Schwarzenbart – April 12, 2020
John Crowley, partner in the Capital Markets Group at Davis Polk & Wardwell LLP, discusses the practical effects of SLB 14K for public companies.

2019

Supreme Court to Review the SEC’s Right to Seek Disgorgement
By H. Gregory Baker and Alexandra S. Droz – November 19, 2019
The case could significantly and permanently diminish the SEC’s enforcement powers.

Overstuffing the Record for Appeal
By Stephanie E. O’Byrne – November 19, 2019
Don’t task the court with distilling a mountain of information.

Rethinking Personal Jurisdiction in New York
By John P. Amato – February 4, 2019
The Appellate Division's Second Department goes against a century of case law.

2018

Spoliation of Evidence: The Surest Road to Sanctions
By Matthew C. Plant – December 21, 2018
An order recently issued by the U.S. District Court for the Southern District of Florida in FTC v. Dluca illustrates how sanctions for failure to preserve ESI can be imposed.

Advice of Counsel: Impact on Attorney-Client Privilege and Waiver
By Brian Spahn – December 21, 2018
President Trump’s tweet holds lessons about invoking an advice-of-counsel defense.

2017

Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

One Lesson from Wannacry: Look to Insurance to Minimize the Risk of Ransomware Attacks
By Joseph Saka – November 13, 2017
Depending on the nature of the attack, there are several types of insurance policies that may respond to ransomware losses.

Diligent Due Diligence in Acquisitions
By Taylor Brown – November 11, 2017
The due-diligence process undertaken by the buyer may be the most critical pre-closing process to the long-term health of the deal.

Colorado Supreme Court Adopts McHaffie Rule, Limiting Direct Claims Against Employers
By Greg S. Hearing II – October 30, 2017
The adoption of the McHaffie rule creates a potentially new line of defense in cases where an employer is sued for an employee’s alleged negligence.

Coming Soon to A City Near You: The Mandatory Initial Discovery Project
By Ivy Brewer – September 20, 2017
Although this is just a pilot, awareness of this program is essential for potential plaintiffs and defendants.

Providing Clear Advice
By Taylor Brown – July 27, 2017
Why do in-house counsel hire outside counsel?

Is Insurance Part of Your Plan for Responding to a Data Breach? Hint: It Should Be
By Joseph Saka – May 8, 2017
Companies frequently fail to make insurance a priority in responding to a cyber attack.

Negotiating Indemnity
By Taylor Brown – May 5, 2017
For many reasons, one of the most contentious terms in any contract negotiation tends to be an indemnity clause.

Developments in the False Claims Act
By Taylor Brown – January 31, 2017
The only reliable lesson to be pulled from these early post-Escobar cases is that the concept of materiality is still very much contested.

2016

Gold-Plated Pleadings
By Taylor Brown – December 29, 2016
Tips for in-house counsel to help control costs.

Sound Matter-Management Practices
By Taylor Brown – October 31, 2016
All but the very smallest of law firms can benefit from a strong matter-management system.

7th Circuit Exterminates “Rat’s Nest” of Employment-Discrimination Tests
By Rebeca M. López – October 20, 2016
At least in the Seventh Circuit, no reference to varying tests or “mosaics” will be made.

The False Claims Act and Escobar
By Taylor Brown – September 27, 2016
The recent U.S. Supreme Court decision has significant implications for all federal-government contractors and the outside counsel who represent them.

EEOC Will Not Tolerate Transgender Employee Discrimination
By Katheryn A. Mills – August 30, 2016
Employers should know their responsibilities with respect to transgender employees' rights.

Colorado Joins List of States Applying Heightened Pleading Standard
By Greg S. Hearing – July 29, 2016
A recent decision provides corporate practitioners and their local counsel with another means to address suits against the companies they represent.

Greater Discretion for Treble Damages in Infringement Cases
By Laura Raden and Gavin Tisdale – July 21, 2016
The impact of Halo on the patent community could be significant.

Spokeo, Inc. v. Robins and Statute-Based Class Actions
By Frank Nolan – June 24, 2016
The opinion should prove to be a useful argument for counsel facing many types of consumer claims, including in the data-privacy realm, and particularly in the class-action context.

DTSA Most Recent Reminder of Value Government Places on Whistleblowers
By Brian C. Spahn – April 29, 2016
“The Biggest IP Development in Years.”

Has Uber Misclassified Its Drivers as Independent Contractors?
By Nina G. Beck – April 29, 2016
Uber’s $100 million fare to settle misclassification lawsuits with drivers serves as a reminder of what is at stake when classifying workers.

Important Considerations When Preserving and Collecting ESI
By Brian C. Spahn and Bruce A. Knapp – April 1, 2016
A few helpful tips.

Act Early to Avoid Sanctions under Rule 37(e)
By Greg S. Hearing – March 31, 2016
An ounce of prevention will build a strong record down the road.

Satisfying the Duty to Investigate Applicable Insurance Policies
By Greg S. Hearing – March 31, 2016
What constitutes adequate and complete investigation?

Saving Money with FRCP 26's New Proportionality Standard
By Michael Paretti – February 29, 2016
You may need a better data-retention policy.

Dialing In: TCPA Hot Issues for 2016
By Lewis S. Wiener, Wilson G. Barmeyer, Kristine M. Ellison – February 29, 2016
Unsettled law continues to place a compliance burden on companies that communicate with consumers by phone or text.

Five Key Steps to Take If Your Company Experiences a Cybersecurity Attack
By Brian Rubin and Amy Xu – February 29, 2016
Limit exposure to litigation and regulatory actions.

Colorado's "Amazon Tax" Upheld
By Greg S. Hearing – February 25, 2016
The ruling (subject to further appeal) marks the beginning of additional state-by-state compliance obligations that will affect annual corporate compliance.

DOL Releases New Standards for Joint Employment
By Katherine Dumeer and Matt Gatewood – January 26, 2016
All companies should examine relationships with workers, even those the company does not directly pay, to determine any potential risks if a joint-employment finding is made.

Offer of Complete Relief to Named Plaintiff Does Not Moot Class Action
By Kristine Ellison, Lewis Wiener, and Wilson Barmeyer – January 26, 2016
The Supreme Court characterized an unaccepted offer as a “legal nullity, with no operative effect.”

2015

The UIDDA and How It Affects the Out-Of-State Subpoena Process for State Cases
By Adam R. Prinsen – December 29, 2015
The act provides a standardized means for litigants to take depositions and obtain discovery from individuals and entities located out of state.

Lay Opinions vs. Expert Testimony under the Federal Rules of Evidence
By Kerry L. Gabrielson – December 22, 2015
Understanding how your particular court interprets the scope and requirements for lay opinions and expert-witness testimony is essential to develop your case strategy.

How the December 1 FRCP Changes Affect Document Production and Failure to Preserve
By Megan Rose – November 30, 2015
A road map for navigating the new amendments that every litigator should consider moving forward.

Upcoming Amendments to FRCP 26: What Every Litigator Needs to Know
By Michael Mather – November 30, 2015
Failure to heed the new rule may lead to costly discovery disputes.

How the December 1 FRCP Amendments Affect E-Discovery Policies
By Greg Hearing – November 25, 2015
The revised rules place an increased emphasis on the early identification of potential ESI.

Four Things Every Practitioner Needs to Know About New FRCP 34
By David Konkel – November 24, 2015
The amendments to Federal Rule of Civil Procedure 34 go into effect on December 1, 2015.

Nearly 80 Years Later, "Happy Birthday" Lyrics Now Public Domain
By Michael Paretti – October 30, 2015
This case serves as a reminder of the importance of a valid copyright over intellectual property.

Top Ten Considerations to Achieve Effective Corporate Internal Investigation
By Brian Spahn and Sean Bosack – October 30, 2015
A guide for counsel once the whistle blows.

NCAA's Compensation Rules Not Exempt from Antitrust Scrutiny
By Casey G. Perkins – September 30, 2015
O'Bannon wins again, but players still can't receive compensation for use of their likeness.

EPA's Clean Power Plan: Challenges to Reducing Carbon Emissions
By Jessica Moyeda – September 30, 2015
There is significant uncertainty surrounding implementation of the CPP.

Victims of Data Breach Have Standing to Sue, Seventh Circuit Reaffirms
By Michael Paretti – September 24, 2015
The Seventh Circuit’s holding may have vast impacts on data-breach law for corporations, and opens the door for more data-breach class-action litigation.

Companies Must Consider Yates Memo When Responding to Alleged Misconduct
By Eric J. Wilson and Sean O'D. Bosack – September 23, 2015
The Yates Memo gives the determination of individual culpability renewed emphasis.

Scrutiny of Class-Counsel Fee Awards Continues
By Greg S. Hearing – August 31, 2015
Two recent cases are the latest in a long line of recent precedent addressing the appropriate fee to be paid to class counsel.

KBR Narrowly Escapes (Again) Ruling That It Waived Privilege
By Brian C. Spahn – August 21, 2015
The D.C. Circuit’s KBR decision demonstrates that counsel must be careful how to rely on the results of internal investigations during litigation.

Ninth Circuit Addresses Preemption in Recent Labeling Cases
By Greg Boulos – August 17, 2015
The court recently addressed preemption in the context of food and cosmetic labeling.

Violent Conduct Excluded Employee from Being "Qualified Individual" under ADA
By Aleem A. Dhalla – August 7, 2015
The Ninth Circuit held that an employer must, in some instances, do what is necessary to protect its workforce against potentially violent employees.

The Importance of Pre-Litigation Preservation of Evidence
By Jennifer Braster – July 31, 2015
Preserve evidence or be subject to sanctions.

BOA Sued for Alleged Misrepresentations Regarding Residential Loans
By Kendal L. Weisenmiller – July 27, 2015
A glaring reminder that the mortgage crisis continues to impact lenders, insurers, and potentially the residential lending market as a whole.

Feds Finalize Birth-Control-Mandate Opt-Out
By Alexi Layton – July 27, 2015
The HHS issued an order spelling out detailed policies for religious nonprofits and closely held for-profit corporations to avoid covering contraceptives for employees.

A Good Reminder to Always Double-Check Subpoenas
By Jennifer Braster – July 20, 2015
It is very easy to make a simple mistake that may cause unnecessary delay in a case.

SCOTUS Upholds Disparate-Impact Theory; Big Blow to Developers and Lenders
By Robin E. Perkins – June 29, 2015
A recent ruling allows plaintiffs to assert racial-discrimination claims against developers and lenders, without establishing any element of intent.

"Crude Managerial Style" Insufficient to Establish Discrimination
By Robin E. Perkins – June 29, 2015
The U.S. Supreme Court ruled that a manager’s crude comments and “contemptible” behavior toward an older employee were insufficient to constitute age or sex discrimination.

SCOTUS Issues Ruling on Pregnancy-Discrimination Case
By Aleem A. Dhalla – June 17, 2015
The Court gives the Pregnancy Discrimination Act more bite than before.

Yahoo Faces Nationwide Class Action for Email Mining
By Alexi Layton – June 17, 2015
Entities with practices similar to those at issue here should be aware of the potential litigation and be prepared to defend similar practices.

Data Security Act Would Create National Standard
By Sherry Ly – May 27, 2015
Currently, the inconsistent and conflicting standards pose difficulties to companies operating in multiple states.

Congress Sharpens Federal False Claims Act's Teeth
By Carrie Parker – May 27, 2015
Make sure that the wrongdoing of companies you do business with does not become your legal liability.

SCOTUS Lets Stand Decision in Favor of CA Truck Drivers
By Robin E. Perkins – May 15, 2015
The Court refused to consider whether preemption applies to California worker-protection laws.

Are You a Good Supervisor? Tips to Improve Your Supervising Skills
By Robin E. Perkins – May 11, 2015
A summary of discussion points and advice from the ABA’s Career Center and Center for Professional Development.

If Receiver's Sales Aren't Foreclosures, Then What Are They?
By Ben Reeves and Bob Olson – March 31, 2015
The Supreme Court of Nevada recently addressed this question.

Can Hotels Legally Block Wi-Fi Hot Spots?
By Patrick X. Fowler – March 25, 2015
The FCC says no, and fines a hotel $600,000 for doing it.

Ever-Expanding Attacks on Non-Traditional "Employers"
By Erin Leach – March 9, 2015
Since when am I the boss?

SCOTUS Gives District Courts More Power in Patent-Claim Construction
By David G. Barker and Nicholas M. Kunz – March 9, 2015
The Court dissolved a long-standing precedent.

Department of Labor Expands FMLA Coverage for Same-Sex Spouses
By Jennifer R. Phillips – February 27, 2015
Same-sex spousal rights, particularly in the area of employment law, are in a state of flux.

How Do You Prove Juror Misconduct after a Trial?
By Jonathan Murphy – February 23, 2015
The U.S. Supreme Court recently provided an example of how not to prove voir dire misconduct in a post-trial motion.

Feds Release Proposed Regulations for Unmanned Aircraft Systems
By Troy D. Roberts and Patrick X. Fowler – February 23, 2015
The government speaks on private use of drones.

What Is the "Internet of Things" and What Are Its Legal Challenges?
By Kelly Wilkins – February 23, 2015
By 2020, it’s estimated that 50 billion things will be connected to the Internet.

NLRB: Employees May Use Employer Email for Nonwork Purposes
By Gerard Morales – January 28, 2015
The board also expanded the right to wear union insignia.

Florida Appellate Court: No Right to Social Media Privacy
By Robin E. Perkins and Casey G. Perkins – January 23, 2015
For defendants, another valuable tool in responding to personal-injury claims by ensuring access to relevant information regarding a plaintiff’s physical injuries and quality of life. For plaintiffs, another cautionary reminder of the relevance and potentially damaging impact of a client’s social-media postings.

SCOTUS Resolves Truth in Lending Act Circuit Split
By M. Lane Molen – January 16, 2015
The Court held that borrowers exercising the right to rescind under TILA need only provide written notice to the lender within the three-year period.

Disputes over Interstate Compacts Increase
By Cynthia M. Chandley, L. William Staudenmaier, Karlene E. Martorana, and Christopher W. Payne – January 14, 2015
It is likely that the current interstate disputes are harbingers of future compact challenges.