Legislation Proposed to Govern Use of Deferred Prosecution Agreements - 01/08
Special Matters & Investigations
January 25, 2008
R. Joseph Burby, IV
Ann W. Ferebee
On January 22, 2008, Representative Frank Pallone, Jr. (D-NJ) introduced legislation in the U.S. House of Representatives that would require the Department of Justice to meet specific guidelines, and obtain judicial approval, prior to entering into deferred prosecution agreements with corporations under federal criminal investigation.
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Summary Judgment for PoGo Client in Multidistrict Litigation Affirmed on Appeal - June/July
Health Care and Litigation
July 2, 2007
On Wednesday, June 13, just one week after oral argument, the Eleventh Circuit Court of Appeals affirmed the grant of summary judgment to our client, Coventry Health Care, Inc., in the lead case in the Managed Care Multidistrict Litigation.
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Supreme Court Authorizes PRPs to Recover Voluntary Clean-up Costs Under CERCLA - 06/26/07
Tort Litigation & Environmental Law
June 26, 2007
Joan B. Sasine
Christopher A. Thompson
Laura A. Williams
On June 11, 2007 the United States Supreme Court announced its much-awaited decision in the United States v. Atlantic Research Corp. case.
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Recent Supreme Court Cases Emphasize Importance of Monitoring Patent Portfolio for Investors - 05/08/07
Business & Finance: Private Equity & Venture Capital
May 8, 2007
Amanda Lang Norcross
Ryan T. Pumpian
M. Todd Wade
The Supreme Court has handed down two decisions this year that make obtaining and protecting patents more difficult. These decisions highlight important issues for companies as they seek new patents or make business decisions affected by previously issued patents and for investors in analyzing potential investments.
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Important Development in The Standard of Care for Directors and Officers of Georgia Corporations - 05/07
Securities, Corporate & Fiduciary Litigation
May 7, 2007
Thomas S. Richey
In a recent decision, Flexible Products Co. v. Ervast, a three-judge panel of the Georgia Court of Appeals took a major step in resolving the uncertainty regarding the standard of care for officers and directors of Georgia corporations.
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Delaware Court Considers Fiduciary Duty Issues in Stock Option Backdating and Spring-Loading - 04/24/07
Business & Finance
April 24, 2007
Eliot W. Robinson
While most of the attention and controversy regarding stock option grant practices has focused on potential accounting misstatements and related securities law violations, a pair of recent decisions of the Delaware Chancery Court demonstrates that corporate law fiduciary duty issues are presented as well.
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U.S. Supreme Court Permits Licensees to Challenge Patents - 01/16/07
Technology & Intellectual Property
January 16, 2007
John C. Bush
The U.S. Supreme Court handed down its much-anticipated decision last week in MedImmune v. Genentech, 2007 WL 43797 (U.S. Jan. 9, 2007).
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Electronic Data Discovery - How the Changes in the Federal Rules of Civil Procedure will Change the Production of Electronic Evidence - 12/04/06
Litigation
December 4, 2006
Jennifer Devine Odom
Vjollca Prroni
Electronic documents, e-mail messages and other electronic data have become an area of significant concern when it comes to producing information in response to government subpoenas, informal government inquiries, and document requests in litigation. The production of electronic information is costly. Knowing exactly what exists on company servers and hard drives, and knowing what to produce and how to produce it can be confusing.
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Accelerated Examination Available to Patent Applicants - Altera IP Alert
Altera Client Alert
September 12, 2006
Michael Lasky
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Domain Name Disputes: How to Get the Bad Guys Off Your Domain
Altera IP Alert
September 12, 2006
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Court Rejects Doctrine That Protects Attorney-Client Privilege in Government Investigations - 08/04/06
Litigation
August 4, 2006
On June 26, 2006, Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York, in the case of United States v. Jeffrey Stein, raised eyebrows when he declared portions of the United States Department of Justice's so called "Thompson Memorandum" unconstitutional. In particular, he ruled that the Thompson Memorandum's requirement that prosecutors consider a corporation's payment of its employees' legal expenses when determining the corporation's cooperation is unconstitutional.
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Court Rejects DOJ Policy that Discouraged Advancement of Legal Expenses - 07/07/06
Litigation
July 6, 2006
In a closely watched case involving former employees of KPMG, a Manhattan federal judge declared that the U.S. Department of Justice's "Thompson Memorandum" violated the 5th Amendment's due process clause and the 6th Amendment's right to counsel and is, therefore, unconstitutional.
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The Landowner's Bill of Rights and Private Property Protection Act - 04/14/06
Business Litigation & Arbitration
April 14, 2006
Before the summer of 2005, most Americans had little concept of eminent domain and even less of an idea of how Georgia law governed or guided the takings process. Now, thanks to the valiant efforts of Suzette Kelo, such terms are common water-cooler and cocktail party conversation topics. State legislators and their constituents around the country are fully engaged in the property rights revolution. Georgia is one of the first states to pass eminent domain reform.
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What Do You Mean I Waived My Right to Arbitrate? Part II - 04/05/06
Construction Contracts
April 5, 2006
Curtis James Romig
In Part I, we warned about the dangers of failing to carefully craft and follow an arbitration provision. However, even parties who draft and enter into a valid and enforceable arbitration provision can lose their right to arbitrate if they do not consistently object to improper litigation, assert their right to arbitrate in that litigation, and refuse to meaningfully participate in the litigation as two recent cases below demonstrate.
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FERC Delays Start of Southwest Power Pool's Energy Imbalance Market - 4/03/06
Energy Client Alert
April 3, 2006
In the April edition of the Energy Client Alert: FERC Delays Start of Southwest Power Pool's Energy Imbalance Market; New England Parties File Settlement Agreement Relating to Capacity Market; States Release Draft Model Rule for Mandatory Program to Reduce CO2 Emissions
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Georgia Legislature Approves Amendments to Georgia Corporation Code - 04/03/06
Business & Finance and Securities & Corporate Litigation
April 3, 2006
Thomas R. McNeill
Thomas S. Richey
Louis C. Spelios
Last week, the Georgia Legislature approved Senate Bill 469, a bill which affects how Georgia corporations conduct their affairs by modernizing the Georgia Corporate Code. Specifically, the bill contains provisions which relate to: the approval process for corporate transactions; the advancement of expenses to persons entitled to indemnification as corporate directors and officers, as well as the obligation of a corporation to indemnify; proceedings during bankruptcy; and the process by which corporations, limited liability companies, and partnerships, may elect another legal form. The bill is awaiting signature by Georgia Governor Sonny Perdue.
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SEC Clarifies Position on Imposing Civil Penalties - 1/04/06
Securities, Corporate & Fiduciary Litigation
January 4, 2006
Jason R. Curles
W. Scott Sorrels
On January 4, 2006, the SEC Chairman announced a unanimously adopted policy designed to guide the market about how the SEC may use its enforcement powers to fine public companies for securities law violations.
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Business Method Patents: Protecting Inventions of Service Business Clients
Atltera IP Alert
September 2005
Michael Lasky
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Federal Banking Agencies Release New BSA Manual - 8/12/05
Financial Institutions Client Alert
August 12, 2005
On June 30, 2005, the federal banking agencies jointly released a new Bank Secrecy Act/Anti-Money Laundering Examination Manual. Over the last two years examiners have imposed new requirements on institutions following unfavorable BSA examinations or as part of memoranda of understanding or consent orders. However, it was not always clear that the examiners would expect all institutions to implement the same procedures. The Manual clarifies that many of the requirements we have observed in consent orders and the like are now expected of all institutions.
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California Supreme Court Strikes Down Contractual Waiver Of Class Wide Arbitration - 08/03/05
Business Litigation & Arbitration
August 3, 2005
Christopher P. Galanek
Curtis James Romig
In a decision with immediate implications for companies doing business in California, the Supreme Court of California recently struck down a contractual waiver of class wide arbitration.
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Supreme Court Rules Against File-Sharing Services in Copyright Case - 07/08/05
Technology & Intellectual Property Litigation
July 8, 2005
Ryan T. Pumpian
In a unanimous and long-awaited decision, last week the U.S. Supreme Court ruled in favor of a group of movie studios and other copyright holders (collectively "MGM") and against Grokster and StreamCast Networks, two companies that distribute free software products that allow computer users to share electronic files directly through "peer-to-peer" networks.
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Pop-Up Ad Maker Gets Appellate Win - 07/08/05
Technology & Intellectual Property Litigation
July 8, 2005
Ryan T. Pumpian
The Second Circuit Court of Appeals gave pop-up ad seller, WhenU.com, Inc., a big win with its June 27, 2005 reversal of a preliminary injunction issued by Judge Deborah Batts of the Southern District of New York in the case of 1-800 Contacts, Inc. v. WhenU.com, Inc. and Vision Direct, Inc.
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Supreme Court Broadens Power to Condemn Private Property - 06/30/05
Business Litigation & Arbitration
June 30, 2005
On June 23, 2005 a divided U.S. Supreme Court affirmed a Connecticut Supreme Court ruling broadening the powers of eminent domain as granted by the Fifth Amendment to the United States Constitution. The definition of "public use" now includes the taking of private property when a city's development plan "substantially advances" a public purpose, even if the property is transferred to a private enterprise.
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Supreme Court Reverses Criminal Conviction of Arthur Andersen for Destroying Documents in Enron Case - 06/06/05
Technology & Intellectual Property Litigation
June 6, 2005
John R. Bielema
Ralph J. Caccia
Michael H. Chanin
Eliot W. Robinson
G. Patrick Watson
Although the U.S. Supreme Court unanimously reversed the criminal conviction of Arthur Andersen for destroying documents in the Enron matter, the decision reinforces the need for companies to develop and uniformly administer document retention policies and to routinely review compliance with those policies.
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False Claims Act Qui Tam Relators May Gain An Even Larger Slice Of The Pie Under Pennsylvania Ruling - 06/03/05
Health Care
June 3, 2005
On May 12, 2005, the United States District Court for the Eastern District of Pennsylvania issued a ruling which, if followed in other jurisdictions, could significantly alter the financial calculus for whistleblowers filing suit against health care providers under the federal False Claims Act, 31 U.S.C. ยงยง3729-3733.
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Supreme Court Declines Opportunity to Resolve Split on Who Bears ADA "Direct Threat" Burden - 06/01/05
Labor, Employment & Immigration
June 1, 2005
Marilyn M. Fish
Kathryn B. Vargo
The Americans with Disabilities Act permits an employer to base an adverse employment action upon an employee's disability if the employee poses a direct threat to others. The circuit courts do not uniformly agree, however, upon which party bears the burden of proofing that such a direct threat existed.
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Supreme Court of Georgia Ruling Allows Companies in Bankruptcy to Pierce their own Corporate Veils to Impose Liability for Company Debts on their Controlling Shareholders - 05/13/05
Securities, Corporate & Fiduciary Litigation
May 13, 2005
Thomas S. Richey
A new Supreme Court of Georgia decision has expanded the potential liability of shareholders of bankrupt Georgia corporations by allowing corporations to "pierce their own corporate veil" and seek to impose liability for their debt on controlling shareholders. Moreover, such claims belong exclusively to the debtor-corporation when it is in bankruptcy and cannot be pursued independently by creditors. The court also ruled that a shareholder who abuses the corporate form can be held liable to the corporation for all its debts.
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Adverse Inference Due to Destroyed Electronic Evidence Plays Key Role in $29 Million Verdict - 04/21/05
Technology & Intellectual Property Litigation
April 22, 2005
Ryan T. Pumpian
UBS Warburg, LLC recently got hit with a $29 million damage verdict in a highly publicized lawsuit that has emerged as the seminal case regarding electronic discovery.
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The "Loss Causation" Element of Securities Fraud - 04/20/05
Securities, Corporate & Fiduciary Litigation
April 20, 2005
John R. Bielema
Michael P. Carey
Thomas S. Richey
On April 19, 2005, the United States Supreme Court unanimously held that a securities fraud plaintiff who files suit for fraud under Section 10(b) of the Securities Exchange Act of 1934 and the SEC's Rule 10b-5, in order to successfully plead the required element of "loss causation," must allege more than that a security's price at the time of purchase was inflated because of the alleged misrepresentation.
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Agency Defense Saves U-Haul From Retail Price Maintenance Antitrust Liability - 03/03/05
Antitrust Client Alert
March 3, 2005
G. Patrick Watson
The Eleventh Circuit Court of Appeals recently affirmed a decision dismissing an antitrust case filed against U-Haul. The case, filed in a Florida District Court, alleged that U-Haul had conspired with its independent dealers to fix rental prices in violation of Section 1 of the Sherman Act.
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New Regulations Concerning Relationships With Auditors and Preapproval of Services Performed by Auditors - 2003
Corporate Compliance - Security Series 2003 - 8
In This Alert: General Considerations; Disclosure Requirements; Prohibited Non-Audit Services; Audit Committee Preapproval of Auditor Services; Hiring Auditors for Employees; Partner Rotation; Prohibited Auditor Compensation
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SEC Adopts Final Rules Related to Professional Conduct for Attorneys - 2003
Corporate Compliance - Security Series 2003 - 9
In This Alert: Attorneys Covered by the Rules; Reporting Requirements; The QLCC Reporting Alternative; Issuer Confidences; Responsibilities of Supervisory Attorneys and Subordinate Attorneys;
Sanctions and Disciplinary Actions; "Noisy Withdrawal" Revisited and an Alternative Proposed
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Mandatory Electronic Filing and Website Posting of Section 16 Reports - 2003
Corporate Compliance - Security Series 2003 - 10
In This Alert: Effective Date; Methods of Electronic Filing; Extension of Same Day Filing Deadline; Disclosure of Late Filings; Access Codes
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SEC Implements "Internal Control" Provisions of the Sarbanes-Oxley Act and New Filing Requirements for Sections 302 and 906 Certifications - 2003
Corporate Compliance - Security Series 2003 - 11
In This Alert: SEC Implements Internal Control Provisions of the Sarbanes-Oxley Act and New Filing Requirements for Sections 302 and 906 Certifications; New Filing Requirements for Certifications Accompanying Exchange Act Reports
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Requirements for Public Company Websites - 2003
Corporate Compliance - Security Series 2003 - 12
Key Points: Periodic Reports; Section 16 Filings - Forms 3, 4 and 5; Earnings Releases; Code of Ethics; Proposed NYSE Requirements; Preparation
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SEC Proposes Rules Requiring Electronic Filing and Website Posting Of Forms 3, 4 And 5 - 2003
Corporate Compliance - Security Series 2003 - 5
In This Alert: What Companies Should Do Now; Required Electronic Filing of Forms 3, 4 and 5; Required Website Posting of Forms 3, 4 and 5
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SEC Adopts Rules Regarding Codes of Ethics and Audit Committee Financial Expert - 2003
Corporate Compliance - Security Series 2003 - 6
In This Alert: Codes of Ethics Disclosure; Audit Committee Financial Expert Disclosure; Safe Harbor for Audit Committee Financial Experts; Additional Guidance
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Standards Related to Listed Company Audit Committees - 2003
Corporate Compliance - Security Series 2003 - 7
In This Alert: Audit Committee Member Independence; Responsibilities Relating to Registered Public Accounting Firms; Procedures for Handling Complaints; Authority to Engage Advisors; Funding; Other Factors; Changes in Audit Committee Disclosure Requirements
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Supreme Court of Georgia Establishes A Standard for "Willful" Conduct - 02/21/05
Securities, Corporate & Fiduciary Litigation Client Alert
February 21, 2005
John R. Bielema
This Georgia Supreme Court decision has made it easier for the Commissioner of Securities to prove violations of the Georgia securities laws and impose civil penalties on the violators.
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"Class Action Fairness Act " Shifts Many Class Actions to Federal Courts - 02/18/05
Litigation Client Alert
February 18, 2005
The "Class Action Fairness Act of 2005" (the "Act") will shift many class action lawsuits from state courts to federal courts in cases in which more than $5 million is in dispute and most members of the proposed plaintiff class and the defendants are not citizens of the same state. The Act will also provide for increased judicial scrutiny of class action settlements that award coupons to the plaintiff class, including scrutiny of the award of plaintiffs' counsel fees in such settlements
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SEC Compliance Reminders - 02/03/03
Corporate Compliance - Security Series 2003 - 1
During the past several months, the Securities and Exchange Commission adopted several new rules and issued a number of releases affecting the content or timing of filings that publicly-held companies are required to make with the SEC. Most of these new requirements were adopted by the SEC as a result of the Sarbanes-Oxley Act of 2002. Some of these provisions are currently in effect while others will become effective later in 2003.
The attached checklist summarizes regulatory developments that will affect SEC filings during this proxy season and for the balance of the calendar year 2003 and, for those rules or requirements not currently in effect, highlights the applicable compliance deadlines.
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Client SEC Issues Final Rules Revised - 02/24/03
Compliance - Securities Series No. 2003-2
In This Alert:
Application of New Requirements; "Off-Balance Sheet Arrangement;" Contractual Obligations.
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Earnings Releases on Form 8-K - 03/03/03
Corporate Compliance - Security Series 2003 -3
In This Alert: Earnings Releases on Form 8-K; Use of Non-GAAP Financial Measures; Regulation G; Amendments to Item 10.
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What Directors Should Ask About D&O Insurance - 02/17/05
Securities, Corporate & Fiduciary Litigation Client Alert
February 17, 2005
Thomas S. Richey
A startling reminder to corporate litigants that it critically important to supervise and control document production during discovery.
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Questions Directors Should Ask RE: D&O Liability Insurance
Securities, Corporate & Fiduciary Litigation
February 16, 2005
Thomas S. Richey
Recent class action settlements involving payment by outside directors from their personal funds have heightened concerns about the adequacy of director and officer liability insurance coverage. This may appear to be a new issue, but directors have had to pay their own way on many not well-publicized occasions in the past, either because the company on whose board they served had no Directors & Officers (D&O) insurance, because the policy limits were inadequate, or because the insurer denied coverage based on exclusions or sought to rescind the policy for alleged misrepresentations in the application for coverage or accompanying financial information.
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Georgia Fights Spam - 02/15/05
Technology & Intellectual Property Litigation Client Alert
February 15, 2005
Georgia corporations and individuals that send or receive large volumes of commercial email are likely to be affected if the Georgia Assembly passes proposed anti-spam legislation, introduced in January 2005 as Senate Bill 62. The "Georgia Slam Spam E-Mail Act" would allow for both civil liability and imposition of criminal penalties against violators of the Act that send false or misleading commercial electronic mail. Although federal legislation (the CAN-SPAM ACT of 2003) already exists, the Georgia Act would be the state's first anti-spam law, and it has a significant chance of passage given the Governor's support.
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Fiduciary Duties of Institutional Investors Focus of Recent Lawsuits - 02/10/05
Securities, Corporate & Fiduciary Litigation Client Alert
February 10, 2005
Daniel G. Ashburn
John R. Bielema
Thomas S. Richey
Recent class action lawsuits highlight the duties of trust officers, investment advisors, pension fund managers and other institutional fiduciaries and investors, and the need to have procedures in place to determine when and how to collect their share of settlements whenever appropriate.
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What You Don't Know About Merger Clauses Can Hurt You - 02/07/05
Business Litigation & Arbitration Client Alert
February 7, 2005
C. Scott Greene
Curtis James Romig
Many home-sellers assume that the presence of a merger clause, or "entire agreement" clause, in a purchase and sale agreement will protect them from any claim that is made outside the contract. This is a mistake.
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Default Judgment Recommended For Alleged Discovery Abuses! - 02/04/05
Business Litigation Client Alert
February 4, 2005
G. Patrick Watson
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GE and InVision push back merger date due to FCPA concerns
FCPA Concerns Increasingly Affect High Profile Mergers & Acquisitions
November 15, 2004
William Steinman
In This Edition:
- FCPA Concerns Increasingly Affect High Profile Mergers and Acquisitions
- Anti-Corruption Trade Group Rolls Out Country-by-Country Matrix of Permissible Gifts
- Former President of Costa Rica Resigns Post as OAS Secretary General Amid Allegations of Bribery
- Immucor Investigation in Italy Could Lead to FCPA Action in the United States
- DaimlerChrysler under Investigation for FCPA Violations
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The Adverse Inference is Dead: Should You Still Seek a Non-Infringement Opinion? - 10/04
IP Update
October 11, 2004
Ryan T. Pumpian
Charles L. Warner
In this edition of the Intellectual Property Update:
* The Adverse Inference is Dead: Should You Still Seek a Non-Infringement Opinion?
* Gone Phishing
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Increased SEC Aggressiveness in Investigations and Enforcement Actions: New Initiatives, Tougher Stances, Wider Exposure and Stiffer Penalties for Non-cooperation - 09/04
Securities & Corporate Litigation
September 15, 2004
Jennifer Devine Odom
Thomas S. Richey
W. Scott Sorrels
The SEC's new aggressive approach to investigations and enforcement has significantly raised the stakes for public companies in crisis, their officers and directors, and third parties who do business with them. The SEC's treatment of "cooperation" in its investigations requires immediate decisions by companies, their officers and directors and their counsel upon the first hint of employee misconduct or financial irregularities. These early decisions will likely affect the course of future litigation against the company and insurance coverage.
What do you need to know as an officer or director of a public company, as an individual or company doing business with a public company, or as counsel or auditors of a public company?
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Georgia Appeals Court Determines That Both Scienter and Justified Reliance Are Essential Elements of a Claim Under Georgia's Securities Fraud Statute - 08/04
Securities & Corporate Litigations
John R. Bielema
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Georgia Appeals Court Determines That Both Scienter and Justified Reliance are Essential Elements of a Claim Under Georgia's Securities Fraud Statute - 08/04
Securities and Corporate
John R. Bielema
While the federal securities laws contain several antifraud provisions, the Georgia Securities Act (or "Blue Sky Law") has its own statute that creates claims for securities fraud. A recent Georgia Court of Appeals decision has helped to clarify what elements a plaintiff will need to establish in order to prevail on such a claim.
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SEC Adopts Expanded Form 8-K Disclosure Requirements and Reduced Filing Deadlines - 03/04
Securities
The Securities and Exchange Commission has adopted amendments to Form 8-K that add eight new disclosure items and transfer two items to the current report from the periodic reports. The amendments also expand certain disclosure items of Form 8-K. In addition, the SEC has replaced the current five business and fifteen calendar day Form 8-K deadlines with a new four business day deadline.
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USDA Guaranteed Loan Program
February 2004
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Attorney Client Privilege May Be Lost - 05/03
Litigation
The attorney-client privilege protects confidential communications between an attorney and his/her client from disclosure to third parties. The privilege, which has long been established in U. S. law, promotes the free and open flow of information and advice that is crucial to an effective relationship between client and counsel. This attorney-client privilege may be lost through communications with accountants, however.
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SEC Brings First Reg FD Enforcement Action; Litigation Series, Client Alert No. 1 - 01/03
Securities Litigation
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SEC Brings First Regulation FD Enforcement Actions - 01/03
Securities Litigation
More than two years ago the Securities and Exchange Commission (SEC) adopted Regulation FD (Full Disclosure), which was designed to eliminate the practice of so-called "selective disclosure" of material information to analysts and other third parties.
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SEC Proposes Additional Rules Contemplated by Sarbanes-Oxley Act - October 2002
Litigation Practices
Disclosure Requirements and Restrictions on Improper Influence of Auditors
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Congress in a Hurry: Sarbanes-Oxley Makes Sweeping Changes To U.S. Securities Laws - 07/02
Litigation Practices
During the past week, Congress enacted, and the President has now signed, the Sarbanes-Oxley
Act (the "Act"), which is the most sweeping securities legislation since the 1930s.
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SEC ADOPTS NEW SELECTIVE DISCLOSURE AND INSIDER TRADING RULES
November 2000
John R. Bielema
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PRODUCT ADVERTISEMENTS IN TRADE JOURNALS AS SECURITIES DISCLOSURE
July 1998
Thomas S. Richey
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Practical Pointers To Comply With Insider Trading Rules
June 1998
W. Scott Sorrels
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The Private Securities Reform Act of 1995
December 1995
John R. Bielema
Thomas S. Richey
W. Scott Sorrels
G. Patrick Watson
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Congressional Reform of Securities Litigation
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Securities & Litigation Legal Trends July 1997
Thomas S. Richey
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