December 19, 2018

Wetlands Regulations: Considerations for Project Developers

By: Mark A. Chertok and Elizabeth Knauer This article discusses considerations for developers contemplating the purchase or development of real property that contains or is likely to contain regulated wetlands. The presence of regulated wetlands on a site proposed for development can often present complications in terms of time and expense in securing permits as well as restrictions on the type or magnitude of development...

December 19, 2018

In-house Counsel as Gatekeeper: Wearing Many Hats; Weighing Multiple Risks

By: Devika Kewalramani IT IS NOT UNUSUAL FOR IN-HOUSE COUNSEL TO WEAR many hats in an organization’s business, legal, compliance, regulatory, risk management, or business development matters. Playing different internal roles can create possible risks for both in-house counsel and the organization that is advised by and employs in-house counsel. Some of these risks can range from potential violations of the rules...

December 19, 2018

Drafting Exclusion of Consequential Damages Clauses

By: Timothy Murray ONE TIME, I WAS REVIEWING THE TERMS OF A PROPOSED contract with an executive for a client that was buying a product for a significant sum of money. The document had been drafted by the seller, and it contained the customary provision excluding the seller’s consequential damages. The executive made clear that he had no desire to discuss this clause. “We give up consequential damages...

December 19, 2018

Top 10 Practice Tips: Secondary Offerings

By: Steven J. Slutzky, Kevin R. Grondahl, and Nicholas P. Pellicani THIS ARTICLE COVERS 10 PRACTICAL TIPS THAT COUNSEL in a secondary offering can use to facilitate execution and avoid common pitfalls. Secondary offerings of equity securities by stockholders of public companies are one of the more frequent capital markets transactions. However, many secondary offerings are conducted on short notice and transactions...

December 19, 2018

Brexit: What U.S. Lawyers Need To Know

By: Edward J. Hannon and Nicole A. Bashor On June 23, 2016, voters in the United Kingdom (UK) were asked to determine whether the UK should leave the European Union (EU). The result of the referendum was in favor of leaving. Under what has become known as Brexit, which comes from a merging of the two words Britain and exit, the UK triggered Article 50 of the Lisbon Treaty in March 2017, which set a firm timetable for...

December 19, 2018

Investigation Requirements for #MeToo Complaints

By: Genevieve Ng A few hundred people demonstrated at Michigan State University (MSU) on April 20, 2018, calling on the Michigan State University Board of Trustees to resign. They were joined in the call by the editorial board of the Michigan State University newspaper, The State News , and the MSU Faculty Senate. This demand stemmed from MSU’s handling of the Larry Nassar sexual abuse scandal. 1 MUCH HAS BEEN...

December 19, 2018

Arbitration Agreement and Class Action Waiver Enforcement in Employment Litigation and the Impact of the Supreme Court's Decision in Epic Systems

By: John B. Lewis and Dustin D. Dow This article provides step-by-step guidance to consider when enforcing arbitration agreements and class action waivers in employment cases. Arbitration agreements are agreements that force individuals to bring legal claims in arbitration, rather than in court. A class action waiver is an agreement, or a section in a broader agreement, that restricts an individual’s ability to...

December 19, 2018

Guidance for Employers on Direct Contracting With Health Care Providers

By: Jason Brocks This article highlights some key considerations for attorneys representing employer sponsors of group health plans that are considering contracting directly with health care providers. As the idea of direct contracting arrangements between plan sponsors and health care providers becomes more mainstream, clients will want not only legal advice on these arrangements but also counsel on the potential benefits...

December 19, 2018

Corporate Board Diversity Requirements Expand: Guidance for Corporations

By: Trevor Norwitz, Sabastian V. Niles, and Jenny Lin THE CALIFORNIA STATUTE, CA S.B. 826, REQUIRES “a domestic general corporation or foreign corporation that is a publicly held corporation, as defined, whose principal executive offices, according to the corporation’s SEC 10-K form, are located in California” to have at least one female on its board of directors by the close of the 2019 calendar year...

December 19, 2018

Updates and Legal Developments

ABA Releases New Guidelines For Lawyers Who Experience Data Breaches By: Lexis Practice Advisor Attorney Team THE AMERICAN BAR ASSOCIATION (ABA) RECENTLY issued Formal Opinion 483, addressing lawyers’ ethical obligations to their clients after a data breach “exposes [their] confidential information.” Importantly, the ABA noted that compliance with these ethical obligations does not necessarily satisfy...

November 03, 2018

Making the Motion for Summary Judgment (Federal)

By: Jim Wagstaffe and The Wagstaffe Group                       This article discusses how to file a motion for summary judgment in a federal case and covers topics such as the advantages and disadvantages of moving for summary judgment, deadlines, formatting the motion, the notice of motion, memorandum of points and authorities...

November 03, 2018

Making the Motion for Class Certification (Federal)

By: Jim Wagstaffe and The Wagstaffe Group CLASS CERTIFICATION PROCEDURES ARE GOVERNED BY Rule 23(c)(1)(A) of the Federal Rules of Civil Procedure (Rule 23): “At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” 1 If the court denies certification, the action will proceed as an individual...

November 03, 2018

Litigation Updates

By: Jim Wagstaffe and The Wagstaffe Group FOURTH CIRCUIT HOLDS THAT IN DENYING A PRELIMINARY INJUNCTION, ALL FOUR TRADITIONAL FACTORS REQUIRED FOR SUCH RELIEF NEED NOT BE CONSIDERED WHEN ONE FACTOR IS CLEARLY NOT SATISFIED THE NATIONAL LABOR RELATIONS BOARD (NLRB) SOUGHT a preliminary injunction that allegedly sought to preserve its ability to award relief upon the completion of a pending agency process that was adjudicating...

November 03, 2018

Commencing a Lawsuit: Evaluating Whether to File Suit in Federal Court

By: Michael Bahler and Mike Stefanelli Deciding whether to commence a federal lawsuit requires the attorney to evaluate the potential client, analyze the applicable legal and procedural landscape, and examine the possibility of resolving the dispute without litigation. Failing to consider these issues before bringing suit can expose the attorney to financial and reputational risk and result in prompt dismissal of the...

November 03, 2018

Litigation Hold Memorandum (Federal)

Form provided by Jim Wagstaffe and the Wagstaffe group. This memorandum (also called a litigation hold notice or simply a litigation hold) notifies a client’s relevant employees of their duty to preserve and ensures that the client meets its legal responsibilities. Once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policies and put in place a litigation...

November 03, 2018

Class Action Rule 23(a) Prerequisites Standards Chart (2d Cir.)

By: Jim Wagstaffe and The Wagstaffe Group A PARTY SEEKING CLASS CERTIFICATION MUST SATISFY THE four requirements set forth under Fed. R. Civ. P. 23(a) (Rule 23(a)). Numerosity. A class is so large that joinder of all members is impracticable. Commonality. Questions of law or fact are common to the class. Typicality. Named parties’ claims or defenses are typical of the class. Adequacy of representation...

November 03, 2018

Pretrial Injunctive Relief: Enforcing Pretrial Injunctions

By: Jim Wagstaffe and The Wagstaffe Group This article discusses how to enforce a preliminary injunction or temporary restraining order (collectively, pretrial injunctive relief) in a federal case and covers topics such as the court's authority to enforce its orders; types of sanctions, including monetary, imprisonment, and fee-shifting; procedures to enforce contempt; distinguishing civil and criminal contempt;...

November 03, 2018

Motion for Temporary Restraining Order and Preliminary Injunction Standards Chart (9th Cir.)

By: Jim Wagstaffe and The Wagstaffe Group This article provides an overview of the factors the U.S. Court of Appeals for the Ninth Circuit evaluates in deciding an application for a preliminary injunction and/or a temporary restraining order (TRO). It also provides a chart listing these factors alongside language from representative cases explaining each factor. IN DECIDING AN APPLICATION FOR A PRELIMINARY INJUNCTION...

November 03, 2018

Submitting Evidence in Support of a Motion for Summary Judgment (Federal)

By: Jim Wagstaffe and The Wagstaffe Group This article discusses how to submit evidence with a summary judgment motion in federal court and covers topics such as the burden to show admissibility, declarations and affidavits, the sham affidavit doctrine, expert witness declarations, exhibits, deposition transcript errata, requests for judicial notice, oral testimony, stipulations, and how to make objections to evidence...

November 03, 2018

Settlement Fundamentals (Federal)

By: Jim Wagstaffe and The Wagstaffe Group This article discusses how to negotiate and finalize a settlement in a federal case and covers topics such as pre-suit settlements, settling after a complaint is filed and after entry of judgment, releases and interpreting them, overbroad and standard terms in a release, confidentiality issues, oral settlements, judicial settlement conferences, partial settlements, and class...

November 03, 2018

Drafting a Settlement Agreement Checklist (Federal)

Settlement Negotiations Make preparation for a settlement from the start of the case. You should generally do all of the following: ✔ Retain relevant documents. To avoid the loss of documents potentially relevant to settlement agreement negotiations, send a retention of documents notice (also known as a litigation hold letter) to all appropriate parties as soon as possible. ✔ Decide whether (and when) to make...

November 03, 2018

Reviewing a Settlement Agreement Checklist (Federal)

This checklist explains how to review a settlement agreement and covers topics such as preparatory steps, communicating with adversaries, settlement terms, ambiguity, confidentiality, relevant parties, breach provisions, releases, and final approval. When reviewing a draft settlement, make sure the document reflects the parties’ agreements about the settlement terms and eliminates any ambiguity. The agreement...

November 03, 2018

Settlement Agreement and Release (Federal)

This form is a settlement agreement and release that may be used in a federal district court case. It contains drafting notes and optional clauses When drafting or reviewing the agreement, try to address all the issues about the settlement terms and eliminate any ambiguity. For example, specify deadlines for making settlement payments. The agreement should list the rights, claims, obligations, or interests that will...

November 01, 2018

While State Voting Leave Laws Remain Unchanged, Businesses and Advocacy Groups Push for Expansion

Although federal law does not require employers to provide leave, either paid or unpaid, to make it easier for employees time to vote during their work day, the majority of the states have laws addressing some type of voting leave. Legislation in states that require employers to grant voting leave follows a pattern, granting. employees anywhere from one to three hours to vote during the work day unless there is sufficient...

September 13, 2018

Special Coverage: Broader Implications of California's Sweeping Online Data Privacy Statute

Broader Implications of CALIFORNIA’S SWEEPING ONLINE DATA PRIVACY STATUTE THE SIGNING OF A WIDE-RANGING DATA PRIVACY LAW in California should serve as a signal to all businesses that collect personal information about state residents to review and update their data collection, storage, and disclosure practices. The California Consumer Privacy Act of 2018 (CCPA), signed into law by Governor Edmund G. Brown on...