April 13, 2017

Market Trends: High Yield Debt Offerings

By: David Azarkh and John O’Connell , Simpson Thacher & Bartlett LLP. Overview: The High Yield Roller Coaster Continues The most appropriate word to describe the high yield market in 2016 is volatility. There were some rough patches when few issuers tested the waters—particularly during the first quarter—but over the course of the year, a number of windows opened up with favorable market backdrops...

April 13, 2017

Drafting Paid Sick Leave Policies

While no federal statute requires that employers provide paid sick leave for employees, Executive Order 13706 mandates that, effective January 1, 2017, covered federal contractors give employees up to seven days of paid sick leave each year. See 80 FR 54697 . It remains to be seen if the Trump Administration will rescind this executive order. IN ADDITION, RECENT LEGISLATION AT THE STATE AND local level has increasingly...

April 13, 2017

Guidance for Employers on Navigating Paid Sick Leave Laws

This chart summarizes state paid sick leave laws and notes which states do not have such laws. It does not discuss municipal ordinances but does indicate local governments that do have such laws where there is no statewide law. This chart is intended for private employers. Note also that while no federal statute requires that employers provide paid sick leave for employees, Executive Order 13706 mandates that, effective...

April 13, 2017

Guidance on Emerging Growth Companies

Q&A with Michael Labriola , Michael Nordtvedt , and Megan Baier , Partners at Wilson Sonsini Goodrich & Rosati LLP. What is an Emerging Growth Company (EGC)? Under the Jumpstart Our Business Startups Act (the JOBS Act) (112 P.L. 106, 126 Stat. 306), which was passed in April 2012, a company qualifies as an emerging growth company (EGC) if at the time of its initial public offering (IPO) total annual gross...

April 13, 2017

Real Estate Due Diligence in Corporate and M&A Transactions

By: Joseph M. Marger , Reed Smith LLP. In almost every asset purchase, stock purchase, and merger transaction (generally referred to in this article as M&A transactions), the purchaser will acquire an ownership or leasehold interest in at least one real estate asset. However, the real estate asset(s) do not drive a typical M&A transaction. In most cases, a particular real estate asset will only have significance...

April 13, 2017

The Recharacterization of Loan Agreements under Applicable Bankruptcy and Non-Bankruptcy Law

By: Ira L. Herman , Blank Rome, LLP The Statutory Predicate for Recharacterization To increase their share of a finite bankruptcy pie, creditors, debtors and other parties in interest in a case will seek to reduce or eliminate competing claims. This objective may be accomplished using various provisions of the Bankruptcy Code. Section 502(b)(1) is the statutory provision providing for the objection to, and disallowance...

April 13, 2017

Contract Drafting Concerns

By: Timothy Murray , Murray, Hogue & Lannis. RECENTLY A TEXAS COURT CONSTRUED A CONTRACT replete with common provisions designed to limit the supplier’s financial exposure in the event of its breach and proceeded to hold every one of them inoperative in the interest of fairness. CGBM 100 v. Flowserve US , 2016 U.S. Dist. LEXIS 179517 (S.D. Tex. December 29, 2016 ) is a cautionary tale about the limitations...

April 13, 2017

Examining Harassment Claims

By: Richard D. Glovsky , Locke Lord LLP. THIS ARTICLE ADDRESSES PROTECTED STATUS HARASSMENT issues, a subset of discrimination claims that arise where an employee alleges that he or she was subjected to unwelcome conduct in the workplace due to the employee’s protected status (race, sex/gender, age, disability, national origin, etc.). It focuses on the elements of these claims and defenses to them. It also provides...

April 13, 2017

Taxation of Carried Interest

By: Robert D. Starin , K&L Gates LLP. The tax treatment of carried interest has for many years been a high-profile target for potential reform. “Carried interest” refers to the share of profits or gains from investment received by a manager of a private equity fund, hedge fund, or similar investment vehicle, which is typically unrelated to any capital investment by the manager. UNDER EXISTING LAW APPLICABLE...

February 10, 2017

How to Become A Trusted Advisor—Richard Rothman

By: Richard Rothman , Weil, Gotshal & Manges LLP. Young professionals in a wide array of fields will have the opportunity to become a trusted advisor —someone to whom more senior executives or partners, clients, colleagues or friends turn when contemplating important decisions or in times of trouble. There is no playbook for how to either become someone’s trusted advisor or perform this critical role...

February 10, 2017

Profiles of Lexis Practice Advisor Journal™ Advisory Board Members - Andrew Bettwy & Alexandra Margolis

Andrew Bettwy : Partner, Proskauer Rose LLP ANDREW BETTWY IS A PARTNER IN Proskauer Rose’s corporate department and a member of the finance group. His principal focus is the representation of financial institutions, private equity sponsors, and public and privately held companies in leveraged finance and other financing transactions. Andrew represents both lenders and borrowers in a wide range of transactions...

February 10, 2017

Patent Litigation Strategies Against Patent Trolls

By: Matthew Bernstein , Perkins Coie LLP. THE MAJORITY OF PATENT CASES ARE BROUGHT BY non-practicing entities (NPEs), also called patent trolls or patent assertion entities (PAEs). These parties litigate or license their patents but have no real products or services. NPE Lawsuits are commonly brought against U.S. companies and pose unique challenges. For example, many NPEs are represented on a contingent fee basis,...

February 10, 2017

Market Trends: Indemnification Provisions in Asset Purchase Transactions

Indemnification provisions are among the most highly negotiated and critical deal points in private M&A transactions. In general, the parties provide mutual indemnification to each other for breaches of representations, warranties, and covenants. In practice, indemnification provisions are a tool to allocate the risk of known and unknown liabilities between the buyer and seller. Key terms that are typically negotiated...

February 10, 2017

Issues to Consider Regarding In-House Counsel Disqualification

By: Devika Kewalramani , Moses & Singer LLP. Federal and state courts have the power to disqualify a lawyer from continuing to represent a client by requiring withdrawal when a disabling conflict of interest exists. While courts are generally reluctant to impose this harsh remedy—recognizing a party’s right to choice of counsel and a lawyer’s right to freely practice law—courts do not hesitate...

February 10, 2017

A Look into Digital Media’s Influence on Brand Identity and Intellectual Property Rights

Q&A with Po Yi , Partner at Venable LLP. Please provide some general background on the types of transactional work you do currently. I counsel and work with clients on the front end of their marketing activities. My practice focuses on business transactions and counseling in the areas of sponsorships, marketing alliances, sports and entertainment marketing, celebrity endorsements, digital and social media marketing...

February 10, 2017

Bank Regulation and Commercial Lending

By: Dwight Smith , Nelson Mullins Riley & Scarborough LLP. Bank financing can take several forms, including commercial loans, repurchase agreements, and securities borrowing transactions, all of which are subject to regulation at the federal and state levels. This article provides an overview of the regulations and other supervisory policies that restrict and influence commercial lending by banks. THIS DISCUSSION...

February 10, 2017

Lender Liability Under Environmental Laws in Real Estate Transactions

By: Annemargaret Connolly and Matthew D. Morton , Weil, Gotshal & Manges LLP. Why should real estate lenders and other secured creditors concern themselves with known and potential environmental liabilities and requirements associated with their loan portfolios? After all, environmental liabilities and requirements generally are imposed on borrowers who own and operate the real estate collateral securing the loan...

February 10, 2017

The Impact of “Cash-in-Lieu of Benefits” Payments to Employees on Overtime Compensation Calculations

By: Zach P. Hutton and Justin M. Scott , Paul Hastings. Introduction In Flores v. City of San Gabriel , 1 the Ninth Circuit Court of Appeals considered an issue of first impression: whether “cash-inlieu of benefits” payments made directly to employees under a flexible benefits plan must be included in the regular rate of pay for overtime compensation. The court concluded that such payments do not qualify...

February 10, 2017

Guidance on Ransomware Attacks under HIPAA and State Data Breach Notification Laws

By: Amy M. Gordon, Ann Killilea, Michael G. Morgan, Susan M. Nash, and Angela M. Stockbridge , McDermott Will & Emery LLP. The U.S. Department of Health and Human Services (HHS) recently issued guidance under the Health Insurance Portability and Accountability Act (HIPAA) on what covered entities and business associates can do to prevent and recover from ransomware attacks. Ransomware attacks can also trigger concerns...

February 10, 2017

Drafting and Reviewing the Key Documentation for a Private Equity Fund and Its Offering

Adapted by Alyssa Heumann . THE LAWYER’S MOST IMPORTANT ROLE IN CONNECTION with the launch of a new private equity fund (PE fund) will involve the preparation and negotiation of the key documents for the offering of its interests. The sale of PE fund interests to investors constitutes an offering of securities that must be registered with the U.S. Securities and Exchange Commission (SEC) and state authorities...

February 10, 2017

Best Practices to Reduce Litigation Risks When Hiring From A Competitor

By: Michael P. Pappas , Michael P. Pappas Law Firm, P.C. This article discusses ways to reduce the risk of litigation when hiring someone away from a competitor. Litigation involving trade secrets, non-compete agreements, and other postemployment restrictive covenants has grown exponentially, roughly doubling every decade since 1980. Often, these lawsuits are directed not only at the departing employee, but also at...

November 09, 2016

The Demise of Safe Harbor and Rise of Privacy Shield: How Can Personal Information Now Be Exported from the EU to the United States?

By: David Bender Special Counsel, Data Privacy, GTC Law Group. Since 2000, the Safe Harbor program has provided a relatively painless way for U.S. companies to import into the United States the personal information of European Union (EU) residents in compliance with the EU’s rigid restrictions on export of personal information. THIS PROGRAM WAS CREATED IN 2000 BY AGREEMENT between the United States and the EU...

November 09, 2016

Mobile App Privacy Considerations

By: Mark W. Brennan , Hogan Lovells US LLP. AS THE USE OF MOBILE DEVICES SUCH AS SMARTPHONES and tablets has become increasingly prevalent, mobile applications (mobile apps or apps) have also proliferated. Consumers use mobile apps to access social networks, conduct online banking, play games, listen to music, take photos and videos, find nearby restaurants or stores, monitor health and wellness, and perform many other...

November 09, 2016

Complying with the CAN-SPAM Act

By Mark W. Brennan , Hogan Lovells US LLP The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), 15 U.S.C. §§ 7701–7713 , imposes a number of detailed requirements on persons and entities that initiate and send commercial e-mail messages. Complying with the CAN-SPAM Act is crucial, as the failure to do so may lead to regulatory scrutiny, steep fines of up to...

November 09, 2016

Attorney Cloud Computing for Technology Clients: A Patent and Trade Secret Perspective

By: Eric M. Dobrusin, Kristen L. Pursley, and Daniel P. Aleksynas , The Dobrusin Law Firm. A broad range of attorneys represent technology companies in some capacity, and therefore, potentially handle and store sensitive information related to patents or trade secrets. FOR EXAMPLE, YOU MAY BE A PRODUCT LIABILITY attorney engaged in discovery about product redesign by a client. You may be a mergers and acquisition...