Practice Insights from Lexis Practice Advisor®

Practice Insights from Lexis Practice Advisor®

FINANCE
Responding to a Data Breach—A Checklist for Financial Institutions

This checklist outlines necessary steps for financial institutions and third-party service providers in the event of a hack or data breach. A hack or data breach occurs when sensitive, protected, or confidential information is compromised, stolen, or converted without prior authorization. As a best practice, financial institutions should develop data breach response policies and procedures as part of business continuity planning. Each of the federal bank regulatory agencies, as part of the Federal Financial Institutions Examination Council (FFIEC), issue interagency guidance on response programs for unauthorized access to customer information and customer notice. This checklist provides an overview of items highlighted in the FFIEC guidance, as well as other steps an institution should undertake in responding to a data breach. Read more.


CORPORATE AND M&A
Expert Insights—New Russia Sanctions: What You Need to Know to Manage Risks by F. Amanda DeBusk and Melissa L. Duffy, Hughes Hubbard & Reed

On April 6, 2018, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced its most significant Russia sanctions action in years, adding to the Specially Designated Nationals and Blocked Persons (SDN) List seven prominent and politically connected Russian oligarchs, 12 companies they own or control, 17 senior Russian government officials, and a state-owned Russian weapons trading company and its subsidiary, a Russian bank. The sanctions came closely on the heels of OFAC’s March designation of five entities and 19 individuals in connection with Russia’s interference in the 2016 U.S. elections, as well as the expulsion of 60 Russian diplomats following Moscow’s alleged involvement in the poisoning of a former intelligence officer in the United Kingdom. The actions also came after months of criticism from Congress, which accused the Trump Administration of failing to faithfully implement the Countering America’s Adversaries Through Sanctions Act (CAATSA). Read more.


CAPITAL MARKETS & CORPORATE GOVERNANCE
Dividend Reinvestment and Stock Purchase Plans

This practice note discusses dividend reinvestment plans (DRIPs) and dividend reinvestment and stock purchase plans (DRSPPs). A DRIP allows shareholders of a publicly held company to automatically reinvest their dividends into shares of the company’s stock (typically, common stock). A DRSPP, in addition to providing for automatic reinvestment of dividends, allows participants to purchase additional shares directly from the company with optional cash payments. DRSPPs are often referred to as direct stock purchase plans, or DSPPs, but because DSPPs also typically permit reinvestment of dividends, the term “DRSPP” when used in this practice note refers to DSPPs as well. Read more.


LABOR & EMPLOYMENT
Deposing Employer Witnesses Preparation Checklist

This checklist is a guide for an attorney representing a plaintiff-employee who is preparing to depose employer witnesses in an employment discrimination case. The deposition discussed in this checklist is distinct from a deposition taken pursuant to Fed. R. Civ. P. 30(b)(6), in which a witness testifies not as to his or her individual knowledge, but as to corporate knowledge on a particular subject. In this checklist, “Rule” refers to the Federal Rules of Civil Procedure. You should review applicable local court and judge rules for specific provisions governing depositions. Read more.

For more information on deposing employer witnesses:
   •   Practice Note: Deposing Employer Witnesses: How to Prepare in Employment Discrimination Cases (Pro-Employee) by Tammy Marzigliano and Gregory S. Chiarello, Outten & Golden LLP


FEDERAL CIVIL PRACTICE
Commencing a Lawsuit: Evaluating Whether to File Suit (Federal)

This practice note discusses evaluating whether to commence a federal lawsuit and covers topics such as evaluating the client, conflicts checks, researching the viability of the claims, ripeness and standing, jurisdiction issues, ADR, and selecting a venue.

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 case. Read more.

For a draft complaint that may be used in federal court:
   •   
Form: Complaint (Federal)

For related practice notes:
   •   
Practice Note: Commencing a Lawsuit: Drafting and Filing the Complaint (Federal) by Jim Wagstaffe and The Wagstaffe Group®
   •   Practice Note: Commencing a Lawsuit: Serving Process (Federal) by Jim Wagstaffe and The Wagstaffe Group

For related checklists:
   •   
Checklist: Commencing a Lawsuit Checklist (Federal) by Jim Wagstaffe and The Wagstaffe Group
   •   Checklist: Commencing a Lawsuit: Serving Process Checklist (Federal) by Jim Wagstaffe and The Wagstaffe Group


CORPORATE COUNSEL
Risk Assessment by Stephen R. Martin, Arnold & Porter LLP

What is a Risk Assessment?
A risk assessment is a review undertaken to help an organization understand its business and manage the related strategic, operational, financial, and/or compliance risks. In the compliance context, United States regulators expect companies to conduct periodic and/or targeted assessments in order to assess and address the legal and regulatory risks that the company faces in its operations and/or activities. A well-devised risk assessment process assists companies in identifying specific vulnerabilities and provides the opportunity to mitigate those risks that are most likely to occur. When undertaken as part of a corporate compliance program, the risk assessment can help business leaders effectively manage and mitigate the organization’s legal and regulatory risk. Read more


EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION
Severance Plan for Executives

This form is a severance plan providing severance benefits for eligible executives whose employment terminates under specified circumstances. Most severance plans are not subject to I.R.C. § 409A, either because the plan makes all payments within the short-term deferral period, or it requires all payments to be made within a prescribed period. This plan is designed to schedule payments to comply with the short-term deferral period. For a companion form, see Severance Plan for Executives Participation Agreement. Read more.

For additional guidance:
   •   
Practice Note: Understanding and Drafting Severance Plans by Michael J. Collins, Gibson, Dunn & Crutcher LLP 


INTELLECTUAL PROPERTY & TECHNOLOGY
Data Portability Under the General Data Protection Regulation (GDPR) by Bridget Treacy and Aaron Simpson, Hunton & Williams (originally published in Lexis® PSL, a LexisNexis® UK practical guidance solution)

This Practice Note examines the scope of the right of data portability in the GDPR and its exemptions, and considers practical issues arising from the data portability right, both for data controllers and individuals. The General Data Protection Regulation, Regulation (EU) 2016/679, (GDPR) introduces a new right to data portability. This right will allow individuals to obtain from a data controller a copy of their personal data in a structured, machine-readable format. In addition, in some circumstances individuals will have the right to have that data transferred directly by the data controller to another data controller. See Article 20 of Regulation (EU) 2016/679, GDPR. Read more


COMMERCIAL TRANSACTIONS
Drafting Advice: Avoiding Disastrous Force Majeure Clauses by Timothy Murray, Murray, Hogue & Lannis

Botched Force Majeure Clauses Expose Your Client to Needless Risk
As if on autopilot, attorneys sometimes tack onto their contracts generic force majeure clauses, just because everybody else does it, without bothering to tailor the clause to the particular transaction. Force majeure clauses are among the most misused provisions in the contract drafting milieu, and a botched force majeure clause can expose clients to enormous risk. It doesn’t need to happen. Entire books are written on this subject, but this short article raises a few of the most troublesome issues as food for thought. Remember to consult the law of the pertinent jurisdiction because there are variations from state to state. Read more.

You can also read this article in The Lexis Practice Advisor Journal here.


ANTITRUST
Robinson-Patman Act Section 2(a) Price Discrimination Claims: Elements by Steven J. Cernak, Schiff Hardin LLP

This practice note explains the required elements for a successful Robinson-Patman Section 2(a) price discrimination claim. This practice note can assist you in bringing a Section 2(a) claim, defending against a Section 2(a) claim, and in developing a Robinson-Patman price discrimination compliance program. Read more.

Please also see:
   •   
Checklist: Robinson-Patman Act Section 2(a) Price Discrimination Elements and Defenses Checklist by Steven J. Cernak, Schiff Hardin LLP 


BANKRUPTCY
DIP Fees Checklist by Kristin C. Wigness, Israel Discount Bank of New York

This DIP Fees checklist can be used to guide attorneys in understanding the fees typically included in a DIP credit agreement filed in a Chapter 11 bankruptcy proceeding. Read more.

For more information on the fees included in a DIP financing and associated issues and rules:
   •   
Practice Note: DIP Fees, Expenses, and Interest by Kristin C. Wigness, Israel Discount Bank of New York
   •   Practice Note: Creditor Committees’ Objections to DIP Financing
   •   Practice Note: DIP Financing Rules: The Southern District of New York and Delaware