Practitioner Contributions

One point can be an anomaly. Two points is a line and if those two points are In re Coventry Healthcare, Inc. ERISA Litig., 2013 BL 76546 (D. Md., March 21, 2013) and Adair v. EQT Prod. Co., 2012 BL 135030 (W.D. Va., May 31, 2012), that line may be foreshadowing a dangerous trend.

The recent economic downturn has resulted in a greater number of real estate loans going into default. Many of these loans were packaged and sold as commercial and residential mortgage-backed securities (“MBS”) issued in the heyday of the real estate bubble. Borrower defaults have spawned a myriad of lawsuits by investors in mortgage-backed securities against lenders that sold the loans to securitization trusts.

The proliferation of mobile devices and health care-related mobile applications is radically changing the way health care services are delivered. The promise of such devices and applications is that enhanced mobility and access to information will improve the way in which physicians and their teams interact with patient health information. However, app developers and health care providers must be aware of the implications of designing and utilizing mobile devices and health apps.

American businesses have a new weapon to exclude foreign competitors from the U.S. market using the International Trade Commission (ITC). In TianRui Group Co. v. ITC, a divided Federal Circuit panel gave the ITC authority over a business’s oversees conduct that violates federal trade secret law, which has no statutory or common-law basis. A “single federal standard” governs trade secret misappropriation analysis in Section 337 cases.

On March 11, 2013, Mexico’s new president announced a fundamental and sweeping set of reforms in the telecommunications and broadcasting sectors. The reforms are aimed at transforming the dynamics of and introducing effective competition into these key sectors of the economy. Until now, in Mexico these markets have been dominated by a combination of a quasi-monopoly in telecommunications and a duopoly in broadcasting, although the sector ostensibly has been liberalized.

What happens to the rights of a trademark licensee when its licensor is in bankruptcy? The hoped-for answer is “nothing”—but, so far, only the Seventh Circuit Court of Appeals, covering Illinois, Indiana and Wisconsin, has agreed definitively in the recent Sunbeam decision. Unfortunately, the Supreme Court declined to decide this important question.

On April 16, the U.S. Supreme Court issued its decision in US Airways v. McCutchen, resolving an important monetary issue in which plan sponsors, on one hand, and plan participants, on the other, had significantly opposing interests.1 The issue the court resolved was whether and how a medical plan under the Employee Retirement Income Security Act could obtain reimbursement for its payments for a participant’s injuries from the total amount that the participant recovered from a third-party tortfeasor, even if the reimbursement exceeded the participant’s net recovery after expenses.

A Jan. 23, 2013, panel decision of the U.S. Court of Appeals for the District of Columbia Circuit casts doubt on more than the future of two current federal agencies. It calls into question the legality of innumerable actions by hundreds of federal officials counting back to the days of the Reagan Administration.

Recent developments in Delaware law have sparked renewed debate among legal practitioners and academics as to whether default fiduciary duties apply to the managers of a Delaware limited liability company (“LLC”) where the operating agreement is silent as to such duties. Decisions emanating from the Delaware Court of Chancery have affirmed what many practitioners already believed to be true: that absent contractual language to the contrary, the manager of a Delaware LLC owes fiduciary duties to the LLC and its members.

Much of the coverage of the recent Foreign Corrupt Practices Act case against Ralph Lauren Corp. (RLC) focused on the fact that both the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) awarded it a Non-Prosecution Agreement (NPA) due to its prompt voluntary disclosure and subsequent cooperation. The facts of the case, however, point to the steady entrenchment of a more ominous prosecution theory: an approach that appears to approximate strict criminal and civil liability of parent corporations for their subsidiaries’ corrupt acts.

On March 1, 2013, Judge Robert E. Gerber of the United States Bankruptcy Court for the Southern District of New York held in the Official Committee of Unsecured Creditors of Motors Liquidation Company v. JPMorgan Chase Bank, N.A. (In re Motors Liquidation Company)1 that (a) for an agent to effectively terminate a UCC-1 initial financing statement on behalf of a secured lender principal, the termination must be authorized by the principal and (b) the court must consider factors under non-UCC agency law to determine whether authorization has been granted, including that the agent reasonably believed that the principal intended for the agent to terminate the UCC-1 initial financing statement.

With the breathtakingly rapid global penetration of digital communications, the ripple effects of this fundamentally new way to convey information continue to widen. Perhaps the most disruptive change has come with the explosive growth of social media, such as Facebook, Google+, Twitter and LinkedIn. The industry behemoth Facebook alone, for example, has over one billion registered users, and according to a recent Nielsen report, accounts for roughly 17 percent of the total time spent online by PC users in the U.S. Businesses, as well, have quickly discovered the opportunities presented by the ubiquity of social media.

By John H. Beisner, Jessica D. Miller, and Geoffrey M. Wyatt, Skadden The U.S. Supreme Court on April 1 summarily vacated and remanded the Sixth Circuit’s decision in Whirlpool Corp. v. Glazer, 678 F.3d 409 (6th Cir. 2012), for further consideration in light of Comcast Corp. v. Behrend, No. 11-864, 2013 BL 80435 (U.S. Mar. 27, 2013) (Comcast). See Whirlpool Corp. v. Glazer, [...]

By Bernard T. King and Michael R. Daum, Blitman & King Due to a regulatory safe harbor created by the Department of Labor in 2008, the use of target date funds (TDFs) has become commonplace in Section 401(k) plans and other defined contribution pension plans that allow participants to direct their own investments. Further, in most [...]

By Frank C. Razzano, Jeremy D. Frey, and John C. Snodgrass, Pepper Hamilton LLP In Kiobel v. Royal Dutch Petroleum Co.,1 the U.S. Supreme Court held that the presumption against extraterritoriality applies to claims under the Alien Tort Statute (“ATS”).2 Consequently, there is no federal court jurisdiction under the ATS for torts in violation of the law of nations that [...]

Courts evaluating board of director decisions concerning strategic transactions, including the proposed sale of public companies, frequently are asked to determine whether a financial advisor had any improper incentives that may have tainted the transaction process. This article briefly surveys how various courts have evaluated allegations of financial advisor conflicts of interest arising from contingent fees and investments.

Patent portfolios provide value to a company in many ways. They can protect products from others who might infringe and help maintain market share. They can serve as defensive tools and provide leverage in negotiations. They can become sources of revenue through license or sale.

We have talked about committees in the past, but this month I want to talk about creating committees in addition to the official committees appointed in Chapter 9 and 11 cases. When is an additional committee appropriate? What problems are created with another committee? How might those problems be addressed?

You have set out on the path to becoming a rainmaker. Perhaps you have originated some business on your own. It may even be that your firm has wisely made an exception to its standards for engagement scope or fee in order to encourage your efforts. In short, you have some success under your belt. Now, where do you go from here?

The phone in your office rings—the principals of a longtime client tell you that they are ready to sell their business.

You have worked with this particular longtime client over the years as it has grown from a small start-up to a global business with operations in several different countries, including the United States, several countries in Europe, and several countries in Asia. Your longtime client’s principals explain that none of the next generation wants to continue in the family business and it is time to sell.