Practitioner Contributions

By Joseph R. Magnas, Morrison & Foerster LLP A “shell merger” or “reverse merger” generally refers to the merger of a private operating company into a public shell company with few or no assets. For accounting purposes, the shell must only have nominal assets. A reverse merger with a shell is generally structured so that, [...]

Just three months after the Supreme Court’s decision in CIGNA Corporation v. Amara, 131 S. Ct. 1866 (U.S. 2011), the Tenth Circuit issued an opinion inTomlinson v. El Paso Corp., No. 10-CV-1385, 2011 BL 208212 (10th Cir. Aug. 11, 2011), which addresses the disclosure issues under ERISA §§ 102 and 204(h), 29 U.S.C. §§ 1022 and 1054(h), that arise when employers convert traditional defined benefit plans to cash balance plans. Importantly, the Tenth Circuit held that ERISA does not require notification of wear-away periods so long as employees are informed and forewarned of plan changes. The Court also held, consistent with Amara, that a plaintiff seeking injunctive relief under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), with respect to a SPD disclosure violation need not prove that he detrimentally relied upon the defective SPD, but instead must show actual harm caused by an ERISA violation.

In Barclays Capital Inc. v. Theflyonthewall.com, Inc., the Southern District of New York ruled that Theflyonthewall’s use of stock recommendations developed by a number of financial institutions constituted “hot news” misappropriation under New York Law and issued an injunction against Theflyonthewall. The Second Circuit Court of Appeals, on June 20, 2011, reversed the district court, ruling that the claim for hot news misappropriation is preempted by the Copyright Act.1 On August 8, 2011, the Second Circuit denied the plaintiff’s petition for a rehearing en banc. Here is the case in a nutshell, with the question remaining as to whether a petition for certiorari will be filed.

Congress has empowered civil lawyers with the ability to file lawsuits against anyone who knowingly provides material support to foreign terrorist organizations. The Antiterrorism Act of 1991 (ATA), which provides a civil cause of action for victims of terrorism, is therefore an important tool to hit terrorists where it hurts — in their pocketbooks.

By Alasdair Steele, Nabarro LLP The Code Committee of the Panel on Takeovers and Mergers has been consulting on proposed changes to the UK City Code on Takeovers and Mergers (City Code) for just over a year. The consultation and resultant changes largely arose following the outcry after Kraft’s takeover of Cadbury and particularly the [...]

The highly-charged scene in which an employee quits and storms out of the office may make for good television, but in reality, an employee’s resignation is often more subtle (and more troublesome). The nuances of a resignation and the circumstances surrounding it become particularly important in situations involving high ranking executives, who may have complicated employment agreements and compensation arrangements that condition large amounts of compensation –and other post termination obligations—on whether the executive simply “resigns” and “walks away” or instead had “good reason” to resign or was terminated by the employer without cause.

In 1977 the U.S. Congress passed the Foreign Corrupt Practices Act (FCPA) to combat the bribery that was endemic in American businesses’ dealings abroad and had been revealed incidentally by the Watergate investigation. Since that time, a substantial transnational legal regime has arisen to prosecute companies and their employees for bribing officials of foreign governments and, more recently, for bribing private commercial parties.

How can I maximize my chances of becoming a partner at a national law firm? Where should I attend law school? If I’m already a student, where can I expect to have my best shot at national law firm partnership? For many years now, law students have been forced to rely on either the U.S. News rankings or anecdote and opinion to answer this kind of question. U.S. News tells us how selective schools are and what kinds of resources they provide (faculty/student ratios, expenditures/student, library books). But it tells us precious little about outcomes – about how students who attend this school or that ultimately do.

On June 9, 2011, the U.S. Supreme Court issued its decision in Microsoft v. i4i Limited Partnership,1 holding that the Patent Act requires the defense of patent invalidity to be proved by clear and convincing evidence. The decision marked the Supreme Court’s third affirmance of the U.S. Court of Appeals for the Federal Circuit in the three patent cases heard this term. The other cases also touched on questions of interpretations of statutes governing patents. In Stanford v. Roche,2 the Supreme Court ruled that the Bayh-Dole Act, which governs control of intellectual property developed in connection with federally funded research, does not automatically vest title to an invention with the federal contractor. And, in Global-Tech Appliances v. SEB S.A.,3 the Court clarified the proper legal test governing claims for induced infringement under Section 271(b) of the Patent Act.

When Congress returns from recess after Labor Day, patent reform will be in the spotlight. The Senate is scheduled to vote on the “Leahy-Smith America Invents Act,” which would make significant changes to substantive patent law, procedures for challenging issued patents, and Patent Office funding. If enacted, many changes will take place immediately. Others will be phased in over 18 months. All will affect company decision-making and budgeting for patent procurement, licensing, and enforcement.

By Natalie Roberts, Lawrence Graham LLP The Bribery Act 2010 has been hailed as the biggest overhaul of Britain’s bribery laws in more than a century and brings the UK’s anti-corruption laws into line with North America and Europe. Big businesses with multiple offices and international operations are most at risk in areas such as [...]

The recent financial crisis and the failures of Bear Stearns in March 2008 and AIG and Lehman Brothers in September 2008 have focused regulators’ interest on over-the-counter (OTC) derivatives. Particular attention has been given to the deficiencies in OTC derivatives markets regarding the way in which counterparty credit risk is managed1 and the lack of transparency which the European Commission believes may lead to a lack of liquidity and, potentially, limit regulators’ ability to monitor risks in those markets.2

This month it’s time to talk about 11 U.S.C. § 105(a) of the Bankruptcy Code. I’ve postponed doing this because § 105(a) is all too often seen by attorneys as authority for the court to do . . . anything. I get motions seeking to sell property by authority of 11 U.S.C. § 363(b) . . . and § 105(a); or to reject a contract by authority of 11 U.S.C. § 365(a) . . . and § 105(a) – even though the former sections are quite sufficient for the movant’s purpose without resort to whatever muscle § 105(a) may have. Worse, I get parties asking for relief I can’t grant – for example, requiring a party to sell to the chapter 11 debtor in possession or granting blanket authority to pay prepetition debt, with only § 105(a) cited as authority.

By Robert H. Resis, Banner & Witcoff, Ltd. There are two primary ways to protect proprietary technology — patents and trade secrets. Trying to patent a technological advancement while keeping another technological advancement as a trade secret can lead to the loss of both patent and trade secret protection. This was the outcome in a recent [...]

It is well settled for over a century that a shareholder or equity holder must not receive any payment or other form of profits until a business’s debts are paid.1 This theory came in response to the actions taken by senior creditors and shareholders looking to reorganize a failed business.2 Senior creditors would entice shareholders to supply new capital to a floundering business by providing the shareholders with a stake in the newly formed business.3 However, subordinated debt holders would often be left with nothing, despite the fact that their debt was clearly superior to any equity position held by the shareholders.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), signed into law on 21 July 2010, contains provisions designed to encourage whistleblowers to report violations of U.S. federal securities laws. Whistleblowers can obtain promised monetary awards and are protected from retaliation for providing information that leads to a recovery of more than $1 million in an enforcement action by the U.S. Securities and Exchange Commission (SEC).1 The final rules adopted by the SEC (Rules) became effective on 12 August 2011. Despite requests for the rules to require whistleblowers to report through internal compliance processes as a prerequisite to eligibility for an award, the SEC decided not to do so. This potentially undercuts internal whistleblower programmes that public companies have had in place for nearly nine years under the Sarbanes-Oxley Act of 2010 (SOX).

The Medicare Evidence Development & Coverage Advisory Committee (MEDCAC) has a significant role in determining Medicare coverage policies. This advisory body works with the Centers for Medicare & Medicaid Services (CMS) to determine whether new treatments and technologies are effective and whether they should be paid for by Medicare. The recommendations of this body can be very important for private insurance coverage as well, because many private payers take their cues from Medicare regarding coverage and reimbursement.

The takeover of Cadbury Plc by Kraft Foods Inc. in early 2010 prompted widespread public discussion about the regulation of UK takeovers. Concern was expressed that it was too easy for a hostile offeror to obtain control of an offeree company and that the outcomes of takeovers, particularly hostile offers, were unduly influenced by the actions of short-term investors.

Any responsible corporate official (RCO) in an industry subject to the federal Food, Drug, and Cosmetic Act (FDCA) and related regulations can be ensnared in a criminal investigation of manufacturing safety practices, mislabeling, misbranding, adulteration, or advertising and promotion of products, and convicted of related crimes based solely on strict liability grounds.1 As a result, it is no longer sufficient for an RCO to rely on what is generally considered an effective compliance program that may on occasion fail; an RCO is an insurer of corporate compliance and must make sure that corporate operations are nearly perfect on almost all occasions. Once convicted of a strict liability crime, an RCO could receive a career death sentence by being excluded from federal and state health care programs for up to twenty years.2

Your success and happiness as an attorney may have less to do with your legal abilities than with your thoughtful choice of a firm that fits you culturally. People want to be around others they’re in sync with, and when that happens, everyone benefits.