LEGAL
The Insider: The search for the perfect arbitration clause
If you have ever been involved in civil litigation in the U.S. as an in-house lawyer, you know that it is expensive, intrusive, slow, and often leads to unsatisfactory results, including lack of confidentiality and, sometimes, punitive damages. While some of this is unique to the U.S. system, these same issues are creeping into the litigation process in other parts of the world, including Europe and parts of Asia. For the past 15 years or so, many practitioners and commentators have touted arbitration as the remedy to the many ills of litigation. Unfortunately, the arbitration process is steadily becoming just as bloated, slow, expensive, and unsatisfying as litigation, leading you to ask, “Why arbitrate at all?”
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In-house counsel’s crucial responsibility for governance counseling
The unprecedented turbulence in the business and financial markets during the early 2000s led to substantial scrutiny of corporate management and the professionals, including in-house attorneys and lawyers from outside law firms, who routinely provide advice and guidance to the chief executive and financial officers of public companies. Scandals and substantial losses by ordinary and institutional investors led to tremendous changes in the regulatory environment for corporations. This article discusses some of the notable consequences of these regulatory changes in the area of corporate governance.
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What do you know about your corporate records?
One of the often overlooked and ignored activities of corporate counsel is paying attention to and dealing with the information and knowledge contained in corporate records. This is an area of significant potential legal liability for corporations and their leaders that is frequently not even recognized for its potential trouble.
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Seventh Circuit’s Epic ruling marks a dramatic shift in employee arbitration clauses
A recent ruling from the Seventh Circuit Court of Appeals tackles two hot-button statutory subjects: the National Labor Relations Act (NLRA) and the Federal Arbitration Act (FAA). Of course, according to the opinion by Chief Judge Diane Wood, the FAA likely shouldn’t have had anything to do with the case. The case is Lewis v. Epic Systems Corporation, and it marks a major victory for workers’ rights in the Seventh Circuit.
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Beyond compliance: How third-party risk adds new meaning to “the company you keep”
As corporations of all sizes expand internationally, their supply chains are becoming increasingly complex and geographically diverse. At the same time, the regulatory environment becomes more challenging. This combination of factors creates a major new set of risks that many corporations have only limited ability to monitor and manage. Organizations today are being held responsible not only for their own activities but also for the actions of customers, suppliers, vendors, and partners.
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Robust antitrust enforcement; Proposed amendments to the DGCL; Use of statistical evidence to establish class-wide liability
What you should be aware of now that vigorous DOJ and FTC antitrust enforcement is likely to continue for the foreseeable future; plus, the proposed amendments to the Delaware General Corporation Law; and defendants in putative class actions may need to reevaluate how they challenge the use of statistical evidence at the class-certification stage.
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Top 10 tips for building a document retention policy
Proliferating data coupled with the newly revised U.S. Federal Rules of Civil Procedure Rule 37 on spoliation amplifies the importance of a clearly defined and enforced document retention policy (DRP). A DRP equips legal organizations with standardized procedures for reviewing, retaining, and destroying documents possessed by or created in the course of business. A prudent DRP that is enforced and followed by employees may be a lifesaver in the event of burdensome litigation.
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