The law of insider trading has long been criticized as lacking clear standards for what constitutes a violation. Unlike many aspects of federal securities regulations, insider trading is not defined by statute or regulation. Instead, the contours of this complex area have for decades been drawn by shifting and sometimes conflicting judicial interpretations of the anti-fraud provisions of the Securities Exchange Act of 1934 and related rules.
In May, Congress took a big step toward clarifying this area of the law, when the Financial Services Committee of the U.S. House of Representatives unanimously approved the Insider Trading Prohibition Act. If the bill becomes law, it would simplify an inherently complex area, but might also lead to regulators and prosecutors bringing more insider trading cases.
L’actualité sociale du premier semestre 2019 a été marquée par l’entrée en vigueur de l’index de l’égalité femmes-hommes ainsi que par l’adoption, le 11 avril dernier, de la loi (ou plan d’action) pour la « croissance et la transformation des entreprises » dite « loi Pacte ». Nous vous proposons, dans cette newsletter, d’analyser les principales mesures de ces nouveaux dispositifs, sans oublier notre revue de jurisprudence.
Lawrence T Gresser and Marvin J Lowenthal highlight the ways in which artificial intelligence may affect the law firms of the future in their most recent article for the New York Law Journal.
C Evan Stewart examines the U.S. Supreme Court decisions in the Gold Clause cases of the 1930s in his latest Legal History column for the Federal Bar Council Quarterly.
Miriam González Durántez writes article for the Financial Times about the upcoming Spanish election.
Ronald F Wick discusses the implications of the Federal Trade Commission's plans to create a new task force focused on monitoring competition in U.S. technology markets in his latest C&G Client Alert.
Miriam González and John W Gibson discuss the deal and no-deal implications for finance and sanctions following a “Brexit” in The Law Society Gazette.
John W Gibson, Miriam González Durántez, and Robert Hammond discuss the parallels between the early enforcement of the Bribery Act 2010 and the U.K. Office of Financial Sanctions Implementation's first monetary penalty.
Miriam González Durántez and Jeffrey M Bronheim discuss current Brexit developments in their latest C&G Client Alert.
Miriam González examines U.K. trade deals following a "Brexit" in her latest C&G Client Alert.
Partner C Evan Stewart explores the ethical and legal questions that have challenged attorney-client privilege throughout the years.
Reprinted with permission from: NY Business Law Journal, Winter 2018, Vol. 22, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.
Partner C Evan Stewart examines Lorenzo v. S.E.C. in his latest article for the New York Law Journal.
Jeffrey M Bronheim, John W Gibson, and Rob Hammond discuss the implications of the Financial Conduct Authority’s decision to review hedge fund polling data use in their latest C&G Client Alert.
Jonathan S Abernethy, S Gale Dick, and Christian R Everdell authored an article titled “The Department of Justice’s new ‘piling on’ policy” for the International Bar Association’s October 2018 Criminal Law and Business Crime Newsletter.
This article first appeared on the website of the Criminal Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
C Evan Stewart examines the legal questions around Chappaquiddick in his latest Legal History column for the Federal Bar Council Quarterly.
Paris partner Loïc Henriot and associate Magalie Jullien review the new French law regarding the protection of trade secrets in their latest C&G Client Alert:
On July 30, 2018, the French law n°2018-670 regarding the protection of trade secrets (the “Law”), implementing the Directive 2016/943 (the “European Directive”), was promulgated after being examined by the French Constitutional Council (Conseil constitutionnel). Read more.
In his latest article for the NY Business Law Journal, partner C Evan Stewart explores attorney work product doctrine.
This article appeared in NY Business Law Journal, Summer 2018, Vol. 22, No. 1, published by the New York State Bar Association, One Elk Street, Albany, New York 12207.
Partner Bonnie J Roe explores how Regulation A may be the best alternative for conducting an Initial Coin Offering in her latest article for Bloomberg BNA.
Christian Everdell analyzes the potential implications on the regulation of cryptocurrency as a result of Ryan Coffey v. Ripple Labs, Inc. in his latest article for Law360.
Mark S Cohen explores the international regulatory landscape in an article titled, "Managing the Risks of Cross-Border Investigations for Israeli Businesses," published in the Israel Desks Guide from Nishlis Legal Marketing.
In this article, Paris office attorneys Angéline Duffour and Elise Farcy discuss the main changes brought by Macron’s decrees on staff representatives.
Dans cet article, Angéline Duffour et Elise Farcy, avocats au sein du bureau de Paris de Cohen & Gresser, analysent les principaux changements apportés par les ordonnances Macron en matière de représentation du personnel.
In the latest edition of the Federal Bar Council Quarterly, C Evan Stewart explores William Rehnquist's rise to Chief Justice.
Muriel Goldberg-Darmon speaks to L’Agefi regarding Activism in France.
Muriel Goldberg-Darmon spoke to Le Magazine Décideurs regarding Activist Investment Funds.
C Evan Stewart explores Buck v. Bell in his latest for the Federal Bar Council Quarterly.
Christian R Everdell continues his examination of SEC enforcement actions regarding Initial Coin Offerings in an article published by the New York Law Journal, this time analyzing the SEC’s response to RECoin, PlexCoin, and Munchee.
C&G partner Bonnie J Roe discusses the SEC’s response to the Tax Cuts and Jobs Act and its impact on public company reporting in this C&G Alert.
In July 2017, a United States appeals court threw out the convictions of two men charged with Libor manipulation, because key evidence was derived from testimony that had been compelled in the United Kingdom, in violation of their rights under the US Constitution, with potentially broad implications for furture cross-border investigations. The Court of Appeals for the Second Circuit in New York ruled in US v Allen that the Fifth Amendment priviledge against self-incrimination extends to testimony compelled by other soverign governments. This article exmines the Allen ruling and its likely implications.
Part two in C Evan Stewart's discussion of the ethical rules governing English lawyers in reference to why they are not allowed to prepare witnesses for their upcoming experience in the courtroom.
In this article, Paris office attorneys Angéline Duffour and Elise Farcy discuss the new “collective mutual termination” created by Macron’s decrees and its differences with the voluntary departure plan.
Dans cet article, Angéline Duffour et Elise Farcy, avocats au sein du bureau de Paris de Cohen & Gresser, analysent le nouveau dispositif de rupture conventionnelle collective, créé par les ordonnances Macron et le comparent avec le plan de départ volontaire autonome.
Bonnie J Roe is the author of the chapter on securities law opinions in this annually updated treatise on legal opinions, edited by M. John Sterba, Jr.
C&G partner C Evan Stewart discusses the impact of Buckley v. Valeo on campaign finance in his latest article for the Federal Bar Council Quarterly.
C&G partner Melissa H Maxman discussed alternative dispute resolution in the U.S. for Financier Worldwide’s global Annual Review on the topic.
With Halloween and Thanksgiving, thoughts naturally turn to year-end reporting obligations. C&G partner Bonnie J Roe summarizes of some changes in reporting requirements that will affect U.S. public companies in the coming year, as well as legislative and regulatory proposals for change and other considerations.
C&G partner C Evan Stewart examines how an 1879 Connecticut law influenced a number of consequential Supreme Court decisions.
Muriel Goldberg-Darmon speaks to Le Revenu regarding a potential tender offer by Vivendi on Ubisoft. She analyses the consequences of the obtention by Vivendi of double voting rights.
Even start-ups are being disrupted! In this article, C&G counsel Christian Everdell examines the SEC’s role in regulating Initial Coin Offerings.
Announced by Emmanuel Macron during his electoral campaign, the bill authorising the government to pass laws by ordonnance (decree), i.e. without a parliamentary debate, in order to improve social dialogue - adopted by the French Senate on 2 August - is the first part of the programme the government wants to propose to employer organizations and trade unions. According to the official timetable, three decrees are expected to be published between now and 21 September 2017.
C&G partner C Evan Stewart explores the contentious battle over the seat of Justice Henry Baldwin.
The status of ex-employees vis-a-vis the corporate attorney-client privilege is misunderstood by many lawyers and judges. As set forth in Mr. Stewart's article, there are, in fact, four different approaches to this issue at present. Can they all be right?
Le Figaro interviewed Angéline Duffour about Macron's campaign promises of creating a unique maternity leave for all women, independently of their status (employee, independent worker, etc.).
Mr. Stewart's article delves into complications surrounding inadvertent disclosure and previous answers to some of the most pressing questions posed by this vexing subject matter.
Anna Milleret-Godet speaks to L’Express about a reform proposed by one of the candidates in the French presidential election, concerning consequences of an unfair dismissal.
Recently, legitimate businesses have begun to recognize the potential value of distributed ledger technology as a stand-alone technological innovation with numerous beneficial uses, including, among other things, preventing money laundering. In this article, Christian Everdell examines some of the potential beneficial uses of Blockchain technology to prevent crime.
In this article, C&G Partner Franck Le Mentec discusses the 2016 fiscal year for the United Kingdom, with particular focus on the strengthening of measures to increase investment attractiveness, the introduction of new anti avoidance measures, the conclusion of new tax treaties, the jurisprudential reconsideration of management packages, and the impacts of Brexit on taxation in both the United Kingdom and partner countries.
*Article is in French
With the growing trend toward legalization of marijuana for both medical and recreational purposes, New York companies should carefully evaluate their workplace policies to adhere to the latest legal developments impacting employees.
In this article, Alexandra Wald comes to the defense of the judiciary following a slew of problematic comments said and tweeted by the current President.
Herewith is the fourth installment of terrible Supreme Court jurisprudence, as explored and explained by Mr. Stewart.
Angéline Duffour spoke to Le Figaro about the employer’s yearly obligation to declare employees. She discussed company internal risk factors in light of sanctions for failure to comply.
*Article is in French
C&G Partner Franck Le Mentec authored the chapter “The Concept of Excess in Tax Law,” in the recent edition of Les Mélanges juridiques dedicated to the University of Rennes Professor Henri Hovasse.
Courts, unfortunately, often err when ruling on matters relating to the attorney-client privilege. As set forth in Mr. Stewart's article, the New York Court of Appeals recently stepped in it when it addressed the "common interest" privilege in Ambac Assurance Corp. v. Countrywide Home Loans
In this article, Paris office attorneys Angéline Duffour and Hélène Berion discuss from an Employment law perspective the key issues and new obligations of the recently adopted Lapin II legislation in France regarding transparency and anti-corruption, with particular regard to the new status of alerts launchers.
*Article is in French
C&G Partner Franck Le Mentec has co-authored La construction européenne en droit des affaires: acquis et perspectives (The Integration of European Business Law: Policy and Practice). With a preface by former French President Valéry Giscard d’Estaing, the study examines existing EU law in the realm of business, and discusses possible areas for expanded integration.
Herewith is the third installment of terrible Supreme Court jurisprudence, as explored and explained by Mr. Stewart.
Muriel Goldberg-Darmon speaks to Le Revenu regarding the tender offer launched by Altice on SFR Group. She analyses the reasons for the rejection by the AMF of such offer.
Originally appeared in the Intellectual Property ALM Special Supplement
The ethical rule on what lawyers are supposed to do when they come into possession of materials inadvertently delivered by an opposing party purports to be crystal clear. Unfortunately, it is not. As set forth in Mr Stewart's article, lawyers need to be very careful when dealing with the subject.
The Supreme Court's infallibility takes another hit in Mr. Stewart's latest article for the Federal Bar Council Quarterly, where he recounts the sorry decision in which the Court expressly affirmed racial segregation.
Dernière ligne droite avant la fin du quinquennat de François Hollande et période législative intense en raison des divers projets de loi en cours. Nous vous proposons, dans cette Newsletter, de revenir sur les textes les plus récents, à savoir les décrets d'application de la loi Rebsamen, le très controversé projet de loi Travail (dite loi El Khomri) ainsi que le projet de loi Sapin II dont l'impact en droit social ne devra pas être négligé. De son côté, l'actualité jurisprudentielle est marquée par un certain assouplissement en faveur des employeurs.
C&G Partner Franck Le Mentec authored "Notion de siège de direction: une décision insatisfaisante" (The Notion of Effective Place of Management: An Unsatisfactory Decision) for edition n. 20 of Revue de Droit Fiscal (Tax Law Review) on recent jurisprudence regarding corporate tax based on effective headquarters and permanent establishment in France.
Recently, President Obama signed into law the Defend Trade Secrets Act ("DTSA"). Under the DTSA, an owner of a misappropriated trade secret may bring a federal civil action if the trade secret is "related to a product or service used in, or intended for use in, interstate or foreign commerce." There are many aspects of this new law of which businesses should be aware, but three are worth special attention. Click 'view' to read more.
In this article, Paris partner Franck Le Mentec discusses the important aspects of tax law in the context of sports, citing two recent French case laws.
*Note: Article in French
This article addresses the existing Fair Labor Standards Act and the June 2015 proposed amendments to the Act concerning the “white collar” exemptions under the FLSA including increased salary and compensation thresholds. These proposed revisions to the FLSA could impact nearly 5 million white collar workers within the first year of implementation.
Perhaps many lawyers believe that the U.S. Supreme Court does not always get it right. But in his most recent article for the Federal Bar Council Quarterly, Mr. Stewart makes out the case for the worst Supreme Court decision, ever!
In this article, Paris partner Angéline Duffour discusses the potential impact and limitations of the new proposed law redefining the legal framework for economic dismissals and allowing for more flexibility in employment relationships.
In this article, Anna Milleret-Godet speaks to French publication Les Echos about a recent decision by the European Court of Human Rights, in line with the French Supreme Court, which allows an employer to monitor an employee’s private use of professional messaging tools.
On October 6, 2015, the European Court of Justice (CJEU) invalidated the Safe Harbor framework between the United States and the European Union, putting at risk the legality of trans-Atlantic data transfers. Businesses and policy makers questioned how-and whether-"Safe Harbor 2.0" would be successfully negotiated. This article discusses the new framework known as the EU-U.S. Privacy Shield (the "Privacy Shield"), which was announced on February 2, 2016.
In this article, Paris office attorneys Angéline Duffour and Anna Milleret-Godet discuss the key issues and potential impact of internal audits/reviews that can be mandated by US legislation, including data and information sharing issues.
*Article is in French
For 26 years the author has been writing about the eroding status of the attorney-client privilege and the fact that litigating privilege issues can be a very tricky business. Unfortunately, as this article makes clear, two recent (and wrongly-decided) decisions of the D.C. Circuit—in the same litigation—make these regrettable states of affairs all too true.
“Closing Argument: Suggestions for Effective Advocacy,” Hon. Raymond J. Dearie, David R. Marriott, and David Lisner
Earlier this week, on December 15, 2015, EU officials approved the text of new data privacy regulations after nearly four years of discussions. The EU-wide bill, which will supersede what is now known as the EU Data Protection Directive, is intended to unify the patchwork of 28 national privacy laws, and bring the rules up to date for the digital age. This article discusses the highlights and implications of the bill.
Newly revised Regulation A, dubbed Regulation A+, is designed to help smaller companies raise funds in public markets. This articles explores some opportunities offered by this regulatory innovation.
The recently enacted “FAST Act” includes some changes to the securities laws for both public and private companies. The measures were added to the back of the Fixing America’s Surface Transportation Act, which President Obama signed into law on December 4, 2015.
C&G Partner Franck Le Mentec co-authored "FACTA: en sursis?" ("FACTA: On Borrowed Time?"), for edition n. 49 of Revue de Droit Fiscal (Tax Law Review) regarding the Foreign Account Tax Compliance Act (FACTA) and its role in global efforts to combat tax evasion.
Would the course of American History have been different if Lyndon Johnson had been told the truth about the Cuban Missile Crisis? In his most recent article for the Federal Bar Council Quarterly, Mr. Stewart explores this little known episode and its consequences for our country's involvement in the Big Muddy (i.e., Vietnam).
*Article is written in French
*Article is written in French
ILITA (Israeli Law Information and Technology Agency), which sits within the Israeli Ministry of Justice, has announced that companies and other entities can no longer rely on the EU’s “Safe Harbor” framework as a basis for transferring personal data from Israel to the United States. This article discusses the far-reaching implications of the Schrems and ILITA decisions.
Revelers can celebrate royalty-free, at least for now. Warner/Chappell never owned the rights to the “Happy Birthday” lyrics, district court judge says.
L'actualité de cette rentrée 2015 est marquée par la volonté affirmée du gouvernement de rénover le droit du travail avec notamment l'entrée en vigueur des lois « Macron » et « Rebsamen » ainsi que la remise du rapport de Jean-Denis Combrexelle, dont vous trouverez ci-après les principales dispositions (page 2 à 7). Par ailleurs, nous avons souhaité vous présenter un récent arrêt du 6 octobre 2015 de la Cour Européenne de Justice sur le Safe Harbor, qui devrait avoir un impact important en matière sociale et qui a retenu toute notre attention (pages 1 à 2).
Earlier this week, the European Court of Justice (CJEU) invalidated the Safe Harbor framework between the United States and the European Union -- effective immediately. This alert offers insight into this decision and how it will significantly disrupt the flow of data from Europe to the U.S. and have a major impact on U.S.-EU trade.
Note: Article is in French
Lawyers who represent public companies are faced with a problem about which most are clueless. In a number of states (including New York), lawyers’ confidentiality obligations are at odds with the requirements mandated by the U.S. Securities and Exchange Commission. Is there a way out of this conundrum? Mr. Stewart attempts to get to the bottom of this matter in his latest article in the New York Law Journal.
Effective September 12, 2015, the minimum number of shareholders in a French stock corporation (société anonyme or SA) has been reduced from seven to two. This modification is only applicable to privately held SAs, publicly traded SAs still being subject to the seven shareholder obligation. Read more
Buying a pig In a poke is never a good idea. In this article, Mr. Stewart warns about two situations where this maxim applies. The first concerns making threats of criminal or regulatory action to gain an advantage in civil litigation; lawyers who believe there is a simple straightforward answer to deal with such a situation will be surprised. The second concerns attempts to restrict a lawyer's future conduct through the settlement of a matter; again, those who believe that there is a consensus view on this subject are in for a surprise.
Who bears the cost of a lost or stolen ring after a broken engagement?
The past few months have shed some light on the Patent Trial and Appeal Board’s approach to estoppel in post-grant proceedings, which applies to final written decisions on a claim-by-claim basis. Moreover, estoppel applies not only when a petitioner, or a real party in interest or privy of the petitioner, raised the arguments in a prior IPR or PGR proceeding, but also when he/she “reasonably could have raised” them.
Inter partes reviews (“IPRs”) are a cheaper and faster alternative to patent litigation, instituted in 2012 by the America Invents Act. IPRs allow parties to challenge the validity of patents in the U.S. Patent and Trademark Office (“USPTO”), rather than in federal courts. This article discusses the lessons learned from the recent Microsoft v. Proxyconn IPR hearing.
A client alert addressing recent changes to French employment law.
Over the past few years, forum selection bylaws have become an established part of corporate governance. This trend has gained momentum during the past few months as such provisions have gained both judicial and legislative support. On the judicial side, most courts have enforced such bylaws. And, on the legislative side, recent amendments to Delaware law now provide statutory support for some uses of forum selection bylaws. This update provides more detail on these key developments and explores how companies should think about forum selection bylaws going forward.
Two hot topics in client conflicts have been client affiliate conflicts and advance conflict waivers. A recent decision in the Western District of Pennsylvania addressed the intersection of these two topics using a novel approach, construing a law firm’s advance waiver provision as an agreement that created client conflicts that would not otherwise exist. This article discusses the decision and provides suggestions on how law firms can insulate themselves from suffering similar unintended results.
After clearing a last minute hurdle, Regulation A+ became effective on June 19, 2015. The new SEC regulation is designed to facilitate a mini-IPO market for U.S. and Canadian companies that are not yet ready to do a full registered offering. On June 16, 2015, the SEC refused to stay the implementation of the regulation during the pendency of litigation in the U.S. Court of Appeals for the D.C. Circuit, where the Montana state auditor and commissioner of Securities and Insurance, together with the Massachusetts Secretary of the Commonwealth, seek to challenge the new rule’s preemption of state securities laws for certain offerings.
Under French law, a company's manager can be a legal representative (corporate officer) of the French entity and/or an employee of the French entity. The most appropriate status will depend on the company’s needs and the candidate’s expectations, and either designation will impact the determination of the law applicable to the relationship, the obligations and responsibilities of the manager, and his social security status. This article addresses this new legislation and how it can affect companies and managers.
Cohen & Gresser opened its Seoul office in the early stage of the opening of Korea’s legal market in September of 2012, becoming the third U.S. law firm (and the fourth among the U.S. and Europe-based law firms) approved by the Korean Ministry of Justice. As of now, more than 20 foreign law firms have opened offices in Seoul. Although it is hard to gauge other foreign law firms’ success, Cohen & Gresser has been outperforming in Korea. In this article, S.C. Sohn, the Managing Partner of C&G's Seoul office, shares the highlights and lessons from the past four very successful years.
Paris partner Angéline Duffour speaks to L’Express about the possibility of capping the compensation paid by the employer in a PME when the employee is dismissed without cause; the government has announced it was open to this idea during the “Conference sociale sur l’emploi dans les TPE et PME” on June 1, 2015.
Ce printemps 2015 est riche en propositions de réforme ! En effet, le Gouvernement ne cesse de présenter des projets de loi qui, s'ils étaient adoptés, pourraient bien bouleverser le droit du travail français. Parmi ceux-ci, le projet de loi Macron sur la croissance, l'activité et l'égalité des chances économiques et le projet de loi Rebsamen relatif au dialogue social sont particulièrement intéressants. Vous trouverez ci-après le décryptage de ces deux projets de réforme d'envergure.
Clement Vallandingham is a figure lost to history. Known to but a handful of American Historians, Vallandingham was a pivotal figure in the country’s political life up to and including the Civil War era. He also was a party in one of the Supreme Court’s Civil War jurisprudence. And finally, readers will be interested in the manner in which he concluded his career as a lawyer.
In this article*, Paris Partner Angéline Duffour discusses recent French legislation known as Bill Rebsamen which aims to focus on the social dialogue with the representative bodies in France in order to facilitate discussions and exchanges between the employers and the employees. The author also highlights the potential for significant changes to French labor law as a direct result of this new bill.
*Article is in French
A prominent law firm is retained by a corporation to defend a sexual/employment discrimination claim. The law firm then contacts employees with first-hand knowledge of the facts. Assuring these individuals that it sees no conflict of interest, the law firm offers to represent them at the corporation's expense, which the individuals agree to. Plaintiff's counsel discovers this multi-representation arrangement and moves to disqualify the law firm for purported ethical violations. Could the law firm's actions possibly violate the "non-solicitation" rule? Read this article to find out.
This article addresses one aspect of the United States’ multi-faceted campaign to recover income taxes and penalties on undisclosed offshore accounts – the U.S. Department of Justice’sinvestigation and criminal prosecution of foreign banks that are alleged to have opened and maintained accounts for U.S. taxpayers. The Department of Justice has argued that by enabling U.S taxpayers to open and maintain accounts that the taxpayers did not report to the Internal Revenue Service, the banks participated in efforts to defraud the United States of taxes owed on the accounts. The authors examine in particular the impact of the Department of Justice’s Program for Swiss Banks, a voluntary disclosure program negotiated with the Swiss government in which about 100 Swiss banks registered to participate, the extraordinary information being collected, and assess other countries that may become the next focus of investigation.
Viewed as a good way to create jobs for some, but the cause of all evils for many others, the 35-hour workweek has been one of the most heated debates in France for the past 15 years. In this article, employment lawyers Angéline Duffour and Anna Milleret-Godet challenge the current backlash against the measure and bring a new perspective on the issue by highlighting a series of strategies to manage the impact of the 15-year old legislation.
Note: Article is written in French
Many lawyers and judges misunderstand and misapply the attorney-client privilege and work product doctrine. In his most recent New York Law Journal column, Mr. Stewart applauds the recent decision of Judge Moskowitz , in which she correctly ruled that the common interest privilege applies irrespective of the anticipation of litigation.
Recent developments in insider trading cases have shown the limitations on prosecutions and Securities and Exchange Commission (SEC) enforcement actions, particulalry those involving chains of tippers and tippees charged with receiving and trading on material, non-public information. This article addresses how recent trial and appellate outcomes highlight limitations for insider trading cases and will suggest some resulting practice implications.
Paris partners Johannes Jonas and Angéline Duffour speak to French news website, www.Finyear.com, about major employment, commercial law and tax obstacles to foreign investment in France and the attempts made by the French government to address the issues.
Paris M&A partner Johannes Jonas is interviewed about major employment, commercial law, and tax obstacles to foreign investment in France, and about attempts by the French government to address the issues.
This article is an analysis of the use of social media in the hiring process the EEOC release, and employment discrimination concerns.
On February 10th, 2015, the French Supreme Court officially acknowledged the right for the employers to prove a breach of confidentiality obligation through SMS messages sent and received on an empoyees' professional mobile device, except if the SMS starts with the words “private” or "confidential". C&G Partner and employment law specialist, Angéline Duffour discusses this recent legislation with Le Point and Affiches Parisiennes. Click on either publication to read full article.
This article addresses Amazon’s recent launch of Amazon Giveaways, a self-service sweepstakes promotion tool that will likely result in thousands of sweepstakes that are subject to an identical set of terms and conditions. The article explains how this flood of sweepstakes is likely to shift perceptions of what constitutes a lawful sweepstakes in the social media age, particularly in terms of acceptable methods of entry, such as requiring participants to follow the sponsor on Twitter.
Cette première newsletter de 2015 est l'occasion de fêter le premier anniversaire du bureau de Paris de Cohen & Gresser! La fin de l'année 2014 et le début de cette année ont été riches en rebondissements jurisprudentiels et législatifs, notamment avec les précisions apportées par le gouvernement sur la loi Hamon (cf. notre alerte du 5 novembre 2014), les discussions passionnées sur le projet de loi Macron et l'entrée en vigueur de la loi de financement pour la Sécurité sociale (LFSS) pour 2015.
Little remembered today (except perhaps for a famous picture of Harry Truman holding up a 1948 newspaper headline), Thomas E. Dewey was one of the most important and prominent public figures of the 20th century. Mr. Stewart’s article focuses on Dewey’s legal career before he became Governor of New York State and almost President of the United States. As detailed in the article, Dewey’s work in the 1930s to fight corruption and illegality was unprecedented, and the young legal careers he mentored was equally impressive.
This article will address not only the changes to the EEOC guidelines but the holding of the 4th Circuit in Young v. United Parcel Service, Inc., the case the Supreme Court agreed on July 1 to hear during its next term. The article also focusses on the rights of pregnant women as a result of the EEOC guidelines, the 4th Circuit case, and the meaning of the Supreme Court’s consideration of this case in the Fall term.
This article addresses the lower courts’ application of the Supreme Court’s recent class action securities decision in Halliburton Co. v. Erica P. John Fund, Inc., 134S.Ct. 2398, 2412 (2014), which permits defendants to rebut fraud-on-the-market reliance at the class certification stage. The article will also seek to provide securities litigators with the lay of the land post-Halliburton.
This article addresses the recent legislation in French employment law which obligates business owners to first propose a business which is for sale to all of their employees before they propose it to a third party.
In this article, Dr. Walia suggests that the Federal Circuit appears to be leaning toword a more flexible approach in terms of pharmaceutical patens, as evidenced in recent decisions.
Obviousness type double patenting (ODP), or non-statutory double patenting, is a judicially created doctrine meant to prevent a party from extending an earlier commonly owned patent’s term by claiming patentably indistinct subject matter through claims in a later patent. An ODP rejection of the second patent application with indistinct patentable claims can be overcome by filing a terminal disclaimer as long as both patents are commonly owned or a joint research agreement exists for both patents.
In this article, Paris partner Angéline Duffour addresses recent legislation in French employment law which obligates business owners to first propose a business which is for sale to all of their employees before they propose it to a third party.
Inter Partes Review (IPR) is conducted at the Patent Trial and Appeal Board (PTAB) to review the patentability of claims only on the basis of anticipation and obviousness based only on patents or printed publications. So far, more than 70 percent of petitions have resulted in instituting of an IPR. This article discusses best practices for petitioning for an IPR and how it can be a very attractive route for potentially invalidating patent claims for generics which do not have the 180-day market exclusivity incentive
The SEC has recently undertaken a review of its principal regulations for periodic reporting by publicly traded companies, in response to claims that the reporting process has become overly burdensome and that investors are blinded by “disclosure overload” that makes it difficult to discern the important facts within a mass of detail. If the regulations were re-written today, they would undoubtedly focus on some different issues. But the key to more effective disclosure lies in better presentation. Companies can (and sometimes do) present information in easy-to-understand formats, and they should be encouraged to do so. In addition, the SEC has a chance to make its website more user-friendly for investors, and it should seize this opportunity to do so.
In Actavis, the Supreme Court declined to hold these agreements presumptively anticompetitive as advocated by the FTC or apply the scope-of-the-patent test, but held that such agreements should be reviewed by the rule-of-reason antitrust standard. This article discusses the implications of this decision.
For almost 25 years the author has been writing about the eroding status of the attorney-client privilege. Practitioners, legal academics, and judges (with a few notable exceptions) seem either not to understand the privilege, or believe that the purposes it serves are overstated or not important. One recent case--which purports to strengthen the privilege--further documents this disheartening state of affairs.
In Hatch-Waxman litigation, the filing of an ANDA seeking approval to market a pharmaceutical product before the expiration of patents covering that product is a technical act of infringement sufficient to establish jurisdiction to resolve the issues of patent infringement and validity in litigation. This article examines the litigation that follows the ANDA filing by considering whether the product that is likely to be sold would infringe the patent.
Technology is at the forefront of helping us understand, track and improve our health, not only for those who are young and fitness obsessed, but for individuals who are combatting and monitoring illnesses, and even for seniors who want to live independently as long as possible. While the two original pieces of “body real estate” focused on health tracking functions were the head and wrist – wearable shirts (or smartwear), that take biometric devices to a new and arguably more fashionable level, have been added to the mix. But is there a price to pay for the benefits of wearable tech? This article discusses the privacy issues and data security concerns surrounding wearable technology, and the steps wearable tech companies must take to succeed and protect their users’ data.
In a further analysis of Judge Rakoff’s multi-year attempts to discourage the SEC from seeking federal courts to put their imprimatur on regulatory settlements, Mr. Stewart questions whether the Second Circuit’s opinion was truly a “loss” for Judge Rakoff; indeed, it would appear that the Judge may well achieve what he wanted in the first place.
Published by Bloomberg BNA, the treatise covers all aspects of the FINRA arbitration process, including prehearing matters, motion practice, hearings, and awards, and also provides a detailed guide to FINRA investigations and enforcement actions.
The Delaware Court of Chancery has again affirmed the validity of exclusive forum bylaws. This time the bylaw selected North Carolina, and not Delaware, as the forum. By honoring a choice of forum outside of Delaware, the case helps pave the way for a wider acceptance of exclusive forum bylaws. The case also suggests that an exclusive forum bylaw may be adopted on the eve of a merger, thus increasing the usefulness of these bylaws as a defense against multijurisdictional litigation in connection with a change of control transaction.
In affirming the district court’s award of attorneys’ fees, the Federal Circuit agreed with the district court that the patent holder’s failure to “produce admissible evidence of infringement” rendered the case exceptional, historically a very high bar for prevailing defendants to meet. However, in reaching this decision, the Federal Circuit relied upon two recent U.S. Supreme Court decisions, Octane Fitness, LLC v. ICON Health & Fitness, Inc. and Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., both of which significantly relaxed the standard for what is deemed an “exceptional case” under § 285.
Don’t assume your client will receive a stay pending post grant proceeding. Many practitioners assume that an IPR will trigger a stay of litigation. This article discusses recent cases that suggest careful case planning, to request or resist, is necessary to best achieve a client’s goals.
Recent events have focused a spotlight on issues where online technology, payment and privacy issues converge. These include Amazon’s release of a new smartphone, Apple’s announcement of a “virtual wallet” payment system, and the recently disclosed privacy breaches of Apple’s iCloud and Home Depot’s payment systems. Companies developing new technology in this area must be more cognizant than ever on privacy laws and regulations applicable to their development and use of such technologies. Tis article reviews applicable laws and regulations and how those laws might impact these and other online payment systems that may be developed in the near future.
Conflicts of interest is an ethical area that poses many challenges for practicing lawyers. These challenges are particularly acute for lawyers who practice in transnational and international law firms. The authors address one of the most prickly of them in the foregoing article.
Judge Jed Rakoff’s skirmishes with the SEC over the approval of settlements reached a head earlier this year when the Second Circuit vacated one of the Judge’s orders rejecting a Citigroup/SEC settlement. The Judge on August 5, 2014 reluctantly complied with the higher court’s ruling. C. Evan Stewart discusses the dynamics of these judicial decisions and what was really at issue.
This article addresses the increasing problem of electronic communications produced in discovery that force companies either to settle early or risk large jury awards and the company's public perception. The problem arises, in part, because authors of electronic communications -- including email and social media -- write without considered thought, share knee-jerk, emotional responses, and seldom retract mistaken positions. Along with defining the problem, this article provides practical tips for developing a communication training program that can be used for employees and third-party contractors alike.
C Evan Stewart discusses the Fugitive Slave Act of 1850 and how the trial of Anthony Burns led to the Civil War.
C Evan Stewart discusses the ethics of providing witnesses with a written script with answers to questions they will be asked during their testimony.
With the increased emphasis on transparency and cooperation, counsel are forced to approach discovery with a defined strategy more than ever before. This article offers several practice pointers which address issues surrounding timing.
Rule 45, which governs subpoenas, has recently changed, but one thing remains the same: Courts are reluctant to impose unnecessary burdens on third parties when it comes to discovery unless it is shown that a party controls the third party’s documents. In practice, this often means that discovery from third parties must wait until the parties have exchanged all the information they have in their own files, virtual and otherwise.
This article explores ways a company can minimize discovery obligations when business units have outsourced certain functions to third party vendors.
It should come as no surprise that the Rule 34 analysis is a highly factual one, with a focus on the relationship between the company and the third party. Here are some indicia a court might consider.
This article outlines some considerations to keep in mind in identifying jurors who may be more or less receptive to common trial themes in health care industry cases. Topics include juror attitudes toward industry and the medical profession, views of government and its role in health care, and more general personality traits and methodologies that may influence jurors’ analysis of key recurring issues.
This guide contains analysis and guidance on how IP laws are applied to the internet in different countries worldwide. Mr. Schafer co-authored the chapter which discussed IP laws specific to the United States.
This article focuses on the infamous and tragic MacDonald family murders (the subject of a best-selling book, Fatal Vision), the conviction of the husband/father for the crimes, and the import of Federal Rule of Evidence 804 (b)(3) on MacDonald’s conviction.
In this article, Stewart reviews the rules and regulations promulgated by the U.S. Securities and Exchange Commission to govern attorney conduct in response to congress’s passing the Sarbanes-Oxley legislation in 2002, and juxtaposes those rules and regulations with conflicting ethical standards enacted by the states. He then, based upon a recent decision of the Second Circuit Court of Appeals, predicts the likely outcome of preemption litigation that will one day ensue as a result of the conflict.
When it comes to third party discovery, a company may be responsible for preserving and/or producing documents of its third party consultants depending on how the jurisdiction in which the case has been brought defines the word “control” as used in Fed. R. Civ. P. 34. This article looks at how different jurisdictions view this critical concept.
Much of modern corporate governance law turns on the roles of independent directors, but determining who is an independent director is often a complicated task, with separate state law, regulatory, and exchange standards that have evolved over time. This article looks at key recent developments and provides a field guide for general counsel trying to understand what independence really means.
The U.S. Supreme Court granted cert on Halliburton’s petition for challenging the Basic v. Levinson precedent on fraud-on-the-market theory. What are the arguments on both sides of this issue and what will the Court likely hold? This article will explore arguments on both sides of this issue and it's potential impact to certification of securities fraud class actions.
The first of a six part series discussing a company’s obligation to notify a third party to preserve and produce documents.
The SEC has recently signaled a renewed focus on the investigation and prosecution of accounting fraud with the creation of a Financial Reporting and Audit Task Force. The Task Force will use sophisticated computer algorithms to mine financial filings looking for potential irregularities. The SEC is expected to take a close look at companies particularly in the technology sector, and at revenue recognition. The article examines recent public statements and SEC enforcement actions that help provide clues to the SEC’s renewed focus in this area.
In Halliburton Co. v. Erica P. John Fund, Inc., the U.S. Supreme Court will decide whether to overrule or modify the “fraud-on-the-market” presumption of reliance in 10b-5 securities fraud class actions. The fraud-on-the-market presumption has helped plaintiffs surmount the class certification hurdle for over 25 years, and if it is overruled or modified, class certification in securities fraud cases may become a more challenging — and costly — endeavor.
The Volcker Rule prohibits banks and entities that own them from incentivizing risk-taking activities in connection with executive compensation arrangements. The article will talk about steps financial institutions should take to make sure they are in compliance with the rule by the time it becomes effective.
This fifth article in a series exploring trends in class action law examines the ultimate meaning of Comcast as applied to products class actions. It concludes that the Supreme Court may simply be waiting for more circuit courts to weigh in on the meaning of Comcast before issuing a clarifying decision.
Because of the whistleblower provisions of federal statutes such as Dodd-Frank, recent case law, and various articles written on this subject, there has been a fair amount of disinformation as to whether lawyers are free to rat on their clients and then also profit thereby. This article explores related concepts with intentions of determining what is right.
The article provides an analysis of recent remarks by Assistant Attorney General Stuart Delery, in which the AAG described the government’s approach to enforcement actions targeting off-label promotion of drugs and devices. Considering the AAG’s remarks along with recent FDA draft guidance on the distribution of scientific literature, the article focuses on the effect that First Amendment concerns, intensified by recent case law developments, may have had on the way in which the government investigates cases, evaluates evidence, and develops and presents its theories of liability in off-label cases.
Employment class actions are disruptive, and at their worst, can be costly PR nightmares. Recent SCOTUS decisions may ultimately reduce the threat of employment class actions — but this hasn’t quite happened yet.
A patent on cloning human stem cells was issued recently by the U.S. Patent Office to a disgraced scientist who had admitted to fabricating his results. Despite appearances, however, the issuance of this patent is not a glaring mistake on the part of the USPTO, nor is it certain that the patent was obtained by fraud or should be held invalid. As long as the inventor was scrupulously honest in his dealings with the USPTO, he may be entitled to the monopoly rights granted to him.
A recent SEC no-action letter provides significant relief from SEC registration requirements for so-called "M&A brokers," involved in the purchase or sale of privately-held companies. Although the letter does not eliminate all of the risks involved in acting as or employing an unregistered intermediary in an acquisition, it represents a step in the right direction for those wishing to lift the regulatory burden on such intermediaries.
The Target data breach made headlines across the country and resulted in over fifty purported class action suits against the retailer. This is a warning shot over the bow for other companies. Privacy class actions are on the rise.
Regardless of which side ultimately benefits, the Supreme Court's message for antitrust litigants is clear: Class action is an exception to the usual rule.
This article is focused around Mr. Rifkind's famous client, Jacqueline Bouvier Kennedy Onassis, and the turmoil over her attempts to scuttle the publication of The Death of a President, authorized by William Manchester.
The proxy and annual reporting season is upon us and, as with other things, it is best to be prepared. Here are some thoughts for publicly traded companies to carry through the season and help plan for the remainder of the year
Recent Supreme Court decisions have made the arbitration clause a potent weapon against class actions in many areas of the law. Certainly in the wake of Concepcion, Italian Colors, and Oxford, businesses should consider including in their contracts specific language regarding arbitration clauses.
Will proposed Regulation A+ result in a vibrant public market for smaller company stocks, or will it remain unused like current Regulation A? The proposed regulation would exempt offerings of up to $50 million of securities annually from the registration requirements of the Securities Act, an increase from the current limit of $5 million within a 12-month period.
Dell’s board of directors played a starring role in helping Michael Dell defeat the legal challenge of taking Dell Inc. private in a $25 billion dollar buyout. The committee’s role in protecting the transaction is a text book lesson on navigating complex transactions.
As a result of the Delaware Chancery Court's decision in Kallick v. Sandridge Energy, Inc., corporate boards will now be hard-pressed to avoid approving the proposed slate of insurgent directors.
With the recent increase in enforcement of the Foreign Corrupt Practices Act (FCPA), it is prudent for counsel to conduct in depth due diligence when acquiring a foreign target. Their conduct may become your company’s FCPA liability.
When a sovereign nation defaults, investors in its debt securities are often left without recourse. NML Capital, Ltd. v. Republic of Argentina is reimagining, and may even protect, the rights of U.S. corporations holding foreign sovereign debt.
A series of recent decisions suggest that courts are actively considering the practicality of the fraud-on-the-market doctrine, which has historically been one basis for argument by plaintiffs in securities class actions.
A recent arbitration ruling which determined that Kraft Foods Group/Mondelez International Inc. must be paid more than $2.7 billion by Starbucks Coffee Company to conclude a lengthy breach of contract dispute, is a venti wake-up call to inside counsel negotiating long-term ventures, supply and distribution agreements, and other commercial and strategic alliances.
On December 11, 2013, the public comment period will close on two new auditing standards proposed by the Public Company Accounting Oversight Board (PCAOB) to improve the informational value of the auditor’s report. These proposed standards, if adopted, would change the role of auditors and expand the scope of the auditor’s report.
Mr. Stewart examines the evolving state of advance conflicts of interest waivers in the context of two recent court decisions.
The SEC adopted amendments disqualifying private securities offerings involving felons and other “bad actors” from relying on the Rule 506 safe harbor exemption. The lesson learned here is to know who you are dealing with especially when it comes to large investors, brokers and even potential targets and acquirers. Questionnaires and other fact-checking exercises should now be part of the due diligence process.
Corporations of all sizes, public and private, are susceptible to shareholder derivative suits. Fortunately, recent decisions from the Delaware courts suggest at least two mechanisms counsel can employ to limit exposure to derivative litigation in multiple forums and to minimize the burden of those cases.
Parties often opt for arbitration to obtain confidentiality that is unavailable in court proceedings. This alert addresses two recent decisions that address the confidentiality of proceedings before the Delaware Court of Chancery. In these cases even the Delaware legislature, the agreement of the parties, and genuine confidentiality concerns could not trump the presumption of open public pr