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4/30/2008 Privacy Alert: Gov't Rummaging Through Your Laptop's Contents? No Problem If You're Re-Entering USA, Says Ninth Circuit PDF icon
You've gotten used to being asked to turn on your laptop as you go through airport security so the authorities can confirm it's really a computer and not a bomb... more
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4/24/2008 Antitrust Alert: Rambus Dodges an Antitrust Bullet from the FTC PDF icon
In a case closely-watched by the high technology community, this week the D.C. Circuit Court set aside the FTC’s landmark order against Rambus Incorporated... more
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4/8/2008 Litigation Alert: Roommate.com en banc
The Ninth Circuit has issued a long-awaited decision affecting the scope of the safe haven under the Communications Decency Act ("CDA") for internet service providers against liability for information created and provided by third parties. more
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3/27/2008 Federal Circuit to Re-Assess Standards for Patent-Eligible Subject Matter
The subject matter requirement prescribed in 35 U.S.C. section 101 has lately been back on the Federal Circuit Court's radar. more
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3/17/2008 Litigation Alert: Seventh Circuit Upholds CDA Immunity for Craigslist—But What Is The Impact, If Any, On Roommate.com?
On March 14, 2007, the Seventh Circuit issued an important decision regarding the scope of the safe haven under the Communications Decency Act ("CDA") for internet service providers against liability for information created and provided by third parties. more
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8/21/2007 Litigation Alert: In re Seagate Technology, LLC—Willful Infringement and the Scope of Waiver of the Attorney-Client Privilege and Work Product Doctrine
On August 20, 2007, the Federal Circuit, sitting en banc, articulated a new standard for willful infringement: patentees must show at least objective recklessness. more
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8/14/2007 Don't Try This on Your Site: Changing Contracts via Website Notice Alone PDF icon
On July 18, 2007, the Ninth Circuit issued its decision in Douglas v. United States District Court for the Central District of California, No. 06-75424, which addressed whether a service provider may change the terms of its service contract by posting a revised contract on its website without providing additional notice. more
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7/31/2007 Injunctions After eBay v. MercExchange
More than a year has passed since the U.S. Supreme Court's decision in eBay, Inc. v. MercExchange, LLC, 126 S. Ct. 1837 (2006). more
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7/30/2007 Litigation Alert: Integra LifeSciences I, Ltd. v. Merck KGaA—Applying the Supreme Court's Broad Interpretation of the FDA Exemption for Patent Infringement
On July 27, the Federal Circuit in Integra LifeSciences v. Merck ruled on the Supreme Court's broad interpretation of the patent infringement exemption set forth in 35 U.S.C. § 271(e)(1), for "uses reasonably related to the development and submission of information" to the Food and Drug Administration (FDA) more
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7/17/2007 Litigation Alert: No End of Trouble? Perfect 10 v. Visa International and Secondary Liability
On July 3, 2007 the Ninth Circuit issued its decision in Perfect 10 v. Visa International Service Association, No. 05-15170, which addressed the secondary liability of credit card companies, affiliated banks, and data processing services under copyright, trademark, and various state law claims for processing credit card payments for websites that allegedly infringe Perfect 10's copyright and trademark rights. more
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7/13/2007 Top Five Practices for Implementing an Effective Trade Secret Preservation Program PDF icon
Top Five Practices for Implementing an Effective Trade Secret Preservation Program. more
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7/11/2007 Twombly and the Need to Plead Facts:The Antitrust Decision Every Litigator Needs to Know PDF icon
The foundation of any litigation is the complaint, and more specifically, the allegations made to support the plaintiff's claims. more
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7/5/2007 Litigation Alert: Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd. (Festo XIII) - Prosecution History Estoppel and the Foreseeability of Equivalents
On July 5, the Federal Circuit issued the latest in a line of decisions addressing the scope of prosecution history estoppel and its limits on the doctrine of equivalents, this time addressing whether an equivalent is foreseeable and thus subject to surrender. more
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6/28/2007 Antitrust Alert: Supreme Court Overrules Per Se Rule Against "Vertical" Minimum Price Agreements between Manufacturers and their Distributors PDF icon
On June 28, 2007, the Supreme Court issued its decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., No. 06-480, addressing the proper antitrust analysis of resale price maintenance under Section 1 of the Sherman Act, one of the most important federal antitrust statutes. more
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6/21/2007 Securities Litigation Alert—A Major Victory for Defendants in Securities Class Actions: Tellabs, Inc. v. Makor Issues & Rights, Ltd. PDF icon
On June 21, 2007, the U.S. Supreme Court handed down a decision that provides welcome news to any public company, officer or director facing the prospect of a securities class action lawsuit. more
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6/20/2007 U.S. Supreme Court Reconciles Antitrust Law and Securities Regulation PDF icon
On June 18, 2007, in Credit Suisse Securities (USA) LLC v. Billing, the U.S. Supreme Court issued an important decision about the relationship between the federal antitrust laws and the federal securities laws more
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6/1/2007 Playing by the Notice & Takedown Rules: Protection for Online Service Providers
This week the Federal Trade Commission obtained a $250,000 civil penalty against James Dondero, the operator of the Highland Capital hedge fund and a director of Motient Corporation, for making a late Hart-Scott-Rodino Act filing in connection with his 2005 exercise of options to acquire 10,000 Motient shares. more
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5/24/2007 Antitrust Alert: Beware of HSR Filing Requirements for Option Exercises or Vesting of Restricted Stock
This week the Federal Trade Commission obtained a $250,000 civil penalty against James Dondero, the operator of the Highland Capital hedge fund and a director of Motient Corporation, for making a late Hart-Scott-Rodino Act filing in connection with his 2005 exercise of options to acquire 10,000 Motient shares. more
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5/17/2007 Litigation Alert - Ninth Circuit Limits CDA Immunity for Internet Service Providers
On May 15, 2007, the Ninth Circuit issued an important decision affecting the scope of the safe haven under the Communications Decency Act ("CDA") for internet service providers against liability for information created and provided by third parties. more
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5/17/2007 Copyright Alert: Perfect 10 v. Google—Key Holdings: Website Framing Does Not Directly Infringe the Public Display Right; Image Search Engine Thumbnails Are Fair Use; and a New Test for Online Contributory Infringement
How fast do things change in "Internet time"? That was in substance one of the questions posed in yesterday's Ninth Circuit decision in Perfect 10 v. Google, which considered inter alia whether a less-than-four-year-old fair use precedent validating an image search engine had been overtaken by subsequent events. more
5/1/2007 Litigation Alert - Microsoft Corp. v. AT&T Corp. — The Supreme Court Limits the Extraterritorial Effect of 35 U.S.C. §271(f)
On April 30, the Supreme Court issued an important decision affecting liability for patent infringement for computer software developed in the United States and distributed abroad. more
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5/1/2007 Litigation Alert - KSR International Co. v. Teleflex Inc.—Ordinary Innovation is Obvious
On April 30, the Supreme Court in KSR International v. Teleflex, announced that "the results of ordinary innovation are not the subject of exclusive rights under the patent laws." more
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4/17/2007 Legal FAQ: Introduction to Patent Litigation
The U.S. Patent and Trademark Office grants a patent. Contrary to popular belief, a patent does not give its holder the right to practice the invention, but the right to preclude others from practicing it. more
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4/12/2007 Securities Litigation Alert—Northern District of California Dismisses Shareholder Derivative Stock Options Backdating Case: In re CNET Networks, Inc., Shareholder Derivative Litig.
In a detailed and thoughtful decision—and one that is certain to be cited frequently in the months ahead ? Judge William Alsup has dismissed a shareholder derivative complaint against various officers and directors of CNET Networks, Inc... more
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3/30/2007 Securities Litigation Alert—Tellabs, Inc. et al. v. Makor Issues & Rights, Ltd., et al.
On March 28, 2007, the United States Supreme Court heard oral argument in Tellabs, Inc., et al. v. Makor Issues & Rights, Ltd., et al., a case that promises to resolve a significant and long-standing disagreement among courts on interpretation of the requirement that plaintiffs in securities fraud actions plead a "strong inference" of scienter. more
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3/1/2007 Litigation Alert: Northern California District Court Expands Information Retention Requirements
The United States District Court for the Northern District of California has revised Civil Local Rule 16-9 and issued a new Standing Order for all Judges regarding the required contents of Joint Case Management Statements ... more
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2/23/2007 Litigation Alert: Supreme Court Imposes Limits on Punitive Damages Awards
On February 20, 2007, Philip Morris won temporary reprieve when the Supreme Court vacated a jury award of $79.5 million in punitive damages to the widow of a deceased smoker, Jesse Williams. more
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2/21/2007 Antitrust Alert: The Supreme Court issued its decision in Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., No. 05-381
On February 20, the Supreme Court issued its decision in Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., No. 05-381, addressing the antitrust analysis of predatory bidding under Sherman Act Section 2. more
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2/12/2007 Securities Litigation Alert—First Delaware Decisions on Option Grant Dating: Ryan v. Gifford and In re Tyson Foods, Inc. Consol. Shareholder Litig.
In two separate decisions issued on February 6, the Delaware Chancery Court weighed in for the first time on issues directly relating to the current wave of stock option matters. more
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2/2/2007 Web Sites' CDA §230 Immunity: An Ever-Expanding Universe?
The Federal Communications Decency Act of 1996 ("CDA") immunizes Web site operators and other interactive computer service providers from liability for third parties' tortious acts. more
1/19/2007 Out of Sight, Out of Mind, Into Court
Much has been written in recent years about the benefits and pitfalls associated with employee telecommuting arrangements. more
1/10/2007 Litigation Alert - Supreme Court Knocks Down Federal Circuit Rule and Allows Licensees to Challenge a Licensed Patent
Yesterday, the Supreme Court ruled in MedImmune v. Genentech that a patent licensee does not need to breach its license agreement before seeking a declaratory judgment in federal court that the underlying patent is invalid, unenforceable, or not infringed. more
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12/19/2006 Litigation Alert - Settlement Agreements Executed During Mediation Are Only Admissible If They Include Clear Language Demonstrating the Parties' Intent to be Bound
On December 14, 2006, the California Supreme Court ruled in Fair v. Bakhtiari, No. S129220, ___ Cal.4th ___ (Dec. 14, 2006), that under California Evidence Code section 1123(b), parties who mediated their dispute and signed a settlement memorandum did not clearly demonstrate their intent that the memorandum be enforceable, even though it contained an arbitration clause. more
12/18/2006 Litigation Alert - DOJ Revises Policy on Demanding Waiver of Attorney-Client Privilege
On December 12, 2006, the Justice Department announced new guidelines for federal prosecutors to follow in charging business organizations. more
12/15/2006 Litigation Alert - En Banc Federal Circuit Adopts Specific Intent Standard for Inducement
On Wednesday, December 13, 2006, the Federal Circuit resolved a split in authority over the standard for proving inducement of patent infringement. more
11/20/2006 The California Supreme Court Considers Web Site Immunity
The California Supreme Court decided the Barrett v. Rosenthal case on Monday, November 20, 2006, holding that Section 230 provides immunity for distributor liability as well as publisher liability. more
11/8/2006 Just Say ... Maybe (Arbitration Finality)
"Three strikes you're out – sort of." That's what a California court has basically told a party that asked the court to overturn an arbitrator's award. more
10/31/2006 Beware the Dangers of Arbitrators Morphing into Mediators
Flexibility and adaptability are hallmarks of alternative dispute resolution, and the ability to fit procedures to the needs of the particular quarrel is often central to realizing the benefits of arbitration and mediation. more
10/31/2006 Litigation Alert - Transforming Uses of a Celebrity's Likeness Are Protected by the First Amendment
On September 25, 2006, the California Court of Appeal ruled in Kirby v. Sega of America, Inc., No. B183820 (Cal. Ct. App. Sept. 25, 2006), that the First Amendment provides a complete defense for misappropriation of a celebrity's likeness and image where the defendant's use is transformative more
9/27/2006 D&O Liability Insurance—Coverage Risks for Innocent Directors and Officers
Innocent directors and officers are at risk of losing D&O insurance coverage because of the knowledge or acts of other insureds. more
9/18/2006 Litigation Alert - California Court of Appeal Rules Contractual Provisions to Submit Disputes to Judicial Referee Are Enforceable
On August 21, 2006, the California Court of Appeal ruled in Woodside Homes of California Inc. v. Superior Court (Wheeler), 06 C.D.O.S. 7777, that pre-dispute contractual agreements to submit controversies to a judicial referee pursuant to California Code of Civil Procedure more
9/1/2006 Employment Law Alert - September 1, 2006
A California appellate court expressly rejected a "narrow restraint" exception to California's non-compete statute, an exception relied on by federal courts to enforce non-competes against California employees where the restraint excludes an employee from a narrow portion of his or her profession. more
8/18/2006 Litigation Alert - Northern District of California Rules Online Auction Buyer Must Sue in Seller's Forum
Recently, Chief Judge Vaughn Walker of the Northern District of California ruled in Boschetto v. Hansing (Case No. C-06-1390, order issued July 13, 2006) that a Wisconsin resident's sale of a vehicle on eBay to a California resident did not give rise to personal jurisdiction in California. more
7/31/2006 Notable New Cases in Copyright/ DMCA Litigation (2005-2006)
The year 2005-06 has seen a substantial group of decisions—including some cases of first impression—that flesh out the law of primary and secondary liability, fair use and various other copyright defenses, as well as further defining the application of the anti-circumvention and copyright management information provisions of the Digital Millennium Copyright Act. more
7/27/2006 Court Shifts Balance Between Trade Secrets and Public Interest
Are all trade secrets equally deserving of relevant discovery to enforce their protection? Not if the confidential business information is sufficiently "newsworthy," and thus infused with public interest, according to a recent decision by the Sixth District of the California Court of Appeal. O'Grady v. Superior Court, 139 Cal.App.4th 1423 (2006). more
7/25/2006 Litigation Alert - Ninth Circuit Extends Sublicensing Rule to Trademark Licenses
On July 19, 2006, the Ninth Circuit held in Miller v. Glenn Miller Productions, Inc., No. 04-55874 (9th Cir. 2006) that a licensee of trademark and related publicity rights does not have the right to sublicense those rights to third parties without the licensor's express permission. more
7/24/2006 Litigation Alert - Supreme Court of California Holds Proposition 64 Applicable to Pending Unfair Competition Law Cases
In November 2004, California voters passed Proposition 64 to purge the abusive use of private "representative" actions under California's Unfair Competition Law ("UCL") and False Advertising Law ("FAL") (respectively, California Business & Professions Code Sections 17200 and 17500, et seq.).? more
7/14/2006 Litigation Alert - New Prop 64 Decision Affects Class Actions Under California's Unfair Competition Law: Pfizer Inc. v. Superior Court
Under the California Court of Appeal's July 11, 2006 decision in Pfizer Inc. v. Superior Court, class action plaintiffs seeking to bring unfair business practices or false advertising claims against California businesses now face a greater preemptive challenge. more
7/11/2006 Litigation Alert - LG Electronics, Inc. v. Bizcom Electronics, Inc.
On July 7, 2006, the Federal Circuit ruled in the case of LG Electronics, Inc. v. Bizcom Electronics, Inc., Civ. 05-1261, that a license agreement that disclaimed an implied license may also establish a conditional sale, thus defeating the application of patent exhaustion. more
6/23/2006 Litigation Alert - Supreme Court Dismisses LabCorp Appeal
The U.S. Supreme Court yesterday opted to dismiss a case having potentially broad implications for the question of what constitutes patentable subject matter. more
6/1/2006 Litigation Alert - California Court Blocks Subpoenas Aimed at Bloggers' Source of Trade Secret Information
On May 26, 2006, the California Court of Appeals, Sixth District, issued a unanimous decision striking down subpoenas to Internet "news" sites seeking the source of leaked trade secret information. more
5/17/2006 Going to the Videotape: An Introduction to the Patent System
Patentees enter every jury trial with one distinct advantage: an official, ribboned copy of the patent at issue in the case. This trial exhibit comes embossed with the seal of the Patent and Trademark Office and signed by the director of that office. more
5/15/2006 Litigation Alert - eBay v. MercExchange: Supreme Court Clarifies Test for Permanent Injunction in Patent Cases
A decision today by the United States Supreme Court is likely to impact the dynamic in many patent litigation lawsuits brought by companies that purchase patents in order to sue other companies for infringing them. more
4/25/2006 Litigation Alert - Electronic Discovery is Focus of Pending Federal Rule Changes Approved by U.S. Supreme Court
On April 12, 2006, the United States Supreme Court approved changes to the Federal Rules of Civil Procedure that will require early involvement of the court in managing electronic discovery. more
4/21/2006 Litigation Alert - District Court Rules that Shrinkwrap Agreement May Be Enforceable
On April 5, 2006, the District Court for the Eastern District of California ruled in the case of Meridian Project Systems, Inc. v. Hardin Construction Co., L.L.C., Civ.04-2728, that an End User License Agreement ("EULA") contained within software packaging may be an enforceable "shrinkwrap" agreement. more
4/19/2006 Trade Secret Identification Rule
Trade secret misappropriation litigation presents a paradox. To mount a defense, a defendant must be apprised of what the plaintiff asserts was misappropriated. more
3/29/2006 USA PATRIOT Act Impasse: E-mail Interception Rules Need Congressional Attention, Too
When, if ever, can your Internet Service Provider ("ISP") legally intercept and read your e-mail? Nearly anytime, according to almost every federal court that has tackled the issue. more
3/6/2006 Antitrust Update - Supreme Court Eliminates Presumption of Market Power in Patent Tying Cases
On March 1, 2006, the Supreme Court issued its decision in Illinois Tool Works, Inc. v. Independent Ink, which considered the long-standing presumption of market power in patent tying cases. more
3/1/2006 Antitrust Update - Texaco v. Dagher: U.S. Supreme Court Provides Guidance on Antitrust Analysis of Joint Ventures
The Supreme Court's decision on February 28, 2006, in Texaco, Inc. v. Dagher provides important and much-needed guidance for the antitrust analysis of joint ventures. more
2/22/2006 Litigation Alert - Perfect 10's Preliminary Injunction Against Google Exposes New Approaches to Copyright and Fair Use on the Internet
On February 21, 2006, the Federal District Court in Los Angeles issued a decision with important new analyses affecting use of copyrighted materials on the Internet. more
1/27/2006 Litigation Alert - California Court Enforces Liquidated Damages in Standardized Form Contracts for Consumer Services
On January 20, 2006, a California Court of Appeal found enforceable the liquidated damages provisions for late fees in standardized form contracts for consumer services. more
1/23/2006 eBay v. MercExchange - Supreme Court to Reconsider Injunction Remedy in Patent Cases
The U.S. Supreme Court will soon reconsider the long-lived standards for granting permanent injunctions in patent infringement cases in eBay Inc. v. MercExchange L.L.C., 401 F.3d 1323 (Fed. Cir. 2005). more
1/19/2006 Patent Law Developments: 2006
The Year Past and the Year Ahead more
1/18/2006 Litigation Alert - New Price Discrimination Case from the Supreme Court
Despite academic criticism and increasingly rare government enforcement, reports of the death of the Robinson-Patman Act are premature, and price discrimination continues to be a potential source of private litigation for many companies. more
1/4/2006 Litigation Alert - Inefficient Electronic Discovery Management Can Cost Clients
On December 14, 2005, the Delaware Chancery Court reduced recovery of plaintiffs' attorneys' fees in a securities case by nearly $1.2 million, in large part for inefficiently managing electronic discovery. more
11/3/2005 Authorized Generics: Antitrust Issues and the Hatch-Waxman Act
An authorized generic (AG) is a pharmaceutical product that was originally marketed and sold by a brand company, but is relabeled and marketed under a generic product name. more
10/17/2005 Patent Litigation
This booklet is designed for those who wish to enforce their patents or who are accused of infringing another's patent. It provides an outline of patent law in the United States, and an overview of the procedure of patent cases. more
9/20/2005 Extraterritorial Expansion of U.S. Patent Law
With the advent of the global economy, the design, manufacturing, marketing, and sales activities of businesses are being performed increasingly overseas. Naturally, the owners of U.S. patents are increasingly attempting to enforce their U.S. patents against activities carried out at least in part, if not entirely, outside the U.S. more
9/15/2005 Copyright Alert: Circuit Court Decisions Weaken, Strengthen Hand of Software Owners Using Technological Protection Measures
Within one late summer week, two federal courts of appeals rendered decisions that will have a significant effect on the rights of copyright holders. more
8/8/2005 Pre-Dispute Contractual Waivers of Trial by Jury Ruled Unenforceable under California Law
The Contract Language / The Decision / Arbitration Agreements / Practical Impact more
7/19/2005 Patent Infringement Under Section 271(f) and the Exportation of Software—Living in a Material World
On July 13, 2005, the U.S. Court of Appeals for the Federal Circuit issued an opinion regarding whether the exportation of software code from the United States for distribution and use in foreign markets constitutes an infringement under U.S. patent law. more
7/13/2005 Phillips v. AWH Corporation—Revisiting the Rules of Claim Construction: Still No Magic Formula
Overview / Commentary / Authors of the Opinion / Summary of the Opinion / Dissents more
7/5/2005 California Supreme Court Clarifies Guidelines for Punitive Damages
The California Supreme Court has clarified the guidelines for imposition of punitive damages in Simon v. San Paolo U.S. Holding Co. and Johnson v. Ford Motor Co. more
6/14/2005 Intellectual Property Bulletin Spring 2005
CoStar Reopens Settled Fixation Issue/Trademark Infringement and the Fair Use Defense/Changes in Store for "Ailing" Patent System/Family Entertainment and Copyright Act Becomes Law. more
2/17/2005 Patent Law Developments: 2005
The Year Past and the Year Ahead more
2/14/2005 Recent Trends In Securities Litigation: Perspectives From Plaintiffs And Regulators
The 2005 D&O Liability and Insurance Symposium in New York, sponsored by the Professional Liability Underwriting Society, featured a panel of top plaintiffs' lawyers, more
2/1/2005 InVision Non-Prosecution Agreement with DOJ and Proposed Settlement with SEC Demonstrate Importance of Compliance with Foreign Corrupt Practices Act
On December 3, 2004, the U.S. Department of Justice entered into a non-prosecution agreement relating to a Foreign Corrupt Practices Act (FCPA) investigation of InVision Technologies, Inc. more
11/16/2004 Time to Consider Revising Compliance and Ethics Programs in Light of New Federal Sentencing Guidelines
Recent amendments to the Federal Sentencing Guidelines applicable to organizations went into effect on November 1, 2004. more
11/9/2004 M&A Development: Court Finds Financially Sophisticated Director Personally Liable for $77 Million
The price and process fairness of business combinations are increasingly challenged in litigation. more
11/26/2003 EFiling
"Efiling: What is it? What are its Implications?," 19 Santa Clara Computer & High Tech. L. J. 181 (Dec. 2002), as updated 11/26/03. This lengthy article examines the current state of electronic filing in nationwide state courts, federal courts and government agencies. The piece also explores the dramatic implications electronic filing has begun to have for courts, lawyers, law offices, clients, citizens and government. more
6/11/2003 EDiscovery
"EDiscovery: Preserving, Requesting & Producing Electronic Information," 19 Santa Clara Computer & High Tech. L. J. 131 (Dec. 2002), as updated 6/11/03. This lengthy article