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Privileged Documents and Regulatory Investigations: When Does Waiver Come Into Play?

When a regulator comes knocking at your door, with an order compelling the production of documents, how should you treat communications between you and your lawyers? Are you required to produce privileged documents to the...more

Salman v. Newman: The developing standard for insider trading liability

The 9th Circuit just denied rehearing en banc in a closely watched decision that declined to adopt a broad interpretation of its influential sister circuit’s watershed opinion in United States v. Newman, 773 F.3d 438 (2d Cir....more

No FCPA Accomplice Liability for Non-resident Foreign Nationals if No Agency

Court rules that the US Department of Justice cannot expand the FCPA’s reach simply by charging non-resident foreign nationals with conspiracy....more

4 Tips for Effectively Presenting Your Expert

You have an expert witness set to testify on your client’s behalf. Never undermine the impact your expert’s testimony can have on your case. Don’t let him or her bore the jury—present your expert in the most positive and...more

Putting the “force” into enforcement: the Commercial Court sentences arbitration award defaulters to 18 months in prison

A recent decision demonstrates the English courts’ resolve in the enforcement of arbitration awards and court orders. It is a useful reminder to those facing obstructive counterparties of the measures available to enforce...more

Motorola and the Extraterritorial Application of US Antitrust Laws to Foreign Component Price Fixing Cartels

Last month the Supreme Court declined to accept an appeal for two related antitrust cases involving an international price-fixing cartel. The cases come from different circuits, one was criminal and the other civil, but they...more

Use a Focus Group Before Every Trial

Posted on August 5, 2015 by Julie Brook, Esq. If a full-blown mock trial is out of your budget, then get a focus group together. For the cost of $50 per juror plus pizza, you could spend the most productive and useful evening...more

Dirks, Newman, Tippees And The Government’s Cert Petition

The Government filed its long awaited Petition for a Writ of Certiorari with the Supreme Court in the Newman insider trading case. The Petition presents three key issues which were generally presaged in the request for...more

New Lessons from Cosby: Confidential Doesn’t Always Mean Confidential

How, after all these years, did the truth about Bill Cosby finally come out? It happened on July 6, 2015 when a federal judge in Philadelphia ordered that documents filed in a lawsuit by one of Cosby’s accusers 10 years...more

This Week In Securities Litigation

The Government requested that the Supreme Court overturn U.S. v. Newman, the Second Circuit’s decision on tipping and the personal benefit test. Previously, the Second Circuit had declined a request to either rehear the case...more

Bernstein Shur Business and Commercial Litigation Newsletter #53

We are pleased to present the 53rd edition of the Bernstein Shur Business and Commercial Litigation Newsletter. This month, we highlight recent cases regarding compelled turnover of Facebook data, a revived securities class...more

Does Sharing Work Product with the Government Always Waive that Protection?

For decades, companies trying to cooperate with the government have hoped for a change in the general rule that disclosing privileged communications and/or work product to the government waives those protections. In nearly...more

Supreme Court Update: Glossip V. Gross (15-7955) And Order List

We're back with our final Update of OT14, covering Glossip v. Gross (15-7955), a doubly divisive death-penalty case, and providing a roundup of the Court's orders over the last few weeks. (Did you think we'd forgotten about...more

Rejection of the Antitrust Division's Position on the Running of the Statute of Limitations until the Last Payment

The Antitrust Division of the Department of Justice claims the statute of limitations for a criminal antitrust violation does not begin to run until the last payment is collected by a conspirator on a sale that was the...more

Felony Conviction Bars Whistleblower from Pursuing Qui Tam Case

A relator convicted of criminal conduct is precluded from sharing in related FCA recoveries, irrespective of degree of culpability. On July 16, a US Court of Appeals for the Ninth Circuit panel upheld the dismissal from...more

Attorney Fees Granted In Prisoner Litigation Under Private Attorney General Doctrine

In In re Butler, 2015 DJDAR 5345, the California Court of Appeal for the First Appellate District decided a prison case and awarded attorney fees under the Private Attorney General Doctrine contained in CCP§ 1021.5. The court...more

Public Officials Face Greater Scrutiny in Wake of McDonnell Decision

Governor McDonnell’s attorneys put it this way: The Governor’s acts weren’t “official” because “none were any more remarkable than acts that governors unthinkingly take hundreds of times weekly for countless constituents,...more

Court of Chancery Explains Jurisdiction Despite Declaratory Judgment

It is often contended that the availability of a declaratory judgment in Superior Court to determine the parties’ rights may deprive the Court of Chancery of jurisdiction to grant an equitable remedy such as an injunction....more

4 Keys to Using Your Opening and Closing to Persuade

Both the opening statement and the closing argument should be used to persuade. (No, it’s not all about direct and cross.) The adages about the importance of first impressions and last words are worth heeding....more

Who Can Sue Polluters? New Texas Law HB 1794 Stirs Debate

A perspective on new Texas legislation HB 1794 by Gerald Pels one of the leaders of the Texas environmental legal community for over 30 years....more

The evolving nature of legal risk: Legal risk, as we once understood it, is changing. Companies need to be prepared to respond...

Over the past decade, many of the legal risks facing companies under US law have narrowed dramatically while others have proliferated. The advent of streaming news and social media means that local issues can become global...more

Telephone Surveillance Hang-Ups: Second Circuit Asks Parties in ACLU v. Clapper to Brief Whether the USA Freedom Act Moots...

Not long after striking down the National Security Agency’s telephone surveillance program in ACLU v. Clapper, the Second Circuit is asking the parties to assess whether recently passed federal legislation has rendered the...more

Can The Illegality Defence Bar A Claim Against A Dishonest Director?

In Jetivia SA & anr v Bilta (UK) Ltd (in liquidation) & ors [2015] UKSC 23, 22 April 2015, the Supreme Court ruled on the law of corporate attribution and the "illegality defence", which holds that a party cannot pursue a...more

Can The Illegality Defence Bar A Claim Against A Dishonest Director?

In Jetivia SA & anr v Bilta (UK) Ltd (in liquidation) & ors [2015] UKSC 23, 22 April 2015, the Supreme Court ruled on the law of corporate attribution and the "illegality defence", which holds that a party cannot pursue a...more

Third Party Bound By Arbitration Agreement Which It Never Signed

In the context of a right of direct action by an injured party (Spain and France) against a D&I insurer, in The London Steamship Owners' Mutual Insurance Association Ltd v The Kingdom of Spain & anr [2015] EWCA Civ 333, 1...more

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