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Act Now Advisory: Japanese Parent Company May Be Liable for Employment Decisions of Its US Subsidiary

The US Court of Appeals for the Second Circuit recently decided a case that should be taken into consideration when Japanese (and other foreign-based) companies determine the level of active involvement that their parent...more

Affordable Care Act: Hobby Lobby Decision Limits Contraception Requirement

As widely reported, on June 30th, the United States Supreme Court held in Burwell v. Hobby Lobby Stores that certain methods of contraception under the preventive health services requirements of the Patient Protection and...more

When It Comes To Director Compensation Claims, Nevada And Delaware Are Fundamentally Different

Since 1969, there has no question that directors of a Delaware corporation have the authority to set their own compensation. 8 DGCL § 141(h). Having authority to do something, however, doesn’t mean that the use of that...more

D.C. Appeals Court Upholds Privilege For Internal Investigation Preceding False Claims Act Litigation

The KBR decision should not be interpreted as a sign that internal investigations of regulatory compliance are privileged per se. Companies should keep the following principles in mind when conducting any internal...more

Third Circuit Adopts Successorship Liability Standard for FLSA Claims

In Thompson v. Real Estate Mortgage Network, 748 F.3d 142 (2014), the Court of Appeals for the Third Circuit determined, in a case of first impression, that a new employer may be held accountable for its predecessor’s wage...more

Mandatory Retirement in Professional Services Firms

On May 22, 2014, the Supreme Court of Canada released its decision in McCormick v Fasken Martineau DuMoulin LLP. The Court found that John McCormick, an equity partner in Faskens, was not an employee for the purposes of the...more

What’s New for the 2014 Proxy Season

Unlike in past years, there are no new disclosure requirements which need to be reflected in this year’s proxy statement; however, with ongoing shareholder activism and the desire of companies to communicate effectively with...more

Court Upholds Claim Against Private Equity Firm for Federal Labor Law Violation Stemming from Closure of Portfolio Company

A decision last month by the district court for the Northern District of Indiana is the latest in a string of recent judicial decisions to confirm that a plaintiff has successfully stated a plausible claim for relief under...more

PBGC Finds Deep Pocket in Japan: U.S. Court Finds Parent Liable for Termination Underfunding

As the U.S. Pension Benefit Guaranty Corporation (PBGC) faces increasing strain on the pension insurance program it runs, it has become more aggressive in pursuing deep pockets after underfunded defined benefit plans are...more

Illinois Supreme Court Holds Board Can't Declare Enhanced Pension Forfeited

Although the question presented in Prazen v. Shoop was limited to the field of public pensions, the case presented interesting aspects of fiduciary law and statutory construction as well. The question in Prazen was whether...more

Another Frightening Warning to Management: You May Be Held Individually Liable For Violations of the FLSA

On September 20, 2013, the Eastern District of Missouri put executive level management on notice once again that so-called C-suite managers (in this case the CEO, President and Vice President) can be "employers" under the...more

The Supreme Court: Cases to Watch in the October 2013 Term

This week marks the first Monday in October, which for Supreme Court watchers is a holiday: the start of a new term. While not everyone gets that excited about the new term, there are several cases that the Court intends to...more

Recent Decision of the U.S. Court of Appeals for the First Circuit May Have Significant Implications for Private Equity Funds

In late July of this year, the U.S. Court of Appeals for the First Circuit reversed a Massachusetts District Court, and in a decision of first impression, held that one of Sun Capital Partner’s private equity funds was liable...more

Unrealized Gains: Integrated Employment Agreement Bars Employee's Recovery of Additional Compensation

In Volpe v. Interpublic Group of Companies, Inc., No. 652308/2012, Judge Eileen Bransten granted defendant The Interpublic Group of Companies, Inc.’s (“IPG”) motion to dismiss plaintiff Ray Volpe’s (“Volpe”) complaint,...more

Indiana District Courts Finds Private Equity Firm Potentially Liable in WARN Class Action

This seems to be the month for class action cases presenting unusual issues in combination. Last week we wrote about a class action disparate impact claim of disability discrimination against the obese in which the court...more

California Court Of Appeal Affirms Dismissal Of Say-On-Pay Suit

Yesterday, a panel of the California Court of Appeal added to the growing list of opinions rejecting suits triggered by failed say-on-pay votes. Some may be surprised that this case, which involves a Delaware corporation,...more

CalPERS’ Warning Of Chill Goes Unheeded

Last November, Judge James P. Kleinberg of the Santa Clara Superior Court in San Jose, California ruled on motions for summary judgment in a case brought by former employees of a management company that had been retained by...more

A-Rod Situation Highlights Risks of Long-Term Contracts

A-Rod Situation Highlights Risks of Long-Term Contracts by Gary S. Young on August 16, 2013 The two contracts previously awarded to Alex Rodriguez are widely regarded as being the two worst contracts in the history of...more

First Circuit: Private Equity Fund May Be “Trade or Business” and Subject to Portfolio Company Pension Liabilities

The First Circuit Court of Appeals has recently held in Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund, No. 12-2312 (July 24, 2013), a case of first impression at the Circuit Court...more

PE Fund Deemed a 'Trade or Business'—May Be Liable for Portfolio Companies' Pensions

The First Circuit Court of Appeals recently became the first federal appellate court to hold that a private equity (“PE”) fund can be a “trade or business,” and thus potentially included in a “controlled group” with its...more

Private equity fund deemed a “trade or business” under ERISA, exposing it to federal liabilities

On July 24, 2013, the U.S. Court of Appeals for the First Circuit held that a private equity fund constituted a “trade or business” under the Employee Retirement Income Security Act (ERISA) and therefore, as a member of its...more

Is the First Circuit Egregiously Aggregating? Sun Capital Partners Case Holds That a Private Equity Fund Could Have ERISA...

The recent decision by the U.S. Court of Appeals for the First Circuit in the Sun Capital Partners case may be of concern to private equity funds and other investment funds that acquire or invest in portfolio companies with...more

Canadian (and U.S.) Investment Funds Face New Risk of Pension Liability – What’s Keeping Fund Sponsors up at Night

The Issue: Commonly controlled trades or businesses are jointly and severally liable for pension liabilities under the U.S. Employee Retirement Income Security Act (ERISA)....more

First Circuit: Private Equity Sponsor Liable for Portfolio Company Pension Underfunding

In a decision that could have significant implications for private equity investors, the United States Court of Appeals for the First Circuit has determined that a private equity fund may be liable under ERISA for an...more

Corporate and Financial Weekly Digest - June 28, 2013

In this issue: - Delaware Court of Chancery Upholds Forum Selection Provisions in Bylaws - CFTC Issues No-Action Letters - Portfolio Reconciliation and Swap Trading Relationship Documentation Requirements...more

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