General Business Civil Procedure

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Southern District of New York: It is Unlawful for an Insurer to Withhold Payment When Some Portion on an Insured’s Entitlement is...

Lexington Ins. Co. v. MGA Entm’t, No. 12-cv-3677 (SAS), 2014 WL 3955205 (S.D.N.Y. Aug. 12, 2014). The Southern District of New York denies an insurer’s motion to dismiss an insured’s claim that the insurer breached its...more

Pontone v. Milso Indus. Corp. et al., C.A. No. 8842-VCP (Del. Ch. Aug. 22, 2014) (Parsons, V.C.)

In this opinion, the Court of Chancery granted in part and denied in part defendants’ motion to dismiss a plaintiff’s claim for mandatory advancement of legal fees and expenses incurred in an underlying litigation between the...more

IP Newsflash - September 2014 #3

FEDERAL CIRCUIT CASES - Federal Circuit Has Jurisdiction to Decide Non-Patent Causes of Action That Involves a Substantial, Non-Hypothetical Disputed Patent Law Issue - On September 16, 2014, a Federal Circuit...more

Immigration Violations Cost Resort Chain $2.5M – What Is Your Compliance Exposure?

In This Issue: - Timeline - Exposure and Liability - What Should Employers Take Away from This? - For More Information - About Polsinelli’s Immigration Practice - Excerpt from Exposure and...more

SEC Advisory Committee To Consider Fee-Shifting Bylaws, But Why?

One agenda item for the upcoming meeting of the Investor Advisory Committee is a “Discussion of Issuer Adoption of Fee-Shifting Bylaws for Intra-Corporate Litigation”. This is indeed an interesting and timely topic in light...more

Delaware Court Enforces Exclusive Forum Provision Adopted Concurrently with Announcement of Merger Agreement

Public companies are increasingly enacting “exclusive forum” bylaws — designating a single forum for intra-corporate disputes — as a way to limit the risk and burden of multi-jurisdictional stockholder litigation. This trend...more

Court Rules on Applicability of Make-Whole Premiums Upon Debt Acceleration

In the context of make-whole premiums, court decisions suggest that the applicability of the premium upon a refinancing in bankruptcy will be governed by the wording of the debt documents, and that if an automatic...more

Appellate Court Notes

?AC35328 - Sola v. Wal-Mart Stores, Inc. Trial court incorrectly refused to charge the jury that Walmart store had a non-delegable duty to maintain its floors in a safe condition for its patrons and could not defend a...more

Employment Law Summer Recap 2014: Part 5 of 11 – Old School’s Frank Ricard and Contractual Statute of Limitations Provisions: I...

“...As we have pointed out, in the absence of a statute to the contrary, parties are free to contractually limit the time within which an action may be brought, as long as the contractual time is reasonable and does not...more

How Will Michigan Courts Analyze a Legal Challenge to the Michigan Legislature’s Retroactive Repeal of the Multistate Tax Compact?

In recent days, the state tax world has focused on the State of Michigan’s retroactive repeal of the Multistate Tax Compact (Compact). Last week, the Michigan Legislature passed and Governor Snyder signed into law a bill...more

To Compete or Not to Compete: Is That the Question?

A June 8, 2014 New York Times article highlighted an increasing trend in the areas of antitrust, competition, and employment law: the enforcement of covenants not to compete. As noted in the article, businesses have...more

Who’s a “Foreign Official”? Supreme Court Could Clarify Key FCPA Term

On August 14, 2014, Joel Esquenazi and Carlos Rodriguez filed a Petition for a writ of certiorari in the U.S. Supreme Court seeking clarification of a key term in the Foreign Corrupt Practices Act. Among other arguments,...more

ERISA Litigation Review

The courts have been busy in 2014, addressing a variety of issues in the employee benefits field in decisions that impact everyone from union travelers to ESOP fiduciaries. This advisory summarizes a selection of the 2014...more

What Does “Sprawling Litigation” Look Like?

It looks like what you’d expect: a bunch of litigants spending lots of time at a courthouse in Goliad, Texas, with no end in sight. After much ”sprawl” in Harkins v. Northshore Energy it came down to the meaning of this...more

Texas Supreme Court Recognizes Exceptions to Enforcement of No-Damages-for-Delay Clauses

On August 29, 2014, in Zachry Construction Corp. v. Port of Houston Authority of Harris County, No. 12-0772, 2014 WL 4472616 (Tex. 2014), the Texas Supreme Court found that no-damages-for-delay clauses that purport to waive...more

Frequent-Flyer Class Actions Likely To Be Less Frequent

Airlines offer frequent-flyer programs to reward loyal customers and attract new ones by awarding various perks based on the “miles” each member accumulates. In practice, however, frequent-flyer programs too often attract...more

Forum Selection Bylaws Are Best Considered On A Clear Day

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such...more

Now You See It, Now You Don’t: MTC Election Disappears in Michigan?

On September 11, 2014, Michigan Governor Rick Snyder signed S.B. 156, which purports to repeal the state’s adoption of the Multistate Tax Compact (the Compact) retroactive to January 1, 2008. Mich. Pub. Acts 2014, No. 282...more

What Does Delaware’s Wal-Mart Decision Mean for Attorney-Client Privilege and Internal Investigations?

The Delaware Supreme Court recently came to a decision in Wal-Mart Stores Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW to uphold the order given by the Delaware Court of Chancery to require Wal-Mart to give the...more

Construction Alert: "Texas Supreme Court Sinks Port Authority's Ship - Port Authority's No Damages for Delay Clause Held...

The Texas Supreme Court recently issued an important decision regarding “no damages for delay” clauses in construction contracts. In Zachry Construction v. Port of Houston Authority, the Court found that the owner, the Port...more

Parent Corporation May Meet Definition of Employer Under California Labor Code Where Evidence Shows Control Over Subsidiary’s...

In Castaneda v. The Ensign Group, Inc., et al (September 15, 2014) --- Cal.App.4th ---), the California Second District Court of Appeal considered whether, if a parent corporation with no employees owns and exercises control...more

FRANCHISEE 101: Forum Selection Clauses May Be Enforceable

A recent decision in Allegra Holdings, LLC v. Davis demonstrates that courts are enforcing forum selection clauses in favor of out-of-state franchisors and against in-state franchisees, notwithstanding franchise anti-waiver...more

Setting Up a Successful Negotiation Regarding “2860 Rates”

“The insurer’s obligation to pay fees to the independent counsel selected by the insured is limited to the rates which are actually paid by the insurer to attorneys retained by it in the ordinary course of business in the...more

Cook County Ordered to Start Processing Use Tax Refund Claims By September 24, 2014

On September 17, 2014, the Circuit Court of Cook County entered summary judgment in favor of the Chicagoland Chamber of Commerce, represented by Reed Smith LLP (“Reed Smith”), on the remaining count of their Complaint...more

No Delaware Court Decision Re Fee-Shifting Bylaw On An As-Applied Basis

It now appears that the Delaware court will not address the as-applied validity of a fee-shifting bylaw in the case involving Hemispherx. (As discussed in this post and this Cooley Alert, the Delaware Supreme has already...more

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