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Litigation Alert >> Double-Derivative Shareholder Actions In The Wake Of Stock-For-Stock Mergers - Alert -  02/16/2011

Shareholder derivative actions can emerge as an important issue for nearly everyone involved in a company’s activities, including its executives, board members, in-house attorneys, principals and other shareholders. Under certain circumstances,this mechanism can allow a shareholder to redress harm to the corporation by bringing a lawsuit on the corporation’s behalf where the corporation’s management is prevented from doing so due to conflicts of interest.

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Intellectual Property Litigation Alert >> Government Seizes Websites On Suspicion Of Copyright Infringement - Alert -  02/10/2011

U.S.Immigration and Customs Enforcement (ICE),a unit of the Department of Homeland Security (DHS), recently seized several websites on suspicion of posting downloadable copyrighted materials without the authority of the copyright owners.

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Litigation Newsletter >> Winter 2011 - Newsletter -  01/11/2011

In this Winter issue, we report on some recent developments in the areas of commercial law, intellectual property and employment law, along with some practical advice that may help you avoid litigation.

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Financial Management of a Marketing Firm: Avoiding Legal Pitfalls - Published Article -  11/23/2010

By: Michael C. Lasky, Anne DiGiovanni and Nordia Edwards

This chapter concentrates on the most common areas where legal disputes arise, covering copyright, trademark, social media, client contracts, and employment and HR issues.

Those in the business of providing marketing or communications services for clients generally place a high value on their talent pool—and for good reason: the creative work product generated by the company’s employees is essential to its success.

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Litigation Alert >> Preserving Attorney Work-Product Confidentiality In Communications With Auditors - Alert -  10/14/2010

In the course of a company operating its business, it will typically authorize its outside counsel to respond to requests from the external accounting firm to describe the status of litigations that may be contingent liabilities, and that may have a possible impact on the company’s financial statements. Because of this practice, courts have wrestled with the issue of whether a lawyer’s written response to its client’s accounting firm is protected from the broad disclosure rules that civil litigation normally entails.

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Inside the Minds: Electronic Records Management and e-Discovery - Published Article -  08/19/2010

By: Marc Rachman and Michael Lasky

Regulations Governing Electronic Records and e-Discovery
For cases in federal court, the Federal Rules of Civil Procedure contain specific rules governing electronic records and discovery. For cases in state court, some state courts follow the rules set forth in the Federal Rules of Civil Procedure, but many do not, and either have their own rules governing electronic records and discovery or rely on court decisions on the subject. Given the variations from state to state and between state procedure and the Federal Rules of Civil Procedure, we will focus on the Federal Rules of Civil Procedure in this chapter.

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Litigation Alert >> Recent Rulings Illustrate Important Need For E-Discovery Document Preservation Policy - Alert -  08/18/2010

As reported in our Spring 2010 Litigation Newsletter, there have been several recent decisions concerning electronic discovery obligations that illustrate the importance of having in place a proper document preservation policy. Two of these are particularly relevant and are discussed below. They both illustrate how failing to preserve relevant documents can severely impair a party’s ability to defend or prosecute its case and can also lead to harsh monetary penalties.

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Litigation Newsletter >> Spring 2010 - Newsletter -  05/24/2010

Spring is always a good time to take a fresh approach to your business practices. In this issue, we report on some recent developments in the areas of intellectual property, commercial law and employment law, along with some practical advice that may help you avoid expensive litigation.

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Litigation Newsletter >> Fall 2009 - Newsletter -  11/03/2009

Summer’s over, and it’s back to business. It is also a good time to evaluate some of your important business practices. In this issue, we report on several interesting and important developments in intellectual property, employment and commercial law, and offer some practical advice in these areas.

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Litigation Alert >> Using Liquidated Damages Clauses In Employment Contracts - Alert -  10/09/2009

Employers should consider using liquidated damages clauses in employment agreements to fix the sum of damages from breaches of restrictive covenants, and should carefully consider the anticipated harm to ensure that the fixed sums are reasonable.

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Forbes.com // Oprah Vs. The Supplement Sellers - Press Mention - 08/20/2009

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Litigation Newsletter >> Spring 2009 - Newsletter -  04/23/2009

Put spring cleaning on your "to-do" list! We recommend that you scour your business practices to see if you can clean them up to save money and also avoid litigation. Here are some recent developments in the areas of employment,intellectual property and commercial law, along with practical advice as to how to benefit from the experience of others.
When Does a Barb Become Actionable?
Overzealousness in Asserting Copyright Claims
Defenses to Bankruptcy Clawback
Contractual Relationship & Fiduciary Duty

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The Metropolitan Corporate Counsel: The Cutting Edge: A Non-traditional Basis For Federal Jurisdiction Under The Edge Act - Published Article -  04/01/2009

By: Michael C. Lasky and Sean P. Cameron

How can a federally chartered bank find a basis for federal court jurisdiction even without a federal question or diversity among the parties? The answer is the very powerful, but little-known, provision of the Edge Act codified at 12 U.S.C. § 632 (“Section 632”).

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Law 360: Arbitration Discovery Has Its Limits - Published Article -  02/18/2009

By: Neal H. Klausner and Scott M. Singer

Arbitration continues to grow in popularity as a means for resolving disputes because of the many features it can offer instead of litigation, including the more streamlined and cost-effective discovery process typical in arbitrations.

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Litigation Newsletter >> Winter 2009 - Newsletter -  01/29/2009

IN THIS NEWSLETTER:
Have you made a New Year’s resolution to minimize business risk in 2009? This issue provides four examples of how to avoid surprise liabilities in your employment, intellectual property and business dealings.

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The Metropolitan Corporate Counsel: The Protocol for Broker Migration: Have Signatory Firms Effectively Conceded That Certain Client Information is Not Confidential - Published Article -  11/01/2008

By: Neal H. Klausner

In these times of economic uncertainty for the financial services industry, brokers and other financial advisors with client relationships are especially valuable.  Even as the industry goes through a restructuring and contraction, offers are being extended to talent with pre-existing client relationships.

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Labor & Employment Alert >> New York's Highest Court Permits Deductions of Business Costs in Calculating Commissions - Alert -  06/17/2008

In Pachter v. Bernard Hodes Group, the Court of Appeals, New York’s highest court, clarified last Tuesday that parties may establish, by agreement, how commissions are calculated and when they are “earned” for purposes of Article 6 of the New York Labor Law. 

Howard Rubin, Allie Lin, Laurie Morrison, and Peggy Chen

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The Firm Voice: Avoiding Costly Mistakes: How to Copy 'Right' and How Not to Copy 'Wrong' - Published Article -  06/04/2008

By: Michael C. Lasky, Sara L. Edelman, and Shirin Keen

Every day, public relations firms distribute copyright-protected material. You may be unintentionally violating the federal copyright law when you photocopy a magazine article and share it with your clients by e-mail, post an industry newsletter on your company's intranet site or distribute a research report at a client presentation. As technology makes distributing works easier and easier, it is even more important to be mindful of copyright issues because the penalties can be severe – no matter how innocent the infringement may seem. This article provides a brief overview of copyright law and some tips about how to copy "right" and copy "wrong."

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New York Law Journal: Is Silence Golden? - Published Article -  04/07/2008

By: Neal H. Klausner and Ariel L. Stillman

A growing number of companies are instituting large-scale dispute resolution and arbitration programs for all disputes that employees may have with their employer. An estimated 15 to 20 percent of businesses, including some of the nation’s largest employers, now require employees to arbitrate employment disputes, in contrast to less than 10 percent of companies in 1995.1 As part of this trend, companies are providing notice of their arbitration policy in information sessions with their employees and advising employees that this policy is controlling upon them unless they opt out of it in a pre-determined way. Is the employee bound by the arbitration policy, however, if he or she does not affirmatively opt out of it? In other words, is silence golden?

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The Metropolitan Corporate Counsel: Second Circuit Provides Clearer Picture On False Advertising Doctrine - Published Article -  02/01/2008

By: Marc J. Rachman, Joseph J. Lewczak and Christopher Poindexter

In August 2007, the Second U.S. Circuit Court of Appeals issued an opinion concerning certain DIRECTV advertisements that provided a clearer picture on its false advertising doctrine. It modified the District Court’s ruling banning DIRECTV from disseminating in any Time Warner Cable, Inc. (“TWC”) cable market certain television commercials and Internet advertisements found likely to violate the Lanham Act on literal falsity grounds. See Time Warner Cable, Inc. v. DIRECT TV, Inc., 497 F.3d 144 (2d Cir. 2007). The case concerned claims made in some of DIRECTV’s advertisements about the picture quality of DIRECTV’s high definition (“HD”) programming. In evaluating DIRECTV’s HD quality claims, the Second Circuit made three clarifications to its false advertising doctrine: (i) an advertisement can be literally false even though it does not explicitly make a false assertion, if the words or images, considered in context, necessarily and unambiguously imply a false message; (ii) the category of non-actionable “puffery” encompasses visual depictions that, while factually inaccurate, are so grossly exaggerated that no reasonable consumer would rely on them in navigating the marketplace; and (iii) the likelihood of irreparable harm may be presumed where the plaintiff demonstrates a likelihood of success on its literal falsehood claim and that given the nature of the market, it would be obvious to the viewing audience that the advertisement is targeted at the plaintiff, even though the plaintiff is not specifically identified by name.

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Litigation Newsletter >> Winter 2008 - Newsletter -  01/01/2008

Here is a brief update of some recent developments in the areas of intellectual property, commercial and employment law and some practical advice as to what you can do now to avoid litigation in the future.   If you are already facing litigation, these tips may benefit your litigation strategy or help facilitate a cost-effective settlement.

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The Metropolitan Corporate Counsel: Who’s On The Move? Protect The Assets That Ride Up And Down In Your Elevator - Published Article -  09/01/2007

Interview with: Michael C. Lasky

Editor: Mr. Lasky, would you tell our readers something about your responsibilities at Davis & Gilbert?

Lasky: I co-chair Davis & Gilbert’s Litigation Department. I also oversee the pro bono activities of the firm and am a member of the firm’s management committee.

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The Metropolitan Corporate Counsel: Communicating With Employees Or Former Employees Of A Represented Party - Published Article -  08/01/2007

By: Neal H. Klausner and Ariel Stillman

Can an attorney for a corporation’s adversary in litigation contact and interview a former employee who was actively involved in the litigation strategy when he or she was employed by the corporation? The New York Court of Appeals recently held that such ex parte contacts are permitted, so long as the attorney takes certain steps to ensure that the former employee does not disclose privileged or confidential information.

 

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CNN Money // Virtual Worlds, Real Litigation - Press Mention - 06/01/2007

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The Metropolitan Corporate Counsel: Employment Roundtable: Updates In Discrimination Law - Published Article -  11/01/2006

By: Michael C. Lasky and Daniel A. Feinstein

In this roundtable, we discuss two recent New York decisions that expanded
the scope of the state’s discrimination law. The first decision involves the application of New York State’s discrimination law to employees who are working outside the United States, but who report to supervisors based in New York. This matter has broad implications for multi-national corporations with offices in New York. In the second decision, a state court held that a transgendered individual is protected under New York State’s discrimination law on the grounds that it constitutes discrimination based on sex. Our third topic relates to the taxation of non-physical damage awards in employment discrimination cases. In a decision that is likely to have a significant impact on negotiations to settle discrimination claims brought by employees against their employers, the U.S. Court of Appeals for the District of Columbia Circuit held that the taxation of damage awards for nonphysical
injuries is unconstitutional.

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New York Law Journal: Online Advertising Challenges Tradition - Published Article -  10/10/2005

By: Marc J. Rachman and Gary A. Kibel

The Interactive advertising industry is enjoying a surge in revenues as online advertising becomes an increasingly important and required element in the advertising campaigns for many marketers. According to the Interactive Advertising Bureau, in the first quarter of 2005 alone, advertisers spent more than $2.8 billion on interactive advertising.1 With the growth of this emerging industry, it is facing legal challenges on a regular basis. Two noteworthy challenges are determining the acceptable uses of new forms of online advertising and resolving long-running disputes over the legally permissible uses of trademarks in the online world.

 

 

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The Metropolitan Corporate Counsel: Outside Firm Adds Value - As Attorneys and Counselors - To Corporate Legal Department - Published Article -  09/01/2005

Interview with: Michael C. Lasky and Gary L. Kessler.

The Editor interviews Michael C. Lasky, Davis & Gilbert LLP, and Gary L.
Kessler, Executive Vice President – Operations of Carey International, Inc.

Editor: Would each of you gentlemen tell our readers something about your
background and professional experience?

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The Metropolitan Corporate Counsel: Are Punitive Damages Available Under The Copyright Act? - Published Article -  03/01/2005

By: Marc J. Rachman, Sara L. Edelman, David Greenberg

Given the Copyright Act’s express enumeration of available remedies under the Act and its silence with respect to punitive damages, one would think that a copyright owner is barred from seeking punitive damages when bringing a claim for copyright infringement. Several recent decisions in the Southern District of New York, however, have allowed punitive damages claims to proceed. This article will discuss the traditional view that punitive damages are not available under the Copyright Act, and will explore recent decisions indicating that such damages might be recoverable under certain circumstances. This article will then discuss the implications for both plaintiffs and defendants, and will finally argue that punitive damages should not be available in copyright actions.

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The Metropolitan Corporate Counsel: Ensuring Fair Competition When a Former Employee Has No Restrictive Covenant: Common Law Protections for Employers - Published Article -  01/25/2005

By: Neal H. Klausner

Here is the situation: A high-level executive has worked for your company for ten years. She recently developed marketing and strategic plans for the company’s new products. She has had access to documents concerning the company’s strategic plans to compete, financial goals, pricing strategy and promotional events for the next few years. And she has participated in recent meetings at which the company discussed this information. The executive has never signed any restrictive covenant agreement and is an at-will employee. The executive abruptly tenders her resignation and announces her intent to assume a similar position with one of the company’s main competitors. This situation is not just hypothetical, it was the basis for a lawsuit between two major competitors in the beverage industry.

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New York Law Journal: Wait, the Copyright Act Allows Punitive Damages?  - Published Article -  01/24/2005

By: Marc J. Rachman, Sara L. Edelman and David Greenberg

This article will discuss the traditional view that punitive damages are not available under the Copyright Act, and will explore recent decisions indicating that such damages might be recoverable under certain circumstances. This article will then discuss the implications for both plaintiffs and defendants, and will finally argue that punitive damages should not be available in copyright actions.



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