The Corporate Lawyer

The newsletter of the ISBA’s Corporate Law Departments Section

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2009 Articles

ABA formal ethics opinion: Ethics Counsel and Reporting. But what about Himmel? By Frank M. Grenard February 2009 On October 17, 2008, the American Bar Association’s Standing Committee on Ethics and Professionalism jumped into the somewhat muddied water of outside counsel disclosure requirements to its corporate clients in issuing Formal Opinion No. 08-453.
Best practices for enforcing United States trademark rights By Clark Lackert & Courtland Reichman July 2009 When it comes to enforcing their rights in the United States, mark owners can choose between a vast array of tools, including arbitration, litigation and anticounterfeiting actions.
“Best practices” for officers and directors navigating the current economic crisis By James A. Beldner, Richard Kanowitz, Scott L. Kaufman, & Ronald R. Sussman May 2009 In light of the current economic environment, it is vital for officers and directors of all companies to understand their fiduciary duties and, in particular, the shifting nature of these duties when their company is operating in a distressed context.
Bloggers beware By Adam Snukal July 2009 The Federal Trade Commission (“FTC”) is in the process of revising its Endorsement and Testimonial Policies and Guidelines—the first set of revisions since 1980.
Case summaries By Frank M. Grenard February 2009 Recent cases of interest to corporate lawyers.
The COBRA subsidy and what it means to employers By J.J. McGrath May 2009 The American Recovery and Reinvestment Act of 2009 was signed into law February 17. It expands COBRA by offering eligible individuals a 65 percent subsidy of their required COBRA premiums and an additional enrollment period to re-elect COBRA coverage and pay only 35 percent of the COBRA premium.
Do your corporate policies consider social media? By Mark F. Hoffman & Trenton C. Dykes July 2009 From blogs to Facebook to Twitter, the use of social media is exploding. Increasingly, public companies are turning to these digital media avenues to capture and direct public attention and boost sales.
Editors’ Note By Lola Miranda Hale & John Ambrogi October 2009 A message from co-editors Lola Miranda Hale and John Ambrogi.
Editor’s note By Michelle L. Thoma-Culver July 2009 An introduction to the issue from Editor Michelle L. Thoma-Culver.
Editor’s note By Michelle L. Thoma-Culver June 2009 An introduction to the issue from Editor Michelle L. Thoma-Culver
Editor’s note By Michelle L. Thoma-Culver May 2009  An introduction to the issue from Editor Michelle L. Thoma-Culver.
Editor’s note By Michelle L. Thoma-Culver February 2009 An introduction to the issue from Editor Michelle L. Thoma-Culver.
Editor’s note By Michelle L. Thoma-Culver January 2009 An introduction to the issue from Editor Michelle L. Thoma-Culver.
Extra work is extra work By Raymond A. Fylstra September 2009 Many formal construction contracts explicitly state that extra or additional work must be authorized by a written change order signed by the owner. Although there are some exceptions, such clauses normally will be enforced if they are clear.
Force Majeure as a risk allocation tool By Mark A. Primack, Stanley R. Weinberger, & Michael D. Kim June 2009 While the “irresistible” forces of force majeure events include acts of God, they also typically include wars and insurrections and sometimes conventional commercial events such as labor disputes, supply interruptions and equipment failures.
Generating revenue streams in tough times (or at any time): Putting your intellectual property assets to work By John Ambrogi May 2009 In difficult economic times like these, many business executives and owners have their minds on the bottom line—streamlining processes, reducing overhead and trimming “fat” to maximize profitability. It is a highly useful effort, but some executives can get “tunnel vision” and overlook opportunities to create revenue streams. One of the most overlooked areas is a company’s intellectual property assets.
A green economy: What does corporate counsel need to know? By E. Lynn Grayson December 2009 A media buzz surrounds the politically charged concept of developing a green economy by investing in initiatives that are good for the environment and financially beneficial for business
The Importance of reviewing your Directors’ & Officers’ liability insurance policy By Lola Miranda Hale October 2009 This article highlights practical issues companies should consider in connection with their D & O policies and provisions relating to indemnification.
International HR economic downturn toolkit: What you need to know to project-manage cross-border restructurings, pay-cuts, and reductions-in-force By Donald C. Dowling, Jr. June 2009 When a U.S.-headquartered employer suffers economic difficulties and needs to cut back its human resources costs, the first strategies that will likely come to mind are U.S.-style retrenchments like restructurings, pay-cuts, and reductions-in-force. This “toolkit” addresses how American-based multinationals can project-manage a cross-border human resources retrenchment across operations outside the U.S. 
Loan Modification Agreement February 2009 The following sample Loan Modification Agreement has been prepared for educational and information purposes only.
Maintain ethical corporate governance during the economic downturn By R. Stephen Scott January 2009 The current economic downturn poses many new challenges to corporations. Failure to maintain ethical corporate governance, to save costs or to avoid delayed actions, may only complicate or derail the corporate objectives, as the automakers and Bank of America have learned. Failure to meet important stakeholder expectations will surely lead to loss of the public’s support, while exceeding those expectations should lead to greater support and achievement of the corporate objectives.
Mandatory disclosure and expanded ethics requirements for government contractors By John E. Jensen January 2009 Starting on December 12, 2008, new rules require all federal contractors to disclose to the government violations of many federal criminal laws and any false claims made to the government. These changes are likely to cause contractors to reassess their ethics and compliance programs. The changes will present contractors with challenging questions, such as whether a disclosable violation has occurred.
New amendment to Human Rights Act By Peter LaSorsa October 2009 The Illinois Human Rights Act (“IHRA”), found at 775 ILCS 5/1-101, is being amended and, starting January 1, 2010, will offer protection to individuals who have an order of protection.
New and improved and available January 1, 2010: Transparency in government By Frank M. Grenard September 2009 On August 17, 2009, Governor Pat Quinn signed one of the most sweeping revisions of the Illinois Freedom of Information Act (5 ILCS 140/1) (the “Act”) since it was adopted in 1983.  
Omnicare v. UnitedHealth Group: Important considerations for companies exchanging information in a merger or acquisition context By Robert F. Leibenluft, Steven M. Edwards, Corey W. Roush, & Benjamin F. Holt May 2009 The recent Omnicare decision highlights several important considerations for companies seeking to share information with competitors in the context of evaluating a merger or acquisition.
President Obama names Victoria Espinel as Intellectual Property Enforcement Coordinator By Pradip K. Sahu October 2009 On September 25, 2009, President Obama appointed Victoria Espinel as the new Intellectual Property Enforcement Coordinator of the United States.
Renegotiating debt? Tax traps for creditors By Steven W. Swibel June 2009 Tax consequences of debt modification are not only a debtor’s concern. Creditors are often surprised that debt modification can result in unanticipated adverse tax consequences. 
Software acquisitions beware! By Frank M. Grenard December 2009 What rights does a successor corporation have in a software license? According to the US Court of Appeals for the Sixth Circuit, none without approval.
Summary of legislative action taken by Corporate Law Departments (“CLD”) Section Council By Jim McGrath May 2009 Throughout the year the CLD Section Council will endeavor to update you on the bills we have reviewed and whether or not they became law. What follows is a summary of those the CLD Section Council has reviewed thus far, with succinct descriptions and opinions supplied by the author of this article.
Taxation by association: Amazon.com law and state taxation of Internet sales By Scott Drago September 2009 Historically, Internet retailers have not collected state and local sales taxes on sales made through an associate program, provided the Internet retailer itself does not have a sales force or store in a particular state. However, the days of relying on this exemption may be numbered.