Every week, Bloomberg Law features articles written by and for legal practitioners, offering an insider’s view into the most important issues across every practice area: Bloomberg Law Insights.
This week we explored:
- Tips for unique employment issues in family businesses;
- Why litigation funding continues to remain off the books for discovery; and
- Avoiding drafting mistakes in arbitration agreements.
The Family Business
Families are complicated, and so are employment decisions for family-run businesses. Mintz attorney Jen Rubin outlines guidelines for hiring, lines of reporting, and noncompete terms in family-run companies and stresses the importance of documentation and process.
- Fact Specific: Post-employment restrictions should be carefully considered and narrowly tailored to suit the circumstances.
- Be Crystal Clear: A direct line of authority should be established at the outset of the relationship and dual roles (reporting to two or more people) should be discouraged.
About the Author: Jen Rubin is a member of the Mintz employment, labor and benefits section.
No Discovery for Litigation Funding
The judge handling the valsartan drug recall litigation denied discovery requests to disclose litigation funding details. Validity Finance’s Julia Gewolb explains that the judge found disclosure irrelevant to the claims and defenses and says the ruling deals a blow to supporters of greater disclosure.
- No Carte Blanche: As the court noted, there may be narrow circumstances where discovery is warranted.
- Request Denied: The information is irrelevant to the claims and defenses at issue.
About the Author: Julia Gewolb is director of underwriting at litigation funder Validity Finance.
Perfecting Arbitration Agreements
Akin Gump attorneys examine recent court rulings on arbitration agreements and warn that even the most sophisticated entities can fall victim to drafting flaws. They advise using clear and unequivocal language, as strict interpretation of agreements can distort the parties’ intent.
- When to Litigate: Parties should consider whether the subject of the agreement is so complex that it might be better handled by the courts.
- Misconstrued Intent: Absent clear and unequivocal language, strict interpretation of arbitration agreements can lead to the distortion of parties’ intent.
FOR YOUR CONSIDERATION
The Supreme Court is Hearing the Perfect Transgender Employment Rights Case
The U.S. Supreme Court is hearing oral argument in a slam-dunk sex discrimination case, writes Lambda Legal’s Gregory R. Nevins. The fact that plaintiff Aimee Stephens, a six-year employee in good standing, was fired because of her sex is all that is needed for her to prevail, he says.
Tech Start-Ups Need to Woman Up
The tech industry still has a lot of work to do in order to diversify, specifically in the artificial intelligence sector that is dominated by men. Joelson managing partner Philippa Sturt says the industry must understand what hasn’t worked in the past to mend itself and move forward.
Listen to States on Child Sentencing, Bipartisan Legislators Tell High Court
The U.S. Supreme Court will hear oral argument Oct. 16 in the “D.C. Sniper” case involving sentencing for Lee Boyd Malvo. Attonrey John Ellem, a former West Virginia state delegate, explains why he joined a bipartisan amici group of current and former state legislators in calling for a defendant’s youth to be considered in sentencing and giving youth a chance to show they can change.
White House EOs Shed Light, Restore Constitutional Limits on Government Power
President Trump’s two executive orders bring federal agency guidance out of the darkness and promote transparency and fairness. Peggy Little, senior litigation counsel with the New Civil Liberties Alliance says they should be cheered by Americans across political divides.
DASHBOARD Act Could Be Unintended Game Changer for Data Breach Valuation
Legislation imposing new data disclosure requirements on commercial data operators has a valuation disclosure requirement that could fundamentally change how damages are demanded, calculated, and awarded in data breach litigation. Denton’s partner Jason Scheiderer looks at the Designing Accounting Safeguards to Help Broaden Oversight and Regulations on Data Act and potential impact.
Pending Federal ESG Legislation Could Yield Significant and Step-wise Change
ESG regulation bills pending in Congress represent a potentially significant and step-wise change in the status quo with regard to federal regulation, Kirkland & Ellis’s Ali Zaidi says in Part 2 of a series on ESG regulation. Together, they show the readying of a new playbook that looks more like what investors have become familiar with in Europe and Japan.
Federal Sentencing—To Vary or Depart From the Guidelines?
Sentencing in federal courts is an involved process, and there remains confusion between variances and departures from the sentencing guidelines. Weinberg, Wheeler, Hudgins, Gunn & Dial partner Brooklyn Sawyers Belk, a former assistant U.S. attorney, examines the significant distinction between the two and what litigators must be aware of to obtain the best outcome.
Cyber Wolves in CEOs’ Clothing—Business Leaders Thwart Privacy Efforts
National data breach plaintiffs’ attorneys with DiCello Levitt take issue with a recent letter from 51 Business Roundtable CEOs about protecting data privacy. They say the CEOs are paying lip service to consumer privacy in the hopes Congress will quickly pass watered-down privacy legislation that shields them from any real accountability to consumers.
Five Suggestions for Drafting (and Defending) Pre-Dispute Contractual Jury Waivers
Pre-dispute jury waivers are valuable tools to manage litigation risk, but they may not always make sense. Katten attorneys offer five suggestions for drafting them and making sure they are enforced.
LinkedIn Data Scraping Case—9th Circuit’s Trigger for CFAA Liability
The Ninth Circuit signaled the Computer Fraud and Abuse Act isn’t applicable with respect to publicly available data, Finnegan attorneys explain. However, website owners aren’t left without recourse in the burgeoning data race and can consider other legal avenues to combat web scrapers.
‘Original Patent’ vs. Written Description—A New Reissue Gauntlet?
Two recent Federal Circuit patent decisions shake up conventional wisdom about the reissue statute. BakerHostetler’s Barry Bretschneider looks at the two decisions at odds with each other and issued just weeks apart.
Shareholders to Stakeholders—The Business Roundtable Wants to Expand a Corporation’s Purpose
The Business Roundtable, responding to cultural changes, has broadened what the purpose of a corporation should be. Tucker Ellis attorneys Tod Northman and Savannah Fox explain that this won’t require directors to disregard their legal duties owed to shareholders, only that the path to profit will change.
Divorce is Expensive—Funding Options Help Attorneys Secure Fees
Divorce litigation funding is an increasingly popular product that can help divorcing spouses find hidden assets and ensure a more secure financial future for themselves and their children—and help ensure attorneys get paid, writes attorney Nicole Noonan, CEO of New Chapter Capital.
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