Saturday, July 6, 2013

Bolstering Arbitration, Supreme Court Sides with Amex

Continuing its warm embrace of arbitration and its disdain for class actions, the Supreme Court on Thursday ruled that agreements between companies and their customers can prohibit class action arbitration, even if that makes it harder for plaintiffs to vindicate their claims.

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Judge Faces Disciplinary Action for Giving Girlfriend Legal Help

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Rock & Role: GC Finds Solid Ground in Stone Business

Christian A. 'Chris' Garza Christian A. "Chris" Garza
Photo: John Everett

While a Yale Law School student, Texas native Christian A. "Chris" Garza says he never imagined he'd be doing the work he does today.

"In law school, you didn't really know what in-house practice was," says Garza, director, general counsel and secretary for Cosentino North America in Houston. "At Yale, most aspire to become politicians or professors or law firm partners."

Cosentino is a privately held business that manufactures and supplies stone and quartz construction surface products such as bathroom and kitchen counters. The company has manufacturing facilities in Europe and about 700 employees in the United States in warehouse, fabrication and display centers, he says. Garza joined the company in January, and his legal department includes one other lawyer and three nonlawyer managers.

But initially, like many of his classmates, Garza imagined himself working toward partnership at a law firm.

Garza grew up in San Antonio and earned a bachelor's degree in liberal arts and government at the University of Texas in Austin.

"I always wanted to be a lawyer; my dad was a lawyer," he says. His father, Richard Garza, of the Law Offices of Richard L. Garza, practices family and personal injury law in San Antonio. "I met a lot of lawyers growing up. I always wanted to be like my dad."

After graduating from law school in 2001, Garza worked as an associate with the appellate group of Vinson & Elkins in Houston where he had been a summer associate. He was with V&E for almost a year before beginning a one-year clerk's position with 5th U.S. Circuit Court of Appeals Judge Carolyn Dineen King in Houston, who was then the chief judge.

After the clerkship he joined King and Spalding in Houston where the firm was developing an appellate group.

About four years later, in 2007, Garza decided to make a career change.

"I realized appellate practice was not best suited for my personality and skill set," he says. "I enjoyed writing — but not 90 percent of the time. I wanted more interaction with clients. I wanted to get more business knowledge."

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High Fructose Corn Syrup Blamed in Suit for Diabetes

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Friday, July 5, 2013

Verizon Beats $9 Billion Suit over Idearc Spin-off

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How to Win a Negotiation

Ellie K. Vilendrer

It is counterintuitive in business negotiation that someone would agree to take a loss so you can take a gain. The key to getting your opponent to do something that is in your best interest is persuading your opponent that accepting your proposition is in their best interest. Your offer or demand, therefore, must be presented as a win-win. This is true no matter what you are negotiating.

The following guidelines will help you achieve your desired outcome, whether it is to settle a dispute or win a big contract for your company:

Calculate your bottom line by figuring out your best alternative to a negotiated agreement. This is the course of action you will take if agreement cannot be reached. Evaluate all costs and benefits of agreement and non-agreement, including non-monetary costs and benefits.Prioritize your interests and identify your aspiration point (or goal). This should be reasonable in light of the strengths and weaknesses of your position.When preparing to make a demand, think of different options or packages you can propose, if possible. You will want to present options that seek to achieve your opponent's objectives in addition to your own.Research your opponent if you are not familiar with them. Knowing their background and personality will give you more insight into how to frame your dialogue.Consider what form of communication will be most conducive to achieving a favorable result. In-person negotiations are usually the most productive when stakes are high, whereas email communications are often the least productive (or even counter-productive). The less personable the communication, the greater the likelihood your opponent will be overly aggressive and reject your demand outright or make a ridiculous counter-offer. People have a much harder time acting aggressively face to face, and to a lesser extent on the telephone. Email can be an unproductive form of communication, particularly because tone is often misunderstood.Spend time establishing a rapport and finding commonalities with your opponent. This will help foster a cooperative environment. If you research your opponent in advance you may be able to point out a commonality during the introduction.Make your opening position strong by demanding an amount that is as much more than your bottom line as you can fairly and reasonably justify. The negotiator who makes the first reasonable demand or offer will set the bargaining range for the entire negotiation.Persuade your opponent that agreeing to your demands is in their best interest by highlighting the weaknesses of their case and the strengths of yours. If confronted about your weaknesses, acknowledge them, but quickly follow up with your strongest point.Give concessions slowly, but appropriately.Although you are firm, be sure to maintain a friendly, collaborative tone. For example, you can say, “I am prepared to [fill in the blank] if this does not resolve the matter, but I am confident we can resolve this amicably.”Demonstrate why your demand is reasonable by using objective criteria (such as figures or statistics) to justify your position. This will help you establish credibility.Explain why your opponent’s position is unreasonable.Probe your opponent to find out their interests. Ask questions of your opponent to expose the weaknesses in the reasoning offered to support their demands. Make sure that all of their demands are justified by reasonable objective criteria.Ask your opponent to prioritize their interests.Listen to your opponent instead of merely thinking about what you are going to say next.Do not divulge information that is unnecessary and unproductive.Show interest in your opponent's interests. Your opponent will only accept your proposition if they believe it is in their best interest to do so.Depending on the deal, you may be able to dovetail your and your opponent's interests and create options for mutual gains. Think of some of these options in advance of the negotiation, but do not offer so many as to overwhelm them.As the negotiation proceeds and each of you make concessions, acknowledge the progress that you are making to cultivate a positive, non-competitive atmosphere.Do not create false issues. Creating false issues may be disruptive because you may not be able to demonstrate why the issues are important and how you are affected by them.Many studies have shown that mirroring the aggressive and cooperative patterns of your opponent's style in a negotiation is highly effective. Such reactions of reward and punishment, however, must be applied appropriately and consistently to be effective.Just as you are consistent in your reactions, you should also be consistent in your actions. Being consistent makes your threats and demands credible.Beware of non-verbal communication that may be sending your opponent the message that your position is weak (i.e., slouching, biting your lip, looking down, or speaking softly). Use positive body language to convey confidence (i.e., eye-contact, erect posture). Having adequately prepared will enhance your confidence naturally. Additionally, use positive body language to appear cooperative (i.e., nod your head to show you are listening). Studies have shown that women are naturally more inclined to non-verbally communicate that they are listening so men should pay even more attention to this.


Refine your skills as a negotiator by reflecting on your negotiations. No matter your personality style, you can be an effective negotiator. Just make your opponent an offer that is in their best interest and that is an offer they will not be able to refuse.

Ellie K. Vilendrer is an attorney with Bassford Remele, a law firm in Minneapolis. Vilendrer focuses her practice on commercial litigation, general liability, medical malpractice, and contract negotiation. She earned a J.D. from Brigham Young University and graduated from the University of Southern California with a B.S. in Business Administration, emphasis in Corporate Finance, and a B.A. in French. Vilendrer can be contacted at evilendrer@bassford.com or (612) 376-1671.

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Durbin Asks High Court to Go Live with Opinions

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Thursday, July 4, 2013

ACC Value Champions Offer Tips for Legal Savings

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What's So Special About Patent Law, Judge Asks

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Cybersecurity, Bribery Top Topics in SEC Filings

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References to both cybersecurity and antibribery risks in regulatory filings by public companies have increased in the past year, according to a new analysis from business-intelligence firm Intelligize.

The "Managing Risk Better in 2013" white paper, released on Thursday, compares those disclosures filed with the Securities and Exchange Commission between January and June of 2013 to those filed in the second half of 2012.

References to cybersecurity concerns—increasingly a top focus of regulators and lawmakers—numbered more than 800 so far this year, a 106 percent increase compared to the preceding six-month period.

When breaking out the filings by industry, Intelligize noted more references to cybersecurity as a risk factor in disclosures by the telecommunications industry than in any other. Telecom companies accounted for 21 percent of cybersecurity references in SEC filings, followed by computer and online services (19 percent), consumer products (15 percent), and financial services (12 percent).

Cybersecurity mentions also appeared among real estate and business services companies (12 percent), manufacturing and construction firms (5 percent), and natural resources and food outfits (5 percent).

The range of companies bringing up cybersecurity in their SEC filings shows that “it’s much broader now as a discussion topic, and it’s something on the minds of executives across industries,” says Gurinder Sangha, the CEO of Intelligize, which provides analytics and tracking services for regulatory filings. The firm’s clients include one-third of Dow Jones Industrial Average components, according to Sangha.

U.S. companies have come under pressure from the SEC to disclose their cybersecurity risks, as the agency has issued guidance and sent individual comment letters to corporations on the subject. Analyzing the discussion topics within filings can be educational for companies, Sangha tells CorpCounsel.com, “but it also leads to internal discussions on how a company's peers are addressing and tackling similar, challenging issues.”

In an example of a recent 10-Q filing cited in the white paper, “Central Hudson Gas & Electric Corporation disclosed that it had recently experienced a cyberattack in which confidential customer information may have been exposed to an unauthorized third party.”

The company said it initiated an investigation into the attack, alerted customers and regulatory agencies, and also “offered free credit monitoring services to customers who may have been impacted,” according to the paper.

References to the Foreign Corrupt Practices Act (FCPA), which prohibits U.S.-listed companies from paying bribes to win business overseas, have also spiked this year. According to the Intelligize paper, “there have been over 2,000 references to the FCPA in companies’ SEC filings in the past six months. This represents a 33 percent increase compared to FCPA references in the previous six-month period.”

Just last month the French oil and gas company Total S.A. agreed to settle charges of FCPA violations with U.S. regulators to the tune of $398 million. In another FCPA matter involving Ralph Lauren Corporation and Argentine officials, the SEC “chose not to charge the company because it promptly and fully reported violations on its own initiatives, just two weeks after learning of the bribes,” the paper notes. Ralph Lauren paid disgorgement and fines totaling about $1.5 million.

Additionally, the paper highlights discussions by companies of corporate taxes and offshore holdings—a topic that’s generated controversy for Apple Inc. and is being debated in Congress. “In order to avoid association with tax avoidance, many companies have taken the initiative to disclose information about tax repatriation in their SEC reports,” according to Intelligize.

Both Hewlett-Packard and Google have discussed repatriation of cash reserves in recent filings.

HP, for example, acknowledged that it held substantial amounts of cash overseas and that it retains “favorable tax rates associated with certain earnings from HP’s operations in lower-tax jurisdictions throughout the world,” according to the paper, which quotes HP’s filing directly.

For its part, Google said in a March disclosure that out of the company’s $50.1 billion in cash and securities, $31.1 billion is held by foreign subsidiaries.

“Google stated that it intended to keep these funds outside of the U.S. rather than repatriate them to fund U.S. operations,” the paper says. “Using Intelligize’s SEC Checker, it has been found that many other companies use similar language of retaining cash in overseas jurisdictions in order to ‘satisfy liquidity requirements.’ ”

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Panel Isn't Buying Kleiner Perkins' Arbitration Pitch

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Wednesday, July 3, 2013

Lawyer's Fudging of HUD Forms Draws Supreme Court Censure

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Impact of Town's Urban Renewal On Minorities Is Before Top Court

Home > Impact of Town's Urban Renewal On Minorities Is Before Top Court

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By Charles ToutantAll Articles

New Jersey Law Journal

June 19, 2013

The U.S. Supreme Court has agreed to hear a case testing whether a town redevelopment plan's alleged disparate impact on minorities forms a prima facie claim under the federal Fair Housing Act.

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Comma Debate Punctuates Justices' Argument

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Federal Circuit Nominee Sails Through Confirmation Hearing

Home > Federal Circuit Nominee Sails Through Confirmation Hearing

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By Todd RugerContactAll Articles

The National Law Journal

June 19, 2013

A career staff attorney at the U.S. Justice Department who could become the first openly gay federal appellate court judge sailed through his confirmation hearing Wednesday on Capitol Hill.

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Moscow the Only Loser Among NLJ 350 Overseas Markets

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Tuesday, July 2, 2013

ACC Value Champions Offer Tips for Legal Savings

The prevailing wisdom among the Association of Corporate Counsel’s newest class of Value Champions is that hourly billing for legal services is dead, technology is on the rise, and predictability is a priority. Among the 2013 champs are Bank of America, Office Depot Inc., and Nike Inc.

The annual competition is a component of ACC's ongoing Value Challenge, which the organization created to recognize law departments and law firms that have cut legal costs without cutting quality. This year’s honorees include eight law departments and four law department/law firm collaborations that made noteworthy use of value-focused approaches to legal management.

A common trend among the honorees was realizing savings by ratcheting up reliance on alternative fee arrangements, although Catherine Moynihan, the ACC’s director of legal management, suggested “value-based fees” is a more apt term.

“We try to not marginalize them by calling them alternative fee arrangements,” she said.

Representatives from the 2013 champs said that billing by quality of work, rather than by time spent on a project, has been better for legal departments and outside counsel alike. Since 2011, Healthcare Insurance Reciprocal of Canada (HIROC) and its outside legal counsel, Borden Ladner Gervais, have foregone hourly compensation for a model in which compensation comprises a base fee, plus a performance fee determined by a number of “value criteria,” like process management, responsiveness, predictable costs, and final results. The team was honored by ACC for achieving predictability and pay for performance in a long-term client/firm arrangement.

The partnership’s process for dealing with malpractice claims demonstrates how the new fee system creates value. HIROC anticipates the number of malpractice claims they’re likely to see in a given time frame and the severity of those claims, based on past data. Then they look at past invoices and data from BRG to assess a fair fee. Michael Boyce, the claims vice president at HIROC, said the system works especially well because the firm and company have worked together for 25 years and trust each other.

“We have been very forthright in giving them our numbers, and they have been in turn forthright in giving us the number of hours and type of work that has been done,” Boyce said. And BRG is happy with the new arrangement. “The incentive is to spend less time rather than more time,” said BLG partner John Morris of the new model. “If we do it efficiently and well, we get more money.”

Bank of America has also successfully increased its use of alternative fee arrangements, said Lani Quarmby, the bank’s associate general counsel and senior vice president. The bank now uses AFAs for 80 percent of litigation matters. The move to a more detail-oriented, communication-heavy billing model has helped BoA to streamline the number of firms it uses, from using more than 700 law firms in 2010 to only 30 today.

Like Boyce, Quarmby noted that new fee arrangements were better for both in-house clients and their outside law firms because it requires closer relationships.

“It’s definitely improved communication between in-house and outside counsel,” she said.

“The biggest myth out there is that companies are looking for fixed fees to reduce spending,” said Michael Caplan, chief operating officer of the office of general counsel at Marsh & McClellan Companies. Marsh & McClellan reduced outside legal spending by 54 percent in four years, but Caplan said the company isn’t trying to skimp on legal services. “We’re looking to better understand what the matter is about,” he said. He added that they regularly give bonuses to firms that meet set goals.

Several of the Value Champions agreed that ensuring pricing predictability is key to efficient legal departments. Elisa Garcia, general counsel at Office Depot, said she worked “to build a crystal ball for the business units so they could project legal costs.” More than half of outside counsel spending for Office Depot now operates on value-based fees, and the company has reduced its legal spend by 30 percent.

And the key to predictability is technology, said Lucy Fato, deputy general counsel at Marsh & McLennan. Her company achieved success with the help of Sky Analytics, a vendor that benchmarks company spending with that of its peers.

“Being able to collect data and starting to have metrics and setting goals for ourselves . . . made a big difference,” she said.

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Upping Collaboration, Prosecution to Fight Corruption

Corporate executives whose companies are working on the international stage should be wary of the Department of Justice’s aggressive prosecution of individuals on bribery charges, Mythili Raman, acting assistant attorney general for the DOJ’s criminal division, said in a speech Monday.

In her speech, delivered at the Global Anti-Corruption Congress, Raman said the department is “now—more than ever—holding individual wrongdoers to account.” Since 2009, the DOJ has convicted over three dozen individuals for engaging in foreign bribery schemes, and in the last two months, the department has announced charges or guilty pleas against 12 executives.

“By redoubling our commitment to bring to justice those individuals who bribe for business, we are sending an unmistakable message to corporate executives around the world—if you engage in corrupt conduct, you should be prepared to face very real consequences, including jail time,” she said.

To aid in anticorruption efforts, the DOJ is seeing a strengthening movement toward cross-borderer collaboration, Raman said, citing a number of international prosecutions, including the coordinated U.S. and French prosecution of Total, a French oil and gas company, as examples.

This collaboration is aided by educational efforts at the Justice Department, the Securities and Exchange Commission, and the Federal Bureau of Investigation, including a training course on combatting foreign corruption late last year that was attended by about 130 judges, prosecutors, investigators, and regulators from more than 30 countries, multi-development banks, and international organizations, a meeting Raman called “unprecedented.”

“Needless to say, we were able to advance a number of specific prosecutions through that meeting and, as important, forge new bonds with an entire generation of prosecutors dedicated to combating global corruption,” she said.

Raman also cited increasing membership in the Organisation for Economic Co-operation and Development Working Group on Bribery and the OECD Anti-Bribery Convention as factors driving increased international collaboration in the fight against corporate corruption.

“This type of collaboration is absolutely critical if we are going to have a meaningful impact on corruption internationally” she said. “As our economies become more interdependent, corruption itself is increasingly transnational. What may be a domestic corruption concern for one country may very well be a foreign bribery concern for another.”

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Patton Boggs Takes Aim at Chevron Fraud Claims

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Fee Awards Begin to Trickle Out in BAR/BRI Class Action

As class members in the $49 million BAR/BRI settlement continue to wait for their distribution checks, lawyers for five individuals who succeeded in unraveling key portions of the deal on appeal were granted immediate payment of more than $230,000 in fees and costs.

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Monday, July 1, 2013

Your Tax Dollars at Work: Goofy Government Apps

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Structuring Unpaid Internships to Avoid FLSA Violations

Recent court decisions may curtail the use of unpaid internships at for-profit businesses, as companies now face substantial liability for improperly classifying interns under the "trainee exception" of the Fair Labor Standards Act (FLSA). Traditionally, unpaid internships have proven to be a crucial resource for inexperienced students and recent graduates. According to the National Association of Colleges and Employers, 55 percent of the class of 2012 had an internship during college, almost half of which were unpaid. Although companies are generally receptive to such arrangements, recent legal exposure will likely upend the traditional unpaid internship model.

The term "intern" is neither defined nor provided as an exception in the FLSA. Courts faced with the issue of whether unpaid internships are violative of the FLSA look to the U.S. Supreme Court's decision in Walling v. Portland Terminal, 330 U.S. 148 (1947), which established the trainee exception. In Walling, the court found that trainees who worked for seven or eight days for the defendant railroad without pay during "a course of practical training" were not "employees" under the FLSA based on "the unchallenged findings that the railroads receive no 'immediate advantage' from any work done by the trainees." Specifically, the court reasoned that the trainees did not displace any of the regular employees and the trainees' work did not provide any immediate advantage to the company business; rather, at times, it actually impeded it. The court held that the FLSA was not intended to penalize employers for providing the same kind of instruction akin to a vocational school at a place and in a manner that would most greatly benefit the trainee.

Further, in determining whether interns at for-profit businesses fall within the trainee exception, courts are guided by the framework provided in the Department of Labor's "Fact Sheet 71: Internship Programs Under the Fair Labor Standards Act," published in April 2010. In its fact sheet, the Department of Labor enumerates six criteria for determining whether an internship may be unpaid: "The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment.The internship experience is for the benefit of the intern.The intern does not displace regular employees but works under close supervision of existing staff.The employer that provides the training derives no immediate advantage from the activities of the intern and, on occasion, its operations may actually be impeded.The intern is not necessarily entitled to a job at the conclusion of the internship.The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship."

While the Department of Labor test is not necessarily conclusive of the inquiry, courts have generally afforded it some deference in determining whether an unpaid internship would overcome the employment label.

A few general principles may be gleaned from recent court decisions in which courts have addressed whether an unpaid internship violated the FLSA. To ensure compliance with the law and reduce potential liability, employers should consider the following with respect to structuring unpaid internships:

Teach fungible skills.

Courts have acknowledged that classroom training is not a prerequisite for an unpaid internship; however, internships must provide something beyond on-the-job training that employees receive. Internships that only provide exposure to menial tasks, such as photocopying or making coffee, are not likely to meet this standard. To the contrary, if the internship is engineered to be more educational than a paid position, it will likely be considered comparable to vocational school. For example, provide training similar to that which would be given in school and is related to an intern's course of study. Interestingly, one court has held that whether an intern actually learned anything is not dispositive of whether training or useful knowledge was offered by the company, reasoning that even a classic educational environment sometimes results in surprisingly little learning.

Ensure the experience benefits the intern.

Undoubtedly, interns receive benefits from their internships, such as resume listings, job references and an understanding of how a particular office works. The latter benefits, however, are incidental to working in an office like any other employee and are not the result of internships intentionally structured to benefit the intern. Courts have held that resume listings and job references result from any work relationship, paid or unpaid, and are not the academic or vocational training benefits envisioned by the law. Unpaid internships that benefit the intern often involve the receipt of academic credit for his or her work and/or satisfy a precondition of graduation.

Do not have interns perform routine tasks.

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Jurisdiction Issues in Global Intellectual Property

? Edyta Pawlowska - Fotolia.com

"An underlying premise in pure intellectual property issues is that the law should encourage and reward innovation," wrote Raymond T. Nimmer in his book, "The Law of Computer Technology: Rights, Licenses, Liabilities." In the modern digital world, traditional trade borders are collapsing and competitors can steal valuable intellectual property and send it around the world at the speed of light.

How can the general counsel of a Texas company obtain justice when the company is the target of theft, infringement, fraud or other unfair business practices? How can he navigate jurisdictional issues when protecting the company's intellectual property from foreign corporations? What are alternatives to financing multiple lawsuits throughout the world?

Determining where to fight the battle to protect these rights is a crucial decision. To date, there is no clear law on how the global community will handle international intellectual property jurisdictional issues. Here are some steps general counsel can take when thinking through these issues.

Unearth electronic evidence: Gathering evidence of theft, infringement and other unfair business practices often will include using computer forensics. Investigating electronic evidence can include looking at email messages, evidence of hacking, telephone communications, bank transactions, web sites, browser histories, press releases, file transfers, etc. Such electronic evidence, including the money trail, will help determine the identity of the potential defendants.Identify defendants: Using the gathered evidence to identify responsible parties can be difficult, so the legal department may need to dig deeply to figure out the corporate shell game. Separating various corporate subsidiaries and independent contractors that may be responsible for the theft and fraud will take time. Evidence trails can lead to employees, partners and officers, as well as other businesses.Review jurisdictional issues: Determining potential jurisdictions and venues for a lawsuit can be difficult when the offending party is not a Texas or even a U.S. business. Unfortunately, there is no true global intellectual property law. International intellectual property disputes often can involve simultaneous lawsuits in multiple countries throughout the world.

There are currently four main legislative proposals to establish rules on international jurisdiction, choice of law and enforcement of foreign judgments in intellectual property lawsuits. The American Law Institute (ALI) principles are based on the laws of the United States. But businesses considering global litigation should be aware that other principles exist, including the European Principles on Conflict of Laws in Intellectual Property (CLIP), the Japanese transparency principles and Korean Waseda principles, as well as private international law.

When the potential defendant is not a Texas or U.S. business, the legal department may need to establish specific jurisdiction by proving that the defendant purposely availed itself of the privilege of acting in the forum state, the cause of action arises from such acts, and exercise of jurisdiction is not unreasonable. Specific jurisdiction can stem from the stream of commerce, hacking trails, a website sliding-scale test (in which courts are more likely to find jurisdiction as the website's interactivity and the business' electronic contacts increase), licensing and franchise agreements, posted defamatory comments, commercial activities, agency and civil conspiracy with other defendants, patent and trademark infringement, securities fraud, etc.

Overall, in determining whether a court has specific jurisdiction over a defendant, the court will look to see if the defendant was doing business in the forum state. This case-by-case determination often hinges on the foreign business' use of intellectual property or wrongful actions in Texas or the United States.

Anchoring jurisdiction: Selecting a favorable court, jurisdiction and remedy can be essential in protecting a company's intellectual property. General counsel can improve the company's ability to select a favorable jurisdiction by including anchor-jurisdiction clauses in all contracts, including letters of intent, license agreements and employment contracts. Such language also should exist on all company websites and its other marketing materials. Registering the company's intellectual property in all places where it needs to be protected is key, as is identifying the most crucial markets in which to seek protection.Limiting costs and risk: It's worth exploring whether law firms will handle large infringement cases on a contingent or hybrid contract. That can prevent the company from paying large retainers to investigate and litigate expensive lawsuits that may last years.Governmental resources: When evaluating any significant commercial litigation case against a large international corporation registered to do business in the United States, general counsel should be aware of potential governmental resources. Corporations that commit fraud, violations of the Foreign Corrupt Practices Act or other significant illegal acts may have violated U.S. Securities and Exchange Act regulations, and they may be held accountable in whistle-blower recovery lawsuits. Exposing the illegal actions of the opposing corporation can result in a whistle-blower recovery, as well as a finding against the corporation that can be used in a civil action.

In the modern digital world, technology is breaking down many traditional borders. International trade and competition is more common than ever before. Many Texas and other U.S. businesses will find themselves in a highly competitive business environment where they are the target of intellectual property infringement and corporate espionage. It pays to prepare now.

Jason S. Coomer of The Law Offices of Jason S. Coomer in Austin handles international IP litigation, SEC Foreign Corrupt Practices Act bounty actions, and international probate matters.

This article originally appeared in Texas Lawyer.

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Sunday, June 30, 2013

Justice Ginsburg: 'Optimistic' About Women in the Courts

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Goldman Trader Can't Focus on Lawyers in SEC Case

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3 Summer Beach Reads for Compliance Professionals

The summer is my favorite season of the year. Some folks are winter-holiday people—not me. Those holidays are stressful: Secret Santas to deal with, law school exams to grade, and end-of-year bills to collect. Summer provides a chance to rest, enjoy the warm weather and mosquitos, and read a few new books on vacation. Many professionals like some light beach reading, but compliance professionals are always on the job—they need something more substantive.

CorpCounsel.com has you covered. Here are three books to load on your iPad or Kindle (or even in print!) that will help you relax productively on your vacation:

This is a well-written book that uses behavioral psychology to understand how logic can help offset the biases that exist in our intuition. For Kahneman, intuition is thinking fast and emotional—like our response to an image. Logic requires effort and thinking slow—like a math problem. The goal of Kahneman's book (recommended to me by forecasting pioneer Dr. Phil Tetlock) is to identify and understand errors in our judgment and choices with the hope that greater understanding will result in better decisions.

Kathneman won the Nobel prize in economics in 2002. His book is a must-read for compliance professionals to help them understand how we all make decisions. Understanding the biases in decision-making helps compliance professional develop a more robust compliance program designed to prevent and detect compliance failures and mitigate risks.

Simpler focuses on government regulation and cost-benefit analysis. Sunstein is a Harvard Law School professor who was head of the White House’s Office of Information and Regulatory Affairs from 2009-2012. In his book, Sunstein advocates for a system of regulatory Moneyball in which regulators focus on probable empirical outcomes of regulations, as opposed to soft inputs such as perceived reactions of various constituencies.

Sunstein compares this system of regulation to Billy Beane, the Oakland Athletics manager who, in Michael Lewis’s Moneyball, famously used statistics in big-league baseball as opposed to relying solely on scouting reports. Not only is Sunstein's book easy to read, but for compliance professionals trying to navigate the minefield of government regulations and enforcement, Sunstein's book provides a refreshing path towards efficient and more user-friendly regulation.

The author recounts his difficult journey to becoming a writer after he left college football at Louisiana State University and the strong sense of community and pride he felt as an LSU player. Bradley is a noted sports writer and former lineman for LSU. The traits that Bradley shows us in the LSU football team—pride, hard work and sacrifice, commitment, and putting the team before the individual—are applicable to any organization. Compliance begins with a strong culture, and what better way to find out about creating a culture of leadership than to look inside of Tiger Stadium (Death Valley)? To love Bradley’s book, you don’t have to like football—just honest writing.

Ryan McConnell is a partner at Morgan Lewis and former federal prosecutor. He teaches both corporate compliance and criminal procedure at the University of Houston Law Center. He is counting down the days until the college football kickoff. Send your summer reading suggestions to him at rdmcconnell@uh.edu.

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