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June 26, 2009
Ascertainability: An Overlooked Requirement for Class Certification
BNA Class Action Litigation Report
In the realm of class action litigation, Federal Rule of Civil Procedure 23 (Rule 23), and its state equivalents, outline the major requirements for class certification. The explicit requirements of Rule23 therefore frame the classic battle ground for determining whether a law suit qualifies for class treatment.
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Articles
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June 18, 2009
Attorney-Client Privilege: Issues in Bankruptcy-Related Proceedings
BNA's Bankruptcy Law Reporter
In the current economic climate, many corporate officers and directors are facing tough decisions. Faced with the potential for insolvency and bankruptcy proceedings, issues implicating various privileges can rise to the forefront, and must be given careful consideration to avoid waiver.
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Articles
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June 2009
Headline-Grabbing Intel Fine Hides Article 82 EC Enforcement Concerns
GCP
The recent decision by the European Commission to impose on the world's largest semiconductor chip manufacturer, Intel Corporation, an eye-watering EUR 1.06 billion fine for breaching EC competition law made headlines around the world.
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Articles
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June 2009
Pub Football Cases Highlight European Commission’s Lack of Guidance on New Media Distribution
Competition Law International
In recent months, two very interesting English cases concerning the parallel import of satellite decoder devices (set-top boxes) have been referred to the European Court of Justice (ECJ). Depending on their outcome, these cases have the potential to turn the established practices for licensing sports rights (and also other types of content, eg, films) on their heads.
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Articles
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May 22, 2009
Massive Losses Happen: Delaware Chancery Court Reaffirms The Business Judgment Rule’s Protection Against Claims of Undue Risk Taking
BNA
Sidley lawyers Andrew Stern and Alex Kaplan have authored an article for BNA's Corporate Accountability Report and Corporate Governance Report.
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Articles
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May 21, 2009
Loss Causation Experts After Dura
Law360
A crucial element of any securities class action — especially one that survives an initial motion to dismiss — is the role of the expert witness on loss causation.
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Articles
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May 4, 2009
First Cases Under Federal Rule of Evidence 502 Reflect Variety of Approaches, Underscore Importance of "Clawback" Orders
Bloomberg Law Reports/Litigation
The electronic age has vastly expanded the scope of document discovery in complex litigation. This expansion has led to an increase in the number of inadvertent disclosures of privileged and work-product documents, and the time needed for privilege review of voluminous electronic documents in order to prevent such inadvertent disclosures has contributed significantly to skyrocketing discovery costs.
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Articles
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May 2009
Capturing the Online Opportunities: Report on E-Commerce Provides Ammunition for the Review of Vertical Restraints
Bloomberg European Law Journal
The Internet continues to develop as a powerful distribution and communication channel. We have only seen a fraction of what it can be used for, but we know it is here to stay: “Internet use for retail shopping is destined to become pervasive.” This is beneficial to both European consumers and businesses. The European Commission’s recently published report on cross-border e-commerce in the EU (E-Commerce Report) finds that the Internet expands the size of the market and gives consumers access to more providers and more choice.
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Articles
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May 2009
Predatory Pricing after linkLine and Wanadoo
GCP
On April 2, 2009, the European Court of Justice issued its decision in the Wanadoo case. This judgment is just the last of a series of developments in the field of predatory pricing on both sides of the Atlantic.
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Articles
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April 27, 2009
Using Exculpatory Clauses in Defending Against Breach-of-Fiduciary-Duty Claims
Corporate Officers & Directors Liability
A director’s responsibilities in serving on a corporation’s board are accompanied by significant personal financial risks. When shareholders disagree with the director’s actions or believe that the director harmed the corporation by inaction, they can assert a variety of breach-of-fiduciary-duty claims. Many corporations provide their directors with a defense to claims of negligent breach of fiduciary duty in the form of an exculpatory clause or, in the parlance of Delaware law, a Section 102(b)(7) defense.
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Articles
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Issues in Insurance Company Mergers & Acquisitions
Euromoney's International Investment & Securities Review 2009
The completion of a successful merger or acquisition involving insurance companies requires careful planning and specialised skill sets to deal with the many important ways insurance companies differ from other entities. This article summarises the primary concerns that may arise in connection with the acquisition of an insurance company or lines of insurance business.
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Articles
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April 2009
Comments on the CRA Paper Entitled “An Economic Analysis of the Use of Selective Distribution by Luxury Goods Suppliers”
Published with permission of European Competition Journal, Hart Publishing
The debate about vertical restraints is heating up in the EU. The latest issue of the European Competition Journal (April 2009) contains two articles considering the economic aspects of this topic. One is authored by Coscelli, Buettner, Vergé and Winer (the CRA paper), as part of an exercise conducted on behalf of the LVMH Group. The CRA paper claims that vertical restraints are adopted by suppliers in the interests of consumers. The following article, authored by Sidley lawyers and economist, is an effort to formulate a practical approach to a real problem. It looks at the CRA paper’s arguments and finds that various key conclusions of the paper are either plainly wrong or at least dubious and should not be attributed to mainstream economics. In contrast to the CRA paper, our article also looks at what is happening in the real world and finds that policymakers are well-advised to adopt a cautionary approach to vertical restraints and internet restrictions.
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Articles
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March 30, 2009
National Security Letters: Practical Advice For Understanding and Handling Exceptional Requests
BNA Privacy & Security Law Report
National Security Letters (NSLs) were once an exceptionally rare form of federal administrative subpoena that few corporate attorneys and privacy officers would ever confront. In light of the U.S. response to international terrorism, the once infrequent use of NSLs and similar forms of process has increased significantly.
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Articles
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March 9, 2009
Assessing the EU Working Party’s Guidance on Harmonizing U.S. Discovery and EU Data Protection Requirements
BNA Privacy & Security Law Report
The European Union’s Article 29 Data Protection Working Party has taken an important first step toward reconciling EU data protection obligations with the information disclosure requirements of U.S. discovery rules.
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Articles
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March 9, 2009
Regulation of Greenhouse Gases Under Section 115 of The Clean Air Act
BNA Daily Environment Report
The authors of this article say Section 115 of the Clean Air Act, among the various options under the current act, may offer EPA the most effective, flexible, economically reasonable and legally supportable means by which to regulate greenhouse gas emissions.
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Articles
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March 2009
A Mixed Result
China Law & Practice Magazine
The US has complained to the World Trade Organisation that China’s IP rights protection and enforcement legislation violates international agreements. A WTO panel has presented its report and both sides are claiming victory.
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Articles
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March 2009
Cómo Constituir una Sociedad en China La WFOE
Partida Doble
In these times of financial difficulty and economic crisis, many companies are looking to China for opportunities to market their products to the millions of consumers in one of the world’s few economies in expansion. When companies do business in China, they soon discover the need to establish some sort of local presence. Above certain volumes of trade, importing through agents often becomes unpractical. This article, in Spanish, examines an increasingly frequent form of presence in China: the wholly-foreign owned enterprise (WFOE). It provides an overview of the numerous procedures that foreign investors need to go through to establish a WFOE in China and the key issues to be aware of.
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Articles
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March 2009
Hybrid Capital Product Development
Focusing on Tier 1 and Other Hybrid Capital Products
Hybrid Capital Product Development provides our clients with a general survey of the regulatory developments, both regional and country specific, and executed Tier 1 and other hybrid transactions that have taken place in the past year and is a readily accessible guide, organized by product type and country, of the Tier 1 and other hybrid products that have been executed since this book was first published in 1999.
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Books
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March 2009
Getting the Deal Through - Vertical Agreements 2009
Sidley lawyers wrote four of the chapters in this year's edition of "Getting the Deal Through — Vertical Agreements," a book recently published by Global Competition Review. The book is intended for in-house counsel and provides an overview of antitrust regulation of distribution arrangements in 41 jurisdictions worldwide.
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Books
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March 2009
Who's Afraid of the Internet? Time to Put Consumer Interests at the Heart of Competition
GCP
The on-going review of the Vertical Restraints Regulation has brought to the surface a conflict between traditional retail models where the consumer takes a back seat and modern ways of retailing where the consumer is given greater freedom to select the right product at the right price.
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Articles
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February 2009
Seeing Green: Identifying and Anticipating Regulatory Issues and Risks in the Evolving Energy Efficiency Environment
Bloomberg Sustainable Energy Law Report
This article, authored by Sidley associate Mark R. Johnson, provides an overview of energy efficiency programs in the United States and a discussion of the regulatory issues utilities are encountering as they develop and seek regulatory approval of energy efficiency plans.
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Articles
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February 2009
Accessing the Capital Markets
Accessing the U.S. Capital Markets is a basic primer for financial institutions, corporations and governmental entities interested in accessing the U.S. capital markets through conducting a securities offering, listing on a U.S. securities exchange or acquiring a U.S. company.
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Books
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2009
What if We Want to Settle a Mass Tort Class Action: Tried and Favoured Approaches
The International Comparative Legal Guide to: Class and Group Actions 2009
Sidley lawyers Michael Davis, Rebecca Wood and Rebecca Kelly have authored a chapter in The International Comparative Legal Guide to: Class and Group Actions 2009 on the mass tort class action settlement process in the United States and guidelines for navigating some of the most significant settlement issues.
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Articles
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February 2009
The Interplay of Patenting Strategies and Competition Law in the Pharmaceutical Sector Inquiry
GCP
In the presentation of its Preliminary Report on the pharmaceutical sector inquiry, the European Commission attempted to perform a delicate balancing of competition and International Property (IP) law. While the Commission went out of its way repeatedly to state that the value of IP rights in general, and patents in particular, are not in dispute in the sector inquiry, there are indications to the contrary.
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Articles
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February 2009
California Supreme Court Limits Disclosure of Grand Jury Evidence to Civil Litigants
Privacy & Data Security Law Journal
The author explores the background of California’s limits on the disclosure of grand jury evidence, a recent decision by the California Supreme Court finding that the state’s courts have no inherent power to order disclosure to civil litigants, and some of the ruling’s practical implications for future California civil actions.
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Articles
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2009
The International Legal Guide to: Class and Group Actions 2009
Global Legal Group, 2008
Sidley lawyers Michael Davis, Stephen Carlson and Frank Favia have authored a chapter answering key questions about class and group actions in Illinois in The International Comparative Legal Guide to: Class and Group Actions 2009.
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Articles
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2009
Making Investment Treaties Work for Latin America
An Extract from The Arbitration Review of the Americas 2009
Latin American companies are emerging as global leaders, increasingly looking internationally for business and investment opportunities. Despite the growing prominence of Latin America as a source of international investment, Latin American investors have not yet taken advantage of the international agreements that are ready and available to protect their investments.
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Articles
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2009
FDI Growth in Asia: The Potential for Treaty-Based Investment Protection
An Extract from The Asia-Pacific Arbitration Review 2009
In recent years, Asia, the world’s export powerhouse, has become a major source of foreign direct investment (FDI). Combined annual outbound FDI from and between east, south and south-east Asian countries has exceeded US$100 billion every year since 2003. Capital-exporting countries in Asia have also been broadening and strengthening their networks of international investment agreements (IIAs). This increased activity by governments reflects an appreciation of the importance of investment protection in safeguarding their investors and hedging against risk.
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Articles
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2009
The Future of Investment Treaty Protection in Eastern Europe
An Extract from The European & Middle Eastern Arbitration Review 2009
In recent years, the countries of Eastern Europe have emerged as highly attractive destinations for foreign direct investment (FDI). Having shed their legacy of state-controlled economic policies and embraced market reforms, these states have managed to attract investors from around the globe seeking to capitalise on opportunities arising from this historic and ongoing transformation.
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Articles
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2008/09
Corrupt Practices in the U.S. and UK Healthcare Industries
PLC Cross-border Life Sciences Handbook
With increasing frequency, U.S. regulators are aggressively pursuing enforcement actions against foreign companies and the activities of subsidiaries of U.S. companies outside the U.S., in relation to practices that violate laws prohibiting corruption.
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Articles
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2008/09
China - Compensation for Drug and Device-Related Injuries
PLC Cross-border Life Sciences Handbook
As China develops into one of the leading manufacturers for pharmaceutical and medical device products in the world, it must increasingly contend with what other nations have encountered over the past decades: finding the right way to compensate patients when they suffer from injuries that may have been related to the use of a drug or device product.
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Articles
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Winter 2009
The Housing and Economic Recovery Act of 2008: An Analysis
The Real Estate Finance Journal
In order to address the ongoing housing crisis in the United States, Congress recently passed the Housing and Economic Recovery Act of 2008.
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Articles
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December 1, 2008
Emerging Antitrust Regimes In Asia
Law360
This summer's implementation of China's Anti-Monopoly Law (AML) may well stimulate the emergence and modernization of other antitrust regimes in Asia.
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Articles
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December 2008
Guía Práctica de Solución de Diferencias en la OMC
Naciones Unidas
This Guide, in Spanish, to WTO Dispute Settlement is intended to assist governments in preparing for and participating in dispute settlement cases before WTO panels and the Appellate Body. It examines every phase of these proceedings and includes practical advice for governments that are either parties or third parties in disputes, including how to prepare for the pre-litigation stage and coordinate with the private sector.
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Articles
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November/December 2008
New Internet Promotion Options Pose Risks for Drug Manufacturers
Update
Drug companies today use the Internet in new and innovative ways to provide information on and promote their products to consumers.
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Articles
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November 7, 2008
Revenue Recognition In Volatile Economic Times
Law360
The financial challenges posed by current financial market events affect Wall Street and Main Street alike.
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Articles
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Fall 2008
Preserving the Attorney-Client Privilege in Corporate Transactions and Review of Board Committee Actions
Bloomberg Corporate Law Journal
Attorney-client privilege issues in the corporate context are complicated by the practical necessity of sharing privileged information with individuals who may not clearly fall within the zone of privilege.
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Articles
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October 2008
Charting a Course: Revenue Recognition Practices for Today's Business Environment
ABA Criminal Justice Section, Section of Business Law and the ABA Center for Continuing Legal Education
As corporate America approaches the end of fiscal year 2008, the needle on the economic compass again points to difficult economic times. And with it, a pause for a thoughtful look at revenue recognition policies and practices—by financial reporting professionals, audit committees that oversee their work, and executives that sign Sarbanes-Oxley Act certifications—is warranted.
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Articles
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2008/2009
Climate Change and Litigation in the U.S.
PLC Cross-border Environment Handbook
Climate change is the most threatening environmental challenge of recent years. Addressing global climate change is a daunting task and one for which to date the U.S. has no focused regulatory response.
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Articles
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October 24, 2008
EPA’s Greenhouse Gas Proposal: A Blueprint for Federal Regulation
BNA Daily Environment Report
On the whole, EPA’s Advance Notice of Proposed Rulemaking on regulating greenhouse gas emissions under the Clean Air Act is providing an opportunity to see the future of an upcoming era of climate change concerns mandating the regulation of energy efficiency and to play a key role in the formulation of an era that likely will last for decades to come.
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Articles
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October 24, 2008
The Era Of Climate Change Regulation Has Begun
Law360
After years, if not decades, of anticipation and speculation by environmental lawyers, the era of climate change regulation recently kicked off this summer.
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Articles
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2008
Federal Preemption at the Supreme Court
Cato Supreme Court Review
It has been a striking time for federal preemption at the Supreme Court. This past term, the Court heard six preemption cases, deciding four in favor of federal preemption by large margins, one against preemption, and coming to a draw in the sixth case in which Chief Justice John Roberts did not participate.
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Articles
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October 2008
Decentralization or the Law of Unintended Consequences
GCP
When the overhaul of European antitrust procedure, in the shape of Regulation 1/2003, was first mooted, it seemed to offer a number of potential advantages: for businesses, a lifting of the shackles of prior vetting of their behavior and, for the Commission, the alleviation of the burden of having to turn the pages on so many unnecessary notifications.
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Articles
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September 22, 2008
Insider Analysis from Sidley Austin LLP: Market Definition in Life Sciences Sector Under the Chinese Anti-Monopoly Law
PharmAsia News
China's Anti-Monopoly Law, in force since Aug. 1, raises difficult questions for market players in the health care industry in China. One issue of particular importance is how to define the "relevant market" for medicinal products.
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Articles
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September 15, 2008
Damages for the Harm of Data Breaches and Other Privacy Claims
BNA Privacy & Security Law Report
In the absence of actual identity theft or other quantifiable harms, courts have declined to recognize amorphous emotional or dignitary harms from privacy violations as being sufficient to support standing or prove damages as a necessary element of a cause of action.
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Articles
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August 25, 2008
China's Restrictions on Corporate Donations and Sponsorships
PharmAsia News
Under People's Republic of China law, donations are generally defined as funds or goods voluntarily and gratuitously provided by individuals, legal entities or other organizations to a social organization for public good (such as a foundation or a charity organization) or a not-for-profit public institution (such as a public school, hospital or a scientific research institute) for the purpose of carrying out activities that benefit the public.
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Articles
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2008
Update on U.S. Product Liability Law
The International Comparative Legal Guide to: Product Liability 2008
Sidley lawyers Sara Gourley and Sherry Knutson have authored a chapter on key developments this year in U.S. product liability law in The International Comparative Legal Guide to: Product Liability 2008.
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Articles
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August 2008
The Antimonopoly Law and Its Structural Shortcomings
GCP
The new Chinese antitrust regime is taking shape. The Antimonopoly Law became effective on August 1, 2008; the first implementing regulation has been adopted; and it has become clear which government agencies will be the Antimonopoly Enforcement Authorities.
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Articles
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August 2008
Amendment to the U.S. Lacey Act: Implications for Chinese Forest Products Exporters
A recently passed law gives the U.S. government the power to fine, and even jail, individuals and companies who traffic in illegally harvested wood products. The U.S. government can even use this law, called the Lacey Act, to impose significant penalties on individuals and companies who do not realize that their wood is tainted. This new law, and the new import declaration it requires, will affect manufacturers and exporters who ship a variety of products made from wood to the United States, including paper, furniture, lumber, flooring, plywood or even picture frames.
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Articles
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July/August 2008
Competitive Privacy: Towards A New Area of Privacy Litigation?
Privacy Tracker
An apparent afterthought in a patent case may point the way to a new type of privacy litigation, and it may offer the potential for companies to shape robust privacy practices into an offensive tool for litigation against their competitors.
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Articles
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Summer 2008
On Life Support from Leeginaire’s Disease: Can the States Resuscitate Dr. Miles?
Antitrust, an ABA Magazine
Sidley lawyers Joel Mitnick, John Lavelle and Owen Smith, all of the New York office, and Will Reiss, then with the firm, wrote an article entitled “On Life Support from Leeginaire’s Disease: Can the States Resuscitate Dr. Miles?” published in the Summer 2008 issue of Antitrust, an ABA magazine.
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Articles
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