Category Archives: Treatise

Employment Law Yearbook 2019 Edition

Each edition of Employment Law Yearbook provides a comprehensive overview of the most important developments in employment law over the past year, including critical case decisions, legislative changes, government agency actions, and other events of interest to employers, employment and HR professionals, corporate attorneys, and employee advocates. Employment Law Yearbook 2019 details and analyzes recent legal developments, including:

California test for determining independent contractor status: The California Supreme Court has adopted a new test—the “ABC test”—to determine whether workers are to be classified as employees or independent contractors. Under this test, articulated in Dynamex Operations West v. Superior Court, workers are presumptively considered employees, but the employer may demonstrate a worker is more appropriately classified as an independent contractor if it proves all of several articulated factors. Chapter 1, Wage-and-Hour Issues, section 1:2.3[A], Independent Contractors.
Transgender discrimination: The Sixth Circuit, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., became the first federal appellate court to hold that discrimination based on an employee’s transgender status is sex discrimination under Title VII. A group of sixteen states has asked the Supreme Court to overturn the decision, but the Court has not yet decided whether to take up the case. Chapter 3, Gender and Sexual Orientation Discrimination and Sexual Harassment, section 3:2.2, Sexual Orientation and Gender Stereotyping.
Noncompete agreements: In August 2018, Massachusetts enacted a law that places limitations on noncompete agreements entered into on or after October 1, 2018. The law also adopts the Uniform Trade Secrets Act. Chapter 9, Guarding Trade Secrets, Section 9:3.1, Background.
New standard for evaluating facially neutral policies: In Boeing Co., the NLRB overturned the Lutheran Heritage “reasonably construe” standard and adopted a new balancing standard for evaluating facially neutral policies that potentially interfere with the exercise of section 7 rights. The NLRB delineated three categories of work rules based on the new standard. Chapter 11, Employee Blogging and Social Media, section 11:4.1[B][1], The New Standard of Reasonableness.

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Social Media and the Law

Social Media and the Law examines the range of legal issues that can arise from the personal and professional use of social media, including concerns related to privacy, civil litigation, employment, criminal activity and prosecution, intellectual property, defamation, advertising, and regulated industries. Relevant legislation, cases, trends, and industry responses are included in the discussions.

The most recent update covers many developments that occurred in this field in the last year. For example:

In September 2018, Tesla CEO Elon Musk settled a dispute with the SEC regarding his allegedly misleading tweet about taking Tesla private at $420 per share. The settlement included Musk paying $40 million in penalties and stepping down as Chairman of Tesla (see Chapter 1. The Social Media Phenomenon and Chapter 7. Compliance Considerations for Regulated Industries).
Recent studies demonstrate increasing use of AI, big data, and data analytics by employers to source and screen candidates (see Chapter 6. Employment and Workplace Issues).
In June 2018, the NLRB General Counsel’s Office issued a new guidance memorandum on employee handbook rules, following the NLRB’s Boeing decision. In it, the General Counsel detailed the types of rules that might be implicated under Boeing (see Chapter 6. Employment and Workplace Issues).
In Kumho Tires, the NLRB found an employer’s social media policy lawful under Boeing where it was in place to maintain the confidentiality of the company’s trade secrets and private or confidential information (see Chapter 6. Employment and Workplace Issues).
In In re CSGOLotto, Inc., the FTC for the first time brought an action against individual influencers for failure to disclose their connections with the advertiser (see Chapter 8 Advertising).

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Securities Law and Practice Deskbook – Updated!

Securities Law and Practice Deskbook remains your definitive one-volume guide to the Securities Act of 1933 (“Securities Act”), the Securities Exchange Act of 1934 (“Exchange Act”), relevant rules and regulations, and key case law. The book is intended to serve as an initiation into the U.S. federal securities laws and the way that securities lawyers approach problems. It also is meant to serve more experienced practitioners as a general review and first resource when approaching an unfamiliar area of securities law.

Release #13 brings you up to date on the latest important developments in securities law. Highlights include:

• Chapter 5, Reach of Securities Act Regulation. Cryptocurrencies and “ICOs” (initial coin offerings) continue to be the rage at the U.S. Securities and Exchange Commission. The Commission brings a first-of-its-kind enforcement action against the operator of an unregistered token “exchange.” Significant fines and penalties continue to be imposed with respect to unregistered token offerings. Also , the Commission instituted and settled enforcement actions against celebrity promoters of ICOs for violations of the Securities Act’s “anti-touting” provisions. Finally, the Commission also pursues enforcement action against the 21st-century example of “free stock” “airdropping” tokens in blockchain scenarios.

• Chapter 6, Securities Act Registration Exemptions. The number of PIPE offerings was essentially flat during 2018, but offering amounts were up 44%, to $31 billion. In response to a congressional requirement, the Commission made Regulation A+ available to reporting companies.

• Chapter 8, Liability for Securities Act Violations. Beware the “tout sheet.” Emphasizing Commission enforcement action under Securities Act section 17(b), that section gets applied in connection with the Commission’s focus on ICOs as the Commission brings “anti-touting” enforcement actions against professional boxer Floyd Mayweather Jr. and music producer Khaled Khaled, known as DJ Khaled, for failing to disclose payments they received for promoting investments in ICOs.

• Chapter 9, Registration and Periodic Reporting Under the Exchange Act. An enforcement action against Tesla and Elon Musk underscores the need to proceed with caution when using social media to satisfy the company’s disclosure obligations. The Commission continues its focus on non-GAAP financial measures with first-of-its-kind enforcement action for violation of the “equal or greater prominence” requirement.

• Chapter 10, Regulation of Proxy Solicitations. After lengthy delay, the Commission adopts the hedging disclosure requirements that were required by section 955 of the Dodd-Frank Act. The fate of several Dodd-Frank rules (e.g., pay for performance and “clawbacks”), continues to be unclear. New Staff Legal Bulletins in the shareholder proposal area urge companies to submit board analyses when seeking to exclude shareholder proposals under the “ordinary business” and “economic relevance” grounds for exclusion.

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New Edition! International Corporate Practice

International Corporate Practice: A Practitioner’s Guide to Global Success provides guidance on building a comprehensive global legal department, including advice on structuring, staffing, and budgeting, as well as the use of foreign legal consultants and outsourcing.

Written by some of the nation’s leading corporate attorneys and edited by Carole Basri, this release for International Corporate Practice expands and updates the title with new material designed to enable lawyers to operate efficiently on the global stage. Topics discussed include the following:

International Attorney-Client Privilege: Chapter 2 provides updates on the privilege in the United States(Section 2:2.1); Germany, with special reference to the Volkswagen/Audi diesel scandal(Section 2:2.2[B]); Portugal, with respect to the Anti-Money Laundering and Terrorism Prevention Law of 2017 (Section 2:2.2[F]); and Brazil(Section2:2.4[B]).
International Internal Investigations: Chapter 9 adds new material on the European Union’s General Data Protection Regulation (GDPR), which replaced the European Data Protection Directive, particularly with respect to the requirement of adequate justification for transfers of personal data to countries outside the European Economic Area (Section 9:3.3[B]). Also covered are legal privilege issues in internal investigations in Germany and the United Kingdom (Section 9:4).
International Business Arbitration: Chapter 11 clarifies the difference between the “legal seat” of the arbitration and the “venue” (physical location) of the arbitration (Section 11.2.1[C], Section 11:5); addresses the use of temporary, emergency arbitrators (Section 11:2.2.3[A]); and explains the potential roles of the “court of secondary jurisdiction” and the “court of primary jurisdiction” in the enforcement or vacatur of an arbitration award (Section 11:10.2).
International Antibribery Laws: Chapter 18 highlights a variety of enforcement developments, including prosecutions under the Foreign Corrupt Practices Act of foreign subsidiaries of U.S. corporations, and significantly increased penalties and fines (Section 18:4.1), as well as with multilateral efforts under the OECD Convention (Section 18:4.2).

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

New Edition! Federal Bail and Detention Handbook 2019

We are pleased to announce that the Honorable Evelyn J. Furse, a United States Magistrate Judge for the District of Utah, at Salt Lake City, joins as Co-Author of Federal Bail and Detention Handbook.

Federal Bail and Detention Handbook 2019 provides up-to-date and accessible coverage of developments under the Federal Bail Reform Act of 1984. Among the important recent cases discussed in this edition are:

A Second Circuit case in which the court approved the pretrial release of an alleged leader of organized crime under conditions that included home detention with monitored video surveillance and (over defendant’s objection) the posting of armed guards, at defendant’s expense. Section 5:5, Other Conditions Courts Can Impose.
A Sixth Circuit case that found that while the district judge could release the defendant pretrial and presentence under the Bail Reform Act, the district court could not order ICE to refrain from detaining the defendant under the Immigration and Naturalization Act. Section 6:7.3, Risk of Nonappearance, and section 14.4, State Habeas Petitions, Federal Section 2255 Motions, Immigration Hearings, and International Extradition Cases.
A D.C. Circuit case that held that any prohibition against contact with victims or witnesses should be clear as to which victims or witnesses, and that such a prohibition would only apply to victims or witnesses to the then-pending charges in the case, not to victims or witnesses that the government might later identify. Section 5:5, Other Conditions Courts Can Impose, and section 11:3, Showing Required.

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Treatise Update: Derivatives Deskbook

Derivatives Deskbook: Close-Out Netting, Risk Mitigation, Litigation (Second Edition) is a comprehensive resource geared to all users of swap agreements and derivatives, from financial institutions to corporate end users. Derivatives Deskbook defines the key terminology and identifies the major players; discusses the full range of documentation; and highlights techniques and best practices that can significantly minimize risks. It examines the termination events and events of default that can trigger the early termination of OTC derivative transactions; the complex process of calculating the early termination amounts due the parties under the transactions; and how these transactions can be terminated in ways that minimize the damage to the parties and to the global financial system.

Derivatives Deskbook further examines the impact of U.S. bankruptcy interrelationship on the termination and close-out netting process and what steps must be taken to comply with a counterparty that is or may become bankrupt. It also serves as a comprehensive resource to key litigation involving derivative transactions in major jurisdictions around the world.

Highlights of this Release #3 include:

Chapter 3: Collateral and Security Arrangements; New sections explore the new variation margin regulations adopted by regulators in a variety of major jurisdictions in reaction to the financial crisis to govern the posting of collateral in OTC derivative transactions. The regulations have been enacted by applicable regulators in the European Union, the United States, Switzerland, Canada, and Japan.
Chapter 6: Risk Mitigation and Close-out Netting; Revised section 6:6, Collateral Arrangements, examines the need, in large financings with multiple banks and counterparties, for intercreditor agreements to sort through the rights of the various creditors to the collateral securing their obligations. Typically, in an intercreditor agreement, a swap counterparty would agree to abstain from declaring certain events so that a minor breach with one swap counterparty under a swap agreement for dealers and those costs will likely be passed on to counterparties.
Chapter 8: Best Practices Recommendations; Revised section 8:4.1, Credit Support Annex, explains that the restrictions on hypothecation in the initial margin regulations are expected to increase the costs of swap agreements for dealers and those cost will likely be passed on to counterparties.

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Reinsurance Law Update

Reinsurance Law examines the intricacies of U.S. reinsurance law in the twenty-first century, giving readers a practical grasp of the purpose, benefits, markets, and costs of reinsurance; the features, operation, and risk-and-return characteristics of the full range of reinsurance products; state, federal, and international regulation of reinsurance; and a full understanding of resolving disputes in the industry.

This practical treatise is enhanced with time-saving checklists and numerous adaptable sample agreements and sample clauses.

Release #13 expands and updates the treatise with coverage of the latest developments in reinsurance law. Highlights of the update include the following:

Revised Section 3:4, Reinsurer’s Obligation Regarding Supplemental Benefits Outside of the Applicable Limits of Liability, discusses the New York Court of Appeals decision in Global Reinsurance Corp. of America v. Century Indemnity Co., in which the court observed that its 2004 decision in Excess Insurance Co. v. Factory Mutual Insurance Co. did not hold that third-party defense costs under any facultative reinsurance contract are unambiguously or presumptively capped by the liability limits.
Revised Section 6:8.4, Subpoenas, in the book’s chapter on arbitration, explains that in CVS Health Corp. v. Vividus, the Ninth Circuit found that a “plain reading of the text of Section 7 [of the Federal Arbitration Act] reveals that an arbitrator’s power to compel the production of documents is limited to production at an arbitration hearing.”

In addition, the Table of Authorities has been updated to reflect the revisions found in Release #13.

This essential treatise is available on PLI PLUS. If you would like to purchase a print copy, please contact libraryrelations@pli.edu.

Presidents Day Sale!

Happy Presidents Day! To celebrate, PLI is offering 25% off all Treatises and Answer Books.

Treatise Update: Directors’ and Officers’ Liability

Directors’ and Officers’ Liability: Current Law, Recent Developments, Emerging Issues (Third Edition) provides a cutting-edge, straightforward explanation of the obligations of directors and officers of public companies, the penalties they face if they fail to meet their obligations, and the protections available to them under the law or by agreement. Authors Barry Kaplan and Gregory Watts provide solid coverage of topics of utmost importance to directors and officers—the sources of law governing the duties of directors and officers; the key facets of board committees; D&O duties under state corporate law and federal and state securities laws; private civil actions and public enforcement; exculpations, indemnity, and insurance; cybersecurity; contested mergers and acquisitions; Securities Act suits filed in state court; special issues in pharma and biotech; and more.

Of particular note, the chapter on Emerging Issues provides readers with coverage of the latest new developments in the area. Regularly updated, this chapter brings readers’ attention to the latest on dynamic issues like D&O liability related to data breaches, sexual harassment, and climate change.

Director’ and Officers’ Liability is a vital resource for corporate and outside counsel and private practitioners—particularly those whose expertise and specialized training may not include corporate governance and securities.

Highlights of Release #2 include:

Emerging Issues: Chapter 8 has been extensively updated to bring you timely discussion of emerging areas of potential liability for directors and officers such as cryptocurrency and initial coin offerings, sexual harassment, and climate change.
Board Membership Policies: Gender and ethnic diversity is increasingly a criterion for membership on the board of a public company, and in September 2018, California became the first state to require public companies to have female directors on their boards.

This essential treatise is available on PLI PLUS. If you would like to purchase a print copy, please contact libraryrelations@pli.edu.

Copyright Law Treatise Update!

Written by two nationally recognized lawyers who have litigated major copyright cases, Copyright Law: A Practitioner’s Guide (Second Edition), provides up-to-date analysis of court decisions and practical advice for the protection of copyrights. In this release, the authors update and expand your book with discussion of the following topics, among others:

Pre-1972 sound recordings: Under the Classics Protection and Access Act of 2018, sound recordings fixed before February 15, 1972 (previously outside the scope of federal copyright laws)are, as of October 11, 2018, afforded rights and remedies largely analogous to those enjoyed by sound recordings that have always been within the subject matter and protections of the Copyright Act.
Standing: According to the Ninth Circuit, a suit brought in the name of an animal may state a case or controversy for Article III purposes, but does not expressly authorize animals to file copyright infringement suits” (Naruto v. Slater).
First sale doctrine—electronic transmissions: in Capital Records,LLC v. ReDigi, Inc., the Second Circuit concluded that ReDigi—a business built on allowing users to “resell” uploaded digital copies to other users—infringed the plaintiffs’ reproduction right, rejecting application of the first sale doctrine as a defense. The court held that the ReDigi technology allowed for a reproduction of the digital file in a new material object “for a period of more than a transitory duration,” both in ReDigi’s server and in the new purchaser’s device. That results in the creation of a new phonorecord, which is a reproduction.
Fair use—parody: According to a New York federal district court, a one-woman play written in the style of Dr. Seuss and featuring a forty-five-year-old version of Cindy-Lou Who parodied How the Grinch Stole Christmas! And qualified as a fair use (Lombardo v. Dr. Seuss Enterprises, L.P.).

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please email libraryrelations@pli.edu.