Client Alert - Gibson Dunn

Client Alert

EU Competition Law: European Court of Justice Sends Sony BMG Back to the CFI

The European Court of Justice's ("ECJ") 10 July 2008 Sony BMG judgment should halt the rise of the Statement of Objection-less Phase II merger investigation.

July 14, 2008

Justice Department Makes Concessions In Corporate Prosecution Tactics To Forestall Attorney-Client Privilege Legislation

Faced with continuing Congressional interest in legislation aimed at preventing federal prosecutors and other enforcement attorneys from seeking privileged information, the Justice Department has announced that it will again revise its policy regarding the investigation and prosecution of business organizations.  The DOJ's proposals will restrict the ability of federal prosecutors to seek privileged information from companies, and will have an immediate impact on the ways in which businesses cooperate with government investigations.  The current Principles of Federal Prosecution of Business Organizations, outlined in the "McNulty Memo,"  have been the focus of Congressional and public criticism, and Pennsylvania Senator Arlen Specter has spear-headed legislation ai

July 11, 2008

Electronic Communications and Employee Privacy — The Ninth Circuit Decision in Quon

In a widely reported decision, Quon v. Arch Wireless Operating and Co., the U.S. Ninth Circuit Court of Appeals recently addressed issues of importance to employers concerning privacy and electronic communications.

July 10, 2008

CERCLA and Its “Yellow Brick Road” to Cleaning Up Hazardous Substances

Los Angeles Partner Jeffrey D. Dintzer and Associate San Francisco Jason B. Stavers are authors of "CERCLA and Its 'Yellow Brick Road' to Cleaning Up Hazardous Substances" [PDF] published in the July 10, 2008 of the Toxics Law Reporter.© 2008 by The Bureau of National Affairs, Inc.

July 10, 2008

“Clawbacks” of Executive Compensation

With the continued spotlight on executive compensation, and with companies in the mortgage and finance industries facing ongoing challenges in the months ahead, the subject of recouping, or "clawing back," executive compensation in the event of financial statement errors is likely to remain a focal point for boards of directors.  Moreover, in the past several years, institutional shareholders and governance activists have focused on clawback provisions as a significant corporate governance and executive compensation issue.

July 9, 2008

EU Competition Law: Consultants Complicit in Cartel Case

Trade associations need to take care. There has been a long history of the European Commission fining trade associations as well as their members where an infringement of EC competition law has been found.

July 9, 2008

2008 Mid-Year FCPA Update

The frenetic pace of Foreign Corrupt Practices Act ("FCPA") enforcement set in 2007 has carried through the first half of 2008.  Mid-year prosecutions are up – substantially so – from last year's record-setting totals.  And corporate disclosures and media reports of ongoing investigations evidence that this trend of continually increasing enforcement is here to stay for the near future.  This client update provides an overview of the FCPA and other foreign bribery enforcement activities during the first half of 2008, a discussion of the trends we see from that activity, and practical guidance to help companies avoid or limit liability under these laws.  A collection of Gibson Dunn's publications on the FCPA, including prior enforcement updates and more in-

July 7, 2008

The FTC’s N-Data Consent Order: A Missed Opportunity To Clarify Antitrust in Standard Setting

Dallas partner M. Sean Royall and Washington, D.C. associate Adam J. Di Vincenzo are the authors of "The FTC's N-Data Consent Order: A Missed Opportunity To Clarify Antitrust in Standard Setting" [PDF] published in the Summer 2008 issue of ABA's Antitrust.Reprinted with permission from Antitrust, Vol.

July 7, 2008

Rhode Island Supreme Court Rejects Use of Public Nuisance Theories for Allegedly Defective Products

On July 1, 2008, the Supreme Court of Rhode Island issued a decision holding that manufacturers of lead pigment are not liable under a nuisance theory for the harm caused from the use of lead paint.

July 3, 2008

U.S. Supreme Court to Consider Whether Discharges of Fill Material Must Comply with EPA Effluent Limitations

On June 27, 2008, the U.S. Supreme Court granted certiorari in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council. In Coeur Alaska, the Court will decide whether discharges of fill material, which for 35 years have been regulated by the U.S.

July 2, 2008

EU Competition Rules in the Maritime Transport Sector

For twenty years, the European Commission has been struggling to agree a model on how the competition rules should apply to the maritime transport sector, and above all to liner shipping.On 1 July 2008, what is probably the final significant piece of this policy was put in place with the adoption of formal guidelines on the extent to which shipping companies may co-operate and, in particular, may exchange information about their commercial activities.HistoryLiner shipping companies have for over 100 years provided scheduled maritime transport services around the globe on the basis of wide-ranging agreements, called Conferences, allowing them to fix prices, agree schedules and even to limit output -- regardless of their market shares.

July 1, 2008

Outsourcing deals in the EU – The antitrust implications

Brussels Partner David Wood is the author of "Outsourcing deals in the EU - The antitrust implications" [PDF] published in the 1 July 2008 issue of Competition Law Insight.

July 1, 2008

Choice of Forum for Government Contract Disputes

Partner Karen Manos is the author of "Choice of Forum for Government Contract Disputes" [PDF] published in the July 2008 issue of Government Contract Costs, Pricing & Accounting Report , published by Thomson Reuters/West.Reprinted with permission, © July 2008, Thomson Reuters/West.

July 1, 2008

Delaware Bankruptcy Court Expounds on Directors’ Duties in Financially Distressed Situations

On May 30, 2008, the United States Bankruptcy Court for the District of Delaware issued a memorandum opinion in which it refused to dismiss breach of fiduciary duty claims against corporate directors who approved the sale of a financially distressed company's assets on the eve of bankruptcy.  The Court's opinion sheds light on directors' duties, and what they can and should do to protect themselves from liability, in such situations.  In Bridgeport, a bankruptcy liquidating trust filed a complaint against the officers and directors of the debtor, traded as "Micro Warehouse," alleging that they breached their duties to the company, its shareholders and its creditors in connection with a sale of the company's assets.  The complaint alleged that Micro Warehouse beg

June 30, 2008

Washington, D.C. Passes Paid Sick Leave Law

This spring, Washington, D.C. became the second municipality in the country to require employers to provide paid sick leave for employees.

June 30, 2008

SEC Issues Helpful New Form 4 and Form 8-K Interpretations

This week the Securities and Exchange Commission’s Division of Corporate Finance issued separate interpretations simplifying and clarifying certain issues affecting Form 4 reporting under Section 16(a) and Form 8-K reporting.

June 27, 2008

Justice Department Proposes New “Public Accommodation” Requirements under Americans with Disabilities Act

Last week, the Department of Justice published proposed regulations that could significantly alter the obligations of movie theaters, retailers, and other places of "public accommodation" under the Americans with Disabilities Act ("ADA").

June 27, 2008

U.S. Supreme Court Rules That Chapter 11 Debtor Must Pay Transfer Taxes on Pre-Confirmation Asset Sales

In a decision that will increase the cost, and decrease the benefits of, pre-confirmation asset sales, the U.S. Supreme Court recently ruled that transfer taxes must be paid on such sales.

June 27, 2008

U.S. Supreme Court’s Decision Limits the Amount of Punitive Damages Available under Federal Common Law and Comments on Due Process Limitations on Punitive Damages in Class Actions

On June 25, 2008, the Supreme Court issued an important decision clarifying the standards for punitive damages review under federal common law. In an opinion authored by Justice Souter (in which Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined, and Justices Stevens, Ginsburg and Breyer joined in part), the Court vacated a $2.5 billion punitive damages award as excessive under federal maritime common law, and set an upper limit on such awards of a 1:1 punitive-to-compensatory damages ratio.  In Exxon Shipping Co., et al.

June 26, 2008

Final Section 409A Amendment Deadline and End of Transition Period Rapidly Approaching; Immediate Action Required

The "good faith" transition period for compliance with Section 409A of the Internal Revenue Code expires on December 31, 2008, and the final Section 409A regulations become fully effective on January 1, 2009.

June 26, 2008