In House

Facebook's campus at 1601 Willow Road in Menlo Park, CA

The Crime-Fraud Exception to Attorney-Client Privilege

By Hayes Hunt and Michael P. Zabel |

The crime-fraud exception to attorney-client privilege: As an attorney, you may not anticipate it applying to your emails, your letters or your advice to your client. But even if you never see it coming, your client's intentions in obtaining legal advice may expose your communications to disclosure. A law firm is experiencing this problem firsthand in a series of high-profile cases involving Facebook, Mark Zuckerberg and a former business partner. The cases present an interesting study in how the crime-fraud exception can operate.

Requiring Employee Confidentiality in Internal Investigations

By Nina Markey |

Employers conducting internal investigations often seek to keep the information they obtain confidential for a variety of reasons. Employers may be concerned that they will lose control of the process, witness credibility may be affected by employee disclosures, witness intimidation may occur, someone may improperly use confidential information discovered during the investigation, or someone will report conduct externally before the employer can collect all of the relevant evidence and information. Employees may also fear retaliation when they participate in an investigation, and the promise of confidentiality encourages employees to come forward. Indeed, Equal Employment Opportunity Commission (EEOC) enforcement guidance instructs employers to protect the confidentiality of harassment allegations to the extent possible.

Directly above photograph of an application for a visa.

Visa Options: Hiring in the Wake of Executive Action

By Robert S. Whitehill and Catherine V. Wadhwani |

This time of year, many companies are making hiring decisions that will impact their businesses for the following year. Will your company be able to hire highly skilled foreign workers who have been identified for employment? Or will the U.S. visa system continue to stand in the way, forcing these talented prospects to look for work elsewhere, at a loss to your business?

FLSA Complaints Failing to 'Connect the Dots' Subject to Dismissal

By Patrick T. Ryan |

The number of lawsuits alleging uncompensated work time has skyrocketed in recent years, as employees in many industries, such as health care, retail, food service, manufacturing and financial services, allege that employer practices or policies undercompensate them for required activities. Most of the lawsuits are brought as potential collective actions under the federal Fair Labor Standards Act, and many include claims under analogous state wage laws. The FLSA does not define what constitutes "work" or a "workweek," and courts have been forced to address these issues in an increasing number of cases alleging unpaid overtime for work performed beyond the statute's 40-hour threshold.

Thomas Sager

Creating a Climate of Trust Before Crisis Emerges

By Thomas L. Sager |

A chemical spill at one of your company's plants has affected the local water supply, and the regulators are preparing to take your environmental lapses to the media. A well-intentioned finance employee has become a whistleblower raising allegations of fraud, triggering an internal and external investigation. Customer complaints over a defective product have sparked an internal debate as to whether a disclosure to the regulators is in order and a product recall should be initiated. These are just a few examples of the crises in which any business operating in a heavily regulated industry can find itself, but they all require engaging the right cut of experts and planning to the extent possible for just these types of contingencies.

patent stamp

What In-House Counsel Need to Know About Inter Partes Review

By Michael L. Burns |

Inter partes review is an administrative procedure before the Patent Trial and Appeal Board where parties may challenge patent validity on a relatively fast track (decisions come about 18 months or less from the IPR petition filing). IPR is quickly becoming the standard for defending patent infringement actions because of its speed, high success rate, lower cost versus district court litigation, and the willingness of district court judges to stay co-pending litigation. Accordingly, in-house counsel should be aware of the IPR process when obtaining patents, enforcing patents and defending against patent infringement allegations. This article explains the basics of the IPR process, IPR statistics and strategy pointers for in-house counsel moving forward.

Agents and Employees May Be Liable for Customs Violations

By Thomas J. O'Donnell and Karolien M. Vandenberghe |

A recent decision of the U.S. Court of Appeals for the Federal Circuit has caused a great deal of concern in the importing community because of its broad interpretation of Section 592 of the Tariff Act of 1930, as amended, which is the most commonly used customs penalty statute (19 U.S.C. Section 1592). In United States v. Trek Leather, No. 09-CV-0041 (Fed. Cir. Sept. 16, 2014), the Federal Circuit held that Section 592 allows U.S. Customs and Border Protection to impose civil penalties on corporate employees, officers and agents when these individuals make material misrepresentations or omissions in import transactions. Customs penalties under Section 592 are tied to the level of culpable conduct as determined by Customs. In cases of fraud, the maximum penalty is the domestic value of the goods. For gross negligence, the maximum penalty is four times the loss of revenue and simple negligence carries a maximum penalty of two times the loss of revenue.

Hayes Hunt and Arthur P. Fritzinger

Reporting and Investigating Potential Employee Wrongdoing

By Hayes Hunt and Arthur P. Fritzinger |

Companies in every industry—private and public—struggle with the difficult task of promptly identifying employee wrongdoing and responding appropriately. The National Football League continues to be embroiled in a controversy arising from its reaction to the off-the-field conduct of its players. Penn State University continues to make attempts to repair its reputation after the Jerry Sandusky scandal. Lloyds Banking Group recently dismissed eight employees and sought to recoup millions in bonuses after it was revealed that they, along with employees of at least two other British banks, had attempted to manipulate benchmark interest rates from 2006 to 2009. Even government organizations struggle with this issue: Last month, Philadelphia Municipal Court Judge Joseph C. Waters Jr. resigned amid an investigation by the FBI that has lasted more than a year.