April 2012 Archives

What's going on with the Federal Trade Commission's Google antitrust investigation?

Commission officials piqued the industry's curiosity last week when they announced that they had hired litigator Beth A. Wilkinson to assist in the investigation. The Paul Weiss partner is a former Justice Department prosecutor, and some have compared her hiring to that of David Boies when the government sued Microsoft.

Others just see it as proof that the FTC is prepared to litigate should Google not bend to its terms.

The D.C. Circuit has limited the authority of the Occupational Safety and Health Administration to issue citations, overturning longstanding administrative precedent. OSHA may no longer cite employers for record-keeping violations that occurred more than 6 months prior.

The agency has long held that the OSH Act imposed a 5-year statute of limitations on such citations. But the court chose to strictly construe the law, which specifically states that "No citation may be issued after the expiration of six months following the occurrence of any violation."

As in-house counsel, you may be called upon to participate in M&A deals from time to time, depending on the size of your company and your role at the company. Your company might engage outside counsel from a large law firm as well as the help of investment bankers to close the deal. Nevertheless, you want to know the basics of M&A.

Assume that you are counsel for a small company and a buyer has expressed interest. What's next? Here are some quick things to know about the M&A process.

Are in house lawyers wearing too many hats? Are you?

Take a second to evaluate just what you do for your current company. Do you provide legal advice? What about business advice? And to whom? Are you advising the Board of Directors and the Chief Executive Officer as an individual?

This may seem like an unnecessary barrage of questions, but they're incredibly important. Regulators and investors are out for blood, and you may just be exposing yourself to potential liability.

Members of the International Brotherhood of Teamsters have been planning for a Twinkies strike since January, when manufacturer Hostess Brands filed for bankruptcy. It has blamed high labor costs. On Tuesday, the probability of such a strike got higher, as the company headed to court.

Hostess Brands has asked U.S. Bankruptcy Judge Robert Drain in White Plains, New York to toss its union contracts. If the company cannot change how it funds union pensions, management claims it will have no choice but to close company doors and liquidate Hostess assets

That would mean no Twinkies. Or Ding Dongs. Or Wonder Bread.

Facebook CEO Mark Zuckerberg acquired Instagram pretty much on his own, without consulting Facebook's board or its in-house lawyers, The Wall Street Journal reports.

Zuckerberg and Instagram's CEO Kevin Systrom hammered out the $1 billion deal -- the biggest in Facebook's history -- over three days of discussions at Zuckerberg's home in Palo Alto, Calif., according to the Journal. The board "was told, not consulted" by Zuck about the deal just hours before it was set in stone.

Zuckerberg controls 57% of Facebook's voting rights, so he can pursue deals on his own if he chooses, the Journal reports. But when Facebook goes public, he may want to think twice.

The economy had a dramatic effect on law firms. Shrinking wallets led many in-house legal departments to look for alternatives to hiring large law firms. On-demand legal counsel is becoming increasingly common.

There are several variations to the on-demand legal counsel model. While a Google search will yield plenty of temp agencies for in-house work, there are companies out there devoted to providing their own attorneys to work onsite.

In-house counsel needs to be mindful of the consequences of employee discipline, particularly when it comes to unpaid suspensions.

While counsel doesn't always play the role of disciplining employees, it's very important to do a periodic review of Human Resource policies to make sure that legal concerns are adequately addressed.

So, what should you tell HR when it comes to unpaid suspensions?

Fewer in-house counsel are outsourcing legal work -- a change that reflects a power shift between in-house and outside counsel, a new survey suggests.

Only 20% of in-house legal departments turned to an outside law firm to handle tax issues in 2011, according to the Association of Corporate Counsel's Census Report. That's down from 30% in 2006.

The ACC's report, released March 28, found two other practice areas where retaining outside counsel is also on the decline. And it detailed a few more statistics that seem to indicate in-house counsel are becoming increasingly important.

Initial reports suggested that the joint U.S.-EU e-book antitrust investigation was close to settlement. But it seems Apple and two of the five publishers accused of conspiring to fix e-book prices are now refusing to sign.

The refusal comes just a month after the Justice Department warned that it was prepared to file suit against the six companies. If the government makes good on its threat, it will be the second time in recent months Apple has been sued for this very issue.

Meat processing giant AFA Foods has filed for bankruptcy-court protection due to controversy stemming from "pink slime," a ground beef filler. The company says the pink slime bankruptcy was brought on by slumping sales.

Pink slime is ammonia-treated boneless lean beef trimmings that is often added to ground beef. It has been approved for use for years by the USDA, the Los Angeles Times reports.

However, any in-house counsel worth their salt knows that even if something is deemed okay by the government, that alone isn't reason enough to do nothing.

Attention attorneys: You may want to remember today as "Facebook buys Instagram" day. Or "Instagram Bought by Facebook" day, whichever you prefer grammatically.

The social network giant paid about $1 billion in cash and stock for Instagram, a popular photo-sharing application, the Los Angeles Times reports. The purchase means some interesting changes for Facebook's users, who will be able to post and follow users on other social networks, Mark Zuckerberg, Facebook's CEO, said in (what else) a Facebook post.

But for general counsels (especially those in tech), the move means so much more.

Online deal peddler Groupon settled a class action lawsuit this week and has agreed to pay $8.5 million into a settlement fund. The settlement covers 17 Groupon lawsuits that had previously been consolidated in a federal court in San Diego.

Though plaintiffs accuse the company of pressuring consumers and imposing "onerous sales conditions," they are mostly upset with Groupon's short expiration dates. They say those dates violate state and federal gift card and gift certificate laws.

The Securities and Exchange Commission has launched a "preliminary" investigation into Groupon's revision of its fourth-quarter financial results, The Wall Street Journal reports.

It's the latest sign of a rocky relationship between the financial regulator and Groupon, a popular online "daily deals" coupon service. Groupon and SEC regulators exchanged a series of contentious emails in the run-up to Groupon's IPO last fall, the blog Silicon Beat reports.

Less than five months after its IPO, Groupon announced Friday it was revising fourth-quarter results to show a bigger net loss and lower revenue, Reuters reports. The company also cited a "material weakness" in how the company oversees its financial statements.

How far can an employer go in limiting what its employees post on Facebook?

Employer-mandated Facebook policies are a hot topic lately. Now, a New York grocery chain is facing heat over its Facebook posting policies. 

A union representing several employees at Stop & Shop filed a petition with the National Labor Review Board to challenge their employer's Facebook posting policy, Reuters reports.