In House - The FindLaw Corporate Counsel Blog

February 2013 Archives

Good Faith Losers Stuck with FDCPA Claim Costs

There aren’t many silver linings to finding yourself on the receiving end of a Fair Debt Collection Practices Act (FDCPA) lawsuit, but the Supreme Court identified one on Monday.

If a debtor sues for a FDCPA violation and loses, the debtor can be assigned attorney’s fees and costs.

The case, Marx v. General Revenue Corporation, could discourage debtors from pursuing FDCPA claims.

2009 Peanut Recall - Things to Consider for Corporate Catastrophes

In 2009, one of the largest food recalls in American history was announced. According to Wired, by the end of the peanut-linked salmonella outbreak, there were 714 people known to have been made sick (though likely more), hundreds were hospitalized, and nine died.

Thousands of peanut products made by Peanut Corporation of America from 2007 to the time of the company's closing in 2009 were recalled, including every product made at the company's plants in Blakely, Georgia and Plainview, Texas from January 1, 2007 to the time of the company's closure.

FBI Battling 'Sexting' on Company Phones, Other Misconduct

Who polices the police? They do, and we all benefit from the lessons learned.

The FBI, like many private employers, hands out company Blackberries (Yep. Somebody still uses Blackberries). Company phones handed out to highly-stressed employees predictably leads to acting out. One of the most common means of making a menace to your employer: sexting.

FBI agents are taking self-portraits and sending dirty texts to each other. Is anyone actually surprised?

Will Companies Have to Pay Employees to Take Off Their Clothes?

Strippers may not be the only employees who get paid to take off their clothes.

Depending on the outcome in a Supreme Court case next term, workers who are required to wear protective clothing for safety reasons could get paid for donning and doffing their clothes at the beginning and end of the workday.

Perception v. Reality: What Matters More in a Retaliation Claim?

When your company is sued for unlawful retaliation, it doesn't matter if you're right or wrong. If you go to trial, what matters is how the situation looks to a jury.

This week, the Second Circuit Court of Appeals revived a former student worker's retaliation claims against Hofstra University, finding that the student presented sufficient evidence to survive summary judgment. Things don't look good for the University.

In-House Counsel: Are Foreigners Coming For Your Jobs?

Is this going to open up the floodgates to waves of foreign attorneys? Or is this simply a reflection of the realities of the business marketplace, with more international companies having a U.S. presence?

The American Bar Association passed a resolution that will allow foreign attorneys who register with the ABA to handle certain matters as in-house counsel for companies in the United States. Michael Traynor, co-chair of the ethics commission, told Reuters that there are already foreign-trained lawyers working as in-house counsel with little to no oversight. This would simply allow the ABA to identify and regulate them.

What President Obama's Cybersecurity Executive Order Means to You

For many businesses, the announcement of anything involving new regulations elicits groans. New regulations means retraining, adjusting company policies, and often, increased compliance costs.

However, despite whispers of the dirty “r” word in the initial discussions of President Obama’s Cybersecurity Executive Order, the impact of the initiative could be positive for the few companies that are actually affected.

Lay Down the Law: Tell the Staff Not to Spit in the Food

The idea of the disgruntled waiter spitting in a cranky customer's food seems to be much more than urban lore: Try searching online for "waiters spitting in food." You'll be horrified by the results. Especially if you're counsel for a restaurant chain.

A customer who discovers that she consumed another person's saliva with her sweet tea has every right to flip out about it. This week, the Ninth Circuit Court of Appeals expanded the possibilities for spit-suits to include fluid-tainted food items that the plaintiff had not yet consumed.

Chubby Checker Sues Because His Name Became a Penile App

Nascar has Dick Trickle; FindLaw has Willie Peacock (see above); 1960s pop music had Chubby Checker.

It’s an unfortunate fact of life that when you have a difficult name, people are going to mock it. We even understand Mr. Earnest Evans’ consternation over his stage name being used on an app that guesstimates penis size based on a man’s shoe size.

But a half-billion dollar lawsuit against HP? That’s a bit twisted. (Boom.)

Birth Control Mandate: What's a Family-Owned Company To Do?

Certain family-owned companies have a beef with the Affordable Care Act's birth control mandate. The mandate, which became effective on January 1, requires employers to cover birth control for their employees through their company health plans. But that goes against some business owners' religious beliefs.

Is there relief for a business when the law is at conflict with the owner's conscience? Right now, it depends on where the business is located.

Two Days Left For Early Bird Discount to In House SuperConference

What is a SuperConference, you ask? Besides being a great excuse to take a few days off mid-week and catch up with the Windy City, it is Inside Counsel's 13th Annual Conference for in house attorneys. This year's focus is on attorneys as strategic partners in a company's development (as opposed to the older model: attorney locked in the attic for when the feces hits the fan.)

The conference begins with a one day workshop on Monday May 6, followed by two days of presentations, CLE credits, and networking events. The workshop goes from noon to 6 p.m. and is a series of presentations on the changing labor law environment. Don't worry though -- once the law is out of the way, there is a cocktail reception as well.

Top 5 Employment Discrimination Claims of FY 2012

Not all in-house counselors deal with employment law issues. Some deal with nothing but patents and commercial contract negotiations. However, the bigger your company grows, the more likely it will be that you’ll be looked to when employment discrimination issues arise.

Each year, the Equal Employment Opportunity Commission releases a statistical breakdown of charges filed with the agency. For the 2012 Fiscal Year, ending on September 30, 2012, the total number of claims remained about the same — just below 100,000 claims. However, a look at the trends might help you to tailor internal employment policies and to decide where to emphasize any internal training.

AmEx v. Italian Colors: What Will it Mean for Arbitration?

At the end of February, the Supreme Court will hear arguments in American Express v. Italian Colors Restaurant.

The decision, when it’s finally released, will probably be overlooked by most media outlets, but the outcome will affect businesses nationwide. If you deal with arbitration agreements, you should care about this case.

Off-Label Promotion Ruling Not a Free Pass for Pharma

In December, a Second Circuit Court of Appeals decision on off-label use promotions made life less complicated for pharmaceutical sales reps in New York, Vermont, and Connecticut. The appellate court ruled that a drug manufacturer’s off-label use promotions are protected free speech, as long as such promotions are not false or misleading.

The 2-1 majority reasoned, “In the fields of medicine and public health, where information can save lives, it only furthers the public interest to ensure that decisions about the use of prescription drugs, including off-label usage, are intelligent and well-informed.”

Learn From Lap Dancers: Employees or Independent Contractors?

They weren't paid by the clubs. Instead, they relied upon tips from customers. They rented stage time, lockers, and facilities from the Orleans Club in Topeka, Kansas. The rental rates varied during peak hours and use of the VIP and Champagne rooms required an extra fee. They even paid fees for the DJs and bouncers, according to the Kansas City Star.

Ladies, sometimes it ain't easy being independent.

Yet, somehow, the Kansas Supreme Court ruled that the nude dancers at the Orleans Club were not independent contractors. Why? The club derived significant benefits from the dancers' presence. The club's advertising touted the nudity and featured the women, the strippers had to clock in and out, as well as stay for their entire shift, and the club controlled everything from rates, content of the ladies' private performances, and even their ability to refuse drinks from customers.

Fleeing the Firm for In House - A Few Good Resources

You entered this firm with the idea that in seven or eight years, you’d make partner. A few years after that, you’d have a seven-figure income. By the time you retired, your name would be on the door. Alas, that plan has not come to fruition.

Besides the fact that the three names on the door are dead dudes from the early 1900s, the economy has led to partner layoffs and you haven’t exactly made it rain. After all, how’s one supposed to bring in whales when they’ve only got friends in low places (where the whiskey drowns and the beer chases … )

Right now, you’re treading water career-wise, albeit with a six-figure salary. While things are fine for now, there is no future here. What you’d really like to do is make the move to in house, where your multitasking abilities and extroversion will be even more of an asset.

Here are a few tips to get you started.

Attorney Client Privilege: Apply to Law Firms' In-House Counsel?

The need for privilege between employees of a company and in-house counsel is obvious. Public policy dictates that employees should be able to speak freely to counsel in order to anticipate and address legal and ethical concerns. Attorney-client privilege and the work product doctrine both should apply in order to facilitate this open relationship.

But what about lawyers’ lawyers? Does the same policy apply to in-house counsel for law firms? That question is currently pending before the Georgia Supreme Court and it is not a obvious as it seems.