While everyone knows of the need to comply with contractual terms in software licenses (and elsewhere), the salient point in this context, is that under several recent cases, failure to do so with respect to a license for copyrighted  material (which is usually applicable to software), allows the pursuit in federal court for claims for infringement damages under the Copyright Act and related items, such as attorney fees, according to an article from FisherBroyles and published on Lexology.com.

“This is in addition to traditional contract damages, which may be non-existent or difficult to prove,” the article says.

Kimberly Dempsey Booher, Susan M. Freedman, R. Mark Halligan, Martin B. Robins and Alan S. Wernick contributed to the article.

Read the article.

In 2016, people are the targets: from email and web to social media and mobile apps, attackers will build on the successes of 2015 by developing campaigns that , according to an on-demand webinar presented by BrightTALK.

In the webinar, Patrick Wheeler, director, Threat Security at Proofpoint, addresses the shift to increasingly targeted attacks on people behind the devices.

Participants can learn how to:
• Take measures to secure data
• Effectively track incidents and remediate incidents
• Report out on compliance status

Watch the on-demand webinar.

In a Scott & Scott webinar, partner Julie Machal-Fulks will discuss some of the challenges that organizations encounter when trying to ensure compliance with their IBM license agreements. The one-hour event will be Wednesday, Jan. 20, 2016, beginning at 11 a.m. CST.

Because IBM products like WebSphere, DB2, Tivoli, Informix, and Lotus Notes are expensive, and companies cannot easily or quickly verify compliance, the risks associated with IBM licensing can be severe, the firm says. For example, if a company is trying to license under IBM’s Sub-Capacity license rules and fails to adhere to all of the requirements, IBM often demands enough licenses to cover the full capacity of the computers on which the software is installed.

In some instances, the costs associated with non-compliance can be tens of millions of dollars. Proper licensing is critical to avoid unexpected liabilities.

The following topics will be covered in the webinar:

• Licensing obligations for IBM software
• Determining what agreements govern the relationship
• Sub-Capacity Licensing
• ILMT
• Virtualization and Load Balancing
• How IBM acquisitions affect licensing
• Audits

Register for the webinar.

Joe Jamail, the Texas billionaire who became the richest practicing attorney in the U.S. after winning jury verdicts in civil lawsuits that included a $10.5 billion award for Pennzoil Co. in its landmark case against Texaco Inc. during the 1980s, has died, reports Claims Journal. He was 90.

He died in Houston from complications with pneumonia, the Austin American- Statesman newspaper reported, citing university officials it didn’t name.

“His representation of Pennzoil in a case against Texaco over the purchase of Getty Oil Co. led to a record jury verdict of $10.5 billion and helped make him one of the U.S.’s most sought-after lawyers during his five decades in practice,” according to the Claims Journal

Read the article.

Corporate Governance at UPS is not as clean as the board would like you to think, according to an article published on SeekingAlpha.com.

“UPS portrays itself as having a fair, transparent, and shareholder friendly corporate governance practices. Not all shareholders would agree, though,” the article says. “Two of its shareholders went on a campaign to publicly irritate and antagonize the board of directors, demanding the company to change a few of its disputable practices. This article tells their story.”

Read the story.

TechTarget has rounded up the top 10 governance, risk and compliance stories of the year, with timely advice about GRC strategy, 2015 compliance challenges and best practices for overcoming data security issues.

“This year proved, again, that governance, risk and compliance remains a top priority for companies,” the article reports. “But identifying these areas as a top concern and effectively addressing them are entirely different beasts. Between emerging governance concerns, the enactment of regulatory legislation, growing data challenges, mobile security issues and renewed encryption debates, GRC professionals have had their hands full in 2015.”

The article covers such topics as data currency, compliance with the SEC Regulation SCI, mobile device management, end-to-end encryption and more.

Read the article.

The recently signed FAST Act was conceived as a federal transportation bill, but it also contains a number of provisions targeted toward the financial services industry, which will have a considerable impact on the strategy and operations of community banks, reports Bracewell & Giuliani.

The report includes sections covering using Federal Reserve resources to offset the cost of the legislation, regulatory relief measures for small to medium sized banks, equalizing the registration threshold for holding companies, and codifying the “4(1½)” exemption.

The FAST Act includes several other capital markets provisions that facilitate access to the capital markets for emerging growth companies and smaller reporting companies, according to the authors, Sanford Brown, Lauren Bourke Chase, Justin Long and Joshua McNulty.

Read the article.

Michael Volkov of the Volkov Law Group writes in his blog that corporate lobbying interests are pushing a new and dangerous agenda in hoping to avoid compliance issues, one that is shortsighted and certain to create problems for chief compliance officers.

He writes that the U.S. Chamber of Commerce is proposing reliance on independent certifications of effective compliance programs and possible access to a compliance defense or safe harbor. “In support of this misguided approach, some are spending more time defining standards for such certifications and possible incentives for companies to be rewarded for such efforts,” he writes.

But that plan would give prosecutors “a license to conduct detailed and in-depth grand jury investigations into corporate compliance programs – bringing to light more potential violations and greater liabilities. Prosecutors will enjoy rummaging around corporate compliance programs.”

Read the article.

ContractRoom offers three rules of contract drafting that can help a business ensure that contracts will protect the business’ interests and avoid costly disputes.

One of the rules concerns the importance of simplicity, to avoid writing that can lead to confusion, litigation, and results contrary to the purpose of a contract.

Other rules involve covering all the bases, and the importance of using plain and effective language.

Read the article.

A recent case from the Massachusetts Superior Court presents a stark reminder that whether conduct is viewed as a “mere breach” or part of a deceptive or unfair course of conduct can be in the eye of the beholder, writes Shep Davidson in The In-House Advisor blog, published by Burns & Levinson LLP.

“In American Translation Partners, Inc. v. Lahey Clinic Hospital, Inc., ATP entered into a three-year contract with Lahey to provide interpreters to assist Lahey’s medical professionals in their interactions with non-English speaking patients,” he writes. The contract stated that Lahey would not hire interpreters who had worked for ATP within the past 24 months. ATP later sued, claiming Lahey had breached that rule.

The Superior Court wrote:

“Did Lahey intentionally breach the contract and did it do so to either punish ATP or to gain a financial benefit? Persuasive evidence will have to be offered that Lahey knew that it was likely breaching the Services Agreement but decided to do so anyway either as a lever in its ongoing contract negotiations with ATP or to simply reap unfair benefits. On this record, summary judgment in favor of Lahey must be denied.”

Read the article.

The enforceability of a confidentiality covenant in an employment agreement without time or geographical limitations may turn, at least in part, on how the information that may not be disclosed is defined, writes Paul E. Freehling in Seyfarth Shaw‘s Trading Secrets blog.

He describes a case involving a salesman for a medical device manufacturer, Orthofix, Inc. v. Hunter. The salesman signed a confidentiality covenant at the time he was hired, but years later he resigned and went to work for a competitor. The former employer sued him, but, because the covenant had neither temporal nor geographic limitations, the trial court invalidated the covenant and dismissed the breach of contract claim.  The appellate court reversed, holding that no such limits are required for a confidentiality agreement.

Read the article.

​Much ado has been made over a North Carolina court’s ruling this past summer in RREF BB Acquisitions, LLC v. MAS Properties, LLC, 2015 NCBC 58, recognizing a cause of action for so-called “duty to negotiate in good faith,” writes Richard A. Prosser of Poyner Spruill.

“Undoubtedly, this is a noteworthy development in the law of contracts and a caveat for practitioners and their business clients,” he explains. “A closer consideration, however, reveals that the claim may not be as novel as it appears at first blush and the risk of unintended liability perhaps not as significant.”

He lists four relevant points for consideration.

Read the article.

Shearman & Sterling has published its 2015 Corporate Governance & Executive Compensation Survey of the 100 largest U.S. public companies.

This year’s Survey, 13th in the series, examines some of the most important governance and executive compensation practices facing boards today and identifies best practices and merging trends. Senior partner Creighton Condon writes that the analysis provides insights into how companies approach governance issues and will allow readers to benchmark their companies’ corporate governance practices against best practices.

An introduction to the survey is published on the website of the Harvard Law School Forum on Corporate Governance and Financial Regulation. And Shearman & Sterling has published the complete report on its website.

Fitch, Even, Tabin & Flannery LLP will hold a complimentary webinar, “The Newly Amended Federal Rules of Civil Procedure: Making Sense of the Changes,” presented by Fitch Even partner Joseph F. Marinelli. The webinar will be Thursday, Jan. 21, at 9 am PST / 10 am MST / 11 am CST / 12 noon EST.

On Dec. 1, 2015, significant amendments to the Federal Rules of Civil Procedure went into effect. These changes are intended to make civil litigation more efficient by changing early case management procedures and discovery planning, clarifying the scope of discovery, and revamping the rules regarding the preservation of electronically stored information.

In this webinar, participants will take a closer look at the December rule changes, discussing what you need to know and the practical impact the rules may have on your practice, covering the following topics and more:
•Reorganization of Rule 26(b)(1) to bring proportionality factors to the forefront of scope considerations and elimination
•Change to Rule 26(d) that now permits a party to issue document requests in advance of parties’ Rule 26(f) discovery conference
•Revision of Rule 34 to require more specific objections and responses to document requests
•Revamp of Rule 37(e) to better address ESI preservation and loss
•Elimination of Rule 84 and the Appendix of Forms leading to a potential change in pleading requirements in patent infringement suits

The speaker will be Fitch Even partner Joseph F. Marinelli, an IP litigator with more than 15 years of hands-on courtroom experience and a diverse intellectual property law practice covering all aspects of IP creation, management, enforcement, and licensing. Marinelli has extensive experience litigating in popular patent venues including the Northern District of California, the Western District of Wisconsin, and the Eastern District of Texas, as well as representing clients in post-grant procedures before the USPTO.

CLE credit has been approved for California, Illinois, and Wisconsin, and is pending in Nebraska. Other states may also award CLE credit upon attendee request. There is no fee to attend, but please note registration is required.

Following the live event, a recording of the webinar will be available to view for one year at fitcheven.com.

Register for the webinar.

Schiff Hardin LLP announces that Marcy L. Rosen has joined the firm’s Ann Arbor, Michigan, office as an associate in the Tax Group. Rosen advises individuals and businesses on tax planning and controversies at the local, state, and federal levels.

Before joining Schiff Hardin, Rosen was a senior attorney in the Detroit office of an international law firm where she focused on state and local tax controversies and commercial litigation. In addition to her law practice, she serves as Co-Chair of the Federal Bar Association for the Eastern District of Michigan’s Diversity Committee, Regional Board Member of the Anti-Defamation League, and as an active member of the State Bar of Michigan’s Pro Bono Initiative.

“Schiff Hardin is a nationally renowned firm with a sophisticated tax practice,” said Rosen. “With this in mind, I knew the firm was the right choice to take my practice to the next level.”

She earned her J.D. (2004) from the University of Michigan Law School. She earned a B.A. in English Language and Literature from the University of Michigan (2001).

Dan Harris writes in the Above the Law blog about how U.S. companies relying on a Letter of Intent (LOI) or a Memorandum of Understanding (MOU) detailing the terms of their proposed China deal may be exposing themselves to substantial liability.

“Most U.S. (and many European companies) assume that no party is exposed to any liability during the negotiation period as liability arises only after the parties have executed a formal, written contract. If their written document states that it is non-binding, no liability can arise,” he writes. But the rule in China is the opposite.

Read the article.

The New Year is a good time for a company to analyze any form documents that may need to be revisited, including one of the most important in protecting your business, your liability waiver, writes Chelsey Ziegler in the Health & Fitness Law blog.

She writes that this analysis tends to be often overlooked until something tragic happens.

“The timing is also quite perfect for this because for new clients, this will be the first time being presented with your revamped form and, for existing clients; it tends to be a practical statement to say ‘everyone is required to resign the 2016 waiver that is now in place.'”

The article discusses the enforceability of waivers, consideration, applicable risks, representations and warranties, release language, and five pitfalls to avoid when drafting waivers.

Read the article.

Through newly-forged deals, the music-streaming service Pandora has put an end to royalty disputes with Broadcast Music and the American Society of Composers, Authors and Publishers, according to a report published at AppleInsider.com.

The report says Pandora had been licensing songs from the two groups under rates set by the U.S. District Court in Manhattan, which intervened because the parties couldn’t agree, according to the Wall Street Journal. Pandora sued ASCAP in 2012 in a bid to get rates lowered, while Broadcast Music sued Pandora in 2013, hoping to get rates hiked.

“The latter request was granted earlier in 2015, leading to an appeal by Pandora. With a formal arrangement under its belt, the appeal has been withdrawn,” the report says.

Read the article.

Celgene Corporation has announced the settlement of litigation with Natco Pharma Ltd. of India, Natco’s U.S. partner, Arrow International Limited, and Arrow’s parent company, Watson Laboratories, Inc. (a wholly-owned subsidiary of Allergan plc) relating to patents for REVLIMID (lenalidomide), reports StreetInsider.com.

“As part of the settlement, the parties will file Consent Judgments with the United States District Court for the District of New Jersey that enjoin Natco from marketing generic lenalidomide before the expiration of the patents-in-suit, except as provided for in the settlement,” the story reports.

“Celgene has agreed to provide Natco with a license to Celgene’s patents required to manufacture and sell an unlimited quantity of generic lenalidomide in the United States beginning on Jan. 31, 2026.”

Read the article.

A U.S. appeals court decision Tuesday may reflect favorably on the Washington Redskins football team’s chances to restore federal trademark protections, reports CBSDC.

“Freedom of speech, an argument made in federal court by the Redskins in July, was front and center for a ruling made by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., writes Chris Lingebach.

The court rejected a provision of federal law that would bar registration of disparaging trademarks on the grounds that doing so violates the First Amendment.

Read the article.