“Non-compete agreements may all but disappear from the Washington, D.C. employment landscape in 2021,” discuss Garen E. Dodge, Nathaniel M. Glasser, Brian W. Steinbach, Maxine Adams & Eric Emanuelson in Epstein Becker Green’s Non-Compete Agreements.

“On December 15, 2020, the District of Columbia Council voted 12-0 to approve the Ban on Non-Compete Agreements Amendment Act of 2020 (B23-0494) (the ‘Bill’), which would prohibit the use and enforcement of non-compete agreements for all employees except certain highly paid physicians. If enacted into law, Washington, D.C. will have adopted a much stricter policy than several other states that have recently restricted the use of non-compete agreements—including its neighbors Maryland and Virginia. The Bill is currently awaiting approval by the Mayor before, absent a veto, it is sent to Congress for the required 30-days of session Congressional review period.

Read the article.

“As a general rule, courts do not save sophisticated parties from bad deals; instead, courts enforce both good deals and bad deals between sophisticated parties according to the express terms set forth in a written contract,” writes Glenn D. West in Global Private Equity Watch’s Insights.

“New York is particularly prone to upholding these freedom of contract principles because freedom of contract avoids ‘judicial upending of the balance struck at the conclusion of the parties’ negotiations,’ as well as ‘promotes certainty and predictability and respects the autonomy of commercial parties in ordering their own business arrangements.'[2] But most general rules have their exceptions. And a recent decision by New York’s highest court, The Trustees of Columbia University v. D’Agostino Supermarkets, Inc., 2020 WL 6875988 (N.Y. Nov. 24, 2020), illustrates the application of one of those exceptions to the otherwise strong policy favoring freedom of contract—unenforceable penalties for breach of contract.”

Read the article.

“On Monday, December 21, 2020, the United States Congress passed a second large stimulus bill[1] (the ‘Relief Bill’) aimed at curtailing the economic disruptions caused by COVID-19. The Relief Bill, among other things, extends renewable energy tax credits for wind projects, solar projects and carbon capture and sequestration and contains specific provisions addressing offshore wind farms. These extensions include a one-year extension for wind projects, a two-year extension for solar projects and a two-year extension for carbon capture and sequestration projects. President Trump is expected to sign the Relief Bill and has until December 28, 2020 to do so, when the current stopgap funding measure expires,” write Jeffrey G. Davis, Daniel T. Kiely, George K. Haines, Isaac L. Maron & Andre M. Smith II in Mayer Brown’s Tax Equity Times.

Read the article to learn about the credits.

As part of the launch of the Barnes & Thornburg Racial and Social Justice Foundation, the firm’s lawyers and staff have donated more than $200,000 to promote, advocate and effect racial and social justice in the firm’s local communities.

The foundation, a 501(c)(3) organization, was established in 2020 with financial support coming entirely through personal donations from the lawyers and staff in each of the firm’s 19 offices. To start, four organizations have received $50,000 each in grants in four of Barnes & Thornburg’s markets – Atlanta, Indianapolis, Los Angeles and Minneapolis. As the foundation continues to grow in 2021, additional nonprofits and markets will be added to the mix.

‘No Gift Too Small’

The firm has undertaken fundraising efforts driven by the firm’s employees to generate broad participation under the mantra “no gift is too small.” The $50,000 grants were presented this month to the following organizations:

• All Square, located in Minneapolis, provides individuals impacted by the criminal justice system with opportunities to become future leaders, business owners, legal practitioners and entrepreneurs. Barnes & Thornburg’s donations will contribute to All Square’s Prison-to-Law Pipeline program, which offers ABA-accredited and ABA-approved paralegal and legal degrees within Minnesota prisons. One of its unique fundraising and skills development vehicles is a grilled cheese restaurant in Minneapolis.
• Project Pinnacle, located in Atlanta, provides nonviolent offenders under the age of 25 with life skills training, legal rights and responsibilities education, and career development opportunities. The 10-year-old organization is dedicated to restoring young people to respectful positions in the community.
• Social Justice Learning Institute, located in Los Angeles, is dedicated to improving the education, health and well-being of youth and communities of color by empowering them to enact social change through research, training and community mobilization. The institute partners with organizations and businesses to provide academic support services, transform neighborhood conditions, and rectify injustice.
• Public Advocates in Community re-Entry (PACE), located in Indianapolis, provides currently and previously incarcerated individuals and their family members with transitional and pre-release services, employment and job placement services, and addiction support services. PACE also provides care-coordinated case management to assist with family reunification, transitional housing, substance use disorder treatment groups, mental health treatment, recovery support services, and education.

In addition to Lahn, who serves as president, Barnes & Thornburg’s Racial and Social Justice Foundation’s board members are Allen Baum, partner-in-charge of the Raleigh office; Michael Carrillo, managing partner of the Chicago office; and Roscoe Howard, managing partner of the Washington, D.C., office. Ex officio members are Steven Merkel, chief operating officer and the foundation’s treasurer, Robert Grand, firm managing partner, and Dawn Rosemond, firm diversity partner.

The foundation will work hand in hand with Barnes & Thornburg’s Racial Justice Committee, which is tasked with continually looking at how the firm works to address racial justice, both externally and internally.

In addition to the foundation’s grants, Barnes & Thornburg attorneys plan to contribute time and professional experience in support of the above organizations.

To choose grantees, the foundation employed a rigorous scoring system to vet charitable organizations against specific criteria that align with its mission and goals.

Bitmovin, a world leader in online streaming video technology, announced today that it has created an open-source universal nondisclosure agreement (uNDA) specifically designed to speed up startup transactions and may also be used by any company for the purchase or sale of goods and services. The new uNDA was developed by Bitmovin’s General Counsel and a team of researchers from the UC Hastings Startup Legal Garage, a leading university-based program that provides pro bono services to nascent entrepreneurial companies in the technology and biotech industries.

Plug and Play Contracting
The uNDA was created to eliminate the time spent reading and negotiating NDA’s for routine commercial transactions by standardizing the NDA clauses across companies. The development team first looked at hundreds of NDA’s to determine the most commonly used and salient clauses. The uNDA was then evaluated by nearly 30 general counselors representing small startups to larger multinational corporations.

Standardized Contracting
The uNDA can be customized to suit a variety of different business purposes with 13 standardized clauses and permutations customizable to specific transactions. Signers to the uNDA agree to disclose the presence of these clauses and any permutations or additional language. If the NDA contains clauses beyond those in the uNDA, the drafter must disclose those clauses. Users of the uNDA expressly agree that they do not consider the uNDA legal advice in any way and are required to seek independent legal counsel. Given that the clauses are now standardized, the uNDA is a read-once document. When negotiations are required, it would be a paint by numbers approach.

Barnes & Thornburg has elected 10 attorneys as partners, effective Jan. 1, 2021. The new partners, their office location and practice areas are:

Chicago

• Genevieve E. Charlton, Intellectual Property
• James R. Vergara, Intellectual Property

Columbus

• Laing P. Akers, Real Estate

Dallas

• Juanita DeLoach, Intellectual Property

Indianapolis

• Neal A. Brackett, Litigation
• Angela B. Freeman, Intellectual Property
• J.T. Larson Jr., Litigation

Los Angeles

• Joshua B. Rosenberg, Litigation

Elkhart/South Bend

• Michael Fenech, Corporate

Washington, D.C.

• Renee A. Danega, Intellectual Property

DALLAS – Michael K. Hurst, name partner at the highly respected Dallas trial boutique Lynn Pinker Hurst & Schwegmann, has been named as a member of The International Society of Barristers.  

The Society was formed in 1965 to recognize the legal profession’s top attorneys in supporting such principles as retaining the jury trial as the foundation for justice; offering training in trial advocacy; encouraging civility in an adversarial system; and protecting the rights of citizens, the independence of the judiciary and the integrity of the Bar.  

Membership to the Society is by invitation only, following a rigorous screening process that considers the lawyer’s ability, experience, accomplishments and ethical standards as assessed by trial lawyers and judges. 

Hurst has consistently been recognized as one of the top trial lawyers in the nation for large and high-stakes commercial and intellectual property litigation. Board Certified in Civil Trial Law by the Texas Board of Legal Specialization, he has served as President of the Dallas Bar Association and has been recognized as an Outstanding Mentor by both the Dallas Association of Young Lawyers and the Texas Young Lawyers Association. 

Hurst earned his law degree from the South Texas College of Law in Houston in 1990, and his undergraduate degree from The University of Texas in 1987. 

“University of North Georgia President Bonita Jacobs has announced Reggie Lampkin as the new university general counsel, effective Jan. 1,” reports Sylvia Carson of UNG in WGAU Radio’s Local News.

“He brings varied experience to the role of general counsel, including litigation, compliance with federal educational laws, contract review, licensing and intellectual property rights agreements, and personnel and policy matters.”

“Lampkin joins UNG from the Georgia Department of Education, where he has served as the lead attorney for finance and business administration since 2014. In addition, from 2012 to 2014 he served as assistant legal counsel for Kennesaw State University supporting the areas of student affairs, athletics and contracts and assisting with employee matters.”

Read the article.

“Law firms rushed to secure government aid early in the coronavirus pandemic, borrowing nearly $12 billion from the U.S. Small Business Administration’s Paycheck Protection Program as their revenues were threatened by court closures and a freeze in corporate deals,” write Rick Linsk and Caroline Spiezio in Reuters’ Big Story 10.

“The program, created by Congress in March to save jobs and help small employers weather the COVID-19 crisis, has faced criticism that too much of the $525 billion in approved aid went to big businesses in high-wage industries like law. Not only did law firms obtain billions of dollars through the program, but the loans didn’t always ensure jobs and paychecks would be protected, a Reuters analysis found. At least 10 firms that took in a combined $68.5 million in forgivable, government-guaranteed loans under the program went on to cut positions, salaries or both.”

Read the article.

“Robinhood Markets has agreed to pay $65 million to settle Securities and Exchange Commission allegations that the broker failed to properly inform clients that it sold their stock orders to high-frequency traders and other financial firms,” reports Bloomberg in Fortune’s Finance.

“Robinhood, known for its popular smart-phone app that offers commission-free trading, also agreed to have an outside consultant monitor its compliance with rules that require firms to provide best execution for trades. Robinhood has gained notoriety during the pandemic by attracting a massive customer base of younger investors.”

Read the article.

“A federal grand jury has charged prominent attorney Joshua Treem and a private investigator in the racketeering case against defense attorney Kenneth Ravenell, alleging that they helped conceal Ravenell’s conduct by obtaining false statements to protect him,” reports Justin Fenton in The Baltimore Sun’s Crime.

“Ravenell, 61, has been under indictment since last fall, when he was charged with conspiracy to commit racketeering, money laundering and drug distribution for allegedly covering up and aiding the crimes of a Jamaican marijuana kingpin, Richard Byrd.”

Read the article.

“Including a contractual dispute resolution provision in an agreement may reduce costs, expedite resolution, and potentially lead to a more favorable outcome. But a poorly crafted provision can do just the opposite.” Philip M. Guess, Elizabeth H. White and Meredith D. Bateman discuss the following key recommendations in K&L Gates’ Latest Thinking.

• If requiring arbitration, specify the particular rules for selecting an arbitrator.
• Do not include mandatory mediation clauses.
• Include all relevant dispute resolutions provisions in the same section.
• Pay attention to choice-of-forum and choice-of-law changes when drafting agreement amendments.
• Do not split subject matter into separate forums (without being very careful).
• Understand the pluses and minuses of bench trials, jury trials, arbitration, and other alternative dispute resolution.
• Do not ignore restrictions related to the waiver of a jury trial for certain jurisdictions and certain claims.
• Understand the importance of selecting a court to enforce arbitration and arbitration awards.

Read the article.

“Many business divorce practitioners are familiar with a phenomenon one might call ‘petitioner’s remorse’ – an often abrupt abandonment of one’s desire to dissolve a closely-held business entity when the opposing party unexpectedly declines to oppose or consents to dissolution. The dissolution petitioner’s rationale in bringing the claim may have been an expectation that the opposing party would fear the prospect of dissolution, oppose it mightily on the merits, and ultimately be forced into some sort of negotiated or compelled buyout. In that case, when the response is lack of opposition or consent to dissolve, the in terrorem effect and leverage is lost,” writes Franklin C. McRoberts in Farrell Fritz’ Dissolution Basics.

Read the article.

“In Quilter Private Client Advisers v Falconer the High Court found that a nine month non-compete covenant was in restraint of trade and void. The case is a useful reminder of some factors to take into account when drafting or seeking to enforce covenants to minimise the risk that they will be found to be unenforceable,” post Stefan Martin and Ed Bowyer in Hogan Lovells.

“Ms Falconer joined Quilter Private Client Advisers as a financial adviser in January 2019 but resigned during her probationary period because of unhappiness with the level of administrative support she was receiving and restrictions on the products she could recommend to clients. She went to work for one of Quilter’s competitors, which was on the face of it in breach of a nine-month non-compete clause in her contract of employment. Quilter took steps to enforce the covenant, although not for several months after it found out she was working for a competitor, and brought other claims relating to alleged misuse of confidential information and to enforce non-solicitation and non-dealing covenants.”

Read the article.

“In late November 2020, EPA Assistant Administrator, David P. Ross, released a series of recommendations which encourage EPA permit writers to include PFAS monitoring, best management practices, and stormwater pollutant controls as requirements in EPA issued NPDES permits. These recommendations were developed by the recently formed PFAS NPDES Regional Coordinators Committee (‘Committee’), an EPA work group comprised of staff and other contacts from USEPA Headquarters and Regional offices. The Committee’s goal was to develop an interim strategy to address point source discharges of PFAS pending development and adoption of statutory and/or regulatory frameworks for managing PFAS under the Clean Water Act. Specifically, the Committee recommended that EPA permit writers ‘[i]nclude permit requirements for phased-in monitoring’ and ‘best management practices’ (for wastewater discharges) or ‘stormwater pollutant control’ (for stormwater discharges) in EPA-issued NPDES permits for facilities where ‘PFAS are expected to be present’ in the facility’s discharge,” posts Thompson Coburn in Publications.

“Little guidance is offered to permit writers as to when PFAS are ‘expected to be present’ in wastewater or stormwater discharges. Rather, permit writers are advised to look to the raw materials stored at the facility, products or byproducts of the facility operation or available data and information from similar facilities. These methods, however, are of little use where the discharger is a publicly owned treatment works (“POTW”) or municipal separate storm sewer systems (‘MS4’).”

Read the article.

Eversheds Sutherland is pleased to announce the election of nine new US partners effective January 1, 2021.

The following attorneys have been elected partner:

From our Corporate and Financial Services Practice Group:

Hill Jeffries, resident in the Atlanta office, focuses his practice on mergers and acquisitions, joint ventures, venture capital investments and governance matters. He advises clients in a diverse array of industries, including technology companies, food manufacturers, natural resources companies and Timberland Investment Management Organizations (TIMOs). Jeffries’ experience includes counselling private equity sponsors and their portfolio companies on acquisitions, divestitures and general corporate matters.

Anne Oberndorf, resident in the Washington DC office, assists investment companies, investment advisers and private funds in navigating the intricate rules and regulations of the Investment Company Act of 1940 and the Investment Advisers Act of 1940, including counseling her clients on fund structure and compliance with, and exemptions from, those Acts.

Ray Ramirez, resident in the Washington DC office, counsels clients on derivatives regulatory and transactional matters. He assists clients in navigating regulations issued by federal agencies and the National Futures Association (NFA) and developing compliance programs and procedures to address them. Ramirez has guided market intermediaries, including commodity pool operators and commodity trading advisers, through the Commodity Futures Trading Commission (CFTC) registration process, has represented clients before the CFTC, the NFA and other regulators on various matters and has actively participated (on behalf of clients) in federal regulators’ rulemaking processes. He also assists clients in drafting and negotiating derivatives and other trading and financing documentation.

From our Intellectual Property Group:

Jeremy Spier, resident in the Atlanta office, counsels clients on Intellectual Property (IP) law, including international and domestic IP rights. Spier primarily focuses on patent and trademark prosecution. He also counsels clients on IP portfolio management and prepares patentability, validity, non-infringement and product clearance opinions. In addition, Spier has substantial experience in preparing IP licensing agreements and conducting IP audits and due diligence in corporate transactions..

Nash Zogaib, resident in the Austin office, drafts and prosecutes domestic and foreign patent applications and advises clients on patent portfolio management and other intellectual property needs. His technical knowledge spans software and hardware areas, including wireless standards, wireless charging devices, web security, voice over IP session management, cloud services, messaging systems, automotive technologies, semiconductors, memory devices, robotics, superconductors, printing devices, display technologies and imagining systems. Zogaib also has extensive engineering experience in cellular communications, including GSM, CDMA and LTE.

From our Litigation Practice Group:

Lee Peifer, resident in the Atlanta office, represents companies, individuals, schools and governmental entities in commercial and education litigation. He advises clients on a variety of matters — including contractual disputes, business torts, corporate governance, employment issues, school funding and constitutional law — and across a range of industries. Peifer has experience in state and federal courts and has represented clients in arbitration, at trial and on appeal. He also has defended clients in consumer, employment and education class actions.

Adam Pollet, resident in the Washington DC office, defends financial institutions, broker-dealers, investment advisers and individuals in regulatory investigations and enforcement matters involving the US Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA) and state securities regulators. He also represents his clients in complex financial services litigation, securities class action litigation and FINRA arbitrations. In addition, Pollet advises his clients in internal investigations, regulatory examinations and counsels them on various regulatory and compliance matters.

From our Real Estate Group:

Jenny Worthy, a resident in the Atlanta office, counsels clients on an array of commercial real estate matters, including the acquisition, construction and development, financing and disposition of commercial real estate projects. She advises commercial banks, investment banks, pension funds, real estate investment trusts, insurance companies and borrowers in financing transactions, including origination, workouts and distressed asset transactions. She works with lending clients on the origination of loans with diverse debt stack structures, including single asset, mezzanine and financings intended for securitization. She is also a member of the Firm’s timber and forest products team.

From our Tax Practice Group:

Ted Friedman, a resident in the New York office, focuses his practice on state and local tax matters. Friedman counsels clients on a wide range of state and local tax issues involving income and franchise taxes, sales and use taxes, gross receipts taxes and telecommunication taxes. Friedman represents clients in tax controversy, planning, policy and compliance matters.

DALLAS – The Dallas-based trial firm Lyons & Simmons has filed a negligence lawsuit against San Antonio-based Sapphire Aviation on behalf of the estate of Houston resident Paul David Cobb, one of five people killed in a 2018 crash of a Bell UH-1H helicopter in rural northern New Mexico.

According to reports, the group flew by private jet from Houston on Jan. 17, 2018, to Raton, New Mexico, where they transferred to the Huey helicopter for a short flight to Emery Gap Ranch for a birthday party. Lifting off just after sunset, the helicopter crashed into a plateau in a mountainous rural area 11 miles from Raton. Mr. Cobb, a 67-year-old veteran of the Pasadena, Texas, Police Department, survived the initial impact but sustained skull and rib fractures and internal hemorrhaging that left him unable to flee the fire caused by the crash. He ultimately died from his injuries.

In addition to Mr. Cobb, the crash claimed the lives of Charles Ryland Burnett III, owner of Sapphire Aviation and the helicopter; Roy Bennett, a founding member of Zimbabwe’s main opposition party and his wife Heather; and pilot Jamie Coleman Dodd. The sole survivor was Mr. Cobb’s daughter and Mr. Burnett’s longtime partner, Andra Cobb, who was injured in the crash.

Because of the remote location, it took nearly two hours for emergency responders to arrive at the scene, during which time a hunting guide came upon the wreckage. While he rendered aid, Mr. Dodd told the guide that “it was all my fault. I flew into the terrain. … This is all my fault,” according the lawsuit. A National Transportation Safety Board investigation listed pilot error as the likely cause of the crash.

The lawsuit is Martha Nell Cobb, Paula Donell O’Leary, and David Cobb v. Sapphire Aviation, LLC, the Estate of Jamie Coleman Dodd and the Estate of Charles Ryland Burnett III. (Case No. D-101-CV-2020-02630, First Judicial District Court, Santa Fe County.)

“American Tire Distributors (ATD), one of the largest independent tire distributors in the U.S., has named Carol Genis, formerly with Twentieth Century Fox Television, as its new chief legal officer and general counsel executive,” released ATD in aftermarketNews’ Personnel.

“Genis brings more than 25 years of experience in successfully managing legal and business affairs, corporate transactions, mergers, acquisitions, restructurings, financings, operations, compliance, corporate governance matters, intellectual property and complex litigation for public and privately held companies across a range of industries.”

Read the article.

“DLA Piper is pleased to announce it was ranked second by the Financial Times for both the Most Innovative and Most Digital law firm in the FT North America Innovative Lawyers 2020 report. The inaugural Most Digital award is based on the firm’s use of data and technology across all aspects of its client service and business. These impressive overall firm rankings are in addition to being commended in four individual categories,” posts DLA Piper in their Newsroom.

“DLA Piper’s pro bono work was included in the ‘Social justice and rule of law section’ of the report. The Financial Times editors noted that the case studies included in the report ‘…reflect some of the best practice emerging’ from law firms that ‘have harnessed the law to overturn inequities.'”

“DLA Piper was cited in this section for its: ‘1,400 hours of pro bono support to food banks and food distribution organisations since January.’ This work included helping with employee safety, supply chains, food storage, applications to the Paycheck Protection Program and advising related to the use of National Guard troops in food distribution. The Financial Times also noted that the firm provides pro bono legal counsel to the UN’s World Food Programme.”

Read the article.

“Google faced its third major lawsuit in two months on Thursday as 38 U.S. states and territories accused the $1 trillion company of abusing its market power to try to make its search engine as dominant inside cars, TVs and speakers as it is in phones,” report Diane Bartz and Paresh Dave in Reuters’ U.S. Legal News.

“The lawsuit against the company’s parent Alphabet Inc follows years of complaints that it and other big tech firms including Facebook and Amazon use their massive market power to smite competitors in pursuit of profits.”

“The states asked the court to find Google guilty of breaking antitrust law and to order an end to any agreements or other behavior that it finds to be exclusionary. It raised the possibility of requiring asset sales but did not go into detail.”

Read the article.