The National Law Forum

Workplace Homicides on the Decline

An article by Jared Wade of Risk and Insurance Management Society, Inc. (RIMS) regarding Workplace Homicides recently appeared in The National Law Review:

The number of workplace homicides is less than half of what it was 20 years ago.

Omar Thornton was fired on August 3, 2010. He arrived for a 7 a.m disciplinary meeting at the Connecticut beer distributor where he worked, and after being shown a video his employer had recorded of him stealing a case of beer, was given an ultimatum: resign or be fired. Thornton signed a resignation agreement before reportedly excusing himself to get a drink of water. That was when the horror began.

Thornton used two Ruger pistols he had concealed in his lunchbox to kill nine coworkers during a 45-minute shooting rampage throughout the facility before taking his own life. It was the deadliest workplace shooting in Connecticut history.

Fortunately, tragedies like this are becoming less common. The likelihood of a workplace homicide is now half what it was in the mid-1990s, according to a recent report by the National Council on Compensation Insurance (NCCI). This trend mirrors a declining national homicide rate, but workplace killings have fallen off even more rapidly. There were 950 in 1993 compared to just 462 in 2009, according to the Bureau of Labor Statistics. This represents a 59% drop-off in workplace homicides over 16 years compared to an overall U.S. homicide rate that fell 49%. The number of homicides has also fallen as a percentage of overall workplace deaths. In 1992, 17% were due to homicide compared to just 11% in 2009. (Auto accidents remain the top killer, holding steady at around 40% of all workplace deaths throughout at least the past two decades.)

The massacre in Connecticut was unusual in another way: the homicides were committed by a coworker. “Contrary to popular belief,” states the Spring 2000 issue of Compensation and Working Conditions, “the majority of [workplace homicides] are not crimes of passion committed by disgruntled coworkers and spouses, but rather result from robberies.”

In a disturbing trend, however, this is less the case today than it was a decade ago. Increasingly, coworkers are killing coworkers. “The highest share of workplace homicides is still due to the category of robbers and other perpetrators, but that share has fallen from 85% to 69% from 1997 to 2009,” states the NCCI report. “Over that same time period, the share due to work associates has grown from 9% to 21%.”

This represents a key area of concern for all companies. There is little a company can do about the national homicide rate. And while there is more it can do to protect itself from being targeted by thieves (adding surveillance, physical barriers or security guards, for example), robberies can still happen. There are, however, proven steps a company can take to reduce the likelihood of coworker-on-coworker violence.

Conducting better background screening during the hiring process is one. Other companies have found success by adopting zero-tolerance policies towards aggressive behavior of any kind in the workplace. That may be effective when combined with clear disciplinary actions for offenders. But the federal U.S. Office of Personnel Management recommends one method above all others: vigilance.

“No one can predict human behavior, and there is no specific profile of a potentially dangerous individual,” states the agency. But, it notes, there are clear indicators based on FBI research of increased risk of violent behavior.

Any direct threats of harm lead the list followed by intimidation, harassment, bullying or other aggressive behavior. Employees who have “numerous conflicts” with coworkers or display extreme changes in behavior also fit the profile of those more prone to commit violence. If any of these issues are observed by, or reported to, management, they should never be ignored.

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute,

on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:

Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

Techniques for winning trials
Ethical issues presented by white-collar corporate investigations
Trends in white-collar sentencing, and
The special challenges of handling cross-border investigations.

Identity Theft Continues to Top FTC’s List of Consumer Complaints

Recently The National Law Review published an article by Rachel Hirsch of Ifrah Law regarding FTC’s Top Consumer Complaints:

For more than a decade, the Federal Trade Commission has been releasing its list of the top ten categories of consumer complaints received by the agency in the previous year. This list always serves as a good indication of the areas toward which the FTC may choose to direct its resources and increase its scrutiny.

For the 12th year in a row, identity theft was the number one complaint received by the FTC. Out of more than 1.8 million complaints the FTC received last year, 15% – or 279,156 – were about identity theft. Of those identity theft complaints, close to 25 percent were related to tax or wage-related fraud. The number of complaints related to identity theft actually declined in 2011 from the previous year, but this type of fraud still topped the list.

Most identity theft complaints came from consumers reporting that their personal information was stolen and used in government documents — often to fraudulently collect government benefits. Complaints about government document-related identity theft have increased 11% since 2009 and represented 27% of identity theft complaints last year. These numbers are likely to increase as concerns about consumer data privacy continue to garner the attention of the FTC.

After ID theft, the FTC’s top consumer complaints for 2011 were as follows:

• Debt collection complaints
• Prizes, sweepstakes, and lotteries
• Shop-at-Home and catalog sales
• Banks and lenders
• Internet services
• Auto-related complaints
• Imposter scams
• Telephone and mobile services
• Advance-fee loans and credit protection or repair

While credit cards are intertwined with many of the above complaints, complaints about credit cards themselves are noticeably absent from the 2011 list. In past years, credit card fraud was a major source of complaints from consumers. The drop in credit card-fraud-related complaints, however, is not surprising given the passage of the Credit CARD Act of 2009. This landmark federal legislation banned interest rate hikes “at any time for any reason” and limited the instances when rates on existing card balances could be hiked by issuers. The law also required lenders to give customers at least 45 days advance notice of significant changes in terms to allow card users time to shop around for better terms.

With the upcoming changes to the FTC’s advertising guidelines, there may very well be new additions to the consumer complaint list next year. Those complaints that already appear on the list are also likely to receive increased scrutiny.

California Women Lawyers 2012 Annual Conference

The National Law Review is pleased to bring you information about the upcoming California Women Lawyers 2012 Annual Conference:

CWL’s 2012 Annual Conference

“Practicing Law in the 21st Century: Women Lawyers in Power Positions”,

featuring

Morning Speaker Patricia K. Gillette, Esq., Partner, Orrick, Herrington & Sutcliffe and

Keynote Luncheon Speaker Catherine Lacavera, Director of Litigation, Google, Inc.

Friday, April 20, 2012

Crowne Plaza Cabana Hotel

Palo Alto, California

Shareholder Disputes: How to Prevent a Corporate Divorce

An article regarding Shareholder Disputes written by David J. Treacy and John M. Spires of Dinsmore & Shohl LLP was recently published in The National Law Review:

Small and medium-sized businesses provide valuable goods, services, and jobs. Often, they are run as corporations in which the controlling officers and directors also are the major shareholders. Frequently, friends and family found these businesses together. But even successful businesses owned by friends and family aren’t immune to problems resulting from circumstances and relationships that change over time.

Shareholders may start the business together, but wish to leave at different times based on life events. New, valuable employees might want to be owners, too. Business deals may be made with companies in which some, but not all, of the directors or shareholders overlap. In situations like these, interests can collide.

Successful businesses last a long time, and change is inevitable. But preparation on the front end may eliminate big problems that could arise down the road. While there are few “one size fits all” rules, we suggest some best practices to consider when forming a business.

Put your agreement in writing. Business relationships founded on a handshake may begin with good intentions, but are unlikely to stand the test of time. Businesspeople who spell out their expectations in written agreements obtain greater security about what their understandings really are – and have a contract to look to if problems arise. Shareholders’ agreements also let you address how to handle major events – like adding shareholders, or an owner’s retirement – before they happen.
Pick your partners wisely. Closely-held corporations are like marriages. When personalities mesh and goals are aligned, the family can prosper. When they don’t, you may end up in a nasty divorce. And when you have a very different idea from your partners in the beginning about what’s fair, or what everyone’s role should be, or what the business will look like in ten years, a divorce is inevitable.
Hold formal meetings and keep good records. Important decisions are made when a business is formed, as well as when it is established and thriving. Your fellow shareholders may seem happy with those decisions, but looks can be deceiving. A good corporate secretary, keeping records of votes and discussion on important decisions in corporate minutes, may prove invaluable later on if someone wasn’t as happy as you thought they were. Good minutes are more than a mere formality.
Know what you signed up for. Board membership is a serious responsibility. Directors owe special duties to the corporation and its shareholders. This fiduciary relationship is sacred in the law, and you are held to a higher standard of conduct as a result. Consider training your board members on their responsibilities so that they know how to discharge them faithfully.
Consider outside voices. Once your corporation is established, hiring an outside director (someone uninvolved in your business) to serve on your board may be advisable. Outside directors with open minds will consider board proposals from a fresh perspective. They also may insulate management’s proposals to the board from second-guessing.
Counseling in-house. In-house attorneys are tremendous resources. With business minds and legal backgrounds, they can help members of your management team navigate through decisions big and small. But business advice can be closely related to legal advice, and only legal advice is protected under the attorney-client privilege. Consider carefully what you ask your in-house lawyers to do.
Keep shareholders informed. Information is power, and it is expected to be imparted to the shareholders, particularly in a closely-held business. Informing shareholders of a major corporate action only after it’s been taken may lead to arguments about the action’s propriety.
Full disclosure. Closely scrutinize transactions between a director or major shareholder (or another business they own) and your corporation. A failure to ensure that a deal is fair to all, and especially to the corporation, invites a claim that the director involved in the transaction breached his fiduciary duty. It also may result in a claim that the other directors let their colleague take advantage of the corporation, and by doing so breached their own fiduciary duties.
Good policies are a good policy. Business records take all forms – monthly accounting data circulated on spreadsheets; emails on a server; individual files in drawers throughout the office. Having a well-thought-out policy on document retention, email usage, and documents that simply shouldn’t be removed from the building helps you manage risk. If a problem arises, you don’t want to have to explain why you have some records dating to your company’s inception, but you’ve permanently purged an email sent ninety days ago, unless you have a written policy on point.
Insure your risks: Internal disagreements may result in claims against directors or officers when they make a decision that a shareholder doesn’t like. While courts afford deference to a board’s decisions under the “business judgment rule,” directors may face personal liability on these claims, and the costs to defend themselves, in the absence of commonly-acquired Director & Officer (“D&O”) insurance. D&O coverage is simply a must.

Avoid the corporate divorce before it happens. A little advance planning can go a long way.

As seen in Business Lexington.

Upcoming Spring 2012 CLE National Institutes

The National Law Review is pleased to bring you information about the ABA’s Upcoming Spring 2012 CLE National Institutes:

Learn and network at these in-person,full-day or multi-day seminars held live in various locations across the country that draw lawyers from across the nation.

USPTO Preliminary Guidelines Spread Mayo on Patent-Eligibility

The National Law Review recently published an article by Christopher L. Drymalla, Jeffrey B. Swartz, Jeffrey S. Whittle and Michael R. Samardzija, Ph.D. of Bracewell & Giuliani LLP regarding Patent-Eligibilty:

A day after the United States Supreme Court delivered its decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,¹ the United States Patent and Trademark Office issued preliminary guidance² instructing examiners to reject process claims that invoke laws of nature and only add steps which constitute “well-understood, routine, conventional activity” that is described in the most general of terms regardless of whether there is a transformation involved.

According to the Patent Office, although the “machine or transformation test” remains an “important and useful clue,” it is not to be considered “the sole or a determinative test” for eligibility as it does not “trump the ‘law of nature’ exclusion.” Moreover, the Mayo decision reinforces the need for a patent applicant whose claims include a law of nature, a natural phenomenon, or an abstract idea to ensure the “claimed product or process amounts to significantly more than a law of nature, a natural phenomenon, or an abstract idea with conventional steps specified at a high level of generality appended thereto.” (emphasis in original). Although the guidelines put special importance on process claims as were at stake in Mayo, the guidelines appear to indicate this analysis may apply to all claims related to laws of nature, natural phenomena, or abstract ideas.

Neither the guidelines nor Mayo provide specific guidance for what would make a product or process significantly more than a law of nature, a natural phenomenon, or an abstract idea. Nevertheless, the Patent Office sees the claim at issue inMayo as a prime example of one which merely includes a highly general and conventional step of which patent examiners are expected to be more cautious. As explained in the guidelines, the claims in Mayo emphasize the “law of nature” correlation between the concentration of the drug and its threshold limits for therapeutic effects and harmful side effects.

Simply adding the well-understood, routine, conventional actions of administering the drug and checking its blood concentration in the most general of terms, however, does not confer patent eligibility as the claims themselves are “effectively directed to the [law of nature] exception itself.” Based on the new guidelines, an examiner confronting a similar claim set is directed to reject the claim as non-statutory subject matter under 35 U.S.C. § 101 (utility or patent-eligibility requirement section). The guidelines do specifically note that the applicant in such a case will then have the opportunity to defend the claim and show why it is not drawn to the patentability exception itself. The applicant will have to rely on other claim limitations to support the argument.

The Patent Office’s guidelines suggest that the Mayo decision should be viewed as a cautionary tale for applicants who intend to direct claims to inventions which arguably incorporate the use of laws of nature, natural phenomena, or abstract ideas.

Should you have any questions, please contact your Bracewell & Giuliani LLP patent attorneys. We will, of course, keep you advised as to any new developments in this area.

_______________________________________

¹No. 10-1150, 566 U.S. ___, 2012 WL 912952 (S. Ct. Mar. 20, 2012) (for a more thorough discussion of Mayo and the particular facts and determinations involved,see Update: Can’t Touch This – Supreme Court Finds Personalized Medicine Patent Claims Invalid, Bracewell & Giuliani LLP (Mar. 20, 2012).

²See Memorandum: Supreme Court Decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. (Mar. 21, 2012).

Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

Reasons why you should Attend This Year’s Event:

Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.

Chief Legal Officers
General Counsel
Corporate Counsel
Associate General Counsel
CEOs
Senior Counsel
Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

FDA Discloses Method for Classifying Food Facilities as "High Risk" Under FSMA

The National Law Review published an article regarding FDA High Risk Food Facilities Classification Methods written by Lynn C. Tyler, M.S., Nicolette R. Hudson and Hae Park-Suk of Barnes & Thornburg LLP:

The Food Safety Modernization Act (FSMA), signed by President Obama in January 2011, requires FDA to inspect food facilities on different time tables depending on whether a facility is classified as “high risk” or not. High-risk facilities must be inspected at least once within the first five years after the enactment of the FSMA and once every three years thereafter. Non-high risk facilities must be inspected at least once within the first seven years after the enactment of the FSMA and once every five years thereafter.

The U.S. Food and Drug Administration (FDA) recently disclosed the method it intends to follow to classify food facilities as high risk or non-high risk under the FSMA. The agency first noted that the FSMA set forth six risk factors to be considered in making this determination:

The known safety risks of the food manufactured, processed, packed or held at the facility
The compliance history of the facility
The facility’s hazard analysis and risk-based preventive controls (HARBPC)
Whether the food at the facility meets the criteria for priority to detect intentional adulteration in imported food
Whether the food at the facility has received certain certifications
Other criteria identified by Health and Human Services

FDA then noted that for FY 2011-13 the classification decision will be based primarily on the first two factors and according to the following algorithms:

If a facility manufactures food categories associated with foodborne outbreaks AND class I recalls (reasonable probability of serious adverse health consequences or death), it is high risk
If a facility manufactures food categories associated with foodborne outbreaks OR class I recalls AND it has not been inspected within the last five years, it is high risk
Facilities with a checkered compliance history (three or more inspections resulting in Voluntary Action Indicated findings or one or more resulting in Official Action Indicated findings within the last five years) are high risk

FDA stated that it plans to modify and adjust these criteria in the future as it develops data on some of the FSMA criteria and for other reasons. It also reserved the right to inspect a facility more frequently when necessary in its judgment.

ICC Conference Cross-Border Sales – April 19, 2012

The National Law Review is pleased to bring you information about the upcoming ICC Conference Cross-Border Sales in London April 19, 2012:

What is the Best Legal Framework for Business-to-Business Contracts?

Thursday, 19 April 2012
London, United Kingdom

Objective

The contract of sale is certainly the most commonly used agreement in international commerce. When drafting a sales contract or general conditions of sale (or purchase) to be used in cross border trade, it is essential to choose the legal framework (applicable law) within which the agreement is to be placed.

Choosing one solution instead of another may have very important effects on the rights and obligations of the parties. Parties therefore need to have the information which is necessary in order to make the best possible choice between the various alternatives.

The speakers will examine and discuss on one side the project of a Common European Sales Law, which has been recently proposed by the European Commission, and on the other side the CISG (Vienna Sales Convention), which is the law applicable to cross-border sales in most countries of the world.

Members of the ICC task force that has been revising the ICC Model International Sales Contract will also take the opportunityto discuss their approach and present issues that have been the subject of relevant discussion.

Who should attend?

Legal directors and corporate counsel from companies involved in international trade, practising lawyers, legal practitioners advising international trading companies, business people involved in international trade and dispute resolution

The National Law Forum

Workplace Homicides on the Decline

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NY City Bar White Collar Crime Institute

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Identity Theft Continues to Top FTC’s List of Consumer Complaints

After ID theft, the FTC’s top consumer complaints for 2011 were as follows:

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California Women Lawyers 2012 Annual Conference

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Shareholder Disputes: How to Prevent a Corporate Divorce

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Upcoming Spring 2012 CLE National Institutes

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USPTO Preliminary Guidelines Spread Mayo on Patent-Eligibility

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FDA Discloses Method for Classifying Food Facilities as "High Risk" Under FSMA

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ICC Conference Cross-Border Sales – April 19, 2012

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After ID theft, the FTC’s top consumer complaints for 2011 were as follows:

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