Foley Hoag LLP

SUMMARY

This volume summarizes related bodies of law – false advertising, commercial disparagement, and defamation – that govern the conduct of business communications. It sets forth elements, damages, and related defenses for each of these causes of action and suggests ways to reduce the risk of liability in business communications, advertising, and marketing. Related claims, such as trademark infringement, copyright infringement, and interference with contractual relations, are also addressed. Risk management procedures, a checklist for compliance training, and a sample complaint, answer and jury instructions are provided.

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SUMMARY

The U.S. Congress has passed legislation requiring companies that utilize “conflict minerals” to conduct due diligence and demonstrate that their products are not fuelling conflict in the Democratic Republic of the Congo (“DRC”). The legislation was added as an amendment to the Wall Street Reform and Consumer Protection Act, which was sponsored by Senator Christopher Dodd (D-CT) and Representative Barney Frank (D-MA), and voted into law on July 15, 2010.

SUMMARY

The U.S. Congress passed legislation that required oil, gas, mining, and other extractive industry companies to report to the Securities Exchange Commission (“SEC”) their payments to governments. The legislation was added as an amendment to the Wall Street Reform and Consumer Protection Act, which was sponsored by Senator Christopher Dodd (D-CT) and Representative Barney Frank (D-MA), and voted into law on July 15, 2010. [more ... ]

SUMMARY

Executive Summary

This report explores the benefits that Talisman Energy Inc. (“Talisman”) might derive and the challenges it might encounter if it were to adopt a policy to secure the free, prior, and informed consent (“FPIC”) of indigenous peoples potentially impacted by its global operations. Talisman commissioned this report at the request of two responsible investors, Bâtirente and Regroupement pour la responsabilité sociale des entreprises (“RRSE”). The World Resources Institute (“WRI”), a think tank and thought leader on FPIC, was asked to provide a third party commentary on it. The scope of the report, as agreed by Talisman, the responsible investors, and WRI, includes the legal history of FPIC, the opportunities and challenges attendant to a FPIC policy, FPIC best practices, and guidance on FPIC policy language and implementation guidelines.

SUMMARY

A District Court judge for the Southern District of New York last week denied in part and granted in part a motion to dismiss in the seminal Alien Tort Statute (“ATS”) case, In Re South African Apartheid Litigation. The In Re Apartheid case is particularly significant because it helps to clarify how courts may analyze liability in ATS cases for companies conducting business in countries with poor human rights records. The ruling required that companies have “knowledge” that they are assisting a crime, rather than “intent.” Knowledge is easier to demonstrate in court. The court also noted that merely conducting business in a pariah country or providing fungible goods or financing is not likely to generate aiding and abetting liability under the ATS. Rather, the court looked for goods that were specifically tailored for the government and used to help commit a crime. The court seemed to be searching for a tight causal nexus between the goods supplied and the particular harm suffered. The court also concluded that conspiracy liability is not available under the ATS.

SUMMARY

We know that the recent financial crisis and related economic downturn unfortunately are causing many employers to consider ways to reduce operational expenses, including through workforce restructuring and layoffs. We offer a few preliminary considerations: any such reduction-in-force (RIF) must be carefully planned and executed both to minimize exposure to liability under various employment laws and to mitigate negative effects on employee morale and operations. The following are some issues for employers to consider as they grapple with whether and how to implement a layoff.

Questions Include:

• Is a Layoff Necessary?
• Voluntary or Involuntary Program?
• Develop Uniform Selection Criteria
• Conduct a Layoff Analysis
• Is Advance Notice Required
• Severance and ERISA
• Asking for a Release
• Don't Forget Immigration Implications
• Don't Lose Sight of Termination Basics

SUMMARY

On Wednesday, October 22, 2008, the Federal Trade Commission issued an Enforcement Policy Statement that it will delay some elements of enforcement of recent “Red Flags” regulations until May 1, 2009, instead of the original November 1, 2008 date.

SUMMARY

In light of the turmoil currently affecting the world securities markets, on Thursday, October 16, 2008, NASDAQ announced that it has temporarily suspended enforcement of its rules requiring listed companies to maintain a minimum bid price of $1.00 and a specified minimum market value of publicly held shares. The suspension applies to shares of common stock, as well as other securities, including preferred stock, American Depository Receipts and limited partnership interests... (continues)

SUMMARY

On August 7, 2008, Massachusetts Governor Deval Patrick signed the "Global Warming Solutions Act," which will impose the most stringent greenhouse gas (GHG) reduction requirements in the nation. The Act creates Chapter 21N, which mandates a reduction of GHG emissions of 10% to 25% below 1990 levels by 2020 and 80% below 1990 levels by 2050, with intermediate caps for 2030 and 2040. Although the details for implementing these caps will not be known until regulations are promulgated, the emission reductions required to meet these caps must be measurable and enforceable.

Whereas most existing GHG reduction programs in the United States focus on the electric generating sector, this Act empowers the Executive Office of Energy and Environmental Affairs (EEA) to regulate a wide variety of sources across the commonwealth, and sets in motion the regulatory process to enforce an economy-wide cap on GHGs. Failure to meet the required reductions can result in administrative civil penalties for violators as high as $25,000 per day.

SUMMARY

In a notice published in the August 1, 2008 Federal Register, the United States Environmental Protection Agency (“EPA”) announced that it will begin following a new approach to applying its policy on Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (65 Fed. Reg. 19618) (“Audit Policy”) to new owners that wish to make a “clean start” at newly acquired facilities. EPA will begin applying the Interim Approach to Applying the Audit Policy to New Owners (the “Interim Approach”) in order to encourage new owners to audit newly acquired facilities and to disclose, correct and prevent to recurrence of instances of environmental noncompliance.

SUMMARY

The Securities and Exchange Commission (“SEC”), Financial Industry Regulatory Authority (“FINRA”) and New York Stock Exchange Regulation, Inc. (“NYSE Regulation”) have taken unprecedented steps in response to the concern that the stock collapse of Bear Stearns and Lehman Brothers resulted from the spread of false and misleading rumors, and that the rumors may have been linked to “naked” short selling.

SUMMARY

On June 16, 2008, the SJC issued its much-anticipated decision in Michael D. Bank et al v. Thermo Elemental, Inc. et al., clarifying that line-by-line compliance with “every detail” of the Massachusetts Contingency Plan (MCP) is not a prerequisite to recovery of any of the response costs incurred by a property owner via the cost-recovery provisions of the MCP in MGL Chapter 21E.  The SJC also confirmed that attorneys fees incurred in implementing a site cleanup – as opposed to litigation-related attorneys’ fees – are recoverable as response costs under Chapter 21E.

SUMMARY

While the debate over federal climate change regulation continues, several US states and regions have enacted their own programs. One of the first to act was Massachusetts, which in 2001 promulgated carbon limitations applicable to six existing power plants. Those regulations established an emission limit of 1,800 pounds of carbon per MWh and sharply limited the use of many types of carbon credits to meet the specified carbon targets. The regulations also allowed Massachusetts Department of Environmental Protection (“DEP”) to invoke a “safety value” if DEP determined that the Massachusetts requirements could not otherwise be achieved. Earlier this month, DEP determined just that and opened up its carbon markets. Although this individual action affects only a few sources and only for emissions generated in 2008, it is indicative of some of the regulatory flexibility that will be needed as regulators and regulated sources begin to grapple with the practicalities of climate change regulation. Most interested observers believe that climate change regulation will only continue to increase, but precisely how that process will unfold remains to be seen.

SUMMARY

Established in December 1980 by the partners of law firm Foley Hoag, The Foley Hoag Foundation is a private foundation that seeks to combat racism, especially among youth, in the City of Boston. The Foundation awards grants to organizations working to improve the racial climate in Boston by addressing issues of diversity and racism. Grantee organizations achieve their goals through a variety of means, including arts and cultural activities, youth leadership and recreational programs. Other grantees provide advocacy assistance, enabling individuals to confront racism through legal or political action. Some grantee organizations work to prepare young children to live in the reality of a multicultural society, others engage teens, and a few target a primarily adult constituency.

The Foley Hoag Foundation was the first—and remains the only— foundation to focus exclusively on the improvement of race relations in Boston. The trustees are fortunate to have the unqualified endorsement of Foley Hoag, which has provided an enormous amount of financial, administrative and moral support.

SUMMARY

Two recent developments, one by the Massachusetts Department of Environmental Protection (“MassDEP”) and one by ASTM International (“ASTM”), underscore the importance of addressing indoor air contamination that results when soil or groundwater contamination migrates as vapor.  On the regulatory side, MassDEP has emphasized its focus on this issue by issuing a flurry of draft guidance and procedures.  From an industry perspective, ASTM recently released a new industry standard for assessing indoor air contamination at properties that are the subject of real estate transactions.  As MassDEP’s draft standards are regulatory in nature and appear stricter than the ASTM standard, the ASTM standard may be of limited relevance here in Massachusetts.  However, it may serve to set the standard of care in states where Superfund regulations on this topic are not as detailed as those in Massachusetts.

SUMMARY

Yesterday, the U.S. Environmental Protection Agency published its long-anticipated formal determination on California's request to waive federal preemption of its automobile emissions standards for greenhouse gas emissions ("GHGs"). Although the ultimate fate of the EPA's determination will almost certainly be decided by the courts, the dispute between California and the EPA highlights the tension between state and federal efforts to regulate GHGs.

SUMMARY

Excerpt:

Corporate globalization presents companies with unanticipated risks and challenges. Businesses are held to higher standards of accountability with respect to social, environmental and ethical practices. Companies unresponsive to these demands risk damage to their reputations, brand image and competitiveness. We help savvy business leaders limit their companies’ risk by incorporating internationally recognized standards into their strategic planning, crisis response strategies and relationships with stakeholders.

Benefits of our counsel include:

• Reduction of threat to corporate reputation
• Reduction of legal risks associated with the uncertainties of globalization
• Enhanced brand image
• Increased customer and employee loyalty and retention Improved relationships with external stakeholders and public opinion leaders

Download the Foley Hoag Corporate Social Responsibility Brochure (.pdf)

SUMMARY

Engagements Include:

• Litigation and Arbitration between Sovereign States
• Arbitration between Sovereign States and Investors
• International Commercial Arbitration
• Litigation before the United States Courts

SUMMARY

• Litigios y Arbitrajes entre Estados Soberanos
• Arbitrajes entre Estados
• Soberanos e Inversionistas
• Arbitrajes Internacionales Comerciales
• Litigios ante las Cortes de los Estados Unidos

SUMMARY

As the only law firm in the United States with a Corporate Social Responsibility and risk management practice, Foley Hoag is singularly equipped to help clients put human rights principles and aspirations into practice in a manner that minimizes uncertainties and maximizes business opportunities. To this end, we assist clients in managing legal risks, safeguarding corporate reputations, and turning the challenges of globalization into a competitive advantage.

Download the Foley Hoag Corporate Social Responsibility Datasheet for the Extractive Sector (.pdf)