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Administrative / Regulatory Law
Administrative / Regulatory Law Definition
Federal, state, and local agencies are granted their powers through the Constitution or statutes. These agencies promulgate complex rules and regulations to execute this delegated authority. Administrative and regulatory attorneys assist individuals or corporations in understanding and complying with these legal requirements. Or under more limited circumstances, administrative and regulatory attorneys may assist a client in challenging a government action. Therefore, the broad classification of administrative and regulatory law often encompasses government regulation, legislation, rulemaking, and adjudication.
U.S. Supreme Court Justice Stephen Breyer provided a concise definition of administrative law by segregating it into four parts, namely the legal rules and principles that define the: (1) authority and structure of administrative agencies; (2) procedural formalities employed by agencies; (3) validity of agency decisions; and (4) role of reviewing courts and other governmental entities. (Breyer, Stephen, et al., Administrative Law & Regulatory Policy, (2001)).
In practice, administrative and regulatory attorneys provide services to individual and corporate clients who require counsel regarding complex government laws, rules, regulations, procedures, permitting, applications, or enforcement matters. Attorneys in this specialized field will most often be called upon when a governmental action may impact an individual or business. This encompasses a wide range of legal matters, from assisting an individual obtaining a building permit from a local government agency to responding to a federal regulatory enforcement action against a large corporation.
Attorneys in this area may have general experience with government rules or specialize in a specific field. It is more likely that an attorney will have specialized expertise in highly regulated industries such as environmental protection, land use, trade, tax, immigration, and employment.
Administrative and regulatory attorneys also may specialize in a specific legal jurisdiction. State and local agency matters are typically handled by local attorneys who have experience with the applicable law and procedures. Attorneys throughout the U.S. maintain active practices representing clients in federal administrative and regulatory matters, with a high concentration of these practitioners in the Washington, D.C., area.
Admiralty and Maritime Law
Admiralty and Maritime Law Definition
The admiralty and maritime practice involves all aspects of legal work relating to marine activities. This includes litigation, commercial transactions, and non-litigation counseling, as well as regulatory work before federal and state agencies. Firms with litigation caseloads generally represent clients in matters involving collision, personal injury, cargo loss, workers' compensation, maritime commercial disputes and insurance coverage relating to inland marine vessels, oceangoing vessels, passenger vessels, drill rigs, and other offshore equipment.
Frequently, these firms also handle marine related issues involving mass disasters, major pollution incidents, toxic torts, and class actions. Due to the nature of when and where clients' needs arise, attorneys in this practice frequently are on call 24 hours and travel to distant and sometimes remote locations. In the areas of commercial and counseling, maritime attorneys handle issues relating to vessel sales, shipyard contracts, maritime insurance counseling and evaluation, contract and charter drafting and negotiations, and maritime finance advice. In the context of the regulatory arena, attorneys typically appear before the United States Coast Guard, Federal Maritime Commission, United States Department of Labor, and the National Transportation Safety Board.
Advertising Law Definition
Advertising law is a broad, fast-evolving area of law that involves vetting claims about products and managing business practices to avoid misleading, deceiving, or defrauding consumers. Product promotions and the media used to convey advertising messages evolve rapidly. For instance, mobile, affiliate, and social media marketing — all of which scarcely existed a few years ago — are now among the most prominent advertising channels. At the same time, the traditional model of an advertiser working with an ad agency has evolved into an industry with a multitude of intermediaries including payment processors, affiliate marketers, endorsers, producers, and product developers, all of whom may play a role in advertising decisions that can create legal exposure.
Companies and individuals involved in the advertising and promotion of products require counsel who keep pace with new developments in the ways advertisers interact with consumers and how those efforts are regulated. Counsel must also understand the risks and potential liability associated with the different types of companies involved in advertising and promotional efforts. Together, these skills give advertising attorneys the ability to tailor advice to their client, no matter what type of advertising or promotion-related activity the client provides.
Advertising law also involves recognizing the important balance between maximizing product sales and minimizing legal risk. Legal advice on advertising claims and promotional strategies should be practical and allow clients to make informed business and legal decisions. Creativity also is an important aspect of counseling in this area because advertising attorneys must be able to recognize the many interpretations consumers may infer from advertising claims or business practices and develop innovative solutions to remedy any potential problems those inferences may cause.
Finally, advertising law issues can involve either litigation or enforcement by government regulators. In fact, one can often lead to the other. Advertising attorneys must understand how to manage, and when possible avoid, contesting the same issue on multiple legal fronts. Counsel also should be sensitive to the fact that there are often important strategic differences when dealing with opposing counsel versus a regulatory agency that may play the role of both prosecutor and judge or jury.
Agriculture Law Definition
Agricultural law encompasses a vast group of specialties applied to the complex and ever-changing market, business, and regulatory concerns faced by individuals and businesses in the food and agriculture industry. Agriculture and food law clients range from crop producers, livestock producers, dairy producers, and cooperatives; to the businesses that serve producers’ needs such as agricultural equipment manufacturers and dealers, agricultural finance and equity capital providers, animal health innovators, crop input providers, transportation firms, and energy producers; to the grain handlers and processors, food technology companies, and even restaurants, creating, using, and distributing the end products of agriculture. Given the broad range of agriculture and food client types, the concerns faced by those different client types vary, and agriculture law reflects the application of transactional, strategic planning, and litigation legal work to those concerns.
Food and agriculture industry clients frequently have questions in diverse legal areas such as real estate, contract, environmental, import/export compliance, tax, insurance, estate and succession planning, intellectual property, labor and employment, equity funding, legislation, business formation, and litigation. Agricultural law also encompasses assisting clients to influence the creation of policy and to navigate existing regulations administered by various federal, state, and local agencies, including the U.S. Department of Agriculture, U.S. Food and Drug Administration, U.S. Environmental Protection Agency, local soil and water conservation districts, and state boards of health. Agricultural law addresses international concerns such as govern livestock import, grain and other processed food export, patent and trademark protection in foreign jurisdictions, foreign business licenses and taxation, and immigration of skilled workers.
Attorneys practicing in the food and agriculture industry may have a diverse range of experience in many of these legal and regulatory fields. More likely, however, agricultural law attorneys focus on one particular type of law and concentrate on assisting food and agriculture clients with needs in that focus area. Agricultural law attorneys also may focus on helping clients deal with issues raised in particular areas of food and agriculture, such as confined feeding operations, food labeling, water rights, or competitive advertising. Food and agriculture clients with sophisticated legal needs can benefit from a team approach in which a group of attorneys experienced in particular areas is assembled to ensure that all aspects of a client’s legal needs are met, while minimizing the chance that a decision in one particular legal area or jurisdiction will negatively affect the client’s position in another.
Animal Law Definition
Animal law practitioners provide their clients - such as exhibitors, breeders, dealers, retailers, trade associations, animal rights and anti-animal rights activists, land owners, and research facilities - with legal, political, lobbying and public relations support in connection with litigation, legislative enactments and proposed regulations. Some of the myriad types of matters with which they may deal include: the taking of endangered species; the sale, trade or exchange of animals; hunting; animal breeding; veterinarian malpractice; animal cruelty; medical research and scientific experimentation using animals; and compliance with animal-related statutes, regulations, ordinances, and international treaties and agreements.
On the federal level, the Animal Welfare Act (AWA), the Endangered Species Act (ESA), and the Marine Mammal Protection Act (MMPA), are just a few of numerous animal-related statutes enacted by Congress. The AWA is the only federal law in the United States that regulates the treatment of animals in research and exhibit. The ESA is the federal law that protects and helps recover imperiled species and the ecosystems upon which they depend. The MMPA protects all marine mammals, including cetaceans (whales, dolphins, and porpoises), pinnipeds (seals and sea lions), sirenians (manatees and dugongs), sea otters, and polar bears. The AWA is enforced by the U.S. Department of Agriculture while the ESA and MMPA are enforced by both the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Services (NMFS), depending upon the animals involved. State statutes and local ordinances enhance and complement these and other federal laws and typically are enforced by agencies or other legal bodies that govern fish and game and products therefrom.
On the international side, one of the most important agreements signed by more than 180 countries is CITES – the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Its purpose is to control international trade in order to safeguard specimens of wild animals and plants against human threats to their survival.
Although the animal law field is relatively new, its scope and complexity continue to expand in leaps and bounds given creative lawsuits brought by animal rights activists, as well as new and pervasive legislation that they push. Lawyers practicing in this area increasingly are required to analyze and sort through difficult Constitutional, statutory, and common law issues, especially in matters relating to the treatment and ownership of animals.
Antitrust Law Definition
The antitrust laws are designed to foster competition and promote consumer welfare by ensuring that businesses compete fairly based on the strength of their product and service offerings. The antitrust laws target unlawful business practices that may lead to higher prices, fewer choices, or lessened innovation for consumers. For example, the antitrust laws prohibit agreements among competitors to fix prices or allocate customers (Section 1 of the Sherman Act), illegal or attempted monopolization by firms with leading market positions (Section 2 of the Sherman Act), certain tying and exclusive dealing arrangements (Section 3 of the Clayton Act), mergers and acquisitions that are likely to substantially lessen competition (Section 7 of the Clayton Act), price discrimination between competing purchasers (Robinson-Patman Act), and, generally, unfair methods of competition (Section 5 of the FTC Act). In addition, individual U.S. states and more than 100 countries around the world have enacted antitrust laws.
Courts and governmental enforcement reflect the inherently fact-specific nature of antitrust jurisprudence. Variations in laws across different jurisdictions can add further complexities to analyses of business arrangements and practices. Accordingly, clients typically engage antitrust counsel to assist with the following types of matters:
Strategic Transactions. When contemplating a merger, acquisition, joint venture, or minority investment, antitrust counsel are engaged early in the decision-making process to advise clients regarding the potential antitrust risks of a proposed business combination and to help structure the transaction to address those risks. Antitrust counsel also assists in identifying jurisdictions that may require a pre-merger notification filing and coordinating antitrust review from enforcement authorities around the globe.
Litigation. Antitrust litigations frequently involve allegations of monopolization, price-fixing, and other agreements and activity that lessens competition. These suits often proceed as class actions, in many cases involving enormous exposure representing treble damages across entire industries. In their roles as plaintiffs, defendants, or third parties, businesses require advice from antitrust counsel regarding the risks and benefits of the antitrust litigation process, which can involve treble damages (in civil litigation) or incarceration and significant fines (in criminal prosecutions).
Government Investigations. Antitrust counsel play an indispensable role in guiding companies through administrative and, when necessary, criminal processes in the U.S., European Union, and other jurisdictions for issues related to cartelization, price-fixing, monopolization, and vertical restraints. In particular, antitrust agencies around the world increasingly investigate and prosecute illegal cartels. Antitrust counsel provide overall coordination of approaches to multiple jurisdictions, especially with regard to the potential for criminal sanction, third-party access to evidence, and follow-on private litigation.
Counseling. On a day-to-day basis, many firms require antitrust guidance regarding strategic pricing decisions, structuring distribution and licensing agreements, potential competitor collaborations, interlocking directorates, and a variety of other customer-, supplier-, or competitor-facing issues that may implicate the antitrust laws. In addition, many businesses implement antitrust compliance, monitoring programs, and internal reviews in consultation with antitrust counsel.
Appellate Practice Definition
Appellate practice involves different skills and strategic considerations than trial practice. On appeal, the focus shifts from developing and proving facts (through discovery, examining witnesses, and trial) to the legal issues that decide the case. Effective appellate advocacy thus demands a formulation of the issues that is focused on what is important to a panel of appellate judges deciding the case.
In formulating the issues on appeal, an appellate lawyer conducts thorough legal research; analyzes the legal issues in light of the rule-making and policy considerations that shape the development of law; and then presents the facts and those issues and arguments selected for appeal concisely in a persuasive appellate brief.
The importance of a well-crafted appellate brief cannot be exaggerated. Appellate briefs receive greater judicial scrutiny than written materials prepared at trial because they are reviewed by a panel of judges, rather than a single judge, along with those judges’ larger legal staff, under comparatively less time pressure than exists in the trial court. As one appellate court has explained, appellate work is “most assuredly not the recycling of trial level points and authorities” but instead “entails rigorous original work in its own right” and “offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.” In re Marriage of Shaban, 88 Cal. App. 4th 398, 408-10 (2001).
After the appellate briefing, oral argument is an opportunity to engage in a dialogue with the appellate judges regarding the issues in the case. To be effective, appellate oral advocacy must be keyed to the unique concerns of the appellate forum – avoiding emotional or fact-based pleas that may play well before a jury, but instead focusing on the dispositive legal issues, being sure to answer the judges’ questions.
In addition to the practice in the appellate courts, appellate lawyers play important roles in the trial courts. Appellate lawyers collaborate with trial counsel on strategic and tactical matters to raise all applicable arguments and make the appropriate trial record, identifying and preserving legal issues as they arise and crafting effective motions on substantive legal issues – before, during, and after trial.
Therefore, involving an appellate lawyer in a case as early as possible is important to ensure the best chance of success both at trial and on appeal.
Arbitration is the cost effective method of resolving/adjudicating disputes (especially commercial disputes) where you choose (with the consent of your adversary): (a) the judge (arbitrator) who will decide the dispute; (b) the procedure (including discovery, if any) to be followed in resolving the dispute; (c) the costs to be incurred (e.g. live or written testimony); (d) the time within which the dispute is to be finally resolved; and (e) the involvement, if any, of the public court system (e.g. appeal or no appeal).
In the face of skyrocketing legal costs and court delays; in the face of "bet the company" and opportunistic lawsuits; and in the face of "made as instructed" "expert" witnesses, trusting neutral experienced (in both the law and the relevant factual/expert/business area in dispute) deciders/ arbitrators (as opposed to lay jurors who too frequently "think" with their emotions) via the arbitration process has become progressively more rational. Hence, experienced, cost conscious litigators and general counsel are turning ever more frequently to the process which they themselves control and create: ARBITRATION.
Following are those individuals deemed by their peers to be best qualified to act as impartial neutral arbitrators (judges) in their respective practice areas and jurisdictions.
Art Law Definition
Art intersects with law in a multitude of forums and disciplines. The broad classification of "art law" encompasses the body of law applied to fine art and artists, and also often extends to cultural property, collectibles, multiples, and memorabilia.
Art attorneys advise on the various art specific laws that exist at the state and federal level and affect the relationships and transactions among collectors, artists, dealers, and other art world participants. Additionally, an attorney in this area understands that the practice of art law frequently involves application to fine art transactions and disputes of other areas of law, such as contract law, trust and estate law, tax law (including exempt organizations), property law, civil procedure, tort law, constitutional law, and customs laws - but with more specific issues considering the unique environs, conflicting interests, and operations of the mostly unregulated and opaque art market.
Attorneys in this field advise regularly on artists' legal rights and protections (including artist-dealer relationship, First Amendment rights, copyright and trademark (including fair use), moral rights, resale royalty rights, and statutory artist protections).
An art lawyer's clients include private collectors, private art foundations, artists, artist foundations, museums, galleries, and/or art dealers, who seek legal counsel relating to the creation, destruction, purchase, sale, consignment, auction, movement, ownership, financing, loan, authentication, export/import, display, reproduction, insurance, taxation, storage, charitable gifting, and/or theft, restitution, and recovery, of fine art. Attorneys in this field also structure, review, negotiate, and draft a wide range of agreements specific to the unique environs of the art world, including art purchase and sale agreements; bills of sale; escrow agreements; agreements for the conservation, restoration or repair of art; appraisal agreements; collector and exhibition insurance policies and unique art endorsements; licensing agreements; agency agreements; art advisor and consulting agreements; review on approval agreements; auction consignment agreements including auction guarantees and advances; private sale consignment agreements; artist/dealer agreements; loan agreements with museums and galleries for exhibition of art; deeds of gifts and promised gift agreements with museums for donation of art and or funds; and agreements for commissions of public and private art. Some attorneys in this field may be in-house at museums, auction houses, and galleries, instead of private practice.
In addition to the transactional matters described above, the unregulated art market and its lack of transparency (including frequent use of agents for undisclosed principals), and inherent conflicts of interests, lead to an increased risk of art-specific litigation. Some art attorneys therefore have developed a more particular litigation based practice, and they regularly advise on art world contract disputes, enforcement of artist rights, restitution claims for stolen or looted art including procedural challenges, art fraud and forgeries, authentication challenges, and ownership disputes, as examples.
As noted, art law often encompasses matters involving cultural property (antiquities, artifacts, and objects of historical, religious, ethnological, or archeological importance). In addition to the general areas of art law mentioned above, attorneys whose practice extends to the cultural property arena are also familiar with legal issues unique to cultural objects (as well as to protected flora and fauna that is sometimes used in art, like feathers, skeletons, ivory, and wood from protected species), such as specific domestic cultural property laws governing possession and sale of, and bi-lateral and multi-lateral treaties and conventions governing international trade in, such objects, as well as U.S. and foreign laws on seizure, smuggling, and repatriation of cultural objects.
Many of today's art world transactions often cross international boundaries and include global parties, whether a purchase and sale between a buyer and seller (and/or their agents) located in different countries (with or without the art located in another country), or a loan of a work of art from a U.S. resident to a foreign museum, or the consignment of a work of art to an auction house overseas, art lawyers practicing in this field are also aware generally of relevant foreign law issues that may arise in such transactions, including export/import requirements and restrictions, foreign moral rights protections (which are usually broader than the U.S.), VAT and other foreign taxes and assessments and applicable exemptions or bond alternatives, and anti-seizure protections.
Aviation Law Definition
An Aviation Law attorney provides counsel and planning in all segments of the aviation industry. The attorneys in this practice area focus their practice on flight, air travel, associated legal and business concerns, the operation of aircraft, and the maintenance of aviation facilities. This highly specialized field requires a comprehensive knowledge of FAA regulations, specific laws regarding flight, and an in-depth understanding of aviation.
Throughout history, Congress has enacted several federal laws pertaining to air navigation. Congress passed the Federal Aviation Act in 1958, establishing the Federal Aviation Administration. Since then, several subsequent federal acts, including the Airport and Airway Development Act of 1970 and the Airline Deregulation Act of 1978, have further regulated aviation.
In the wake of the September 11, 200,1 terrorist attacks, Congress enacted the Aviation and Transportation Security Act of 2001, which established a Transportation Security Administration in the Department of Transportation (TSA). The TSA now resides in the Department of Homeland Security.
While state governments have created administrative agencies and enacted statutes and regulations in effort to regulate air traffic, register aircraft, and regulate pilots, aviation is, for the most part, governed by federal law. Accordingly, states are prohibited from regulating rates, routes, or services of any air carrier authorized under the Federal Aviation Act to provide interstate air transportation. States are not prohibited, however, from enacting their own laws consistent with federal laws, or from altering existing remedies under state law. Additionally, Federal law does not preempt state products liability law, and in many defective product cases, aviation manufacturers may be held strictly liable.
Aviation attorneys must be prepared to represent airmen and operators and provide solutions and legal advice in areas including:
• Advising airport authorities and airport operators
• Aircraft Accidents and incidents
• Aircraft use policies to cover personal use, carriage of political candidates, SEC reporting, and related matters
• Airman enforcement matters
• Airmen medial matters
• Compliance issues with existing federal and state laws
• Maintenance and airworthiness issues
• FAA matters
• FAA legal interpretations and FAR interpretations
• Insurance coverage and risk management
• Part 91 Operations
• Part 135 Operations, Certification, and training issues
• Personal use of company aircraft, and related income recognition, deduction limitation, and SEC disclosure issues
• Purchasing, selling, and leasing fractional shares of aircraft
• Repair station issues
• Security Plan Preparation and Review and Security related issues
• State tax matters and audits regarding sales and use tax, and county property tax
• Tax aspects of buying, selling, and financing aircraft, like kind exchanges and state sales and use tax planning
• TSA compliance issues
The practice of Aviation law also can include representation at both the federal and state court levels on behalf of persons who are suffering from loss or injury due to an aircraft tragedy.
Banking and Finance Law
Banking and Finance Law Definition
Banking and finance law addresses the organization, ownership, and operation of banks and depository institutions, mortgage banks, other providers of financial services regulated or licensed by state or federal banking regulators, and holding companies (“bank and other financial organizations”). It also covers representation of bank and other financial organizations in lending transactions to borrowers and compliance with consumer and other laws involving all aspects of financial services provided by bank and other financial organizations. Banking and finance practices vary from firm to firm. A comprehensive banking and finance law practice includes advice and representation not only with respect to lending and regulatory compliance, but also with respect to fiduciary activities, securitizations, payment systems, electronic banking, data security, and risk management. It also covers mergers, corporate organizational and ownership issues involving holding companies, banks, and other regulated entities. Banking and finance practices require and therefore often include specialized capabilities in addressing litigation common to banks, such as class action litigation under consumer financial protection laws. On an ongoing basis, banking and finance lawyers assist their clients with responses to regulatory examinations and, on occasion, the resolution of enforcement actions.
Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Definition
Representing clients in bankruptcy and insolvency situations not only requires specialized knowledge of bankruptcy law, but also requires expertise in litigation and corporate law. Bankruptcy lawyers routinely address questions involving debt finance, securities, transactional, and tax law to assist clients in understanding their respective rights in a restructuring. At the same time, because a court process underlies the bankruptcy system, a bankruptcy lawyer must be skilled as a litigator and as a negotiator. Finally, and perhaps most significantly, a bankruptcy lawyer’s advice is fundamentally commercial. Thus, a bankruptcy lawyer must be sensitive to and understand the nuances of each distressed business, including its unique financial and operational aspects.
While some bankruptcy lawyers represent insolvent individuals, many corporate bankruptcy lawyers represent debtors, creditors, and groups of creditors in bankruptcy cases. When representing debtors, the bankruptcy lawyer’s involvement typically starts long before a company actually commences a bankruptcy case by counseling the debtor concerning strategic options. These options run the spectrum, from gaining the protections afforded by commencing a reorganization case under chapter 11 (to implement an asset sale, a consensual plan of reorganization, or perhaps a contested “cramdown” plan), to negotiating an out-of-court workout. Creditor representations similarly require strategic analysis and skilled advocacy. The challenge facing creditors’ counsel is not merely competing with the debtor and its shareholders, but also competing against other creditor constituencies with differing agendas. After all, the restructuring objectives of a trade creditor, a bond holder, a labor union, a government agency, or a creditor that may be junior or senior in the capital structure likely will vary, potentially to a substantial degree, depending on the circumstances.
In today’s dynamic financial restructuring landscape, bankruptcy lawyers also must tackle a host of ancillary issues. For example, cross-border insolvencies continue to grow in number and intricacy as businesses expand globally into legal jurisdictions around the world. Likewise, the advent and growth of structured financial products and derivatives adds additional layers of complexity to the already complex mix of legal and business issues that bankruptcy lawyers routinely confront. In addition, the bankruptcy process continues to serve as a springboard for M&A opportunities presenting distressed investors with opportunities to acquire assets at attractive valuations in the marketplace.
Bankruptcy law provides ample, important restructuring opportunities to financially troubled businesses and has made bankruptcy an effective business tool, as evidenced by the number of large business enterprises increasingly seeking the protections and benefits that bankruptcy affords.
Bet-the-Company Litigation Definition
Bet-the-company litigation threatens to overwhelm and swallow your company, whether a start-up or a long established member of the Fortune 100. Life-threatening stakes can arise from government investigations (Arthur Andersen), large scale industrial disasters (the Gulf Oil Spill, Fukushima), and potential products liability (tobacco, pharmaceuticals). The threat may not be financial. Litigation also can threaten the company’s continued existence through attacks on the company’s core products, core business, or reputation.
Bet-the-company cases create unique challenges. Counsel inside and outside the company must respond to several alarmed constituencies, including insiders (management, the board, employees, shareholders, investors); outsiders (customers, vendors, lenders, insurers), and regulatory authorities (to name only a few: SEC, FTC, FDA, EPA, and DOJ and their international counterparts). Counsel must conduct every aspect of the litigation with the needs and desires of these sometimes conflicting constituencies constantly in mind.
The company may face multiple investigations: congressional, criminal, regulatory, as well as special quasi-governmental commissions and internal investigations conducted by the company itself or by other parties. Counsel must deal with these investigations understanding that decisions made early on can have an enormous impact on the outcomes of investigations, subsequent litigation, and on the ultimate resolution.
Litigation may erupt in multiple jurisdictions (federal, state, international) and in multiple forms (criminal, civil, administrative, arbitral). The company may face multiple litigation adversaries, including the United States Department of Justice, State Attorneys General, regulatory counsel, and private counsel for adverse parties. Parties aligned with the company will have their own counsel, constituencies and agendas. The formal and informal coordination of all these proceedings and parties will impact the duration, cost and course of the litigation. The reputation of the company’s lead counsel – in part pre-existing and in part earned over the course of the litigation – will be critical in dealing with all these tribunals, parties, and attorneys.
Bet-the-company cases require an ability not only to navigate in these different environments, but also to see how the moving parts fit together. That in turn is the key to a more important ability: to work out, with the client, a plan – a plan that will be constantly adjusted – to get from the chaotic beginning to a satisfactory resolution.
It is best in bet-the-company cases to have a lead lawyer responsible for coordinating the varied teams of lawyers needed to handle, under a coherent plan, all these facets of the problem – teams with varying types of expertise, drawn from multiple firms, and often working in different locations. With leadership, cohesive teams can solve extraordinary problems.
Biotechnology and Life Sciences Practice
Biotechnology and Life Sciences Practice Definition
Biotechnology law requires specialized expertise in the laws, regulations, business, and transactions applicable to biotechnology and pharmaceutical companies, and the institutions that finance and support them, such as venture capital and investment banking firms and medical research institutes. Biotechnology and pharmaceuticals are heavily regulated industries with exceptionally long and expensive product development cycles.
The commercial success of these companies often depends on their ability to protect their intellectual property rights, to develop and commercialize their products in conformity with FDA and other regulatory requirements, to successfully raise financing from all available sources in both good and bad economic conditions, and to partner with larger companies in the industry to help bring their innovative products to the market. As a result, life sciences companies require significant legal expertise in the fields of intellectual property, FDA regulations, marketing compliance, licensing and collaborations, venture capital financings, public offerings, mergers and acquisitions, and commercial agreements unique to the industry, such as biologic and pharmaceutical manufacturing, supply, distribution, and co-promotion agreements. Biotechnology lawyers must be experts in one or more of these fields and be able to work collaboratively with legal experts in related fields.
Business Organizations (including LLCs and Partnerships)
Business Organizations (including LLCs and Partnerships) Definition
Business Organizations is a broad field of law concerning companies and other forms of business enterprises of all types and sizes and those who create them. This includes corporations, limited liability companies, partnerships, and other associations that carry on economic or charitable activities. Legal advice in this field of law covers a wide variety of topics, including the choice of type of business entity, choice of jurisdiction, process of formation, corporate governance, nature of ownership, operational matters, asset protection, combinations, acquisitions, dispositions, and dissolutions. Therefore, lawyers practicing in this area of law need to be well-versed in many different but related legal disciplines, including corporate, partnership, securities, tax, real estate, nonprofit, intellectual property, insolvency, fiduciary duty, and mergers and acquisitions law. Furthermore, because many business organizations have operations or are involved in transactions abroad, advising such entities can implicate not only federal and state laws within the United States, but also those of various foreign jurisdictions.
While some business organizations are relatively small, including traditional family-owned companies and entrepreneurial start-up ventures, many are large and complex enterprises with highly sophisticated governance structures. Accordingly, the legal work involved can range from representation of an entire organization, including its owner(s), in all aspects of the organization’s legal activities to engagement as a specialist in one or more discreet areas.
The legal skills required of a Business Organizations lawyer also include the ability to advise clients with respect to divisions of ownership and passing of ownership to acquirers and/or future generations, in addition to more immediate concerns regarding initial entity formation and operation. Properly advising clients with respect to structuring business enterprises, therefore, often requires an in-depth understanding of not only clients' strategic business objectives but also their succession and estate planning concerns.
In addition to the myriad issues that arise within a business enterprise, practice in the Business Organizations area also involves relationships between businesses and the interactions and transactions among them, including contracts, joint ventures, licenses, settlements, and mergers and acquisitions. Business Organizations is wide-ranging area of law that often serves as an entry point or primary point of contact for businesses to a law firm and the various types of legal services it provides.
Civil Rights Law
Civil Rights Law Definition
Civil rights law is the practice area of attorneys who advise individuals, businesses, and governmental entities about legal matters touching upon civil rights. Civil rights laws are varied, complex, and constantly evolving. Civil rights laws cover the diverse assortment of rights and freedoms recognized and guaranteed every United States citizen and resident by federal, state, and local laws and constitutions. For instance, citizens and residents have freedoms associated with their speech, assembly, association, and the right to practice a religion of their choice; to their life, liberty, and personal privacy; and to equal access to a public education, to the courts, to public facilities, services, and housing; equal and fair treatment by law enforcement and the courts; as well as the right to vote. The various civil rights include not only freedoms, but also the right to be free from discrimination in the availability and exercise of those freedoms.
“Discrimination” results when an individual’s, group’s, or a business or governmental entity’s preference or prejudice fosters conduct or a practice that obstructs or hinders another’s equal access or exercise of guaranteed civil rights or freedoms. Obviously, not every infringement of another’s civil rights or freedom amounts to illegal discrimination. The civil rights laws make it illegal to discriminate on the basis of one’s membership in a protected class. One may not discriminate or adversely impact another on the basis of race, color, religion, gender, age, disability, or national origin. As a rule of thumb, discrimination against a protected class of citizens that interferes with the exercise of voting rights, the right to assemble, freedom of speech, religion, or association or with equal opportunities to education or housing brings civil rights laws into play.
Despite the best efforts of individuals, businesses, and governmental entities to comply with the civil rights laws, lawsuits or administrative charges occur. Such charges and lawsuits can have significant consequences.
CleanTech Law Definition
“Clean Tech” is an abbreviation for the phrase “clean technology.” Clean tech industries feature a diverse range of products, services and processes, typically, for developing, commercializing, and regulating the natural environment. A simpler and perhaps more illustrative way to think of the industry is that it tends to cover issues which involve one or more of the classical elements — earth, air, fire, or water.
For example, clean tech would include understanding and applying regulations for harvesting natural resources from the Athabasca oil sands in Alberta, Canada. It would also cover a development agreement for genomic research to produce biochemicals and biofuels to be used under the applicable European laws.
The transactional side includes traditional areas such as financing, technology licensing and transfers, intellectual property strategy and protection, regulatory compliance, sustainable company policies and charter documents, product sourcing and distribution deals, tax and other incentives for energy and green projects, and monetization of carbon offsets, to name a few. The dispute resolution side includes environmental and scientific policy debates and the related legislative process, administrative hearings, mediation, arbitration, and, of course, litigation.
Closely Held Companies and Family Businesses Law
Closely Held Companies and Family Businesses Law Definition
Practitioners in closely held companies and family business law recognize the need to provide legal services that further the strategic objectives of the enterprise while simultaneously accommodating the personnel, familial, and estate planning goals of enterprise owners. The practitioner’s toolkit must include the tools of the business organizational expert (deep familiarity with the alternative legal frameworks for organizing an enterprise, including corporations and limited liability companies) and of the estate planner (knowledge of the means by which ownership and management succession can be effected, which includes trust law and may include mergers and acquisitions, and the tax consequences of each succession alternative).
Depending on the jurisdiction, closely held company law may differ significantly from the law of the same jurisdiction that is applicable to corporations and other enterprises that are publicly held. For example, in many jurisdictions owners in closely held companies are subject to heightened fiduciary duties to one another, which may preclude structural actions or transactions that would be permissible in the public company sphere. On the other hand, closely held companies are free from many of the disclosure and other regulations that constrain publicly held enterprises in their activities. This is true even when the closely held company is of equal size as a publicly held participant in the same industry. Practitioners in this area must be experts in recognizing these legal and regulatory differences and also be aware of the alternative governance frameworks available in other jurisdictions.
The key challenge in family business law is to structure an environment in which familial goals and interests and enterprise goals are mutually reinforcing. This requires empathy and creativity on the part of the practitioner, particularly the ability to translate essentially non-legal concepts such as stewardship into legal script, all in a tax-efficient manner.
Collaborative Law: Family Law
Collaborative Law: Family Law Definition
Divorce settlements can be reached by willing parties without the time and expense of litigation. Collaborative law offers parties an alternative to resolve disputes or the end of a marriage with privacy and respect and with minimal court involvement, while taking into account the highest priorities of their entire family. A team of specially trained interdisciplinary professionals guide and support parties in a problem solving process, not as adversaries. No single approach to the divorce process is right for everyone. Many couples are finding Collaborative Law a welcome alternative to traditional divorce litigation and mediation.
In traditional divorce litigation, the parties look to the court system and judges to resolve their dispute viewing the other as the adversary. The process can result in considerable emotional and financial cost to the family. Collaborative Law is a non-adversarial process that views a family in divorce as a family in crisis that has a series of problems to be solved, rather than a series of battles to be fought. The end goal is to meet the legitimate needs of everyone involved in a restructured family.
The process starts with both Husband and Wife retaining unaffiliated collaboratively trained attorneys who commit, in writing, not to go to court but instead to work together to help the couple reach agreements beneficial to all. If an agreement cannot be reached and one or both parties choose to proceed to court, the attorneys and experts are disqualified from proceeding further on an adversarial basis. With the focus on problem solving instead of adversarial representation, there is a strong likelihood conflict will be reduced, allowing the couple to resolve and reach agreements.
The parties meet privately with their respective lawyers and possibly additional experts, called “Team Members” who may include a child specialist, a neutral financial professional, and divorce coaches, all of whom perform a valuable service helping to minimize conflict and cost by guiding the parties towards an amicable resolution.
Collaborative law is similar to but differs from mediation in some significant respects. In mediation, a neutral third party (the mediator) facilitates the parties’ negotiation to help reach a settlement but cannot give legal advice, advocate for either side, or draft the final legal papers necessary. In Collaborative Law, both parties have independent lawyers present during negotiation to provide legal advice in an educational context, thereby empowering the clients to make informed decisions about their lives and their children’s lives. When agreement is reached, the collaborative lawyers will prepare all the papers necessary and will accompany the parties to court to finalize their case.
Commercial Finance Law
Commercial Finance Law Definition
Commercial finance is generally referred to as the function of providing loans or other financing to businesses. Commercial finance attorneys assist borrowers and financers in structuring, negotiating, and documenting commercial loans, loan modifications, restructurings, and other complex financial arrangements, including leveraged buyouts, acquisition financing, and recapitalizations.
Representative clients may include state, regiona,l and national banks; asset-based lenders; leasing companies; commercial finance companies; syndicated lenders; mezzanine lenders; investment funds; finance companies; institutional lenders; sellers; buyers; suppliers; manufacturers; distributors; retailers; shareholders; and competing creditors.
Areas of focus for commercial finance attorneys may include:
- Equipment, inventory, and receivables financing
- Real estate secured loans
- Lease financing
- Structured and leveraged financing
- Subordinated and mezzanine debt
- Syndicated credits
- Workouts and debt restructuring
- Lien creation and perfection
- Subordination agreements
- Equity participations
- Senior secured credit financing
- Subordinated debt and other mezzanine financing
- Loan sales and participation
- Swaps and other derivative products
- Letters of credit and other credit and liquidity support devices
- Enforcement and collection actions
- Security agreements
- Project financing
- Acquisition and development loans
- Debtor-in-possession financing
- Construction loans
- Venture capital
- Mezzanine financing/bridge loans
- Bond financing
- Bridge loans
- Uniform Commercial Code (Article 9)
Commercial finance practices vary greatly from firm to firm. For example, some smaller, specialized firms focus on providing a narrow scope of services (e.g., real estate secured loans) to a focused client base (e.g., state banks), while other larger, full-service firms provide many or all of the services listed above to a broad range of lender and borrower clients.
Commercial Litigation Definition
General commercial litigation involves virtually every type of dispute that can arise in the business context, including breach of contract cases, partnership/joint venture disputes, class actions, business torts, civil RICO claims, breach of fiduciary duty allegations, and shareholder issues. Successful commercial litigators need to be able to assess the merits of a dispute and scale either a prosecution or defense that fits the legal and business needs of the client. Efficiency, creativity, and sound judgment are critical for intelligently positioning these disputes, whether they are “bet-the-company” cases or more discrete matters. In addition, while all cases must be litigated with an eye toward ultimately trying them, seasoned commercial litigators understand that at all times they must strive to achieve the best possible result at a reasonable cost.
Litigation increasingly occurs in various venues, from state and federal courts to private arbitrations and administrative hearings. Proceedings can involve business-to-business disputes or any number of government agencies. Understanding the motivations and outlook of each of the litigation participants is important for determining weak points to exploit and strong points that will persuade the audience in question. During the past decade, commercial litigators have seen a dramatic uptick in multidistrict and inter-disciplinary litigation, making the stakes higher, the cases more complex, the parties more numerous and the discovery more complicated and unwieldy. Firms that are able to develop and implement a creative legal approach to each individual problem, efficiently focus on the key legal and factual issues, and master and manage the various aspects of these complex matters will be the busiest in the years to come.
In the current challenging economic climate, commercial litigators are under increasing client pressure to keep costs in check, which has both sides testing the efficacy of alternative fee arrangements and the scope of reasonable discovery. Whether the “death of the billable hour” is ultimately realized, the keys to a commercial litigator’s success will continue to be strong client relationships, thought leadership, practical management skills, deep experience, and personal commitment.
Commercial Transactions / UCC Law
Commercial Transactions / UCC Law Definition
The 50 States of the United States have different laws that govern business or commercial dealings in each state. The Uniform Commercial Code (“UCC”) is a model law, first promulgated by legal scholars and practitioners more than 60 years ago, with the goal of harmonizing the rules in different states for certain types of business matters. The model law is periodically revised to clarify its meaning in response to judges’ interpretations and to address new concepts and business practices.
The UCC, and each revision to it, is only effective when and to the extent it is adopted by each state. All 50 States have adopted some version of the UCC in whole or in part. States sometimes modify certain provisions of the UCC when they enact the model law as the law of the State.
Commercial transactions and UCC lawyers represent clients in a wide variety of business transactions covered by and related to the UCC. The representation can include advice on how to structure transactions, documenting transactions, and representation in court regarding disputes with other parties about these transactions. Examples include the preparation of loan documents related to a loan secured by assets other than (or in addition to) real property, disputes in court between lenders and other creditors over the rights to such assets, and disputes in court regarding the obligations of a bank to pay on a letter of credit.
The areas of business transactions covered by the UCC include: sale and delivery of movable, tangible property; leases of tangible property; promissory notes; bank deposits and checks; wire transfers of money between banks; letters of credit; ownership and transfer of certain interests in businesses (securities); and loans secured by assets other than (or in addition to) real estate. Commercial Transactions/UCC lawyers often have expertise in some, but not all, of these wide-ranging business areas.
Communications Law Definition
The term “Communications Law” encompasses a broad range of legal and regulatory issues involving the provision of the following services and platforms: wired and wireless telecommunications, broadcasting, cable television, the Internet, satellite communications, and information services. Communications lawyers represent providers and users of these services, as well as manufacturers of equipment, technology developers, application service providers, and other industry participants. Practitioners appear at federal, state, and local levels in courts, regulatory agencies, and legislative bodies, where they assist clients in shaping the laws, regulations, and policies governing telecommunications and media operations. They also assist clients in obtaining required licenses, negotiating and documenting transactions, maintaining compliance with communications laws and policies, and defending enforcement actions. In the international arena, communications lawyers participate in bilateral negotiations and multinational conferences.
Communications technology, law, policy, and regulation evolve continually, so the definition of Communications Law is extremely dynamic. For example, recent developments in communications technologies have extended the reach of communications law to cover new applications in diverse fields ranging from online and mobile media to energy and health care, and have raised significant issues in the areas of privacy and consumer protection.
Today’s communications, information, and technology markets have profound impacts both on the domestic and world economies and on the daily lives of virtually everyone. Communications lawyers help put their clients in a position to succeed in these competitive markets by devising policy positions and advocacy strategies, advising on best compliance practices and obtaining needed approvals. They must become familiar with the nuts and bolts of the technologies used by their clients in their business operations, and must master the changing legal and regulatory landscapes in which clients conduct those operations. Novel issues often challenge attorneys in this field to devise new approaches for advocacy in the regulatory arena, transactional negotiations, and litigation. Clients seeking communications counsel should seek out firms and attorneys who have deep subject matter expertise, but who also have demonstrated the ability to adapt to new developments and learn new things in order to better protect and advance client interests in this constantly shifting legal and regulatory landscape.
Community Association Law
Community Association Law Definition
Community Association Law refers to the body of law that applies to common interest developments, including condominiums, planned developments, stock co-ops, homeowner associations, and commercial property owner associations.
The practice of community association law includes, among other things:
- Creating common interest developments, preparation of governing documents, review, revision, and amendment of governing documents.
- Updating documents from time to time to comply with statutory changes.
- Representing boards of directors of common interest development associations.
- Representing members of common interest development association.
- Writing opinion letters for boards of directors or members of associations, interpreting governing documents, and advising boards on enforcement of governing documents.
- Assisting boards in collecting assessments or imposing discipline on members for violation of governing documents.
- Advising associations with respect to contracts (management, landscaping, maintenance).
- Counseling associations with respect to performance of statutory duties imposed upon associations.
- Representing associations in defective design and construction lawsuits.
- Attending board meetings and general membership meetings as counsel for the board of directors of an association.
Lawyers whose practice is largely devoted to community association law are most likely to be members of the community association institute (CAI), and leading practitioners of community association law may be elected to membership in the College of Community Association Lawyers.
- Creating common interest developments, preparation of governing documents, review, revision, and amendment of governing documents.
Construction Law Definition
Construction lawyers provide practical legal advice to participants in the construction industry. Clients include not only contractors and subcontractors, but also material suppliers, architects, engineers, owners, developers, banks, sureties, and insurance companies.
For a typical project, a construction lawyer may be called upon to assist the owner in obtaining land for the project. Buying the land and building a project on the land often requires financing from another source, and construction lawyers often help prepare and negotiate the various loan documents that define the rights of the bank, bondholders, or other source of funding.
Construction lawyers may assist owners and developers in deciding which project delivery approach best suits their project, such as design-bid-build, design build, or multi-prime construction. Then, construction lawyers may help draft requests for bids to allow the owner or developer to identify a contractor. A lawyer may help determine whether a bid can be withdrawn due to a mistake. For certain public projects where the owner is a city, county, state, or arm of the federal government, a construction lawyer may be called upon to file a bid protest to challenge the fairness of the bidding process.
After the project is awarded, lawyers are often involved in drafting and negotiating contracts between the owner and general contractor or the general contractor and its subcontractors. Lawyers also may be involved in documenting insurance and bonding arrangements to secure performance of the work and protect the parties against property damage or personal injuries.
During the project, construction lawyers are often called upon to help the participants understand their contracts and comply with them. Many construction lawyers see this kind of work as extremely rewarding, because their guidance can help keep construction on track toward a successful conclusion. Where contractors or subcontractors are not being paid for their work, construction lawyers may file liens or bond claims to secure payment for their clients’ work.
Construction projects are complex, expensive, stressful, and sometimes dangerous, and thus give rise to many different kinds of disputes, including disputes about the cost and duration of the project, the quality of the work, and responsibility for injuries or damages suffered during the work or, sometimes, after the work is completed. Construction disputes are often complex, involving many parties and substantial amounts of money, so construction lawyers often engage in complex commercial litigation. Many construction contracts call for dispute resolution through dispute review boards, mediation, and arbitration, so a successful construction lawyer will understand the advantages, disadvantages, and nuances of alternative dispute resolution techniques.
While often seen as a specialist, a construction lawyer is, in many ways, a generalist who must be prepared to deal with almost any kind of legal problem that may affect the construction industry, whether that problem involves contract law, banking law, tax law, environmental law, criminal law, international law, bankruptcy law, real property law, insurance law, tort law, bond and lien law, administrative law, or litigation.
Consumer Law Definition
Consumer protection law is the body of laws designed to ensure the rights of consumers, competitive and fair trade, and truthful information in the marketplace. For many financial institutions, including banks, insurance companies, and other businesses, this ever-changing and intricate web of federal and state legislation and regulation often proves a challenging area of the law.
One of the most significant developments in consumer protection law is the adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”). The Dodd-Frank Act, enacted in response to financial crisis of 2008, established the Consumer Financial Protection Bureau (“CFPB”), which consolidated most Federal consumer protection authority in one governmental entity.
Although consumer protection covers a wide variety of areas, some of the central activities regulated and specific laws include:
Making Consumer Loans:
Truth in Lending Act (“TILA”) - TILA requires disclosure of the terms of a loan and all costs.
Real Estate Settlement Procedures Act (“RESPA”) – RESPA prohibits kickbacks and requires lenders to give a good faith estimate of the cost of a loan.
Collection of Debt:
Fair Debt Collection Practices Act (“FDCPA”) – FDCPA is designed to eliminate abusive consumer collection practices. Many states have adopted versions of this federal regulation.
The Telephone Consumer Protection Act of 1991 (“TCPA”) – TCPA restricts telemarketing and limits the use of cell phones, SMS, text messages, auto dialing, prerecorded voice messages, and fax machines.
Reporting of Debt:
Fair Credit Reporting Act (“FCRA”) – FCRA regulates the collection, distribution, and use of a consumer’s credit information.
Use of Consumer’s Private Financial Information:
The Gramm-Leach-Bliley Act (“GLBA”) – puts limits on when financial institutions may share a consumer’s nonpublic private financial information.
Since the financial collapse of 2008, these consumer protection laws have taken on a heightened significance and consumer protection litigation now occupies a more substantial portion of the litigation landscape, a change that is likely here to stay. A cottage industry of firms specializing in these consumer protection laws has sprung up, particularly in conjunction with the organized strategy for defending the large numbers of mortgage foreclosures.
The most effective law firms representing financial institutions in this area of the law will have a comprehensive knowledge not just of the individual statutes but of how these consumer protection laws operate in concert with each other and other areas of the law such as foreclosure and bankruptcy. Because a single loan may be subject to regulation under each of these laws, an effective firm will be able to guide its clients through loan making, reporting, collection, and enforcement of secured debt.
Consumer Protection Law
Consumer Protection Law Definition
The federal government, all 50 states, and the District of Columbia have a wide array of mechanisms and laws to protect consumers. Consumer protection lawyers help clients navigate the complexity of these laws through counseling and representation in regulatory investigations, competitor challenges, and consumer lawsuits.The U.S. Federal Trade Commission (FTC) is the main federal agency enforcing consumer protection laws and promoting competition. The FTC works for consumers to prevent fraudulent, deceptive, and unfair business practices with traditional areas of concern centering around financial products and practices, telemarketing fraud, unfair or deceptive advertising and marketing practices that raise health and safety concerns, as well as those that cause economic injury. Recent priorities include domestic and international issues related to consumer data privacy and information security, credit reporting, identity theft, and the Internet of Things. Consumer protection lawyers help companies navigate the complexity of regulatory investigations, enforcement actions, and litigation brought by the FTC to achieve the best possible outcomes for their client’s business objectives.The Consumer Product Safety Commission (CPSC) is charged with protecting the public from unreasonable risks of injury or death from consumer products. The CPSC bans dangerous products, establishes safety requirements for consumer products, issues product recalls, and researches potential hazards. Lawyers who assist companies with CPSC matters can help identify and resolve potential liability issues and advise clients on internal compliance programs and the difficult issues of how and when potentially hazardous consumer products must be reported.Consumer financial protection lawyers provide advice on new regulations, what the changes mean, and how the Consumer Financial Protection Bureau (CFPB) enforces the laws. The CFPB, created as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, aims to protect consumers from unfair, deceptive, and abusive practices involving financial products and services. Lawyers also offer a range of services for financial institutions and non-financial services providers and help companies minimize risks, provide practical advice on fair credit best practices, data security, information sharing, payment programs, and permissible cross marketing practices.Many consumer protection lawyers also assist with non-governmental organizations such as the Better Business Bureau (BBB) that also protect consumers by taking complaints and investigating alleged deceptive practices. The BBB’s National Advertising Division (NAD) reviews national advertising for truthfulness and accuracy and allows national advertisers to challenge product performance and superiority claims against competitive products and all kinds of scientific and technical claims.
Copyright Law Definition
Copyright is governed by federal law and is derived from the U.S. Constitution, which granted power to the United States Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (this clause also is the basis for patent protection in the U.S.). As a result, Congress has enacted a succession of copyright acts and amendments, beginning in 1790 and continuing through today. In general, the current law grants copyright protection for a period of the life of the author plus 70 years.
Copyright applies to original works of authorship that are fixed in a tangible medium of expression. An original work of authorship is one that is independently created and includes a minimum level of creativity. Examples of the types of works to which copyrights apply include literary works, drawings, paintings, sculptures, movies, music, video games, and other works of art. Copyright protection also applies to computer software.
Copyright protection does not protect ideas, but protects the expression of an idea. A work does not need to be registered with the Copyright Office to be afforded copyright protection. However, it must be registered with the Copyright Office to bring a lawsuit for copyright infringement. In addition, significant benefits arise from the timely registration of copyrights.
The author of a work is vested with a number of exclusive rights when copyright protection arises. These exclusive rights include, among other things, the right to reproduce (copy), adapt, display, and publicly perform the work. The author may transfer all or some of his or her exclusive rights in the work to another party. For example, the author of a novel may transfer the right to adapt a novel into a screenplay to a movie studio, while still retaining the copyright in the novel itself. Another significant component of copyright law is the area of fair use, which allows use of a copyrighted work without permission in certain limited circumstances (e.g., for the purpose of commenting on or criticizing the work).
Copyright lawyers assist clients with identifying materials that are protectable by copyright, registering copyrightable works with the United States Copyright Office, and counseling clients in the various ways in which copyrights may be acquired, protected, and exploited. Litigation also is a large part of a copyright lawyer’s practice.
Copyright law also addresses issues involving digital rights management, which are measures designed to manage digital copies of works. With the advent of digital copies, some copyright owners seek to restrict the ability to make copies of a particular work. The Digital Millennium Copyright Act, which is part of U.S. copyright law, prohibits circumventing measures that are designed to prevent copying of copyrighted works. The Digital Millennium Copyright Act also, among other things, provides a framework for online service providers for avoiding copyright infringement based on the acts of the online service provider’s users.
Corporate Compliance Law
Corporate Compliance Law Definition
Corporate compliance involves the design, implementation, and monitoring of effective policies, programs, procedures, and practices surrounding compliance by an organization and its employees and other representatives with legal and regulatory requirements applicable to the organization’s business activities as well as detection of potential violations of these legal and regulatory requirements by an organization’s employees and other representatives. Corporate compliance also encompasses internal policies and procedures adopted by organizations to minimize risk to the organization and ensure ethical behavior and personal conduct by the organization’s employees and other representatives.
Although the types of compliance programs and policies that may be appropriate for a particular organization will vary according to an organization’s size and complexity of operations, all organizations, large and small, corporate or otherwise, benefit from having effective corporate compliance programs in place, be they formal or informal, that are well-designed, appropriately tailored to the organization’s operations and actively monitored following their establishment.
While the design and implementation of an effective corporate compliance program is important for all types of organizations, a well designed program is ineffective without a culture within an organization that fosters a real spirit of adherence to the program from its leadership. A successful program demands the timely reporting of potential violations of the program to appropriate leaders within the organization and the prompt handling of those apparent violations.
The services of knowledgeable and experienced legal counsel can be used to assist an organization in not only cost effectively designing corporate compliance programs that are appropriate in light of an organization’s size, form of entity, operational focus, complexity, management structure, and breadth of operations, but also in aiding organizations in dealing with apparent violations of those programs and the underlying laws and regulations.
Corporate Governance Law
Corporate Governance Law Definition
Corporate governance is the system by which a business is directed and controlled. The corporate governance structure specifies the distribution of rights and responsibilities among different participants in the company, such as the board of directors, managers, officers, and shareholders, and establishes the rules and procedures for making decisions on corporate affairs. Good corporate governance is key to the integrity of corporations, financial institutions, and markets, and central to the health of our economies and their stability.
In the wake of disasters such as Enron and WorldCom, it is more important than ever to ensure companies have the right checks and balances in place to avoid wholesale fraud or abuse of office. The roles of boards of directors, board committees, individual directors, and executive officers have always been challenging. Congress, the Securities and Exchange Commission, and the stock exchanges have expanded materially the responsibilities of directors and executive officers of public companies and imposed upon them significant potential liabilities.
For all of these reasons, it is important for companies to find excellent corporate governance counsel to represent the company and its board of directors and committees. Corporate governance lawyers should have extensive experience in advising boards of directors, board committees, and executive officers as the boards perform their duties in all types of situations, both extraordinary and routine. These boards and committees need attorneys who are thoroughly versed in traditional corporate fiduciary standards, as well as in the extensive and ever-changing body of legislation, regulation, and listing standards that both define and shape the responsibilities of directors and officers of companies.
Corporate Law Definition
Corporate is the practice area of lawyers who advise corporations and their officers, directors, and controlling shareholders with respect to the formation, governance, and day-to-day legal problems of such entities. They are required to be true generalists, since their advice may involve such diverse matters as: the proper conduct of the board, its directors, and its committees; executive compensation; shareholder agreements relating to board representation and voting rights; compliance with federal and state regulations affecting the client’s particular industry; commercial contracts with the corporation’s customers and suppliers; the corporation’s sales of securities; relations with the corporation’s accountants, commercial bank lenders, and investment bankers; the structure of the corporation’s joint ventures; communications with the corporation’s stockholders, creditors, and customers; and the preparation of any required periodic disclosure filings with the SEC and proxy statements sent to stockholders.
Depending on the size of the market in which the lawyer practices and the size of the lawyer’s firm, he or she may be required to handle nearly all of a corporation’s legal matters. In larger firms, the Corporate lawyer with the principal client relationship will be expected to be familiar with all the issues the corporation is likely to confront, but may engage lawyers from other practice areas to assist in matters requiring special expertise, such as securities offerings, tax issues, and litigation.
Criminal Defense: General Practice
Criminal Defense: General Practice Definition
In criminal law, the non-white-collar practice area spans a vast range of matters, and the need for individuals facing the threat of criminal prosecution to secure experienced counsel is great. By contrast to white-collar offenses such as tax violations, bribery, mail fraud, bank fraud, securities fraud, money laundering, and the like, which comprise a relatively small percentage of the total number of criminal charges brought each year, non-white-collar criminal charges are those most-typically faced by individuals seeking to retain criminal counsel.
Non-white-collar offenses include felonies, also termed indictable criminal offenses in some states. Included in this category are homicides (ranging from intentional murder to reckless manslaughter and death-by-auto), assault, kidnapping, sexual offenses, robbery, bias crimes, arson, other property crimes, criminal mischief, burglary, theft, forgery, drug offenses, gambling, perjury, firearms violations, and other weapons offenses. Family-related offenses, such as endangering the welfare of a minor and domestic violence, also fall within this group.
The offenses listed above carry the possibility of incarceration, sometimes substantial, mandatory, and subject to significant parole ineligibility, upon conviction. Thus, it is critical that a person facing consequences of such magnitude retain an attorney who is qualified and experienced. On many occasions, seasoned attorneys, through effective early representation, can set the groundwork for positive results or secure a favorable early resolution. A person charged with this type of crime needs an advocate capable of formidably opposing the substantial resources typically available to law enforcement and prosecutors. On some occasions, these matters must be tried by a jury, making it essential that an individual retain a skilled trial attorney.
In addition to more serious matters, non-white-collar criminal offenses also include misdemeanors, known in some states as disorderly persons offenses. These are the types of offenses that most people face when they come into contact with the criminal justice system. They include minor assaults, theft, shoplifting, drug possession, disorderly conduct, harassment, alcohol-related offenses, and many other offenses. These matters, for the most part, are presented in municipal courts or district courts, where a judge hears the case without a jury.
Non-white-collar criminal offenses also include drunken driving and a host of traffic-related offenses, some carrying substantial penalties and the possibility of incarceration. In some states, drunk driving has been elevated to the status of a felony or indictable offense, carrying far greater potential penalties. Again, it is crucial that an individual facing this type of allegation retain a competent, experienced attorney.
To those facing criminal charges, the choice of counsel can make all the difference. A lawyer, as vital advocate for the accused, conducts early investigation, identifies applicable defenses, analyzes strengths and weaknesses, prepares legal applications, also called motions, negotiates with prosecuting authorities, and zealously defends an accused before a jury. Additionally, a lawyer involved early in the case can expedite the client’s release on bail, allowing the client to assist in preparing the defense.
In the end, for those charged with non-white-collar crimes and offenses, the proper selection of counsel is pivotal. A capable and experienced attorney can often mean the difference between a finding of guilt or innocence, and, critically, incarceration or freedom.
Criminal Defense: White-Collar
Criminal Defense: White-Collar Definition
Once a niche practice developed by only some law firms, white-collar defense has become a core practice with national and international scope at most large American law firms. Over the last 15 years, white-collar defense has grown to respond to the globalization of both American and foreign corporations, the expansion of government oversight of businesses in the U.S. and abroad, and the numerous financial scandals that have erupted over the same period.
“White-collar defense” captures a broad set of substantive areas of the law, all of them arising from the myriad ways that local, state, federal, and foreign governments regulate businesses and entrepreneurs — what they say to investors and the general public about their own successes and failures (securities law); how they compete with one another (antitrust law); how they win business, deliver services, and seek payment when governments are themselves the customers (False Claims Act, Foreign Corrupt Practices Act); how businesses treat the environment; and whether they comply with general laws against theft, fraud, bribery, tax evasion and corruption. Public officials must navigate similar rules and thus present similar types of issues included under the broad category of white-collar defense.
The practice demands particularly versatile lawyers who deliver a range of services. White-collar lawyers try cases in court. They also specialize in risk management and compliance, training businesses and their individual employees about ways to minimize potential criminal and civil liability. Corporations engage white-collar lawyers to conduct internal investigations of their own business practices to assess and prepare for the risk of criminal and civil liability. Individuals and corporations demand white-collar representation as much when they are merely witnesses to alleged wrongdoing as when they are accused of it. White-collar litigation also involves assessing victims’ damages and their potential remedies as well as representing those accused of wrongdoing in administrative and court proceedings.
White-collar practices also must anticipate and prepare for the potential trajectory of a white-collar case. For example, an internal investigation identifying potential criminal or civil issues can lead to government enforcement actions and follow-up civil claims by alleged victims or competitors — all arising from the same conduct. The risk of criminal punishment and civil fines and liability potentially running into the billions of dollars, increase the complexity of white-collar matters and the demand for sophisticated counsel.
Derivatives and Futures Law
Derivatives and Futures Law Definition
A futures and derivatives law practice requires a multi-disciplinary approach to the financial markets, reflecting the wide variety of participants and products in this market. Clients include broker-dealers, banks, insurance companies, investment advisers, commodity advisers, hedge funds and private equity funds, securities and futures exchanges, clearing corporations and pension plans, as well as any commercial enterprise that is the “end user” of these products. Products may be used to hedge, manage, or speculate on a countless array of risks, such as interest rates, equities, agricultural, energy, credit, currency, and weather risks to name a few. The products are often custom-designed to meet the particular needs of the end user. All of these products and all of these participants are potentially subject to multiple federal, state, and foreign laws based upon the nature of the enterprise (e.g., banking, insurance, etc), the nature of the product (e.g., equities, commodities, etc.) and the nature of the transaction (e.g., sales, trading, etc.)
A sophisticated law practice in this area will address both the transactional and regulatory aspects of the market. The transactional aspects require experience in the design, documentation, and negotiation of the product to achieve the desired commercial objectives while at the same time optimizing the applicable regulatory treatment. The regulatory practice will focus on everything from the securities and commodities laws, to tax, ERISA, and bankruptcy treatment. The regulatory landscape is expected to experience rapid and extensive changes as a result of the enactment in 2010 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Finally, depending upon the context in which the matter arises, expertise also may be required in the underlying business (e.g., energy, insurance, municipal finance, etc.) or in litigation, business fraud, securitization, and corporate mergers & acquisitions.
DUI/DWI Defense Definition
Lawyers who practice in the area of DUI/DWI Defense represent citizens who are charged in the criminal justice system with violating Driving Under the Influence or Driving While Impaired statutes. A conviction for DUI/DWI in many states can carry a mandatory jail sentence, suspension of driving privileges, significant fines, and other collateral consequences.
A qualified DUI/DWI lawyer may be able to identify legal and factual defenses that can help minimize or avoid the severe penalties associated with a DUI/DWI conviction. Lawyers who limit their practice to the defense of DUI/DWI cases have training and experience that allow evidence such as blood or breath tests and roadside sobriety tests to be challenged in court.
In many cases, where evidence has not been properly gathered, or where police fail to follow proper procedures, a DUI/DWI Defense lawyer can plea bargain with the state prosecutor to reduce or even dismiss the charges before trial. If a DUI/DWI case has to go to trial, a DUI/DWI Defense lawyer will have expertise in trial techniques to show that the state cannot prove the charges beyond a reasonable doubt. Since DUI/DWI and driver’s license laws vary widely by state, it is important to identify a lawyer who not only practices this area of the law, but also in the jurisdiction where the charges are filed.
These practice areas are open for nominations but are not yet included in our publications.
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