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lingua negoti
ling-gwuh ni-gō-tē: the language of business


Are you using the phrase "hold harmless" incorrectly? Does "indemnify" only apply to third-party claims?

Many legal commentators have considered the meaning of “indemnify and hold harmless” and advised to drop the “hold harmless” part of this couplet. Some commentators have also suggested that “indemnify” applies only to third-party claims and not direct claims between parties. Their conclusions have largely mirrored each other—draft your indemnification provision more clearly to say exactly what you mean. This post will provide specific drafting techniques to accomplish that goal, at least in the M&A context.

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MYOB(D): Mining your own business (data)Lessons learned from social media and other online applications

Data mining, once considered the new frontier in technology, is now fiercely criticized due to the risk of breach, manipulation, and misuse. In an era in which data is often a company’s most valuable asset, it is unlikely that these risks will deter companies from mining data. However, as more companies come under fire for data mining practices that violate their customers’ privacy rights, it is crucial that your company’s data use complies not only with both federal and state laws (as well as international laws, where applicable), but also your company’s privacy policy. 

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The SEC provides guidance on data breach disclosure and cybersecurity compliance

In the wake of recent notable data breaches, the United States Securities and Exchange Commission issued an interpretive release designed to improve the timeliness and accuracy of public companies’ disclosures of cybersecurity risks and incidents and prevent insider trading.  The SEC’s guidance release and this post raise several issues and concerns that all companies, regardless of size and ownership, need to take seriously to improve their cybersecurity planning and legal compliance.

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Juvan and Novak Publish 2018 Healthcare Compliance Outlook for Boards of Directors

In their article published by the Cleveland Metropolitan Bar Journal, Jayne Juvan and Kelli Novak examine the fiduciary duties applicable to boards of directors of health care organizations and examine key health care regulatory risk areas that boards should be aware of in 2018. 

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Do you mean don't solicit, don't hire, or both?

In M&A transactions, provisions prohibiting one party from soliciting or hiring another party’s employees are ubiquitous.  Unfortunately, many of these no poach provisions are imprecisely worded, leading to unnecessary agita in negotiating their contours.  In this post, we provide practical tips for drafting no poach restrictions that clearly articulate the parties intentions.

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Do you REALLY know what states' laws apply to your capital raise?Dispelling a myth about the reach of "blue sky" laws

States are not permitted to impose additional substantive requirements on a securities offering completed in accordance with Rule 506, the federal "safe harbor" rule for private placements.  When not relying on that safe harbor, however, issuers may find themselves subject to the blue sky laws of several states.

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Are corporate boards sufficiently diverse?Jayne Juvan examines gender diversity for Ethical Boardroom

In her article for Ethical BoardroomJayne Juvan discusses four possible techniques for opening the doors of the boardroom to women so that they are no longer shut out from director opportunities.

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Did you just borrow money in violation of the securities laws?An examination of when promissory notes are securities

Many entrepreneurs mistakenly believe that borrowing money from friends and family doesn’t involve the legal complexities that sales of stock or LLC membership interests have under the securities laws. Some of those people have learned to their regret that issuing promissory notes in these situations probably is a securities offering, and that violations of the securities laws can have disastrous effects not only for their business but for the entrepreneur personally.

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Annual adjustments to the HSR filing thresholds take effect February 28, 2018 "Size of transaction" and "size of parties" thresholds to increase; filing fees do not

Effective February 28, 2018, the minimum dollar thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and its rules and regulations will increase. The “size of transaction” threshold will increase from $80.8 million to $84.4 million.  For transactions valued at more than $84.4 million but less than $337.6 million, the “size of parties” thresholds will also increase.  Filing fees will not increase.

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The evolution of a hostile takeoverMidstates Petroleum Company sends "bear hug" letter to SandRidge Energy

In a series of interviews with Energy Intelligence Group’s Oil Daily, Chris Hewitt analyzes the corporate governance implications of the actions taken by the board of directors of SandRidge Energy leading up to Midstates Petroleum Company's unsolicited offer to buy SandRidge.

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