Confidentiality

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We have previously reported on changes the Law Commission was considering to the Arbitration Act 1996 (the Act). The Law Commission has now published its final report (the Final Report, available here).

The report draws to a close a review of English arbitration legislation that began in January 2022. A draft bill to implement the Commission’s conclusions and recommendations into law is provided with the report so it is now for the UK government to decide whether to introduce those changes to parliament.

The choice of arbitration institution can arise at any point in an investment cycle: from finalising initial agreements at fund or portfolio company level, or on an ad hoc basis when a dispute arises.

To help demystify some differences – this article sets out the key features of three commonly used international arbitration regimes that an asset manager should take into account when making such a choice.

Citing new deposition testimony, actor Justin Theroux in a recent motion asked the New York Supreme Court to reconsider its December 2020 denial of Theroux’s motion to compel production of emails that his neighbor, Norman Resnicow, a law firm partner, sent to his personal lawyer about the parties’ quarrel (related to the New York City co-op where they both reside) using his law firm email account. 

Last month, the Court of Appeal of England and Wales granted permission for Eurasian Natural Resources Corp. Ltd. (“ENRC”) to appeal the May 2017 decision by the High Court[1] relating to a dispute over the legal professional privilege with the Serious Fraud Office (“SFO”).[2] The Court of Appeal will likely hear the case next year.

The use of social media sites, like LinkedIn, can be a helpful tool to reach a customer base. But a recent district court case out of Minnesota exemplifies the need to ensure that LinkedIn usage complies with the user’s employment agreement. Specifically, in late July 2017, a Minnesota court in Mobile Mini, Inc. v. Vevea granted a preliminary injunction preventing a LinkedIn user from soliciting customers through the website in violation of non-solicitation clause in the employment agreement of her prior employer. The opinion differentiates between posting mere status updates and posting solicitations, the latter of which can trigger violations of non-solicitation clauses.

In May, the American Bar Association (“ABA”) released a Formal Opinion 477, providing guidance on attorney use of emails in communication with clients. In doing so, the ABA has promulgated a new standard when considering the level of protections necessary while using technology to converse about a legal representation. According to the ABA, a lawyer generally may transmit information relating to the representation of a client over the Internet when the lawyer has undertaken “reasonable efforts” to prevent inadvertent or unauthorized access to information relating to the representation. Under this reasonable-efforts standard, however, the ABA explicitly warns that a lawyer may be required to take special security precautions, like the use of encrypted emails, when the information warrants a higher degree of security.

We wrote here previously regarding the Sixth Circuit’s decision in Shane Group v. Blue Cross Blue Shield of Michigan vacating a class action settlement because the district court improperly refused to unseal the parties’ substantive filings. In revisiting the district court’s sealing orders, the Court of Appeals found that the parties’ cursory justifications for their sealing requests were “patently inadequate.” And based on this failure to elucidate reasons for sealing, the Sixth Circuit vacated every one of the district court’s sealing orders. Since its decision in June, the Sixth Circuit had occasion to interpret and apply Shane Group, and in doing so, offered key learnings for litigants seeking to toe the line for compliance with the Sixth Circuit’s newly-pronounced standard.