ALTERNATIVE DISPUTE RESOLUTION
Major corporations' legal counsel are recognizing now both the strengths and the weaknesses of binding, pre-dispute arbitration and are looking for other options. Taking Notice of Arbitration discusses why counsel are taking this interest and presents two novel alternatives. (Nov. – Dec. 2006)
Keeping The Peace presents a "dark side" of arbitration and suggests a mediation alternative that provides a viable alternative dispute resolution (ADR) mechanism that preserves the elements that distinguish the U.S. legal system. (Mar. 2005)
BUSINESS CONTINUITY
Business Continuity Planning isn't just about disaster recovery. BCP should include processes and procedures to stand in for critical operational requirements when things don't work as they should. Remember - don't think disaster when planning for the unexpected; Think Risk and Prevention. (May – Jun. 2008)
Force Majeure was released on the heels of Hurricane Katrina and reminds those who outsource technology to assess contract provisions governing business continuity and disaster recovery to make sure that they give effect to business needs in the event of not only minor, but also major, business interruptions. (Sep. 2005)
CAPITAL MARKETS
Experience in 2008 strongly suggests that capital markets, particularly in the small and closely-held business space, will demand in return for new investment increasing checks and balances on management and board of directors control of substantive business decisions. Raw Capitalism discusses some of what has happened, and is happening, to fuel this trend. (Jan. – Feb. 2009 )
The OCC, which regulates national banks, has advanced an agenda for preemption of state law that would decrease the burden of dual regulation. The U.S. Supreme Court has halted the OCC’s incremental successes in a recent case involving the application of state consumer protection laws. New Life for Thrifts shows that preemption has never been limited for Federally-chartered thrifts, or savings associations, and that this “about face” by the Supreme Court should cause the banking industry to reevaluate the viability of the Federal thrift charter and the ways in which it is superior to that of a national bank. (May – Jun. 2009)
COMPLIANCE
New Year's Resolutions addresses the age-old question of who is responsible for regulatory compliance of financial data processing software, whether used on an outsourced or in-house basis. (Jan. – Feb. 2006)
CONTRACTS – DRAFTING
Mick Jagger says, "You can't always get what you want, . . . But if you try sometimes you just might find/ You get what you need." The forthright negotiator might disagree. See how this contract interpretation principle should inform your negotiation and drafting of any contract in The Forthright Negotiator. (Mar. – Apr. 2008)
Remember Boggle®? reviews lessons from a 10-year old M&A deal between The SCO Group and Novell that should guide sellers and buyers alike, particularly with regard to intellectual property. And, it provides some pointers to a successful transaction. (Sep. – Oct. 2007)
Contracts 101 suggests several "best practices" that can ensure a contract accomplishes its goals. Included in these is discussion of the law applicable to the contract. (Jun. 2005)
C3 = The Right Word provides 3 simple rules toward drafting better contracts. (May 2005)
DATA
"New Practices" continue to dominate thought leadership in these tough economic times. Data Loss Prevention: Can Business Failure Affect You? comes to grips with the reality that IT services vendors can fail and suggests not only some interim measures to enhance vendor management, but also advances the new practice of data escrow as an alternative. (Jul. – Aug. 2009)
Stimulating discourse, The Handsome Ransom presents the case for eliminating the “hostage” clause in IT outsourcing contracts. The hostage clause ostensibly permits vendors to delay return of a customer’s data until, assuming that it is due, a termination fee is paid. But are such provisions enforceable? Should they be? And, are there reasonable alternatives? (Nov. – Dec. 2008)
Vendor Lock-In, discussed in Apple Says “Uncle,” challenges the freedom to change and may well restrain economic growth, efficiency and innovation. Using data as their new tool, vendors want to capture your treasure and hold it from the "Pirates" who would set it free. (Jan. – Feb. 2007)
DUE DILIGENCE
IP in the Cross Hairs presents some lessons learned from a deal gone "bad" and demonstrates three of many avenues of investigation that might be pursued in a licensing or M&A transaction to optimize risk. (Sep. – Oct. 2006)
ELECTRONIC PAYMENTS
ePayments Put the Paper Check “Out to Pasture" shows how the growing ePayments industry is challenging the regulatory environment. (Jan. 2005)
INSURANCE
The often misunderstood role that insurance traditionally plays, and another that it can and maybe should play, in allocating risks in IT services outsourcing, is discussed in Insurance? (Mar. – Apr. 2007)
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