January 01, 2011

In January, Jenner & Block lost our Chairman Emeritus and longtime partner Jerold S. Solovy, who served the Firm and the legal community for more than 55 years.  Mr. Solovy was a consummate trial and appellate lawyer who epitomized the ideals of the profession in every way. He has been repeatedly recognized as one of the most influential lawyers in America and was a recipient of The American Lawyer’s prestigious Lifetime Achievement Award and numerous other honors.  Mr. Solovy was a tireless pro bono advocate and enduring leader of court reform.  Illinois Supreme Court Chief Justice Thomas Kilbride characterized Mr. Solovy as “one of the finest lawyers in the history of Illinois.” We cannot hope to do justice to the legacy left by Mr. Solovy’s legacy in the space provided here, and we invite you to read more about him on our website.

In this edition of The Spotlight we note that waiver is a recurring theme in many of our reported cases.  The Second Circuit found that plaintiffs waived their right to arbitrate by litigating for 11 months in state and federal court (see Arbitration).  The Delaware Chancery Court applied the “entire fairness” standard to a merger because, although the operative LLC agreement waived the fiduciary duties of the directors and officers, it did not waive the fiduciary duties of the majority unitholder (see Complex Commercial Litigation).  The Fourth Circuit ruled that a party waived its right to challenge the enforcement of a foreign arbitral award by failing to make a specific objection during the arbitration proceedings (see International Arbitration).  Waiver also played a role in a number of privilege decisions:  the Sixth Circuit held that the use of a tax opinion letter resulted in subject matter waiver; a New York federal court found that the late filing of a privilege log waived privilege as to the documents on that log; and a California federal court ruled that neither an employee nor Board member of a public entity could waive the entity’s attorney-client privilege (see Attorney-Client Privilege).

We also highlight several notable cases in which the Supreme Court granted certiorari, including a Wal-Mart class action (see Class Action), a suit concerning the constitutionality of “data mining” laws (see Health Care Litigation), and two cases pertaining to pharmaceutical labeling (see Product Liability).

Additionally, we discuss the SEC’s proposed new rules for implementing the whistleblower program established by the Dodd-Frank Act (see White Collar Defense & Investigations).

We hope that you find all of our summaries to be useful, and we look forward to a New Year of litigation updates.

Regards, David J. Bradford and Craig C. Martin

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