March 2015
Table of Contents
Campolo, Middleton & McCormick, LLP is a full-service business law firm that represents clients in a wide variety of legal matters including  corporate, healthcare, intellectual property and technology, labor and employment, liability insurance & insurance coverage, litigation and appeals, matrimonial, mergers and acquisitions, municipal liability and government relations, private equity, real estate development, white collar defense and wills, trusts and estates.

The information contained in this newsletter is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The Firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship. No recipients of information from this newsletter, clients or otherwise, should act or refrain from acting on the basis of any information included in this newsletter without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this newsletter contains general information and may not reflect current legal developments. The Firm disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this newsletter.
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GM Ignition Switch Investigation Shows Value of Competent Internal Investigation
By William McDonald, Esq.
General Motors ("GM"), who faced a very public scandal in 2014 over ignition switch defects, now faces a large class-action multi-district lawsuit on behalf of individuals who suffered injury due to the alleged defect.
When the scandal broke, GM hired outside counsel to investigate the ignition switch defect and GM's delays in recalling vehicles. The investigation, completed in 70 days, featured 41 million documents and more than 350 interviews with 230 witnesses. The report containing the investigation's conclusions has been named the Valukas Report, after the attorney leading the team that conducted the investigation. The final Valukas Report and the documents cited in it are currently available to Plaintiffs' lawyers in the class action litigation In Re: General Motors LLC Ignition Switch Litigation, 14-MD-02543.
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Delaware Chancery Court Determines it has Broad Discretion to Retroactively Ratify Defective Corporate Acts
By David Hoeppner, Esq.
On January 30, 2015, the Delaware Chancery Court decided its first case involving Delaware General Corporate Law (DGCL) Sections 204 & 205 (In re Numoda Corp. S'holders Litig., C.A. No. 9163-VCN, 2015 WL 402265 (Del. Ch. Jan. 30, 2015)) ("Nomuda"). DGCL Sections 204 and 205 permit a corporation or the Court of Chancery to ratify defective corporate acts. Those sections of the law became effective on April 1, 2014, and provide in part:

"(a) defective corporate act or putative stock shall be void or voidable solely as a result of a failure of authorization if ratified as provided in this section or validated by the Court of Chancery in a proceeding brought under Section 205 of this title.

(b) In order to ratify a defective corporate act pursuant to this section, the board of directors of the corporation shall adopt a resolution stating:

Selecting Witnesses for Depositions

By Scott Middleton, Esq.

In litigation, when deciding which employee a corporation should make available for the opposing party to depose, the "corporate entity has the right to designate, in the first instance, the employee who shall be examined."  Schiavone v. Keyspan Energy Delivery NYC, 89 A.D.3d 916, 917 (2d Dep't 2011).  The corporation and counsel must decide, based on the totality of the circumstances in the specific case, which employee will testify best.  Remember, opposing counsel will evaluate the likability and credibility of a witness as well as determine how the witness will present to the finder of fact at trial.  The corporation must be consciously aware that producing an employee who does not provide adequate information or who does not have the requisite knowledge may result in the need to produce an additional witness. 

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Cyber Liability Insurance: What it Protects Against 

By Christine Malafi, Esq.

Cyber liability insurance is a risk management tool and a form of protection that a business can purchase to limit economic losses from damages and for liability from a potential hacking.  Most industries in today's world conduct a lot of business through computers and the internet.  While modern technology helps to promote efficiency and organization throughout businesses, the misuse of the technology poses a threat to private information, which may be seen or used by third parties who should not have access to it resulting in potential liability to the business.  On a daily basis, businesses must deal with data security threats, remote and not, of cyber-attacks and potential costs, expenses, and liability stemming from a security breach.  


Can an At-Will Employee Be Bound by a Pre-Dispute Resolution Agreement Contained Within a Non-Binding Employee Handbook?

By Jeffrey V. Basso, Esq.

Based on a recent decision from the Commercial Division in Westchester County (J. Scheinkman), the answer is yes.  The case of Graham, et al. v. Command Security Corporation was commenced as a class action by Richard Graham ("Graham") on behalf of himself and all other security guards similarly situated against his former employer Command Security Corporation ("Command"). Graham's claims related to the alleged failure of Command to, inter alia, pay Graham and other security guards prevailing wages under New York Labor Law and other wage and hour law violations.  After Graham commenced the lawsuit in Supreme Court, Command filed a motion to stay the action in Supreme Court and compel arbitration based on Graham's prior agreement to resolve any employment disputes by arbitration.

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Negotiating Tips: Who Should Make the First Offer?
A fundamental issue in any negotiation is who should make the first offer. What does the psychological research and negotiation theory say?

According to Professor Leigh Thompson Northwestern University Kellogg School of Management, "there is a widespread, almost unquestionable, assumption that it is wise and strategic to let the other person talk first-and that it is suicidal to make the first offer."

In his article, "Negotiation Tips: Who's on first?," he goes on to discuss that there is virtually no research that supports the claim that letting the other party open first is advantageous. In fact, it he claims it can backfire-and lead to a worse outcome than imagined.

Thus, contrary to the commonly held wisdom, people who make the opening offer in a negotiation tend to have the upper hand.
Professional Licensing Boards Not Automatically Immune from Antitrust Litigation
By Lauren Kanter-Lawrence, Esq.

Would you have your teeth whitened at the mall?


Apparently, so many people were happily squeezing in teeth whitening on their shopping trips (as well as in other non-traditional venues such as salons and spas) that local dentists complained to the North Carolina State Board of Dental Examiners that they were losing patients to non-dentists who offered teeth whitening services at lower prices.  In response, the Board sent nearly 50 cease-and-desist letters to commercial teeth whitening providers and manufacturers, warning that the unlicensed practice of dentistry is a crime.  Although the state's Dental Practice Act does not specifically include teeth whitening in the definition of dentistry, the letters effectively cleared mall kiosks of non-dentist providers of teeth whitening services.

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Communicating with Parents is Not Easy
Our parents have survived a lot. In addition to raising us, they've gone through great depressions, great recessions, and numerous wars. Now, as they enter their golden years, many of us are being confronted with an uncomfortable role reversal as Mom and Dad become the ones who need care.

Just as kids are eager to prove their independence from their parents, parents want to prove to their adult children that they can keep their independence. More often than not, though, things like paying bills in a timely manner get forgotten. This becomes a problem when insurance policies get canceled or utilities start to get shut off.
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Southampton Chamber Breakfast: Bleed to Succeed
Presentation with Joe Campolo

The Southampton Chamber of Commerce will be hosting a Membership Buffet Breakfast with Joe Campolo as the featured guest speaker on April 2, 2015. Building on his popular Bleed to Succeed series, Joe will share strategies and perspectives on creating your own definition of success, setting your own goals, and developing a plan to successfully build your business. For more information visit  here.

CMM Executive Breakfast: Master the Art of Meaningful Networking 

CMM will host its next Executive Breakfast Series on April 8, 2015, with Terri Alessi-Miceli. Join us as we discuss networking strategies to successfully market yourself and your busines. Seating is limited; please contact if you are interested in attending.

Malafi Spotlighted in LIBN Who's Who in Labor Law

CMM congratulates Christine Malafi on her inclusion in the 2015 LIBN Who's Who in Labor Law. She is quoted in the LIBN discussing the importance of employment relationships and the legislation and rules which govern this important relationship for both employers and employees.

Truong Spotlighted in LIBN Who's Who in IP Law

CMM congratulates Eryn Truong on her inclusion in the 2015 LIBN Who's Who in Intellectual Property Law. Truong is quoted in the LIBN saying, "Almost every company - whether it's a start-up or an established company- has intellectual property. It is a valuable asset that companies should be proactive in protecting and maintaining."

CMM Sponsoring CAPS Spring Luncheon

CAPS Logo2

CMM is proud to be a supporter of Child Abuse Prevention Services 30th Annual Spring Luncheon being held on April 16, 2015 at The Carltun, Eisenhower Park in East Meadow. For more information visit here. 

Campolo, Middleton & McCormick, LLP

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