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State Supreme Court Decision Offers First Amendment Guidance for Attorney-Bloggers

A February 28, 2013 decision issued by the Virginia Supreme Court, which arose out of a disciplinary action instituted by the Virginia State Bar, contains a groundbreaking discussion of the application of First Amendment protections to attorney-generated blogs. Horace Hunter, an attorney with the Richmond firm Hunter & Lipton, authors the blog in question, ?Ç£This Week in Richmond Criminal Defense.?Ç¥ At the time of the state bar?ÇÖs disciplinary hearing, the blog included 30 posts written by Hunter, 25 of which discussed cases and were scrutinized in this matter.?á Of the 25 posts: 22 discussed cases in which Hunter represented either a criminal defendant or a plaintiff in a wrongful death action. Hunter referred to his law firm in 19 posts. Most posts relayed some measure of victory for Hunter and his firm. No post contained a disclaimer stating that the results discussed did not guarantee or predict similar results in… Continue Reading

Second Circuit Reaffirms that Moench Presumption Applies Only When Plan Terms Require Investment in Employer Stock

The U.S. Court of Appeals for the Second Circuit affirmed, in part, and vacated, in part, a fiduciary breach lawsuit against the investment committees of two eligible individual account plans. Participants sued the investment committees claiming that the decision to offer an employer stock fund was imprudent. The Second Circuit recognizes the Moench presumption?Çöthe presumption of prudence when a plan fiduciary retains employer securities as an investment option as required by the terms of the plan document. Although the district court applied the Moench presumption to both plans, the terms of only one plan required investment in employer stock; the other plan merely permitted investment in employer stock. Thus, with respect to the second plan, the Second Circuit vacated the dismissal and reinstated the claims and the derivative claims against the investment committee. McKevitt v. UBS AG, No. 12-1662 (2d Cir. Feb. 27, 2013).

March 2013