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MoFo Japan Disputes Newsletter – 4th Quarter 2020

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紛争解決についてモリソン・フォースターがお送りする季刊ニュースレターの創刊号へようこそ。このニュースレターでは、日本企業に影響を及ぼし得る仲裁、調査、商事訴訟・知的財産訴訟に関する最近の動向をお伝えします。

We are Morrison Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, and Fortune 100, technology, and life sciences companies. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

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Welcome to the inaugural edition of Morrison & Foerster’s quarterly newsletter on recent developments in arbitrations, investigations, and commercial and intellectual property litigation that may affect Japanese companies.In this issue we cover:<ul><li><a href="/resources/video-audio/201027-japan-depositions-during-the-pandemic.html">Japan Depositions during the Pandemic (video)</a></li><li>DOJ and SEC Issue Update to FCPA Resource Guide</li><li>Modernizing LCIA Arbitration: 2020 Rule Updates</li><li>Section 1782 Discovery in Arbitration</li><li>Federal Circuit: Proof of Infringement by Standard May Be Sufficient for SEPs</li><li>Ninth Circuit: No Antitrust Problem with Qualcomm’s SEP Licensing Practices</li><li>Partner Highlight: Erin Bosman (Class Actions and Mass Torts)</li><li>How FDA Is Monitoring the COVID-19 Product Market</li><li>Six Key Questions When Settling and Releasing Legal Claims</li><li>U.S. Supreme Court’s Decision on LGBT Discrimination in the Workplace</li></ul>Read our <a href="http://www.mofo.jp/4Q_2020_Japan%20Disputes%20Newsletter%20-%20Final.pdf" target="_blank">newsletter</a>. 紛争解決についてモリソン・フォースターがお送りする季刊ニュースレターの創刊号へようこそ。このニュースレターでは、日本企業に影響を及ぼし得る仲裁、調査、商事訴訟・知的財産訴訟に関する最近の動向をお伝えします。この号では、以下のトピックについて説明します。<ul><li><a href="/resources/video-audio/201027-japan-depositions-during-the-pandemic.html">コロナ禍における日本人証人の証言録取実務（ビデオ）</a></li><li>FCPA手引きの更新</li><li>現代化するLCIA仲裁：2020年改正</li><li>仲裁における第1782条ディスカバリー</li><li>連邦巡回区控訴裁：SEPは規格による侵害証明で足りる可能性</li><li>第9巡回区控訴裁：クアルコムSEPライセンスに競争法上問題なし</li><li>Partner Highlight: Erin Bosman （クラスアクション及び大規模不法行為）</li><li>FDAによるコロナウィルス関連製品市場の監視</li><li>和解及び請求権放棄を行う際の重要事項</li><li>職場のLGBT差別に関する米国連邦最高裁判決</li></ul>本文は<a href="http://www.mofo.jp/4Q_2020_Japan%20Disputes%20Newsletter%20-%20Final.pdf" target="_blank">こちら</a>から

MoFo Japan Disputes Newsletter – 4th Quarter 2020

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﻿Dan Levison is a partner at Morrison Foerster and co-Managing Partner of the Singapore office. He also heads its Litigation Department and leads the firm’s Ethics and Compliance regional practice in Asia. Dan counsels clients regarding compliance matters and conducts internal investigations and compliance reviews across the Asia-Pacific region, where he has over 24 years of experience. His practice has included work in many countries in Southeast Asia and beyond, including Malaysia, Thailand, Indonesia, Vietnam, the Philippines, and Singapore.Clients say that Dan is “a highly skilled lawyer who specializes in managing large, complex internal investigations” and “very thoughtful and thorough, and extremely focused on giving high-quality advice across a broad range of issues.” Clients rely on his experience with highly sensitive and complex cross‑border matters, which have included fraud and corruption, cartel, and other competition matters, anti-money laundering, economic sanctions and export control, privacy and data security, and regulatory and product safety investigations. In addition, he assists clients with pre‑acquisition and third-party compliance due diligence and developing, reviewing, and implementing compliance policies, procedures, and training programs.Dan also focuses on complex commercial litigation and arbitration matters, with particular emphasis on the resolution of multi-jurisdictional disputes and has developed particular expertise regarding cross‑border electronic discovery matters. He has counselled clients in a range of matters involving contract disputes, business torts, antitrust, product liability, intellectual property, and other issues. Dan has represented clients in a variety of industries, including electronics and manufacturing, software, consulting and professional services, consumer goods, electronic commerce, chemicals, pharmaceuticals and healthcare, sports and entertainment, transportation, construction and real estate, hospitality, insurance, and banking and financial services, among others. Dan is also a member of the firm’s COVID‑19 Task Force.Before moving to Singapore, Dan spent more than 12 years in MoFo’s Tokyo office, and clients continue to rely on him for his Japan-related expertise, for which he has been recognized by Chambers Global 2020, 2021, and 2022.Dan has been listed by Chambers Asia-Pacific every year for the last six years as a top practitioner (Band 1) in his field for Corporate Investigations/Anti-corruption. He is recognized as a leading individual for white-collar crime by Legal 500 Asia-Pacific from 2021 - 2024, and is listed as a litigation star by Benchmark Litigation Asia-Pacific. Dan has also been recommended as a global leader in Investigations in Singapore by Who’s Who Legal/Global Investigations Review every year since 2019.Dan is also a sought–after speaker and thought leader on anti–corruption, investigations, and compliance‑related topics.In addition to his practice, Dan serves on the firm’s Board of Directors and on its Diversity Strategy Committee, and plays a leadership role in some of the firm’s global diversity initiatives, notably, as a member of the Board of Directors of the firm’s pro bono client, Lawyers for LGBT & Allies Network, and he has been highly commended by Chambers for an Asia-Pacific Diversity & Inclusion Award 2020.<h4>Representative Experience</h4><ul><li>A multinational company in connection with an internal investigation into allegations of bribery in Indonesia.</li><li>A real estate investment trust in relation to a compliance risk assessment concerning a joint venture in India. </li><li>A U.S.-based company in an investigation into corruption and procurement–related irregularities in India. </li><li>A global technology company in relation to an investigation into allegations of conflicts of interest and accounting irregularities by local management in Southeast Asia.</li><li>Several Asia-based employees of financial institutions in internal and government corruption and money laundering investigations. </li><li>U.S.-based medical device manufacturer in investigation into allegations of bribery and fraud in Japan.</li><li>A multinational pharmaceutical company in investigations into allegations of irregularities in the conduct of clinical trials in Japan.</li><li>A U.S.-based company with respect to several Japan Fair Trade Commission investigations.</li><li>Providing a global financial institution with anti-corruption counselling with respect to its global private equity and venture capital investments.</li><li>Conducted pre-investment and pre-acquisition anti-corruption and compliance due diligence for U.S., Europe, and Asia-based multinational companies in numerous transactions across the Asia‑Pacific region and beyond. </li></ul>

Daniel Levison

Managing Partner, Singapore

Julie Park is the Managing Partner of Morrison Foerster’s San Diego office.Julie protects her clients’ products throughout the product life cycle. Drawing on her deep technical and legal experience, she counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption. She manages complex and multijurisdictional litigation both in state and federal court and also guides clients through product recalls.Clients appreciate Julie’s ability to assess both the practical business implications and legal impact of a matter. They also value the way she recommends solutions that meet their objectives.Julie is committed to providing thought leadership for her clients. She is an editor of, and frequent contributor to, MoFo’s <a href="http://classdismissed.mofo.com/">Class Dismissed</a> blog, where she provides insights on class action and product–related issues affecting companies in the consumer arena. She has been recognized for her writing as a top author in the JD Supra Readers’ Choice Awards, 2016–2019.Julie is also committed to pro bono service and diversity in the legal profession. While at Harvard Law School, she worked at the Harvard Legal Aid Bureau, a nonprofit law firm that provides free legal services. She has continued her pro bono work at MoFo, which has resulted in being a regular recipient of the Wiley W. Manuel Award from the California State Bar for pro bono contributions. She is a member of MoFo’s Diversity Strategy Committee and has served on the Associates Steering Committee of Athena San Diego, an organization that promotes professional growth for women executives and rising managers in science and technology.More About JulieJulie brings an industry perspective to her work with MoFo. Before going to law school, she was a medicinal chemist at Pfizer, where she researched cancer drugs.Beyond her impressive legal work, Julie has a life in the arts. She is a professional–level violinist who performs with chamber music groups in the San Diego area and has played with the Harvard–Radcliffe Orchestra, Cambridge University Chamber Orchestra, and La Jolla Symphony.

Julie Y. Park

Partner

Erin Bosman is chair of MoFo’s Complex Litigation + Advisement Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.Erin's clients value her litigation acumen, retaining her as national coordinating and trial counsel in class action cases and multijurisdictional and multidistrict proceedings. She navigates complex business relationships and serves as a defense liaison counsel in cases where multiple defendants have conflicting defenses. A skilled negotiator, Erin has a long track record of securing dismissals and favorable settlements for her clients. When trial is needed, her compelling courtroom skills have delivered successful jury verdicts and appellate victories.Outside the courtroom, Erin maintains a robust advisement practice, drawing on her litigation experience to counsel clients on product development, risk assessments, product labeling, and risk mitigation strategies to help them avoid and defeat product liability claims. When necessary, Erin advises on crisis management and guides clients through product recalls, representing clients before the Consumer Product Safety Commission (CPSC).Erin is a problem-solver through and through. In that role, she advises clients on some of their most difficult product questions, with particular focus on emerging technologies in untested regulatory and litigation landscapes. She is a leader in the fields of wearables and digital health, medical device and pharmaceuticals, and consumer products. Erin counsels clients that have innovative products in the technology and artificial intelligence sector. In addition to her knowledge and experience in the AI space, Erin has also advised clients working with autonomous vehicles, sensors, robotics, and IoT.Erin has received numerous accolades for her legal work, including by the Daily Journal, Chambers USA, and The Legal 500 US, where market commentators praised her as “an exceptional strategist with highly effective negotiation skills” who “has the respect and admiration of her team and her clients.” Erin is a two-time recipient of  “Product Liability Lawyer of the Year” from Euromoney America’s Women in Business Law Awards, honoring high-achieving female lawyers and progressive law firms. In 2025, Erin was again recommended in Mass Tort Litigation/Class Actions – Defendants by Best Lawyers in America. The Legal 500 continues to recognize Erin as a Leading Lawyer in Dispute Resolution: Product Liability, Mass Tort, and Class Action. She was also named as a “Top Healthcare Lawyer” by the Daily Journal, honoring her as a leading California lawyer who specializes in healthcare litigation, transactions, and counseling. Erin was also short listed in the Financial Times’ North American Innovative Lawyers Awards in the Most Innovative Legal Practitioner category for her expertise in solving clients’ problems.Erin is a member of the Product Liability Advisory Council (PLAC), a member of the editorial board for Product Liability Law 360, and a former editor of and frequent contributor to MoFo’s <a target="_blank" href="http://classdismissed.mofo.com/">Class Dismissed</a> blog.<h5>More About Erin</h5>In 1997, Erin was a judicial extern for the Honorable James F. Stiven, U.S. Magistrate Judge, Southern District of California. In 1999, she received her J.D. magna cum laude and Order of the Coif from the University of San Diego School of Law. During law school, she was an editor of the San Diego Law Review.

Erin Bosman

Andrew Meyer is a member of the Litigation Department and part of the firm’s Commercial Litigation, Antitrust, and Investigations + White Collar Defense Groups.Andrew is recommended in the 2023 edition of The Legal 500 Asia Pacific for Japan: Antitrust and Competition.

Andrew Meyer

<div class="videoWrapper"><iframe class="sticky-video" title="Meet Louise Stoupe, Commercial Litigation and Trial Group Co-Chair" src="https://www.youtube-nocookie.com/embed/Oj7F_tmcPb0?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></div>Louise Stoupe is co-head of the Tokyo Litigation department. Her practice focuses on high-tech disputes in international arbitration and litigation. She is an experienced trial lawyer, known for representing some of the largest technology companies in the world, in their multijurisdictional and complex commercial litigation cases.Louise has been recognized for her cutting-edge work for Japanese clients and was recognized as the Dispute Resolution Lawyer of the Year and the Woman Lawyer of the Year by Asian Legal Business in 2018. Louise is ranked in the current editions of Chambers Global (2023) and Chambers Asia Pacific (2023) for Dispute Resolution. She is also ranked as a Leading Individual in Dispute Resolution by the 2023 edition of The Legal 500 Asia Pacific. Louise has been recognized by the Japan edition of Best Lawyers for Intellectual Property since 2010; Litigation since 2014; International Arbitration since 2020; Criminal Defense since 2023. She was also recognized by the 2017 Client Choice Awards in the litigation category. Louise has long been identified as a leader in her field, exhibited by the fact that in 2008 she was the second youngest person on the “Top 50 Under 45” list published by IP Law & Business.

Louise Stoupe

Co-Head of Tokyo Litigation

Alex advises on all aspects of complex commercial litigation in federal and state trial and appellate courts and in arbitration. He has represented U.S. and international clients in actions involving a wide array of complex commercial disputes.Alex regularly advises clients on e–discovery issues and best practices as co–chair of our E–Discovery Task Force. He also serves as co–chair of our Commercial Litigation Group’s Technology Transactions Working Group and has been a member of the Standing Committee on the Judiciary of the Association of the Bar of the City of New York. Alex was named in the National Law Journal’s 2015 and 2017 Pro Bono Hot List for his work protecting reproductive rights, and appeared again in 2018 for his work protecting individuals who were jailed for their inability to pay court fees and fines. In 2023, Alex was recognized with the American Lawyer Corporate Purpose award and at the Financial Times Lawyers Awards for the firm’s Post-Dobbs reproductive rights work. Alex was further named among Law360's Legal Lions of the Week on multiple occasions for his work.He also has won the JD Supra Readers’ Choice Award for 2016 as the top author in the area of e–discovery. He has written extensively on legal issues in publications such as Law360, Intellectual Property Strategist, IP Litigator, Licensing Journal, Bloomberg BNA, ACC Docket, San Francisco Daily Journal, Financier Worldwide, Mealey’s Litigation Report, and Socially Aware: The Social Media Law Update. He also has been featured or quoted in articles in the Wall Street Journal, New York Times, Houston Chronicle, Austin American–Statesman, Associated Press, Bloomberg, Forbes, Huffington Post, Law360, Elle, American Lawyer, and National Law Journal.

J. Alexander Lawrence

Wataru Shimizu is Of Counsel to Morrison Foerster Law Offices. Wataru’s practice focuses on matters relating to labor and employment laws, including designing terms and conditions of employment, reduction in force, and labor disputes.Wataru has also been involved in domestic and international litigation and a range of cross-border corporate transactions, including mergers and acquisitions. He has experience working in-house on part-time secondment to U.S.-based companies in the automotive and pharmaceutical sectors, as well as to a Japanese finance leasing company.Wataru received his LL.B. from Waseda University in 2003 and completed his training at the Legal Training and Research Institute of the Supreme Court of Japan in 2008 (61st trainee). He received his LL.M. from the University of Virginia School of Law in 2016. Wataru is a bengoshi admitted to practice in Japan and is a member of the Dai-ni Tokyo Bar Association.

Wataru Shimizu

Of Counsel

Yuka is Co-Head of the Tokyo Litigation Department and focuses her practice on representing technology clients in IP and commercial disputes. She has experience representing clients in U.S. federal courts, the International Trade Commission, and Japanese courts, and manages global strategy in cases spanning multiple jurisdictions. Also, she regularly counsels clients on various legal challenges they face during product development, manufacturing, and distribution. Her matters have involved a wide range of technologies, including computer hardware and software, communications networks, automotive components, semiconductor devices, and medical devices.Yuka is an active member of the Licensing Executives Society. She also regularly lectures and moderates panels at patent-related conferences. Before joining the firm, Yuka clerked for the Honorable Randall R. Rader, Chief Judge at the U.S. Court of Appeals for the Federal Circuit.Yuka received her B.S. in computer science from Stanford University and her J.D. from The George Washington University Law School.Yuka is a native Japanese speaker.

Yuka Teraguchi

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, such as:<ul><li>OFCCP compliance</li><li>Creating and implementing affirmative action plans</li><li>Defending OFCCP audits and onsite investigations</li><li>Conducting mock pay equity audits</li><li>Drafting and developing business ethics policies and programs</li><li>Complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act</li></ul>He is also well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation.Andrew routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters. Andrew regularly advises clients on:<ul><li>EEO and diversity</li><li>Wage-and-hour</li><li>High-stakes employee terminations</li><li>Executive disputes</li><li>Reductions in force</li><li>Leaves of absence</li><li>Accommodations</li><li>Pay equity</li><li>Employee selection processes</li><li>Employment testing</li><li>Contingent workers </li><li>Policy development and application</li></ul>In addition, Andrew advises on a wide range of employment transactional matters, such as drafting and negotiating executive employment agreements and separations, overseeing internal investigations and audits of employment issues, and conducting employment diligence on mergers, acquisitions, and other corporate transactions.He has significant experience advising technology and other companies on protecting against the loss of trade secrets, proprietary information, and current and prospective clients. Andrew also represents employers in matters involving union avoidance, negotiating and drafting collective bargaining agreements, handling union grievances, and avoiding and defending unfair labor practice charges.<h4>Federal Contractor Experience</h4><ul><li>Defended numerous OFCCP audits, including closing audits with a finding of no violations against a major accounting firm, a language learning software provider, and a technology consulting company</li><li>Obtained complete dismissal of a significant OFCCP complaint against a large aerospace and space transport company</li><li>Performed mock SCA audits for various contractors</li><li>Led labor and employment diligence for $1 billion acquisition of international security firm</li><li>Developed and overhauled numerous affirmative action plans and EEO training programs</li><li>Analyzed subcontractor status for numerous companies to determine OFCCP coverage, including for a large semiconductor manufacturer</li><li>Conducted E-Verify and I-9 audit for a national dispute consulting contractor</li><li>Performed “single entity” analysis for one of the largest mutual life insurance companies</li><li>Conducted pay equity audits for contractors, including for a software and consulting company</li><li>Obtained DOL approval under the SCA for self-funded fringe benefit program of an aviation and space contractor</li><li>Advised a multinational package delivery company on establishing program to conduct denied party screening under lists maintained by OFAC and BIS while minimizing risk of discrimination claims and compliance with background check laws</li><li>Advised a global coffee and coffeehouse chain on establishing hiring processes to avoid discrimination claims while complying with ITAR/EAR</li><li>Developed business ethics policies and programs for a large pharmaceutical manufacturer</li></ul><h4>Other Representative Experience</h4><ul><li>Defended education association against claims by former employers of two executives alleging breach of restrictive covenants and theft of trade secrets and confidential information</li><li>Obtained preliminary injunction enforcing a noncompetition agreement and other restrictive covenants against a former senior sales executive of a technology firm</li><li>Led internal investigation of sexual harassment claims against COO of a public real estate firm</li><li>Advised a global food manufacturer in avoiding litigation while terminating employee threatening whistleblower claims based on employer’s confidential information</li><li>Defended former senior executives of a global manufacturer of performance fabrics against allegations of misappropriation of trade secrets and breach of noncompetition agreements</li><li>Advised an entrepreneur in creating startup while minimizing risk of his former employer pursuing enforcement of restrictive covenants </li><li>Assisted a property management firm in navigating internal investigation of whistleblower claims related to alleged fraud, ethics violations, and sexual harassment by senior executive</li><li>Won motion for reconsideration convincing court to grant summary judgment in gender discrimination and retaliation case against a large DC employer </li><li>Obtained terminating sanctions and attorneys’ fees and costs for discovery violations in a discrimination suit against a large utility provider </li><li>Obtained favorable arbitration decision for a software company in claims by former executive alleging breach of his employment agreement</li><li>Advised a company board in navigating termination of CEO and successfully defended CEO’s breach of contract and wage claims</li><li>Defended numerous EEOC charges, including against a national event planner, a multinational professional services company, and an operator of research and development centers for the government</li><li>Defended and settled over 30 unfair labor practice charges against a national call center operator</li><li>Negotiated new collective bargaining agreements with four separate unions in bankruptcy of an international maritime shipping company</li><li>Awarded pro bono achievement award for defending a non profit in litigation and several administrative audits before the EEOC and state agencies related to a former employee’s whistleblower and discrimination claims, including defending multiple onsite investigations</li><li>Oversaw validation of pre-employment tests for a national food service distributor</li></ul>Prior to joining MoFo, Andrew was a human resources manager for an Inc. 500 company, ranked as one of the fastest-growing private companies in the United States.Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.<h4>Rankings</h4><ul><li>Recommended for Government Contracts – Legal 500 US 2019 </li></ul>