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Appellate Court Notes

Supreme Court Advance Release Opinions: SC19378 - State v. Francis - SC19411 - State v. Wright - Appellate Court Advance Release Opinions: AC35949 - State v. Porter - AC36656 - State v. Gonzalez - AC36971 - Jamison…more

Business Litigation Report - August 2016

Circuit Courts Align to Shield SEC Administrative Proceedings from Collateral Constitutional Attack - In response to the financial crisis of the late 2000s, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection…more

Illinois Domestic Workers Now Guaranteed Certain Employment Rights

On August 12, 2016, Illinois Governor Bruce Rauner signed the Domestic Workers’ Bill of Rights Act (House Bill 1288) (the “Act”) on behalf of domestic workers employed in private homes or residences into law. With the passage of the…more

Michigan Health Insurance Claims Assessment Act is Not Preempted by ERISA

The Sixth Circuit, has decided, on remand from the Supreme Court, that the Michigan Health Insurance Claims Assessment Act (Act) is not preempted by ERISA. The Act imposes a 1 percent tax on all paid claims by insurers or third party…more

OIG Highlights Varying Local Medicare Part B Drug Coverage Policies; Recommends Single Entity to Make Drug Coverage Determinations

The OIG has issued a report entitled “MACs Continue to Use Different Methods to Determine Drug Coverage,” which reviews how Medicare Administrative Contractors (MACs) make Medicare Part B drug coverage determinations and ensure that…more

ERISA Preempts State Law Requiring Insurer “Prompt Payment”

Alaska’s prompt pay statute—which requires insurers to pay benefit claims within 30 days of submission—is preempted by federal laws governing employer-provided benefits and benefits for government workers, a federal judge ruled…more

And Now There Are Two: The Ninth Circuit Strikes Class Arbitration Waivers Joining the Seventh Circuit on Finding that these Waivers Violate the NLRA

Seyfarth Synopsis: The Ninth Circuit joined the Seventh Circuit and the NLRB in finding that mandatory arbitration agreements that require all claims to be brought by employees on an individual basis violate the NLRA. On August…more

D.C. District Court Invalidates CMS’s “Protest” Requirement

On August 19, 2016, the United States District Court for the District of Columbia granted a group of hospitals’ motion for summary judgment against HHS in a challenge of the Provider Reimbursement Review Board’s (PRRB) denial of…more

Update: I Swear It’s Not Mine – Artist Sued for Denying He Created Art Piece

Yesterday, August 23, 2016, U.S. District Judge Gary Feinerman reached a verdict in the authentication case against Peter Doig. He stated that Doig “could not have been the author of the work”, but rather in all likelihood Pete Doige…more

Sustainable Development Update - August 2016 #4

Sustainable Development Focus - Kilroy Realty Corp. takes sustainability seriously, with a green office vision that's evolving - San Francisco Business Times - Jul 28 - Kilroy Realty Corp. takes sustainability seriously…more

Maryland Tax Court Overturns Comptroller's Policy of Limiting Subtraction for Interest Received on Federal Obligations

The Maryland Tax Court recently ruled that a bank was entitled to deduct all of its interest received with respect to federal obligations for Maryland corporate income tax purposes, thereby generating net operating losses (NOLs) that…more

Litigation Alert: The Sixth Circuit Expands Potential Federal Wiretap Act Liability for Developers and Sellers of Cloud-Based Monitoring Software

Last week, the Sixth Circuit expanded potential liability for violations of the Federal Wiretap Act for manufacturers of devices that can be used for wiretapping, like monitoring software, in reversing the dismissal of a complaint in…more

Fired For My Firearm? I’ll Sue!

As if employers already did not have enough reasons to have to think through termination decisions carefully, here is yet another “trigger” word that should make employers think twice about plans to discipline or fire an employee:…more

IRS Proposes New Rules for Valuing Interests in Family-Owned Businesses

Earlier this month, the IRS issued long-awaited proposed regulations under Section 2704 of the Internal Revenue Code that, if adopted, will have a substantial impact on traditional estate planning techniques commonly utilized by…more

The Effect of Patents and Drug Price Regulation on New Drug Diffusion Globally

One of the great benefits of scientific inquiry is the capacity for presumptions and prejudices from experience to be challenged and explained in ways that are counter-intuitive. This is true even for disciplines like economics, where…more

OSHA Responds to Manufacturers’ Lawsuit on New Workplace Injury and Illness Reporting Rule

Seyfarth Synopsis: OSHA asserts that its new injury illness reporting rule is fully within OSHA’s mandate. This is in follow-up to our earlier blog on OSHA’s new rule, Improve Tracking of Workplace Injuries and Illnesses (Rule)…more

4 Steps For Avoiding FCA Traps For SBA Lenders

Recent U.S. Department of Justice enforcement and qui tam suits demonstrate that Small Business Administration lenders face increasing risk of liability under the False Claims Act. This article provides an overview of SBA programs…more

GAO Calls For Mandatory Medicare Drug ASP Reporting, CMS Verification of Drug Pricing

A recent Government Accountability Office (GAO) report, “Medicare Part B: CMS Should Take Additional Steps to Verify Accuracy of Data Used to Set Payment Rates for Drugs,” questions the reliability of pricing for Medicare Part B drugs…more

USPAP to Remain the Sole Standard of Valuation Practice in California for Real Estate Appraisers

Last summer, I wrote about the Appraisal Institute’s controversial effort to promote legislation in California (known as AB 624) that would enable licensed real estate appraisers performing appraisals for non-federally-related…more

Imposing Section 10(b) Liability Against Defrauded Corporation Reads Scienter Element out of Statute—An Analysis of In re ChinaCast Education Corp. Securities Litigation, 809 F.3d 471 (9th Cir. 2015)

From time to time, D&O Developments will take a closer look at an important issue decided in an appellate opinion. In this post, I analyze In re ChinaCast Education Corp. Securities Litigation, 809 F.3d 471 (9th Cir. 2015), in which…more

Department Of Commerce Agency Seeks Standards For IoT Security

On August 2, the National Telecommunications and Information Administration (“NTIA”), an agency of the Department of Commerce, announced that it would form a multi-stakeholder group to increase transparency for the deployment of…more

Court Denies U.S. Government’s Warrant to Obtain Overseas Data (New York)

Microsoft Corp. v. United States (In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.), 2016 U.S. App. LEXIS 12926 (2d Cir. N.Y. July 14, 2016) - In this case, the appellant appealed from a…more

Manatt on Health Reform: Weekly Highlights - August 2016 #4

HealthCare.gov plans an open enrollment pilot that will let consumers compare provider network breadth; new Medicaid enrollees reduce out-of-pocket spending on prescription drugs by nearly 60%; and Kansas’s Governor announces his…more

New York Issues DFS Permits

Just days after a New York State’s Daily Fantasy Sports law was passed, the New York Gaming Commission announced it has issued temporary permits to 5 DFS operators. The companies are DraftKings, FanDuel, Yahoo, Fantasy Draft and Draft…more

Non-Dom Reforms Update – United Kingdom

Summary - Following the United Kingdom’s vote to leave the European Union on 23 June, and the change of Prime Minister and to the UK Government, there was significant uncertainty regarding what would happen to the proposed…more

Prompt Payment Required – Doesn’t Matter If Fired, Retired, Or Resigned

Seyfarth Synopsis: The California Supreme Court holds that employers must promptly pay final wages owed to employees who quit, including those who retire, or risk paying steep statutory penalties under California Labor Code section…more

No Resuscitation of Hospital’s Exclusive Dealing Antitrust Suit against Competing Hospitals and Physicians

The Third Circuit reminds, “[i]n antitrust suits, definitions matter.” Last week, in applying that maxim, the court affirmed a lower court’s dismissal of a suit filed by a hospital against a competing hospital and physician group, in…more

HIPAA Security Rule Compliance for Providers & Business Associates in Three Easy Steps

On August 4, 2016, the Office for Civil Rights (“OCR”) of the U.S. Health & Human Services Department (“HHS”) announced a $5.55 million HIPAA settlement with Advocate Health Care Network (“Advocate”), the largest fully-integrated…more

Losing the right to limit: Privy Council confirms parties can contract out of the 1976 Limitation Convention

This Alert looks at the question of whether it is possible to contract out of or waive the right to limit liability under the 1976 Convention on Limitation of Liability for Maritime Claims and if so, what is required in order to do so…more

10 Questions to Ask your Law Firm Vendor Management Program (Part 1)

Law firms providing mortgage servicer clients default-related legal services are vendors, and financial services companies need to treat them as such. Not only that, law firms often interact directly and continuously with borrowers…more

Drone Rules Raise Preemption Questions

The Federal Aviation Administration's recently announced rules for commercial operation of small Unmanned Aircraft Systems (UAS or drones), set to take effect later this month, provide long-awaited guidance to drone operators and…more

California Court Strikes Fail-Safe TCPA Class Definition

Dixon v. Monterey Fin. Services, Inc., No. 15-cv-03298 (N.D. Cal. Aug. 22, 2016) - At issue before the Court was Plaintiff’s Amended Complaint, and Defendant’s second motion to strike class definition as a fail-safe class. Noting…more

Supreme Court of Argentina suspends natural gas price increases for residential users

The increases had been approved as a part of substantial energy and financial reforms undertaken by the Macri administration to promote investment in aging infrastructure. The Court’s ruling delays the contemplated price increases for…more

No Harm, No Foul (And No Class Action Lawsuit): TCPA Class Action Dismissed For Failure to Allege Harm

Earlier this month, United States District Court Judge Peter Sheridan dismissed a class action brought against Work Out World (“WOW”) under the Telephone Consumer Protection Act (TCPA).  In doing so, Judge Sheridan relied on the recent…more

Saudi Arabia consults on proposed cloud computing regulation and licenses

Saudi Arabia's ICT regulator, the Communications and Information Technology Commission (CITC), has published a public consultation document on a proposed cloud computing regulation and license regime in the KSA. The consultation aligns…more

The Importance of the Specification in Alice Challenges

It is axiomatic that the claims of a patent describe the invention, and for Alice challenges, define whether an invention is drawn to an abstract idea without an inventive concept. Of course, claims are construed in light of the…more

Television, Personal Jurisdiction, and Whether Corporate Knowledge Can be Imputed from Internet Drivel

You wouldn’t be the first to notice that some of our posts say more about television programs – and certainly with more gusto – than about the law. We could make the case that pop culture and the law are related, and that familiarity…more

Commercial landlords: Time to tune up your indemnity provisions

The California Court of Appeal recently issued an opinion which reminds us to take another look at the “boilerplate” indemnity provisions in commercial leases. In Morlin Asset Management LP v. Murachanian (B259800), a vendor…more

New Jersey Supreme Court Affirms General Contractor’s Insurance Coverage for Consequential Damages Caused by a Subcontractor’s Faulty Workmanship

In an important recent decision, New Jersey joined a growing number of states holding that Insurance Services Office’s (ISO) 1986 comprehensive general liability (CGL) policy extends coverage to a property developer faced with…more

Therapy Evaluation Codes Expanded Under CMS' Proposed Rule

The most significant change for physical and occupational therapists in the Medicare proposed Physician Fee Schedule for 2017 is the replacement of current CPT codes for evaluations and reevaluations. The change reflects the work of…more

WTO Panel Report: Russia - Tariff Treatment

A WTO Panel has ruled that the Russian Federation has violated its WTO obligations by imposing duties on certain EU goods in excess of its committed ("bound") rates, in breach of Article II of the General Agreement on Tariffs and Trade…more

The Marijuana Industry’s Big Win: The DEA’s Refusal to Reschedule

Earlier this year, when the U.S. Drug Enforcement Agency (DEA) indicated it would have an announcement regarding a now five-year-old petition to reschedule cannabis, numerous industries on the “outside looking in” were eagerly watching…more

Half-Baked: Phillips Exeter, Sexual Assault, And A Recipe For Disaster

Considered one of the country’s most elite prep schools, Phillips Exeter Academy has recently joined the queue of prestigious private schools who have been accused of having ignored, suppressed, or minimized claims of sexual assault. A…more

NLRB Classifies TAs as Employees

The NLRB chose not to interfere with collegiate football. Northwestern University, Case 13-RC-121359 (August 17, 2015). Collegiate teaching assistants, though, are another thing. In Columbia University, Case 02-RC-143012 (August 23…more

Federal Circuit Emphasizes that an Obviousness Analysis Based on Common Sense Must be Supported by Substantial Evidence and Explained with Sufficient Reasoning

A recent decision by the Federal Circuit suggests that relying on “common sense” in analyzing whether a patent is obvious in view of prior art cannot always be based on common sense alone. In a decision providing practitioners…more

Caught at the Red Light: Challenge to Ordinance Granting On-Demand Drivers the Right to Bargain Collectively is Brought to a Screeching Halt

By: Alison Loomis, Esq. Seyfarth Synopsis: A challenge to Seattle’s first-of-its-kind ordinance, which established the right for on-demand drivers to collectively bargain, was dismissed by a Washington federal court on the basis that…more

You Are the Victim of Defamation: Should You Sue?

It is not unusual to get a telephone call from a client or prospective client (let’s call him John), who says, “Somebody is saying false things about me. I want it to stop, I want an apology, and I want damages.”…more

NLRB Declares Student Assistants Can Unionize

The National Labor Relations Board today opened the door for further unionization efforts at institutions of higher education by finding that student assistants are employees and therefore eligible for union organizing. Its decision in…more

FDA Issues New Draft Guidance: New Dietary Ingredient Notifications and Related Issues

Dietary supplements are big business. A recent estimate pegs the U.S. market for dietary supplements at over $35 billion annually. The U.S. Food and Drug Administration (FDA) estimates the number of dietary supplements to be over…more

Lawsuit Dismissed After Demurrer Sustained Without Leave to Amend

Plaintiff filed a complaint in Contra Costa County against the property manager and Board members of her Homeowner’s Association, alleging various causes of action involving perceived violations of the Davis-Stirling Act and the…more

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