Latest Updates

Quality Payment Program EHR Hardship Application Now Open

The Quality Payment Program (QPP) hardship exception application is now open for those providers seeking a score adjustment related to their use of electronic health records (EHR). Providers who meet certain criteria can apply to have… more

Deadline to Comply with New York's Cybersecurity Regulation Is Approaching

For entities regulated by the New York Department of Financial Services, the deadline for complying with the new Cybersecurity Requirements for Financial Services Companies, 23 NYCRR Part 500, is Monday, August 28, 2017. To assist, the… more

Call Me Maybe: 11th Circuit Broadly Interprets TCPA to Allow Partial Oral Revocation of Consent

In light of the flux of recent litigation arising under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §227 et seq., resulting in multimillion-dollar settlements and adverse judgments against companies across all industries… more

Off-Duty Emails May Be Compensable (or Not)

After living with the reality of after-hours work emails, texts and cell phone calls for so many years, no one should be surprised that the Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) requires employers to pay non-exempt… more

MTC Marketplace Seller Voluntary Disclosure Initiative Underway

On August 17, 2017, the application period opened for the limited-time MTC Marketplace Seller Voluntary Disclosure Initiative opened and it will close October 17, 2017. Since our last blog post on the topic detailing the initiatives… more

Update on San Francisco Asbestos Settlement Conferences

Judge Lee Trying Out New Approach - Judge Lee, the presiding judge of the San Francisco Asbestos Department, has set forth a new Mandatory Settlement Conference (MSC) system for San Francisco asbestos cases. She stated that she has… more

Lessons Learned from 2017 OCR HIPAA Enforcement Actions

So far 2017 is proving to be an active year for Health Insurance Portability and Accountability Act (HIPAA) enforcement. This comes on the heels of 2016, which saw an unprecedented level of enforcement actions, with 13 total… more

California Environmental Law and Policy Update - August 2017 #3

Environmental and Policy Focus - California attorney general sues EPA over records on administrator - Washington Post - Aug 11 - California’s Attorney General Xavier Becerra sued the U.S. Environmental Protection Agency… more

SEC Approves NYSE Proposed Rule Change Requiring Advance Notice of Dividend and Stock Distribution Announcements

On August 14, 2017, the SEC approved the NYSE’s proposed rule change amending Sections 204.12, 204.21, and 202.06(B) of its NYSE Listed Company Manual to require listed companies to provide notice to the NYSE at least ten minutes… more

Pay-by-Phone Fees Get a Call From the CFPB

Be careful with pay-by-phone fees, the Consumer Financial Protection Bureau (CFPB or Bureau) cautioned companies in a new compliance bulletin, expressing concern about businesses “potentially misleading consumers about the purpose and… more

How Do We Define ‘Effective’ for an ‘Effective Ethics & Compliance Programme’?

In the past year, we have seen a salvo of standards and regulations across the globe offering guidance on how to develop effective ethics and compliance programmes. Along with providing guideposts for programme leaders, the volume of… more

Latest Developments in European Patent Law: How to Apply Them in Both the United States and Europe

Agenda: • UK Supreme Court Decision on Infringement – “Equivalents” – Use of the prosecution history • Doctrine of Equivalents in the United States • Plausibility before the EPO and UK courts – Inventive step of product… more

NAIC Takes Major Step Toward Final Approval of Insurance Data Security Model Law

In a flurry of approvals last week, the National Association of Insurance Commissioners (NAIC) took substantial steps toward finalizing its proposed Insurance Data Security Model Law during the 2017 NAIC Summer National Meeting in… more

An Intangible Injury Caused by a Consumer Report Is Concrete Enough, Says the Ninth Circuit

On August 15, 2017, the Ninth Circuit Court of Appeals decided Robins v. Spokeo, Inc. (No 11-56843), a case addressing the standing necessary to maintain an action in federal court that had been remanded to the court by the Supreme… more

'Perception of Bias, Impartiality & Justifiable Doubts': The Case of Arthur Aldcroft

Whether arbitrations are administered or ad hoc, parties within certain industry sectors will often require disputes to be resolved by arbitrators from panels of professional associations, such as GAFTA, FOSFA, LMAA or the SCMA. In… more

Gig Economy Can Harness Power From Refugees And Immigrants

As the U.S. unemployment continues to drop to pre-recession levels, the supply of motivated and qualified workers is tightening. Gig economy businesses competing for a shrinking supply of labor may want to consider turning to refugees… more

A Year in Review: FTC Data Privacy Actions and its Impacts on 2017 and Beyond

Whether it means taking a prominent role shaping data security for the Internet of Things, or addressing high profile breaches, the FTC has adopted an active position in policing data privacy and security. And, as data becomes… more

Update to Registration Statement Processing Procedures

The Staff of the SEC also recently updated the procedures relating to nonpublic review of draft registration statements. Specifically, the following guidance was added..… more

Revised NYSE Dividend Notification Requirements

The New York Stock Exchange has amended its Listed Company Manual to require listed companies to notify the NYSE at least 10 minutes before the company announces any dividend or stock distribution or the fixing of a record date for any… more

News from Abroad -- Mexican Antitrust Authority Issues Broad Study on Generic Drug Entry into Mexican Market -- Part I

Study Suggests Several Changes to Legislation on Patents, Marketing Authorizations, and Government Procurement - In July of 2016, the Federal Commission for Economic Competition announced a broad ranging study on the entry of… more

Significant changes proposed to Singapore's data protection law - 5 things you need to know

Significant changes are proposed to Singapore's data protection law, which if passed would have a material impact on organisations' Singapore data protection compliance programmes. Here's what you need to know so you can plan… more

9th Circuit Clarifies Standard For Article III Standing Based On Statutory Violations

On August 15, 2017, the 9th Circuit, in Thomas Robins v. Spokeo, Inc., reversed the district court’s dismissal of an action alleging willful violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. The 9th Circuit… more

SEC Staff Guidance on Financial Information in Registration Statements

The Staff of the Division of Corporation Finance recently posted additional guidance regarding the financial information that an EGC may omit from its draft registration statements, as well as guidance for non-EGC issuers. See below… more

Innovator Liability Fails Again

As we discussed at the time, the MDL-wide innovator liability appeals in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), resulted in rulings under more than 20 states’ laws that… more

OCC Moves Forward With Fintech Charters, Seeks Lawsuit Dismissal

Holding the line on the future of fintech charters, Acting Comptroller Keith Noreika confirmed that the Office of the Comptroller of the Currency (OCC) will move forward with its plans to issue special purpose charters… more

Ireland's Department of Health is Requesting Comments Regarding Its National Biosimilars Medicines Policy

Ireland’s Department of Health (the “Department”) recently reported on its website that it is “developing a National Biosimilar Medicines Policy to promote the use of biosimilar medicines and to create a sustainable environment for… more

Corporate and Financial Weekly Digest - Volume XII, Issue 31

CFTC - CFTC Suspends Need of Formal Notice for Position Disaggregation Relief - On August 10, the Commodity Futures Trading Commission (the CFTC) issued no-action relief, eliminating the need for certain persons otherwise… more

North Carolina Governor Signs Law Creating Division to Investigate and Prosecute Employee Misclassification Claims

In 2015, a Raleigh newspaper ran a series of investigative articles focused on construction industry members that classified a large portion of their workers as independent contractors instead of employees. The articles alleged that… more

It's Not Etched in Stone that Sales-Tax-Free Weekends Be Held Only in August

This comes as no surprise to the people I work with (nor to my wife) but I was dead damn wrong in my last post, “Guv’s Sales Tax Holiday Bill Looks D.O.A. Appearances Are Deceiving,” 8-6-17. I thought Charlie Baker must have set… more

Pennsylvania Courts Split Over Sexual Orientation Discrimination

A recent decision by Judge Jan E. DuBois in Coleman v. Amerihealth Caritas, No. 16-3652, 2017 U.S. Dist. LEXIS 85319 (E.D. Pa. June 2, 2017) demonstrates that Pennsylvania courts remain divided as to whether Title VII of the Civil… more

Massachusetts Joins MTC Amnesty Program

Massachusetts Joins Multistate Tax Commission Amnesty Program - For Most States Amnesty Features Complete Tax Forgiveness - Urgent Action May Be Needed - Boston – On August 18, 2017 Massachusetts joined 22 other participating… more

NMFS issues final Atlantic sturgeon rule

U.S. fisheries regulators have issued a final rule designating nearly 4,000 river miles in Atlantic watersheds as critical habitat for endangered and threatened Atlantic sturgeon. The rule increases regulatory complexity and… more

Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017

The Anti-Money Laundering and Countering Financing of Terrorism Amendment Act 2017 (Amendment Act) received Royal assent on 10 August 2017. The Amendment Act makes a number of changes to the Anti-Money Laundering and Countering… more

Corporate News – August 2017

FCA proposes a new premium listing category for sovereign controlled companies - On 13 July 2017, the Financial Conduct Authority published consultation paper CP 17/21 which proposes to create a new premium listing category for… more

Judge Oetken Construes Twenty-Nine Claim Terms in “Relatively Large” Markman Opinion

On August 10, 2017, District Judge Paul Oetken (S.D.N.Y.) construed 29 claim terms in a dispute between Defendant Comcast Corporation, et al. (“Comcast”) and Plaintiff Rovi Guides, Inc. and its subsidiaries (“Rovi”). The claim terms… more

New Executive Order on Infrastructure Ups the Ante on Streamlining the Environmental Review and Permitting Process

Since its earliest days, the Trump Administration has focused on eliminating delays in infrastructure projects, portraying environmental reviews and permitting as major choke points requiring change. On January 24, 2017, the White… more

Does Mayo Preclude the Patenting of Medical Diagnostics?

On August 4, 2017, the U.S. District Court in the District of Massachusetts found U.S. patent 7267820 (the ‘820 patent), owned by Athena Diagnostics, Inc., to be directed to non-patentable subject matter, and therefore invalid under 35… more

Skipping The Patent Dance: U.S. Supreme Court In Amgen V Sandoz Makes It More Difficult For Patent Owners To Delay Marketing Of Biosimilars

On June 12, 2017, in a unanimous decision authored by Justice Thomas in Amgen Inc. v. Sandoz Inc., the United States Supreme Court considered the complex statutory scheme that attempts to expedite resolution of patent disputes that… more

D.C. Circuit Provides Additional Support For Specialty Healthcare, Union-Friendly Micro-Units

The U.S. Court of Appeals for the D.C. Circuit has sided with the National Labor Relations Board in affirming the union-friendly practice of “micro-unit” organizing. The D.C. Circuit’s opinion issued in Rhino v. NLRB is unwelcome news… more

Taxpayers Bear The Tax Consequences Of Business Decisions

It is a basic precept of the tax law that the substance of a transaction, rather than its form, should determine its tax consequences when the form of the transaction does not coincide with its economic reality. This… more

5th Circuit Asked to Review ALJ Decision to Vacate “Controlling Employer” Doctrine Citation

Seyfarth Synopsis: As expected, OSHA has appealed an ALJ ruling that severely limits OSHA’s “controlling employer” enforcement policy. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. 8/4/17)… more

Projects and Energy Weekly Snippets

Weekly projects and energy updates in South Africa Electrification scheme in focus, says Eskom With 90% of South Africa now having access to electricity, the utility will now put special focus on the three provinces that are lagging… more

The enforcement of standard essential patents in Germany – a stocktaking

In July 2015, the European Court of Justice (CJEU) issued a long-awaited judgment answering questions as to the requirements an owner of a standard essential patent (SEP) is able to enforce its SEP without a breach of European… more

The Spokeo Saga Continues: Ninth Circuit Finds That Incorrect Consumer Report About Age, Marital Status, Wealth, Education Level, And Profession Gives Rise To Concrete Injury

Takeaway: In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (“Spokeo II”), the Supreme Court ruled that not every statutory violation gives rise to a concrete injury for standing purposes. An inaccurate report of a person’s zip code… more

Revisiting Rule 10b5-1 Trading Plans

I am sometimes surprised by the number of insiders who trade in their company’s stock outside of Rule 10b5-1 trading plans. It is often said, with some accuracy, that executive officers, directors and other insiders always possess… more

CA Supreme Court: Entity Ownership Change Can Trigger Documentary Transfer Tax

Many entities are formed for the sole purpose of buying and holding real estate. In this setup, legal title is held by the entity itself (not the entity’s owners), but the entity’s owners have a “beneficial interest” that can have tax… more

In Case You Missed It: Launch Links - August, 2017 #2

Some interesting links we found across the web this week: Why Startups Should Look for Opportunity Between the Coasts - Startups might consider an extended pit stop in the “flyover” states, where smaller cities are welcoming… more

I’m Saying, I’m Down with the I’MN Slogan

Love the new Minnesota State Lottery advertising slogan: I’MN. Or, as one of my college age sons often says, when he’s in agreement with someone’s idea or proposal, I’m down… more

Beltway Buzz - August 18, 2017

EEO-1 News . . . Maybe. Rumors are rampant that the White House’s Office of Management and Budget (OMB) may soon take action on the Equal Employment Opportunity Commission’s (EEOC) changes to its EEO-1 form, which will require… more

Future of CFPB’s Arbitration Rule Rests in Hands of Senate

On July 25, 2017, the U.S. House of Representatives voted to block the Consumer Financial Protection Bureau’s (CFPB) Arbitration Rule from becoming effective with a vote of 231 to 190. The vote was mostly down party lines and paves the… more

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