Latest Updates

For Me? You Shouldn't Have! - Legal Considerations for Gifting

While usually synonymous with one's birthday or the holidays, lifetime gifts can also serve an important role in one's estate planning. In its simplest form, gifting provides for a transfer of wealth and assets from one individual to… more

FEMA's 60-Day Appeal Deadlines Now Strictly Enforced Against Applicants and State Grantees

Applicants for federal disaster assistance under the various programs administered by the Federal Emergency Management Agency (FEMA) are not without recourse when FEMA denies or determines to later take back (deobligate) funding… more

State Official Charged With Taking Bribes In Connection With $1 Billion Healthcare Fraud Scheme

On July 22, 2016, the Department of Justice announced the indictment of the owner of more than 30 Miami-area skilled nursing and assisted living facilities, a hospital administrator, and a physician’s assistant in connection with an… more

Government Announces Proposals for a New Data Protection Bill

The government has released a Statement of Intent (“the Statement”) for a new Data Protection Bill (“the Bill”). The Bill was originally announced in the Queen’s Speech earlier this year. This Statement provides further detail on the… more

Menu Labeling Litigation Update: FDA Files Motion to Dismiss Suit Challenging Agency’s Rule Delay, Urges Southern District to Block New York City’s Rule

This week, there were developments in two menu labeling lawsuits about which we reported previously: a lawsuit challenging the U.S. Food and Drug Administration’s (FDA or the Agency) delay of its menu labeling rule, and a lawsuit filed… more

Securities regulators provide enhanced guidance on material conflict of interest transactions

On July 27, 2017, staff of securities regulatory authorities in each of Ontario, Québec, Alberta, Manitoba, and New Brunswick (together, Staff) published a notice (Notice) setting out the recent experiences and approach of Staff in… more

Tracking the Importance of Recusals in Criminal Cases (Part 2)

Yesterday, we began our review of the Court’s experience with recusals in criminal cases. Today, we conclude our review with a look at the most recent years. First, let’s look at the importance of recusals in criminal cases for the… more

Governors of 38 States Join a Cybersecurity Compact

On July 16, 2016, the chair of the National Governors Association (NGA), Governor Terry McAuliffe (D-VA), unveiled his 2016-2017 initiative, Meet the Threat: States Confront the Cyber Challenge. Over the past year, the initiative has… more

IRS and States Crack Down on POS Systems: Zapper Software

A good point of sale (“POS”) system is critical for any business engaged in sales to the public and having one in place goes a long way to ensuring that revenue and profits are being reported properly to federal, state and local tax… more

The Social Cost of Carbon: Not Too Speculative for NEPA

Earlier this week, the Judge Donald Malloy of the District Court for the District of Montana granted summary judgment to the Montana Environmental Information Center on several of its claims alleging that the Office of Surface Mining… more

California Hospitals Successfully Beat Back Medicaid Payment Cut

Almost a decade ago, California submitted a State plan amendment (SPA) to the Centers for Medicare and Medicaid Services (CMS) that would retroactively implement a ten-percent rate reduction in outpatient services provided to Medi-Cal… more

OCIE Provides Insight into Issues Identified in Recent Cybersecurity Sweep

The National Exam Program of the SEC’s Office of Compliance Inspections and Examinations (OCIE) recently published its observations from the second generation of its Cybersecurity Initiative. It reported overall improvement in firms’… more

New Favorable Risperdal Decisions

Risperdal, an antipsychotic drug prescribed to treat serious mental conditions – schizophrenia, manic depression, and autism – allegedly causes some male users to develop abnormal breast tissue growth. Particularly when compared to the… more

DOE Imposes Data Security Requirements on Colleges and Universities

Do you have a written data security program in place to meet federal requirements? In the last year, the Department of Education (DOE) released guidance in the form of a “Dear Colleague” letter emphasizing the importance of data… more

Visual Memory LLC v. NVIDIA Corp. (Fed. Cir. 2017)

When considering the patent-eligibility of claims, size usually matters. Claims that are longer and recite more detailed inventions tend to be more likely to survive 35 U.S.C. § 101 challenges than those that are shorter and high… more

New Jersey Appellate Court Tosses Employee Arbitration Agreement

In Dugan v. Best Buy, an unreported decision (thus far) by the New Jersey Appellate court, we are again reminded of the requirement that an employee’s waiver of the right to sue contained in an employee-employer arbitration agreement… more

RCTC Secures TIFIA Funds for Important Highway Infrastructure Project - BB&K Advised on $152.2 Million TIFIA Loan

Best Best & Krieger LLP was part of a team that advised and counseled the Riverside County Transportation Commission in its successful effort to secure a $152.2 million loan from the U.S. Department of Transportation through the newly… more

EMTALA Settlement Highlights Continuing Challenges for Hospitals

After 30 years as a fixture in the federal healthcare regulatory landscape, the Emergency Medical Treatment and Labor Act—more commonly known as EMTALA—has been in the news again. In the past year, the U.S. Department of Health and… more

Court Vacates Arbitration Award Due To Evident Partiality Of Panel, But Parties Must Re-Arbitrate Matter Before Same Arbitral Forum

In a dispute between the Washington Nationals, the Baltimore Orioles, and affiliated parties regarding the value of broadcasting rights for Nationals games, an appellate court has affirmed a trial court order vacating an arbitration… more

Retaining a “Risky” Third-Party

Every company has done it. Chief Compliance Officers have had to hold their respective noses and push forward with due diligence to retain a risky third party. Rather than reject the third party, a CCO convinces him or herself that… more

“Weight” a Minute – Upon Further Review Those Claims Are Not Indefinite

Commission Opinion, Certain UV Curable Coatings For Optical Fibers, and Products Containing the Same, Inv. No. 337-TA-1031 (August 11, 2017) (ITC) - We previously posted – “Weight” a Minute- Those Claims Are Indefinite – about… more

[Video]Day 11 of One Month to More Effective Continuous Improvement-the Desktop Risk Assessment

Another mechanism to facilitate continuous improve comes from ideas around risk assessments. Both the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) make clear the need for a risk assessment to inform your… more

[Video]Leadership Lessons from Dunkirk

In this episode Richard Lummis and I consider the movie Dunkirk and the leadership lessons which can be drawn from the movie and historical events. If you have not seen it, I would suggest you go to see what I believe is the summer’s… more

Department of Justice Pilot Program Will Focus on Opioid Fraud and Abuse

On August 2, 2017, Attorney General Jeff Sessions announced the formation of the Opioid Fraud and Abuse Detection Unit and a new Department of Justice (DOJ) data analytics program to combat opioid-related fraud and abuse. The… more

Your Litigation Hold Must Be Generally Broad And Specifically Tailored

In Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D (E.D.N.C. June 7, 2017), Magistrate Judge Robert B. Jones, Jr., denied Plaintiff Eshelman’s motion seeking a jury instruction in response to Puma Biotechnology Inc.’s (“Puma”)… more

District Court Finding of Ineligible Subject Matter Reversed in VISUAL MEMORY LLC v. NVIDIA CORPORATION August 15, 2017

In VISUAL MEMORY LLC v. NVIDIA CORPORATION, dated August 15, 2017, the Federal Circuit found an improved memory system to be patent eligible under 35 U.S.C. Sec. 101, despite the fact that the improvement resides at least in part in… more

Wrap-Up of Federal and State Chemical Regulatory Developments, August 2017

Section 5 of the Toxic Substances Control Act (TSCA) addresses new chemical notifications and, as such, is chemical innovation’s regulatory gatekeeper. The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg)… more

Delaware’s Escheats Law Faces Due Process Challenge

In 2015, following Delaware’s commencement of an unclaimed property audit of Plains All American Pipeline, that holder initiated a lawsuit in the U.S. District Court for the District of Delaware seeking declaratory judgment that the… more

Why The Chicago And Cook County Paid-Sick-Leave Ordinances May Apply To Your Organization

Paid-sick-leave ordinances (PSLOs) became effective in the City of Chicago and Cook County on July 1, 2017. The PSLOs require employers to grant paid sick leave to employees on terms more generous than what most employers have… more

FDA Approving Orphan Drugs At A Record Pace

It is only August, but the U.S. Food and Drug Administration (FDA) is on track to set a record for orphan drugs approved this year. At last count, 42 orphan drugs have been approved between January 1, 2017 and August 9, 2017… more

U.S. International Trade Commission Persists with Remedy for PTAB-Invalidated Patent

The U.S. International Trade Commission has declined to rescind remedial orders blocking importation of products found to infringe two patents that were recently found invalid by the Patent Trial and Appeal Board of the U.S. Patent and… more

New York City Companies: Freelance Isn’t Free

Action Item: The Establishing Protections for Freelance Workers Act (the “Freelance Isn’t Free Act”) became effective on May 15, 2017. The Freelance Isn’t Free Act imposes specific requirements on companies located in New York City… more

Worth Another Look: Marijuana, Phase 2

In January of 2017, the National Conference of State Legislatures (NCSL) published a list of the top 10 issues that will be before state legislatures across the nation this year. While we’re just over a quarter of the way through the… more

Carter v. The Dial Corporation: The First Circuit Washes Its Hands of Clarifying Ascertainability in Class Actions

We previously wrote about the split among the circuit courts of appeal over the ascertainability requirement for class certification and whether self-identifying consumer affidavits—e.g., an affidavit in which a consumer attests that… more

Renegotiation Of NAFTA Can Start This Week

President Trump can officially begin renegotiating NAFTA today, August 16th. The negotiation process can only start 90 days after President Trump officially notified Congress of this intention, which took place on May 18th… more

USCIS Releases Updated I-9 Employment Eligibility Verification Form

Last month, the U.S. Citizenship and Immigration Services published a new version of the I-9 Employment Eligibility Verification Form. The Form I-9 is used by employers to verify the identity and employment authorization of all new… more

DOL May Delay Implementation of Fiduciary Rule

The Department of Labor in a brief filed in a Minnesota lawsuit on August 9, 2017 revealed that DOL had submitted to the Office of Management and Budget a proposal to delay the implementation of remaining parts of the DOL fiduciary… more

Blog: SEC Approves NYSE Amendments Requiring Notice Related To Dividends And Stock Distributions, Even If Outside Of NYSE Trading Hours

On August 14, 2017, the SEC approved a rule change that amended the NYSE Manual to require listed companies to provide notice to the NYSE at least ten minutes before making any public announcement with respect to a dividend or stock… more

Federal Reserve and FDIC Extend Deadline for Nineteen Foreign Banks and Two Domestic Bank Holding Companies to File Living Wills

On August 8, 2017, the Federal Reserve Board and Federal Deposit Insurance Corp. extended the deadline for 19 foreign banks and two domestic bank holding companies to file their next round of “living wills” detailing how they can be… more

Whack-A-Mole Continues: Latest Attempts To Slap Down Trademark Scammers

Trademark professionals often warn our clients to be skeptical when they receive official seeming bills or notices offering pricey and unneeded trademark related services. These scams have been around for as long as I have been… more

Convergys Corporation and LogistiCare Solutions, Incorporated v. NLRB – The Fifth Circuit Considers Class and Collective Action Waivers Without Arbitration Agreements

The U.S. Court of Appeals for the Fifth Circuit decided two cases considering the impact of the National Labor Relations Act (NLRA) on class or collective action waivers required by companies for their applicants and employees. The… more

Big Tax Court Win for Eaton in Canceled APA Case

In a significant taxpayer victory, the Tax Court, in a memorandum decision, has ruled in Eaton Corp. & Subsidiaries v. Commissioner that the IRS’s decision to cancel Eaton Corporation’s two advance pricing agreements (APAs) was an… more

European Parliament Committee Publishes Study on the Legal Implications of Brexit

On August 9, 2017, a policy department of the European Parliament (“EP“) published a Study requested by the EP’s Committee on Internal Market and Consumer Protection (“IMCP“) on the “Legal Implications of Brexit: Customs Union… more

Allegations of Misclassification Are Insufficient to Demonstrate Commonality and Typicality According to California Court of Appeal Decision

The California Court of Appeal for the Fourth District held that misclassification alone does not establish liability for overtime violations, and, thus, the fact that members of a putative class were classified as exempt was not… more

Changes In FAM May Make It More Difficult For Students With Pending H-1B Cases To Travel

The Department of State has revised its guidance for Consular Officers on the issuance of student visas, emphasizing that the officer must be “satisfied that applicant intends to depart [the U.S.] upon completion of the approved… more

NIST Issues New Password Security Recommendations: Keep It Simple, Long And Memorable

The United States National Institute for Standards and Technology (NIST) has issued new guidelines for creating secure passwords. NIST guidelines, which are directed to “federal government systems,” often become best practice… more

AD-ttorneys@law

Back in February, VIZIO, one of the world’s largest manufacturers of “smart” televisions, reached a $2.2 million settlement with the Federal Trade Commission (FTC) and the New Jersey attorney general’s office. The company had been… more

Is That Regulation Affordable? If It’s Under the Safe Drinking Water Act, It Better Be

You open your mailbox. There’s your monthly water bill. Inside, you notice it’s gone up nearly $500—but your use hasn’t changed. How could this be? And maybe more important, can you afford it? This is an essential question… more

ISDA Considers the Suitability of Swaps Documentation to the Blockchain

On August 3, 2017, the International Swaps and Derivatives Association (“ISDA”) released a whitepaper that considers whether derivative contracts could operate on a blockchain (the “Whitepaper”). The Whitepaper, titled “Smart Contracts… more

News Round Up - August 2017

SEC Permits Draft Registration Statements for All Initial Public Offerings and Direct Listings - On June 29, 2017, the Securities and Exchange Commission (SEC) announced that the Division of Corporation Finance will permit all… more

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