Latest Updates

SEC Cybersecurity Risk Alert Emphasizes Proactive Compliance and Ongoing Vigilance

On August 7, 2017, the Securities and Exchange Commission (SEC) released its latest cybersecurity risk alert, detailing findings from the examination of 75 broker-dealers, investment advisers and investment companies carried out by its… more

Court Holds That Self-Selection Of Emails By Employee Satisfies Discovery Obligations

In Mirmina v. Genpact, LLC, Civil Action No. 3:16-CV-00614 (D. Conn. July 27, 2017), a federal court in an employment discrimination matter denied the plaintiff’s motion to compel discovery, finding that the defendant’s reliance on an… more

Post-Brexit European Citizens' Rights Are Up for Negotiation

In the second round of negotiations for the U.K. exiting the European Union, the question of what rights citizens of the European Union and U.K. will have in the other’s territory after the withdrawal is being addressed. The U.K. and… more

Proposed Class Accuses Deutsche Bank of Improperly Using Funds for Legal Defense

On August 4, 2017, Royal Park Investments SA/NV filed a proposed class action against Deutsche Bank National Trust Co. (“DBNTC“) in the U.S. District Court for the Southern District of New York, claiming that DBNTC—in its capacity as… more

OSHA Suspends ITA Due To Security Breach

On Monday we blogged about the availability of the new OSHA Injury Tracking Application (“ITA”) that serves as the web portal for the submission of injury and illness information (300 Logs, 301 Forms and 300A Forms) under OSHA’s… more

Anadarko Region: Turns Out You Can Teach An Old Dog New Tricks

Those in the oil and gas industry know the producing regions well; we know right off of the top of our heads exactly where the Bakken, Niobrara, Permian, Marcellus, Utica and the Eagle Ford are when someone says those names. Visions of… more

FDA Clarifies Relationship Between Juice HACCP and the Preventive Controls Rules, Announces FSMA Enforcement Delays

August has been an active month for the Food and Drug Administration (FDA), as the agency released guidance affecting juice processors and importers, announced enforcement delays for Food Safety Modernization Act (FSMA) regulations… more

Career and Leadership Lessons

Working in the technology field for a collective 75+ years has taught us what we believe to be some important career lessons. What follows is a brief description of these lessons and how they have helped us in our careers. Have… more

Company's appeal stifled by order to pay sum into court (Goldtrail Travel Ltd v Onur Air)

When can a court take into account the wealth of a corporate appellant’s owner in deciding whether imposing a condition for payment of the judgment sum would stifle an appeal? The Supreme Court’s judgment in Goldtrail Travel v Onur Air… more

Infrastructure Acceleration Effort Takes First Step in Right Direction – President Signs Executive Order to Streamline Environmental Review Process

As has been widely discussed over the past decade, the U.S. transportation and energy infrastructures—from highways and bridges to airports, rail and ports to power generation and distribution—have seen a significant degradation and… more

Hair Today, Gone Tomorrow: Seventh Circuit Rejects Claim That Cosmetology Trainees Were Employees

Former cosmetology students are not employees entitled to pay under the FLSA and various state laws, the Seventh Circuit holds, rejecting the Department of Labor’s six-factor test but declining to adopt any bright-line test. Hollins v… more

Immigrant Visa Processing Changes – EB1 China/India Will Become Current; EB2/3 India And China Continue To Advance; EB2/3 Worldwide Will Remain Current; Visa Office On Priority Dates, Demand, And Predictions

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various… more

Interim Study Committees Set to Meet This Week

In the May 25 meeting of the Indiana Legislative Council, council leadership and members assigned topics to study in interim study committees. Those committees are set to start meeting this week. The committee meetings on the assigned… more

Ninth Circuit Holds That Consumer Alleging FCRA Claim against Spokeo Sufficiently Pled a Concrete Harm to Confer Article III Standing

Action Item: On remand from the United States Supreme Court, the United States Court of Appeals for the Ninth Circuit held that a consumer’s allegations that the operator of a website reported inaccurate information about him are… more

ESMA Publishes Responses to June 2017 Consultation on RTS Trading Obligations for Derivatives under MiFIR

On August 10, 2017, the European Securities and Markets Authority (“ESMA“), published responses to its June 2017 consultation on trading obligations for derivatives under the Markets in Financial Instruments Regulation (Regulation… more

GDPR Update: Data Processors (Dutch)

In this GDPR Update we address the position of the data processor. The position of the data processor will be analysed from the perspective of the processor itself, as well as from the perspective of the data controller… more

GDPR Update: Data Processors

Distinction between the data controller and the data processor - In this GDPR Update we address the position of the data processor. The position of the data processor will be analysed from the perspective of the processor itself, as… more

Inside WilmerHale’s Approach to Matter Management for IP

Matter management has become increasingly important for law firms and the clients that they serve. For clients, effective matter management can result in lower fees, more accurate estimates of costs, and better results, as their… more

Law Firm Marketers: "What Would You Say ... You Do Here?"

People skills and then some. Jenna Schiappacasse with inspired marketing and business development takeaways from 'Office Space.'… more

Purported Whistleblower Barred from Pursuing Illinois Retaliatory Discharge Claim

The Northern District of Illinois recently dismissed an Indiana-based employee’s claims for retaliatory discharge in violation of common law, focusing on the nature of the connection (or lack thereof) to Illinois and noting that the… more

Report of the JFTC/CPRC Study Group on Data and Competition Policy

On June 6, 2017, the Japan Fair Trade Commission ("JFTC") and the Competition Policy Research Center ("CPRC"), jointly published their "Report of Study Group on Data and Competition Policy" ("Report"). The Study Group kicked off in… more

Federal Circuit Says PTO Submissions can Waive Privilege to Future Communications

On July 20, 2017, the United States Court of Appeals for the Federal Circuit in In re OptumInsight denied OptumInsight’s petition for writ of mandamus on privilege waiver. The court held that the District Court for the Northern… more

Hospira Finds Mixed Results in Instituting IPRs Against Genentech Patents for Herceptin®

Hospira (owned by Pfizer) filed five IPR petitions against Genentech patents that Genentech asserted were directed to Herpceptin® (trastuzumab). The PTAB has now instituted IPRs in three of the five petitions and denied the other… more

Ninth Circuit: Employer’s Good Faith Reliance on HR Director is Not a Defense for Any I-9 Form Compliance Violations – Civil Penalty in the Hundreds of Thousands of Dollars

On August 7, 2017, the Ninth Circuit affirmed a several hundred thousand dollar penalty against a Phoenix, Arizona employer for violating several provisions of the United States Code related to an employer’s statutory requirement when… more

No man is an island, but Taiwan is, and so are Cabo Verde, Fiji, the Maldives, the Solomon Islands and Vanuatu

Taiwan is not a “PCT country,” so everyone knows that you can’t go the PCT national stage route to get a patent there. Instead, you have to make a separate filing directly in Taiwan within the one year “convention period,” which is… more

Delaware Bankruptcy Court Approves Separate Classification and Disparate Gifted Consideration Between General Unsecured Creditors

The Delaware Bankruptcy Court, in In re Nuverra Environmental Solutions, Case No. 17-10949 (Bankr. Del. July 24, 2017), confirmed a chapter 11 plan of reorganization despite separate classification and disparate gifted consideration… more

Uptick in University Enforcement of Intellectual Property an Indication of Stricter Enforcement Policy or a Passing Trend?

Universities have traditionally been reluctant to enforce their intellectual property (IP) against third parties. There are many reasons for this position, including adverse publicity associated with such suits, the time required to… more

First Look - Summer 2017: Issues and Developments in Insurance Law

The first step in any coverage analysis is determining who is an insured. Sounds easy, right? Not necessarily. As commentators have noted, “[t]here is a distinction between a ‘named insured’ and an ‘insured.’” Indeed, another… more

Ninth Circuit Rules That Hypothetical Preference Actions May Be Considered in Applying the Greater Amount Test

In Schoenmann v. Bank of the West (In re Tenderloin Health), 849 F.3d 1231 (9th Cir. 2017), a divided panel of the U.S. Court of Appeals for the Ninth Circuit recently addressed as a matter of apparent first impression whether or not a… more

Cutting Through The Half-Time Murk In "Failed Exemption" Cases

How does one calculate overtime pay due to plaintiffs who were erroneously treated as "white collar" employees exempt from the federal Fair Labor Standards Act's minimum-wage and overtime requirements? Court decisions continue to… more

Federal Courts’ Dismissal of Pre-emption Challenges to Illinois and New York ZEC Nuclear Subsidies Returns Focus to FERC

On July 14, 2017, and July 25, 2017, the U.S. District Court for the Northern District of Illinois and the U.S. District Court for the Southern District of New York, respectively, dismissed challenges to the Illinois and New York… more

Putative Class Complains that Annie’s “Strawberry Fruit Snacks” Lack Strawberries

On August 1, 2017, plaintiff Raymond Alvandi filed a putative class action in California federal court against Annie’s, Inc., seeking damages and injunctive and declaratory relief. Alvandi alleges that Annie’s misrepresented the… more

Section 553 of the Bankruptcy Code Preserves Rather Than Creates Setoff Rights

In Feltman v. Noor Staffing Grp., LLC (In re Corp. Res. Servs. Inc.), 564 B.R. 196 (Bankr. S.D.N.Y. 2017), the bankruptcy court considered whether section 553 of the Bankruptcy Code creates a right of setoff when no such right is… more

CFTC Case Updates: Settlement Highlights Agency’s New Premium on Cooperation; 7th Circuit Upholds Criminal Spoofing Conviction

On August 7, 2017, the Commodity Futures Trading Commission (CFTC or Commission) announced a settlement for a civil penalty of $600,000 with the Bank of Tokyo Mitsubishi UFJ, Ltd. (BTMU) for alleged spoofing violations, with Director… more

Arrested Development? After year of defeating development, could LI be the ‘Land of No’ no longer?

This Long Island Business News Article quotes Farrel Fritz' Attorney Anthony Guardino. Long Island has long been a tapestry of small towns from Manhasset to Montauk, with local regulations that seem designed to help keep each… more

China’s Cyberspace Administration announces first state level investigations under Cybersecurity Law

China’s Cyberspace Administration announced that it has commenced investigations into Tencent Wechat, Sina Weibo and Baidu Tieba for violation of China’s Cybersecurity Law late last week (11 August 2017). More particularly, the… more

UK Supreme Court upholds fitness for purpose warranty

Earlier this month the UK Supreme Court in MT Højgaard AS v E.ON Climate and Renewables UK Robin Rigg East Ltd [2017] UKSC 59 held that a contractor had warranted a twenty year service life, via a fitness for purpose obligation… more

Patent Term Extension Considerations for BioPharma Patents

Time spent on securing marketing approval for regulated products, such as pharmaceuticals, medical devices and agrochemicals effectively shortens the term of patent protection during which an innovator can recover its investment… more

Supreme Court to Review Digital Privacy (Part 2)

In our previous installment, we looked at the issues related to Carpenter. That discussion can be found here. Another case involving the Stored Communications Act may also come before the U.S Supreme Court in the upcoming October… more

Legislature Authorizes, But Limits, Water and Sewer Impact Fees

Controversy and litigation have erupted in North Carolina in recent years with regard to water and sewer impact fees levied by cities and counties on new real estate development. The fees are authorized in "local bill" State… more

PTAB Denies Discovery on Chipsets Purportedly Related to Proper Interpretation of Reference

In Semiconductor Components Industries, LLC v. Power Integrations, IPR2016-00809, Paper 65 (PTAB Aug. 4, 2017), the PTAB denied the patent owner’s request for authorization to serve requests for production seeking documents and things… more

Saudi Arabia’s New Implementing Regulations of Arbitration Law

On May 22, 2017, the Saudi Council of Ministers passed the Implementing Regulations of the 2012 Arbitration Law. The Implementing Regulations came into force on June 9, 2017, when they were published in the Saudi Official Gazette… more

What In-House Counsel Need To Know About Their Form Arbitration Clauses – Ten Foundation Questions

Most arbitrations, and all commercial arbitrations, are creations of contract, and courts are generally required to enforce an arbitration agreement as they would any other contract. Therefore, the terms of the arbitration clause in… more

Defending Employers’ Access to Legal Advice: Comments Filed Supporting DOL’s Rescission of Controversial Persuader Rule

August 11, 2017, was the deadline for interested parties to submit comments regarding the U.S. Department of Labor’s (DOL) proposal to formally rescind its controversial persuader rule, which was issued in 2016 under the Obama… more

Bringing Back the Oldies – Legislation for Equal Treatment in the Music Industry

On July 19, 2017, the CLASSICS Act (H.R. 3301 – Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act) was introduced into the House, the purpose of which is to provide copyright protection… more

Under The Public Records Act, A Losing Party May Be The Prevailing Party

When the California legislature enacted the Public Records Act, it declared “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state”. Gov’t Code §… more

[Video]Compliance into the Weeds-Episode 50, Where's the Upside?

In this very topical episode Matt Kelly and I take a deep dive into the administration’s response to the events over the weekend in Charlottesville and what it means for business leaders, compliance practitioners and others going… more

Lease-Leaseback Battle Continues as First District Court of Appeals Sides with Contractor and School District

Earlier, we wrote about Davis v. Fresno United School District (2015) 237 Cal.App.4th 261, a Fifth District California Court of Appeals decision that sent shock waves through the school construction industry and raised questions… more

Goodbye Lois

I treat people the way I want to be treated and I carry a grudge against the select few who didn’t treat me that well. For 7 years now, I’ve made the Managing Attorney of my old law firm as a punching bag of sorts. Sorry, Lois… more

TPS Holders: Time to Review Your Status and Future

The Catholic News Service (“CNS”) reported a new study that assessed the economic impact of the administration’s plans related to removing individuals in the United States under Temporary Protected Status (TPS)… more

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