Latest Updates

Higher Education Highlights - Summer 2017

Professor Deprived of Due Process Through Salary Reduction - Due process with respect to an employee’s property interest in employment is a vitally important consideration at public institutions, and, as a recent case from the… more

Supreme Court Holds That Securities-Law Statutes of Repose Are Not Subject to Class-Action Tolling

The U.S. Supreme Court ruled this week that the pendency of a securities class action does not allow individual class members to opt out of the class and file separate actions under the Securities Act of 1933 more than three years… more

U.S. Supreme Court Holds Trademark Registrations Are Free to Disparage

Justice Alito’s summary opinion announced in Court Monday morning, in what has come to be known as the Slants case (Matel v. Tam, 582 U.S. ___ (June 19, 2017), was short and sweet but the trademark applications we can expect in the… more

President Nominates Two to the NLRB: Will Newcomers Bring Much-Needed Change to the Agency?

On June 27, 2017, President Trump nominated labor attorney William J. Emanuel to fill one of two vacancies to the National Labor Relations Board (NLRB). This follows closely on last week’s nomination of Marvin E. Kaplan to fill the… more

FERC Underestimates its Authority: Recoupment vs. Refund of Unjust & Unreasonable Rates

The Federal Energy Regulatory Commission (FERC) has the authority to order a public utility to refund to its customers rates that FERC determines to be unjust and unreasonable. But what if FERC later determines that the public utility… more

Supreme Court Will Decide Whether Internal Whistleblowers Can Bring Dodd-Frank Retaliation Claims

The Dodd-Frank Act, passed in 2010, includes a new cause of action for whistleblowers who claim that their employer retaliated against them for reporting wrongdoing. But it’s not yet certain whether a whistleblower who blew the whistle… more

Supreme Court Decides to Hear Travel and Refugee Ban Case and Clarifies Enforcement of Executive Orders Pending Hearing

On June 26, 2017, the Supreme Court consolidated the two key cases in the travel and refugee ban litigation sparked by President Trump’s executive orders and decided that the case will be heard during the first session of the October… more

Future of Federal Student Loans Takes Center Stage at the Education Department

Federal student loans have taken on a newfound importance as the Trump Administration seeks to re-envision the role of the federal government in providing funding for higher education. Proposed changes and items under consideration… more

Senate Releases Repeal and Replace Legislation on ACA: The Better Care Reconciliation Act of 2017

After weeks of secrecy, the Senate has released a discussion draft of legislation that is the counterpart of the American Health Care Act (AHCA) previously passed by the House. The Senate legislation, entitled the Better Care… more

Supreme Court allows Trump Administration to Partially Enforce Travel Ban

The U.S. Supreme Court issued an order today that granted the Trump Administration’s petitions for certiorari and partially granted the Administration’s motions to stay injunctions of the so-called “travel ban.” This means that the… more

[Video]Day 20 of One Month to Better Investigations and Reporting-Staying Out of Hot Water in Other Jurisdictions

In an article entitled “How to Launch and Operate a Legally-Compliant International Workplace Report Channel” or in compliance parlance, a hotline, author Donald Dowling of the law firm of White and Case, provided a useful guide to… more

An Overview of the CFTC’s Modernized Recordkeeping Requirements

On May 23, 2017, the U.S. Commodity Futures Trading Commission unanimously approved a revamped CFTC Rule 1.31, which specifies the form and manner that records must be kept by commodities market participants, and a slight modification… more

Department of Labor Moves To Rescind “Persuader Rule” with Notice of Proposed Rulemaking

On June 12, 2017, the U.S. Department of Labor’s (“DOL”) Office of Labor-Management Standards published a notice of proposed rulemaking regarding its intention to rescind the so-called “persuader rule,” moving the DOL one step closer… more

The Circuits are Split: The Ambiguity of a Regulation May Not ‘Foreclose a Finding of Scienter’ in False Claims Act Cases

A split now exists among the circuit courts as to whether a defendant’s assertion of a “reasonable interpretation defense” precludes a finding of a “knowing” mens rea under the False Claims Act (the “FCA”). On May 26, 2017, a… more

USCIS Resumes H-1B Premium Processing for Conrad Waiver Program Physicians

On Monday, U.S. Citizenship and Immigration Services (USCIS) resumed premium processing for all H-1B petitions filed for physicians under the Conrad Waiver program, as well as interested government interagency waivers… more

For Insurance Industry, Post-Brexit Questions Remain

Last week, the British government and the European Union began Brexit talks, which will continue for the next 18 months. Meanwhile, Brexit’s implications for the financial services and insurance industries remain unknown. To gain… more

U.S. Supreme Court Grants Cyan's Petition for Certiorari, to Decide Whether Certain Securities Class Actions May Be Brought in State Courts

On June 27, 2017, the Supreme Court of the United States granted a petition for certiorari filed by Wilson Sonsini Goodrich & Rosati on behalf of its clients, Cyan, Inc. and its officers and directors. The question before the Supreme… more

Battle of the Bands and the Clothiers

The famous Coachella Music Festival is held every April in Indio, California. This year Beyoncé, Radiohead, Lorde and several DJs (including DJ Snyder, DJ Kahleel, DJ Shadow) performed… more

Pleading Willfulness – One Year Post-Halo

Just over a year ago, the Supreme Court issued its decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016). Halo abrogated the Federal Circuit’s two-part willfulness test, which the Federal Circuit laid… more

Ransomware Cyber Attack Shuts Down the Computer Systems of Airlines, Banks, Utilities and a Major Global Law Firm. Are You Protected?

On June 27, 2017, multiple news sources are reporting that a ransomware attack called Petrwrap/Petya reportedly immobilized the computer network of multiple international businesses, including those of a major global law firm… more

Canada’s New Energy Efficiency Regulations Come Into Force

On June 28, 2017, the federal Energy Efficiency Regulations, 2016 (New Regulations) came into force, repealing and replacing the original Energy Efficiency Regulations (Regulations). The New Regulations increase the energy efficiency… more

GAO Makes Rare Finding of Error in Past Performance Evaluation, and Underscores Incumbents Are Not Automatically Entitled to Highest Technical Rating

The GAO recently sustained a protest challenging the U.S. Coast Guard’s evaluation of past performance in a task order competition to obtain information technology support services under a multiple-award IDIQ enterprise acquisition… more

President Trump Throws His Support Behind FAA Privatization Effort

President Trump's entry into efforts to privatize the nation's air traffic control (ATC) system has breathed new life into an idea championed by House Transportation & Infrastructure Committee Chairman Bill Shuster (R-PA). Spinning off… more

The “New Flamenco”

The Supreme Court has today handed down Judgment allowing Owners’ appeal in the “New Flamenco”. For those of you who are not familiar with the case, Charterers were in repudiatory breach of the Charterparty, which Owners accepted as… more

Does BREXIT Really Matter to Me in the United States?

Well, if you are a company doing business in Europe and have registered your trademarks, it will. As you know, the United Kingdom (UK) has decided to leave the European Union. This has implications as regards the protection under your… more

DOJ Directive Threatens Availability of Penalty Mitigation Approach

A June 5, 2017, Department of Justice (DOJ) policy directive threatens the ongoing availability of Supplemental Environmental Projects (SEPs) in civil environmental settlements. SEPs have traditionally provided a means by which… more

Here We Go Again - The Senate’s Health Reform Bill

Late last week the Senate released its version of a health reform bill (the “Better Care Reconciliation Act of 2017” or the “Senate bill”) to fix the Patient Protection and Affordable Care Act (the “PPACA”). The Senate Bill like the… more

OSHA Delays Online Record-Keeping Rule and Opens Proposal for Comment

On June 27, 2017, the Occupational Safety and Health Administration (OSHA) proposed to delay the compliance date of the Obama-era regulation requiring electronic submission of injury and illness records and online public access to such… more

STRONGER Patents Act Proposes Substantial Changes to AIA Trial Proceedings

On September 21, 2017, Senator Chris Coons (D-Del.) introduced the STRONGER Patents Act of 2017 in the Senate. STRONGER is an acronym for “Support Technology and Research for Our Nation’s Growth and Economic Resilience.” The bill was… more

Court Dismisses Class Action Claims Based on Afghanistan Labor Code

United States lawsuits involving the law of Afghanistan are uncommon, but it is common for employees to bring suit based on work done abroad generally, and not just in that one country. A recent case, however, illustrates that while… more

Increased Lifeline Minimum Service Standards and Budget Cap for 2018 Announced

In 2016, the FCC adopted its Lifeline Modernization Order, in which it introduced Lifeline subsidies for the provision of broadband services, and imposed graduated minimum service standards for Lifeline-supported broadband services. In… more

Ninth Circuit Narrows Already Slim Exception to Rule Barring Post-Removal Amendments to Avoid CAFA Jurisdiction

A plaintiff will rarely be permitted to amend its class action complaint after removal to avoid federal jurisdiction under the Class Action Fairness Act (CAFA). That is the takeaway from the Ninth Circuit Court of Appeals’ decision in… more

GAO: Agency Reasonably Concerned Over Lack Of Price Increases

We often discuss the need for government contractors to Read and React when responding to a proposal: (1) Read the RFP and understand all of the requirements and limitations and (2) React to the RFP’s evaluation scheme by playing the… more

House Committee Issues Letter to HRSA Requesting Audit Documentation Regarding 340B Drug Pricing Program

The House Committee on Energy and Commerce (Committee) sent a letter dated June 1, 2017, to the Health Resources and Services Administration (HRSA) Administrator expressing concerns about the growth and oversight of the 340B Drug… more

What Can We Infer When Chief Justice Karmeier Asks the First Question in Criminal Cases?

Yesterday, we reviewed the data on Chief Justice Karmeier’s questions in civil cases between 2008 and 2016. Today, we take a look at a different side of the data – what can we infer when the Chief Justice asks the first question to… more

Pennsylvania Supreme Court Completes Revival of Environmental Rights Amendment

A 5-to-1 majority of the Pennsylvania Supreme Court recently confirmed that the text of the Environmental Rights Amendment to the Pennsylvania Constitution (Article 1, Section 27) is the appropriate standard of judicial review of the… more

House Bill Would Narrow Orphan Drug Exception

A recent House bill, titled the "Closing Loopholes for Orphan Drugs Act," would narrow the exception for orphan drugs in the federal 340B Drug Pricing program. Representative Peter Welch (D-VT) introduced the bill on June 13, 2017… more

Is the Senate's "Better Care" a Better Way to Repeal Obamacare?

On June 26, 2017, the U.S. Senate leadership released a “discussion draft” of The Better Care Reconciliation Act of 2017 (the “Better Care Act”) — i.e., legislation to repeal and replace the Affordable Care Act, better known by its… more

Three Considerations for Joint Venture Construction Projects

Construction industry participants seeking to diversify their projects or secure greater insulation from uncertain market conditions frequently search out risk mitigation opportunities. One common way to achieve these goals is to work… more

Department of Justice Reverses Course on Class Action Waivers

In the ongoing debate over whether class action waivers in employee arbitration agreements violate the National Labor Relations Act (“NLRA”), the Department of Justice (“DOJ”) has done an about-face–switching stances from pro-employee… more

OSHA Delays Electronic Report Rule

This morning OSHA issued a press release announcing that it would be delaying the compliance date for its rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposes pushing… more

OSHA Considers Extending Crane Certification Deadline

The Advisory Committee on Construction Safety and Health (ACCSH) of the Occupational Safety and Health Administration met on June 20, 2017, to learn about and give recommendations on OSHA’s proposed rule to extend the enforcement date… more

Patent Applicants Must Pay USPTO’s Legal Fees For Appeals To District Court Under 35 U.S.C. §145

Nantkwest, Inc. v. Matal, No. 2016-1794 (Fed. Cir. June 23, 2017). In a 2-1 panel decision, the U.S. Court of Appeals for the Federal Circuit has held that an applicant for patent who pursues an appeal to the U.S. District Court for… more

DOL Sends OT Request for Information to White House for Review

Yesterday, the DOL’s Wage & Hour Division (WHD) sent its anticipated Request for Information (RFI) on the overtime rule to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA). Review of the RFI by… more

Ransomware: How Can You Fight Back?

Ransomware is back in the news. Yet again, massive and not-so-massive corporate enterprises find themselves at risk of having their computer systems and records held hostage to internet raiders. And, in an added twist, this time… more

Landlords beware: Your trademark infringing tenant is your problem too

If a landlord learns that trademark infringement is occurring on its premises by one of its tenants and fails to stop further violations, the landlord may be held responsible by the trademark holder for damages relating to the… more

FTC Challenges North Dakota Healthcare Provider Merger

On Thursday, June 22, 2017, the Federal Trade Commission (“FTC”) and the North Dakota Attorney General filed a complaint challenging the merger of North Dakota providers, Sanford Health, Sanford Bismarck (together “Sanford”), and Mid… more

Disgruntled Employees and Other Internal Threats to Your Cyber Security

Baker Donelson's Data Protection, Privacy and Cybersecurity attorneys are pleased to continue a series of client alerts that address significant cyber-threats to your business and discuss ways you can protect your business with… more

Anthem Settles Data Breach Suit for Record $115 Million

Anthem Inc. has reportedly agreed to pay a settlement of $115 million to its customers that were affected by what is being called one of the largest data breaches in U.S. history… more

Florida Legislature Updates And Modernizes Florida's Fictitious Name Act

Florida Statute §865.09, known as the "Fictitious Name Act," requires any person or entity doing business in Florida under a name other than the person's legal name to register the alternate name, or "fictitious name", with the Florida… more

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