Latest Updates

Section 4980H Large Employer Penalties – IRS Signals the Health Coverage Penalties Remain in Force

Many employers were hopeful that the Code Section 4980H penalties would be repealed now that Republicans control Congress and Trump is in the White House. To date, that has not happened, nor has the IRS announced it will not enforce… more

Delaware Court Of Chancery Orders Specific Performance, Finding Plaintiff Did Not Breach Its Contractual Obligation To "Reasonably Cooperate"

On September 11, 2017, Chancellor Andre G. Bouchard of the Delaware Court of Chancery ordered defendant, Comdata, Inc. (“Comdata”), to specifically perform under, and pay damages for its termination of, its merchant agreement with… more

Maine Supreme Court Hears Oral Argument in Two Workers’ Compensation Matters Involving Old-age Social Security Offset and Medical Marijuana

The Maine Supreme Court heard oral argument in two workers’ compensation cases on September 13, 2017. In Victor Urrutia v. Interstate Brands International, WCB 16-524, an Administrative Law Judge ordered that the employer and… more

Client Alert: Supreme Court Settles Debate in Florida in Favor of Protection of Referral Sources Under Non-Compete Statute at Least in Some Circumstances

On September 14, 2017, the Florida Supreme Court issued a unanimous opinion in consolidated cases White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, SC Appeal No. SC 16-28 and Americare Home Therapy, Inc., v… more

A Pending Supreme Court Ruling Can’t Create a Claim that Doesn’t Currently Exist

After hearing oral argument at confirmation on August 30, 2017, the bankruptcy court for the Western District of Pennsylvania issued a written opinion in In re rue21, inc., et. al., Case No. 17-22045-GLT (Bankr. W.D. Pa. September 8… more

California District Court Denies Dismissal Of Securities Fraud Class Action, Finding Public Information Is Not Immaterial As A Matter Of Law

On September 6, 2017, Judge Andrew J. Guilford of the Central District of California denied motions to dismiss a putative securities class action asserting claims under Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and… more

Athletes and Employees Speak Out: Do Your Employment Practices Drop the Ball in Addressing Diversity, Controversial Speech, or Tensions at Work?

With the 2017-18 National Football League (NFL) regular season and National Basketball Association (NBA) pre-season underway, many spectators are excited to don their favorite players’ jerseys and cheer on their teams. Yet in recent… more

Avoid Scams and Ensure Tax Deductions When Donating to Hurricane Relief

In the wake of Hurricanes Harvey and Irma, you may be looking to make a charitable donation to support relief efforts. With dozens of organizations accepting donations, it can be difficult to know (1) whether you are donating to a… more

California Environmental Law & Policy Update - September 2017 #3

Environmental and Policy Focus - States sue Trump administration over fuel economy fines - ABC News - Sep 11 - New York, California, and three other states are suing the Trump administration, saying it must put in place… more

USCIS Resumes Premium Processing for Cap Subject H-1B Petitions

As of Tuesday, September 19, 2017, the U.S. Citizenship and Immigration Services (USCIS) resumed accepting requests for premium processing for cap subject petitions. The process is only available for pending petitions, not new… more

CHMP Adopts Positive Opinions on BI’s CYLTEZO® and Samsung Bioepis’s ONTRUZANT®

On September 15, Boehringer Ingelheim (BI) and Samsung Bioepis each issued a press release announcing that the Committee for Medicinal Products for Human Use (CHMP) of the European Medicines Agency (EMA) has adopted a positive opinion… more

CMS To Expand Use of TPE Audits Nationwide by End of 2017

Perhaps lost amid the healthcare news coverage of competing proposals regarding “Medicare for All” and the repeal of Obamacare, the Centers for Medicare & Medicaid Services (“CMS”) last month announced the expansion of its Targeted… more

Proposed Legislation May Afford Broader Use of Regulation A

Earlier this month, the House of Representatives approved in a landslide vote the Improving Access to Capital Act (HR 2864), which would extend the use of Regulation A, an exemption from registration under the Securities Act, to public… more

A blockchain overview

Blockchain and distributed ledger technology offers significant and scalable processing power, high accuracy rates, and apparently unbreakable security at a significantly reduced cost compared to the traditional systems the technology… more

CMA Launches Market Investigation into Investment Consultants and Fiduciary Management Services

Concerns from the FCA about the investment consultancy and fiduciary management services market lead the CMA to undertake a market investigation… more

Equity Incentive Plans targeted by Plaintiffs’ New Theory on Section 16 Short-Swing Profit Liability

Securities and executive benefits attorneys and public companies that maintain equity incentive plans should be aware of a new theory of recovery under the “short-swing profit rule.” Plaintiffs’ attorneys have recently asserted a new… more

NEPA, Energy, and Infrastructure – The Times They Are a Changin’?

For energy and infrastructure project developers, investors, and market participants, the past few weeks introduced increased regulatory uncertainty around the environmental reviews required as part of federal decision-making on… more

Review Of Special Litigation Committee Recommendations

Yesterday’s post limned the Nevada Supreme Court’s adoption of New York’s Auerbach standard of review for special litigation committee recommendations. In re Dish Network Derivative Litigation, 133 Nev. Adv. Op. 61 (2017). The… more

SALT Alert: MTC Announces Online Retailer Voluntary Disclosure Program with No Tax Payment Required

Normally, voluntary disclosure programs require payment of tax, and perhaps interest and penalties, during a specified lookback period. On September 1, the Multistate Tax Commission (“MTC”) announced a limited-time voluntary… more

Lessons from the Equifax Breach

As data breaches go, they don’t get much bigger than this. On Thursday, September 7, credit reporting giant, Equifax, reported that it had suffered a cyber-incident. 143 million consumer records, including names, birth dates, Social… more

2019 Diversity Immigrant Visa Lottery Program Announced

The U.S. Department of State (DOS) has announced the opening of the registration period for the 2019 Diversity Immigrant Visa Program. The Diversity Visa (DV) Lottery Program enables foreign nationals to apply for permanent residence… more

West Virginia Workplace Freedom Act: Free From Injunction

During the 2016 Regular Session of the West Virginia Legislature, Senate Bill 1 – otherwise known as the “West Virginia Workplace Freedom Act” – became law after that Legislature overrode a gubernatorial veto on February 12, 2016. Or… more

How is Hurricane Season Impacting Your Supply Contracts?

The 2017 hurricane season has already had a significant impact, with Hurricanes Harvey and Irma causing billions of dollars of damage in Texas and Florida. And more hurricanes are likely on the way… more

New Extra-Territorial UK Corporate Criminal Offence of Failing to Prevent Tax Evasion

A new corporate criminal offence of failing to prevent the facilitation of tax evasion takes effect on 30 September 2017. Corporates in both the UK and abroad will incur strict liability if their employees or other associated persons… more

Alert: Employers Should Distribute Updated Sexual Harassment Brochure or Poster

The California Department of Fair Employment and Housing (DFEH) recently issued an updated sexual harassment brochure (DFEH-185) (found here in English and here in Spanish), which replaces the prior version. The DFEH also provided… more

Health Alert (Australia) 18 September 2017

In This Issue: - Judgments; Legislation; and Reports. - Excerpts from Judgments: 6 September 2017 - Finding of inquest into death of Phillip William Michell - Phillip William Michell died on 11 July 2015 at the Gandarra… more

ATC Privatization: Bill Set to Union Calendar

The 21st Century Aviation Innovation, Reform, and Reauthorization (AIRR) Act — H.R. 2997 — proposes to transfer operation of the U.S. air traffic control system (ATC) from the Federal Aviation Administration (FAA) to a private… more

Blocked Shot? Employer Runs into Religious Issues with Mandatory Flu Vaccines

If you require your employees to get a flu shot, what do you do with the ones who refuse on religious grounds? As with so much in employment law, it depends. In Equal Employment Opportunity Commission v. Mission Hospital, a federal… more

Durable General Powers of Attorney

Durable General Powers of Attorney (“DGPOAs”) are fundamental estate plan documents used to allow a person (the “Principal”) to appoint another person (the “Agent”) to exercise certain powers on behalf of the Principal relating to… more

Health Update - September 2017

Using Telehealth as a Tool for Health System Integration - As discussed in our August Health Update article on patient engagement and digital health—the first in our new digital health series—the advent of digital and telehealth… more

Hurricane Recovery Contractors Beware

The level of devastation caused by Hurricanes Harvey and Irma in Texas and Florida, respectively, is estimated to have caused $150-200 billion in damages. With this devastation comes a multibillion-dollar recovery effort that will… more

All Star Priority Staffing Sued by EEOC For Disability Discrimination

Phoenix Staffing Agency Subjected Applicants to Invasive Pre-Offer Medical Questionnaire And Screened Applicants on the Basis of Their Responses, Federal Agency Charges - PHOENIX - All Star Priority Staffing, LLC, a Phoenix… more

Trump Administration Rescinds DACA

On September 5, 2017, Attorney General Jeff Sessions announced that the Trump administration would be eliminating the Deferred Action for Childhood Arrivals program (commonly known as “DACA”). The DACA program allowed for certain… more

USCIS Allows Premium Processing of Cap-Subject H-1B Petitions

Premium processing resumed on September 18, 2017. US Citizenship and Immigration Services (USCIS) announced on September 18, 2017 that it will once again allow premium processing of all H-1B petitions subject to the Fiscal Year (FY)… more

CFIUS Continues to Present an Obstacle to Chinese Acquisitions

On September 13, 2017, President Donald Trump issued an Executive Order blocking investment firm, Canyon Bridge Capital Partners Inc. (“Canyon”), from acquiring Lattice Semiconductor Corporation (“Lattice”). President Trump’s decision… more

Capital Formation Bills Advance in the Senate

Last week, the Senate passed three bipartisan bills that promote access to capital for small businesses and startups. The Senate bills, the House corollaries of which originally passed on March 9, 2017, include the following..… more

Recent Federal Actions to Streamline the NEPA Process

There has been a string of actions in the past few weeks addressing the federal government’s policy goal of streamlining the NEPA review process. Although a number of actions have been taken, it presently boils down to this: the… more

NIAC Warns That United States Is “Falling Short” Defending Critical Infrastructure; Recommends Eleven-Step Action Plan

The President’s National Infrastructure Advisory Council (“NIAC”) issued a draft report at the end of August assessing the U.S.’s cyber preparedness related to critical infrastructure… more

Ninth Circuit Deviates from Guidance and Other Authority on Tip Credits

We have previously discussed how the Department of Labor (DOL) often issues guidance to assist employers in applying and complying with the DOL’s various regulations. The federal courts generally follow this guidance when analyzing the… more

Google Goes 0 For 2 in its Request for Review of SCA Warrant Cases: eDiscovery Case Law

As Tom O’Connor and I discussed last week in our ACEDS webinar Key eDiscovery Case Law Review for First Half of 2017, Google was ordered earlier this year to produce foreign stored emails by judges in California and Pennsylvania in… more

Tips on Using the Remainder of 2017 to Prepare for the 2018 Proxy Season

With the 2017 proxy season over for most companies, attention now turns to preparing for 2018. There are a number of compliance "musts" to focus on, as well as items that can be addressed in 2017 to make the 2018 proxy season easier… more

Octane Fitness Hits the Showers: Federal Circuit Affirms Attorneys’ Fees Award in Landmark Case

After an eight-year battle through the Federal Courts, the fight over attorneys’ fees in Octane Fitness v. ICON Health & Fitness has likely reached its end with the Federal Circuit upholding the hotly disputed $1.6 million award to… more

Federal Judge Blocks President Trump’s Effort to Punish Sanctuary Cities

On Friday, United States District Court Judge Harry Leinenweber blocked the U.S. Department of Justice from refusing to provide federal grant money to localities that had enacted “sanctuary city” laws protecting immigrants from… more

All that Glimmers is Not [Insurance Agency] Gold

Diversity jurisdiction requires complete diversity among plaintiffs and defendants. While it is difficult for a defendant to remove a case with a nondiverse defendant, removal can be accomplished through the doctrine of fraudulent… more

Congress Takes Up FDA Over-The-Counter (OTC) Drug Regulation Reform

On September 13, the U.S. House of Representatives Energy and Commerce Committee’s Subcommittee on Health held a hearing to examine draft legislation to create a new user fee program and completely revamp the review process for… more

Clear and Convincing: DOE v. Jackson, Devos, and the future of campus sexual misconduct investigations

On September 7, 2017, Betsy DeVos, the Secretary of Education, announced that the United States Department of Education intended to revisit the “Dear Colleague” letter that the Department’s Office for Civil Rights, or “OCR,” issued on… more

Creating Worker Loyalty in the Gig Economy

With the rise of “Uber-ization” of the workforce in the gig economy, many companies, including Fortune 500 firms and IT companies, are adopting a freelance model for its workforce. It’s understandable why businesses would be drawn to… more

Being the Bearer of Bad News – How to Handle an Employee Termination Meeting

News that Anheuser Busch laid off approximately 400 workers in its so-called “The High End” division (that is, the group that is buying up craft brewers and brands) serves as the most recent reminder that the business realities of… more

Boycott Claims Dismissed for Applying Per Se Standard

Editor’s Note: In a recent “Antitrust Practice Group Bulletin” for the American Health Lawyers Association, Manatt Health examined the August 9, 2017, decision by a federal district court to dismiss Sherman Act group boycott claims… more

Hurricane Irma Client Alert: Addressing Environmental Releases and Obligations

As the cleanup begins in Florida, companies face challenges in meeting existing environmental obligations and addressing the environmental impacts of the storm… more

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