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Nutter Bank Report - January 2016

The Nutter Bank Report is a monthly publication of the firm's Banking and Financial Services Group. Headlines - 1. CFTC Issues Relief from Swap Clearing Requirements to Small Holding Companies 2. Federal Banking…more

The Value of Terms Limits: YouTube’s Broadly Defined TOS Does the Trick

Frequent readers of our blog will recall that in prior posts on companies such as Uber, Ashley Madison and Twitter, we have stressed the importance of having a robust terms of service (TOS) agreement. In many instances, TOS, if adeptly…more

FDIC Releases Paper on Cybersecurity

On February 1, the Federal Deposit Insurance Corporation (FDIC) published “A Framework for Cybersecurity,” an article that appears in the Winter 2015 issue of Supervisory Insights. The article discusses the cyber threat landscape and…more

Is the Washington Legislature Caching Out Noncompete Agreements? How This Change Might Affect Your Ability to Protect Your Business

For tech giants like Microsoft and Amazon, and any number of emerging tech companies, tech professionals are a hot commodity in the state of Washington. No doubt, the competition is fierce here in Seattle and within the greater tech…more

Foreign Films Take a TRIP to France

Tax Rebate Changes - In 2016, France increased its efforts to attract foreign films by loosening language restrictions and increasing the amount of tax rebates available for films that are shot in France. In the past, France’s Tax…more

Passing on the Business to the Next Generation: Not for Everyone

A recent article in The Economist (“The Reluctant Heir”) addressed the challenges in getting the next generation ready to take over the family business. These challenges are nothing new in the family business community. In fact, the…more

Want the government to give you credit for cooperating with their investigation? Get ready to certify your investigation disclosures

Late last week, the Wall Street Journal reported that the US Department of Justice's (DOJ's) fraud section is developing a process for settling companies to certify that they have disclosed fully all information about individuals…more

Food-Processing Sector May Be U.S. EPA’s Next Enforcement Target

Every three years, the United States Environmental Protection Agency (EPA) sets national enforcement initiatives to focus its civil and criminal enforcement resources on specific environmental issues. On September 15, 2015, EPA issued…more

An Evolving Frontier: The Use of Jury Research in Litigation

Years of work by your attorneys – research, analysis, document review and production, depositions, motions and painstaking preparation – ultimately can come down to this: a trial by jury, made up of a seemingly randomly-selected group…more

State Government Control of Local Water Systems

It is impossible to know the internal considerations of the North Carolina Supreme Court when it accepted for review the case of City of Asheville v. State of North Carolina and the Metropolitan Sewerage District of Buncombe County, __…more

He’s got 99 Problems, But a Breach Might Be One

In the wake of 2016, Jay-Z faces an $18 million lawsuit for his failure to publicly appear and promote his signature fragrance line, as he was contractually obligated. 2009 marked the start of a budding licensing relationship between…more

Catching up on developments posted on the blog

Some quick updates on stories I have been following: SENTENCING FOR DEADLY PAIN-MEDS DOC: An Orange County, CA., physician has been sentenced to 30 years to life imprisonment. She was convicted of murder for her reckless…more

SEC Approves FINRA’s Funding Portal Rules

On January 22, the Securities and Exchange Commission approved the Financial Industry Regulatory Authority’s funding portal rules and related forms for entities functioning as SEC-registered funding portals pursuant to “Regulation…more

High Volatility Commercial Real Estate: Loan Document Considerations

As of January 1, 2015, global Basel III regulations and the Dodd-Frank Wall Street Reform Consumer Protection Act required banks in the United States to comply with certain new capital rules and regulations. Among other…more

The WSGR Data Advisor - February 2016

With a new year come exciting new developments in the world of privacy and data protection. We are thrilled to announce the launch of the digital version of The WSGR Data Advisor. Please visit our site for the latest news and an…more

District Court Denies Motion to Dismiss under Section 101 Even Though Two Other District Courts Had Founds Patents Ineligible

In this patent infringement action, the Defendants filed motions for partial summary judgment of invalidity with respect to two of the patents at issue in the case. The defendants argued that two district courts had already found the…more

The Strategic Value of Transaction Insurance

When we provided our thoughts on representation and warranty insurance (RWI) this time last year (Getting a Deal to Closing with Transaction Insurance), we anticipated that RWI would continue to grow in prevalence in the Canadian…more

What's a "Yahoo"? An Object Lesson in Employer-Employee Relations

Can you mistakenly fire employees? According to recent media reports, Yahoo apparently did. News about Yahoo’s mix-up were reported earlier this week in various media outlets. As it turns out, as many as 30 employees have been let…more

CFPB Issues Guidance, and a Warning, to Institutions Reporting to Specialty CRAs

On February 3, 2016, in conjunction with a Field Hearing held the same day concerning deposit accounts, the Consumer Financial Protection Bureau (CFPB) issued a compliance bulletin on the duties of furnishers of information to maintain…more

Streamlining the Siting of Transmission in the West - Why Transmission and Renewable Energy Project Developers Should Care About DOE's New Proposed Rule

Early this month, the Department of Energy (DOE) issued notice (81 FR 5283) of a proposed rule aimed at streamlining the pre-application process for transmission developers to obtain federal authorization to construct and operate…more

Passport May Be Revoked If Owing More Than $50,000 in Taxes

On December 4, 2015, the Fixing America’s Surface Transportation Act (the FAST Act) was signed into law. Among other items, the FAST Act gives the Internal Revenue Service (IRS) and the Department of the Treasury power to authorize the…more

TCPA FCC Petitions Tracker

Kelley Drye’s Communications Practice Group presents this tracker of active Telephone Consumer Protection Act (“TCPA”) petitions before the Federal Communications Commission (“FCC”). With the recent increase in litigation regarding…more

Fair Lending Year in Review – 2015

2015 was an action-packed year for fair lending, including a long-anticipated Supreme Court decision on disparate-impact claims under the Fair Housing Act (“FHA”), record-breaking redlining settlements, a new round of indirect auto…more

Update on the SEC's MCDC Initiative

Many issuers and other obligors of tax-exempt bonds (Issuers) have asked about the status of the Municipalities Continuing Disclosure Cooperation initiative (MCDC). Much attention has been directed to the February 2, 2016…more

Blog: Want To Increase Company Performance? Increase The Proportion Of Women In Corporate Leadership

So says a new study from the Peterson Institute for International Economics. The results suggest that the presence of women in corporate leadership positions may improve firm performance and that “the magnitudes of the correlations…more

EPA Proposes to Add Vapor Intrusion Pathway Assessment to Superfund Listing System

Last week, we wrote about an audit that MassDEP is conducting of previously closed sites to look for high concentrations of TCE in soils and groundwater. The intent of the audit is to address potential vapor intrusion. The EPA has been…more

CIT Contains “Parts of” Provisions

On January 21, 2016, the Court of International Trade (CIT) agreed with Customs and Border Protection (CBP) and held that Container Store storage units were properly classified as base metal mountings in heading 8302 of the Harmonized…more

Changes to Minimum Standard Detail Requirements for Land Title Surveys Coming in February

The American Land Title Association (ALTA) and National Society of Professional Surveyors (NSPS) have announced changes to the standards for the minimum standard detail requirements for land title surveys of real property. The changes…more

Did You Catch that Hashtag at the Super Bowl?

Early in the game on Sunday night, Esurance ran a commercial announcing that it was giving away more than $1 million through a sweepstakes on Twitter. You may remember that Esurance made a splash with a Twitter-based sweepstakes…more

EEOC Retaliation Guidance Ups the Stakes for Manufacturers

I ended my January 21 “employment law predictions” post by writing, “One thing I can count on as these ‘Years of Change’ continue, expect something unexpected.” The EEOC made that prediction come true the same day when it published…more

ECB Publishes the Response of the Eurosystem to the European Commission’s Call for Evidence on the EU Regulatory Framework for Financial Services

On February 4, the European Central Bank (“ECB“) published a response of the ECB and the national central banks of member states of the eurozone (Eurosystem) to the European Commission’s call for evidence on the EU regulatory framework…more

New York Rescission Law Strikes Again: Lessons Learned From the Voiding of Heinz’s Product Contamination Insurance Policy

An increasingly popular tool in the insurer’s toolset is attempted rescission of the policy. This tool is particularly sharp if the law applicable to the construction of the policy is that of New York. Earlier this week, the United…more

Alberta Announces Modernized Royalty Framework

On January 29, 2016, the Alberta government released the Alberta at a Crossroads - Royalty Review Advisory Panel Report and announced that it will begin drafting a modernized royalty framework (MRF) based on all of the recommendations…more

Treasury and Commerce further relax US Cuba sanctions

On January 26, 2016, the Obama Administration released its third update to the US Cuba sanctions in the past two years. To effectuate these changes, the US Treasury Department’s Office of Foreign Assets Control (OFAC) further amended…more

Insurance Commissioner Calls For Thermal Coal Divestment And Disclosure

Late last month, California’s Insurance Commissioner announced that he had “asked all insurance companies doing business in California to voluntarily divest from their investments in thermal coal”. Thermal coal, also known as steam…more

CFTC Approves Derivative Clearing Organization Registration Order for Eurex Clearing AG

On February 1, the Commodity Futures Trading Commission issued an order granting Eurex Clearing AG registration as a derivatives clearing organization (DCO) under the Commodity Exchange Act (CEA). The order will allow Eurex Clearing to…more

A Word of Warning for Super Bowl Fans

Fans of the Denver Broncos are thrilled after they watched their vaunted defense dismantle the NFL’s highest scoring offense, the Carolina Panthers. With the Super Bowl high in full effect, fans of the Broncos are probably trying to…more

Buyer Beware (Again)—Art Dealer Charged with Selling Forged Paintings

As Super Bowl Sunday revealed that Ann Freedman has apparently settled claims against her in the first Knoedler trial over the creation of forged Abstract Expressionist paintings to whose orchestration Glafiria Rosales pleaded guilty…more

Questioning a Witness: Poor Questions Versus Good Ones

When conducting direct examination, you generally can’t ask leading questions, i.e., ones that suggest a particular answer. Evid C §§764, 767(a)(2). And, of course, you can’t ask objectionable questions. For inexperienced…more

Reminder: Certain U.S. Reporting and Compliance Obligations for Investment Advisers and Funds

The U.S. federal securities laws and the rules of U.S. self-regulatory organizations (such as the Financial Industry Regulatory Authority) impose certain reporting and compliance obligations on investment advisers and funds. Some of…more

Orrick's Financial Industry Week in Review

Financial Industry Developments - FHFA, Fannie Mae and Freddie Mac Announce Independent Dispute Resolution Program - On February 2, the Federal Housing Finance Agency (the "FHFA") announced that Fannie Mae and Freddie Mac…more

I Forgot to Respond to a Garnishment. Now What?

If you are a business owner and have employees, at some point you will receive a garnishment. Garnishment is a post-judgment process that allows a judgment creditor to acquire the judgment debtor’s assets (property or money). If the…more

Common Sense Prevails: State of Collapse Nonexistent Thirteen Years before Discovery of Decay

For years, property insurance policies that exclude rot damage have been called upon to cover rot because the policies extend coverage to “collapse”—an undefined term—caused by hidden decay, even if the structure remains standing and…more

Democratic Senators introduce bill to limit use of arbitration agreements

Democratic Senators Patrick Leahy and several other Democratic Senators have cosponsored a bill that would place new limits on the use of arbitration agreements. According to Senator Leahy’s press release, the “Restoring Statutory…more

Are kids’ connected toys secure enough?

If the Hello Barbie complaints weren’t enough, now it has been announced that researchers determined that the kids’ toys, the Fisher-Price Smart Toy Bear and the hereO GPS watch, had some serious security vulnerabilities. The Smart…more

FTC Announces Annual HSR Premerger Notification Threshold and Clayton Act Interlocking Directorate Thresholds Adjustments

On January 21, 2016, the Federal Trade Commission (FTC) announced that the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) thresholds will be increased. The FTC also announced that it has revised the thresholds that…more

Blood on the Tracks Hits No. 1 and the Lessons Learned from SciClone

On this week in 1975, Bob Dylan’s 15th studio album, Blood on the Tracks, reached the Number 1 album slot on the Billboard charts. This was in spite of no song rising above the 31st slot on the single charts. It came out in the final…more

EIOPA Publishes Consultation Paper on the Development of an EU Single Market for Person Pension Products

On February 1, the European Insurance and Occupational Pensions Authority (“EIOPA“) published a consultation paper on its advice on the development of an EU Single Market for personal pension products (“PPP“). This consultation is in…more

6 Things You Should Know about the New Child Support Law

Governor Christie rung in the New Year by signing a statute that dramatically changes New Jersey’s laws governing child support. Here’s what you should know: As a general rule, child support terminates automatically upon a child…more

“Who Decides” Whether Class Arbitration Is Available?: The Third Circuit Provides New Guidance in Chesapeake Appalachia, LLC v. Scout Petroleum, LLC

The U.S. Court of Appeals for the Third Circuit (the “Court”) has spoken again on the issue of “who decides” whether parties must arbitrate a dispute on a classwide basis. In 2014, the Court ruled that “unless the parties clearly and…more

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Contributor Spotlight

A “trust anchor” is an established point of trust in a cryptographic system from which a process of validation can begin. Orrick’s Trust Anchor is your trusted source of information for all matters…

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