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New Economy Businesses Need New Insurance: Can the Insurance Industry Keep Up?

The sharing economy and new technology innovations have disrupted the traditional underwriting and risk assessment models…more

Onward Transfer Grace Period Ends September 30

The EU-US Privacy Shield became operational on August 1, 2016; a nine-month grace period for compliance with the onward transfer requirements applies for organizations that sign up to the Privacy Shield prior to October 1, 2016…more

“Human Intervention” in Calling System Dooms Plaintiff’s TCPA Claim

Another Florida district court, another favorable ruling for companies facing TCPA lawsuits. In Pozo v. Stellar Recovery Collection Agency, Inc., U.S. Magistrate Judge Anthony E. Porcelli granted summary judgment for defendant Stellar…more

CMS Call on New Medicare/Medicaid Emergency Preparedness Requirements (Oct. 5)

On October 5, 2016, CMS is hosting a call to discuss its September 16, 2016 final rule establishing emergency preparedness requirements for Medicare- and Medicaid-participating providers and suppliers to ensure that they can meet the…more

U.K. now requires supply chain transparency on human trafficking risks

In Part I of our two-part series, we discussed the worldwide issue of modern-day slavery and the California response. In this second part, we discuss the latest response in the United Kingdom. The United Kingdom Modern Slavery…more

Managing the Transition to Transformation: Quality and Payment Reform: Who Is Asking for What and Why?

McDermott’s Managing the Transition to Transformation series is designed to help health systems and other health care industry leaders address the many challenges presented by the transformation in payment and care delivery models…more

New DOL fiduciary rule and swaps - ISDA update

The Department of Labor’s final revised fiduciary regulation will become applicable on April 10, 2017. Those affected by the revised regulation will include banks and other financial institutions that negotiate investment transactions…more

Labor Department Issues Final Rule Implementing Executive Order on Government Contractor Paid Sick Leave

The U.S. Department of Labor has released final regulations implementing President Barack Obama’s Executive Order 13706, requiring up to seven days of paid sick leave for workers on federal contracts…more

Is Your Business Prepared for the Ransomware Epidemic?

Earlier this month, the Federal Trade Commission (FTC) kicked off its fall technology series with a workshop on the growing threat of ransomware. Ransomware is an increasingly common and insidious form of malware that locks away data…more

It’s Time to Get Back to Basics: Keeping Your Workplace Free of Sexual Harassment

In an interview last month, the 2016 Republican presidential nominee stated that if his daughter were sexually harassed, he “would like to think she would find another career or find another company.” His son later stated that because…more

Avoiding Legal Pitfalls and Cultural Considerations When Conducting International Business in Asia Doing Business Abroad – 6 Tips From Our Experiences

The Foreign Corrupt Practices Act - Detailed technical definitions and explanations of what constitutes corrupt practices are available. A simple explanation is that furnishing a foreign government official with anything of value…more

BMC Software, Inc. v. zIT Consulting GmbH (PTAB 2016) - CBM Patent Review Denied for Claims Lacking Financial Subject Matter

The PTAB denied institution of a covered business method (CBM) patent review in a case between BMC Software Inc. (Petitioner) v. zIT Consulting GmbH (Patent Owner). Petitioner, BMC Software, Inc., filed a Petition to institute a CBM…more

FDA Issues Draft Guidance on Risk Evaluation and Mitigation Strategy (REMS) Determinations

On September 21, 2016, the US Food and Drug Administration (FDA) issued Draft Guidance for Industry: FDA’s Application of Statutory Factors in Determining When a REMS Is Necessary, which is intended to clarify how the FDA will…more

OSHA Provides New Guidance on Unacceptable Whistleblower Settlements, Ensures Whistleblowers Cannot Waive Right to Receive Awards

In a memorandum dated September 15, OSHA has made explicit that it will not approve any settlement agreements between employers and employees that discourage the employee from acting as a whistleblower…more

D&O Loans: California Section 315 Versus Sarbanes-Oxley Section 402

Although both Section 315 of the California Corporations Code and Section 402 of the Sarbanes-Oxley Act purport to ban loans to directors and officers, there are significant differences between these statutes.  Below is a precis of…more

A Reprieve for Arizona Businesses: State Judge Stays More Than 1,100 Cases by Serial ADA Plaintiff

On September 23, 2016, an Arizona judge granted at least a temporary reprieve to more than 1,100 Arizona businesses that have been beleaguered by lawsuits alleging that their parking lots lack sufficient accessible parking spaces for…more

EEOC Publishes Final Pay Data Changes to EEO-1 Report

The Equal Employment Opportunity Commission has issued revisions requiring employers with at least 100 employees to submit annual EEO-1 reports that include W-2 pay and hours worked data for their entire workforces, nationwide…more

News of Ukrainian Antitrust Regulation

On 20 September 2016, the Head of the Antimonopoly Committee of Ukraine (AMC), Yuriy Terentyev, announced a six months extension (until 15 March 2017) for the so-called "amnesty" program regarding liability for the failure to obtain…more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19586 - Harrington v. Freedom of Information Commission - The Court started off by saying..... We have not previously had occasion to squarely address..... [this] ......specific…more

House Votes to Delay OT Rule But Employers Are Not Out of the Woods Yet

Yesterday, the United States House of Representatives passed a bill, H.R. 6094 (the “bill” referred to as the Regulatory Relief for Small Businesses, Schools and Nonprofits Act), that would delay the effective date of the Department of…more

Incumbency Bodes Well for the Real Estate Market

The presidential election season can be a difficult time for the commercial real estate market. Uncertainty about the future financial and regulatory climate often leaves investors, developers and owners waiting on the sidelines for…more

Third Circuit Creates Framework for Analyzing Numerosity

The Third Circuit recently vacated class certification, granted by the Eastern District of Pennsylvania after nearly a decade of litigation, in an antitrust case alleging that a pharmaceutical company entered into agreements with four…more

Election 2016: Political Speech and Activity in the Workplace

On November 8, voters across the country will head to the polls to determine the next president. Some states have already begun the early voting process. Voters will also decide who fills various U.S. congressional seats, who will…more

OLCC Eases Transition From Medical to Recreational Marijuana Sectors (and Releases Related Business Resources)

The Oregon Liquor Control Commission (OLCC) recently adopted new rules designed to ease the transition from the Oregon Medical Marijuana Program (OMMP) to the OLCC regulated recreational marijuana industry. The rules address concerns…more

Bill Proposes Tax Incentives For Data Breach Insurance

On September 14, 2016, U.S. Representative Ed Perlmutter (D-Colo.) introduced the “Data Breach Insurance Act,” which would incentivize private industry to enhance its cybersecurity posture by providing federal income tax credits…more

Shell Pays Big for Double Dipping with the UST Fund

Last week, the California State Water Resources Control Board (State Water Board) announced that it permanently banned 100 of Shell Oil Company’s underground storage tank (UST) claims from the California UST Cleanup Fund (Fund) for…more

SEC’s Proposed Rules for Expedited Settlement May Impact Long-Standing Exception for Firm Commitment Offerings

The SEC has agreed to propose rules that would shorten the standard settlement cycle for most broker-dealer transactions from three business days after the trade date (also known as T+3 settlement) to two business days after the trade…more

SEC to hold fintech innovation public forum

The Securities and Exchange Commission has announced that it will host a public forum in Washington, D.C. on November 14, 2016 to discuss financial technology innovation in the financial services industry. The forum is designed to…more

California Supreme Court Sets New Deferential Standard for Supplemental CEQA Review

In Friends of the College of San Mateo Gardens v. San Mateo Community College District, No. S214061 (Cal. September 19, 2016), the California Supreme Court rejected the “new project” test for determining whether a changed project…more

New California Law Mandates Public Disclosure of Private Fund Information

A new California law requires public pension and retirement systems to obtain and publicly disclose information about their investments into venture capital, private equity, hedge and absolute return funds. The law appears to have been…more

NEW UPDATE: Is Your Workers’ Compensation Program Unlawful?

In two previous posts, on April 19, 2016 and June 21, 2016, we reported on the EquityComp workers’ compensation program offered by Berkshire Hathaway subsidiaries Applied Underwriters (Applied) and California Insurance Company (CIC)…more

Can Using Social Media Lead to a Lawsuit? (Part 3)

In this third and final part of this blog series, I will address the intersection of social media and intellectual property rights, as well as how and when social media may be used as evidence during trial…more

MassDEP: The Rising Tide May Steal Your Development Rights

Does a pile field exist if it’s covered at high tide? MassDEP seems to think not. Through the Commonwealth’s Chapter 91 program, MassDEP regulates what can be built over tidelands. In last week’s Environmental Monitor…more

Have a Management Rights Clause? It May Not Save You from Bargaining with the Union

Many union employers insist on strong management clauses in their labor agreements. Such clauses contain language reserving for the employer the right to adopt new rules and regulations. A reasonable employer may assume that this…more

New 'Digest of EEO Law' Issued by EEOC

Includes Key Federal Sector Decisions, Special Article on Discrimination Due to Mental Health Conditions Under EEO Laws - WASHINGTON -- The U.S. Equal Employment Opportunity Commission (EEOC) today announced the latest edition of…more

Court Limits Request for Social Media to Certain Relevant Information (Louisiana)

Baxter v. Anderson, 2016 U.S. Dist. LEXIS 110687 (M.D. La. Aug. 18, 2016) - In this personal injury case, the defendant moved the court to compel a wide range of discovery related to the plaintiff’s social media accounts. The…more

California Adopts New Regulations For Warnings Under Proposition 65: CAVEAT VENDITOR (Sellers Beware)

Come August 30, 2018, consumer products to be released into the California marketplace must meet new regulations under California’s infamous Proposition 65. On August 30, 2016, the California Office of Administrative Law approved the…more

Generalized Common Sense Allegations Cannot Be Used to Supply Important Missing Claim Limitation

Addressing the use of common sense for an obviousness analysis, the US Court of Appeals for the Federal Circuit held that conclusory statements about common sense cannot be used to supply missing claim limitations that play a major…more

DIFC: Intermediate SPV Regime

On 19 September 2016, the DIFC Authority Board of Directors ("Board") approved, with immediate effect, a regime to allow for the establishment of intermediate special purpose vehicles in the DIFC ("Intermediate SPVs") for both…more

County Counsel Teamwork: The Exide Story

Justice: (1) the principle or ideal of just dealing or right action; (2) conformity to this principle or ideal The concept of environmental justice is straightforward, the pathway to practical solutions are often circuitous. In…more

Stripped of Excess Verbiage, Claim Directed to Streaming Out-of-Region Media to Cell Phones in an Abstract Idea

In Affinity Labs of Texas, LLC v. DirecTV, LLC, [2015-1845, 2015-1846, 2015-1847, 2015-1848] (September 23, 2016), the Federal Circuit affirmed the dismissal of the Complaint for patent infringement for failure to state a claim…more

General Court Confirms that the Commission May Rely on Lawfully Seized Recordings Even if Made Unlawfully by a Third Party

On 8 September 2016 the General Court (“GC”) dismissed Heiploeg’s appeal against the European Commission’s (“Commission”) decision in Shrimps (AT.39633) and confirmed that the Commission may rely on recordings seized lawfully in a…more

The Oman Update - 1163

Recognising a Gulf unified standard as a mandatory Omani standard. This decision relates to GSO ISO 6935 (Parts I-III) on steel reinforced concrete. Issued on 7 September 2016. Effective 6 months after the date of…more

Proposed New UK Penalties Regime Precipitated by CRS

Many people will be familiar with the information gathering and reporting requirements the OECD’s Common Reporting Standard (“CRS”) places on financial institutions. The first exchanges of information between tax authorities will take…more

SEC Amendments to Form ADV and Advisers Act Rules Change Investment Adviser Reporting Requirements

Proposals made by the Securities and Exchange Commission (SEC) in 2015 to amend Form ADV and certain rules under the Investment Advisers Act of 1940 (Advisers Act) (SEC Proposes Significant Reporting Requirement Amendments to Form ADV)…more

Independent Contractors or Employees: Why It Is so Important to Use the Proper Classification for the People that Work for You

Over the past few years, there has been a concerted effort on the part of the US Department of Labor, as well as various state attorneys general, to target businesses that misclassify workers as independent contractors when those…more

Double-Checking Alice Using Common-Sense Distinctions Between Ends and Means

Following its decision in Enfish (IP Update, Vol. 19, No. 6), the US Court of Appeals for the Federal Circuit provided additional guidance on determining whether a patent claim includes an inventive concept, thereby rendering it patent…more

CMS and OIG Propose First Major Medicaid Fraud Control Program Changes Since 1978

On September 20, 2016, CMS and the OIG jointly published a proposed rule, available here, to amend the largely unchanged 1978 regulation governing State Medicaid Fraud Control Units (MFCUs). Since the initial issuance of the rule…more

IP Newsletter - Superintendency of Industry and Commerce orders TV advertisement pulled for unsupported claims

Colombia's Superintendency of Industry and Commerce, in Resolution 59176 of 2016, issued an order that the Colombian Association of Consumer Education cease airing a TV advertisement that contained misleading statements about "the…more

Small-Breach Focus Shows Growing Scope Of HIPAA Probes

Flexing yet more enforcement muscle under the Health Insurance Portability and Accountability Act, on Aug. 18, 2016, the U.S. Department of Health and Human Services Office for Civil Rights announced that it will more widely…more

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