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Global Financial Markets Insight - Issue 8, Q4 2015

In this issue we also look at some of the practical issues impacting financing practices in a variety of European and emerging markets. This includes looking at new legislation to open up markets such as the covered bond market in…more

GAO Examines Trends in Medicare Part B Expenditures for New Drugs and Biologicals

The Government Accountability Office (GAO) has issued a report describing trends in Medicare Part B spending and utilization for “new” drugs and biologicals (approved by the FDA from 2006 through 2013). The GAO’s analysis is based on…more

A Steep Slope — Vermont Supreme Court Finds AIG Not Unitary With a Ski Resort Based On a Clear and Cogent Evidence Burden of Proof

In the first Vermont Supreme Court decision addressing combined unitary reporting since Vermont’s combined reporting regime became effective in 2006, the court affirmed a lower court’s decision that AIG, the multinational insurance…more

OIG Examines Medicare Part B Payments for 340B Purchased Drugs

A new OIG report reviews Medicare Part B spending on drugs purchased by eligible health care providers through the 340B drug discount program. The OIG describes the report as “an independent analysis to inform the ongoing discussion”…more

DOL’s New Disability Claim Rules Add to a Plan Administrator’s Duties under Welfare and Retirement Benefit Plans

Now, faced with an aging baby-boomer generation and increased costs related to disability litigation, the U.S. Department of Labor’s Employee Benefit Security Administration (DOL) has proposed new rules that would revise and strengthen…more

HHS Posts Fall 2015 Regulatory Agenda Listing Rules in Pipeline

The Obama Administration has released its latest regulatory agenda, which lists major pending or planned regulatory actions and the anticipated timing of rulemaking activity. The agenda includes numerous pending HHS proposed and final…more

New FDA rule places increased food safety responsibility on importers, foreign suppliers

On Nov. 27, 2015, the FDA published its Final Rule outlining how the food industry, already in the midst of implementing Hazard Analysis and Risk Based Preventive Controls, or HARPC, will be responsible for ensuring that foreign…more

More Whistleblowing Means More Worries for Employers

If you are an employer in the health care or defense industry, in addition to compliance with the panoply of employment laws you must adhere to, employers must also be attuned to their exposure to whistleblower claims under the federal…more

SEC Commissioner Endorses Consideration of Supplemental IFRS Reporting by US Issuers

In recent remarks at the 34th Annual Current Financial Reporting Issues Conference hosted by Financial Executives International, SEC Commissioner Michael S. Piwowar discussed the status of International Financial Reporting Standards…more

CFPB makes no change to exemption thresholds for appraisal requirement, Regs Z and M

The CFPB has published notices in the Federal Register announcing that it is making no change to three exemption thresholds that are subject to annual inflation adjustments. Effective January 1, 2016 through December 31, 2016, these…more

House Financial Services Committee Hearing on Capital Formation

On December 2, 2015, the Financial Services Committee will hold a hearing to consider four bills related to capital formation. These include, among others, HR 3784, which would amend the Exchange Act to establish an Office of the…more

Obama Administration Proposes 2017 ACA Marketplace Plan Benefit and Payment Parameters

On December 2, 2015, CMS is publishing its annual proposed Notice of Benefit and Payment Parameters, which would govern participation in the Affordable Care Act (ACA) Health Insurance Marketplaces for 2017. The wide-ranging rule…more

2015 Autumn Statement and Spending Review Released

The statement is tax light, but there is continued focus on carried interest. On 25 November, the UK Chancellor of the Exchequer George Osborne made a number of tax-related announcements in the 2015 Autumn Statement and Spending…more

Louisiana Workforce Commission Finds Employers Misclassify Workers as Independent Contractors

The Louisiana Workforce Commission (LWC) is on track for a second consecutive record-setting year in identifying workers misclassified by employers as independent contractors, according to a recent announcement by the LWC. In 2014…more

SEC Settles Another Case Requiring Admissions

Admissions appear to be a focus of recent SEC settlements. Last week the agency required a political intelligence firm to admit the facts in its OIP as part of the settlement of an action alleging inadequate compliance systems. This…more

New guidance from the Polish DPA: a warning for all Safe Habor (ex)participants

The Polish DPA has recently issued a statement to the effect that all companies which previously relied on Safe Harbor program must be able to demonstrate a valid legal basis – as set out in the Polish Data Protection Act – to legally…more

SEC Proposes Enhanced Transparency and Oversight of Certain Alternative Trading Systems

The proposal would subject ATSs that effect transactions in listed stocks to significant new disclosure and transparency requirements. On November 18, 2015, the US Securities and Exchange Commission (SEC) proposed rules (the ATS…more

The DOL’s Fall 2015 Regulatory Agenda: Does it Really Shed Light on the Timing for a Final Overtime Rule?

Approximately three months after the comment period closed on the proposal from the Obama administration and U.S. Department of Labor (DOL) to revise the Part 541 overtime regulations, the DOL issued its Fall 2015 Semiannual Regulatory…more

Financial Entity Update: CFTC’s Proposed Margin Rules for Uncleared Swaps – Cross-Border Matrix

The CFTC issued its proposed framework for applying its CFTC Margin Rules to cross-border activities on June 29, 2015 (CFTC Cross-Border Proposal). The CFTC Cross-Border Proposal contains a limited exclusion from the CFTC Margin Rules…more

Could the UK see a shake-up of its Data Retention Powers? Questions referred to the CJEU

On 20 November 2015 the UK’s Court of Appeal referred questions on data retention to the Court of Justice of the European Union (CJEU) following a challenge to the Data Retention and Investigatory Powers Act (DRIPA) 2014…more

Trio of Model Case Management Order Forms Now in Place in New York's Commercial Division

The Commercial Division of New York Supreme Court now has a trio of model case management order forms designed to facilitate both the efficient pursuit of discovery and the court’s supervision of that critical -- often costly and…more

Consistency of Treatment Following Office Party Brawl

In MBNA Limited v Jones UKEAT/0120/15, the Employment Appeal Tribunal (EAT) considered whether the inconsistent treatment of two employees arising from the same incident rendered the dismissal of one of them unfair…more

Second Circuit Filing Re-Ignites Debate over the Scope of the Dodd-Frank Whistleblower Protection Provisions

On November 10, 2015, the employer in a high-profile whistleblower-retaliation case advised the United States Court of Appeals for the Second Circuit that it “will not be pursuing a petition for writ of certiorari with the Supreme…more

PRA consults on capital extractions

PRA is consulting on a draft supervisory statement setting out its views on capital extractions by run-off firms within the general insurance sector. The statement sets out what senior management of general insurance firms in run-off…more

An Austrian Class Action Lawsuit Filed Against Facebook

Through its Irish subsidiary, Facebook is the target of a major EU class action lawsuit filed in Austria by Maximillian Schrems, the law student who brought forward the CJEU case C-362/14 that invalidated the EU – US Safe Harbor…more

California Law and Background Screening

Happy post-Thanksgiving! News flash for the background screening industry as well as users of background checks in California. The California Supreme Court has agreed to consider whether the Investigative Consumer Reporting Agencies…more

Company Prevails in Challenge to FTC Data Security Complaint

A recent decision by the Federal Trade Commission (FTC) Chief Administrative Law Judge (ALJ) dismissed the FTC’s complaint against LabMD, Inc. (LabMD) asserting the company’s alleged failure to protect consumer data in two incidents…more

Business Records Hearsay Exception Applicable Only When Proper Foundation is Laid

In Ensler v. Aurora Loan Servs., LLC, the Fourth District Court of Appeal of Florida was faced with the issue of whether a prior mortgage loan servicer’s documents could be introduced into evidence when the current servicer testified…more

Pintrips Emerges with Its “Pin” Intact in Trademark Dispute with Pinterest

In a recent federal district court case in the Northern District of California (Case No. 13-cv-04608-HSG), Pintrips Inc., a website-based travel planning service, effectively pinned to the mat the trademark claims brought against it by…more

FTC and FCC Sign Consumer Protection MOU

Since 2014, the Federal Communications Commission (FCC) has engaged in an increasing number of privacy and data security enforcement actions. The scope of the Commission’s jurisdiction over carriers has also dramatically increased –…more

OCR Continues Waving Its HIPAA Enforcement Flag: Don’t Forget About Medical Devices

The day before Thanksgiving, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced the largest resolution agreement of 2015, against Lahey Hospital and Medical Center (Lahey). The incident…more

Mind the Gap Between D&O and E&O Insurance Policies

Katherine Henry and Machua Millett discuss the interplay between directors & officers and professional liability insurance policies in the context of recent corporate crises. They address the scope of coverage under both types of…more

PRA consults on Solvency 2 auditing

PRA is consulting on a policy requiring external audit of elements of Pillar 3 disclosure under Solvency 2. Under Pillar 3, Solvency 2 firms must disclose publicly a Solvency and Financial Condition Report (SFCR). The proposed policy…more

[Video]Mind the Gap Between D&O and E&O Insurance Policies

Katherine Henry and Machua Millett discuss the interplay between directors & officers and professional liability insurance policies in the context of recent corporate crises. They address the scope of coverage under both types of…more

FCA consults on UK implementation of the Market Abuse Regulation

On 5 November 2015, the Financial Conduct Authority (FCA) published a consultation paper CP15/35: Policy proposals and Handbook changes related to the implementation of the Market Abuse Regulation (2014/596/EU) (Consultation…more

A Substantially Pure Isomer Is Obvious When the Completely Pure Isomer Is Known In The Art - Spectrum Pharms., Inc. v. Sandoz Inc.

Many prior cases have addressed whether a pure stereoisomer is obvious when the corresponding 50/50 mixture is known in the prior art. In upholding a finding of summary judgment, however, the U.S. Court of Appeals for the Federal…more

Defenses to a Termination for Default

In a post published in 2013, we addressed the use of termination for default as a weapon. Unfortunately, construction contractors who fall behind schedule are automatically on the defensive and they rarely find that contracting…more

[Video]Tower Snow on Securities Class Actions

Tower Snow, Jr., Esq. of Cooley LLP and panelist at the 2015 PLUS Conference session “Securities Class Actions: Going the Way of the Dinosaurs?” joined us in the Media Zone to discuss the recent U.S. Supreme Court decisions and what’s…more

Five Things That Shouldn’t Keep You From Buying or Selling a Company

There may be several reasons holding you back from buying another company or from selling your own business. However, there’s a new normal in the government contracting space. With increased competition for work, a tight economy, and…more

Lost Chance Loses In Product Liability

Occasionally we see plaintiff-side experts attempt to opine, to a reasonable degree of medical certainty (or sometimes probability), that one of our clients’ products was a substantial factor – not in “causing” the purported injury…more

Insurance for Emerging Companies: Understand the Application You Are Signing

This is the second post in our series regarding coverage issues affecting emerging companies. This post addresses the insurance application process. The application is a critical part of the process because insurance companies use it…more

Yes, Virginia, There Is A “No Contest” Clause

This is the first in a three-part series of blog posts on “no contest” clauses, inspired by a recent Virginia Supreme Court ruling. In this post, I’ll briefly explain what a no contest clause is, and provide a general overview of the…more

On Valuing Cherubs, Cuties, and Halos

Picking up where we left off yesterday discussing brand valuation, I’ve recently taken great interest in the branding of fresh fruits and vegetables — they seem to be the ultimate commodity, a perfectly ripe environment for branding…more

California’s Top Oil Regulator Resigns, Ken Harris to Take his Place

On Monday, November 30, California Department of Conservation Division of Oil, Gas and Geothermal Resources (“DOGGR”) Supervisor Steven Bohlen submitted his resignation to Governor Jerry Brown, less than 18 months after taking the…more

Will Amendments to Federal Rules of Civil Procedure 26(b)(1) and 37(e) Reduce the Scope and Costs of Discovery?

December 1, 2015, which quite fittingly has been declared the inaugural E-Discovery Day, marks the implementation of a package of amendments to the Federal Rules of Civil Procedure, concluding a process that began more than five years…more

European Ombudsman Closes Maladministration Inquiry into Public Statements by Former Competition Commissioner

In 2012 and 2014, Joaquín Almunia, the then Vice President of the European Commission and Commissioner responsible for competition, made public statements concerning an ongoing investigation of a possible cartel. Crédit Agricole, one…more

EEOC Issues Publications on the Rights of Job Applicants and Employees Who Have HIV Infection

User-Friendly Documents for Doctors and Individuals Living With HIV Infection Explain Workplace Protections Under the Americans with Disabilities Act - WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) today…more

Communications Compliance: Are Messaging Applications Leaving Your Organization Vulnerable to HIPAA Liability?

Messaging applications are popular tools to facilitate communication and workflow in healthcare settings—increasingly so as smart phones, tablets and other mobile mediums continue to penetrate the market. Organizations relying on or…more

The SEC Staff’s Position On Unbundling Gets Even More Weird

“Bundling” was a colonial American practice of unmarried persons sharing the same bed whilst being physically separated by a board or sack.  As might be expected, bundling had its critics.  One Henry Reed Stiles piously carped..…more

ESI & eDiscovery FRCP Changes @ 12/1/15 — While You Were Leftover-Eating

Introduction: Now that you’ve likely had your fill of turkey sandwiches, turkey salad, turkey soup and the like, there is a new development on which to focus. On midnight December 1, 2015 the eDiscovery-related Federal Rules of Civil…more

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