Latest Updates

Case Report: Public Finance Implications of Trinity Lutheran Church of Columbia, Inc. v. Comer

In Public Finance, questions on separation of church and state usually arise in the context of a conduit financing by a state or local governmental entity which benefits a religious organization. The religious organization generally is… more

Back to School for ERISA Fiduciary Claims: How to Prepare for This Trend in University Litigation

In the past 10 years, there have been an increasing number of lawsuits asserting Employee Retirement Income Security Act of 1974 (ERISA) fiduciary claims. These have been accompanied by an increased focus by the Department of Labor… more

DOH! Nuclear Safety Regs Trump ADA Accommodation Request (Thankfully)

In a battle between a mentally ill employee seeking accommodation for his job at a nuclear plant and federal nuclear safety codes—-which wins out? The Third Circuit Court of Appeals ended up going with safety codes… more

The SEC Approves More Amendments to NYSE’s Notice Requirements

Back in September 2015, the New York Stock Exchange amended the NYSE Listed Company Manual to: ..expand the pre-market hours during which NYSE-listed companies must provide prior notice of material news, ..expand the… more

Charges of "Fake News" May Bring New Threats from Jury Verdicts

Alarmingly high defamation damages—such as Hulk Hogan's $140 million Florida verdict against Gawker and a broadcast network's reported $177 million settlement with a South Dakota beef producer—are disturbing recent developments for the… more

The FTC Data Security Settlement with Uber

The Risks of Overpromising and Underperforming - Demonstrating its authority over all things cybersecurity, the Federal Trade Commission (FTC) announced that it has entered into a proposed consent order with Uber for the company's… more

Too Much or Too Little: FDA Requests Comments on New Strategy Regarding Risk Information in DTC Ads

On August 21, 2017, FDA solicited comments in the Federal Register on a new potential approach regarding communicating risk information in direct-to-consumer (DTC) broadcast ads for prescription drugs and biologics that contain product… more

Connecticut Medical Marijuana Law Protects Employees and Is Not Preempted by Federal Drug Laws

Ever since Connecticut allowed employees to obtain and use medical marijuana, employers have wondered whether, under certain circumstances, federal law would preempt the state law. A recent federal district court case has now answered… more

Game Over for Nestlé? Atari Sues Over “Breakout” Kit-Kat Ads

For most of us, video games and candy go together perfectly, but that doesn’t mean they always get along. In fact, last week the “original” video game company, Atari Interactive, sued food and candy behemoth Nestlé in California… more

[Video]Entrepreneur Minute: Join an Accelerator to Grow Your Business

Clint Crosby, Baker Donelson shareholder, encourages entrepreneurs to consider joining an incubator or accelerator to grow their business. Baker Donelson's Entrepreneur Minute features attorneys, entrepreneurs and business leaders… more

Business Litigation Reporter - August 2017

In This Issue - Though law firms have been handling litigation on behalf of corporate clients for decades, industrywide surveys continue to suggest that, in a significant portion of cases, these clients feel they are not receiving… more

News from Abroad -- Mexican Antitrust Authority Study on Generic Drug Entry -- On Patents and Marketing Authorizations -- Part II

In the first installment of this series, we outlined the general contents of the study published on August 9, 2017 by the Federal Commission for Economic Competition, highlighting that the Antitrust authority is calling for an overhaul… more

Update on Cost-Sharing Reduction (CSR) Payments and Graham-Cassidy-Heller Proposal

According to multiple media reports, the Trump administration will make CSR payments for August. President Trump has previously called these expenditures, which help insurers fund coverage for low income individuals, “bailouts” for… more

McDermott International Legal Highlights - August 2017

Privacy Shield Implementation and How-To Kit from McDermott Will & Emery - Japanese companies may have European branches or subsidiaries that send personal data to the US or that may be accessed by entities in the US, including… more

As Digital Currency Spreads, So Does its Global Regulation: India and Australia Enter the Fray

As digital currency becomes more ubiquitous, state and federal regulators across the United States, as well as regulators in many other countries, are examining how existing regulatory structures need to be adapted to account for… more

First Cyberspace Court set up in China: the Chinese judiciary enters the digital age

China’s first Cyberspace Court was inaugurated on Friday 18 August in Hangzhou, Zhejiang Province. Going forward, this new court will handle all internet-related disputes in all districts of Hangzhou through a fully digitalized, online… more

Your Daily Dose of Financial News

Chevron CEO John Watson is out in a move that leaves the energy giant without a board-confirmed successor and marks the “dramatic shift under way at big oil companies as they adapt to a prolonged period of lower prices brought about by… more

Soft Skills in Remediation: Part III – Communications with Stakeholders

Today I continue a five-part series on the soft skills a Chief Compliance Officer (CCO) needs to employ when working through the remediation component of a potential Foreign Corrupt Practices Act (FCPA) compliance violation. I am… more

Unitary Patent Guide Published by the EPO

The Guide begins with an overview of the concept of the Unitary Patent. It explains that this is an alternative to the existing options of national patents granted by national patent offices and national validations of European… more

IRS Focuses on Tax Exempt Financings Involving Developers

For a number of years, the IRS Office of Tax-Exempt Bonds ("TEB") has expressed concerns about potential tax abuses that may exist in what it has characterized as "developer-driven deals" involving the use of tax-exempt bonds. TEB has… more

Director Cordray’s Op-Ed Disregards Many Inconvenient Facts

In an op-ed published in today’s New York Times, CFPB Director Richard Cordray argues against congressional repeal of the agency’s final arbitration rule by “correcting the record.” He contends that the CFPB’s March 2015 study of… more

Shhh, It’s a Secret — What No One Tells You About Executive Session

“Executive session” is fancy meeting terminology for a secret proceeding. You probably already knew that much, but conducting a proper closed-door meeting requires knowing a bit more. Here are a few parliamentary pointers that will… more

Federal Circuit Finds No Standing Requirement For Appellees

In Personal Audio LLC v. Electronic Frontier Foundation, the Federal Circuit ruled that an IPR petitioner does not need to satisfy Article III standing requirements in order to participate in a patent owner’s appeal from a Patent Trial… more

Potential Topics for Your 30(b)(6) Witnesses: eDiscovery Best Practices

I was talking to a client the other day about having to prepare their 30(b)(6) witness for a case, so I thought I’d revisit this topic… When it comes to questions and potential issues that the receiving party may have about the… more

Does NEPA Require Assessment of Downstream GHG Emissions Resulting From Gas Pipelines?

Last week, a divided panel of the D.C. Circuit Court of Appeals ruled that FERC violated NEPA in failing to assess downstream greenhouse gas emissions resulting from construction of the Sabal Trail pipeline, part of the Southeast… more

Municipalities Can Be Held Liable for the Actions (and Words) of Their Officials

Much like a business corporation, a municipality can only act through its employees. A municipal official may inadvertently (or advertently) make representations regarding municipality business, leading to unintended consequences… more

Los Angeles Launches America’s First City-Based Cyber Lab

Los Angeles Mayor Eric Garcetti announced on August 15 an unprecedented initiative to launch the “LA Cyber Lab”—a public-private partnership that will freely share cyber threat intelligence with businesses in the city. Due to its… more

THE LATEST: Rate-for-Volume Payer Contract Provision Should Be Analyzed under Rule of Reason

District Judge Walter H. Rice of the Southern District of Ohio granted three pretrial motions brought by the Defendants on the eve of trial in The Medical Center at Elizabeth Place, LLC v. Premier Health Partners, et al., Case No… more

Punitive Damages in Mass Torts Cases: Outrageous and in Reckless Disregard of Fairness

It was over 32 years ago that we graduated from the University of Chicago Law School. The three years in Hyde Park were a punishing experience. There was one class in particular when Prof. Richard Epstein used the Socratic method to… more

FTC Continues Series With Collection, Retention Safety Tips

For the Federal Trade Commission’s second blog post in its “Stick with Security” series, the agency discussed how to maintain a focus on security, regardless of the size of a business or the type of data it handles… more

Federal Circuit Finds Visual Memory's Patent Claims Directed to an Improved Computer

On appeal of the district court’s dismissal of Visual Memory, LLC’s patent infringement complaint against NVIDIA Corporation, the Federal Circuit concluded that the patent claims are directed to an improved computer memory system and… more

Massachusetts Employers Take Notice: Evaluate and Comply Now or Risk Paying More Later

The time has come for Massachusetts’ employers to start preparing for the implementation of the law entitled An Act to Establish Pay Equity (the “Law”) that will go into effect on July 1, 2018. The Law represents a significant change… more

California Businesses Will Have to Stop Landfilling Organic Waste

Pending regulations now being developed by CalRecycle will have a significant impact on persons generating, transporting, recycling and disposing of organic waste in California. These regulations should become final by mid-2018, but… more

Time Will Tell If Trump Infrastructure Executive Order Shortens Federal Reviews

On August 15, 2017, President Trump issued an Executive Order (EO) (not yet numbered) that seeks to streamline federal environmental review and approvals of major infrastructure projects by imposing new timelines and procedures. The… more

Recent HHS Activity Following International Cyber Attacks

Following recent international cyber attacks, the U.S. Department of Health and Human Services (HHS) has issued warnings to healthcare organizations, provided a cyber attack checklist, and launched its revised HIPAA Breach Reporting… more

Medicare Claims Appeals: D.C. Circuit Reverses and Remands in Case Seeking Relief From Processing Delays

On August 11, 2017, the D.C. Circuit reversed the district court and held that the district court abused its discretion by ordering the Secretary of HHS to clear the backlog of administrative appeals of denied Medicare reimbursement… more

“Buy American And Hire American” Update - Comments solicited for consideration in report to President Trump

On August 21, 2017, the U.S. Department of Commerce (“Commerce”) and the Office of the United States Trade Representative (“USTR”) published a Federal Register notice requesting comments on the costs and benefits to U.S. industry of… more

Think That Your Firm Isn’t Subject to GDPR? You May Be Wrong About That: eDiscovery Trends

We’re getting closer and closer to the implementation of the General Data Protection Regulation (GDPR) standard designed to strengthen and unify data protection for all individuals within the European Union (EU). It goes into effect… more

[Video]Compliance into the Weeds-Episode 51, the PCAOB and Compliance

In this episode, Matt Kelly and I take a deep dive into the Public Accounting Oversight Board (PCAOB). We consider the role of the PCAOB in both audit standards and internal controls for compliance. What is goodwill, goodwill… more

The Department of Labor’s Fiduciary Rule – Three Issues for Retirement Plan Sponsors

The DOL’s fiduciary rule re-defines when a party is acting as a “fiduciary” under ERISA as a result of providing investment advice to a retirement plan and has the effect of greatly expanding the types of services that are deemed to be… more

Mine Safety Agency Implements Medical Standards Action Plan For Inspectors, Technical Personnel

The Mine Safety and Health Administration will implement an action plan for employees who do not meet the agency’s medical standards. As a condition of employment, MSHA inspectors and technical personnel must undergo periodic… more

The Plan Providers That A 401(k) Plan Sponsor Needs

When an employer decides to start a 401(k) plan, one of the biggest problems out there is that they don’t know who they need. They know that they need someone to help on their retirement plan, but they don’t know who. One of the secret… more

OSHA Schedules Second Public Meeting On Voluntary Protection Programs

The Occupational Safety and Health Administration has scheduled the second of two meetings to “reshape” the Voluntary Protection Programs (VPP) for August 28, 2017. The first meeting was held on July 17, 2017… more

Step Aside, Payday Loans: There’s an Old Kid in Town

In recent years, there has been a dramatic increase in the use of bills of sale, a somewhat antiquated form of security, in relation to individuals raising finance secured against a car they own: the logbook loan. This article… more

Two Delaware Decisions Make Statutory Appraisal a Less Attractive Remedy

During the past several weeks, the Delaware Supreme Court and the Delaware Court of Chancery have issued two opinions, ACP Master, Ltd. v. Clearwire Corporation and DFC Global Corporation v. Muirfield Value Partners, L.P., relating to… more

State AGs Data Breach Settlement Reinforces the Importance of Patch Management

A recent settlement between Nationwide Mutual Insurance Company and attorneys general from 32 states and the District of Columbia (the "Attorneys General") over a 2012 data breach reinforces the importance of patch management. On… more

Updates to National Plan and Provider Enumeration System (NPPES) Impact Physicians, Providers, and Suppliers

The Centers for Medicare & Medicaid Services (CMS) recently updated the National Plan and Provider Enumeration System (NPPES), which impacts all physicians, providers, and suppliers that use NPPES to obtain or maintain a National… more

Department of Labor Names Wayne Palmer Acting Head of Mine Safety and Health Administration (MSHA)

While it remains to be seen whether a formal presidential appointee will be tapped to run the Mine Safety and Health Administration (MSHA), the Trump Administration finally made an influx of leadership decisions for the agency. The… more

Filing An Early Motion To Strike Class Allegations

A recent decision by the Western District of Michigan is indicative of the increasing trend in federal district courts to grant early motions to strike class allegations where it is obvious that a class cannot be certified. The benefit… more

ESOP: An Exit Strategy

One way for business owners to transition their ownership to their employees and to receive liquidity for their shares is through the creation of an employee stock ownership plan (ESOP). According to the National Center for Employee… more

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