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Investors in Southern African Development Community Stripped of International Treaty Protections

In January 2014, Jones Day reported on the protection offered to foreign investors in Sub-Saharan Africa pursuant to the Southern African Development Community ("SADC") enacted on April 16, 2010. As noted in that Commentary, the SADC…more

Third-Party Payment of Premiums: Controversy and HHS Guidance

Since the passage of the Affordable Care Act (ACA), the payment of healthcare premiums by third parties has been the subject of controversy. As Congress develops its plan to repeal and replace the ACA, it is uncertain how third-party…more

New York Cybersecurity Regulations: What Do They Mean and When Do They Mean it By?

The New York State Department of Financial Services (NYDFS) has released guidance for covered financial institutions regarding its cybersecurity rule (the “Cybersecurity Rule” or “Rule”) that took effect on March 1, 2017. The guidance…more

NC Legislative Update - March 2017 #3

The Week - Last Friday, a three-judge panel issued a split decision in the ongoing legal battle between the State’s executive and legislative branches. The panel ruled that the Senate did in fact have the authority to confirm the…more

Google, NASA, Planes and a Stronger Legal Team

As Eastern Air Lines Flight 401 approached Miami International Airport on Dec. 29, 1972, its pilots extended the landing gear. Two green lights lit up in the cockpit, indicating the left and right landing gear had extended. A third…more

FCC Sets April 10th as First Day for New, More Flexible FM Translator Rules

AM radio stations owners should mark April 10th on their calendars. That is the official effective date for new FCC rules governing FM translator location—and it gives AM stations more options than before in placing those…more

Escobar's Impact: Recent Application of "Materiality" in Ninth Circuit

Last year, a unanimous U.S. Supreme Court decided Universal Health Services, Inc. v. United States ex rel. Escobar (Escobar), 136 S.Ct. 1989 (2016), creating important implications for Federal False Claims Act (FCA) cases and, in…more

SEC Adopts T+2 Settlement Cycle for Securities Transactions

On March 22, 2017, as previously anticipated by the market, the SEC adopted an amendment to Rule 15c6-1 under the Securities Exchange Act of 1934 to shorten the standard settlement cycle for most broker-dealer transactions from three…more

US Supreme Court Knocks out the Equitable Defense of Laches in Patent Law

The Supreme Court of the United States in SCA Hygiene Prods. Aktiebolag, et al. v. First Quality Baby Prods., LLC, et al., has held that the equitable defense of laches is no longer a valid defense to patent damages claims brought…more

United States Supreme Court Defines Standard For Special Education: Endrew F. v. Douglas County School District RE-1

In a unanimous decision, the United States Supreme Court held that the Individuals with Disabilities Education Improvement Act (IDEA) requires school districts to provide special education students with “an educational program…more

Hot List – What’s Happening in the California Legislature 3/27-3/31

Our weekly California Legislature “hot list” provides you with a preview of the bills that are up (as well as other important legislative action) the following week..…more

Supreme Court Rejects Laches as Bar to Damages for Timely Asserted Patent Infringement Claims

The Supreme Court has narrowed the scope of the laches defense in patent infringement actions, aligning its interpretation of laches under the Patent Act with that under the Copyright Act…more

Repeal of Antitrust Immunity for Insurers: What Does It Mean?

Insurers are among a handful of industries, including Major League Baseball, that have a special exemption from the federal antitrust laws, the so-called "McCarran-Ferguson" antitrust exemption. The exemption has survived many repeal…more

Supreme Court Holds Equitable Laches is No Longer Available to Limit Patent Damages

The Supreme Court, in a 7-1 decision written by Justice Alito, has held that laches cannot be invoked as a defense against any claim for damages in a patent case brought within the 6-year limitation on damages prescribed by Section 286…more

Requesting 72 Spelling Variations on Five Search Terms Spells Trouble for Plaintiffs: eDiscovery Case Law

In Diesel Power Source et. al. v. Crazy Carl’s Turbos et. al., No. 14-826 (D. Utah, Feb. 23, 2017), Utah Magistrate Judge Brooke C. Wells denied the plaintiff’s Motion for Sanctions for the failure of the defendant to produce ESI…more

Supreme Court Curbs Laches as a Defense in Patent Cases

In SCA Hygiene Products v. First Quality Baby Products, decided on March 21, 2017, the U.S. Supreme Court significantly reduced the role of the laches defense in patent actions: "Laches cannot be interposed as a defense against damages…more

Supreme Court Eliminates the Laches Defense in Patent Cases

The Supreme Court held that laches is no longer a defense against patent infringement. The Patent Act’s six-year statute of limitations already limits the window for damages for infringement, which precludes any further laches…more

New Regulations on Issue Price of Tax-Exempt Bonds

On December 9, 2016, the Department of the Treasury and Internal Revenue Service (IRS) published final regulations on the definition of “issue price,” for purposes of the arbitrage rules that apply to tax-exempt bonds...…more

Fight Over Seattle’s Attempt To Unionize On-Demand Economy Reaches Critical Point

If the City of Seattle has its way, your next ride-sharing driver could be part of a first-of-its-kind union. And if on-demand economy companies have their way, the courts will block any such unionization efforts before they drag down…more

Aftermath of Briseno Decision Holding No “Administrative Feasibility” Required for Class Certification

The U.S. Court of Appeals for the Ninth Circuit handed down its (by now) hotly discussed decision in Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), on January 3, 2017, holding there is no separate “administrative…more

Employees Paid on a Commission Basis Must Be Paid a Separate Minimum Wage for Rest Periods

Employers who pay employees commissions should evaluate their compensation schemes to ensure compliance with California law in light of the California Court of Appeals’ recent ruling in Vaquero, et al. v. Stoneledge Furniture, LLC...…more

New Mexico comes late to data breach party, requires promptness

Thirteen years after the first state data breach notification law was enacted, New Mexico has finally decided to join the other 47 states with such laws, sending HB15 in mid-March to Gov. Susana Martinez for signature..…more

No Emergency Injunction Appeal in Chamber’s Challenge to DOL Rule

On March 20, 2017, a federal court in the Northern District of Texas denied the U.S. Chamber of Commerce’s emergency motion for an injunction pending appeal challenging implementation of the Department’s conflict of interest rule and…more

U.S. Supreme Court Eliminates Laches Defense for Damages in Patent Suits

The U.S. Supreme Court on Tuesday, March 21, 2017, held in a 7-1 decision that the defense of laches is not available under the Patent Act to bar claims for damages. SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC…more

Supreme Court Clarifies Copyright Protection for Artistic Features in Clothing

On March 22, 2017, the Supreme Court held that a two- or three-dimensional work of art on a useful article, such as clothing, is protectable under copyright law if: (1) the work of art can be perceived as separate from the useful…more

OCC Outlines Process for FinTech Companies to Apply for Special Purpose National Bank Charters and Seeks Public Comment

The Office of the Comptroller of the Currency (the “OCC”) has released for public comment its proposed Licensing Manual Supplement (the “Supplement”) for evaluating charter applications submitted by financial technology (“FinTech”)…more

President’s FY 2018 Budget Plan Requests $15 Million to Support Future Implementation of Mandatory Nationwide Use of E-Verify

On March 17, 2017, the Office of Management and Budget (OMB) published the first installment of the Trump Administration’s FY 2018 Budget plan: “America First: A Budget Blueprint to Make America Great Again.” The Budget provides…more

Delayed ETA for EPMs – CMS Delays New Bundled Payment Models

On March 21, 2017, CMS issued the anticipated delay related to the new Episode Payment Model (EPM) bundled payment program regulations that were finalized in January. The rule, Advancing Care Coordination Through Episode Payment Models…more

The U.S. Supreme Court Hears Oral Argument in Much Anticipated Patent Exhaustion Case

On Tuesday, the U.S. Supreme Court heard oral argument in the highly anticipated case regarding the patent exhaustion doctrine, Lexmark Int’l, Inc. v. Impression Prods., Inc., No. 15-1189..…more

City of L.A. Accepting Comments on Guidelines for Transit-Oriented Communities Incentive Program

The Los Angeles Department of City Planning is accepting comments on draft guidelines for a new transit-based affordable housing incentive program. The new program is required by Measure JJJ (adopted by voters in November 2016) and…more

Use It or Lose It: USPTO to Conduct Post-Registration Trademark Use Audits

Trademark owners take note: Affidavits to renew your U.S. trademark registrations may be getting a closer look. On March 21, 2017, the United States Patent and Trademark Office ("USPTO") implemented a new rule aimed at clearing the…more

The Impending Launch of the Unified Patent Court

In a fundamental change to how European patents are going to be litigated in Europe, the United Patent Court (UPC) will soon have exclusive jurisdiction over European patent disputes and will be able to issue remedies that are binding…more

Notes From Acosta Confirmation Hearing

U.S. Labor Secretary candidate Alexander Acosta's March 22 appearance before the Senate's Health, Education, Labor & Pensions Committee produced some interesting interchanges having to do with matters relating to the federal Fair Labor…more

Recent Developments in the NLRB’s Joint and Single Employer Doctrines

Highlights of recent developments relevant to all employers. The National Labor Relations Board (NLRB or Board) is poised to return to a Republican majority, which likely will result in a change in labor law philosophy. This…more

Judge Koh Issues First Blow to “Added Sugars” Plaintiffs

The Big Picture: On Tuesday, Judge Koh granted Kellogg’s Motion to Dismiss in its entirety in Hadley v. Kellogg Sales Company, No. 5:16-cv-04955-LHK (N.D. Cal.). Hadley is one of three cases against well-known cereal makers pending…more

Checking In on Background Checks

Background checks are a valuable (and often essential) part of the hiring process. They help employers find good employees and avoid risky hires. Failure to check applicants’ backgrounds can amount to negligence and may create legal…more

Health Update - March 2017

The Future of Essential Health Benefits - Editor's Note: The Essential Health Benefits (EHB) rule may be among the many parts of the Affordable Care Act (ACA) that are on the chopping block as the Trump Administration and Congress…more

The RFP Process has to be real

Years ago, as a naïve associate at a semi-prestigious law firm, I got the short end of the stick to attend a quarterly Taft-Hartley meeting in Staten Island. If you ever have to drive from Long Island to Staten Island, you know what a…more

Judge Peck Provides a Rule 34 'Wake-Up Call' — Objections that Are Not Specific Are Waived

Fischer v. Forrest, No. 14 Civ. 1304, 1307 (PAE) (AJP), 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017). “It is time, once again, to issue a discovery wake-up call to the [b]ar in this District,” begins Magistrate Judge Andrew J. Peck…more

Supreme Court Increases School Standards For Students With Disabilities

IEPs Must Meet “Markedly More Demanding” Standard From Now On This week, in a unanimous decision crafted by Chief Justice John Roberts, the Supreme Court decided that the Individuals with Disabilities Education Act (IDEA) requires…more

Defining the Duty of the Board of Directors over Compliance Functions

I recently posted a blog article about a document released by the Department of Justice entitled “Evaluation of Compliance Programs.” As the title of the document might suggest, the DOJ release covers a variety of issues it looks at…more

Sections 101 and 112: Eligibility, Patentability, or Somewhere in Between?

We wrote earlier about the Supreme Court’s renewed interest in patent eligibility and seemingly unintended confusion between the patent eligibility requirements of 35 U.S.C. § 101 and the remaining patentability requirements under…more

FDA Approval for Medtronic’s Reveal LINQ ICM with TruRhythm Detection

On March 13, 2017, Medtronic announced FDA 510(k) clearance for its Reveal LINQ Insertable Cardiac Monitor (ICM) with TruRhythm Detection. Previously, Medtronic received Ministry of Health, Labor and Welfare approval for the device in…more

Keyword ads — Only infringing if they’re confusing

Neighbors can be helpful. Our Canadian neighbors may have just helped U.S. trademark owners who wonder about the legality of use of their trademarks in Google AdWords ads, and other search-engine keyword ads…more

A Common Interest Agreement May Not Be Worth the Paper It’s Written On

It is a very common practice for counsel to co-defendants or co-plaintiffs to enter into agreements that shield their communications. The agreements are expressions of intent that the communications will be protected by the “common…more

Uncertain Times Call for Cool Heads

We live in changing times. In 2016, both the election of President Donald Trump and the Brexit vote caught many off guard. Already there’s nothing concrete about 2017 and looking even further ahead is fraught with difficulty…more

OCC's Proposed Licensing Guidelines Treat Fintech Charters Like Any Other National Bank

A fintech company considering a national bank charter will need to consider whether committing to a multi-year business plan is feasible in an industry that is constantly evolving, and in which the ability to respond quickly to market…more

Needle and the Damage Done: Pharmacist’s Phobia Not Enough for ADA Claim

Can fear of an aspect of your job constitute a disability under the ADA? Depends on how essential the function is. In Stevens v. Rite Aid Corp, the Second Circuit Court of Appeals looked at the case of a Rite Aid pharmacist…more

SEC Shortens Settlement Cycle to T +2

On March 22, the Securities and Exchange Commission (the "SEC") adopted an amendment to Rule 15c6-1 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to shorten the standard settlement cycle for most…more

Hot to trot: China's State Council orders further liberalization to turn the tide on foreign direct investment in China

On 12 January 2017, China's State Council issued the Expansion of Liberalization and the Active Utilization of Foreign Investment Circular Several Measures. The State Council Liberalization Measures set out framework policies to…more

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