Latest Updates

When in Doubt, Assume the Earliest Possible Deadline

One of the most important factors in preserving your appellate rights is knowing when the clock starts running on your deadline to appeal. While the answer may appear simple as a matter of course, that is not always the case. In Love… more

New disclosure requirements applying to EU fund distribution in 2018

Asset managers located inside and outside the European Union (“EU”) must comply with the new “point of sale” disclosure requirements that will apply when they distribute financial products, and investment services, to EU investors and… more

Claim Is Gone With The Wind At Death

Two time academy award winner Olivia de Havilland seeks an expedited trial for the lawsuit involving her right of publicity. Olivia de Havilland, DBE v. FX Networks, et al, BC667011 (Superior Ct. Calif., June 30, 2017). The urgency is… more

Mexico: Amendment to Regulations Governing Handling and Storage of Materials

On September 18, 2017, the Official Gazette published an amendment to the regulations on the handling and storage of materials. Specifically, the amendment modifies the Mexican Official Regulation NOM- 006-STP-2014, which establishes… more

Broad language in Settlement Agreement helps settling plaintiff hang on to millions, despite claims that settlement was obtained via fraud on the court

A plaintiff who received fifty five million dollars (and 22,500 acres of land) via a settlement was able to hang on to all of it, despite allegations that it had been obtained by means of fraud on the court, thanks in part to broad… more

Continuing Coverage of FDA’s Crackdown on Stem Cell Clinics: Florida Clinic Cited for Unapproved Marketing and Inadequate Sterility Assurance

On the same day that FDA’s Commissioner, Dr. Scott Gottlieb, announced new policy initiatives regarding stem cell therapies and regenerative medicine, FDA announced stepped up enforcement in this area and posted a warning letter issued… more

Omaha Breach: Doctrine of First Breach May Hinge on Correct Contract Interpretation

Which party first breached a contract often plays a determinative role in assessing entitlement for damages in a contract dispute. This theory is often referred to as the First or Material Breach Doctrine… more

It’s About Context: CFPB Wins Bench Trial Against Third Party Servicer for Deceptive Advertising

On September 8, 2017, a judge in the Northern District California assessed a statutory penalty of $7,930,000 against Nationwide Biweekly Administration, Inc. (Nationwide) and issued an injunction prohibiting further deceptive… more

Sling TV Sued on Use of H.264 Standard in Streaming Media Services

While much of the attention on NPE patent litigation centers on the big technology players like Google and Apple, literally hundreds of other technology companies face these lawsuits, and more and more of that litigation involves cloud… more

Prime contractor found nonresponsible based on undisclosed vendor-vetting process - contingency contractors beware

Contingency contractors should take note of a recent bid protest decision from the Government Accountability Office, which approved the Department of Defense's use of a special, non-transparent database to determine the responsibility… more

D.C. Circuit Strikes Down FAA’s Recreational UAS Rule

The Federal Aviation Administration (“FAA”) has long set standards for the operation of aircraft in the United States, including extensive requirements for aircraft registration. Historically, the FAA did not interpret the general… more

Advanced Weather Data: Vital for the Future of Commercial Drone Operations

Back in December 2016, Amazon executed its first customer delivery by drone in the United Kingdom. Now, as Amazon, and other large retailers, aim for widespread deployment of drones for the delivery of goods to consumers, it is… more

California Bill May Spur Rewriting Gender Boilerplate

On the penultimate day of the current session, the California legislature passed SB 179 (Atkins & Wiener). If signed into law by Governor Brown, this bill would enact the California Gender Recognition Act. In general, SB 179 would… more

SEC, USAO Charge Tech Company Founder With Insider Trading

Most of the discussion about insider trading these days is dominated by debates about whether there is a personal benefit, a gift, the application of the Supreme Court’s opinion in Salman last term or the split opinion in Martoma by… more

FDA Announces Biosimilar User Fee Act Rates for FY2018

Last week, the FDA announced the Biosimilar User Fee Act (BsUFA) rates for the 2018 federal fiscal year, which runs from October 2017 through September 2018. The FDA determined these rates pursuant to the Food and Drug Administration… more

You Don’t Be THAT Person on Someone Else’s Holiday

Today marks Rosh Hashanah, the Jewish New Year and one of the holiest days of the Jewish year. But it’s a day of business to many… more

Investment Adviser Compliance with SEC’s Amended Form ADV

Beginning October 1, 2017, investment advisers filing Form ADV with the Securities and Exchange Commission (the “SEC”) must file using the amended form adopted by the SEC on August 25, 2016 (the “Amended Form ADV”). According to the… more

An Update from Mars: “CocoVaa” Dispute Resolved

Earlier this year, I posted about a dispute between candy company Mars Inc. and a small business based in Wisconsin, selling handmade fine chocolates under the mark CocoVaa… more

Compliance Lessons From Burner Phones

Hunter S. Thompson once said that when the going gets weird, the weird turn pro. It turns out that amateurs can get weird too. The University of Mississippi football program, which is under a self-imposed postseason ban and is awaiting… more

Tennessee Health Services and Facilities Report: September 2017

The Tennessee Health Services and Development Agency (“HSDA”) is responsible for regulating the health care industry in Tennessee through the Certificate of Need Program. A Certificate of Need (“CON”) is a permit for the establishment… more

Corporate News – September 2017

A monthly newsletter covering topics of interest in the field of UK corporate law including mergers and acquisitions, listed companies, equity capital markets, corporate governance and general company law. This month's edition… more

A Primer on the Canada-European Union Comprehensive Economic and Trade Agreement

CETA is the Comprehensive Economic and Trade Agreement between Canada and the European Union (EU) and its member states. CETA comprises 30 chapters of rules respecting trade between Canada and the EU. The agreement was signed by… more

Your Daily Dose of Financial News

As expected, the Fed left interest rates at current levels yesterday, though it hinted at another December rate hike and officially unveiled the start of its bond wind-down next month… more

Time to Rehab the Aging Condominium Concept - Fixing Problems Uncovered By The Great Recession

The condominium concept in the United States is now over 55 years of age. Many of the early condominium projects are old and in need of rehabilitation or cannot economically be rehabilitated and are candidates for demolition and… more

Leveraging – A Hidden Advantage Of Roth 401(k) Accounts

There have been numerous articles published about the advantages of Roth IRAs and Roth 401(k) accounts. While no tax deduction is available for contributions to Roths, in general, distributions of both principal and earnings are… more

Finally, Recovery of Attorney Fees for Government Overreach

There are two major, interrelated reasons why government contractors, including Medicare providers, are so afraid of the False Claims Act (FCA). One is the draconian nature of the liability: treble damages plus up to $21,916 in… more

Tennessee CON Report

I. August 2017—Tennessee Certificate of Need Meeting - The agency approved the following applications during the August 23 meeting. A. Consent Agenda - 1. Vanderbilt University Medical Center, Nashville (Davidson County), TN… more

Second Circuit Dismisses FACTA Class Action Under Spokeo

The Second Circuit’s Sept. 19, 2017 decision in Katz v. The Donna Karan Company, LLC, et al., Dkt. No. 15-464, has potentially provided a new road map to defeating class actions alleging statutory damages for bare procedural… more

Federal Circuit: PTO Can’t Shift Burden Of Proof Of Patentability To Applicant

In In re Stepan Co., 2017 U.S. App. LEXIS 16246, decided August 25, 2017 the Federal Circuit Court of Appeals made it very clear that during patent prosecution, the burden of proving patent ability lies with the PTO examiner. The… more

11 Tasks That Paralegals Can Delegate To Court Reporting Firm

Paralegals oftentimes are the engine that keeps a law firm running. They are incredibly efficient with time, resources, and know how to delegate important tasks that need to be done correctly in an expedited manner. Kramm Court… more

Reviewing the Justices’ Voting Records in Death Penalty Appeals, 1994-2017 (Part 1)

Last week, we looked at how often the Justices voted with the majority in death penalty appeals, regardless of whether the decision was to affirm, reverse in part while affirming the sentence, reverse in part and vacate the sentence… more

Netherlands Adopts US FDA-based UDI System for Medical Devices

A voluntary agreement (link in Dutch) was consummated by the Dutch Ministry of Health, industry, and hospitals. According to an Emergo blog post, under the terms of the agreement, the Netherlands will adopt the US Food and Drug… more

LNG Development and Financing in the US – Market Update

Recent growth in domestic natural gas production, together with expectations of continued growth, has positioned the U.S. to be a significant gas exporter for the foreseeable future. The timing of this shift for the U.S. is opportune… more

Lessons From a Year of Escobar

It has been one year since the U.S. Supreme Court’s landmark ruling in Universal Health Services v. United States ex rel. Escobar, which resolved a circuit split as to the validity of the implied false certification theory under the… more

A Seismic Shift in UK Patent Infringement Law - Actavis v. Eli Lilly

In a decision that appears to have introduced a doctrine of equivalents for the first time, the UK Supreme Court has shifted the laws on patent infringement in Actavis v. Eli Lilly UK [2017] UKSC 48. While this case represents a… more

Companies Amend Bylaws in Response to Activist ‘Placeholder Slate’ Tactic

In the past year, more than 50 publicly traded companies, including 19 on the Standard & Poor’s 500 index, have amended their bylaws to address the potential for a so-called “placeholder slate” of directors. The bylaw amendments began… more

District Court Finds Mallinckrodt Patents Claim Unpatentable Natural Phenomena

The recent district court ruling in INO Therapeutics LLC et al v. Praxair Distribution, Inc. et al employed the two-step analytical framework of Mayo/Alice to evaluate subject matter eligibility under 35 U.S.C. § 101, and the court… more

Spring Cleaning Comes Early: The Affordable Care Act and the Importance of Updating ERISA Plan Documents

The year 1974 was a watershed for employee benefits. For the first time, the federal government undertook the complicated task of providing a statutory and regulatory framework for employee benefit plans and employee pension plans. The… more

Stating The Obvious On Fees

The 401k Averages Book is one of the great publications in the retirement plan business and I recommend it. I won’t recommend a report they just did because it was stating the obvious… more

Greenhouse gas emissions trading schemes: A global perspective - United States

Individual states are expected to take the lead in regulating greenhouse gas emissions - In the US, the trading of greenhouse gas (GHG) emission-reduction credits is underway in a large group of states on the East Coast and in… more

Court denies restitution sought by CFPB in lawsuit against biweekly mortgage payment companies

In another recent defeat for the CFPB, a California federal district court refused to award restitution sought by the CFPB in its lawsuit filed in May 2015 against two related companies offering a biweekly mortgage payment program and… more

Tax treaty interpretation

On 31 August 2017, the Dutch Court of Appeals of 's-Hertogenbosch issued judgment in a case dealing with the application of the most-favoured-nation (MFN) clause contained in the Netherlands/South Africa Double Tax Agreement (the… more

IRS Announces Benefits Relief For Hurricane Victims

In the wake of Hurricane Harvey, the IRS provided some employee benefits-related relief to plan sponsors and participants. That relief was then extended to the victims of Hurricane Irma… more

The Trump Administration’s Automated Vehicles Guidance Hits the Gas Pedal on Innovation

Further accelerating federal regulation of automated vehicles, last week the U.S. Department of Transportation and the National Highway Traffic Safety Administration (“NHTSA”) announced highly anticipated new guidance for the testing… more

Full Implementation Of Fiduciary Rules Extended

In April 2016, the Department of Labor issued regulations to expand the definition of “fiduciary” under ERISA and the Internal Revenue Code as applied to those who render investment advice for a fee or other compensation with regard to… more

Business Risk Doctrine No Talisman in CGL Coverage Dispute

In a recent decision, the California Court of Appeal demonstrated that it continues to apply rules of insurance policy interpretation that are favorable to policyholders. Rejecting an insurer’s strained readings of its policy… more

Responding To Mental Health Parity Model Disclosure Request Form

In June 2017, the Departments of Labor, Health and Human Services and Treasury released a draft model form that participants may use to request mental health/substance use disorder (MH/SUD) limitation information from their health plan… more

Say Goodbye to the 30/60 Day Rule

When applying for a nonimmigrant or temporary U.S. visa and when actually seeking to enter the U.S., most applicants – including those for B visitor, F student and J exchange visitor – are required to convince the consular or port… more

Takeoff Denied Again: B.C. Court of Appeal Affirms Denial of Airline Fuel Surcharge Class Action

On September 12, 2017, the British Columbia Court of Appeal (Court) affirmed the refusal to certify a class proceeding against various airlines regarding the description of fuel surcharges in Simsek v. United Airlines, Inc. (also… more

Today in Federal Circuit History…

The courthouse that houses the Federal Circuit was dedicated on September 20, 1967. Originally, the building plan called for a courthouse and an office building for White House staff, such that the Dolley Madison House, the former… more

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