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Hart-Scott-Rodino Thresholds to Increase Effective February 25, 2016

The Federal Trade Commission (“FTC”) has announced revised thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”), that will go into effect on February 25, 2016. The revised thresholds will…more

FTC settles case against Vulcun for installing apps on users’ phones without permission

On February 5, 2016, the Federal Trade Commission (FTC) announced that it has agreed to settle its case against Vulcun alleging that it “unfairly replaced a popular web browser game with a program that installed applications on…more

Litigation Watch: Can a Third-Party Vendor Be Left Holding the Bag After a Breach?

Many organizations, particularly those outside of the technology sector, rely heavily on third-parties—including cyber security specialists, lawyers, and public relations firms—to help pick up the pieces after a data breach. But what…more

You Could Lose More Than Just Customers: Why You Should Lock Up to Crack Down on Cyber Risks

The most searched word around the office is “cybersecurity”. This year promises to hear myriad cases centered on this suddenly-forefront topic. The issue of security for virtual information has been around for years, but with major…more

Where Have You Gone Dennis Kozlowski? Third Circuit Dismisses Tyco Employee’s Whistleblower Claim Over Excessive Corporate Spending

On February 2, 2016, the Third Circuit affirmed the dismissal of a long-running SOX whistleblower suit filed by Jeffrey Wiest, a former accounts payable manager for Tyco Electronics. The decision is the first in which the Third Circuit…more

Board Explains the Process for Evidentiary Objections—and Illustrates the Severe Penalty for Not Following It

Practitioners who are used to district court litigation may be surprised—and tripped up—by the rules for objecting to evidence in IPRs, which differ significantly from the approach used in litigation. The Board’s Final Written…more

Withholding Tax Set to Increase

The Foreign Investment in Real Property Tax Act (FIRPTA) subjects foreign sellers to U.S. tax when they sell their interest in real property located in the U.S., including interests in companies that predominately hold real estate. To…more

Wealth Management Update - February 2016

February Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The February § 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs…more

The Failures and Future of the EB-5 Regional Center Program: Can it be Fixed?

Senate Committee on the Judiciary Hearing - The Senate Committee on the Judiciary (“Committee”) held a hearing on February 2nd regarding the future of the EB-5 Regional Center Program. The hearing was led by Senators Chuck…more

Annual FCC CPNI Certification Due by March 1, 2016; Upcoming Open Internet Rules Will Soon Expand CPNI-Type Obligations to Broadband

This is to remind our clients that the Federal Communications Commission’s (FCC) rules require every telecommunications and interconnected VoIP service provider (including wireless, cable telephony, and even paging and calling card…more

CMS Finalizes Long-Awaited Covered Outpatient Drug Rule

The Centers for Medicare & Medicaid Services (“CMS”) recently issued a final rule implementing provisions of the Patient Protection and Affordable Care Act of 2010 (“ACA”) that pertain to Medicaid reimbursement for covered outpatient…more

Contractors Beware: Subcontractor Exception to “Your Work” Exclusion May Not Save the Day

Commercial general liability (CGL) coverage for a general contractor is not guaranteed, even if property damage is all a subcontractor’s fault. Consider the following example: A general contractor builds a stadium for which a…more

“Why” - A Word Not Just for Children

Are you spinning your wheels and do not know why? Do you think you know how to begin a task but then find you are not entirely sure how to proceed? Try thinking like a child! This may seem like odd advice for a professional…more

Another auto finance company agrees to change dealer compensation policy to settle ECOA claims alleged by CFPB and DOJ

The CFPB and Department of Justice (the “Agencies”) announced recently that they have entered into a settlement with Toyota Motor Credit Corporation (TMCC) to resolve charges that TMCC engaged in unlawful discrimination in violation of…more

Alabama Tax Tribunal Rules Certain Freight Charges are Not Subject to Sales Tax

In Mike Kilgo & Associates, Inc. v. State of Alabama Department of Revenue, the Alabama Tax Tribunal recently ruled that freight and shipping charges separately stated from other charges on a seller's invoice are not subject to Alabama…more

The Problems with 403(b) Plans

I always say that as bad as 401(k) plans may be, 403(b) plans are in much worse shape. It didn’t help that the Internal Revenue Service only issued regulations that governed them only 30 years too late, back in 2008. It also doesn’t…more

Reminder: FCC Annual CPNI Compliance Certifications Due March 1, 2016

The deadline applies to all telecommunications carriers and interconnected VoIP providers. Annual customer proprietary network information (CPNI) certifications are due March 1, 2016, for the period covering January 1 through…more

NASDAQ Proposes Rule Requiring Disclosure of “Golden Leash” Arrangements

On January 28, 2016, the NASDAQ Stock Market LLC proposed a change to its Listing Rules that, if implemented, would require NASDAQ-listed companies to publicly disclose so-called “golden leash” arrangements. “Golden leash” arrangements…more

CMS Finalizes Medicaid Home Health and Medical Equipment Policy Changes, Including Face-to-Face Encounter Requirements

CMS published a final rule on February 2, 2016 to implement statutory requirements regarding documentation of face-to-face encounters with Medicaid beneficiaries within certain timeframes as a condition of Medicaid coverage of home…more

How Does the Supreme Court’s Obergefell Decision Affect Your Employee Benefit Plans?

The short answer: No plan amendments are required, but certain plan amendments and operational changes are permitted, and certain operational changes may be required…more

From Runway to Replica: Intellectual Property Strategies for Protecting Fashion Designs

Designers like Alexander Wang, Rebecca Minkoff, and Michael Kors are all gearing up to premier their 2016 fall/winter collections this month during New York Fashion Week. Fashion Week draws more than 230,000 attendees each year to…more

Congress Considers Landmark Trade Secret Reforms

If enacted, the legislation would represent the most significant trade secret reform in many years. Major federal trade secret legislation is receiving strong bipartisan support and consideration in the US Congress. The…more

Glue Company in Sticky Situation with FTC over “Made in the USA” Advertising Claims—Who Will Get Stuck Next?

In a recent post, we discussed the potential perils and pitfalls of advertising consumer products as “Made in the USA.” As we noted there, different federal and state regulatory regimes do not necessarily follow the same standard on…more

House Energy & Commerce Committee Seeks Comments on Medicare Site-Neutral Payment Policies

The House Energy and Commerce Committee is seeking input on Section 603 of the Bipartisan Budget Act of 2015, which established a site-neutral payment policy for newly-acquired, provider-based, off campus hospital outpatient…more

U.S. Regulators Disagree On Government Access To Encrypted Information

On January 25, 2016, at the State of the Net Internet Policy Conference in Washington, D.C., Assistant Attorney General Leslie Caldwell from the Department of Justice and Commissioner Terrell McSweeny from the Federal Trade Commission…more

Changes to Iran Sanctions Provide a Few Business Opportunities, but Many Hurdles

On January 16, 2016, the International Atomic Energy Agency verified that Iran had implemented nuclear reforms negotiated among the United States, the European Union and Iran, a milestone in the agreement referred to as the Joint…more

Should Your Employees Get More Sun, Surf, and Sand? A Quick Look at Unlimited Vacation Policies

The news reports that more and more companies are moving to offer unlimited vacation time. On its face, this policy change appears to be a generous offer by employers to boost employee morale and attract top talent, but there may be…more

Insurance Recovery Group News: Was it Vandalism or Was it Theft?

Was it vandalism or was it theft? According to Connecticut District Court Judge Jeffrey Meyer, that was the $2 million question in Mercedes Zee Corp., LLC v. Seneca Ins. Co., 2015 WL 9311343 (D. Conn. Dec. 22, 2015). Standard…more

OIG Interim Evaluation of ACA LTC Employee Background Check Grant Program

The HHS Office of Inspector General (OIG) has issued an interim evaluation report on an Affordable Care Act (ACA) program that provides grants to states to implement background check programs for prospective long-term care employees…more

Middle East PPP Policy Developments: Kuwait and Dubai

In a climate of falling oil prices and tightening government budgets, several states in the Gulf Cooperation Council region (GCC) are looking again at Public Private Partnerships (PPP) as one of several business models for the…more

Getting the Measure of EGC Corporate Governance Practices: A survey and related resources - February 2016

Corporate governance has changed dramatically since passage of the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The level of shareholder engagement and institutional investor…more

The EEOC’s Proposed Revisions To The EEO-1 Report Could Create Legal and Administrative Headaches For Employers

The EEOC unveiled its proposed revisions to the Employer Information Report (EEO-1) last month. With the revisions, the EEOC hopes to gather additional data to help better discern pay discrimination. However, the revisions could also…more

Lowering the Bar for Irreparable Harm: Infringing Feature Need Not Be the Exclusive Driver of Consumer Demand - Apple Inc. v. Samsung Elecs.

How does a patent owner prove it has been irreparably harmed when the protected feature is only a small part of an infringing device? The U.S. Court of Appeals for the Federal Circuit answered that question in the ongoing IP battle…more

Bank Executives, Board Members Hit With SEC Fraud Charges

Why it matters - A group of bank executives and board members were hit with fraud charges by the Securities and Exchange Commission (SEC), with the agency accusing the defendants of engaging in a scheme to mislead investors and…more

New Guidelines on Collecting Biometric Data Help Businesses Stay Ahead of the Game

The amount of data collected worldwide is rapidly proliferating, and one international organization wants to make sure it’s clear how to protect what is arguably the most sensitive category of that data: biometrics…more

Naruto v. Slater - USDC, N.D. California, January 28, 2016

District court dismisses copyright infringement action brought on behalf of macaque monkey who took “selfies” using defendant photographer’s camera, holding that animals lack standing under the Copyright Act…more

California Environmental Law & Policy Update - February 2016

Environmental and Policy Focus - California extends mandatory water cuts despite growing snowpack - Sacramento Bee - Feb 2 - California’s drought regulators agreed Tuesday to extend water conservation mandates through…more

EEOC Proposes Rule Requiring Employers to Report Wage Data on EEO-1 Form

Late last week, the Equal Employment Opportunity Commission (EEOC) proposed a rule that would require employers with 100 or more employees to report data concerning employee pay on an annual basis. The rule, designed to strengthen the…more

Same Plaintiff Files New Complaint to Force SEC to Act on Rulemaking Petition Regarding Political Contributions

The United States District Court for the District of Columbia recently dismissed Stephen M. Silberstein’s complaint to mandate the SEC to adopt rules regarding disclosure of political contributions. Among other things, the Court found…more

USDA Announces New Standards to Reduce Salmonella and Campylobacter in Poultry

New standards promulgated by the Food Safety and Inspection Service pose new challenges to the poultry industry. On February 4, the US Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) released an…more

Gifts to a Special Needs Trust Can Be Larger Than You May Think

The federal gift tax system is one of the most misunderstood concepts in special needs planning, and for good reason: it's incredibly complicated. This complexity has resulted in the propagation of one of the most common estate…more

Eminent Domain: Be Careful What You Ask For

The condemnation of property for public works may not always be as clean and easy as the government would like. Although local governments are often critical players in the cleanup and redevelopment of contaminated properties…more

SEC-USAO Bring Insider Trading Case That is “Newman-Proof”

When anyone discusses insider trading these days Newman invariably becomes a key topic. Prosecutors decry the decision and its tipping standard. Little doubt why. It has been offered as a defense in innumerable cases. A number of…more

Antideficiency Protection Applies to Both Short Sales and Foreclosure Sales

In January, the Supreme Court of California affirmed the Court of Appeal’s application of Code of Civil Procedure section 580b and held that the statute’s antideficiency protection applies to short sales just as it does to foreclosure…more

Good News for Creditors in Individual Bankruptcy Cases

For the past several years, creditors in the Ninth Circuit were confounded by an interpretation of the bankruptcy code that permitted individual chapter 11 debtors to retain a significant portion of their assets without creditor…more

EU Data Protection Regulators All Set to Scrutinise ‘EU-U.S. Privacy Shield’ and Transfer Mechanisms to the U.S. Generally

On 3 February, the Article 29 Working Party (‘WP29’), a group comprising representatives of the EU Member States’ Data Protection Authorities (“DPAs”), issued a statement cautiously welcoming the agreement on an “EU-U.S. Privacy…more

Are You in Compliance with OSHA’s New Confined Space Standard for the Construction Industry?

Most employers in the construction industry already know that OSHA issued a new confined space standard for construction that became effective on August 3, 2015. Companies with employees who enter confined spaces at construction…more

CMS Posts Revised Application for Meaningful Use Hardship Exceptions

On January 22, CMS posted a revised application and instructions for a hardship exception from the Meaningful Use program penalties in 2015. Under the new, streamlined application process, which CMS says is a temporary measure…more

Managers Beware: Individual Liability Confirmed Under USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain…more

3rd Circuit Affirms Dismissal in Long-Running Weist SOX Whistleblower Case

On February 2, 2016, the Third Circuit affirmed the dismissal of the SOX whistleblower retaliation claim in the closely watched case of Weist v. Tyco Electronics Corp., No. 15-2034. We have posted on key events during the life of this…more

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Real Estate Counselors, PLLC. is a boutique law firm specializing in commercial real estate and business transactions, with offices in DC, Maryland, Virginia and New York. Bruce Rosen is the…

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