Latest Updates

Removal Of Fair Pay And Safe Workplaces Rule Imminent: GSA Issues Interim Memorandum

Rulemaking is underway to amend the Federal Acquisition Regulation (FAR) to remove the Fair Pay and Safe Workplaces Final Rule, the General Services Administration has said in guidance to federal agencies instructing them not to wait… more

[Video]Day 16 of One Month to Better Investigations and Report -Privacy Concerns in Investigation

Prior to the Schrems decision by the European Court of Justice, US based law firms could rely on Safe Harbor to use and analyze information from investigations conducted in Europe. However the Schrems decision and subsequent EU privacy… more

DSM Watch: EU online content services Portability Regulation will become law in its current form: Council adoption 8 June 2017

DSM Watch has been tracking this, the first legislative proposal published by the Commission under the Digital Single Market strategy banner, since back in December 2015.  The Commission’s aim was to allow consumers who pay for online… more

A Resurgence of Synthetic Securitizations - After a major market contraction in the wake of the financial crisis, risk-pooling transactions show signs of gaining favor once more

Within the past few months, there have been a number of reports of the resurgence, particularly in Europe, of synthetic securitizations of risky assets. These transactions allow banks to transfer credit and other default risks with… more

Restricted Rights Under DFARS 252.227-7014: Practitioner Advice for Avoiding DoD Licensing Pitfalls

This article focuses on contractor licenses that grant “Restricted Rights” in “Noncommercial Software” to the federal Government under Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.227-7014. DFARS 252.227-7014 only… more

[Video]Value-based health care: fraud & abuse laws

Michael Lampert, Ropes & Gray health care partner, discusses fraud and abuse law application to value-based health care arrangements. __ Much has been made about how the fraud and abuse laws, which were designed in order to prevent… more

Tenth Circuit Departs From Other Circuit Courts and Holds Plaintiff Bears the Burden of Proving Causation in ERISA Breach of Fiduciary Duty Cases

On June 5, 2017, in a split decision to be published, the U.S. Court of Appeals for the Tenth Circuit held that the plaintiff bears the burden on each element of its Employee Retirement Income Security Act of 1974 (“ERISA”) claim for… more

The Current CMBS Experience – And a Path Forward

The CMBS industry is not attracting repeat borrowers in sufficient numbers and must improve the performing borrower experience if it’s to survive. Our Finance Group presents the results of our survey of players in the CMBS industry and… more

Choose Wisely When Co-Owning Property

Predictability that joint owners/tenants need today: This spring, the Tennessee Supreme Court ruled that joint property owners can eliminate the survivorship rights of jointly held property, changing their ownership to tenants in… more

Supreme Court Rocks the Trademark Office in “Slants” Case

After a streak of six patent decisions uniformly overruling the Federal Circuit, and for the first time all term, the Supreme Court finally handed the Federal Circuit a win this week. In its landmark ruling in Matal v. Tam (formerly… more

New Opportunities for Shareholder Meetings in Virginia and Beyond

This spring, Virginia Gov. Terry McAuliffe approved legislation passed by the General Assembly permitting Virginia corporations to hold virtual-only shareholder meetings, beginning July 1, 2017. When the new law goes into effect… more

Department of Homeland Security Rescinds DAPA Program

On Thursday, June 15, 2017, the Department of Homeland Security Secretary John Kelly rescinded an Obama administration memorandum creating DAPA, a deferred deportation program for undocumented parents of U.S. citizens and lawful… more

FDA Changes Warning For Fluoroquinolones

Fluoroquinolones is a drug used to treat respiratory and urinary infections. Fluoroquinolones include the following drugs: Avelox (moxifloxacin); Cipro (ciprofloxacin); Cipro extended-release (Cirpofloxacin extended-… more

EU Telecoms Regulation Based on Unilateral Market Power Would be Contrary to EU Law

The existing EU regulatory framework for electronic communications obliges the EU Member States to provide in their national laws for certain powers and responsibilities of national regulatory authorities (“NRA”), in particular related… more

Minnesota Legislative Update: From the Capitol to the Courtroom

Following the adjournment of the 2017 regular session and a short special session, the Legislature passed and presented to Governor Dayton a comprehensive and balanced budget for fiscal years 2018 and 2019, including nine appropriation… more

Investigating Transgender Student Discrimination Under New Education Department Directives

Department of Education regional directors have been given new instructions on sex discrimination protections for transgender students under Title IX of the Education Act of 1972. Two updated, internal Office of Civil Rights (OCR)… more

Sharing Economy: European Parliament call for EU level guidance on employment and social security questions

To regulate or not to regulate: This question becomes relevant for the sharing economy after last week’s European Parliament resolution calling for clear EU guidelines on the collaborative economy. The resolution is a response to the… more

Words Matter-Chimpanzees Are Not “Clients”

You have probably heard of the decision by the First Judicial Department’s Appellate’s Division upholding the lower courts’ decision not to sign orders to show cause seeking the transfer of chimpanzees from one form of captivity to… more

Earthquake Coming? Supreme Court to Weigh Constitutionality of IPRs (2nd Article)

On June 12, the Supreme Court took certiorari on probably the biggest IPR case possible: a case challenging the constitutionality of IPRs on separation-of-powers and seventh amendment grounds. This comes just a few weeks after the… more

Massachusetts Court Refuses to Entertain Non-Compete Action Against California-Based Employee

A Massachusetts trial court judge sitting in the Business Litigation Session recently issued a decision, in Oxford Global Resources, LLC v. Hernandez (1684CV003911-BLS2) (June 9, 2017), refusing to enforce Massachusetts choice of law… more

Supreme Court Strikes Down Ban on Disparaging Trademarks

The Supreme Court on Monday in Matal v. Tam unanimously struck down part of a 70-year old federal trademark law, holding that it violates the Free Speech Clause of the First Amendment. Simon Tam leads a four-person band. All four… more

Trump Administration Discusses The Future Of Drones

With the Trump Administration’s focus on jobs and building the economy, it makes perfect sense that it would explore opportunities in one of the fastest growing industries right now: drones. In what may be the first direct outreach to… more

Instagram Announces a New Tool for Influencers

Last year, we posted that four consumer groups had sent letters to FTC, encouraging the agency to “investigate and bring enforcement actions related to the practice of non-disclosed advertising through influencer user profiles on… more

SCOTUS Strikes Down Ban on Disparaging Trademarks

Earlier this week, a unanimous but fractured Supreme Court ruled that a controversial provision in the Lanham Act prohibiting the registration of trademarks that disparage “persons, living or dead, institutions, beliefs, or national… more

Zap! It’s the Devil – No Really: Accommodating Religious Beliefs

Imagine that in order to increase time and attendance record accuracy and efficiency, you have invested in a new biometric time clock system. This makes good business sense and overall, it is a straightforward issue…until HR tells you… more

Reading Inadvertently Disclosed Privileged Documents Risks Disqualification

Nearly every case focusing on inadvertently disclosed privileged communications (during document productions or at other times) focuses on the privilege waiver implications. However, the stakes can be much higher… more

Policyholders Beware: New York Court of Appeals Restricts Additional Insured Coverage Under Common Policy Endorsement to Injuries Proximately Caused by Named Insured

Recently, the New York Court of Appeals, in Burlington Insurance Company v. NYC Transit Authority, held that a common insurance policy endorsement extending coverage to additional insureds for liability for bodily injury “caused, in… more

Trump’s Cuba Policy Reverses Course Set By Obama

Simpler and less expensive travel to Cuba by Americans is apparently short-lived, as more difficult and costly travel to the island nation appears forthcoming. In a recent speech in Miami outlining his policies on Cuban travel and… more

Bitcoin Redux With An Ethereal Twist

We last wrote about Bitcoins in late March, 2014. The principal concern we expressed at that time was that these cryptocurrencies might form a refuge from financial disclosure in the typical divorce setting. The specifics of how these… more

Treasury Department Issues FAQ on Impact of Cuba Policy Shift

On June 16, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) issued a press release answering 12 "Frequently Asked Questions" ahead of President Trump's announcement of a revised U.S. policy towards Cuba… more

Neste Announces Plans To Invest In Research On Waste And Residue Raw Materials

On June 6, 2017, Neste, a member of BRAG, announced that it would direct a large amount of its resources to researching waste and waste raw materials. In the future, Neste aims to produce biofuels and bioplastics from waste and… more

The PCAOB, Audits, and Compliance - Considerations for the Chief Compliance Officer

I recently had the chance to visit with Joe Howell, the Executive Vice President of Workiva LLC, to discuss, among other things, the function of the Public Companies Accounting Oversight Board (PCAOB) and what role it might play in… more

Startup Real Estate Tip: The 'Good Guy' Guaranty - Slow Down a Second

If you are contemplating agreeing to execute a good guy guaranty, you must both be in control and be totally immune from being fired. Otherwise..… more

EU Retail News - June 2017

2017 is shaping up to be the year that the UK's Committee of Advertising Practice ("CAP") puts its foot down on how companies can advertise to children online. In recent months, CAP has published a multitude of guidance to ensure that… more

Matal v. Tam: Trademark Disparagement Clause Held Unconstitutional

Yesterday, the Supreme Court held in an 8–0 decision that the disparagement clause in the Trademark statute—which prohibits the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any… more

European distressed debt and private equity - defensive strategies coming to the fore?

Where a corporate borrower defaults on its debt terms, distressed debt investors are often presented with opportunities to acquire the debt at a discount. The strategy of investing in distressed debt presents investors with a number of… more

Time Bars for Medical Compensation and Evidence Bars for Indemnity Benefits

Capen Trucer Carl Anders, II v. Universal Leaf North America - In Capen Trucer Carl Anders, II v. Universal Leaf North America, No. COA 16-910, the Plaintiff appealed an Industrial Commission decision denying his claim for… more

A Good Day for Free Speech Advocates: Supreme Court Holds Unconstitutional Federal Trademark Law’s Anti-Disparagement Provision

In Matal v. Tam, the United States Supreme Court held unconstitutional, under the First Amendment, the “disparagement clause” of 15 U.S.C. § 1052(a), which permits denial of a trademark registration application by the United States… more

EEOC Wants Employers to “Reboot” Harassment Prevention

Many employers provide some training for their employees on the subject of sexual harassment. Recently, the EEOC has provided its view on employer training. The EEOC’s 16-person task force found that the training spent too much time on… more

Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By ‘whey’ of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of Agriculture… more

Supreme Court Strikes Down Statute Banning Disparaging Trademarks

On June 19, 2017, the Supreme Court in Matal v. Tam unanimously held that a portion of 15 U.S.C. § 1052(a), the Lanham Act provision that prohibits the registration of trademarks that may “disparage . . . persons, living or dead… more

UK: Government sets out in the Queen's Speech measures for protecting insurance customers

The government has today set out the details of its legislative programme for the next two years in the Queen’s Speech.  One of the issues to be addressed in this parliamentary session will be tackling the “compensation culture”… more

In Victory for The Slants, U.S. Supreme Court Strikes Lanham Act’s Disparagement Clause

In Matal v. Tam, the United States Supreme Court struck a provision of the Lanham Act that has been used to deny federal registration of trademarks deemed disparaging to “persons, . . . institutions, beliefs, or national symbols.” In a… more

U.S. Department of Education Delays Borrower Defense to Repayment Regulations, Announces New Negotiated Rulemaking Committees

On June 14, the U.S. Department of Education (“ED”) announced its plan to convene negotiated rulemaking committees to consider revisions to two major sets of regulations that were developed by the Obama Administration. ED also… more

Supreme Court: Disparaging Speech Protected By First Amendment Lanham Section 2(a) Unconstitutional: A Win for the Slants and the Skins

In a unanimous (albeit fractured) decision written by Justice Alito, the United States Supreme struck down a provision of the Lanham (Trademark) Act barring registration of “disparaging” trademarks, handing a victory to Asian-American… more

Preserving California’s Tied-House Rules - Ninth Circuit en banc decision upholds decades-old law restricting alcohol beverage supplier-paid advertising in retail establishments

On June 14, 2017, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, issued its decision in Retail Digital Network LLC v. Ramona Prieto, Case No. 13-56069, D.C. No 2:11-cv-09065-CBM-PJW. The decision rejects a First… more

Appellate Court Notes

Supreme Court Advance Release Opinions: - SC19799 - Middlebury v. Connecticut Siting Council Neighbors unsuccessfully challenged the modification of an approval for a new power plant before the Siting Council claiming the Council… more

Avoiding State Law Pitfalls (Part 2 of 4)

This is the second hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws. Scenario #2 - A manager of a Chicago, Illinois restaurant calls you regarding a long-term employee whose son… more

Iran and Russia Sanctions Pass US Senate

Last week, the U.S. Senate acted to pass both new Iran and Russia sanctions by large bipartisan margins. The House of Representatives has not yet acted on either piece of legislation. We anticipate that Congress will ultimately pass… more

Six years after Penn State, has college athletics really reformed its crisis response?

In 2011, the world of higher education — and the entire nation — was rocked by the shocking revelation of the criminal actions of longtime Penn State defensive coordinator Jerry Sandusky. Equally shocking was the reaction (and… more

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