Latest Updates

Is A Racial Or Ethnic Group A “Person”?

Yesterday’s post concerned the U.S. Supreme Court’s holding in Matal v. Tam, 2017 U.S. LEXIS 3872 (June 19, 2017) that the “disparagement clause” of the Lanham Act violates the Free Speech Clause of the First Amendment. As far as most… more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

In EmeraChem v Volkswagen the Circuit reverses a determination of obviousness because the ?Board did not provide the patentee with an adequate opportunity to address a prior art reference ?that formed a principal basis for its… more

EU General Data Protection Regulation and private equity

To say that the EU General Data Protection Regulation (GDPR or the Regulation) will change the existing data protection framework in Europe is an understatement. In less than a year, an ambitious, complex and strict law will transform… more

Federal district court denies state AGs’ request to redirect unused CFPB settlement funds to NAAG

We previously reported that the Connecticut Attorney General, on behalf of himself and the Attorneys General of Indiana, Kansas and Vermont (the “state AGs”), had filed a joint motion to intervene in a CFPB enforcement action against… more

Time’s Up: Supreme Court Affirms Three-Year Deadline for Opting Out of Section 11 Class Actions

On June 26, 2017, the U.S. Supreme Court issued a decision that will have a significant effect on securities class action litigation, changing the strategic calculus for both institutional plaintiffs and defendants. In California… more

Jelly Beans Contain Sugar - The Continuing Saga of Evaporated Cane Juice Litigation

In February, plaintiffs filed a class-action lawsuit in California against candy maker Jelly Belly on behalf of consumers who purchased jelly beans marketed as “Sport Beans.” They claimed that Jelly Belly used the phrase “evaporated… more

June Washington Update

This month’s Washington Update offers an extensive overview of the major legislation that has recently been introduced on Capitol Hill, as well as the big takeaways from this month’s congressional hearings related to energy policy. We… more

Supreme Court Permits Limited Version of Travel Ban to Take Effect

On June 26, the U.S. Supreme Court issued a decision allowing the Trump administration’s temporary travel ban to go into effect for some travelers, reversing the actions of lower federal courts that had put the policy completely on… more

Preparatory Committee Chairman announces update on UPC Timetable

As previously reported, the Preparatory Committee announced in early June 2017 that the timetable for the start of the UPC would have to be delayed, with a new target start date yet to be confirmed… more

CFIUS and Real Estate - Renewed focus on national security concerns surrounding foreign acquisitions of U.S. real estate

The expanding influx of foreign investments in U.S. real estate has drawn the attention of three key U.S. Senators amid national security concerns. Senators Ron Wyden (D-OR), ranking member of the Senate Finance Committee; Claire… more

Being “Neighborly” Isn’t Just a Good Idea – It’s the Law

Those of us of a “certain age” know exactly what a speaker means when she says, “She’s the ‘Mrs. Kravitz’ of the neighborhood.” For those too young to appreciate the reference, “Mrs. Kravitz” was a character in the sitcom “Bewitched”… more

Locked-In: TCPA Consent Not Revocable If a Term of Contract

Consent to be contacted under the Telephone Consumer Protection Act (TCPA) is not revocable if included as a term of a written contract, according to a decision by the US Court of Appeals for the Second Circuit in Reyes v. Lincoln… more

Tenth Circuit Affirms Denial Of Motion To Compel Arbitration As To The Claims Of Non-Signatory Plaintiffs

A buyer of a manufactured home sued the manufacturer, seller and lender in connection with toxic mold that was found in the home’s water system. The underlying retail installment contract contained an arbitration agreement which… more

Second Circuit Holds That TCPA Does Not Permit Unilateral Revocation of Consent Obtained Contractually

The U.S. Court of Appeals for the Second Circuit recently held, in Reyes v. Lincoln Automotive Financial Services, that the Telephone Consumer Protection Act (TCPA) "does not permit a consumer to revoke its consent to be called when… more

Draft Senate Health Bill Finally Revealed—Vote Could Take Place as Early Next Week

On June 22, 2017, Republican Senators released a “discussion draft” of the Better Care Reconciliation Act (BCRA). The draft is the first public glimpse at the Senate version of the American Health Care Act bill, which narrowly passed… more

USCIS Makes H-1B Premium Processing Available for Physicians Under the Conrad 30 Waiver Program

On March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) unexpectedly announced that it would temporarily suspend its premium processing service for all H-1B petitions received on or after April 3, 2017. The premium… more

Here’s why you’re getting those unsolicited mailings about clinical trials

When consumers around the country started getting letters from a company that they had never heard of, inviting them to participate in clinical trials for medical conditions that they hadn’t disclosed to many or didn’t even have, the… more

Legislature Revises Physical Restraint and Seclusion Training Requirements

Earlier this month, the General Assembly passed House Bill 7276, now Public Act 17-220, which contains a number of provisions aimed at providing “mandate relief” to boards of education. Section 5 of Public Act 17-220, effective July 1… more

Is Foster’s Australian for False Advertising?

While trademark infringement is the headliner for claims brought under the Lanham Act, the law also precludes false advertising and unfair competition. Most states also have laws addressing deceptive trade practices addressing similar… more

Shareholder seeks preliminary discovery against ASX listed company after share price plummets

Potential litigants sometimes lack sufficient documentation to make an informed decision whether to commence litigation against another party. Often, the party against whom litigation is contemplated is the same party who holds the… more

European Court of Justice awards credit institutions home-field advantage

There was some uncertainty as to what court is competent to hear disputes relating to credit agreements. On 15 June 2017 the European Court of Justice resolved this uncertainty by setting useful and practically applicable criteria: the… more

An Insider’s Look at California’s New Gender Identity Regulations: Restroom Access, Pronoun Preference, and More

Regulations drafted by California's Fair Employment and Housing Council addressing issues related to gender identity will become effective July 1, 2017. These first-of-their-kind California regulations will seek to do what other… more

5 Tips for Preparing to Sell Your Oilfield Services Business

The decision to sell a private business often represents the culmination of a life's work. Preparing your business for a sale involves an investment of time, effort and planning on a number of fronts. However, investing in these… more

Subject Matter Jurisdiction and Abstention in Legal Malpractice actions brought by a Bankruptcy Debtor – Part 3

Permissive Abstention: Part 1 of this blog series examined a bankruptcy court’s subject matter jurisdiction over a debtor’s legal malpractice claims. See, Part 1. Part 2 of this blog series focused on mandatory abstention as a… more

CSA Study Results Released

On June 27, 2017, the National Academy of Sciences (“NAS”) released its highly anticipated report on the Compliance, Safety, and Accountability (“CSA”) initiative as mandated by Congress in the Fixing America’s Surface Transportation… more

The Importance of Compliance Program Audits

Chief compliance officers spend a significant amount of time comparing their compliance programs with other companies’ programs. CCOs often find solace when benchmarking their respective programs against other companies’ programs. I… more

Effective FCPA Compliance Programs: Building a Compliance Defense

The classic 1957 American mystery film “Three Faces of Eve,” about a woman with multiple personalities, may well describe the approach taken by the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC)… more

Does Your Federal Contractor Paid Sick Leave Policy Comply with Prop. 206?

Companies that entered into qualifying federal contracts since January 1, 2017 are required to have a sick leave policy, or an equivalent paid time off policy, that complies with federal Executive Order 13706. That Executive Order… more

Supreme Court to Resolve Split on Removing Securities Act Claims to Federal Court

The Supreme Court granted the petition for certiorari in Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, No. 15-1439 (U.S. May 24, 2016) yesterday, setting the stage for the resolution of a long-standing division among federal courts… more

Utah Is a New Hotbed of ADA Title III Federal Suits

Seyfarth Synopsis: Utah businesses are experiencing an unprecedented number of ADA Title III lawsuits… more

New Criminal History Hiring Regulations for California Employers

Employers hiring in California must be aware that on July 1, new California Fair Employment and Housing Council regulations take effect, limiting use of criminal history when making employment decisions. Every nationwide company that… more

[Video]Compliance into the Weeds-the Compliance Profession and the Cannabis Industry

In this episode, Matt Kelly and I take a deep dive, literally into the weeds of the convergence of the compliance profession and the nascent cannabis industry. While several states have made pot for medical use legal and one state… more

Fenwick Privacy Bulletin - Summer 2017

In This Issue - Ransomware Advisory - The WannaCry ransomware attack that began on May 12 infected 230,000 computers in more than 150 countries within a few days. The scope of the attack was unprecedented—which is just one reason… more

Court Puts Vets First: "Rule of Two" Prevails Over AbilityOne

The U.S. Court of Federal Claims ("COFC") recently ruled that the Department of Veterans Affairs ("VA") must apply the "Rule of Two" before consulting the AbilityOne list when buying goods and services… more

Washington, D.C. Update – June 2017

Having returned from its Memorial Day recess, Congress now enters one of the longest continuous work periods of the year and – with the exception of the week of the Fourth of July – will likely be in session until the end of July or… more

How Technology Is Changing the Market For Energy Commodities

An experiment performed by a startup in Brooklyn, New York, in 2016 could be a harbinger of the future of the energy industry. In the experiment, individuals were able to trade energy generated by solar panels between each other… more

Opinion Letters Are Back!

The U.S. Department of Labor’s Wage & Hour Division announced today that it is bringing back the WHD Opinion Letter. Opinion letters have long been one of the most useful resources for lawyers and HR professionals trying to figure… more

Higher Education Highlights - Summer 2017

Professor Deprived of Due Process Through Salary Reduction - Due process with respect to an employee’s property interest in employment is a vitally important consideration at public institutions, and, as a recent case from the… more

Supreme Court Holds That Securities-Law Statutes of Repose Are Not Subject to Class-Action Tolling

The U.S. Supreme Court ruled this week that the pendency of a securities class action does not allow individual class members to opt out of the class and file separate actions under the Securities Act of 1933 more than three years… more

U.S. Supreme Court Holds Trademark Registrations Are Free to Disparage

Justice Alito’s summary opinion announced in Court Monday morning, in what has come to be known as the Slants case (Matel v. Tam, 582 U.S. ___ (June 19, 2017), was short and sweet but the trademark applications we can expect in the… more

President Nominates Two to the NLRB: Will Newcomers Bring Much-Needed Change to the Agency?

On June 27, 2017, President Trump nominated labor attorney William J. Emanuel to fill one of two vacancies to the National Labor Relations Board (NLRB). This follows closely on last week’s nomination of Marvin E. Kaplan to fill the… more

FERC Underestimates its Authority: Recoupment vs. Refund of Unjust & Unreasonable Rates

The Federal Energy Regulatory Commission (FERC) has the authority to order a public utility to refund to its customers rates that FERC determines to be unjust and unreasonable. But what if FERC later determines that the public utility… more

Supreme Court Will Decide Whether Internal Whistleblowers Can Bring Dodd-Frank Retaliation Claims

The Dodd-Frank Act, passed in 2010, includes a new cause of action for whistleblowers who claim that their employer retaliated against them for reporting wrongdoing. But it’s not yet certain whether a whistleblower who blew the whistle… more

Supreme Court Decides to Hear Travel and Refugee Ban Case and Clarifies Enforcement of Executive Orders Pending Hearing

On June 26, 2017, the Supreme Court consolidated the two key cases in the travel and refugee ban litigation sparked by President Trump’s executive orders and decided that the case will be heard during the first session of the October… more

Future of Federal Student Loans Takes Center Stage at the Education Department

Federal student loans have taken on a newfound importance as the Trump Administration seeks to re-envision the role of the federal government in providing funding for higher education. Proposed changes and items under consideration… more

Senate Releases Repeal and Replace Legislation on ACA: The Better Care Reconciliation Act of 2017

After weeks of secrecy, the Senate has released a discussion draft of legislation that is the counterpart of the American Health Care Act (AHCA) previously passed by the House. The Senate legislation, entitled the Better Care… more

Supreme Court allows Trump Administration to Partially Enforce Travel Ban

The U.S. Supreme Court issued an order today that granted the Trump Administration’s petitions for certiorari and partially granted the Administration’s motions to stay injunctions of the so-called “travel ban.” This means that the… more

[Video]Day 20 of One Month to Better Investigations and Reporting-Staying Out of Hot Water in Other Jurisdictions

In an article entitled “How to Launch and Operate a Legally-Compliant International Workplace Report Channel” or in compliance parlance, a hotline, author Donald Dowling of the law firm of White and Case, provided a useful guide to… more

An Overview of the CFTC’s Modernized Recordkeeping Requirements

On May 23, 2017, the U.S. Commodity Futures Trading Commission unanimously approved a revamped CFTC Rule 1.31, which specifies the form and manner that records must be kept by commodities market participants, and a slight modification… more

Department of Labor Moves To Rescind “Persuader Rule” with Notice of Proposed Rulemaking

On June 12, 2017, the U.S. Department of Labor’s (“DOL”) Office of Labor-Management Standards published a notice of proposed rulemaking regarding its intention to rescind the so-called “persuader rule,” moving the DOL one step closer… more

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