Latest Updates

Privette Doctrine Prevails To Protect Maintenance Contractor

In Alvarez v. Seaside Transportation Services, LLC et al. (No. B275980, filed July 20, 2017), Division Eight of the Second Appellate District affirmed a trial court grant of summary judgment to defendants based on the Privette… more

Alert: Export Control Reminder: Semi-Annual Encryption Reporting Deadline 8/1/17

August 1, 2017, is the deadline for submitting semi-annual reports for certain ENC Restricted encryption items exported or re-exported between January 1 and June 30, 2017, pursuant to paragraphs (b)(2) and (b)(3)(iii) of License… more

Delaware Passes Law Permitting Companies to Use Blockchain Technology to Issue and Track Shares

On Friday July 21, 2017, Delaware's Governor John Carney signed into law amendments to Delaware's General Corporation Law to account for the use of blockchain technology in corporate record-keeping. The legislation will be implemented… more

Cannabis Industry Jammed With Extensive Environmental Regulations

The surge of new cannabis-related regulations continues in California this month, this time courtesy of the State Water Resources Control Board. In response to Senate Bill 837, the agency recently released a draft Cannabis Policy and… more

ICOs: Proceed With Caution

Yesterday, the Securities and Exchange Commission (“SEC”) issued an investor bulletin and an investigative report. The investigative report found that companies involved in sales of digital assets via distributed ledger or blockchain… more

Healthcare & Life Sciences Private Equity Deal Tracker: KKR Portfolio Company to Acquire WebMD for $2.8 Billion

KKR has announced its portfolio company, Internet Brands, will acquire WebMD Health Corp. The transaction is valued at approximately $2.8 billion. Kohlberg Kravis Roberts (KKR) & Co., based in New York, considers investments in all… more

NIOSH Publishes Chapter on Analysis of Carbon Nanotubes and Nanofibers on Filters by Transmission Electron Microscopy

The National Institute for Occupational Safety and Health (NIOSH) has published a chapter in the fifth edition of the NIOSH Manual of Analytical Methods (NMAM) entitled “Analysis of Carbon Nanotubes and Nanofibers on Mixed Cellulose… more

Oil And Gas Update For Week Ending 7/21/2017 – PA Supremes On The Environmental Rights Amendment, Third Circuit On “Buyers For Value” In Bankruptcy Claim Proceedings, And ND Supremes On Pore Space Ownership.

After a few weeks off we’re back at the well. The national rig count dipped two units last week for the first time in a long time while oil and natural gas prices increased slightly. Since our last report, the Pennsylvania Supreme… more

As Trump Declares “We Are Out” of the Paris Accord, Investors Demand More Climate Change Risk Disclosure from Within

Investors from around the world have spoken. For the first time in history, they have publicly demanded more transparent and complete corporate financial risk disclosures related to climate change. While climate change risk disclosures… more

Vacation Float: Managing (and Recouping) Unearned Vacation Time

Summertime is vacation time. And vacation time means headaches for employers who engage in vacation float. Vacation “float” is the practice of advancing vacation to employees before they actually accrue it under an employer’s vacation… more

Future of Insurtech: Opportunities and Challenges

The emerging insurance tech (“insurtech”) industry is growing at breakneck speed. While in 2011 insurtech startups received $140 million in funding from 28 total deals, investment increased more than tenfold in 2016, with investors… more

Witnesses at Congressional Hearing on 340B Urge Congress To Give HRSA Broader Regulatory Authority

On July 18, 2017, just days after CMS went public with its proposal to reduce Medicare Part B reimbursement to certain 340B covered entities, Congress held its first hearing on 340B Program Oversight since March 2015. A common thread… more

Court of Chancery Advocates New Test Governing Preclusion in Derivative Litigation

In re Wal-Mart Stores Inc. Delaware Derivative Litig., C.A. No. 7455-CB (Del. Ch. July 25, 2017) - This is an important decision holding that just because one derivative litigation was dismissed for failure to overcome the… more

Mergers and Acquistions: Effectively Navigating I-9 Compliance Issues

Corporate mergers and acquisitions are typically complex and expensive transactions. While financial matters typically comprise the core of an acquiring company’s due diligence efforts during a merger or acquisition, immigration… more

Tribal Self-Governance Under Trump A Common Goal

Tribes are rightly concerned that federal programs benefiting tribal communities may become the target of budget cuts under the Trump administration and the Republican Congress, but tribes should not lose heart quite yet. With… more

Getting into trouble with the DOL and the IRS maybe just bad luck

As an ERISA attorney for almost 19 years, I have seen a lot of strange things that plan sponsors have done to risk the ire of the Internal Revenue Service (IRS) and the Department of Labor (DOL)..… more

Asset Management Regulatory Roundup - July 2017 - Issue 2

A compact summary of the most recent regulatory developments relevant to the UK asset management industry. This issue includes details on the updated Q&As published by ESMA in relation to the AIFMD and UCITS, IOSCO's consultation on… more

India Adopts New Disability Law Regime

The Government of India has instituted a new disability law regime with enactment of the Rights of Persons with Disabilities Act, 2016, and Rights of Persons with Disabilities Act, 2016. The new disability law regime is modeled on… more

Final Written Decision Not So Final in Eyes of The ITC

The ITC recently continued its trend of giving little deference to parallel PTAB IPR proceedings. In Certain Network Devices, Related Software and Components Thereof (II), Inv. No. 337-TA-945, the ITC denied a request to suspend or… more

Does GDPR Apply to You?

The EU’s General Data Protection Regulation goes into effect on May 25, 2018. GDPR replaces the EU Data Protection Directive. GDPR can apply to US-based businesses even if they do not have offices or employees in the EU. It can also… more

Sultry Lady Liberty leads Postal Service astray

Beware sultry-looking ladies. That’s one of the lessons from the recent court decision sending a copyright case against the United States Postal Service to trial, but there are more. The decision can serve as a teaching tool and… more

AD-ttorneys@law

Consumer David Greenstein is pursuing excessive slack-fill claims against the producer of popular puffed rice and corn snack food Pirate’s Booty. Greenstein, who is representing himself in the lawsuit, claims to have purchased one… more

Ashley Madison Data Breach Results in $11.2 Million Settlement

On Friday, July 21, users of the “married dating” website, ashleymadison.com, received preliminary approval of an $11.2 million class action settlement. This settlement seeks to resolve a number of consolidated lawsuits against Avid… more

The DOL Fiduciary Rule: Charting a Course, Avoiding Collisions & Potential Litigation - Q&A on IRA Transactions

Previously, I wrote about potential litigation under the Department of Labor’s then proposed fiduciary rule (see Expect Focus, Vol. II, 2015). I predicted the following as to sales of index annuities to IRAs if the rule was adopted as… more

Expansion of Paid Family Leave Vetoed By Governor

We previously reported on a bill seeking to amend New Jersey’s Paid Family Leave Insurance Law. The bill sought to double the amount of available paid family leave from six weeks to twelve weeks, and to increase the cap on weekly… more

DWR Certifies EIR for WaterFix, Triggering 30-Day Deadline for Opponents to File Suit

On July 21, 2017, the California Department of Water Resources (“DWR”) certified the final environmental document and issued its Notice of Determination for the California WaterFix, a significant new water infrastructure component… more

A Potential New Application of Defamation by Implication: Media Layout and Accompanying Images at Issue in ISIS Antiquities Looting Story

On Monday, July 17, 2017, world-renowned antiquities dealer Hicham Aboutaam sued the parent company of a popular newspaper alleging that a story it published defamed him. The article, titled “Prominent Art Family Entangled in ISIS… more

House passes H.J. Res. 111 to override CFPB arbitration rule

Yesterday afternoon, the House of Representatives, by a 231-190 partisan vote, passed H.J. Res. 111 which provides for Congressional disapproval under the Congressional Review Act (CRA) of the CFPB’s final arbitration rule which was… more

Defence & Indemnity - June 2017 : II. LIABILITY ISSUES B. Widdowson v. Rockwell [2017] B.C.J. No. 457, per Kent, J. [4233]

II. LIABILITY ISSUES - B. A commercial host’s liability with respect to an intoxicated patron will not necessarily end when the patron arrives safely home – it is not necessarily a break in the chain of causation. Widdowson v… more

New York Appeals Court Holds Class Action Waivers Violate the NLRA While Employers Await Definitive Ruling From Supreme Court

The Supreme Court is set to hear oral argument in October on whether class and collective action waivers are enforceable. While employers await the Supreme Court’s decision, other courts continue to weigh in on the matter. Just last… more

How To Protect Your Company From Cyber Regulatory-Enforcement: Part 2

Experiencing a security breach is a bit like being on the titanic and feeling the tremble from hitting an iceberg. The impact sparks immediate panic - you know something very bad has just happened but are unsure whether the damage is… more

Janssen Biologic Tremfya Secures FDA Approval Following Use of Priority Review Voucher

On July 13, 2017, the U.S. Food and Drug Administration approved Tremfya (guselkumab), a biologic manufactured by Janssen Biotech, for the treatment of moderate-to-severe plaque psoriasis patients who are candidates for systemic… more

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

The Circuit issued only one precedential patent case this week, reversing a determination of obviousness as to a Millennium Pharmaceutical patent covering its blockbuster cancer drug Velcade®, thus extending the life of patent coverage… more

Telehealth & EHR Meaningful Use Payments—Expect Greater Scrutiny in Upcoming Medicare Audits

In July 2017, the United States Department of Health and Human Services' Office of Inspector General ("OIG") revealed two new Work Plan items related to digital health: first, a review of Medicare incentive payments for meaningful use… more

House Bill Would Reduce Use of LPTA in All Agencies’ Procurement

A recent bill before the U.S. House of Representatives seeks to limit the use of the lowest price technically available (“LPTA”) source selection process in procurements. H.R. 3019, which was introduced on June 22, 2017, would create a… more

DOL to Seek Public Comment on Overtime Rule

The U.S. Department of Labor has announced that on Wednesday, July 26, 2017, it will formally seek public comment on the overtime rule by publishing a Request for Information (RFI)...… more

USDOL To Publish "White Collar" Exemption Information Request

A U.S. Department of Labor Request for Information will be published tomorrow morning to seek additional public comment regarding the 2016 compensation revisions in the regulations defining the federal Fair Labor Standards Act's… more

5 Key Takeaways: Three Years After Octane Fitness – Patent Litigation Fee Fights

Kilpatrick Townsend’s Clay Holloway, a partner in the firm’s Atlanta office, recently participated in a webinar as part of a panel to discuss the issue of attorney fees three years after the U.S. Supreme Court decision in Octane… more

Washington Enacts Paid Family And Medical Leave Law

All Washington employers must provide paid family and medical leave under a bill signed by Governor Jay Inslee on July 5, 2017. The new law creates an insurance fund that employers and employees both pay into, with a 0.4 percent… more

Anti-Corruption Compliance: The Need to Look Under the Cloak of Materiality

Sarbanes-Oxley revolutionized the auditing profession. Section 404 imposed stringent requirements for disclosure of the state of a company’s internal controls and financial reporting. The company’s independent auditor is required to… more

Timing Is Everything: USCIS Revises Form I-9 To Clarify When Section 1 Should Be Completed

As you may recall, the U.S. Citizenship and Immigration Services recently modernized the Form I-9, Employment Eligibility Verification, to offer both a “paper” and an “electronic” version. Last week, the USCIS released yet another… more

Overview of IRS Penalties for Individuals with Foreign Bank Accounts and Investments

Earlier this spring, the Internal Revenue Service ("IRS") Large Business and International Division identified several "campaigns" or areas where it plans to focus its audit resources. One campaign involved taxpayers who opted out of… more

Premium Processing Resumed for Certain H-1B Petitions

As of July 24, 2017, USCIS has resumed premium processing service for certain types of H-1B cap-exempt petitions. While premium processing is still not available for most H-1B petitions, USCIS announced that it will now accept premium… more

Predictive Scheduling and the Fight for a “Fair Workweek”: What Employers Need to Know

Retailers and fast food companies in particular should be aware of the growing push for “fair workweek” legislation at the city, state, and federal levels. In just the past few years, over a dozen states and cities have considered… more

What Could We Infer When Justice Theis Asked the First Question in Criminal Cases?

Yesterday, we reviewed Justice Theis’ question patterns in criminal cases between 2010 and 2016. Today, we ask what it’s possible to infer when Justice Theis asked the first question in criminal cases. Justice Theis voted with the… more

Dollar General Sued by EEOC For Disability Discrimination and Retaliation

Portal, Ga., Store Manager Refused to Interview Applicant After Seeing Her Arm in a Sling, Federal Agency Charges - ATLANTA - The owner-operator of a Georgia Dollar General store violated federal law by discriminating against a job… more

New York State Appellate Court Finds Arbitration Agreement Requiring Employees to Bring Claims Individually Violates The National Labor Relations Act

On July 18, 2017, in Gold v. New York Life Ins. Co., New York’s Appellate Division, First Department issued a decision that directly contradicted the decision of the U.S. Court of Appeals for the Second Circuit in Sutherland v. Ernst &… more

The Importance of Careful Coverage Analysis

Ohio has joined the majority of jurisdictions in holding that a general liability policy may provide coverage for claims made by a project owner for property damage allegedly caused by the defective work of a subcontractor. In Ohio… more

DOL Seeks Comment on Overtime Rule

On July 26, 2017, the U.S. Department of Labor will publish its anticipated Request for Information on the White-Collar Overtime Exemption in the Federal Register. The RFI will give the regulated community 60 days to provide its… more

Funding Your Small Or Mid-Size Development Project In New Jersey

Obtaining financing for your development project is one of the most important aspects of moving your development plans from paper to reality. Recently, the New Jersey Economic Development Authority (the “Authority”) created a Real… more

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