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Two Bureau of Land Management Regulations on Life Support Under President Trump

The Trump Administration has signaled its intent to pull the plug on two rules issued by the U.S. Department of Interior's Bureau of Land Management ("BLM") in 2015 and 2016. Legal and legislative developments over the next weeks will…more

Congress has Voted to Kill OSHA’s “Volks Rule – So What Does that Really Mean?

If one listens to various Democrat and labor talking heads, you would think that Congress has rolled back 40 years of worker protections by passing a resolution killing the new OSHA rule, which permitted OSHA to cite employers for…more

“Knock-Offs” Beware: SCOTUS Makes a Fashion-Forward Decision

The U.S. Supreme Court has settled the closely watched Varsity Brands Inc. et al. v. Star Athletica LLC copyright dispute, holding that cheerleading outfits contain distinct design elements that allow for copyright ownership. The…more

U.S. Patent Office Provides Additional Examples of Eligible Subject Matter

After the Supreme Court case of Alice v. CLS Bank in 2014, the Patent Office has issued a series of examination guidelines and examples to guide examiners and patent practitioners in determining patent eligible subject matter. On…more

Connecticut Supreme Court Issues Important Clarification For Independent Contractor Test

On March 21, 2017, the Connecticut Supreme Court issued an important ruling, finding that an individual may be still considered an independent contractor under the state’s Unemployment Insurance Act even if he/she only provides…more

IRS to Begin New Procedure for Initiating Tax-Exempt Bond Audits

In late 2016, the IRS Tax-Exempt and Government Entities Division (“TE/GE”) released a memorandum to its examiners outlining a new procedure for initiating audits of tax-exempt bonds. The Commissioner of TE/GE recently noted that the…more

OIG Approves Free Lodging and Meals Under "Promotes Access to Care" Exception to Beneficiary Inducement CMP

In Advisory Opinion 17-01, published March 10, 2017, the Department of Health and Human Services, Office of Inspector General (OIG) approved an academic medical center's proposal to provide free or reduced-cost lodging and meals to…more

The FTC and State of Illinois Solidify Victory Blocking Chicago Hospital Merger

The Federal Trade Commission (“FTC”) and the State of Illinois successfully concluded their challenge to the proposed merger of Advocate Health Care and NorthShore University Health System earlier this month, when the U.S. District…more

Trump Administration's Budget Blueprint Calls For Significant Impacts to Environmental Programs

The Trump Administration unveiled significant rollbacks in funding for federal agencies when it released its Budget Blueprint to Make America Great Again on March 16, 2017. The President's proposed budget priorities would reduce the…more

Cheerio! Influence on the U.S. Gig Economy from Across the Pond?

Many point to the Brexit movement as a sign that Donald Trump’s White House victory should have not been a surprise. Will a potential movement afoot in the United Kingdom be a precursor of things to come in the gig economy for the…more

China’s rise in global M&A: Here to stay

- China has become a key player in global cross-border M&A. Following almost a decade of consistent double-digit growth, in 2016 China became the second-largest global investor behind the United States with US$140 billion in completed…more

Absolute Priority Remains Absolute – US Supreme Court Holds Structured Dismissals Cannot Violate Priority Rules

In a highly anticipated bankruptcy opinion, the United States Supreme Court, in Czyzewski v. Jevic Holding Corp., held that courts may not approve structured dismissals providing for distributions that deviate from the priority rules…more

SCOTUS Determines That Decorations on Cheerleading Uniforms Are Conceptually Separable From Uniforms and Eligible For Copyright Protection

On March 22, 2017, the Supreme Court of the United States issued a 6-2 ruling in Star Athletica, L.L.C. v. Varsity Brands, Inc., et al., holding the decorative elements on Varsity Brands’ cheerleading uniforms were conceptually…more

Hey Dentists: No Business Associate Agreement, No Problem

According to the U.S. Health and Human Services Office for Civil Rights (OCR), dental practices are not required to have a business associate agreement with their dental laboratory before sharing protected health information..…more

Is This The Year for Real PAGA Reform? – Don’t Hold Your Breath

Over the last several years, the level of employer complaints about PAGA has reached a deafening crescendo. For some time now, employers have expressed deep concern about abusive litigation tactics and “extortionate” PAGA claims over…more

Certain Medical Devices Exempted from 510(k) Requirements

The Food and Drug Administration (FDA) recently identified a list of Class II Medical Devices that, when finalized, will be exempt from premarket notification (510(k)) requirements. This publication was made by the FDA pursuant to the…more

Briefs Filed in CalPERS v. ANZ Securities

On February 27, 2017, the California Public Employees’ Retirement System (“CalPERS”) filed its brief with the Supreme Court, requesting that the Court reverse the decision of the Second Circuit and abrogate the Second Circuit’s ruling…more

Changes to Medicaid Expansion in the American Health Care Act:  State-by-State Estimates of the Coverage and Fiscal Impact

The House currently is considering the American Health Care Act (AHCA), a bill to repeal and replace the Affordable Care Act (ACA). Among other things, the bill will phase out enhanced federal funding for the expansion of Medicaid to…more

Supreme Court Outlines New Test for Copyrightability of Useful Articles

The Supreme Court’s ruling in Star Athletica, LLC v. Varsity Brands, Inc. significantly expands copyright protection for useful articles. On March 22, 2017, the US Supreme Court set out a new standard for copyrightability of useful…more

The Top Five Reasons to Have Separate Appellate Counsel

An appeal is neither a chance to retry a case nor a time to develop new legal theories. A successful appeal depends on careful planning and extensive knowledge of the appellate process, as well as a meritorious legal argument. There…more

WARNING: Follow Rules Governing Objections to Discovery Requests or Waive Them

On February 28, 2017, Southern District of New York Magistrate Judge Andrew J. Peck issued a warning shot, styled as a “wake-up call,” to the SDNY Bar: comply with the now 15-month-old amendments to the Federal Rules of Civil Procedure…more

Border Searches of Your Electronic Devices — What Rights Do You Have?

The United States government has reported that border searches of electronic devices in the U.S. increased from 4,764 in 2015 to 23,877 in 2016. Because electronic devices have immense data storage capacity and can hold confidential…more

Investors in Southern African Development Community Stripped of International Treaty Protections

In January 2014, Jones Day reported on the protection offered to foreign investors in Sub-Saharan Africa pursuant to the Southern African Development Community ("SADC") enacted on April 16, 2010. As noted in that Commentary, the SADC…more

Third-Party Payment of Premiums: Controversy and HHS Guidance

Since the passage of the Affordable Care Act (ACA), the payment of healthcare premiums by third parties has been the subject of controversy. As Congress develops its plan to repeal and replace the ACA, it is uncertain how third-party…more

New York Cybersecurity Regulations: What Do They Mean and When Do They Mean it By?

The New York State Department of Financial Services (NYDFS) has released guidance for covered financial institutions regarding its cybersecurity rule (the “Cybersecurity Rule” or “Rule”) that took effect on March 1, 2017. The guidance…more

NC Legislative Update - March 2017 #3

The Week - Last Friday, a three-judge panel issued a split decision in the ongoing legal battle between the State’s executive and legislative branches. The panel ruled that the Senate did in fact have the authority to confirm the…more

Google, NASA, Planes and a Stronger Legal Team

As Eastern Air Lines Flight 401 approached Miami International Airport on Dec. 29, 1972, its pilots extended the landing gear. Two green lights lit up in the cockpit, indicating the left and right landing gear had extended. A third…more

FCC Sets April 10th as First Day for New, More Flexible FM Translator Rules

AM radio stations owners should mark April 10th on their calendars. That is the official effective date for new FCC rules governing FM translator location—and it gives AM stations more options than before in placing those…more

Escobar's Impact: Recent Application of "Materiality" in Ninth Circuit

Last year, a unanimous U.S. Supreme Court decided Universal Health Services, Inc. v. United States ex rel. Escobar (Escobar), 136 S.Ct. 1989 (2016), creating important implications for Federal False Claims Act (FCA) cases and, in…more

SEC Adopts T+2 Settlement Cycle for Securities Transactions

On March 22, 2017, as previously anticipated by the market, the SEC adopted an amendment to Rule 15c6-1 under the Securities Exchange Act of 1934 to shorten the standard settlement cycle for most broker-dealer transactions from three…more

US Supreme Court Knocks out the Equitable Defense of Laches in Patent Law

The Supreme Court of the United States in SCA Hygiene Prods. Aktiebolag, et al. v. First Quality Baby Prods., LLC, et al., has held that the equitable defense of laches is no longer a valid defense to patent damages claims brought…more

United States Supreme Court Defines Standard For Special Education: Endrew F. v. Douglas County School District RE-1

In a unanimous decision, the United States Supreme Court held that the Individuals with Disabilities Education Improvement Act (IDEA) requires school districts to provide special education students with “an educational program…more

Hot List – What’s Happening in the California Legislature 3/27-3/31

Our weekly California Legislature “hot list” provides you with a preview of the bills that are up (as well as other important legislative action) the following week..…more

Supreme Court Rejects Laches as Bar to Damages for Timely Asserted Patent Infringement Claims

The Supreme Court has narrowed the scope of the laches defense in patent infringement actions, aligning its interpretation of laches under the Patent Act with that under the Copyright Act…more

Repeal of Antitrust Immunity for Insurers: What Does It Mean?

Insurers are among a handful of industries, including Major League Baseball, that have a special exemption from the federal antitrust laws, the so-called "McCarran-Ferguson" antitrust exemption. The exemption has survived many repeal…more

Supreme Court Holds Equitable Laches is No Longer Available to Limit Patent Damages

The Supreme Court, in a 7-1 decision written by Justice Alito, has held that laches cannot be invoked as a defense against any claim for damages in a patent case brought within the 6-year limitation on damages prescribed by Section 286…more

Requesting 72 Spelling Variations on Five Search Terms Spells Trouble for Plaintiffs: eDiscovery Case Law

In Diesel Power Source et. al. v. Crazy Carl’s Turbos et. al., No. 14-826 (D. Utah, Feb. 23, 2017), Utah Magistrate Judge Brooke C. Wells denied the plaintiff’s Motion for Sanctions for the failure of the defendant to produce ESI…more

Supreme Court Curbs Laches as a Defense in Patent Cases

In SCA Hygiene Products v. First Quality Baby Products, decided on March 21, 2017, the U.S. Supreme Court significantly reduced the role of the laches defense in patent actions: "Laches cannot be interposed as a defense against damages…more

Supreme Court Eliminates the Laches Defense in Patent Cases

The Supreme Court held that laches is no longer a defense against patent infringement. The Patent Act’s six-year statute of limitations already limits the window for damages for infringement, which precludes any further laches…more

New Regulations on Issue Price of Tax-Exempt Bonds

On December 9, 2016, the Department of the Treasury and Internal Revenue Service (IRS) published final regulations on the definition of “issue price,” for purposes of the arbitrage rules that apply to tax-exempt bonds...…more

Fight Over Seattle’s Attempt To Unionize On-Demand Economy Reaches Critical Point

If the City of Seattle has its way, your next ride-sharing driver could be part of a first-of-its-kind union. And if on-demand economy companies have their way, the courts will block any such unionization efforts before they drag down…more

Aftermath of Briseno Decision Holding No “Administrative Feasibility” Required for Class Certification

The U.S. Court of Appeals for the Ninth Circuit handed down its (by now) hotly discussed decision in Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), on January 3, 2017, holding there is no separate “administrative…more

Employees Paid on a Commission Basis Must Be Paid a Separate Minimum Wage for Rest Periods

Employers who pay employees commissions should evaluate their compensation schemes to ensure compliance with California law in light of the California Court of Appeals’ recent ruling in Vaquero, et al. v. Stoneledge Furniture, LLC...…more

New Mexico comes late to data breach party, requires promptness

Thirteen years after the first state data breach notification law was enacted, New Mexico has finally decided to join the other 47 states with such laws, sending HB15 in mid-March to Gov. Susana Martinez for signature..…more

No Emergency Injunction Appeal in Chamber’s Challenge to DOL Rule

On March 20, 2017, a federal court in the Northern District of Texas denied the U.S. Chamber of Commerce’s emergency motion for an injunction pending appeal challenging implementation of the Department’s conflict of interest rule and…more

U.S. Supreme Court Eliminates Laches Defense for Damages in Patent Suits

The U.S. Supreme Court on Tuesday, March 21, 2017, held in a 7-1 decision that the defense of laches is not available under the Patent Act to bar claims for damages. SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC…more

Supreme Court Clarifies Copyright Protection for Artistic Features in Clothing

On March 22, 2017, the Supreme Court held that a two- or three-dimensional work of art on a useful article, such as clothing, is protectable under copyright law if: (1) the work of art can be perceived as separate from the useful…more

OCC Outlines Process for FinTech Companies to Apply for Special Purpose National Bank Charters and Seeks Public Comment

The Office of the Comptroller of the Currency (the “OCC”) has released for public comment its proposed Licensing Manual Supplement (the “Supplement”) for evaluating charter applications submitted by financial technology (“FinTech”)…more

President’s FY 2018 Budget Plan Requests $15 Million to Support Future Implementation of Mandatory Nationwide Use of E-Verify

On March 17, 2017, the Office of Management and Budget (OMB) published the first installment of the Trump Administration’s FY 2018 Budget plan: “America First: A Budget Blueprint to Make America Great Again.” The Budget provides…more

Delayed ETA for EPMs – CMS Delays New Bundled Payment Models

On March 21, 2017, CMS issued the anticipated delay related to the new Episode Payment Model (EPM) bundled payment program regulations that were finalized in January. The rule, Advancing Care Coordination Through Episode Payment Models…more

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The Volkov Law Group specializes in white collar defense, corporate compliance, internal investigations, and regulatory enforcement matters. Michael Volkov is a former federal prosecutor with over…

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