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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

The Circuits are Split: The Ambiguity of a Regulation May Not ‘Foreclose a Finding of Scienter’ in False Claims Act Cases

A split now exists among the circuit courts as to whether a defendant’s assertion of a “reasonable interpretation defense” precludes a finding of a “knowing” mens rea under the False Claims Act (the “FCA”). On May 26, 2017, a… more

USCIS Resumes H-1B Premium Processing for Conrad Waiver Program Physicians

On Monday, U.S. Citizenship and Immigration Services (USCIS) resumed premium processing for all H-1B petitions filed for physicians under the Conrad Waiver program, as well as interested government interagency waivers… more

For Insurance Industry, Post-Brexit Questions Remain

Last week, the British government and the European Union began Brexit talks, which will continue for the next 18 months. Meanwhile, Brexit’s implications for the financial services and insurance industries remain unknown. To gain… more

U.S. Supreme Court Grants Cyan's Petition for Certiorari, to Decide Whether Certain Securities Class Actions May Be Brought in State Courts

On June 27, 2017, the Supreme Court of the United States granted a petition for certiorari filed by Wilson Sonsini Goodrich & Rosati on behalf of its clients, Cyan, Inc. and its officers and directors. The question before the Supreme… more

Battle of the Bands and the Clothiers

The famous Coachella Music Festival is held every April in Indio, California. This year Beyoncé, Radiohead, Lorde and several DJs (including DJ Snyder, DJ Kahleel, DJ Shadow) performed… more

Pleading Willfulness – One Year Post-Halo

Just over a year ago, the Supreme Court issued its decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016). Halo abrogated the Federal Circuit’s two-part willfulness test, which the Federal Circuit laid… more

Ransomware Cyber Attack Shuts Down the Computer Systems of Airlines, Banks, Utilities and a Major Global Law Firm. Are You Protected?

On June 27, 2017, multiple news sources are reporting that a ransomware attack called Petrwrap/Petya reportedly immobilized the computer network of multiple international businesses, including those of a major global law firm… more

Canada’s New Energy Efficiency Regulations Come Into Force

On June 28, 2017, the federal Energy Efficiency Regulations, 2016 (New Regulations) came into force, repealing and replacing the original Energy Efficiency Regulations (Regulations). The New Regulations increase the energy efficiency… more

GAO Makes Rare Finding of Error in Past Performance Evaluation, and Underscores Incumbents Are Not Automatically Entitled to Highest Technical Rating

The GAO recently sustained a protest challenging the U.S. Coast Guard’s evaluation of past performance in a task order competition to obtain information technology support services under a multiple-award IDIQ enterprise acquisition… more

President Trump Throws His Support Behind FAA Privatization Effort

President Trump's entry into efforts to privatize the nation's air traffic control (ATC) system has breathed new life into an idea championed by House Transportation & Infrastructure Committee Chairman Bill Shuster (R-PA). Spinning off… more

The “New Flamenco”

The Supreme Court has today handed down Judgment allowing Owners’ appeal in the “New Flamenco”. For those of you who are not familiar with the case, Charterers were in repudiatory breach of the Charterparty, which Owners accepted as… more

Does BREXIT Really Matter to Me in the United States?

Well, if you are a company doing business in Europe and have registered your trademarks, it will. As you know, the United Kingdom (UK) has decided to leave the European Union. This has implications as regards the protection under your… more

DOJ Directive Threatens Availability of Penalty Mitigation Approach

A June 5, 2017, Department of Justice (DOJ) policy directive threatens the ongoing availability of Supplemental Environmental Projects (SEPs) in civil environmental settlements. SEPs have traditionally provided a means by which… more

Here We Go Again - The Senate’s Health Reform Bill

Late last week the Senate released its version of a health reform bill (the “Better Care Reconciliation Act of 2017” or the “Senate bill”) to fix the Patient Protection and Affordable Care Act (the “PPACA”). The Senate Bill like the… more

OSHA Delays Online Record-Keeping Rule and Opens Proposal for Comment

On June 27, 2017, the Occupational Safety and Health Administration (OSHA) proposed to delay the compliance date of the Obama-era regulation requiring electronic submission of injury and illness records and online public access to such… more

STRONGER Patents Act Proposes Substantial Changes to AIA Trial Proceedings

On September 21, 2017, Senator Chris Coons (D-Del.) introduced the STRONGER Patents Act of 2017 in the Senate. STRONGER is an acronym for “Support Technology and Research for Our Nation’s Growth and Economic Resilience.” The bill was… more

Court Dismisses Class Action Claims Based on Afghanistan Labor Code

United States lawsuits involving the law of Afghanistan are uncommon, but it is common for employees to bring suit based on work done abroad generally, and not just in that one country. A recent case, however, illustrates that while… more

Increased Lifeline Minimum Service Standards and Budget Cap for 2018 Announced

In 2016, the FCC adopted its Lifeline Modernization Order, in which it introduced Lifeline subsidies for the provision of broadband services, and imposed graduated minimum service standards for Lifeline-supported broadband services. In… more

Ninth Circuit Narrows Already Slim Exception to Rule Barring Post-Removal Amendments to Avoid CAFA Jurisdiction

A plaintiff will rarely be permitted to amend its class action complaint after removal to avoid federal jurisdiction under the Class Action Fairness Act (CAFA). That is the takeaway from the Ninth Circuit Court of Appeals’ decision in… more

GAO: Agency Reasonably Concerned Over Lack Of Price Increases

We often discuss the need for government contractors to Read and React when responding to a proposal: (1) Read the RFP and understand all of the requirements and limitations and (2) React to the RFP’s evaluation scheme by playing the… more

House Committee Issues Letter to HRSA Requesting Audit Documentation Regarding 340B Drug Pricing Program

The House Committee on Energy and Commerce (Committee) sent a letter dated June 1, 2017, to the Health Resources and Services Administration (HRSA) Administrator expressing concerns about the growth and oversight of the 340B Drug… more

What Can We Infer When Chief Justice Karmeier Asks the First Question in Criminal Cases?

Yesterday, we reviewed the data on Chief Justice Karmeier’s questions in civil cases between 2008 and 2016. Today, we take a look at a different side of the data – what can we infer when the Chief Justice asks the first question to… more

Pennsylvania Supreme Court Completes Revival of Environmental Rights Amendment

A 5-to-1 majority of the Pennsylvania Supreme Court recently confirmed that the text of the Environmental Rights Amendment to the Pennsylvania Constitution (Article 1, Section 27) is the appropriate standard of judicial review of the… more

House Bill Would Narrow Orphan Drug Exception

A recent House bill, titled the "Closing Loopholes for Orphan Drugs Act," would narrow the exception for orphan drugs in the federal 340B Drug Pricing program. Representative Peter Welch (D-VT) introduced the bill on June 13, 2017… more

Is the Senate's "Better Care" a Better Way to Repeal Obamacare?

On June 26, 2017, the U.S. Senate leadership released a “discussion draft” of The Better Care Reconciliation Act of 2017 (the “Better Care Act”) — i.e., legislation to repeal and replace the Affordable Care Act, better known by its… more

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