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Pitfalls a 401(k) Sponsor Can Avoid With Plan Providers
While much of the focus concerning the liability of sponsoring a 401(k) plan is about plan expenses thanks to the many lawsuits filed against plan sponsors. However for most plan sponsors, the greatest liability they actually face is… more
Rare Court Case Sheds Light on U.S. Sanctions Enforcement
It is rare for companies to go to court to fight penalties imposed by the Office of Foreign Assets Control (OFAC) for violations of U.S. sanctions. It is even more rare for a court to make any sort of finding against the agency. Yet… more
Siding with The Slants: Ban on Disparaging Marks Held Unconstitutional
Asian rock band The Slants is no longer "The Band Who Must Not Be Named," as they titled their most recent album. On June 19, 2017, the United States Supreme Court decided Matal v. Tam, striking a provision of the Lanham Act, which was… more
Department of Labor withdraws joint employer guidance
A joint employer relationship can arise in circumstances where an individual performs work for two entities that share control over how that individual performs his/her work. Although joint employment relationships are most commonly… more
U.S. Supreme Court Tightens Criteria for Revoking Citizenship
The U.S. Supreme Court has ruled unanimously that naturalized American citizens cannot be stripped of citizenship if a lie or omission in the application process was irrelevant to the government’s decision to approve the naturalization… more
Seventh Circuit Limits Ability to Moot Claims of Class Representative in the Wake of Campbell-Ewald
On June 20, 2017, the Seventh Circuit ruled that a defendant cannot moot the individual claims of a putative class representative by depositing an unaccepted settlement offer with the court covering all relief purportedly owed to that… more
European Court of Justice Upholds Use of Evidence from Noncompetition Authority
The European Court of Justice ("CoJ") has upheld the European Commission's use of evidence transmitted by a national authority other than a Member State competition authority in a cartel investigation. The CoJ ruled on April 27, 2017… more
The Better Care Reconciliation Act: Similarities to House Health Care Bill, Preserves Parts of ACA
On June 22, 2017, Senate Republicans released a draft of the Better Care Reconciliation Act (BCRA), their much-anticipated version of the legislation to "repeal and replace" the Affordable Care Act (ACA). Despite rumors of a re-write… more
Eastern District of Texas Latest Court to Criticize "Subject To" Language in Discovery Objections
The Eastern District of Texas recently criticized a party's statement in its written discovery responses that it would produce documents "subject to" its objections. See Realpage, Inc. v. Enterprise Risk Control, LLC, No… more
Missed opportunity: Federal Circuit Again Offers No Clarifying Insight on Alice’s Two-Step Framework
On June 16, the Federal Circuit upheld the District Court’s decision in The Cleveland Clinic Found. V. True Health Diagnostics. Plaintiffs brought suit alleging Defendant infringed three patents (U.S. Patent Nos. 7,223,552;… more
Are We Ever Going to Get OSHA Guidance from the Trump Administration?
No one thought that on June 22, we would still not know the Trump administration's enforcement position on the recordkeeping anti-retaliation requirements, including about automatic post-accident drug testing, the Silica standard, or a… more
Financial Services Quarterly Report - Second Quarter 2017: Increasing Focus on European ETFs
The rise of passive investment strategies and the growing momentum of investment in exchange-traded funds (ETFs) has not gone unnoticed by European regulators. The Central Bank of Ireland (Central Bank) recently released a fact-finding… more
False Claims Act: Circuit Court Questionably Construes Scienter Requirement
The U.S. Court of Appeals for the Eleventh Circuit recently issued an opinion addressing the False Claims Act's intent requirement. U.S. ex rel. Phalp v. Lincare Holdings, Inc., No. 16-10532, ___ F.3d ___ (11th Cir. May 26, 2017). In… more
Germany Permits Automated Vehicles
On 21 June 2017, Germany enacted a bill legalizing automated vehicles ("AV Bill"). The AV Bill modifies the current Road Traffic Act and defines the requirements for highly and fully automated vehicles to use public roads. It further… more
FCA Deeper Dive: Original Sources under the FCA’s Public Disclosure Bar
The FCA continues to be the federal government’s primary civil enforcement tool for investigating allegations that healthcare providers or government contractors defrauded the federal government. In the coming weeks, we continue to… more
RAMP Certification Requirements: Expanded Enforcement Looming
As a result of the new laws enacted last year, anyone who serves or sells alcoholic beverages in Pennsylvania must be RAMP certified. A Pa.L.C.B. e-mail advisory clarified these new laws. Under the Pa.L.C.B. advisory, bartenders… more
Supreme Court Ruling Curtails Forum-Shopping
On Monday, the U.S. Supreme Court placed new limits on where lawsuits may be filed. In Bristol-Myers Squibb Co. v. Superior Court of California, No. 16–466 (June 19, 2017), the justices, in an eight – one decision, overturned the… more
Tax Law Changes in Saudi Arabia
On June 11, 2017, the Saudi Arabian Excise Tax Law ("Excise Tax Law"), as enacted by Royal Decree No. M/86 and dated 27/8/1438 H / May 23, 2017, came into force in Saudi Arabia. The new law implements the GCC Unified Selective Tax… more
Privacy Perils: Don't "Play" Around with Some Google Apps
A group of researchers at the University of Michigan has discovered that hundreds of applications in Google Play, whose function is to turn Android phones into a server that allows the user to connect their phone directly to their home… more
SCOTUS Addresses Scope of 'Specific Personal Jurisdiction'
The Supreme Court addressed the scope of so-called “specific personal jurisdiction,” on Monday, as applied to major corporations, strengthening defendants’ potential arguments at the motion to dismiss stage. Bristol-Myers Squibb v… more
Supreme Court to Decide the Constitutionality of Inter Partes Review
In a move that could drastically change the patent law landscape, the United States Supreme Court recently granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group LLC, No. 16-712, to answer the question whether… more
“I googled it”: Generic Words and Trademark Rights
A registered trademark can suffer "genericide" if it becomes so commonly used that it transforms from a unique brand name into a generic word which is synonymous with a product or service… more
Red Light for New Activist Strategy
Earlier this month, General Motors ("GM") won a decisive victory in a proxy contest waged by Greenlight Capital, the activist fund headed by David Einhorn. Greenlight claimed that GM's shares, which were trading at a price barely above… more
Providing a Service Alone is not Contributory Infringement
In the Cleveland Clinic Foundation v. True Health Diagnostics LLC, [2016-1766](June 16, 2017), the Federal Circuit affirmed that the asserted claims of U.S. Patent Nos. 7,223,552; 7,459,286; and 8,349,581 are not directed to… more
Supreme Court Holds that First Amendment Protects Disparaging Trademarks
This week, the U.S. Supreme Court emphasized the importance of broad free speech protection in striking down a statute that allows the U.S. Patent and Trademark Office (USPTO) to refuse registration of disparaging trademarks. Although… more
Free Parking, Yes, But No Stark Law Claim
A federal court recently dealt a victory to a health care provider over whistleblower allegations that free parking and valet service at a medical office building violated the Stark Law and the Anti-Kickback Statute… more
Estate Planning Still Critical in Uncertain Times
The “plan” unveiled by the Trump administration in late April to repeal the federal estate tax was a broadly vague outline of tax reform goals. The proposed changes did not mention the federal gift tax or generation skipping tax which… more
Why Isn’t My “Free” Preventive Health Care Free?
In my opinion, one of the best changes made by the Affordable Care Act is the mandate that requires health plans to provide certain specified preventive services without imposing any cost sharing. This is sometimes referred to as… more
U.S. Supreme Court Reverses California’s Sliding Scale Approach to Specific Personal Jurisdiction
On June 19, 2017, in Bristol-Myers Squibb Co. v. Superior Court of California, the Supreme Court held, by a vote of 8 to 1, that California courts lack specific jurisdiction to entertain a nonresident’s claims that are unrelated to any… more
[Video]This Week in FCPA-Episode 58, the Declination Edition
After last week’s guest announcers, Jay and I return for a wide-ranging discussion on some of the week’s top compliance related stories, including: 1. The first Declination of the Session’s Justice Department, Linde gas. 2. The son… more
Recognicorp, LLC v. Nintendo Co. -- Petition for En Banc Rehearing and Amicus Briefs
Proceedings for infringement of U.S. Patent No. 8,005,303 (Recognicorp, assigned from IQ Biometrix) resulted in an appeal decided on 28 April 2017, which decision was reviewed in this space by Michael Borella, and also criticised… more
FTC Submits Comments on IoT Security
The Federal Trade Commission (FTC) submitted public comments to the US Department of Commerce’s National Telecommunications and Information Administration (NTIA) in connection with the NTIA’s draft guidance on improving the security of… more
ManattJones Global Strategies - June 2017
CEO Executive Summary: U.S. Trade Representative Robert Lighthizer formally notified Congress of the Trump administration’s intention to renegotiate NAFTA beginning Aug. 16. While he and his Mexican counterpart set Dec. 15 as a target… more
ERISA Plan Choice-of-Law Provisions: Dog Whisperer’s Disability Claim Reviewed Under Abuse of Discretion Standard of Review
An issue dogging claims administrators is: What effect do choice-of-law provisions have on the standard of review of ERISA benefit decisions?… more
ITC To Issue Preliminary Miscellaneous Tariff Bill Report On June 9
Next Friday (June 9), the ITC will deliver its preliminary report to the House Ways & Means and the Senate Finance Committees regarding Miscellaneous Tariff Bill (MTB) petitions filed with the agency pursuant to the American… more
Ninth Circuit Says Age Discrimination Laws Apply to Public Employers of Any Size
In Guido v. Mount Lemmon Fire District, the Ninth Circuit Court of Appeals held that the Age Discrimination in Employment Act (ADEA) applies to public employers of any size… more
OSHA Seeks Feedback on Proposal to Revoke Certain Provisions of Beryllium Rule Applicable to the Construction and Shipyard Sectors
The Occupational Safety and Health Administration (OSHA) is reconsidering portions of a final rule setting standards for occupational exposure to beryllium. The rule, published January 9, 2017, was initially set to take effect on March… more
Mid-Year Compliance Check-Up!
There are a number of new employment laws coming into effect on July 1, 2017. Below is a self-test checklist to ensure your business is prepared for them… more
Exclusive Agreement Between Hospital and Insurance Plan Does Not Violate Section 1
The Seventh Circuit refused to revive an exclusive dealing claim by one hospital against its competitor because of an exclusivity agreement with an insurance plan. Judge Richard Posner wrote the short opinion strongly reiterating in… more
DOJ Reports on Drones Flying Contraband to Prisons
While drone delivery services are certainly on the agendas are large retailers like Amazon, inmates in jails across the U.S. are already using drones to receive their own aerial contraband shipments. Through a Freedom of Information… more
The Missing Key To Third-Party Litigation Funding
Civil litigation, once a realm confined to rules-based conflict resolution between adverse parties, has become profitable commerce in the United States. Where commerce thrives, investors looking for healthy returns follow. Unlike other… more
FTC Updates COPPA Guidance for Businesses
On June 21, 2017, the FTC updated its COPPA Compliance Guidance for businesses. The new guidance includes new descriptions of services and products covered by COPPA, and new methods for obtaining parental consent… more
Court Says Canada’s Attempt to Create a National Securities Regulation Scheme is Unconstitutional…Again
The Quebec Court of Appeals recently held in an advisory opinion that Canada’s attempt to create a national securities regulation scheme with the voluntary participation of the provinces is unconstitutional. Canada’s Constitution Act… more
Senate Republicans Release Bill to "Repeal and Replace" the Affordable Care Act
On June 22, 2017, Senate Republicans released a draft of their legislation to repeal and replace the Affordable Care Act (“ACA”). After the House narrowly passed its version of ACA overhaul legislation, the American Health Care Act… more
There's No Crying at Work! But if an Employee Does Cry, Is That Sufficient Notice of the Need for FMLA Leave?
Noemi was a secretary for a school district who claimed her coworkers made derogatory remarks about Hispanic students and their families. The last straw, according to Noemi, was when an associate principal allegedly told Noemi that… more
EU General Data Protection Regulation – a survival guide for 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
11th Circuit Hears Oral Argument in LabMD Case
Recently, the United States Court of Appeals for the Eleventh Circuit, sitting in Miami, heard oral argument in the case of LabMD, Inc. v. Federal Trade Commission, No. 16-16270… more
SCOTUS Decides Regulatory Takings Case
The US Supreme Court today issued its latest pronouncement on regulatory takings, Murr et. al, v. Wisconsin, et al. Justice Kennedy wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The issue was whether… more
And on the Seventh Day, Let Them Rest… or Work—If They Want!
Seyfarth Synopsis: Last month in Mendoza v. Nordstrom, Inc., the California Supreme Court addressed three questions about California’s “day of rest” statutes that prohibit employers from causing employees “to work more than six days in… more
Dinner Table Conversation: How an Offhand Comment may Signal a Shift in the Global Trade of Semiconductors
On June 19, Commerce Secretary Ross mentioned at a Wall Street Journal CFO dinner that the Administration is now considering launching an investigation of semiconductor imports under Section 232 of the Trade Expansion Act of 1962. Ross… more
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