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Recent Developments in the NLRB’s Joint and Single Employer Doctrines

Highlights of recent developments relevant to all employers. The National Labor Relations Board (NLRB or Board) is poised to return to a Republican majority, which likely will result in a change in labor law philosophy. This…more

Judge Koh Issues First Blow to “Added Sugars” Plaintiffs

The Big Picture: On Tuesday, Judge Koh granted Kellogg’s Motion to Dismiss in its entirety in Hadley v. Kellogg Sales Company, No. 5:16-cv-04955-LHK (N.D. Cal.). Hadley is one of three cases against well-known cereal makers pending…more

Checking In on Background Checks

Background checks are a valuable (and often essential) part of the hiring process. They help employers find good employees and avoid risky hires. Failure to check applicants’ backgrounds can amount to negligence and may create legal…more

Health Update - March 2017

The Future of Essential Health Benefits - Editor's Note: The Essential Health Benefits (EHB) rule may be among the many parts of the Affordable Care Act (ACA) that are on the chopping block as the Trump Administration and Congress…more

The RFP Process has to be real

Years ago, as a naïve associate at a semi-prestigious law firm, I got the short end of the stick to attend a quarterly Taft-Hartley meeting in Staten Island. If you ever have to drive from Long Island to Staten Island, you know what a…more

Judge Peck Provides a Rule 34 'Wake-Up Call' — Objections that Are Not Specific Are Waived

Fischer v. Forrest, No. 14 Civ. 1304, 1307 (PAE) (AJP), 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017). “It is time, once again, to issue a discovery wake-up call to the [b]ar in this District,” begins Magistrate Judge Andrew J. Peck…more

Supreme Court Increases School Standards For Students With Disabilities

IEPs Must Meet “Markedly More Demanding” Standard From Now On This week, in a unanimous decision crafted by Chief Justice John Roberts, the Supreme Court decided that the Individuals with Disabilities Education Act (IDEA) requires…more

Defining the Duty of the Board of Directors over Compliance Functions

I recently posted a blog article about a document released by the Department of Justice entitled “Evaluation of Compliance Programs.” As the title of the document might suggest, the DOJ release covers a variety of issues it looks at…more

Sections 101 and 112: Eligibility, Patentability, or Somewhere in Between?

We wrote earlier about the Supreme Court’s renewed interest in patent eligibility and seemingly unintended confusion between the patent eligibility requirements of 35 U.S.C. § 101 and the remaining patentability requirements under…more

FDA Approval for Medtronic’s Reveal LINQ ICM with TruRhythm Detection

On March 13, 2017, Medtronic announced FDA 510(k) clearance for its Reveal LINQ Insertable Cardiac Monitor (ICM) with TruRhythm Detection. Previously, Medtronic received Ministry of Health, Labor and Welfare approval for the device in…more

Keyword ads — Only infringing if they’re confusing

Neighbors can be helpful. Our Canadian neighbors may have just helped U.S. trademark owners who wonder about the legality of use of their trademarks in Google AdWords ads, and other search-engine keyword ads…more

A Common Interest Agreement May Not Be Worth the Paper It’s Written On

It is a very common practice for counsel to co-defendants or co-plaintiffs to enter into agreements that shield their communications. The agreements are expressions of intent that the communications will be protected by the “common…more

Uncertain Times Call for Cool Heads

We live in changing times. In 2016, both the election of President Donald Trump and the Brexit vote caught many off guard. Already there’s nothing concrete about 2017 and looking even further ahead is fraught with difficulty…more

OCC's Proposed Licensing Guidelines Treat Fintech Charters Like Any Other National Bank

A fintech company considering a national bank charter will need to consider whether committing to a multi-year business plan is feasible in an industry that is constantly evolving, and in which the ability to respond quickly to market…more

Needle and the Damage Done: Pharmacist’s Phobia Not Enough for ADA Claim

Can fear of an aspect of your job constitute a disability under the ADA? Depends on how essential the function is. In Stevens v. Rite Aid Corp, the Second Circuit Court of Appeals looked at the case of a Rite Aid pharmacist…more

SEC Shortens Settlement Cycle to T +2

On March 22, the Securities and Exchange Commission (the "SEC") adopted an amendment to Rule 15c6-1 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to shorten the standard settlement cycle for most…more

Hot to trot: China's State Council orders further liberalization to turn the tide on foreign direct investment in China

On 12 January 2017, China's State Council issued the Expansion of Liberalization and the Active Utilization of Foreign Investment Circular Several Measures. The State Council Liberalization Measures set out framework policies to…more

Orrick's Financial Industry Week In Review

Financial Industry Developments - OCC Provides Additional Details to Evaluate Charter Applications From Fintech Companies - On March 15, 2017, the Office of the Comptroller of the Currency ("OCC") issued a "Draft Licensing…more

Nebraska Supreme Court Rules that an Insurer Can Depreciate Labor in Determining Actual Cash Value

Property policies typically provide, if there is coverage, that the insured can recover for the costs to repair or replace the property damaged by loss. But when an insured does not repair or replace the damaged property (or until…more

Infrastructure M&A: Journey to the non-core: The maturing nature of the non-core infrastructure space has now opened the door for institutional investors to move into the space

Over the past seven years, institutional investors and funds have been battling each other for the most prized infrastructure assets. This competition has led to a steep increase in both European infrastructure M&A and a corresponding…more

Trump Budget Raises Questions about Approach to Cybersecurity

On Thursday, March 16, 2017, President Trump unveiled his “America First” budget blueprint. One of the most important quandaries for those in the cybersecurity world is how the proposal to reorganize the executive branch to improve…more

Your Daily Dose of Financial News

Eric Mindich—famous for becoming the youngest-ever Goldman partner at 29—is shuttering his Eton Park Capital Management hedge fund and returning the $7 billion it manages to investors. Viewed along with Pershing Square’s recent $4…more

The Treasury Committee inquiry into EU insurance regulation – what have we learned so far?

To supplement its work on the relationship that the UK might seek to have with the EU following Brexit, the Treasury Committee of the House of Commons established in September 2016 an inquiry into EU insurance regulation. Please…more

The Fine Print - Spring 2017

The spring 2017 issue of The Fine Print features articles on supply chain management, hotel franchise agreements, President Trump's executive orders and more. Please see full newsletter below for more information…more

IRS Revenue Procedure 2017–13 Safe Harbor Requirements for Services Contracts

IRS Revenue Procedure 2017-13 (the "Revenue Procedure") sets forth, and significantly liberalizes, the requirements for determining whether a contract (a "Services Contract") with a service provider or manager (a "Service Provider")…more

Organizational Conflicts of Interest: An Issue That Requires Government Contractors To Be Proactive

In an effort to ensure there is no OCI or that your mitigation plan is effective and timely implemented, government contractors must be proactive when reviewing the agency’s needs in light of its mission, the solicitation, and the…more

BRN Sunset Report Criticizes Enforcement Process, Treatment of Nurse-Midwives

The California Board of Registered Nursing (BRN) received a negative evaluation of its enforcement program in the most recent sunset review. The sunset review included a performance audit by the California State Auditor due to…more

Massachusetts Supreme Judicial Court Clarifies the Requirements for Shareholder Inspection Demands

In Chitwood v. Vertex Pharm. Inc., SJC-12101 (March 20, 2017), the Massachusetts Supreme Judicial Court (SJC) provided important guidance on the scope of the Massachusetts shareholder inspection statute, Mass. G.L. 156D § 16.02, as…more

4th Circuit Decision Highlights Importance of Comparator Evidence

The Fourth Circuit recently upheld a lower court decision granting summary judgment to the employer in an employment discrimination suit brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) and Maryland law, holding…more

Court Orders EPA to Promulgate Air Toxics Standards: A Taste of What’s to Come?

On March 22, 2017, federal Judge Christopher Cooper ordered EPA to promulgate emissions standards for 13 sources of hazardous air pollutants by June 30, 2020. EPA admitted that it missed statutory deadlines to do so; the only argument…more

How a Comma Could Cost You

Few people actually remember all those pesky grammar rules we learned in school. But you can bet that a company in Maine will not be forgetting its comma rules anytime soon…more

Lawsuit Abuse Reduction Act Would Mandate Sanctions for Frivolous Claims

On March 10, 2017, the U.S. House of Representatives passed the Lawsuit Abuse Reduction Act of 2017 ("LARA") by a vote of 230–180. 163 Cong. Rec. H2025-03, H2025. The bill seeks to undo the 1993 amendments to Rule 11 of the Federal…more

Warner Bros., Trademark Lawyers Target “Golden Ticket” Beer Brand

This month, “Willy Wonka” filmmaker Warner Bros. Entertainment Inc. (“Warner Bros.”) formally opposed Georgia-based South Sky Brewing Company’s (“Southern Sky”) federal trademark application for its “Golden Ticket” branded beer…more

Supreme Court Preview -- TC Heartland LLC v. Kraft Foods Group Brands LLC

Next week, on Monday March 27, the Supreme Court will hear oral arguments in the TC Heartland LLC v. Kraft Foods Group Brands LLC case. This case involves the interpretation of the current patent venue statute. And while interpreting…more

Merck Fails to Obtain Summary Judgment on Preemption Defense – Third Circuit Rules “Impossibility Preemption” Presents a Question of Fact

In re: Fosamax (Alendronate Sodium) Products Liability Litigation, Nos. 14-1900 et al. (3d Cir. March 22, 2017). In a precedential decision issued on March 22, 2017, the United States Court of Appeals for the Third Circuit reversed…more

"Roll Out the Barrels" and the "Brunch Bill": Proposed North Carolina Legislation of Interest to the Alcohol Industry and Consumers

There are two bills pending in the North Carolina General Assembly this legislative session that may impact North Carolina breweries, distilleries, retailers, and consumers..…more

Contract Corner: Contracting Strategies Can Help Navigate Changing Environments (Part 1)

If you have been around technology-centric work for a while, you may have come to realize that many “technology” programs really aren’t about technology at all—the technology simply functions as a conduit for business change. A classic…more

CBCA Affirms It Cannot Direct an Agency to Revise a CPAR

The Civilian Board of Contract Appeals (CBCA) recently affirmed that it would follow the Court of Federal Claims (COFC) and Armed Services Board of Contract Appeals (ASBCA) in refusing to direct an agency to revise a Contract…more

Client Alert: Supreme Court Finds Cheerleading Uniforms Copyrightable in Landmark Apparel Copyright Case

In the first apparel copyright case ever considered by the U.S. Supreme Court, Star Athletica, LLC v. Varsity Brands, Inc., the high court found on March 22, 2017 that decorative elements of a cheerleading uniform could be protected by…more

[Video]This Week in FCPA-Episode 45-the Compliance is Good for Business Edition

In this episode, Jay and I have a wide-ranging discussion on why good compliance is good for business. We discuss: 1. LRN Ethics and Compliance Program Effectiveness Report. 2. Ethisphere’s 2017 World’s Most Ethical Companies. 3…more

M&A Activity in the Connect Vehicles Sector: More Antitrust Filings on the Horizon?

M&A activity in the connected vehicles sector might need to be notified to antitrust authorities, even when the target has limited revenues, as shown by the recent Intel/Mobileye deal. Connected vehicles (or, taking it one step…more

Security of Payment and the rise of the contractual reference date

The recent Supreme Court of NSW decision by Ball J in Fairfield City Council v Abergeldie Contractors Pty Ltd1 (Abergeldie), provides another demonstration of how issues with reference dates2 can provide potent grounds for challenging…more

The News is Fake, but the Trademarks are Real

The trademark filings for new political slogans and catchphrases continue. Over the last couple of months, Donald Trump has repeatedly accused various news sources of disseminating “fake news.” As a result, 14 trademark…more

The Battle of the Kylies Over the “Kylie” Trademark

In one corner, you have the 19-year-old breakout star of the Kardashian/Jenner clan, Kylie Jenner, who is making a name for herself with her cosmetics and fashion empire. In the other corner, you have the 48-year-old singer…more

Senegal's New Mining Code

Senegal has officially introduced its new mining code, which has been a work in progress since 2012 when proposals were first made to revise the former mining code introduced in 2003. In recognising the potential that the mining…more

Improving the Examiner Interview with a Little Psychotherapy

Wandering through the aisles of iTunes for interesting podcasts, I came across several on psychotherapy. Wow, I thought to myself; I can sure use these! Many of them are hosted by women who have nice voices and who interview other…more

Give me…“Separability!” Supreme Court Holds Cheerleading Uniform Designs Copyrightable

The Supreme Court, in Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. ___ (2017), resolved “widespread disagreement” among the circuits, and adopted a single test to determine the copyrightability of designs incorporated in…more

The “El Niño” Effect In Peru, Can Anything Be Done?

After a period of severe drought, per recent news reports the “El Niño” effect is bringing heavy rainfall on Peru´s Northern coast causing overflowing of rivers, mudslides and flooding. This is the worst such disaster since 1997 and…more

Commonwealth Court Dismisses Pennsylvania Attorney General’s Lawsuit against Golden Living

Many nursing home operators have been closely watching the litigation between the Pennsylvania Office of Attorney General (“OAG”) and the Golden Living chain of skilled nursing facilities. On March 22, 2017, the Commonwealth Court…more

Three Stripes and You’re Out

On March 17, Adidas American, Inc. sued Juicy Couture, Inc., in the District of Oregon (3:17-cv-00437), alleging trademark infringement, unfair competition, trademark dilution, deceptive trade practices, and breach of contract. This…more

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