Latest Updates

DOL Takes Significant Step Forward in Rescinding Persuader Rule

This week the Department of Labor (“DOL”) submitted a proposed rulemaking that would rescind the regulation commonly termed the “Persuader Rule” to the Office of Management and Budget’s Office of Information and Regulatory Transparency… more

What Can We infer When Justice Kilbride Asks the First Question in Civil Cases?

Yesterday, we asked whether we can infer anything about Justice Kilbride’s vote and whether he’s writing an opinion, based on the pattern of his questions in oral argument. Today, we ask a slightly different question – can we infer… more

ECHA Publishes REACH Guidance for Nanomaterials

The European Chemicals Agency (ECHA) announced on May 24, 2017, publication of five documents that it intends to help registrants preparing dossiers that cover nanoforms ahead of the 2018 registration deadline under the Registration… more

Night Note: The 1st 100 Days: USTR Seeks Comments and Holds Hearing on NAFTA Renegotiation

On Tuesday, May 23, 2017, the Office of the U.S. Trade Representative (USTR) officially announced in a Federal Register notice that the United States intends to commence negotiations with Canada and Mexico over modernization of the… more

Government Employees Can’t Hide Behind Their Private Email Accounts: California Supreme Court Expands Public Records Definition To Include Emails Sent On Private Email Accounts

The use of private email servers and communications devices by government officials was a major issue in the 2016 election, from the investigation of Hillary Clinton’s email practices to the hacking of a private email account Mike… more

Portions Of The DOL Fiduciary Rule To Go Forward On June 9, 2017

Secretary of Labor Alexander Acosta announced on Monday that portions of the controversial Department of Labor (DOL) fiduciary rule will go into effect as planned on June 9, 2017, with full implementation of the rule on January 1… more

New Federal Railway Administration Requirements For Maintenance-Of-Way Workers Take Effect June 12, 2017

The U.S. Department of Transportation’s Federal Railroad Administration’s (“FRA”) final rule expanding drug and alcohol testing to maintenance-of-way (“MOW”) employees takes effect on June 12, 2017. MOW employees are “employees of a… more

Government Contractors: Buy In to "Buy American" or Risk Enforcement

President Trump’s recent “Buy American and Hire American” executive order signals greater enforcement of Buy American Laws. The order requires all federal agencies to assess and revamp internal policies for implementing and enforcing… more

Executive Order 13800 – Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure

President Donald J. Trump signed Executive Order 13800 titled “Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure” on May 11, 2017, his thirty-fifth executive order since taking office. Before… more

No Delay of DOL Fiduciary Rule’s June 9 Applicability Date; Additional Guidance Issued

Earlier this week, Secretary of Labor Alexander Acosta indicated in a Wall Street Journal op-ed article that there will be no further delay as to the parts of the fiduciary rule issued by the Department of Labor (DOL) that are… more

State And Federal Trade Secrets Claims Upheld By Northern District Of Illinois

A May 11, 2017 decision by Judge Chang, in the Northern District of Illinois, found misappropriation alleged under the Defend Trade Secrets Act (DTSA) and the Illinois Trade Secrets Act (ITSA), in a case where the employee downloaded… more

Scott Angelle Tapped to Take the Helm of BSEE

Scott Angelle took over as the Director of the U.S. Department of the Interior’s Bureau of Safety and Environmental Enforcement (BSEE) in Washington, D.C., on Tuesday, May 23. Mr. Angelle is well known to the oil and gas industry in… more

Facebook Fined for WhatsApp Data Linking Fallout

On 18 May 2017, the European Commission (“Commission”) fined Facebook €110 million ($122 million) for misrepresentations made in its application for competition clearance of the company’s acquisition of WhatsApp. In its merger… more

Irish Butter Shortage Spreads Trademark Battle in Wisconsin

A Wisconsin federal judge issued a temporary restraining order last month against a Wisconsin creamery for their use of the “Irishgold” Irish butter trademark and associated packaging. Irish dairy distributor Ornua Foods North America… more

Court Affirms the Comforting Bevill Backstop

Lawyers representing corporations should in nearly every circumstance provide an Upjohn warning to avoid accidentally creating attorney-client relationships with company employees. Upjohn v. United States, 449 US 383 (1981)… more

FCC Privacy Rules Repealed – Before Becoming Effective

On April 3, 2017, President Trump signed Senate Joint Resolution 34 (SJR 34), which effectively repealed not-yet-in-effect Federal Communications Commission regulations designed to limit use of customer information by broadband service… more

Temporary Protected Status For Haitians Extended Six Months

The Temporary Protected Status (TPS) program for Haitians will be extended an additional six months, until January 22, 2018, Secretary of Homeland Security John F. Kelly has announced. While in TPS, individuals are protected from… more

Researchers Complete First EPA-Sanctioned GE Algae Field Trial

Researchers at the University of California San Diego (UCSD) and Sapphire Energy completed the first EPA-sanctioned outdoor field trial for GE algae, which was focused on understanding how GE algae perform in outdoor cultivation. The… more

Hold the Phone – Debt Collectors Challenge FCC’s Take on TCPA

Businesses across America are waiting with bated breath for a ruling in ACA International, et al. v. FCC, a case brought by a debt collection industry group challenging the FCC’s order interpreting the Telephone Consumer Protection Act… more

Rating Agency Developments

On May 17, 2017, Fitch issued a report entitled Switzerland Residential Mortgage Rating Criteria Addendum. On May 17, 2017, Fitch issued a report entitled Germany Residential Mortgage Rating Criteria Addendum. On May 17… more

Supreme Court’s Decision in TC Heartland Narrows Patent Venue Selection

The Supreme Court’s decision in TC Heartland will undoubtedly have a substantial impact on patent venue selection and will likely lead to a marked decrease in cases brought in the Eastern District of Texas.  Under the Supreme Court’s… more

FRANCHISOR 101: State Taxes on Franchise Fees

Franchisors collect weekly or monthly "franchise fees." In many cases, fees are for particular services, such as marketing assistance or IT support. In franchising, the parties may be in any number of different states: for example, a… more

Factoring and leading with your chin

Factoring agreements are very popular with subcontractors and suppliers in the construction industry, assisting cash-flow by providing a line of credit against accounts receivable. However, like any financial product, factoring… more

Brave New World: Compliance and the Transition to Value-Based Care

The U.S. health care system is in the midst of a fundamental shift, away from traditional “fee-for-service” models that reward providers for the quantity of services provided to patients, toward value-based models designed to reward… more

The SFC’s Guidance on Corporate Transactions and the Use of Valuations

The SFC has become increasingly concerned that some listed companies are acquiring or selling assets at improperly assessed prices, resulting in losses to listed companies and their shareholders. Summary - The Securities and… more

PJM's 2020-2021 capacity auction results

PJM Interconnection -- the operator of the wholesale electricity market serving mid-Atlantic and eastern states -- has reported its latest capacity auction results. PJM's 2020/2021 Reliability Pricing Model Base Residual Auction was… more

Michigan Supreme Court Clarifies Statute of Limitations for Shareholder/Member Oppression Claims

When does the statute of limitations start running on claims for minority shareholder/member oppression under Michigan law? In its recent decision in Frank v. Linkner, a unanimous Michigan Supreme Court answered that question… more

Update - Environmental and Energy Policy Round-Up: Status of Regulations and Key Decisions under the New Administration

As the environmental and energy regulatory landscape under the new Administration continues to shift, we want to keep our clients up to speed, as many of these policy changes may directly or indirectly impact your businesses. The… more

Court Rules that “Upon Information And Belief” Allegations of FCA Violations Leveled Against Competitor Fail to Withstand Pleading Requirements

A Federal court in Ohio recently dismissed a qui tam lawsuit brought under the False Claims Act by Kustom Products, Inc. against Hupp & Associates, Inc., a defense contractor, and in so doing provided judicial treatment of the common… more

Financial Assurance Reform in Queensland

Findings and recommendations by the Queensland Treasury Corporation in its Review of Queensland's Financial Assurance Framework report (April 2017) (QTC Paper) have manifested in substantial proposed reforms to Queensland's financial… more

How much can a judge intervene in cross-examination before a trial becomes unfair?

Lord Justice Jackson's reforms to the Civil Procedure Rules (CPR) enabled judges to take a more active part in case management: they can manage the parties' costs budgets, control the timetable, limit expert evidence and impose… more

Minnesota Legislature Gives Up on Bill to Preempt Cities’ Safe and Sick Leave Ordinances

In the waning hours of the 2017 legislative session, Republicans who control both houses of the Minnesota Legislature reached an agreement with Democratic Governor Mark Dayton on a budget bill that removed from a provision that would… more

Podcast - Shrink the Section 457A Tax on Hedge Fund Management and Incentive Fees and Expand Your Impact

In a recently released Ropes & Gray podcast, asset management partner Isabel Dische, tax partner Brett Robbins, and private client partner Cameron Casey discuss the effect of Section 457A on pre-2009 management and incentive fees and… more

Trump Administration Pronouncements on Authorization of Jordan Cove LNG Project Could Raise Issues Before the Senate and in the Courts

Since the resignation of Federal Energy Regulatory Commission (FERC) Chairman Norman Bay in early February, FERC has been without a quorum of three commissioners and, as a result, has not been able to issue orders and take other… more

Legislative Update: Pregnancy Discrimination Protections Under State Law Changing?

On Tuesday, May 23rd, the Connecticut House of Representatives overwhelmingly passed a measure that would greatly expand the already broad anti-discrimination provision that exist under Connecticut law. The bill, House Bill 6668… more

Supreme Court Decision Limits Venue Statute in Patent Litigation

On May 22, 2017, in a highly-anticipated decision that could dramatically alter the landscape of patent litigation, the United States Supreme Court held that the “resides” prong of the patent venue statute, 28 U.S.C. §1400(b), dictates… more

The Supreme Court Narrows Forum Shopping in Patent Infringement Cases Against Domestic Companies in TC Heartland v. Kraft Food Brands

On May 22, 2017, the US Supreme Court unanimously rejected prior case law allowing patent holders to rely on the general venue statute, 28 U.S.C. § 1391(c), to file suit where a domestic defendant makes sales. TC Heartland, LLC v… more

PRC Cybersecurity Law - one week to go, and there are still new developments

The final countdown is on. The PRC Cybersecurity Law comes into force on 1 June 2017. This date marks a significant evolution in both the legal and enforcement environment for data protection in China, and organisations can no longer… more

Music Performing Rights Organizations and the “Full-Work” vs. “Fractional” Licensing Dispute: Government Seeks to Overturn Fractional Licensing Decision

On Thursday, the United States filed its brief (link is external)in its appeal of a decision by the district court for the Southern District of New York (link is external), which rejected the US Department of Justice’s earlier… more

Pissarro from Cornelius Gurlitt’s Salzburg Home Returned to Heirs

News Accompanied by Deafening Silence About Ongoing Restitution Policy Failures The German government announced recently that it had returned an additional work of art found in the Salzburg home of Cornelius Gurlitt in connection… more

New Funding Framework for DB Pension Plans Announced A Follow up from the 2017 Ontario Budget

On May 19, 2017, the Ontario Government announced that it is implementing a new funding framework for defined benefit (DB) pension plans in Ontario. Highlights include..… more

D.C. Circuit Revokes Drone Registration Rule

On Friday, May 19, 2017, less than a month after the National Park Service’s first use of a drone in a Grand Canyon search and rescue mission, the District of Columbia Circuit Court of Appeals struck down a Federal Aviation… more

HIPAA spring check-up: Your obligations to safeguard third-party patient health information in medical records produced in litigation

You’ve had your apple a day, but you can’t keep the subpoenas away… And, if your organization is facing a request seeking records or other materials that may contain patient health information (“PHI”), it bears repeating that… more

Is Public Consumption of Marijuana on the Horizion?

In two years, Oregon’s legalized recreational marijuana industry has gone from non-existent to a thriving industry, with over $60 million a year in total sales and over 400 licensed retailers. Despite the growing popularity of… more

Families Can Use a Tax-Advantaged ABLE Account to Save for Disability Expenses

Governor Charlie Baker recently announced the launch of a state sponsored Achieving a Better Life Experience (ABLE) account program that has been long awaited by disabled individuals and their families. This program serves as a vehicle… more

Unchecked indirect software access can be costly – what to look for in software license agreements

Simple and straight-forward are two words rarely associated with software license agreements. For example, a ruling out of the UK demonstrates the importance and real-life costs that can result when the full meaning of an agreement is… more

Written Description Lacking Where Nothing in the Specification Suggests Inventor Contemplated Claimed Invention

In Cisco Systems, Inc. v. Cirrex Systems, LLC, [2016-1143, 2016-1144](May 10, 2017), the Federal Circuit affirmed in part, and reversed in part the Board’s decision in Inter Partes Reexamination of U.S. Patent No. 6,415,082. Cisco… more

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests: eDiscovery Case Law

In Wal-Mart Stores, Inc. et. al. v. Texas Alcoholic Beverages Commission, et. al., No. 15-00134 (W.D. Texas, Apr. 10, 2017), Texas Magistrate Judge Andrew W. Austin (no relation) denied the defendant’s motion to overrule the… more

Federal Circuit Finds Claims Directed to Encoding and Decoding Image Data Patent-Ineligible

The Federal Circuit recently held in RecogniCorp, LLC v. Nintendo Co., Ltd. (Fed. Cir. 2016) that claims directed to encoding and decoding image data were not patent-eligible under 35 U.S.C. § 101. This ruling further highlights the… more

State Supreme Courts Continue to Try to Chip Away at FAA Preemption; The United States Supreme Court Is Not Amused

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., does not contain an express preemption provision, nor was it intended to be the exclusive codified arbitration law in all circumstances. However, the United States Supreme… more

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