Latest Updates

Alert: Employers Should Distribute Updated Sexual Harassment Brochure or Poster

The California Department of Fair Employment and Housing (DFEH) recently issued an updated sexual harassment brochure (DFEH-185) (found here in English and here in Spanish), which replaces the prior version. The DFEH also provided… more

Health Alert (Australia) 18 September 2017

In This Issue: - Judgments; Legislation; and Reports. - Excerpts from Judgments: 6 September 2017 - Finding of inquest into death of Phillip William Michell - Phillip William Michell died on 11 July 2015 at the Gandarra… more

ATC Privatization: Bill Set to Union Calendar

The 21st Century Aviation Innovation, Reform, and Reauthorization (AIRR) Act — H.R. 2997 — proposes to transfer operation of the U.S. air traffic control system (ATC) from the Federal Aviation Administration (FAA) to a private… more

Blocked Shot? Employer Runs into Religious Issues with Mandatory Flu Vaccines

If you require your employees to get a flu shot, what do you do with the ones who refuse on religious grounds? As with so much in employment law, it depends. In Equal Employment Opportunity Commission v. Mission Hospital, a federal… more

Durable General Powers of Attorney

Durable General Powers of Attorney (“DGPOAs”) are fundamental estate plan documents used to allow a person (the “Principal”) to appoint another person (the “Agent”) to exercise certain powers on behalf of the Principal relating to… more

Health Update - September 2017

Using Telehealth as a Tool for Health System Integration - As discussed in our August Health Update article on patient engagement and digital health—the first in our new digital health series—the advent of digital and telehealth… more

Hurricane Recovery Contractors Beware

The level of devastation caused by Hurricanes Harvey and Irma in Texas and Florida, respectively, is estimated to have caused $150-200 billion in damages. With this devastation comes a multibillion-dollar recovery effort that will… more

All Star Priority Staffing Sued by EEOC For Disability Discrimination

Phoenix Staffing Agency Subjected Applicants to Invasive Pre-Offer Medical Questionnaire And Screened Applicants on the Basis of Their Responses, Federal Agency Charges - PHOENIX - All Star Priority Staffing, LLC, a Phoenix… more

Trump Administration Rescinds DACA

On September 5, 2017, Attorney General Jeff Sessions announced that the Trump administration would be eliminating the Deferred Action for Childhood Arrivals program (commonly known as “DACA”). The DACA program allowed for certain… more

USCIS Allows Premium Processing of Cap-Subject H-1B Petitions

Premium processing resumed on September 18, 2017. US Citizenship and Immigration Services (USCIS) announced on September 18, 2017 that it will once again allow premium processing of all H-1B petitions subject to the Fiscal Year (FY)… more

CFIUS Continues to Present an Obstacle to Chinese Acquisitions

On September 13, 2017, President Donald Trump issued an Executive Order blocking investment firm, Canyon Bridge Capital Partners Inc. (“Canyon”), from acquiring Lattice Semiconductor Corporation (“Lattice”). President Trump’s decision… more

Capital Formation Bills Advance in the Senate

Last week, the Senate passed three bipartisan bills that promote access to capital for small businesses and startups. The Senate bills, the House corollaries of which originally passed on March 9, 2017, include the following..… more

Recent Federal Actions to Streamline the NEPA Process

There has been a string of actions in the past few weeks addressing the federal government’s policy goal of streamlining the NEPA review process. Although a number of actions have been taken, it presently boils down to this: the… more

NIAC Warns That United States Is “Falling Short” Defending Critical Infrastructure; Recommends Eleven-Step Action Plan

The President’s National Infrastructure Advisory Council (“NIAC”) issued a draft report at the end of August assessing the U.S.’s cyber preparedness related to critical infrastructure… more

Ninth Circuit Deviates from Guidance and Other Authority on Tip Credits

We have previously discussed how the Department of Labor (DOL) often issues guidance to assist employers in applying and complying with the DOL’s various regulations. The federal courts generally follow this guidance when analyzing the… more

Google Goes 0 For 2 in its Request for Review of SCA Warrant Cases: eDiscovery Case Law

As Tom O’Connor and I discussed last week in our ACEDS webinar Key eDiscovery Case Law Review for First Half of 2017, Google was ordered earlier this year to produce foreign stored emails by judges in California and Pennsylvania in… more

Tips on Using the Remainder of 2017 to Prepare for the 2018 Proxy Season

With the 2017 proxy season over for most companies, attention now turns to preparing for 2018. There are a number of compliance "musts" to focus on, as well as items that can be addressed in 2017 to make the 2018 proxy season easier… more

Octane Fitness Hits the Showers: Federal Circuit Affirms Attorneys’ Fees Award in Landmark Case

After an eight-year battle through the Federal Courts, the fight over attorneys’ fees in Octane Fitness v. ICON Health & Fitness has likely reached its end with the Federal Circuit upholding the hotly disputed $1.6 million award to… more

Federal Judge Blocks President Trump’s Effort to Punish Sanctuary Cities

On Friday, United States District Court Judge Harry Leinenweber blocked the U.S. Department of Justice from refusing to provide federal grant money to localities that had enacted “sanctuary city” laws protecting immigrants from… more

All that Glimmers is Not [Insurance Agency] Gold

Diversity jurisdiction requires complete diversity among plaintiffs and defendants. While it is difficult for a defendant to remove a case with a nondiverse defendant, removal can be accomplished through the doctrine of fraudulent… more

Congress Takes Up FDA Over-The-Counter (OTC) Drug Regulation Reform

On September 13, the U.S. House of Representatives Energy and Commerce Committee’s Subcommittee on Health held a hearing to examine draft legislation to create a new user fee program and completely revamp the review process for… more

Clear and Convincing: DOE v. Jackson, Devos, and the future of campus sexual misconduct investigations

On September 7, 2017, Betsy DeVos, the Secretary of Education, announced that the United States Department of Education intended to revisit the “Dear Colleague” letter that the Department’s Office for Civil Rights, or “OCR,” issued on… more

Creating Worker Loyalty in the Gig Economy

With the rise of “Uber-ization” of the workforce in the gig economy, many companies, including Fortune 500 firms and IT companies, are adopting a freelance model for its workforce. It’s understandable why businesses would be drawn to… more

Being the Bearer of Bad News – How to Handle an Employee Termination Meeting

News that Anheuser Busch laid off approximately 400 workers in its so-called “The High End” division (that is, the group that is buying up craft brewers and brands) serves as the most recent reminder that the business realities of… more

Boycott Claims Dismissed for Applying Per Se Standard

Editor’s Note: In a recent “Antitrust Practice Group Bulletin” for the American Health Lawyers Association, Manatt Health examined the August 9, 2017, decision by a federal district court to dismiss Sherman Act group boycott claims… more

Hurricane Irma Client Alert: Addressing Environmental Releases and Obligations

As the cleanup begins in Florida, companies face challenges in meeting existing environmental obligations and addressing the environmental impacts of the storm… more

Protection against DOJ interference with state medical cannabis programs extended until Dec. 8

A bipartisan short-term funding deal signed into law by President Donald Trump on Sept. 8 extended the Rohrabacher-Blumenauer Amendment protections for lawful medical cannabis programs that allow producers, retailers and consumers… more

Venture Capital Valuations

In a recent paper, “Squaring Venture Capital Valuations with Reality,” authors Will Gornall and Ilya A. Stebulaev review and consider valuations for a sample of unicorns. The valuations are on average 49% above fair value largely… more

Department of Transportation Releases New Voluntary Guidance for Autonomous Vehicles

On September 12, 2017, the Department of Transportation (DOT) released new Voluntary Guidance for Automated Driving Systems (ADS) in a document titled “A Vision for Safety 2.0” (the “Guidance”). The document, which comes as Congress… more

Staying Out of Trouble: How to Avoid IRS and DOL Audits

The Internal Revenue Service (IRS) and the Department of Labor (DOL) conduct different types of benefit plan audits, such as retirement plans and health and welfare plans, and for various reasons. In a presentation, Jeffrey Holdvogt… more

Filed v. Furnished, What’s the Difference?

When disclosing information in a filing with the SEC, it is important to know whether such disclosure and any related exhibits should be "filed" or "furnished". To non-lawyers, this may seem like semantics or another technical… more

Bill That Aims to Ease Stark Penalties Receives House Committee Approval

On Wednesday, September 13, the House Ways and Means Committee gave unanimous approval to H.R. 3726, the Stark Administrative Simplification Act (the “Bill”). The Bill would amend the Stark law, codified at 42 U.S.C. § 1395nn, to… more

DOMINICAN REPUBLIC—Update: Conditions for CDEEE-Related PPAs for Renewables

In our August 1, 2017 Cross Border Transactions Newsletter we informed about the announcement made by the Corporación Dominicana de Empresas Eléctricas Estatales (CDEEE) regarding several new conditions included in the Power Purchase… more

SEC Files Administrative Proceeding Against An Investment Services Firm For Improperly Recommending Higher-Fee Mutual Funds To Investment Clients

On September 14, 2017, the Securities and Exchange Commission (“SEC”) filed an administrative proceeding against SunTrust Investment Services, Inc. (“STIS”), the investment services subsidiary of SunTrust Banks. STIS consented to the… more

European Court Says Employers Cannot Monitor Employees' Personal Email Sent on Company Servers

The European Union has taken a substantially different approach than the United States to employee online privacy rights. Upcoming ePrivacy regulations promise to limit employers’ ability to monitor employee electronic communications… more

[Event] 29th Annual Employee Benefits Seminar - September 28th, Dallas TX

Please join the Locke Lord Employee Benefits and Executive Compensation Group for our 29th Annual Employee Benefits Seminar. Our attorneys will provide an overview of current developments related to employee benefit plans… more

Summary Judgment Motion on Infringement in Immunex v. Sandoz

A hearing on summary judgment on infringement of claim 1 of U.S. Patent No. 8,722,631 for the biosimilar version of etanercept has been set for next month before Judge Claire C. Cecchi… more

The Financial Report, Vol. 6, No. 17

The juxtaposition of items in the financial news is always fascinating. Earlier this week, an article appearing in the Wall Street Journal stated that state legislatures are moving to bolster investor protections due to concerns… more

NLRB Ditches Effort To Expand Weingarten Rights to Non-Union Workplaces

Since the change in Presidential administrations, the main topic has turned to what rules will a newly constituted NLRB change? With the addition of Marvin E. Kaplan the Board now has four members, which makes undoing some of the past… more

California District Court Dismisses Securities Fraud Class Action, Finding News Reports Insufficient To Support A Claim Absent "Corroborating Details"

On September 6, 2017, Judge Fernando M. Olguin of the Central District of California granted in part and denied in part a motion by defendants to dismiss a putative securities fraud class action against Goldcorp, Inc., a gold mining… more

Bona Fide Prospective Purchaser Escapes CERCLA Liability

The owners of a shipyard sued a prior owner and the current owner of an adjacent former steel mill property in Baltimore, Maryland for recovery of cleanup costs under the Comprehensive Environmental Response, Compensation, and… more

The Interactive Process Is a Two-Way Street: Ninth Circuit Finds Employee’s Inadequate Effort Doomed ADA Claim

“Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable… more

Beware: Claims Investigations May Not Be Protected From Disclosure In Maryland

Insurance companies and lawyers defending insurance companies oftentimes try to shield claims investigations from disclosure during discovery. Oftentimes, the claimed basis for non-disclosure is the work-product privilege. In light of… more

Sanofi & Regeneron Seek to Assert Inequitable Conduct Defense in Dupilumab Patent Litigation

As we previously reported, Immunex sued Sanofi and Regeneron earlier this year in the Central District of California alleging that the sale of Sanofi and Regeneron’s FDA-approved Dupixent® (dupilumab) product would infringe Immunex’s… more

Termination of employment due to poor performance – a brief legal comparison

Bryan Cave's Scandinavian Desk advises numerous Scandinavian clients in Germany. This article highlights the similarities and differences between German and Swedish law regarding the termination of employment due to poor performance… more

Give Your Customers the Gift of Security

2017 has reminded us that data security threats continue to evolve and that the stakes for companies can be very high if their data security programs fail to evolve as well. Before the recent announcement of Equifax’s megabreach, the… more

Tiffany’s Trademark Infringement Win a Costly Lesson for Costco

A federal district court has ordered Costco to pay Tiffany at least $19.4 million in a trademark infringement battle based on generic diamond engagement rings bearing the “Tiffany” name. Judge Laura Taylor Swain in the Southern… more

Seventh Circuit Affirms Dismissal Of Post-Liquidation Reinsurance Claim As Time-Barred

We previously posted on the trial court’s ruling addressing the statute of limitations in this case on June 23, 2016. By way of background, the underlying contract between the insurer and the reinsurer required the insurer to calculate… more

SEC Issues Guidance on Investment Adviser Advertising Rule

On September 14, 2017, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued a new Risk Alert outlining the most frequent compliance issues relating to Rule 206(4)-1 (the “Advertising Rule”) under the Investment… more

When Does “On” Mean “On”? Judge Netburn Holds That It Depends.

On September 11, 2017, Magistrate Judge Sarah Netburn (S.D.N.Y.) issued a claim construction ruling on, among other things, the construction of the word “on” across four different patents directed to semiconductor lasers. In three of… more

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