Latest Updates

Proposed BROWSER Act Would Require ISPs and Edge Service Providers to Give Users Opt-in and Opt-out Rights for the Use and Disclosure of User Information

On May 18, 2017, Martha Blackburn (R-TN), Chairman of the House Committee on Energy and Commerce’s Subcommittee on Communications and Technology, introduced H.R. 2520, the Balancing the Rights of Web Surfers Equality and Responsibility… more

Collecting Your Goods – Electronic Release System

The Court of Appeal handed down a judgment this week in MSC Mediterranean Shipping Company SA v Glencore International AG [2017] EWCA Civ 365 relating to a dispute arising out of the Electronic Release System (“ERS”) in operation at… more

Tennessee Prohibits Eminent Domain For Industrial Parks.

Tennessee has enacted a law that will prohibit the use of eminent domain to condemn land for industrial parks. It deletes the “industrial parks” exception for takings under 29-17-102 (E), . It also provides that any property taken must… more

Window on Washington - This Week in the Nation's Capital - May 26, 2017 Vol. 1, Issue 10

The President’s FY 2018 Budget Proposal: The President’s FY 2018 Budget Proposal: The President released the full version of his first budget, laying out his proposals for Fiscal Year (FY) 2018 and the following decade. The budget… more

SAS Institute Inc. v. Lee : For the Love of Administrative Efficiency

On the same day the Supreme Court issued its much-anticipated decision in TC Heartland v. Kraft, the Court also granted a petition for writ of certiorari in SAS Institute Inc. v. Lee. The question presented in that petition is whether… more

CFPB Delays Effective Date of Prepaid Accounts Rule – How Can You Prepare?

The CFPB has provided additional time to prepare for its long-anticipated prepaid accounts rule, moving the rule's effective date from October 1, 2017 to April 1, 2018. Per the CFPB, the delay will allow industry participants more time… more

San Francisco’s Mass Transit Agency Accused of Illegally Collecting and Transmitting Smart Phone Data Through Security App

San Francisco’s public transportation agency and the creator of the agency’s suspicious activity reporting smart phone application have been accused of illegally collecting, tracking, and storing users’ personal information and… more

Some Further Thoughts On Medical Verifications For Emotional Support Animals

A couple of interesting emotional support animal medical verification questions have hit my desk over the past month. First, recall that case law on the issue of permissible credentials of a medical or health care professional is a bit… more

T.C. Heartland Leaves Open Patent Venue Questions

The words “venue” and “headline news” are typically not found in the same sentence. Yet the United States Supreme Court’s decision in T.C. Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. ___ (2017) managed to achieve that… more

What You Need to Know About the CFPB and the PHH Argument Yesterday

Oh boy, it is a new day in the world of CFPB. Yesterday was the oral argument in the PHH case before the D.C. Circuit hearing the case en banc… more

The FLSA and Your CBA: 3rd Circuit Finds Claims Were Not Subject to Dispute Resolution Provisions

In Jones v. SCO Silver Care Operations LLC, No. 16-1101 (May 18, 2017), the Third Circuit Court of Appeals addressed whether several certified nursing assistant plaintiffs were entitled to pursue their claims for violations of the Fair… more

EPA Reconsidering Obama-Era Water Quality Standards It Set for Maine

On May 12, 2017, Maine’s U.S. District Court granted a request by the U.S. Environmental Protection Agency (“EPA”) for a 90-day stay in a suit by the State of Maine challenging EPA’s efforts to impose stricter water quality standards… more

Compliance News Flash

This week’s news flash – a quick overview of timely background screening and immigration-related news that is important to your organization. 1. For those tracking the presidential executive orders commonly referred to as the travel… more

Florida Changes Appraiser Licensing Law

Florida has enacted a bill changing its appraiser licensing law. HB 927 includes changes advocated by the Appraisal Institute. The law defines an “evaluation” as a “valuation permitted by any federal financial institutions… more

U.S. Senate’s Energy And Natural Resources Committee Hears Testimony Of FERC Nominees, Begins Process To Reestablish Needed FERC Quorum

Federal Energy Regulatory Commission nominees Robert Powelson and Neil Chatterjee testified yesterday before the U.S. Senate Committee on Energy and Natural Resources. The two Republican nominees—Mr. Powelson, Chairman of the… more

Town of DISH’s and Its Residents’ Takings Claims Barred By Statute of Limitations

Litigating parties may be so invested in the rightness of their cause that they neglect to check the calendar, and the relevant stature of limitations. On May 19, the Texas Supreme Court decided the case of Town of DISH, et al., v… more

North Carolina Legislative Update - May, 2017 #4

This week at the General Assembly, Senate Committees were busy while House Budget leaders rolled out parts of their version of the budget in subcommittees. House leaders have indicated they hope to hold a vote on the budget bill next… more

BaFin Restricts CFD Trading in Germany

On 8 May 2017, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht-“BaFin”) issued a General Administrative Act (Allgemeinverfügung) restricting the marketing, distribution and sale of… more

Trump Administration Begins Process To Rescind “2016 Persuader Rule”

The Trump Administration has begun the process to rescind the “2016 Persuader Rule,” one of the most contentious employment-related regulations issued during the Obama Administration. Earlier this week, the U.S. Department of Labor… more

Amgen Seeks Discovery Regarding AbbVie’s Patent Dance with Other Biosimilar Applicants

In the ongoing litigation between AbbVie and Amgen regarding Amgen’s proposed biosimilar for Humira® (adalimumab), Amgen is seeking discovery from AbbVie regarding its exchanges with other adalimumab biosimilar applicants under the… more

Do Winning Parties Tend to Have More Amicus Support in Civil Cases (Part 2)?

Yesterday, we reviewed who averaged the most amicus support in civil cases between 1994 and 2005 – winning parties, losers, or parties who won only in part. Today, we address the data for the years 2006 through 2016. Petitioners… more

Starbucks Sued For Trademark Infringement Over Its Unicorn Frappuccino

The elusive and mythical unicorn has recently been making appearances in the cups of trendy beverage seekers in the form of the Unicorn Frappuccino at Starbucks. This flavor-changing, color-changing, blended crème beverage initially… more

Are You Computing Your Maximum Participant Loan Amount Correctly (Or In The Best Interest Of Your Plan Participants)?

In late April 2017, the IRS issued a Memorandum for Employee Plans (EP) Examinations Employees providing two alternatives for computing the maximum participant loan amount when the participant has prior loans. Prior to this Memorandum… more

Fourth District Holds Substantial Evidence Supports City of San Diego’s Rejection of MND and Denial of Minor Residential Subdivision In Low Density La Playa Neighborhood

In a short opinion filed May 17, 2017, and belatedly ordered published (for unknown reasons) just six days later, the Fourth District Court of Appeal reversed the trial court’s judgment granting a writ of mandate that set aside the… more

Gold King Mine: In It For The Long Haul

The Gold King Mine was in the news this week – by way of a reminder, the Gold King Mine wastewater release occurred from an inactive Colorado gold mine near Silverton, Colorado, back in August of 2015 and the impacts were great, to… more

Labor and Employment Group News: Business and Employee Groups Oppose Merger of OFCCP with EEOC

President Trump’s 2018 budget, released on May 23, proposes to merge the Office of Federal Contract Compliance Programs (OFCCP) with the Equal Employment Opportunity Commission (EEOC) by the end of FY 2018. The proposed merger… more

“TC Heartland” Supreme Court Limits Venue in Patent Suits

Monday, in a unanimous opinion (Goresuch did not participate), the Supreme Court interpreted the patent venue statute (28 USC s. 1400(b)) to require that the phrase “where the defendant resides” be limited to the defendant’s state of… more

Trump Administration Releases Fiscal Year 2018 Budget Proposal

On Tuesday, May 23, the White House released the President's fiscal year 2018 (FY18) budget, launching a contentious and consequential debate that is expected to last through the end of the fiscal year and possibly beyond. The detailed… more

Texas Considers Eminent Domain Bill

The Texas Senate approved an eminent domain bill intending to expand on current legislation. The bill’s author, State Senator Lois Kolkhorst, said “This bill is designed to build off of Senate Bill 18 six years later as we’ve learned… more

Use of Accounting Term of Art in Arbitration Provision of Asset Purchase Agreement Narrows its Scope in Favor of Bankruptcy Court Jurisdiction Over Post-Closing Dispute

The Delaware District Court affirmed the bankruptcy court’s decision that the combination of a narrow arbitration provision and the bankruptcy court’s reservation of jurisdiction warranted denial of a motion to compel arbitration. The… more

What You Need to Know from the CFPB Spring 2017 Supervisory Highlights

The Consumer Financial Protection Bureau (CFPB) released its Spring 2017 Supervisory Highlights last month. This is the 15th volume to be released and each volume is a great resource to obtain line-of-sight into what the CFPB is… more

RecogniCorp v. Nintendo—Alice Keeps Playing at the Federal Circuit

In the nearly three years since Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the Federal Circuit has analyzed the issue of patent-eligibility in the context of numerous distinct technologies. The court’s precedent applying… more

Singapore International Arbitration Centre Rules 2016: Towards Greater Efficiency in International Commercial Arbitration

The latest edition of the SIAC Arbitration Rules came into effect on 1 August 2016 and SIAC’s Annual Report published in March 2017 provides an update on how the new rules have been utilised. This client alert examines the key… more

Texas Supreme Court Refuses To Rule On Whether Texas Recognizes Tortious Interference With Inheritance Rights And Affirms A Constructive Trust Based On A Finding Of Mental Incompetence

In Jackson Walker LLPO v. Kinsel, Lesey and E.A. Kinsel owned a ranch, and when E.A. died, he divided his half between his children and Lesey. Jackson Walker, LLPO v. Kinsel, No. 07-13-00130-CV, 2015 Tex. App. LEXIS 3586 (Tex… more

NLRB’s Budget Slashed: What Could It Mean To Your Business?

President Donald Trump has released a budget proposal reducing the National Labor Relations Board’s funding in fiscal year 2018 by nearly six percent. It also calls for significant staff reductions at a time when the agency’s caseload… more

Courts Will Not Second-Guess Development Decisions When the Findings are Supported by Substantial Evidence

On May 23,2017, the Court of Appeal for the Fourth Appellate District granted a request to publish Kutzke v. City of San Diego, __ Cal. App. 5th __ (2017) (Case No. D070288), another opinion that shows the deference courts give to… more

Rules of the Road: New CFTC Regulations Expand Whistleblower Bounty Program

The Commodity Futures Trading Commission (CFTC), published updated regulations Monday to bring its whistleblower bounty efforts more in line with the SEC’s. The rules were proposed last August and generally provide more robust… more

Texas Supreme Court Discusses Rights Conveyed by a Mineral Lease

The recent Lightning Oil Company v. Anadarko E&P Onshore, LLC F/K/A Andarko E&P Company, LP, decision of the Texas Supreme Court, which clarified the rights and obligations of owners of the surface property and the mineral interests… more

Kindred Nursing Centers L.P. v. Clark: The Supreme Court Reemphasizes That Arbitration Agreements Must Be Placed on Equal Footing With Other Contracts

On May 15, 2017, the Supreme Court of the United States reaffirmed that the Federal Arbitration Act (the “FAA”) preempts state laws placing agreements to arbitrate on weaker footing than other types of contracts. In Kindred Nursing… more

ETF Boards Need to Apply Gartenberg Differently

The differences between the respective cost structures of exchange-traded funds and mutual funds and the nature of advisory services provided for each product may require boards to think about the Gartenberg factors differently when… more

Celltrion Files Brief and Motion to Compel in Infliximab Litigation

As we previously reported, Celltrion has moved to dismiss Janssen v. Celltrion for lack of standing. On Monday, Celltrion filed its reply brief in further support of that motion… more

4th Circuit Ruling Continues Star-Crossed Fate of Trump Administration Travel Ban

On May 25, 2017 the U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s nationwide injunction against the Trump administration’s executive order (EO) suspending entry into the United States of foreign nationals from six… more

Requiring Professional Law Enforcement Oversight Of Animal Cruelty Investigations Will Actually Help Animals-Banning Humanely Raised, Healthy Puppies Will Not.

Lawmakers in Trenton, New Jersey did not have the opportunity to reject an attempted override to Governor Christie’s condition veto of Senator Lesniak’s so-called “puppy mill bill,” one of more than 200 similar laws nationwide… more

Trending Wonkology: What is 'Special Counsel'?

Special Counsel - Definition: A person appointed by the U.S. Attorney General, or their designee, in cases where an internal investigation may present a conflict of interest or when it may be in the public interest… more

Don’t “Hire” A Lawsuit: A New Employee’s Misappropriation of TradeSecrets May Quickly Become Your Own

Companies commonly assume that they will only be sued for trade secret misappropriation if they or someone from their company steal the “secret sauce” of their competitor. Not true. A far more common way that companies get dragged into… more

TPS Extended for Haitians and Court of Appeals Upholds the Block of Second Travel Ban

On May 24th, DHS Secretary John F. Kelly extended Temporary Protected Status (TPS) through January 22, 2018 for eligible nationals of Haiti and individuals without nationality who last habitually resided in Haiti. The Secretary… more

Illinois Appellate Court Opens Door to Expanding List of Accepted Diseases in Medical Marijuana Program

On May 22, 2017, the Illinois First District Appellate Court upheld reversal of the Illinois Department of Public Health’s (IDPH’s) refusal to add chronic postoperative pain (CPOP) to the list of accepted diseases in the Illinois… more

FCA Proposes Changes to the Prospectus Rules in its Quarterly Consultation Paper

In its quarterly consultation paper (CP17/6) published on 3 March 2017, the Financial Conduct Authority ("FCA") proposed specific amendments to the Prospectus Rules in anticipation of the entry into force of the new Prospectus… more

CBO Greenlights Telehealth Provisions in Senate’s CHRONIC Care Act

Last week, the Congressional Budget Office (CBO) concluded that a key piece of telehealth legislation, the CHRONIC Care Act of 2017, would not, overall, increase or decrease Medicare spending. This score is significant as it marks the… more

DOL’s Fiduciary Rule To Apply June 9th, Investment Managers and Advisers May Want to Take Action Now

The U.S. Department of Labor's (DOL) final rule significantly expanding when a person is considered to be a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code) as a result of… more

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