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U.S. Trade Negotiator Calls China “Unprecedented” Threat
On Monday September 18th, U.S. Trade Representative Robert Lighthizer warned that China’s trade practices represent “a threat to the trading system that is unprecedented.” This was his first public speech since being confirmed in May… more
The State AG Report Weekly Update
AG Elections- Illinois Attorney General Will Not Seek Reelection in 2018; Democrats Scott Drury and Kwame Raoul Announce Bid for Seat- Illinois AG Lisa Madigan, a Democrat, announced on her campaign website that she will not seek… more
Blog: SEC Issues Some (Limited) Guidance In Connection With Pay-Ratio Disclosure
This afternoon, the SEC announced that it had adopted interpretive guidance in connection with the pay-ratio disclosure requirement, which mandates public company disclosure of specified pay-ratio information, beginning with the… more
California Bill Would Require Disclosure of Cleaning Product Ingredients
On September 13, 2017, the California Senate passed the final version of the Cleaning Product Right to Know Act of 2017 (S.B. 258), which would require manufacturers of cleaning products to disclose certain chemical ingredients on the… more
Department of Labor Announces Increase to Minimum Wage for Government Contractors
Effective January 1, 2018, the minimum wage for federal contractors working on or in connection with contracts covered by Executive Order 13658 will increase to $10.35 per hour. The current minimum wage under Executive Order 13658 is… more
Air Modeling and Effects Review Applicability: Texas Commission on Environmental Quality Updates Guidance
The Texas Commission on Environmental Quality (“TCEQ”) announced the release of an updated Modeling and Effects Review Applicability guidance document (“Guidance”). See APDG 5874. TCEQ intends for the document to provide a general… more
4 No-Nonsense Reasons to Take Good Minutes – Part 1
Taking minutes arguably tops the list of “most thankless jobs,” and those who assume the role often wish they hadn’t been such a willing volunteer. But accurate minutes are a parliamentary procedure “must” for all non-profits –… more
Celgene Notches Rare Win On PTAB Request For Rehearing
The recent decisions of the USPTO Patent Trial and Appeal Board (PTAB) granting Celgene’s requests for rehearing in parallel Inter Partes Review proceedings brought by Kyle Bass’s Coalition for Affordable Drugs (CFAD) are notable in… more
Tennessee Department of Health Grants COPA Request for Health Care Alliance
On September 19, 2017, the Tennessee Department of Health (“TDOH”) granted the request for a Certificate of Public Advantage (“COPA”) from Wellmont Health System and Mountain States Health Alliance. This approval paves the way for the… more
Veil Piercing/Alter Ego Determinations – How Fund Managers Can Protect Themselves
A veil piercing claim can be a worst-case scenario for a private fund manager dealing with a struggling portfolio company investment – the company fails, and ensuing legal claims are brought not only against the portfolio company, but… more
Lewisville Medical Practice Sued by EEOC for Religious Discrimination and Retaliation
Employee Fired for Requesting to be Excused From Mandatory Morning Bible Study, Federal Agency Charges - DALLAS - Shepherd Healthcare, a medical practice in Lewisville, Texas, violated federal law when it fired an employee because… more
Calculating Patent Term Adjustment: Part 2
This article is second in a series focusing on various issues related to Patent Term Adjustment for U.S. patent applications. While Part 1 is a general overview of how to calculate patent term adjustment (“PTA”), this article… more
Rhode Island General Assembly Passes Paid Sick Leave Law
On September 19, 2017, the Rhode Island General Assembly passed The Health and Safe Families and Workplace Act (the “Act”), House Bill 5413B and Senate Bill 0290B, respectively, guaranteeing roughly 90 percent of the state’s workforce… more
Rewarding Loyalty: ECJ Holds that Loyalty Rebates Do Not Per Se Restrict Competition
The Background: In September 2017, the European Court of Justice (Case C-413/14 P) reversed the ruling of the General Court, which had upheld the European Commission's €1.06 billion fine on Intel for abusing its dominant position on… more
Equitable Mootness Doctrine Persists in Bankruptcy Appeals
In recent years, courts have become increasingly critical of the doctrine of equitable mootness, a judicially created abstention doctrine that allows appellate courts to dismiss appeals from a bankruptcy court’s confirmation order in… more
Financial Services Report - Fall 2017
EDITOR’S NOTE - Through hurricanes, wild fires, the publication of Hillary Clinton’s book, the birth of Amal and George Clooney’s twins, and the Dodgers’ historic losing streak, Director Richard Cordray and the CFPB’s Final… more
Washington Employers: Prepare To Face New Workplace Laws
The past year has brought multiple new workplace laws that will require employers in Washington to change several key policies and procedures. Below is an update that provides a general overview to help you prepare for these new laws… more
The Cannabis Patent War: In the Midst of Chaos, there is Opportunity*
In the recent issue of GQ magazine, an article entitled, “The Great Pot Monopoly Mystery,” sought to unravel some of the mystery behind the “shadowy” BioTech Institute LLC. The article made a particular point that should be of… more
Leading on Leads? CFPB Takes Action Against Online Lead Aggregators
On September 6, 2017, the Consumer Financial Protection Bureau (CFPB or “the Bureau”) announced that it has taken action against an online lead aggregator. The allegations revolved around the company’s selling personal information of… more
Financial Regulatory Observer - September 2017: ECB holds sway in new banking order
A German lender tried and failed to remove itself from the clutches of ECB supervision – what does this mean for the wider banking sector? In May 2017 a small German state-owned bank lost its fight to escape the clutches of ECB… more
A First Time for Everything—CFPB Issues Its First No-Action Letter
The Consumer Financial Protection Bureau (the “CFPB” or the “Bureau”) recently announced the issuance of its first no-action letter (“NAL”) to Upstart Network, Inc. (“Upstart”), a San Carlos, California-based online lending platform… more
Do Customer Tips Belong the Employee or Employer? DOL Puts the Question on the Table
When a customer leaves a tip for a server, who receives the full amount of the tip at the end of the day? According to a 2011 Department of Labor (DOL) regulation, the tip always belongs to the server, even if the employer pays the… more
CFPB Makes HMDA Data Sharing Proposal
The CFPB announced on Wednesday, September 20th, 2017, proposed guidance to limit the Home Mortgage Disclosure Act (HMDA) data it shares publicly. The Bureau’s 2015 HMDA amendments revamped HMDA’s coverage and processes, including… more
Relieving Pressure in the Law Firm Restructure/Turnaround
We have previously written about the unique nature of the law firm turnaround and how commitment from owners is one of the keys to turnaround success. In Part 2 we will look at resource management (or cost management) as a second key… more
Court Tackles EEOC’s Wellness Program Regulations
Wellness programs have been on a pendulum over the past decade, swinging back and forth from “yes you can” to “no you can’t.” However, since the Patient Protection and Affordable Care Act guidance specifically authorizing, enhancing… more
Employment Law - September 2017
More Obama-Era Policies—Pay Data Collection, Overtime Rule—Fall - Why it matters - Continuing the rollback of Obama-era policies, the Equal Employment Opportunity Commission (EEOC) hit pause on the collection of Employer… more
Wheels Are Turning on Federal Self-Driving Policy
One year ago, the federal government test drove its first set of self-driving policies with a four-part announcement from the U.S. Department of Transportation. In twelve months, much has changed, but the wheels are still turning… more
Tesla Bringing Supercharger Stations to Boston and Chicago
On September 11th, Tesla announced the opening of Supercharger stations in downtown Boston and Chicago, representing the first step in the company’s effort to expand its Supercharger network into urban areas. The company currently… more
Compliance Training Lessons From Utah, Caught on Tape
For a while now, I’ve been contemplating ethics and compliance lessons from the arrest of Alex Wubbels— the Utah nurse taken into custody by Salt Lake City police, because she refused to draw blood for an unconscious patient… more
Ruling Elevates Conflicts Considerations in Insurance/Tripartite Relationship Cases - After Washington Supreme Court Decision, Insurer-Paid Defense Lawyers Should Further Assess the Need for Client Consent in Reservation of Rights Situations
• Relationships between insurer, insured and insurer-appointed defense counsel – also known as the "tripartite relationship" – have long been recognized as a potential source of conflicts of interest. By a 5-4 majority in Arden v… more
Tips for Employers Facing a Charge of Discrimination
When an employer receives a charge of discrimination from the U.S. Equal Employment Opportunity Commission or a state agency that enforces anti-discrimination laws, it is important that the charge be handled properly. That is because… more
Connecticut Court Declines to Apply Physician Non-Compete Statute Retroactively
A Connecticut superior court recently held that Connecticut’s statute limiting the noncompetition agreements by which Connecticut physicians may be bound, may not be applied retroactively… more
Break Me Off a Piece of That Infringement Lawsuit
Did Nestle’s recent advertising campaign for Kit Kat infringe the intellectual property rights of Atari? According to the video game company, ads for Kit Kat used one of its first games, Breakout, to illegally promote the candy bar… more
Ninth Circuit Establishes Rule for Mixed Statements under Reform Act’s Safe Harbor, in In re Quality Systems, Inc. Securities Litigation (July 28, 2017)
On July 28, the Ninth Circuit reversed the dismissal of a securities class action, and remanded to the Central District of California. In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130 (9th Cir. 2017). Quality Systems, which develops… more
North Carolina Business Court Addresses Consideration Requirement for Covenant Not to Compete
In American Air Filter Co., Inc. v. Price, No. 16 CvS 13610, 2017 WL 2797794 (N.C. Super. Ct. June 26, 2017), the plaintiff’s former employee signed an employment agreement that renewed automatically each year. The agreement contained… more
Federal Contractor Minimum Wage Increase Announced – Changes Effective January 1, 2018
On September 15, 2017, the Department of Labor announced an increase in the minimum wage that certain federal contractors must pay to employees. This comes as part of a planned incremental increase in the federal contractor minimum… more
State Department of Education provides proposed final draft of guidelines for explusions and alternative education (part 2)
“And thirdly, the code is more what you’d call “guidelines” than actual rules …” Captain Barbosa in Pirates of the Caribbean: The Curse of the Black Pearl On September 5, 2017, the State Board of Education’s Legislative and Policy… more
Refer to This: Referral Sources Can Be a Legitimate Business Interest for Non-Compete Purposes in Florida
Can relationships with referral sources give rise to a legitimate business interest sufficient to enforce a non-compete? The answer is yes, at least in Florida… more
Bah to Legal Lambs
Like many of you, on Friday mornings we turn to the “Legal Lions and Lambs” section of Law360. It is not only voyeurism. We are constantly working on things in media res (the middle of things), building slowly and gradually to a… more
New Jersey Supreme Court Reminder – Don’t Forget about the Corporate Practice of Medicine
A New Jersey Supreme Court case earlier this summer has New Jersey lawyers re-examining their clients’ business structures under the State’s corporate practice of medicine doctrine… more
EEOC Sues the Village at Hamilton Pointe and TLC Management for Race Discrimination
Nursing Home Subjected Black Employees to Harassment and Made Race-Based Job Assignments, Federal Agency Charges - INDIANAPOLIS - An Evansville nursing home violated federal law when it acceded to its residents' preferences for… more
PTAB Chief Judge Discusses Post-grant Review Statistics at IPO Meeting
The value of the post-grant review programs (post-grant review, inter partes review, and covered business methods review) has been debated since these provisions were enacted as part of the Leahy-Smith America Invents Act in 2012… more
One Potential Remedy for FCA Overreach?
Sixth Circuit awards attorneys’ fees to False Claims Act defendant against the U.S. government in case involving underpayment of Davis-Bacon Act wages… more
Update: State Policy and Budget Impacts of New Graham-Cassidy Repeal and Replace Proposal
This brief provides an overview of the proposal released on September 13th by Senators Lindsey Graham (R-SC) and Bill Cassidy (R-LA)—along with Senators Dean Heller (R-NV) and Ron Johnson (R-WI) and former Senator Rick Santorum… more
Protecting Your Identity After a Data Breach
In light of recent high-profile breaches of highly sensitive data, this is a good time to remind individuals of how to protect their identity and credit information… more
From Honeycrisp to SweeTango: How Apple Plant Patents Liberated the American Palate
Autumn spells and smells of apples. Nowadays, newly patented apple varieties promise to dazzle our taste buds anew as fall harvests come in from our nation’s orchards… more
Animal Feeding Operations Emission Estimation Methods: U.S. Environmental Protection Agency Office of Inspector General Report
The United States Environmental Protection Agency (“EPA”) Office of Inspector General (“OIG”) issued a September 19th report titled: Eleven Years After Agreement, EPA Has Not Developed Reliable Emission Estimation Methods to… more
[Audio]The Data Report Special Edition: The Equifax Data Breach
Litigation attorney Jay Ward explores the massive Equifax data breach, which has affected as many as 143 million Americans, in this special edition of The Data Report. Jay summarizes what happened, explains the ramifications Equifax… more
Fate of Last-Minute Affordable Care Act Initiatives Uncertain
This week, the debate over the Affordable Care Act (ACA) gained new momentum in two separate, but connected channels. As the fiscal year (FY) budget reconciliation window enabling expedited passage of an ACA repeal draws to a close on… more
ERISA: Discovery of Claims Procedures to Assess Compliance with DOL Regulations? Not So Fast.
You know that failing to follow Department of Labor (DOL) claims regulations can result in the court using the de novo review standard, rather than the abuse of discretion standard in reviewing claim decisions… more
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