Latest Updates

Defendants Should Consider Personal Jurisdiction Defense Following Supreme Court Decision, Especially When the Claims of Out-of-State Plaintiffs Are Joined with Those of In-State Plaintiffs

A recent Supreme Court decision may allow defendants to avoid lawsuits in distant courts that have little or no connection to the lawsuit, especially in cases (such as mass actions) where the claims of out-of-state plaintiffs are… more

District Courts Disagree on Venue-Waiver Issues After TC Heartland

At the end of May this year, the Supreme Court unanimously clarified the law on venue in patent infringement lawsuits (see here). For 27 years, litigants had relied on a Federal Circuit decision, VE Holding Corp. v. Johnson Gas… more

Maine Court Declines to Follow Textron; Work Product Rule Protects Tax Accrual Work Papers

In a well-reasoned decision, Maine Superior Court Justice Michaela Murphy refused to grant the State Tax Assessor’s motion to compel deposition testimony relating to the taxpayer’s tax accrual (FIN 48) work papers and related… more

Tax Planning for Investment Into the United States Through Hybrid Entities - Tax Update Volume 2017, Issue 4

The Tax Section of the New York State Bar Association recently issued a report commenting on the appropriate application of treaty limitations to source-country taxation of business profits when the underlying income is earned by or… more

Compliance and the Noble Fight Against Corruption

In two recent public appearances, Department of Justice (DOJ) representatives spoke to issues of concern to every compliance practitioner regarding one role of the DOJ going forward and how that role will continue to feed the need for… more

DOJ Issues Two Declinations in First Corporate FCPA Enforcement Actions of the Trump Administration

Speed read - In June 2017, the U.S. Department of Justice (DOJ) issued two “Declinations with Disgorgement” under the DOJ’s Pilot Program. The declinations were received by U.S. subsidiaries of the Linde Group (Linde) and CDM Smith… more

Second Circuit Lowers Causation Standard for Employees Alleging FMLA Violations

Last week, the Second Circuit joined the Third Circuit in lowering the causation standard in evaluating alleged Family and Medical Leave Act (FMLA) violations against employers. Under a lower “motivating factor” standard established in… more

Shippers, Freight Forwarders, NVOCCs and Carriers' Maritime Incident Warning Signs - Lessons Learned and Action Items for In-House Counsel

Despite the alleged softening of the maritime industry since 2008-09, the volume of waterborne trade continues to rise. The ebbs and flows of the industry mean changing partnerships and alliances, more complicated logistics chains… more

Hotel Cybersecurity: Protecting your guests and your property from vendor data breaches

July was another notable month for hotel data breaches – on a single day, several well-known hotel brands and managers, including Four Seasons, Trump Hotels, Hard Rock Hotels & Casinos and Loews Hotels all announced that customer data… more

Four hot mid-year topics in California employment law

As California sizzles under scorching temperatures, state and local governments have turned up the heat on employers. Employers should be aware of and make sure they are in compliance with important legislative changes effective July… more

Coherus Requests Stay Of Discovery in Amgen v. Coherus

We previously reported, Amgen filed a BPCIA suit against Coherus Biosciences, Inc., relating to its aBLA for its pegfilgrastim (Neulasta®) biosimilar. In response, Coherus filed a motion to dismiss the suit arguing that Amgen’s… more

USCIS Reopens H-1B Premium Processing for Institutions of Higher Education and Other Cap-Exempt Petitions

On March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) unexpectedly announced that it would temporarily suspend its premium processing service for all H-1B petitions received on or after April 3, 2017. The premium… more

Judge, Jury and . . . Attorney’s Fees

When a contract awards attorneys’ fees to one party in a contract action, California Civil Code § 1717 intervenes by a) directing the attorney’s fees to the prevailing party, regardless of the party awarded fees in the contract, and b)… more

Vail Resorts announces sustainability, net zero plan

Vail Resorts, Inc. -- the largest ski and mountain resort operator in the world -- has announced a comprehensive sustainability commitment that calls for "zero net emissions by 2030, zero waste to landfill by 2030 and zero net… more

To Merge or Not To Merge – What’s A Law Firm To Do?

Merger mania continues in the legal sector. According to Altman Weil’s MergerLine, there have been more than 50 law firm mergers in the US so far this year; 2017 could well be a record year for law firm combinations. The odds are… more

SEC Warns That ICOs and Other Internet Token Sales May Be Securities Offerings Subject to Federal Securities Laws

On Tuesday, July 25, as many practitioners probably expected, the SEC issued a warning that offers and sales of digital assets (virtual coins or tokens) by organizations using blockchain or distributed ledger technology (often referred… more

U.S. Department of Labor Issues Request for Information on White Collar Exemption Regulations

Yesterday, July 26, 2017, the U.S. Department of Labor (“USDOL”) published a Request for Information (“RFI”) in the Federal Register regarding the regulations defining the Fair Labor Standards Act (“FLSA”) exemptions for executive… more

Show Me The Money: SEC Awards $2.5 Million To Government Agency Whistlleblower

The SEC has awarded $2.5 million to a government agency employee who reported misconduct by a company to the SEC and caused the SEC to open an investigation. While the SEC order granting the award acknowledged that government employees… more

Delaware Chancellor Urges Revision of Preclusion Principles in Derivative Actions

The Chancellor of Delaware’s Court of Chancery yesterday urged the Delaware Supreme Court to revise Delaware law on preclusion in shareholder derivative actions. The court’s July 25, 2017 decision in In re Wal-Mart Stores, Inc… more

Avoiding Claims of Race, Religious, or National Origin Discrimination in the Current Political Climate

Unless you have been living under a rock, you know that the United States has had a new president for about six months: Mr. Donald J. Trump. Many suggest (and I do not take a position on this) that President Trump was catapulted to… more

Local California Governments Sue Fossil Fuel Companies for Rising Sea Levels

On July 17, 2017, Marin County, San Mateo County, and the City of Imperial Beach filed three lawsuits in California Superior Court against a number of large oil, gas and coal companies. The complaints assert a variety of state law… more

IRS Appeals Will Now Offer “Virtual” Taxpayer Conferences

The Internal Revenue Service’s Office of Appeals has announced that it will soon unveil a pilot project affording taxpayers and their representatives the opportunity to have a “virtual” face-to-face option for taxpayer conferences… more

What's in Your Warranty? A Guide to Avoiding Warranty-Related Surprises

A warranty is meant to protect a purchaser from any faults or defects in goods or services purchased. But warranties are as different as the products and services that they protect. What’s more, because courts interpret warranties in… more

ECJ: Clarification on Withdrawing State Aid from Companies Deemed "Undertaking in Difficulty"

The notion of "undertaking in difficulty" is a key element in State aid law because undertakings in difficulty can receive State aid only under the restrictive conditions for so-called rescue and restructuring aid. Any other form of… more

Gender Identity Not Covered By Missouri Human Rights Act, Court Says

Last week, the Missouri Court of Appeals issued an opinion holding that gender identity is not covered by the prohibition on sex discrimination in the Missouri Human Rights Act. The opinion builds on a 2015 opinion from the same court… more

Golly Gee—the U.S. Tax Court Ruled That the Cost of a Taxpayer's Microsoft Xbox 360 and a Nintendo Wii Used by His Children Did Not Constitute Ordinary and Necessary Business Expenses Deductible Under IRC § 162 or Amortizable Under IRC § 167—Who Knew?

In 2015, the U.S. Tax Court issued its ruling in the case of David W. Laudon v. Commissioner, TC Summary Option 2015-54 (2015). The case may not raise or even resolve any novel tax issues, but it reminds us of what is hopefully the… more

Creditors not obliged to protect security interest by taking step in foreign insolvency proceedings

A borrower and a guarantor had no realistic prospect of successfully arguing that their obligations to repay a loan had been discharged due to a secured creditor’s failure to take steps to protect its security interest under the loan… more

Employer’s Asking Employee “How Things Are Going?,” Prelude to Unlawful Solicitation of Grievances, Board Majority Rules

We are on the verge of the Board majority changing for the first time in approximately a decade. The President’s two appointees, if confirmed, will bring the Board up to a full five members. After the new members are seated we likely… more

Blog: New ED Audit Guide Means Compliance Audits Will Be More Expansive, More Expensive

The new Audit Guide for Title IV compliance audits includes numerous, expanded requirements for accounting firms to use in conducting required annual audits. The Audit Guide applies to Title IV compliance audits for fiscal years ending… more

Second Circuit Vacates District Court Judgment in Sex Discrimination Case Permitting an Arbitrator to Certify a Class Including Absent Class Members

In a sex discrimination case we have been following for almost six years, the Second Circuit has added a measure of rationality by vacating a lower court opinion that would have permitted an arbitrator’s certification of a class that… more

Illinois Class Actions Spark New Attention For Biometric Data Applications

Capturing the time employees’ work can be a difficult business. In addition to the complexity involved with accurately tracking arrival times, lunch breaks, overtime, etc. across a range of federal and state laws (check out our Wage… more

Court Compels Arbitration Of Non-Signatory Party Seeking To Recoup Damages Flowing From Contract Containing Arbitration Clause

A federal district court has required Scottsdale Insurance Company to arbitrate a claim against Kinsale Insurance Company based on an arbitration clause in a contract between Kinsale and its insured – a contract to which Scottsdale was… more

Trump Administration Delays Regulations To Fast-Track Startups

The Trump administration recently announced it is delaying – and likely rescinding – the Obama-era International Entrepreneur Rule (the “Rule”). The Rule was slated to go into effect on July 17, 2017. It would have made it easier for… more

USCIS Issues New Form I-9 that Employers Must Use by September 18th

On July 17, 2017, the United States Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), released a new version of Form I-9, Employment Eligibility Verification. While the new form currently is available… more

USPTO Report on Patent Eligible Subject Matter

On July 25, the USPTO published a new report titled “Patent Eligible Subject Matter: Report on Views and Recommendations From the Public.” The report attempts to synthesize public comments on the appropriate boundaries of patent… more

Superseding Audit Rights for Software Copyright Infringement: Settlement Agreements Versus Software License Agreements

Software audit requests, in addition to language in the settlement agreement, may conflict with an existing software license agreement. Scott & Scott, LLP attorney, Keli Johnson Swan, shares potential conflicts to consider and… more

Profiting from breach: when must an innocent party give credit?

The Supreme Court has considered when a claimant must give credit when, following a breach by the defendant, it ends up in a better position financially. Following a repudiatory breach by the defendant charterer of a ship, the… more

DOL Rolls Back Its 2016 FLSA Overtime Rule

Yesterday, July 26, 2017, the Department of Labor issued a Request for Information seeking notice and comment from the public before issuing revised proposed regulations regarding the minimum salary level required to meet the… more

San Francisco-Peculiarities: The City’s Ultra-Unique Employment Landscape

Seyfarth Synopsis: As if high rent and California’s peculiar laws were not enough to worry about, San Francisco employers must also comply with City-specific ordinances. Trailblazing City requirements often exceed state laws and have… more

[Video]Day 18 of One Month to More Effective Internal Controls-COSO Objective IV: Information and Communication

In its Framework Volume, COSO said, “Information is necessary for the entity to carry out internal control responsibilities to support the achievement of its objectives. Management obtains or generates and uses relevant and quality… more

What’s On OFCCP’s Agenda?

The short answer to this question is not much, or so it seems. Part of the reason for this is likely the fact we are still awaiting selection of a new OFCCP Director. Deputy OFCCP Director Thomas M. Dowd currently continues in the… more

Trademark and Patent Applicants Opting for a District Court Appeal Must Pay PTO’s Attorney Fees

On June 23, 2017, the Federal Circuit held that, whether they win or lose, patent applicants who appeal adverse PTAB decisions directly to a district court must pay the PTO’s attorneys’ fees. Patent applicants seeking judicial… more

NJ Adopts “Property Taxpayer Bill Of Rights”

New Jersey has adopted a “property taxpayer bill of rights” seeking to assist property owners with the real estate assessment process. New Jersey has one of the nation’s highest property taxes… more

Cost Shifting Ordered Due to Inadequate Meet and Confer

Discovery is not about gamesmanship, and parties are expected to engage in meaningful negotiation about the terms of discovery agreements. That is the message from Judge A. Kathleen Tomlinson of the Eastern District of New York, who… more

UCTA and use of industry standard model form facility agreement

In the context of a syndicated facility agreement based on a Loan Market Association standard form, the Court of Appeal confirmed the extent to which negotiation and amendment of a party’s “written standard terms of business” will… more

Employment Tribunal Fee Regime: An Unlawful Barrier to Justice

The Supreme Court has found in favour of the trade union UNISON in its judicial review of the UK Employment Tribunal fees regime, unanimously holding that the legislation implementing the current regime is unlawful both under domestic… more

Unsolicited Call Without Charge Held A Violation of TCPA

Recently, the United States Court of Appeals was called upon to determine whether an unsolicited call that did not result in a charge to the consumer violated the Telephone Consumer Protection Act (“TCPA”) and, if it did, was the harm… more

The Drone “Waiver” Of The Future

The FAA has recently partnered with various digital platforms to create the “Low-Altitude Authorization and Notification Capability” (LAANC) in an effort to streamline waiver authorization in controlled airspace. Normally, the process… more

In Task Force Report, the EPA Provides a Glimpse Into the Future of Superfund

On May 22, 2017, Environmental Protection Agency (EPA) Administrator Scott Pruitt announced the formation of the Superfund Task Force. During his short time at EPA, Administrator Pruitt has emphasized the need to “streamline and… more

Oregon Expands Deceptive Trade Practices Act to Include Misrepresentations About PI Usage

Effective January 1, 2018, Oregon will join Pennsylvania and Nebraska in expanding its definition of deceptive trade practices to explicitly include a material misstatement regarding the use of personal information. House Bill 2090… more

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