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Health Alert (Australia) 22 August 2017

In This Issue: - Judgments; Legislation; and Reports. - Excerpts from Judgments: 11 August 2017 - South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 - NEGLIGENCE – assessment of damages –… more

Northern District Of Texas Dismisses Putative Securities Fraud Class Action Against Pier 1 Imports For Failure To Adequately Plead Actionable Misstatements Or Scienter

On August 10, 2017, Judge Sidney A. Fitzwater of the United States District Court for the Northern District of Texas dismissed a putative securities class action brought against Pier 1 Imports, Inc. (“Pier 1”) and its former CEO and… more

Plaintiff in Gridiron Battle Over Place of Expert Testimony in Software Copyright Claim Requests Supreme Court to Be Referee

The software engineer who first coded the popular “John Madden Football” (now Madden NFL) computer video game has asked the U.S. Supreme Court to allow expert witness testimony to support his software copyright claim, over 25 years… more

Superintendence of Industry and Commerce issues new circular on international data transfers

On August 10, 2017, the Superintendence of Industry and Commerce presented a new regulation under the country's recently enacted international data transfer law. Specifically, the new circular explicitly sets forth the standards that… more

Weekly Update Newsletter - August 2017 #3

GOVERNMENT CONTRACTS - “Industry Experts Advise GovCon Firms to Prepare for Possible Gov Shutdown.” ExecutiveGov, August 16, 2017. Retrieved from executivegov.com - An ExecutiveGov article from August 16, 2017 analyzes the… more

Department of Justice Ends Operation Chokepoint

The U.S. Department of Justice (DOJ) has quietly ended its four-year effort to prevent banks from providing credit and other services to certain businesses that had been deemed controversial. In an Aug. 16, 2017, letter to Rep. Bob… more

Contract and Commercial Law Act 2017 comes into force

On 1 September, the Contract and Commercial Law Act 2017 (CCLA) comes into force. The CCLA is the product of a large statute revision exercise that aimed to make the Acts within its scope more accessible, readable and easier to… more

Selling a Family Business

With a wave of baby boomer business owners thinking about retirement, selling a business can allow founders to keep the company running while converting their ownership into funds for their future. Many times, owners have been… more

China's State Council Announces Promotion of Foreign Investment Growth

On August 8, China's State Council published the Notice on Promotion of Foreign Investment Growth (Guo Fa [2017] No. 39). The Notice is intended to further liberalize foreign investment, and calls on China to actively utilize foreign… more

The Good and the Bad from OCIE’s Cyber Examinations and What Firms Should Do Next

The Office of Compliance Inspections and Examinations (OCIE) of the U.S. Securities and Exchange Commission (SEC) released a National Examination Program Risk Alert (Risk Alert) on August 7, 2017 regarding observations from its… more

The U.S. State Department Announces Suspension of Non-Immigrant Visa Operations Across Russia

Due to the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa (“NIV”) operations across Russia will be suspended beginning August 23, 2017. Beginning September 1, visa processing will resume on a… more

Audit Firm And Engagement Partner Settle SEC Allegations Stemming From 2011 Audit Of A New Client

On August 15, 2017, KPMG LLP (“KPMG”) and one of its engagement partners settled claims brought by the U.S. Securities and Exchange Commission (“SEC”) that they violated Section 4C of the Securities Exchange Act of 1934 (“Exchange… more

Can Shareholders Sue CEOs For Corporate Social Activism?

In an August 17, 2017 opinion piece published in The Wall Street Journal, Jon L. Pritchett and Ed Tiryakian had the following message for shareholders..… more

Eighth Circuit Holds That Question Of Class Arbitration Is For Courts, Not Arbitrators, To Decide

In this case, the question presented was whether a court or an arbitrator should determine whether an arbitration agreement authorizes class arbitration. The U.S. Supreme Court has not yet resolved this issue. Several circuit courts of… more

PRA Request Compliance May Not Shield from Attorney's Fees - California Appellate Court Orders City to Pay

The City of San Diego was ordered by an appellate court to pay attorney’s fees to a Public Records Act requestor-plaintiff — despite having produced all requested records, and the trial court having dismissed a PRA writ petition. The… more

EMA proposes new pharmacovigilance practices for the paediatric population

The European Medicines Agency (“EMA”) has proposed a new draft guideline document on good pharmacovigilance practices concerning medicinal products used by the paediatric population. The proposed guideline will replace the existing… more

Radius Restrictions – New York AG Cracks Down on Outlet Mall Operator

Outlet malls are popular destinations for consumers seeking a bargain, even if not everyone agrees that the deals are as good as advertised. But although the prices may seem low, a common provision in lease agreements between the… more

The Ninth Circuit Weighs in on ERISA’s Plan Document and Summary Plan Description Requirements: Mull v. Motion Picture Ind. Health Plan

Mull v. Motion Picture Ind. Health Plan educates employers on the basics of the requirements of the Employee Retirement Income Security Act (ERISA) governing plan documents and summary plan descriptions. The lessons are sobering… more

DOJ confirms termination of Operation Chokepoint; OCC welcomes DOJ statement

In a letter dated August 16, 2017 to House Judiciary Committee Chairman Bob Goodlatte, Assistant U.S. Attorney General Stephen Boyd stated that “[a]ll of the [DOJ’s] bank investigations conducted as part of Operation Chokepoint are now… more

Trends in Senior Living

Baby Boomers have changed the course of marketing and products throughout their lives, and ALFs are proving no different. The days of uniform ALFs is passing, and those on the leading edge of the market are looking to appeal to… more

Scammers Strike Enigma Initial Coin Offering

In the latest example of security risks attendant to initial coin offerings (ICOs), on August 21st the blockchain startup Enigma reported that online scammers used fake solicitations for an ICO presale to steal approximately $500,000… more

Management Alert – The Current Federal Retrenchment on LGBT Rights

Seyfarth Synopsis: The first eight months of the new administration signals a retrenchment on the executive branch’s view of legal protections due LGBT individuals, including in employment… more

The Sky’s Now the Limit: E-Verify for Airport Operators

USCIS has released an E-Verify Quick Reference Guide For Airport Operators. Under the Federal Aviation Administration Extension, Safety and Security Act of 2016, Pub. L. No. 114-190, airport operators can now apply to have direct… more

EPA Given Additional Time to Ponder Next Steps on Clean Power Plan as Court Grants Another Stay

Over the last week, the U.S. Court of Appeals for the District of Columbia Circuit stayed two high-profile litigations concerning the regulation of carbon dioxide emissions from new and existing coal-fired power plants. By granting the… more

[Video]Value-based health care: provider integration

John Chesley, Ropes & Gray health care partner, addresses developments for providers to consider as they join together and move towards value-based health care models. ___________________________________________________ Population… more

Faceoff with Federal Government Possibly Looming Following California Supreme Court CEQA Ruling; Cal High Speed Rail Project Also Vulnerable

In July 2017, the California Supreme Court determined the federal Interstate Commerce Commission Termination Act of 1995 (49 U.S.C. § 10101 et seq.) (“ICCTA”) does not preempt the application of the California Environmental Quality Act… more

California Labor Commissioner Publishes Another Required Notice for New Hires

The California Labor Commissioner has published a written notice related to the rights of employees who are the victims of domestic violence, sexual assault and stalking. Employers must provide this written notice to all new employees… more

Deal Watch: Samsung Bioepis and Takeda Enter into Partnership

Samsung Bioepis announced that it has entered into a Strategic Collaboration Agreement with Takeda Pharmaceutical Company to co-develop novel biologic therapies in unmet disease areas. The companies’ first therapeutic candidate is… more

Trading in Opaque Markets: Fraud, Materiality and Compliance

This is the second segment of an occasional series regarding a group of criminal and civil securities fraud actions involving trading in opaque markets and the lessons that can be drawn them; the first segment is here. Litvak I -… more

Bullet-Point Update: Electronic and Federal Court Discovery Issues for the Week of July 31, 2017

Use this when the other side tries to dig up dirt on your expert. Collett v. GEICO Cas. Co., 2017 WL 3336614 (E.D. La. Aug. 3, 2017) (denying motion to compel expert witness to testify about fraud allegations that had been made… more

Car manufacturers' annus horribilis - Takata airbags and the ACCC's enforcement focus

It is a tumultuous time for Australian car manufacturers. - The ACCC (the Australian competition, antitrust and consumer law regulator) released its draft study report into the new car retailing industry earlier this month. The… more

There'll Be Some Changes Made: President Signs Prescription Drug and Biologic User Fee Reauthorization Act

On August 18, 2017, President Trump signed into law the FDA Reauthorization Act (FDARA). FDARA reauthorizes user fees paid to FDA to support regulatory review of innovator drugs and biologics, medical devices, generic drugs, and… more

D.C. Circuit Revives Data Breach Putative Class Action On Standing Grounds, Widens Circuit Split

On August 1, 2017, the U.S. Court of Appeals for the D.C. Circuit revived a data breach class action that was dismissed for lack of standing, holding that the district court improperly applied the Article III injury-in-fact standing… more

Northern District Of California Dismisses Putative Securities Fraud Class Action Against SolarCity Corp. For Failure To Adequately Plead Material Misrepresentations

On August 11, 2017, Judge Lucy H. Koh of the United States District Court for the Northern District of California dismissed a putative securities class action brought against SolarCity Corp. (“SolarCity”) and four of its senior… more

On Remand From Supreme Court in Spokeo, Ninth Circuit Holds FCRA Violation Satisfies Article III Standing

The Ninth Circuit finally weighed in again on Article III standing issues after the remand of the Spokeo case from the United States Supreme Court. The Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), addressed whether… more

CMS Proposes to Cancel Episode Payment Models, Cardiac Rehab Incentive Payment Model and Revise Comprehensive Care for Joint Replacement Incentive Payment Model

On August 15, 2017, CMS announced a proposed rule to cancel the Episode Payment Models (EPMs) and Cardiac Rehabilitation (CR) incentive payment model scheduled to begin January 1, 2018, and to rescind the regulations governing these… more

Did Data Scraping Just Get A Tiny Bit Safer?

Is it okay to scrape data from another website? This is a frequently asked question that almost always leads to an ambiguous and equivocal answer. Legal practitioners are quick to point out the risks of civil and criminal liability… more

Everything Else You Need to Know About New York City’s FCA—New Rules Effective August 5, 2017

New York City has issued new rules interpreting the city’s Fair Chance Act (FCA). These rules, which went into effect on August 5, 2017, provide clarification and guidance on how employers can comply with the requirements of the FCA… more

Tibble and Class Action Plaintiffs Win Round Two versus Edison International and Its 401(k) Investment Committees

In past articles in this Blog I reported on decisions of the 9th Circuit Court of Appeals and ultimately the U.S. Supreme Court dealing with a class action for breach of fiduciary duty for selecting retail mutual funds in 1999 for… more

If a Whistleblower is Just Playing the Same Old Tune, Does the Law Protect Him?

Some of the trickiest employment decisions can involve employees who have made accusatory complaints against the company they work for. Many state and federal laws protect “whistleblowers” who try to bring to light illegal behavior by… more

The Trump Administration Set to Renegotiate NAFTA

The North American Free Trade Agreement (NAFTA) is a trade deal that President Trump has been highly critical of, especially while campaigning. Trump once referred to NAFTA as the “worst trade deal” ever signed by the United States and… more

Will Blockchain Render the Bill of Lading a Relic?

A bill of lading is an old form of legal document. As merchants in the seventeenth and eighteenth centuries ceased accompanying their goods on ships and entrusted their proper delivery to the carrier, a need arose for a tangible and… more

Developers and businesses take note: as the feds roll back wetland regulation, California is stepping in

Land developers, commercial property owners and industrial entities should closely watch the major shifts in the ways significant wetland habitats are regulated, as the Trump Administration strips away relevant federal regulations and… more

In Matal V. Tam, Scotus Rules Prohibition On Disparaging Trademarks Unconstitutional

The Asian American members of the band the Slants adopted that name to “reclaim” and “take ownership” of the derogatory term. The United States Patent and Trademark Office (“USPTO”) refused to register a trademark application for THE… more

IRS Seeks Applications for Advisory Committee for the Tax Exempt and Government Entities Division

The IRS is seeking applicants for vacancies on the Advisory Committee on Tax Exempt and Government Entities (ACT). The committee provides advice and public input on the various areas of tax administration served by the Tax Exempt and… more

Corporate Insurance Newsletter – July 2017

The Hogan Lovells’ Corporate Insurance Newsletter for July has been published. This provides a round-up of UK, EU and international regulatory developments relevant to UK based insurance market participants. Please see full… more

Handling Improper Coaching of Witnesses During PTAB Deposition Proceedings

Many attorneys have encountered an opposing party’s witness that provides very concise, supportive responses to the questions of the witness’s own attorney after a recess in a deposition. Often, these helpful responses occur during… more

Unions Fight Back Against Missouri Right-to-Work Law

On February 6, 2017, Missouri Governor Eric Greitens signed Senate Bill 19, making Missouri our nation’s 28th right-to-work state. Senate Bill 19, codified as Section 290.590 of the Missouri Revised Statutes (RSMo), was scheduled to… more

Judicial acceptance of the SCL Delay and Disruption Protocol 2nd Edition

The recent Australian case of Santos Ltd v Fluor Australia Pty Ltd [2017] QSC 153 gives credence to the Society of Construction Law Delay & Disruption Protocol 2nd ed in determining the sufficiency of the plaintiff’s pleaded claim for… more

Get Ready for Mandatory SEC Exhibit Hyperlinks Beginning September 1

The Securities and Exchange Commission’s final rules requiring hyperlinking of exhibits to SEC filings will be effective for most public companies on September 1, 2017. This update summarizes the final rules, answers the top questions… more

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