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Appellate Court Notes

Supreme Court Advance Release Opinions: SC19734 - Wall Systems, Inc. v. Pompa - Plaintiff - construction company - discovered one of its supervisors who was paid ~$200k/year was working for a competitor at the same time… more

Dues Checkoff Revocations May Be Valid in Wisconsin Despite Federal Court Ruling

A Wisconsin federal court has invalidated a key provision in Wisconsin’s Right to Work law that gave employees the right to cancel deduction of union dues from their paychecks. Int’l Ass’n of Machinists v. Allen, et al., No. 16-CV-77… more

The Center for Children’s Digestive Health Settles with OCR for $31,000

The Office for Civil Rights (OCR) has announced that it entered into a settlement with The Center for Children’s Digestive Health (CCDH) for $31,000.  CCDH is a small for-profit health care provider with seven locations in Illinois… more

Establishing Entitlement to Punitive Damages: The Not So Puny Standard

Punitive damages may be awarded in civil actions as a form of punishment to deter others from engaging in conduct similar to the defendant. Punitive damages are only available for certain claims, such as intentional torts, and only if… more

District of Columbia Enacts the Universal Paid Leave Act

In late 2016, after more than a year of debate, the District of Columbia Council voted to create one of the most generous paid leave laws in the country. After making it through the congressional review period, the Universal Paid… more

First District Holds Sonoma County Vineyard Development (VESCO) Permit was Ministerial Approval Exempt from CEQA

On April 21, 2017, the First District Court of Appeal filed a 22-page published opinion providing significant guidance and analysis concerning the critical, but sometimes elusive, distinction between “discretionary” project approvals… more

Fairchild (Taiwan) Corp. v. Power Integrations, Inc.

In my last post, I discussed estoppel in the context in inter partes review, in which defendant filed for IPR after losing in the courts. The Board found the claims-in-suit to be obvious. The Federal Circuit affirmed that the courts… more

EC4safenano Conducts Survey on Demand and Supply of Services for Safe Use of Nanomaterials and Nanotechnology

The European Center for Risk Management and Safe Innovation in Nanomaterials and Nanotechnologies (EC4safenano) states that it wishes to develop a catalog of services matching the anticipated needs and service requirements to the… more

Courts Make Clear that General Objections are Generally Inappropriate

If your practice involves discovery, chances are you have been on the receiving end (and maybe the dispensing end) of prolix boilerplate general objections in response to interrogatories or document demands. Whatever logic may have… more

Court Of Chancery Limits Creditor Standing

This decision holds that a creditor lacks standing to bring breach of fiduciary duty claims arising out of the management of an LLC. Of course, creditors are better served by drafting the loan documents to protect their rights… more

NLRB Region Five Rules that Resident Advisors at George Washington University are Employees Who May Unionize

On April 21, 2017, the Acting Regional Director of Region Five of the National Labor Relations Board (“NLRB”) issued a Decision and Direction of Election holding that Resident Advisors (“RAs”) at George Washington University are… more

Hearings This Week

Senate Environment and Public Works Committee hearing on “A Review of the Technical, Scientific, and Legal Basis of the WOTUS (Waters of the United States) Rule.”… more

Buy American Executive Order

On April 18th, President Trump issued an Executive Order (“EO” or “Order”) focused on the Buy American laws and regulations. See Buy American EO. This EO directs federal government entities to review their procurement rules so that… more

Davis-Bacon Act Repeal Efforts Renewed

Republican members of Congress have renewed steps to repeal the Davis–Bacon Act, which sets the prevailing wage requirements for workers employed under federally funded or assisted contracts for the construction, alteration, or repair… more

FCC Chairman Rebukes USAC on E-Rate Administration

On April 18, FCC Chairman Ajit Pai sent an unusually stern and accusatory letter to USAC CEO Chris Henderson, alleging “serious flaws” and lack of transparency in USAC’s administration of the E-rate program, and declaring that “the… more

Stored Materials: Finding Common Ground between Borrower and Lender

Stored materials present a potentially serious point of tension between lenders and borrowers in the negotiation of a construction loan agreement. In construction lending, the term “stored materials” refers to the materials and items… more

New York Court Dismisses Royal Park’s RMBS Cases for Lack of Standing

On April 12, 2017, Judge Charles E. Ramos of the New York State Supreme Court for New York County dismissed Royal Park’s RMBS lawsuits alleging fraud and other tort causes of action against Morgan Stanley, Deutsche Bank, Credit Suisse… more

Campus Sexual Assault Investigations Need Greater Fairness for All Parties, Trial Lawyers Group Says

The American College of Trial Lawyers (ACTL) has released a White Paper on Campus Sexual Assault Investigations aimed at improving the process employed by universities to address campus sexual assaults… more

CMS Signals Potentially Big Changes Ahead for Medicare SNF Payment Policy

Using unusually blunt language, the Medicare Payment Advisory Commission (MedPAC) recently noted that it “is increasingly frustrated with the lack of statutory or regulatory action” to lower Medicare skilled nursing facility (SNF)… more

Pennsylvania Department of Health Issues New Physician Regulations for Medical Marijuana

As first posted on our sister blog, “In The Weeds” (Fox Rothschild’s Cannabis Law Blog), the Pennsylvania Department of Health issued its long-awaited proposed temporary regulations regarding physicians on April 11, 2017… more

Window on Washington - This Week in the Nation's Capital - April 21, 2017 Vol. 1, Issue 5

White House Demands Disrupt Shutdown Negotiations: Congressional leaders' efforts to hatch a massive spending deal have been thrown off course by the Trump administration's 11th-hour intervention, leaving the bipartisan bill teetering… more

More GDPR Questions Answered: New Guidelines on DPIAs

Although considered burdensome by some, data protection impact assessments (DPIAs) help controllers assess any data protection implications of their processing operations, with the added benefit of demonstrating compliance with the EU… more

You May Now Be Seated: Neil Gorsuch Prepares for Spot on the High Court

After the Supreme Court sat with an empty seat for more than one year, and following a hard-fought nominations process which saw the failed nomination of Judge Merrick Garland and Republican lawmakers resorting to the “nuclear option,”… more

Court of Chancery Explains When There Is A Basis To Investigate

This decision does a good job of explaining when there is an adequate showing of possible wrongdoing sufficient to justify a books and records inspection. It also explains why conducting a proxy contest does not warrant denying… more

Embark Richmond Highway Advisory Group Discuss Transportation, Recreation, and Historical Preservation

The Embark Richmond Highway Advisory Group met for its 16th meeting on April 24th. The Advisory Group reviewed a 2040 transportation land use analysis prepared by FCDOT. FCDOT estimates ridership of the proposed bus rapid transit… more

Florida Fraudsters Take Advantage of the Delay in Florida’s Implementation of Amendment 2

Amendment 2 passed back in November 2016, but the Florida Legislature is moving slowly to implement the necessary regulations for medical marijuana to get to the marketplace… more

Before You Acquire That Business, Understand the NLRB’s Successor Bar Doctrine

When a change of ownership occurs for a business that employs individuals who are represented by an incumbent union, the new owner must be aware of the National Labor Relations Board’s (NLRB) successor bar doctrine. It used to be that… more

United States Supreme Court Decides Nelson v. Colorado

On April 19, 2017, the Supreme Court decided Nelson v. Colorado, No. 15-1256, holding that Colorado’s Compensation for Certain Exonerated Persons statute (Exoneration Act), which requires petitioners whose felony criminal convictions… more

Delaware Court Orders Sale of Solvent Company’s Stock Despite Shareholder Objections

Delaware General Corporate Law § 226 (the “Custodian Statute”) bestows the Delaware Court of Chancery with the power to appoint a custodian for solvent companies and receivers for insolvent companies in certain circumstances. See 8… more

ET Rover Suffers Two Spills in Ohio

During the course of constructing its new pipeline, ET Rover suffered two spills releasing 2 million gallons of drilling fluid into wetlands in Ohio. The landscape of America is crisscrossed by millions of linear feet of pipelines… more

Canadian Regulators Propose Broad Derivatives Dealer and Adviser Business Conduct Rules

On April 4, 2017, the Canadian Securities Administrators (CSA) published for comment Proposed National Instrument 93-101 – Derivatives: Business Conduct (Business Conduct Rule), which would impose a range of business conduct… more

BETO Hosts Algae Cultivation for Carbon Capture and Utilization Workshop

The U.S. Department of Energy’s (DOE) Bioenergy Technologies Office (BETO) is hosting an Algae Cultivation for Carbon Capture and Utilization Workshop on May 23-24, 2017, in Orlando, Florida. The event will feature facilitated… more

New York City Church Sued For Relocation Of Sculpture Commemorating 9/11 Loss Of Tree

In recent art news, Trinity Church in Lower Manhattan is being sued by a sculptor for relocating his bronze sculpture of the stump and root system of a very large sycamore tree entitled “The Trinity Root” that was formally installed on… more

[Video]Day 17 of One Month to 3rd Party Management-Distributor Compensation

One of the issues in any compliance program is the compensation paid to a third party as FCPA exposure arises when companies pay money - either directly or indirectly - to fund bribe payments. In the traditional intermediary scenario… more

[Video]Day 16 of One Month to 3rd Party Management-Terminating a Third Party

At some point, you will be required to terminate a third-party and there will be multiple legal, compliance and business issues to navigate going forward. If you are stuck doing it in the middle of a Foreign Corrupt Practices Act… more

[Video]compliance into the Weeds-Episode 36, McFadden Remarks on FCPA Enforcement

In this episode, Matt Kelly and I take a very deep dive into two recent speeches by Department of Justice (DOJ) Acting Principal Assistant Attorney General Trevor McFadden in which he addressed multiple topics and issues around the… more

New York Department of Financial Services Provides Guidance on Cybersecurity Regulation; Colorado Financial Regulator Proposes Cybersecurity Rules Affecting Broker-Dealers and Investment Advisers

In April 2017, the New York Department of Financial Services (the “DFS”) released guidance on interpreting 23 NYCRR Part 500, its recently promulgated regulation that requires banks, insurance companies and other financial services… more

Unemployment Benefits Do Not Factor Into Damages Calculations in Employment Discrimination Lawsuits

A recent New Jersey Appellate Division opinion now makes it explicitly clear that unemployment benefits cannot be deducted from back pay damages in employment discrimination cases under the New Jersey Law Against Discrimination… more

Kimpton Data Breach Decision Highlights Lingering Confusion on Standing Issues

When data thieves steal payment card data, consumers suffer no legally cognizable injuries. Card issuers absorb the fraudulent charges and replace the affected cards. Because fraudulent charges are not billed to consumers, they do not… more

Debit cards, Offshore Funds and a John Doe Summons

IRS remains committed to its priority efforts to stop offshore tax evasion wherever it occurs. It pursues cases in all jurisdictions of the world. Over the years, numerous individuals have been identified as evading US taxes by… more

Can Renting Be a Sale After Importation?

We previously wrote about the ITC’s determination in Certain Semiconductor Devices, Semiconductor Device Packages, and Products Containing the Same, Inv. No. 337-TA-1010 that renting accused products after importation does not violate… more

Transformative Use or Infringement

In Cariou v. Prince, 714 F3d 694 [106 USPQ2d 1497] (2d Cir. 2013), the Second Circuit said that a use of a copyrighted work need not comment on the original artist or work, or on popular culture, in order to constitute “transformative”… more

The 2017 Automotive Mergers and Acquisitions Outlook

As we stand here in early 2017, we are further away from the all-time high in valuations and deal activity that we witnessed in 2015; but despite signs that the extended expansion cycle for the industry may be plateauing, automotive… more

Brexit: The Implications of the UK General Election

The UK will hold a General Election on 8 June. While this will mean that the ongoing work of the Government on Brexit will be put on hold, the two-year deadline for the negotiations continues to draw closer...… more

Buy American Executive Order Means Renewed Obligations for Government Contractors

On April 18, President Trump signed the “Presidential Executive Order on Buy American and Hire American” (the Order), which declares the Executive branch’s policy to buy American goods and rigorously enforce and administer laws… more

Host Country Benefits of Export Projects

Hydropower, as an affordable, reliable and sustainable source of electricity, has played an important role in the growth and industrialisation of many emerging market economies, including Laos, Kenya, Sarawak (Malaysia), China (in the… more

Minimum Energy Efficiency Standards in buildings - Update April 2017

It is now just under one year until the new Minimum Energy Efficiency Standards (or MEES) regime comes into force. From 1 April 2018, it will be unlawful for landlords to agree a new tenancy or a renewal for a property rated F or G on… more

District Court Granted Voluntary Motion to Dismiss Against Named Defendant But Disallowed Reservation of Rights as to Unnamed Third Parties

In this patent infringement action, Plaintiff Wright's Well Control Services, LLC (WWCS) filed a motion to voluntarily dismiss defendant Christopher Mancini pursuant to Federal Rule of Civil Procedure 41(a)(2) with prejudice, but with… more

Prosecutorial Discretion in the Age of Over-Criminalization

Depending on whom you ask, the U.S. Code contains between 3,000 and 4,500 federal crimes. The sheer volume has prompted legal commentators to decry the steady expansion of federal criminal statutes over the last several decades as an… more

OTA & Travel Distribution Update - April 14th, 2017

This week’s OTA & Travel Distribution Update for the week ending April 14, 2017 is below. Additional details regarding last week’s long-awaited report on online travel by the European Commission are featured in this week’s Update… more

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