Latest Updates

Final Written Decision Not So Final in Eyes of The ITC

The ITC recently continued its trend of giving little deference to parallel PTAB IPR proceedings. In Certain Network Devices, Related Software and Components Thereof (II), Inv. No. 337-TA-945, the ITC denied a request to suspend or… more

Does GDPR Apply to You?

The EU’s General Data Protection Regulation goes into effect on May 25, 2018. GDPR replaces the EU Data Protection Directive. GDPR can apply to US-based businesses even if they do not have offices or employees in the EU. It can also… more

Sultry Lady Liberty leads Postal Service astray

Beware sultry-looking ladies. That’s one of the lessons from the recent court decision sending a copyright case against the United States Postal Service to trial, but there are more. The decision can serve as a teaching tool and… more

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Consumer David Greenstein is pursuing excessive slack-fill claims against the producer of popular puffed rice and corn snack food Pirate’s Booty. Greenstein, who is representing himself in the lawsuit, claims to have purchased one… more

Ashley Madison Data Breach Results in $11.2 Million Settlement

On Friday, July 21, users of the “married dating” website, ashleymadison.com, received preliminary approval of an $11.2 million class action settlement. This settlement seeks to resolve a number of consolidated lawsuits against Avid… more

The DOL Fiduciary Rule: Charting a Course, Avoiding Collisions & Potential Litigation - Q&A on IRA Transactions

Previously, I wrote about potential litigation under the Department of Labor’s then proposed fiduciary rule (see Expect Focus, Vol. II, 2015). I predicted the following as to sales of index annuities to IRAs if the rule was adopted as… more

Expansion of Paid Family Leave Vetoed By Governor

We previously reported on a bill seeking to amend New Jersey’s Paid Family Leave Insurance Law. The bill sought to double the amount of available paid family leave from six weeks to twelve weeks, and to increase the cap on weekly… more

DWR Certifies EIR for WaterFix, Triggering 30-Day Deadline for Opponents to File Suit

On July 21, 2017, the California Department of Water Resources (“DWR”) certified the final environmental document and issued its Notice of Determination for the California WaterFix, a significant new water infrastructure component… more

A Potential New Application of Defamation by Implication: Media Layout and Accompanying Images at Issue in ISIS Antiquities Looting Story

On Monday, July 17, 2017, world-renowned antiquities dealer Hicham Aboutaam sued the parent company of a popular newspaper alleging that a story it published defamed him. The article, titled “Prominent Art Family Entangled in ISIS… more

House passes H.J. Res. 111 to override CFPB arbitration rule

Yesterday afternoon, the House of Representatives, by a 231-190 partisan vote, passed H.J. Res. 111 which provides for Congressional disapproval under the Congressional Review Act (CRA) of the CFPB’s final arbitration rule which was… more

Defence & Indemnity - June 2017 : II. LIABILITY ISSUES B. Widdowson v. Rockwell [2017] B.C.J. No. 457, per Kent, J. [4233]

II. LIABILITY ISSUES - B. A commercial host’s liability with respect to an intoxicated patron will not necessarily end when the patron arrives safely home – it is not necessarily a break in the chain of causation. Widdowson v… more

New York Appeals Court Holds Class Action Waivers Violate the NLRA While Employers Await Definitive Ruling From Supreme Court

The Supreme Court is set to hear oral argument in October on whether class and collective action waivers are enforceable. While employers await the Supreme Court’s decision, other courts continue to weigh in on the matter. Just last… more

How To Protect Your Company From Cyber Regulatory-Enforcement: Part 2

Experiencing a security breach is a bit like being on the titanic and feeling the tremble from hitting an iceberg. The impact sparks immediate panic - you know something very bad has just happened but are unsure whether the damage is… more

Janssen Biologic Tremfya Secures FDA Approval Following Use of Priority Review Voucher

On July 13, 2017, the U.S. Food and Drug Administration approved Tremfya (guselkumab), a biologic manufactured by Janssen Biotech, for the treatment of moderate-to-severe plaque psoriasis patients who are candidates for systemic… more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

The Circuit issued only one precedential patent case this week, reversing a determination of obviousness as to a Millennium Pharmaceutical patent covering its blockbuster cancer drug Velcade®, thus extending the life of patent coverage… more

Telehealth & EHR Meaningful Use Payments—Expect Greater Scrutiny in Upcoming Medicare Audits

In July 2017, the United States Department of Health and Human Services' Office of Inspector General ("OIG") revealed two new Work Plan items related to digital health: first, a review of Medicare incentive payments for meaningful use… more

House Bill Would Reduce Use of LPTA in All Agencies’ Procurement

A recent bill before the U.S. House of Representatives seeks to limit the use of the lowest price technically available (“LPTA”) source selection process in procurements. H.R. 3019, which was introduced on June 22, 2017, would create a… more

DOL to Seek Public Comment on Overtime Rule

The U.S. Department of Labor has announced that on Wednesday, July 26, 2017, it will formally seek public comment on the overtime rule by publishing a Request for Information (RFI)...… more

USDOL To Publish "White Collar" Exemption Information Request

A U.S. Department of Labor Request for Information will be published tomorrow morning to seek additional public comment regarding the 2016 compensation revisions in the regulations defining the federal Fair Labor Standards Act's… more

5 Key Takeaways: Three Years After Octane Fitness – Patent Litigation Fee Fights

Kilpatrick Townsend’s Clay Holloway, a partner in the firm’s Atlanta office, recently participated in a webinar as part of a panel to discuss the issue of attorney fees three years after the U.S. Supreme Court decision in Octane… more

Washington Enacts Paid Family And Medical Leave Law

All Washington employers must provide paid family and medical leave under a bill signed by Governor Jay Inslee on July 5, 2017. The new law creates an insurance fund that employers and employees both pay into, with a 0.4 percent… more

Anti-Corruption Compliance: The Need to Look Under the Cloak of Materiality

Sarbanes-Oxley revolutionized the auditing profession. Section 404 imposed stringent requirements for disclosure of the state of a company’s internal controls and financial reporting. The company’s independent auditor is required to… more

Timing Is Everything: USCIS Revises Form I-9 To Clarify When Section 1 Should Be Completed

As you may recall, the U.S. Citizenship and Immigration Services recently modernized the Form I-9, Employment Eligibility Verification, to offer both a “paper” and an “electronic” version. Last week, the USCIS released yet another… more

Overview of IRS Penalties for Individuals with Foreign Bank Accounts and Investments

Earlier this spring, the Internal Revenue Service ("IRS") Large Business and International Division identified several "campaigns" or areas where it plans to focus its audit resources. One campaign involved taxpayers who opted out of… more

Premium Processing Resumed for Certain H-1B Petitions

As of July 24, 2017, USCIS has resumed premium processing service for certain types of H-1B cap-exempt petitions. While premium processing is still not available for most H-1B petitions, USCIS announced that it will now accept premium… more

Predictive Scheduling and the Fight for a “Fair Workweek”: What Employers Need to Know

Retailers and fast food companies in particular should be aware of the growing push for “fair workweek” legislation at the city, state, and federal levels. In just the past few years, over a dozen states and cities have considered… more

What Could We Infer When Justice Theis Asked the First Question in Criminal Cases?

Yesterday, we reviewed Justice Theis’ question patterns in criminal cases between 2010 and 2016. Today, we ask what it’s possible to infer when Justice Theis asked the first question in criminal cases. Justice Theis voted with the… more

Dollar General Sued by EEOC For Disability Discrimination and Retaliation

Portal, Ga., Store Manager Refused to Interview Applicant After Seeing Her Arm in a Sling, Federal Agency Charges - ATLANTA - The owner-operator of a Georgia Dollar General store violated federal law by discriminating against a job… more

New York State Appellate Court Finds Arbitration Agreement Requiring Employees to Bring Claims Individually Violates The National Labor Relations Act

On July 18, 2017, in Gold v. New York Life Ins. Co., New York’s Appellate Division, First Department issued a decision that directly contradicted the decision of the U.S. Court of Appeals for the Second Circuit in Sutherland v. Ernst &… more

The Importance of Careful Coverage Analysis

Ohio has joined the majority of jurisdictions in holding that a general liability policy may provide coverage for claims made by a project owner for property damage allegedly caused by the defective work of a subcontractor. In Ohio… more

DOL Seeks Comment on Overtime Rule

On July 26, 2017, the U.S. Department of Labor will publish its anticipated Request for Information on the White-Collar Overtime Exemption in the Federal Register. The RFI will give the regulated community 60 days to provide its… more

Funding Your Small Or Mid-Size Development Project In New Jersey

Obtaining financing for your development project is one of the most important aspects of moving your development plans from paper to reality. Recently, the New Jersey Economic Development Authority (the “Authority”) created a Real… more

Worker Classification Update

On July 20, 2017, the Internal Revenue Service ("IRS") issued a reminder for small businesses on the importance of correctly classifying workers as employees or independent contractors. Employers failing to do this correctly may face… more

First Amendment Protects Right to Record Police Activity, Third Circuit Holds

The Third Circuit recently joined the growing consensus of courts recognizing that the First Amendment protects the act of recording police officers conducting their official duties in public. In Fields v. City of Philadelphia, — F.3d… more

USCIS Will Resume Premium Processing for Certain H-1B Petitions

On July 24, U.S. Citizenship and Immigration Services announced that it would resume premium processing for certain cap-exempt H-1B petitions effective immediately. Premium processing for H-1B petitions had been suspended in mid-March… more

[Video]Day 17 of One Month to More Effective Internal Controls-COSO Objective III: Control Activities

In its Framework Volume, COSO Control Activities “are the actions established through policies and procedures that help ensure that management’s directives to mitigate risks to the achievement of objectives are carried out. Control… more

Standstill agreements: difference between suspension or extension

Parties often enter into standstill agreements when approaching the expiry of a limitation period. This case shows the difference between suspending time and extending time for the purposes of limitation in a standstill agreement. As… more

Trending: Website Accessibility Lawsuits Under Americans With Disabilities Act On The Rise

For years, lawsuits under Title III of the Americans with Disabilities Act concerning places of public accommodation were confined to brick-and-mortar physical barriers, such has steps, excessive slopes in parking lots, and routes that… more

[Video]Compliance into the Weeds-Espiode 47

In this episode, Matt Kelly and I discuss SOX and Dodd-Frank reform efforts involving compliance… more

Acting OCC Comptroller Provides Update on Granting Special Purpose National Bank Charters to Fintech Companies

As previously reported, the Office of the Comptroller of the Currency (OCC) recently decided to consider applications from financial technology (fintech) companies to become special purpose national banks (SPNBs). In our May webinar… more

Commissioner O’Rielly Again Targets Pirate Broadcasters and Their Supporters to Walk the Enforcement Plank

Commissioner Michael O’Reilly called for stronger enforcement action to combat unauthorized “pirate” radio broadcasters in a statement before the Communications and Technology Subcommittee of the House Energy and Commerce Committee on… more

Workplace Analytics: What Does The Law Say?

Hopefully by now you have recognized the benefits of workplace analytics and are becoming more comfortable understanding any associated risk. Does the law provide any guidance? As we discussed in a prior blog entry, some government… more

Record-Setting Prosecutions in the Money Transmitting Business: Ways to Avoid Compliance Violations

In the first several months of 2017, we have seen significant anti-money laundering settlements and penalties in the money transmitting business arising from lax compliance programs, including the record-setting Western Union… more

Settling claims with one joint tortfeasor

Settlement with one tortfeasor resulted in claims against another tortfeasor being released too, which was not what the claimant had intended. In this regard, the Court of Appeal highlighted the distinction between a settlement with a… more

Licensing Third Party Software for Use in Federal Contracts

In the IT sector, it is common for contractors with relationships to various federal agencies to have top-tier talent in-house to provide high quality IT services. Some vendors even have programmers and software engineers in-house to… more

Certification Of Alleged Misclassified Bakery Distributors Denied Due To Predominance Of Individualized Issues

Class certification would have been granted in Soares v. Flowers Foods, Inc., 3:15-cv-04918 (N.D. Cal., June 28, 2017), but for the allegedly misclassified independent contractors’ decision to deliver, or not deliver, the goods… more

Bob Gaudio Tells Spotify To Walk Like A Man

Spotify, the world’s largest music streaming service, was sued last week for over $366 million by two music publishers, Bluewater Music Services in Nashville and a group of companies affiliated with Bob Gaudio, the award-winning… more

Blowing the Whistle: Employers Must Properly Respond to Employee Allegations of Wrongdoing

The Occupational Safety and Health Administration’s ("OSHA") Whistleblower Protection Program enforces the whistleblower provisions of 22 statutes protecting employees who report violations of various federal laws. Examples of the… more

Expert witnesses in accounting disputes

At a time of increasing disputes involving accounting evidence, this case debunks a number of assumptions about the approach taken by both HMRC and the First-tier Tribunal. HMRC do not always instruct their own employees as their… more

Palin v. The New York Times Co.: Newspaper Mounts Robust Defense to Defamation Lawsuit

The New York Times is defending itself against a defamation lawsuit brought by former Alaska Governor and Republican vice presidential candidate Sarah Palin, as the newspaper asserted in a recent motion to dismiss that the statements… more

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