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EU Market Abuse Regulation - Market Soundings Safe Harbour: Compliance and Record Requirements

The EU Regulation on Market Abuse (“MAR”) prohibits a person from unlawfully disclosing inside information relating to securities within the scope of the legislation. An unlawful disclosure is made when a person possesses inside…more

It’s Foreseeable That More Species Will Be Listed Under the ESA Due to Climate Change

The drumbeat of cases, either approving agency action under the ESA – or reversing agency refusal to act – due to habitat alteration resulting from climate change continues to grow. In February, the 9th Circuit reversed a district…more

A Win for Federal Contractors, Court Temporarily Enjoins Enforcement of Key "Blacklisting" Rule Provisions

Late in the day on Monday October 24, 2016, a U.S. District Court Judge for the Eastern District of Texas granted a preliminary injunction against implementation of major and contentious provisions of the Fair Pay and Safe Workplaces…more

Renewable Energy Update - October 2016 #3

Renewable Energy Focus - Ports plan for future zero-emission goal with cleaner, safer energy - Long Beach Press-Telegram - Oct 18 - After years of pressure from environmental groups and the community to become…more

FinTech Developments: Financial Services Innovation Bill Introduced

In September 2016, Representative Patrick McHenry (R-NC) introduced H.R. 6118, the “Financial Services Innovation Act of 2016” (“FSIA”). FSIA is intended to encourage the development of financial products and services by FinTech…more

The Location of Old McDonald’s Beehives Are Trade Secrets: Database Showing “Realistically” Ascertainable Locations Entitled to Protection

To qualify as a trade secret under either the UTSA or the DTSA, the information in question must not be “readily ascertainable” through “proper means.” But what does “readily ascertainable” mean?  If information is ascertainable by the…more

NAIC Long-Term Care Innovation Subgroup Public Hearing

At the NAIC Summer 2016 National Meeting, the Long-Term Care Innovation (B) Subgroup held a public hearing as part of an initiative to address the challenges facing the private LTC market. With baby boomers retiring at a rate of 10,000…more

Insurer Liable for Mandatory Double Damages for Failure to Reimburse a Medicare Advantage Organization for Medicare Benefits It Paid to Tort Victim

Humana Medical Plan, Inc. v Western Heritage Insurance Company ____ F.3d ____ 2016 WL 4169120 (11th Circuit, August 8, 2016) - The federal Medicare and Medicaid Acts have been called “among the most completely impenetrable texts…more

White House Announces New Privacy Officer

Last week, the Office of Management and Budget created a new dedicated position for privacy within the Office of Information and Regulatory Affairs (“OIRA”). The privacy position will streamline the United States Government’s privacy…more

Owner/Trustee of 401(k) Plan Accused of Having Eyes Wide Shut on Fiduciary Duties

Last June I blogged about the trend of participant fee class actions moving down to smaller 401(k) Plans. Occasionally, class actions are brought based on other breaches of fiduciary duties, particularly those involving significant…more

Tennessee Health Services and Facilities Report: October 2016 Newsletter

The Tennessee Health Services and Development Agency (HSDA) is responsible for regulating the health care industry in Tennessee through the Certificate of Need Program. A Certificate of Need (CON) is a permit for the establishment or…more

New FINRA Capital Acquisition Broker Rule Set May Be of Interest to Private Fund Sponsors

The SEC recently approved a set of FINRA rules for Capital Acquisition Brokers (“CABs”), described as corporate financing firms that generally limit their businesses to advising companies on mergers and acquisitions, advising issuers…more

Amendments to real estate legislation for the third quarter of 2016

Amendments to federal laws - Changes to the RF Town-Planning Code - In the summer of 2016, roughly a dozen federal laws were adopted to amend the RF Town-Planning Code (RF TPC).1 The main changes of significance to developers…more

US Board of Governors of the Federal Reserve System Releases Proposed Rule to Modify Capital Plan and Stress Testing Rules

The US BoG of the Federal Reserve System issued a proposed rule modifying the capital plan and stress testing rules for the 2017 test cycle. The proposed changes include eliminating the qualitative portion of Comprehensive Capital…more

Best Practices for Protecting Your Company With a Successful Insurance Renewal

Many in-house attorneys and risk managers follow the same ritual each year when renewing their company’s insurance policies: they look at a few insurance proposals, compare premiums, and then put their renewal policies in a file…more

The Oman Update - Official Gazette 1166

Sultani Decrees - Sultani Decree No. 46/2016 - Ratifying the memorandum of understanding between the Government of the Sultanate of Oman and the Government of the United Kingdom of Great Britain and Northern Ireland on…more

US Commodity Futures Trading Commission Chairman Speaks to SIFMA Annual Meeting Regarding the Agency’s Ongoing Work and Rulemaking Efforts

Timothy Massad, Chairman of the CFTC, spoke at the SIFMA annual meeting about clearinghouse regulation, technological changes and finishing Dodd-Frank rulemaking. Massad first highlighted ongoing CFTC work regarding stress testing…more

Does Placing Non-GAAP Financial Measures First Violate The Law?

Yesterday’s post discussed the SEC staff’s recently announced position that Item 10(e)(1)(A) of Regulation S-K requires that issuers disclose comparable GAAP financial measures before non-GAAP financial measures. Item 10(e)(1)(A)…more

Sonic v. Supersonic Coffee v. AKA Coffee: Bullied to a better brand?

A specialty coffee roastery in San Francisco, Supersonic Coffee, has decided to rebrand to the name AKA Coffee, as reported yesterday. The impetus for the rebrand was an opposition at the Trademark Trial and Appeal Board (TTAB) by the…more

The Oman Update - Official Gazette 1165

Ministerial Decisions - Ministry of Health - Ministerial Decision No. 199/2016 - Determining the working hours of people in medical and medical support jobs at state medical institutions (civil and military). Issued on 29…more

FFIEC Releases Answers To FAQs About Cybersecurity Assessment Tool

On October 17, 2016, the Federal Financial Institutions Examination Council (“FFIEC” or the “Council”) released a set of answers to frequently asked questions about its cybersecurity assessment tool (the “CAT”). The FFIEC, an…more

Countries at a Glance: Taiwan - Employee Stock Purchase Plans

EMPLOYEE STOCK PURCHASE PLANS - EMPLOYEE STOCK PURCHASE PLANS: EMPLOYMENT - Labor Concerns - Employees should sign a written disclaimer acknowledging that the Plan is a discretionary benefit offered to employees outside…more

How My Cousin Vinny Would Object to Discovery

Remember laughing at the antics of Vinny Gambini – a loud inexperienced personal injury lawyer? It is hard not to remember some of Vinny’s inaccurate legal arguments and outrageous remarks to the judge. However, at one point in the…more

Prop U Would Expand Income Range for Affordable Housing Eligibility

Prop U dovetails with the City’s new increases in required affordable housing percentages by proposing to expand the range of household income levels that would be eligible to rent an affordable housing unit. According to the…more

Countries at a Glance: Japan - Employee Stock Purchase Plans

EMPLOYEE STOCK PURCHASE PLANS - EMPLOYEE STOCK PURCHASE PLANS: EMPLOYMENT - Labor Concerns - It is becoming more common for employees to claim they have entitlements under Plans. The risk of employee claims for additional…more

Fenwick Privacy Bulletin - Fall 2016

Privacy Shield – An Early Reflection - EU law generally prohibits the transfer of personal data from the European Economic Area to the U.S., unless the transfer is made in accordance with an authorized data transfer mechanism or…more

The C-Suite’s Perspective on Cybersecurity and Liability

Recently, IBM surveyed more than 700 C-Suite executives in 18 industries and 28 countries about their views on cybersecurity. Ninety-four percent of those interviewed believe that their respective companies will experience a…more

Section 871(m) Dividend Equivalent Guidance Including New Transition Relief Expected After Mid-November

The U.S. Internal Revenue Service (the “IRS”) plans to release a guidance package including final rules and transition relief for dividend equivalent transactions described in Section 871(m) of the U.S. Internal Revenue Code of 1986…more

High Tech Way to Prevent Texting While Driving

Technology can disable cell phone use while driving, which could prevent many texting-related accidents. Illinois law prohibits the use of all hand-held devices while operating a motor vehicle. Calls, texts, and browsing the Internet…more

Section 1557 of the Affordable Care Act: Implications for Health Care Providers and Health Insurers

Section 1557 of the Affordable Care Act (the “ACA”) prohibits discrimination on the basis of race, color, national origin, sex (including gender identity), age, or disability under any health program or activity that receives federal…more

Countries at a Glance: Poland - Employee Stock Purchase Plans

EMPLOYEE STOCK PURCHASE PLANS - EMPLOYEE STOCK PURCHASE PLANS: EMPLOYMENT - Labor Concerns - Polish labor law should not affect purchase plans. However, as a precaution, employees should acknowledge in writing that the…more

OSHA Issues “Guidance” on New Anti-Retaliation Rules – Is Employee Drug Testing Now Off The Table?

On October 19, 2016, OSHA issued guidance with respect to certain controversial provisions of its new anti-retaliation rules, originally published on May 12, 2016. As we have previously discussed, OSHA’s new rules prohibit employers…more

Student Health Insurance Plans and the ACA: Agencies Provide Enforcement Relief that Allows Colleges and Universities to Continue Subsidizing the Cost of Student Health Insurance Plans for Graduate Student Employees

Late last week, the Departments of Labor (“DOL”), Health and Human Services (“HHS”) and the Treasury (collectively, the “Agencies”) issued a very welcome FAQ that will allow higher education institutions to continue subsidizing the…more

DOJ and FTC Put HR Executives on Notice That Anticompetitive Hiring and Compensation Practices May Be Subject to Criminal Prosecution

On October 20, 2016, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued “Antitrust Guidance for Human Resources (HR) Professionals.” The jointly prepared guidance—directed at HR executives—reiterates the…more

Fire Sprinkler Retrofitting

As you may be aware, the deadline for condominium associations to vote to forego retrofitting with a fire sprinkler system is rapidly approaching…more

The Bri-Chem Trilogy: Federal Court Affirms Tribunal

On November 16, 2015, we described important substantive and procedural issues that would be addressed by the Federal Court of Appeal (FCA) in an appeal from a decision of the Canadian International Trade Tribunal (CITT). Almost a full…more

NLRB Issues Numerous Decisions Against Employers as Hirozawa's Term Expires

In the midst of a heated presidential election cycle, employers are following recent decisions of the National Labor Relations Board closely. Before losing its three-member Democratic majority at the expiration of Board Member Kent…more

US Securities and Exchange Commission Proposes Enhanced Regulatory Framework for Covered Clearing Agencies

The US Securities and Exchange Commission voted to establish enhanced standards for the operation and governance of securities clearing agencies that are deemed systemically important by the Financial Stability Oversight Council or…more

DoD Finalizes Cybersecurity and Cloud Computing Rule

On October 21, 2016, the Department of Defense (DoD) issued a final rule following-up on the interim rules it had issued on August 26 and December 30, 2015, regarding safeguarding contractor networks and purchasing cloud computer…more

Arizona’s Proposition 206: Much More Than a Minimum Wage Increase

On November 8, 2016, Arizona voters will decide on the “Minimum Wage and Paid Time Off Initiative,” known as Proposition 206. The purpose of Prop. 206 is twofold: (1) to increase Arizona’s minimum wage from $8.05 per hour in 2016 to…more

Liquidity Management and Reporting Modernization Rulemaking

On October 13, 2016, the Securities and Exchange Commission (SEC) approved three new rules under the Investment Company Act of 1940 (Investment Company Act). The new rules will impose liquidity requirements, authorize the use of swing…more

District Court Concludes that Plaintiff Is Collaterally Estopped from Asserting Two Related Patents After Court in Another Jurisdiction Found one of the Patents Invalid under Alice

In this patent infringement action, the Defendant moved for dismissal based on collateral estoppel and Alice contending that a prior district court had found the patents invalid for lack of patentable subject matter. Before applying…more

ADA Allows Sleep Apnea Test for Obese Driver

Almost since the enactment of the Americans with Disabilities Act, motor carriers and drivers have clashed over the carriers’ ability to exclude drivers from service based on health issues. Many of these controversies have involved…more

Is Marriage a “Material Connection”? The FTC Challenges an “Independent” Expert Based on Marital Status

Medical endorsements can be powerful selling tools for health care products. But if a medical professional has a connection to the company marketing the products that would be material to consumers in evaluating the credibility of the…more

Self-Inflicted IC Misclassification Wounds: How Did FedEx Bludgeon Itself Into Pay Nearing $500 Million to Settle Claims That It Could Have Avoided?

FedEx’s costs due to IC misclassification are approaching $500 million over the past year as a result of its inability to draft in a valid manner its IC agreement and internal policies governing Ground Division drivers. Last Friday, an…more

On The Horizon: Global Insurance Capital Standards

Since 2013, the International Association of Insurance Supervisors (IAIS), an association of insurance supervisors representing more than 200 jurisdictions in approximately 200 countries, has been working on a plan to develop a…more

Embraer FCPA Enforcement Action, Part I

The Department of Justice (DOJ) and Securities and Exchange Commission (SEC) continued their stunning 2016 run of Foreign Corrupt Practices Act (FCPA) decisions with the announcement of the resolution of the Embraer SA (Embraer) FCPA…more

Application of New Debt-Equity Regulations to Securitizations

On October 13, 2016, Treasury and the IRS issued new final and temporary “anti-inversion” regulations under section 385 of the Internal Revenue Code that could treat certain purchasers of notes issued by securitizations as having…more

Attorney General (PAC) Deems RIF Joint Committee for Teacher Placement Subject to OMA

The Public Access Counselor (PAC) division of the Attorney General’s Office recently held that the reduction in force joint committee (the “Joint Committee”) was subject to the requirements of the Open Meetings Act (OMA). Recent…more

Where Do the Presidential Candidates Stand on Employment Visas?

While many observers of the 2016 United States presidential campaign have called immigration policy one of the central issues in the election, the implications of that heightened attention to the issue are not equally clear for all…more

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