Latest Updates

Traps for the Unwary: Are Financial Institution receiving adequate FATCA consulting and training?

FATCA is Chapter 4 of the Internal Revenue Code (IRC). It conscripts Foreign Financial Institutions (FFIs) to act as reporting and withholding agents for the U.S. Government. To enforce its conscription, it contains a mechanism for… more

Using Your Payroll Provider As Your 401(k) TPA Is A Big Mistake

Like beating a dead horse, I will again say that it is a bad idea for plan sponsors to hire their payroll provider as their 401(k) third party administrator (TPA)… more

European Parliament Adopts Resolution on FinTech

On May 17, 2017, the European Parliament voted in plenary to adopt a resolution on FinTech and the influence of technology on the future of the financial sector. The provisional text (P8_TA-PROV(2017)0211) of the resolution has been… more

Delaware - The New Black For Patent Litigation?

This week the Supreme Court made the problem of deciding where to incorporate a little more complicated. Sure, your company could still choose Delaware for its well-developed business laws. But how does Delaware stack up in patent… more

Do Winning Parties Tend to Have More Amicus Support in Civil Cases (Part 1)?

For the past two weeks, we’ve been reviewing the data on the Supreme Court’s experience with amicus briefs, asking whether petitioners or respondents tend to average more amicus support. Now, as a further step towards modeling the… more

The Supreme Court Will Review the Board’s Partial Institution Practice

On May 22, the U.S. Supreme Court granted SAS Institute’s Petition for Cert seeking review of the Board’s practice of instituting review of some challenged claims but not others. In the Federal Circuit’s decision on appeal, Judge… more

CFTC Launches LabCFTC as Major Fintech Initiative

On May 17, 2017, the Commodity Futures Trading Commission (“CFTC“) approved the creation of LabCFTC, which it describes as “a new initiative aimed at promoting responsible fintech innovation to improve the quality, resiliency and… more

A Bridge Over Troubled Water: Singapore’s New Restructuring & Insolvency Framework Is Being Introduced When It Is Most Needed

Further to K&L Gates’ Singapore Restructuring and Insolvency Alert dated 5 December 2016, Singapore’s revised restructuring and insolvency legislation has come into effect. The amendments to the Companies Act, summarised in the… more

The State of Incorporation Is the TC Heartland of the Matter

In what is perhaps one of the most highly anticipated U.S. Supreme Court patent law decisions since Alice Corp. v. CLS Bank Int’l, the Supreme Court held on May 22 that, for purposes of venue in patent cases, a defendant corporation… more

FTC Releases Cross-Device Tracking Guidance

In January, the Federal Trade Commission (FTC) released guidance that will be of interest to companies that utilize cross-device tracking. Cross-device tracking refers to a company’s ability to link a consumer’s behavior on a website… more

Fallout from Target’s 2013 Data Breach includes an $18 Million Multistate AG Settlement

Target Corporation agreed to an $18.5 million settlement with 46 State Attorneys General and the Attorney General of the District of Columbia this week, resolving allegations that the company failed to provide reasonable data security… more

Shareholder-Approved Award Limits for Non-employee Directors: Legal Update and Actions to Consider

A recent Delaware court decision validates the trending practice to add specific limits on non-employee director pay in public company “omnibus” incentive compensation plans, to be approved by shareholders. Non-employee directors… more

[Video]Day 20 - Compliance Leadership from the Bottom

The key concept from the Department of Justice’s (DOJ) Evaluation of Corporate Compliance Program (Evaluation) is operationalization. For instance, under the query Shared Commitment is the following question - “How is information… more

New York’s Highest Court Asked To Decide Whether New York City Human Rights Law Protects Mistaken Perception Of Alcoholism

New York’s highest court, the New York Court of Appeals, has been asked to decide the question of whether the New York City Human Rights Law permits a claim of disability discrimination based solely on a perception of untreated… more

BREAKING: Full Second Circuit To Reconsider Whether Title VII Prohibits Sexual Orientation Bias

The U.S. Court of Appeals for the Second Circuit (Connecticut, New York, and Vermont) agreed yesterday to rehear en banc an appeal from the estate of a gay skydiving instructor who alleged he was fired after a customer complained about… more

CMS Delays Start Date for Medicare Cardiac/Hip Fracture Episode Payment Model Until 2018; Parallel CJR Changes Also Pushed Back

The Centers for Medicare & Medicaid Services (CMS) is delaying until January 1, 2018 implementation of mandatory Medicare episode payment models (EPMs) for acute myocardial infarction, coronary artery bypass graft, and surgical… more

Employer’s Refusal To Hire Medical Marijuana User Violates State Law, Rhode Island State Court Holds

Employers cannot refuse to hire a medical marijuana cardholder, even if the individual admittedly would not pass the employer’s pre-employment drug test required of all applicants, a Rhode Island state court has held under the state… more

The Fight For Legal Services Corporation

Describing the value of legal services, Supreme Court Justice Elena Kagan once said, "As a society, we do not do nearly as well as we ought to in enabling low-income, and for that matter middle-income, Americans to get the… more

Georgia’s SB 201 Will Require Sick Leave To Be Used For “Family” Reasons

One hot topic right now in the employment world is family and medical leave laws. There has been a push in the federal arena as well as many states to establish or improve family leave and sick leave requirements for the private sector… more

California DPR Requirement Issues Guidance on Registering Impregnated Materials – Registrations Due

On May, 24, 2017, the California Department of Pesticide Regulation (DPR) issued guidance regarding its Notice 2015-13 to applicants registering pesticide impregnated materials bearing pesticide claims to be sold and distributed into… more

DOJ Continues to Crack Down on SBA Fraud

On April 25, 2017, the DOJ announced that Michelle Cho, an officer of Far East Construction Corporation and other companies, received both prison time and civil penalties for her involvement as the mastermind of a fraudulent scheme to… more

Fiduciary Rule ? No Further Delays

Three items of key importance with respect to the Department of Labor’s (“DOL”) rule changing the definition of the term “fiduciary” (the “Fiduciary Rule”) happened on May 22, 2017: 1. Secretary of Labor Alexander Acosta confirmed… more

OSHA Filing Date Up in the Air: A Summary of the Electronic Occupational Injury/Illness Reporting Requirement

Last year, the Occupational Safety and Health Administration (OSHA) promulgated a regulation that requires, among other things, certain employers to electronically submit occupational injury/illness information to OSHA beginning in… more

Blog: Does It Pay To Challenge The SEC Over Non-GAAP Financial Measures?

As discussed in this article, the WSJ engaged Audit Analytics to perform an analysis of SEC comment letters and company responses regarding the use of non-GAAP financial measures. What did they find? Companies are winning the argument… more

Germany Publishes Final Report from Project on Methodology for Identifying Granular Biopersistent Particles at Workplaces

Germany’s Federal Institute for Occupational Safety and Health (BAuA) has published the final report for the project “Methodology for the Identification of Granular Biopersistent Particles (GBP) at Workplaces.” The final report states… more

Defending Competitive Harm with Efficiencies: A Fire Swamp of Trouble

The use of efficiencies as a defense remains without a firm footing in law when a transaction has demonstrable and substantial anticompetitive effects. In Rob Reiner’s classic fantasy adventure The Princess Bride, Princess… more

Fourth Circuit Court of Appeals Allows Wikimedia Upstream Suit to Proceed

On May 23, 2017, the Fourth Circuit Court of Appeals issued its opinion on Wikimedia foundation v. NSA/CSS. The Court vacated and remanded the NSA’s previously successful motion to dismiss Wikimedia’s Fourth and First Amendment claims… more

You Can’t Pick Your Facts

Clients can pick their own attorneys but they cannot pick their own facts. A recent case decided by Master Ayvazian highlights the difficulties that unfortunate facts can present. Creditors have eight months to file a claim… more

NAFTA Renegotiation Faces a Lengthy, Uncertain Future

On May 18, 2017, United States Trade Representative (USTR) Robert Lighthizer notified Congress that he is seeking to renegotiate the North American Free Trade Agreement (NAFTA). The notification triggers a 90-day consultation period… more

Foreign Investment Reporting to the United States: In-Bound Investment into the United States

Businesses making investments in the United States, directly or indirectly, are required to report this investment to the United States government. This “in-bound” investment is reported to the United States Department of Commerce… more

Reminder: Modern Slavery Statement Deadline

A gentle reminder for all those with a turnover above £36 million and doing business in the UK… more

Governor Signs Amendment to Tennessee Data Breach Notification Law

During the recent 110th Regular Session of the Tennessee General Assembly, Governor Bill Haslam signed into law an amendment to the Tennessee Identity Theft Deterrence Act of 1999… more

Legal Costs Don’t Have To Be Staggering

The cost of correcting plan errors can be expensive. It can be expensive through corrective contributions and it certainly can be expensive through legal costs… more

Ninth Circuit Confirms GOOGLE Is Not Generic

On May 16, 2017, the Ninth Circuit affirmed the district court’s finding that the GOOGLE trademark had not become generic, providing guidance on preventing genericide. Elliott et al. v. Google, Inc., No. 15-cv-15809, 2017 US App… more

FRANCHISEE 101: Contract Curveballs

In every Franchise Agreement, the franchisor and franchisee promise to fulfill obligations to the other. For some promises, whether or not they were performed can be a clear "yes" or "no." For example: either a franchisee paid the… more

Where Does One Find Bitcoin to Pay the Hacker When Your Computer is Locked? An ATM, Of Course!: Cybersecurity Trends

Needless to say, cybersecurity and its challenges have become even more of a hot topic than ever, with ransomware stories becoming more prevalent. If you want to learn more about how to prevent ransomware attacks, read below… more

Insured May Bear the Consequences of Insurer’s Negligence

For decades, California courts have mandated that an insurer is obligated to accept a “reasonable” settlement demand within policy limits on behalf of its insured. If it fails to do so, it is liable for the entire judgment, including… more

Drawing (Or, More Accurately, Pouring) a Blank?

In a guidance issued on May 24, 2017, the Massachusetts Alcoholic Beverages Control Commission announced a loosening of the Commonwealth’s stringent growler-filling requirements..… more

Postponement of the Integrated Environmental Permit until 1 January 2018

The Flemish Parliament agreed on a (supplementary) postponement for the implementation of the integrated environmental permit until 1 January 2018… more

Implementation Decree for the Say-on-Pay Provisions of the Loi Sapin II Adopted

Adopted on 8 November 2016, the Sapin II Act (Loi Sapin II) introduced a compulsory ex ante vote on remuneration policy and an ex post vote on the amount of remuneration received in accordance with the policy passed the previous year… more

Hospital and its Clinic Agree to $34 Million Settlement to False Claims Act Allegation that Compensation to Oncologists Violated the Stark Law

Last week, the Department of Justice (DOJ) entered into a $34 million settlement with Mercy Hospital Springfield (“Hospital”) of Springfield, Missouri, and its affiliate Mercy Clinic (“Clinic”). The settlement resolves an allegation… more

Court Clarifies Meaning of “Ground for Invalidity” for Purposes of Post-IPR Estoppel

A district court judge recently addressed the scope of estoppel for a petitioner in an inter partes review (IPR). Specifically, the court clarified the meaning of a “ground for invalidity” as it relates to the estoppel effect of 35… more

Fiduciary Rule to Go Into Effect but DOL Provides Temporary Non-Enforcement Policy

As reported in our April 18th blog, the Department of Labor (“DOL”) officially delayed the applicability of the Fiduciary Rule for 60 days, until June 9, 2017. Given the multiple delays leading up to the proposed June 9th date and… more

What Activities Do You "Pay For"?

ABC Corporation sometimes conducts in-house, during-the-workday, performance-improvement training for its employees. Its Policy Manual includes a sentence saying, "The Company pays for the time employees spend in work-related… more

NLRB's Quickie Election Rule Lives Up to its Name

You may remember that the NLRB issued its “quickie election rules” a little over two years ago. Those rules took effect in April 2015, and now we can clearly see that this is one law that actually lives up to its name. Prior to the… more

Privacy Training Requirements for Federal Contractors

Under a final rule issued by the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA), effective January 19, 2017, federal government contractors must now comply… more

Merely Because Petitioner Changes its Mind is not Enough to Stop Inter Partes Reexamination

In In Re: AT&T Intellectual Property II, L.P., [2016-1830] (May 10. 2017), the Federal Circuit affirmed the PTAB determination in Inter Partes Reexamination, that the claims of U.S. Patent No. 7,454,071, directed to methods of… more

Blockchain and the financial markets: Will 2017 be the year of the regulators? New rules covering blockchain and distributed ledger technology could be on the horizon following a flurry of consultation papers by leading financial regulators.

In 2016, policy makers and regulators started to take an active interest in blockchain and distributed ledger technology (DLT). However, many adopted a "wait and see" approach rather than producing binding regulations. 2017 is shaping… more

A victory for attorney-client confidentiality: DOL takes formal steps to rescind controversial persuader regulation

In March 2016, the DOL issued a new regulation that greatly expanded the obligations of employers and their attorneys to publicly file sensitive information regarding so-called “persuader activity.” Under the regulation, employers and… more

NYC Law Prohibits Employers from Asking Job Applicants for Salary History

New York City recently enacted a law prohibiting employers from asking about a job applicant’s salary history during all stages of the employment hiring process. The law, which was adopted on May 4, 2017, also prohibits an employer who… more

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