Latest Updates

House Committee Issues Letter to HRSA Requesting Audit Documentation Regarding 340B Drug Pricing Program

The House Committee on Energy and Commerce (Committee) sent a letter dated June 1, 2017, to the Health Resources and Services Administration (HRSA) Administrator expressing concerns about the growth and oversight of the 340B Drug… more

What Can We Infer When Chief Justice Karmeier Asks the First Question in Criminal Cases?

Yesterday, we reviewed the data on Chief Justice Karmeier’s questions in civil cases between 2008 and 2016. Today, we take a look at a different side of the data – what can we infer when the Chief Justice asks the first question to… more

Pennsylvania Supreme Court Completes Revival of Environmental Rights Amendment

A 5-to-1 majority of the Pennsylvania Supreme Court recently confirmed that the text of the Environmental Rights Amendment to the Pennsylvania Constitution (Article 1, Section 27) is the appropriate standard of judicial review of the… more

House Bill Would Narrow Orphan Drug Exception

A recent House bill, titled the "Closing Loopholes for Orphan Drugs Act," would narrow the exception for orphan drugs in the federal 340B Drug Pricing program. Representative Peter Welch (D-VT) introduced the bill on June 13, 2017… more

Is the Senate's "Better Care" a Better Way to Repeal Obamacare?

On June 26, 2017, the U.S. Senate leadership released a “discussion draft” of The Better Care Reconciliation Act of 2017 (the “Better Care Act”) — i.e., legislation to repeal and replace the Affordable Care Act, better known by its… more

Three Considerations for Joint Venture Construction Projects

Construction industry participants seeking to diversify their projects or secure greater insulation from uncertain market conditions frequently search out risk mitigation opportunities. One common way to achieve these goals is to work… more

Department of Justice Reverses Course on Class Action Waivers

In the ongoing debate over whether class action waivers in employee arbitration agreements violate the National Labor Relations Act (“NLRA”), the Department of Justice (“DOJ”) has done an about-face–switching stances from pro-employee… more

OSHA Delays Electronic Report Rule

This morning OSHA issued a press release announcing that it would be delaying the compliance date for its rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposes pushing… more

OSHA Considers Extending Crane Certification Deadline

The Advisory Committee on Construction Safety and Health (ACCSH) of the Occupational Safety and Health Administration met on June 20, 2017, to learn about and give recommendations on OSHA’s proposed rule to extend the enforcement date… more

Patent Applicants Must Pay USPTO’s Legal Fees For Appeals To District Court Under 35 U.S.C. §145

Nantkwest, Inc. v. Matal, No. 2016-1794 (Fed. Cir. June 23, 2017). In a 2-1 panel decision, the U.S. Court of Appeals for the Federal Circuit has held that an applicant for patent who pursues an appeal to the U.S. District Court for… more

DOL Sends OT Request for Information to White House for Review

Yesterday, the DOL’s Wage & Hour Division (WHD) sent its anticipated Request for Information (RFI) on the overtime rule to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA). Review of the RFI by… more

Ransomware: How Can You Fight Back?

Ransomware is back in the news. Yet again, massive and not-so-massive corporate enterprises find themselves at risk of having their computer systems and records held hostage to internet raiders. And, in an added twist, this time… more

Landlords beware: Your trademark infringing tenant is your problem too

If a landlord learns that trademark infringement is occurring on its premises by one of its tenants and fails to stop further violations, the landlord may be held responsible by the trademark holder for damages relating to the… more

FTC Challenges North Dakota Healthcare Provider Merger

On Thursday, June 22, 2017, the Federal Trade Commission (“FTC”) and the North Dakota Attorney General filed a complaint challenging the merger of North Dakota providers, Sanford Health, Sanford Bismarck (together “Sanford”), and Mid… more

Disgruntled Employees and Other Internal Threats to Your Cyber Security

Baker Donelson's Data Protection, Privacy and Cybersecurity attorneys are pleased to continue a series of client alerts that address significant cyber-threats to your business and discuss ways you can protect your business with… more

Anthem Settles Data Breach Suit for Record $115 Million

Anthem Inc. has reportedly agreed to pay a settlement of $115 million to its customers that were affected by what is being called one of the largest data breaches in U.S. history… more

Florida Legislature Updates And Modernizes Florida's Fictitious Name Act

Florida Statute §865.09, known as the "Fictitious Name Act," requires any person or entity doing business in Florida under a name other than the person's legal name to register the alternate name, or "fictitious name", with the Florida… more

Up in the Air - Will EPA rulemaking on carbon emission design standards for aircraft be the next Obama climate initiative on the chopping block?

Trump Administration officials followed up on the President’s June 1 announcement of U.S. withdrawal from the Paris climate accord by announcing that the Administration was reviewing U.S. participation in ICAO’s global aviation… more

Alert: Supreme Court to Decide if State Courts Have Jurisdiction to Hear IPO Litigation

On June 27, 2017, the Supreme Court granted a writ of certiorari in Cyan, Inc. v. Beaver County Employees Retirement Fund, Case No. 15-1439 (Cyan), to decide whether state courts have subject matter jurisdiction over class actions… more

DOJ Flips the Switch on Class Waivers in Arbitration Agreements, Signaling Possible Changes to Come

On Friday, June 16, 2017, the United States Department of Justice (DOJ) filed an amicus brief reflecting a change of heart when it comes to the enforceability of class waivers in arbitration agreements. In an unprecedented move… more

SEC Disgorgement Constitutes a Penalty – How Far Will the Argument Go?

On June 5, 2017, Justice Sotomayor delivered the unanimous opinion in Kokesh v. SEC, 2017 U.S. LEXIS 3557 (June 5, 2017), holding that disgorgement collected by the Securities and Exchange Commission (SEC) constitutes a “penalty” under… more

The Queen’s Speech 2017: The Future for UK Data Protection Regulation

The Queen’s Speech was delivered 21 June 2017, setting out the government’s legislative plans. Key proposals from a data protection perspective include: - The introduction of a new Data Protection Bill, which will incorporate the… more

Fifth Circuit Clarifies Oil Spill Contribution Rules

Maritime law is known for its “hoary” precedents from long ago. But in Settoon Towing v. Marquette Transportation Co., the United States Court of Appeals for the Fifth Circuit rejected an aging principle of maritime law in favor of a… more

Happy 45th Birthday, Title IX: You’ve Changed A Bit Over The Years

A law was born. On June 23, 1972, President Richard Nixon signed into law Title IX of the Education Amendments Act of 1972: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the… more

OSHA Proposes Delay Of The Electronic Recordkeeping Rule

As expected, OSHA proposed today to extend the compliance deadline from July 1, 2017 to December 1, 2017 for submission of electronic records under its new recordkeeping rule. This is not surprising as OSHA has yet to make the portal… more

Two New Developments in Website Accessibility Cases: Nation’s First Website Accessibility Trial Verdict Is Far From a Winn for Retailers, and Hobby Lobby Is Dealt a Blow in California Decision

As numerous retailers know firsthand, website accessibility has become a hotbed for litigation in recent years. Despite plaintiffs filing scores of website accessibility claims against retailers each year, very few of these cases make… more

Canadian Bail-In Regulations: What You Need to Know

On June 16, 2017, Canada’s Department of Finance and the Office of the Superintendent of Financial Institutions (OSFI) published for comments a package of draft regulations and guidelines setting out the final details of Canada’s… more

M.C. Escher and Erwin Schrodinger Walk into A Bar … Or Are They Walking Out? And How Can The CBO Be Sure?

The pundits and political partisans apparently stopped reading before the heading on page 9 of the CBO’s June 26 report on the Better Care Reconciliation Act (BCRA) Discussion Draft, “Uncertainty Surrounding the Estimates,” which the… more

Massive Cyberattack Developing Worldwide

Several cybersecurity firms and news outlets are reporting a new major cyberattack spreading across the globe. The attack, which is still developing and appears to have hit the UK first, is being described as a “global ransomware… more

The Supreme Court Makes a Mess of Takings Law

On June 23, the Supreme Court finally addressed directly the frequently posed question: When considering the claimed taking of a property interest by government regulation, what is the affected property to be considered? All of one’s… more

Court Rules DOJ Enforcement Directive Arbitrary and Capricious

A U.S. District Court in Arizona has ruled that DOJ’s narrow interpretation of the requirements for a criminal misdemeanor under the Endangered Species Act went beyond unreviewable prosecutorial discretion, and its policy was arbitrary… more

D.C. Court Dismisses Class Action Breach of Contract Case Based on Policy Manual

It’s unusual to see an employment class action based on breach of contract by nonunionized employees. A recent case from the District of Columbia involving the Washington Metropolitan Area Transit Authority (WMATA), reflects why, and… more

Anthem Settles Data Breach Litigation for Record-Setting $115M

Health insurance giant Anthem, Inc. agreed to the largest data breach settlement to-date last week, ending multi-district consumer litigation over a 2015 data breach for $115 million. The data breach, which resulted from a… more

Mine Safety Agency Issues Alert On Coal Truck Dumping Safety

The Mine Safety and Health Administration has issued a safety alert following the death of a tractor trailer coal truck driver whose truck tipped over earlier this year. MSHA said the driver was driving a tractor trailer on February… more

Effect of failure to renew appointment of a process agent for service of process

A defendant’s failure to renew a process agent’s appointment did not affect a claimant’s right to serve a claim form at the address of the original process agent (which had become a building site) because the contract provided that the… more

Go Visit Your Client’s Place of Business

I get the pleasure of seeing some pretty amazing places of business for my job. We get sent to all sorts of businesses all around the world to interview law firm clients and learn about their businesses and how the law firms can serve… more

How To Avoid Wrongful Termination Lawsuits In Michigan

In Michigan, employment is usually considered to be “at-will”. This means that either an employer or employee may decide to terminate employment at any time, with no reason needed. There are, however, a few exceptions to the rule. If… more

Maryland’s Highest Court Holds That Condos May Not By Rule Suspend A Unit Owner’s Access To Common Elements For Delinquent Assessments

The Maryland Court of Appeals has invalidated a rule adopted by a condominium to suspend access to common elements for unit owners who are delinquent in paying assessments. In an opinion issued on June 23, 2017 in the case of Elvation… more

CFTC Unanimously Approves Revisions to Delegated Authorities and Technical Amendments

On June 20, 2017, the U.S. Commodity Futures Trading Commission (“Commission“) unanimously approved a Final Rule on Revisions to Commission Delegated Authority Provisions and Technical Amendments (“Final Rule“). As a result of the… more

Tenth Circuit Follows Majority Of The Circuit Courts And Holds Plaintiff Bears The Burden Of Proving Causation In ERISA Breach Of Fiduciary Duty Cases

On June 5, 2017, in Pioneer Centres Holding Co. Employee Stock Ownership Plan & Trust v. Alerus Fin., N.A., Case No. 15-1227, the U.S. Court of Appeals for the Tenth Circuit held that the plaintiff bears the burden on each element of… more

Construction of competing jurisdiction clauses

The Commercial Court has upheld an Italian local authority’s jurisdiction challenge in respect of certain declarations relating to interest rate swaps entered into under an ISDA Master Agreement. At first instance, the judge ruled… more

BIO Announces 2017 Rosalind Franklin Award Winner

On June 14, 2017, the Biotechnology Innovation Organization (BIO) announced that biotech industry veteran Vonnie Estes would receive the 4th annual Rosalind Franklin Award for Leadership in Industrial Biotechnology. Estes, an… more

The Better Care Reconciliation Act: Assessing the Senate's AHCA Counterpart

On June 22, the Senate unveiled its counterpart to the House of Representatives’ American Health Care Act (AHCA) — the Better Reconciliation Act (BCRA) — and Republican leaders have reportedly indicated a desire to vote on the bill… more

Supreme Court Narrows FDCPA’s Definition of Debt Collector

Debt buyers generally are considered “debt collectors” under the Fair Debt Collection Practices Act (“FDCPA”). However, on June 12, 2017, the Supreme Court decided Henson v. Santander Consumer USA Inc., which resolved an existing… more

Transgender Equality: Coming to a School Bathroom or Locker Room Near You!

On February 22, 2017, the U.S. Departments of Education and Justice issued a letter withdrawing the statements of policy and guidance reflected in the May 13, 2016 Dear Colleague Letter on OCR's enforcement of Title IX with respect to… more

Canada’s Anti-Spam Legislation (Casl): Compliance Checklist For Business Transactions

DUE DILIGENCE PHASE - Does the Target send commercial electronic messages (CEMs) from Canada and/or to recipients in Canada? CEMs include any email, text message or other direct electronic message that wholly or partly encourages… more

Bank held to higher duty despite no advisory relationship

Even where no advice was given, a bank’s duty of care to its customer was higher than a duty not to misstate facts and extended to explaining the financial implications of certain loans. The decision suggests that, in certain… more

DOL Opinion Letters Are Back

The U.S. Department of Labor announced today that it will reinstate the Department’s long-standing practice of issuing opinion letters to employers and employees regarding application of the Fair Labor Standards Act. The Obama… more

U.S. Supreme Court Holds that the Filing of a Class Action Does Not Toll the Securities Act’s Statute of Repose

In a 5-4 decision, issued during the final week of the its term, the U.S. Supreme Court held that the filing of a class action does not toll the three-year period provided for in Section 13 of the Securities Act of 1933. Interestingly… more

New Guidance from USACE Could Streamline Processes

A June 21, 2017 Memorandum issued by James Dalton, the U.S. Army Corps of Engineers Director of Civil Works, is designed to streamline a number of USACE processes, including..… more

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