Latest Updates

The Wells Fargo PII Epic Fail – Chapter II

The law firm that inadvertently produced records containing personally-identifying information (“PII”) relating to 50,000 Wells Fargo customers in response to a third-party subpoena, which we first reported on, went before a judge… more

District Court Addresses IPR Estoppel of Nonpetitioned Grounds and Appoints Expert to Determine Whether Skilled Artisan Could Have Discovered Prior Art

In Oil-Dri Corporates of America v. Nestle Purina Petcare Company, the court recently held that a defendant who has filed a parallel inter partes review (IPR) petition is estopped from raising invalidity grounds in the district court… more

CMS revises CJR program, cancels cardiac bundles

On Aug. 15, 2017, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule seeking to reduce mandatory participation requirements in the Comprehensive Care for Joint Replacement (CJR) program for hospitals and to… more

Implied False Certification Theory Fails in FCA Case Against Billing Agent

A court in the Southern District of New York (“SDNY” or the “Court”) recently released an important decision applying the Supreme Court’s landmark Escobar ruling to a qui tam action involving percentage fee arrangements for billing… more

Litigation Misconduct Helps Render a Patent Unenforceable

In March 2014, Regeneron Pharmaceuticals, Inc. sued Merus B.V. for allegedly infringing U.S. Patent No. 8,502,018 (“the ’018 Patent"). The ’018 Patent generally relates to using vectors to modify genes and chromosomal loci in… more

Federal Circuit Signals that Issue Joinder and Expanded Panels May Not Be Long for the IPR World

A fairly straightforward Federal Circuit decision today affirming a PTAB determination of obviousness provides insight into a potential reining in of the PTAB on two issues. In Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co.… more

The Gig Economy Can Also Satisfy Your Late-Night Cravings

Late one night, you request a Lyft ride home, but at the same time, you suddenly develop a craving for a delicious Crunchwrap Supreme. What do you do? Fret not: Lyft is testing a new ride-sharing experience that is certain to remedy… more

The German Transparency Register is coming: New obligations for legal entities in Germany to disclose beneficial ownership information

Highlights - - Implementation of a public Transparency Register on beneficial ownership of legal entities. - Notification obligation applies to incorporated companies and certain other legal entities and arrangements; the… more

Failure to Provide Patent Examiner with Copy of PTAB Decision Not Grounds for Inequitable Conduct

In a report and recommendation issued Tuesday, August 15, 2017, a magistrate judge in the Eastern District of Texas stated that failure to provide a patent examiner with a copy of a relevant post-grant review (PGR) institution decision… more

LinkedOut: Court finds Ex-Employee Likely Violated Non-Solicitation Provision with LinkedIn Post

The use of social media sites, like LinkedIn, can be a helpful tool to reach a customer base. But a recent district court case out of Minnesota exemplifies the need to ensure that LinkedIn usage complies with the user’s employment… more

U.S. Mission in Russia to Temporarily Suspend NIV Issuance

In a continuation of the diplomatic tit-for-tat with Russia, the U.S. Embassy in Moscow announced on Monday, August 21, 2017, that it would suspend issuance of nonimmigrant visas for eight days starting August 23rd. Nonimmigrant visa… more

Don’t be duped by the trademark solicitation

The number of companies soliciting trademark renewals and other products or services from trademark registrants has skyrocketed. Why? Because the solicitations are effective in duping trademark owners into thinking the fees are… more

Corporate Finance Alert: SEC Issues New Guidance on Draft Registration Statements, Including Omission of Interim Financial Statements

On August 17, 2017, the staff (Staff) of the Securities and Exchange Commission (SEC) issued new guidance that will streamline significantly the confidential submission process for emerging growth companies (EGCs) and non-EGCs… more

DOJ Obtains Price-Fixing Guilty Plea

Texas-based e-commerce company Zaappaaz, Inc.—doing business as WB Promotions, Inc., Wrist-Band.com, and Customlanyard.net—and its president both agreed to plead guilty to conspiring to fix prices for customized promotional products… more

Gilead prevails in SOVALDI appeal

The Federal Court of Appeal recently affirmed a trial decision relating to two competing patents over Gilead’s SOVALDI (sofosbuvir). In the trial decision, as previously reported, the Court declared Idenix’s Patent No. 2,490,191… more

CMS Cancels EPM and Cardiac Rehabilitation Incentive Program While Revising CJR in New Proposed Rule

After initially delaying the implementation of Episode Payment Models (EPMs) earlier this year, CMS issued a Proposed Rule on August 17 that proposes to cancel all EPMs and the Cardiac Rehabilitation Incentive Program (CR) while… more

Is 2 seconds of television time too much to be a fair use?

In a recent episode of "48 Hours," CBS displayed – for two seconds – a copyrighted photograph taken by Steven Hirsch. He sued for copyright infringement. A federal court in Manhattan denied CBS’s motion to dismiss, finding the question… more

U.S. Government’s Power Africa Initiative Releases 2017 Annual Report Highlighting More Than 80 Power Africa Transactions Closed and More Than $14.5 Billion in Financings Since Inception

On August 21, 2017, Power Africa published its 2017 Annual Report highlighting more than 80 Power Africa transactions closed and more than $14.5 billion in financings since its inception. Overall, it has facilitated the financial… more

No cross-contract set-off under Security of Payment Act

In Hua Rong Engineering Pte Ltd v Civil Tech Pte Ltd, the Singapore High Court considered whether counterclaims and set-offs arising outside the context of the contract in dispute can operate as a defence in adjudication under the… more

“GLB” and What it Means for Auto Dealers

Developing an information security program is good business, and for auto dealers that are considered “financial institutions” under the Gramm-Leach-Bliley Act (GLB) it is the law. As part of the GLB, the Federal Trade Commission (FTC)… more

Recent Developments on DOL Fiduciary Rule

There have been several attempts to kill the Fiduciary Rule in recent months. On June 8, The Financial Choice Act (H.R. 10), which overhauls the Dodd-Frank Act and in the process repeals the Fiduciary Rule, passed by a vote of 233 to… more

The Four Things That Surprised Us in the EpiPen False Claims Settlement

On August 17, 2017, the U.S. Department of Justice (DOJ) announced that it had reached a $465 million false claims settlement with Mylan, the manufacturer of EpiPen, over the company’s alleged underpayment of Medicaid Drug Rebates for… more

Currently Not Collectible Taxes: What Do You Do? (Part 4)

If an individual or business owes federal taxes and does not have the current ability to pay these taxes, the IRS can consider placing the account into “currently not collectible” (CNC) status. If placed in CNC status, a taxpayer is… more

Court Throws Monkey Wrench Into Wellness Programs

The U.S. District Court for the District of Columbia has ordered the EEOC to reconsider its final regulations on the extent to which an employer may offer incentives to participate in a wellness program without violating the Americans… more

Government Ordered to Pitch-In $12.5 Million to Resolve a Patent Dispute Involving Advanced Aerospace Technologies, Inc.’s Unmanned Aerial Vehicle Retrieval System Technology

Patent Judgments and Awards - On August 4, 2017, after five-and-a-half years of litigation over patent infringement, a Federal Claims judge ordered the United States (“the Government”) to pay Advanced Aerospace Technologies, Inc… more

Plan Design Consultants try to Kickstart 401(k) plans for employers

My friends at Plan Design Consultants have created a new program called KIC(k)START, which is an approach for them to garner more plans and help out the advisors they work with… more

A Foolish Consistency may be the Hobgoblin of Little Minds, but it is the Hallmark of a Successful Applicant/Patent Owner

In In re Walter, [2016-2256] (August 21, 2017), the Federal Circuit affirmed the PTAB’s decision in ex parte reexamination of U.S. Patent No. 7,513,711 that all twelve claims of the patent lack adequate written description and are… more

At Least the Millennials Aren’t Killing the Gig Economy

Over the past few months, many essays, blog posts, and articles have lamented over the apparent homicidal nature of Millennials. From brunch to wine corks, the “things” Millennials have killed is far-reaching. The formula is simple:… more

The FDA's new Digital Health Plan

The US Federal Food and Drug Administration (‘FDA’ or ‘Agency’) Commissioner Dr Scott Gottlieb has used an FDA blog post to announce plans for a new digital health devices initiative, specifically the initiative’s Digital Health… more

Asset Management Regulatory Roundup - August 2017 - Issue 4

A compact summary of the most recent regulatory developments relevant to the UK asset management industry. This issue includes details on MiFID II: Client classification of local authorities, FCA paper on dark trading, the FCA… more

Tips for Avoiding Disparagement of a Competitor

In the broadest sense, commercial disparagement involves advertising or other public statement including false or misleading information about a business that discourages consumers from buying from or dealing with that business. There… more

Appellate Court Upholds Preliminary Injunction and Issues Prior Restraint of Future Speech—A Rare Outcome That Challenges Long-Standing First Amendment Jurisprudence

In a recent decision upholding a prior restraint of speech, a New York appellate court ventured where few courts have tread in recent years. The opinion, which narrowed the lower court’s prior restraint, enjoined speech associating the… more

New Guidance in the Foreign Affairs Manual May Add Challenges to Visa Issuance at US Consular Posts Abroad

In August 2017, the U.S. Department of State made several revisions to the Foreign Affairs Manual (FAM) that are a direct result of the “Buy American and Hire American” Executive Order (EO) 13788, which the president signed on April… more

Client Alert: North Carolina Court of Appeals Issues Important Opinion on Commercial Lease Guaranties

Is a personal guaranty a separate agreement from the underlying contract it guarantees? The North Carolina Court of Appeals recently considered this issue in Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc.… more

Superintendency of Industry and Commerce establishes requirements for transforming the protection of an international trademark registration into a national application

The Office of the Superintendency of Industry and Commerce, by means of Resolution 46528 of 2017, established requirements for transforming the protection of an international registration in Colombia into a national application. In… more

3 Lessons from Federal Circuit Ruling on Computer Implemented Inventions

The fate of subject matter eligibility is far from certain today; however, there are a few application drafting takeaways from the Visual Memory case that can help in getting computer implemented inventions to allowance..… more

Google and Charlottesville Events Raise Questions for Companies Regarding Employee Political Views

Two recent major news stories again involve the intersection of politics with employment law. In the first matter, Google fired a programmer after he posted an internal document criticizing the company’s diversity initiatives… more

Political Speech, Discrimination and the Law: How Employers Should Respond to Charlottesville

The recent tragic events in Charlottesville, Virginia and other news regarding the activities of white supremacists and similar groups, have served as a rude awakening for many that our national reality has shifted. These events, which… more

Stand Up, Sit Down, Stand Up: Ninth Circuit Revives Spokeo No-injury Suit

In a decision surely welcomed by the plaintiffs’ bar, the US Court of Appeals for the Ninth Circuit held, on August 15, 2017, that a putative class action plaintiff has Article III standing as long as the plaintiff alleges just… more

California Supreme Court gives PAGA plaintiffs broad right to employee contact information

On July 13, 2017, the California Supreme Court issued its decision in Williams v. Superior Court (Marshalls of California), holding that in a representative action brought by an employee under the state's Private Attorneys General Act… more

Suing The CEO For Social Activism Is Likely To Be Challenging Under Nevada Law

Yesterday’s post concerned asked the question whether shareholders can sue CEOs for social activism. The answer is of course, yes. The more interesting question is whether shareholders will win the suit. To answer that question, one… more

NYSDFS Upcoming Deadline Fast Approaching: First Key Date is August 28, 2017

On March 1, 2017, the New York State Department of Financial Services’ (“DFS”) first-in-nation Cybersecurity Regulations for the purpose of protecting consumers and financial institutions from cyber-attacks went into effect (the… more

New Sales Tax Exemption for Georgia Fine Arts Non-Profits

On August 21, 2017, the Georgia Department of Revenue released Policy Bulletin SUT-2017-07 providing a sales tax exemption for sales of tickets, fees, or charges for admission to certain fine arts performances or exhibitions at a… more

Operation Choke Point: Justice Department Announces Program’s End

This article is part of a continuing series on Operation Choke Point. The first article contains a more detailed overview of the history, origin, and evolution of Operation Choke Point and analyzes a still ongoing lawsuit filed in… more

Executive Order Reinforces Measures to Reform Infrastructure Project Review

On August 15, President Trump signed an Executive Order calling for streamlined federal review of major infrastructure projects. The Order applies to federal approvals for infrastructure projects in the following sectors..… more

Federal Appellate Court Enforces Terms of Use, Including Arbitration Provision, Entered During Mobile Application Registration Process

On August 17, 2017, the U.S. Court of Appeals for the Second Circuit issued an important decision in a high-profile case against Uber Technologies that has broad implications for the enforceability of terms of use entered on mobile… more

UPC Scenarios Course: Case Studies on the New Unified Patent Court - Munich, 20 October 2017

This Autumn, the Forum Institut is holding a practical seminar entitled "UPC Scenarios: Case Studies on the New Unified Patent Court" in Munich, Germany… more

[Webinar] Renegotiating NAFTA, What's on the Table - September 6th, 1:00pm CT

The US, Mexico and Canada will engage in substantial negotiation to shape the terms in which the NAFTA region, (one of the most competitive regions in the world) will compete not only among themselves but with the rest of the world… more

Pennsylvania Federal Court Grants Motion To Dismiss Based On Lack Of Subject Matter Jurisdiction

Plaintiff RAD Manufacturing, LLC (“RAD”), a Delaware corporation with its principal place of business in Pennsylvania, and its insurer and reinsurer (as subrogees) brought an action in federal court in Pennsylvania against Advanced… more

Eleventh Circuit Moves Toward Bright Line Rule That Debtors Cannot Retain Real Property Post- Discharge Without Reaffirming the Mortgage Debt

Last year, Burr & Forman lawyers won a decisive victory in the Eleventh Circuit, in the case of In re Failla, 838 F.3d 1170 (11th Cir. 2016). In Failla, the Eleventh Circuit held that a debtor who files a statement of intention to… more

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