Latest Updates

Update: Ban on Registering “Disparaging” Trademarks Unconstitutional

In a unanimous opinion based on differing rationale, the Supreme Court held that the federal prohibition on registering “disparaging” trademarks is unconstitutional. (Matal v. Tam, No. 15-1293)… more

Law Firms: The Future is NOW

What makes you a restaurant, instead of a steakhouse?… more

Luxembourg: CSSF Circular 17/658 - Compliance with the European Banking Authority’s Guidelines on Sound Remuneration Policies

On 16 June 2017, the Luxembourg Financial Regulator (Commission de Surveillance du Secteur Financier – CSSF) issued Circular 17/658 addressed to credit institutions and CRR investment firms on the compliance with the European Banking… more

12 months' imprisonment for breach of disclosure order

On 17 May 2017, the English Court handed down a 12 month prison sentence against an individual, Mrs Sandhu, for repeated breach of a disclosure order in Kimyani v Sandhu [2017] EWHC 1302 (Ch)… more

As Supreme Court Declines Opportunity to Review Closely Watched Union-Friendly Decision, Micro-Units Remain a Threat to Employers—For Now.

Representing the latest in a series of significant labor law developments in an already busy month of June, the United States Supreme Court declined to review the Fifth Circuit’s controversial, pro-union decision in Macy’s v. NLRB this… more

Avoiding State Law Pitfalls (Part 3 of 4)

This is the third hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws. Scenario #3 - The manager of a restaurant in Hartford, Connecticut calls you regarding an outspoken cook who… more

Of "Likes" and Luck: Social media and gaming regulations

It is increasingly common for companies to organise marketing promotions using social media, perhaps, due to the ease and relatively low cost of doing so. It may come as a surprise to some, that such seemingly innocuous promotions… more

Messaging Apps May Face New Obligations in Russia

The State Duma, Russia’s lower chamber of Parliament, has adopted amendments to the Federal Law on Information, Information Technologies and Information Protection of the Russian Federation (the Law) in its first reading. Under the… more

Montana to study customer-generator costs, benefits

Montana utility regulators are preparing to study the costs and benefits of distributed solar energy projects and other customer-generators. The results could reshape the way net-metered customers are charged for electric service… more

Treasury Report Proposes Revamping Post-Crash Financial Regulation

On June 12, 2017, the U.S. Treasury Department released a 150-page report (the Report) that recommends revamping many of the rules for banks and other financial services firms put in place after the 2008 financial crisis through the… more

US Supreme Court strikes death blow against forum shopping in mass actions by limiting personal jurisdiction

On Monday, the US Supreme Court continued its recent trend of contracting personal jurisdiction in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, No. 16-466, 582 U.S. ___ (2017) by holding that a… more

Get your ducks in a row if you want to challenge an adjudicator's decision

To err is human and, soon after the Construction Act was enacted, the courts sensibly recognised that a "slip rule" could be implied in adjudications to allow adjudicators to correct minor clerical and typographical errors in their… more

New York Times Obtains Copy of Draft Executive Order on Drug Prices; FDA Blogs that it is Working to Lift Barriers to Generic Drug Competition

On June 20, 2017, the New York Times reported that it had obtained a draft proposal of President Trump’s Executive Order on drug prices. The draft Executive Order, which has not been published, has been characterized as focusing on… more

New Rules: OCR Issues Internal Memorandum Impacting Enforcement Practices for Pending and Future Investigations

Earlier this month, the U. S. Department of Education, Office for Civil Rights’ Acting Assistant Secretary issued an internal memorandum to Regional Directors eliminating certain existing internal procedures and detailing new practices… more

Tips for Negotiating a Third-Party Subpoena in a Merger Investigation

Humana recently lost its effort to limit third-party discovery requests served by the Federal Trade Commission (FTC) in its ongoing Walgreens/Rite Aid investigation. Typically, negotiations over the scope of third-party subpoenas in an… more

The Past, Present, and Future of Government Regulation of Off-Label Communications – Part 3

This is Part 3 in my series exploring the history of FDA’s regulation of off-label communications, which has become newly relevant in light of the recent events highlighted in Part 1. In this installment, I continue describing how… more

Maine to Require Collection of Sales and Use Tax from Remote Sellers

The state of Maine has waded into uncharted territory with the passage of a law that requires out-of-state sellers to collect Maine sales and use tax on their sales into Maine even if they do not have a physical presence in the state… more

Ninth Circuit Holds That Despite ‘Known Damage’ Exclusion Insurer Had Duty Under Oregon Law to Indemnify and Defend Contractor When Property Damage Resulted From Contractor’s Negligent Repair of a Prior Negligent Act

Alkemade v. Quanta Indem. Co., 2017 U.S. App. LEXIS 6896 (9th Cir. Apr. 20, 2017) - In 1994, Adrianus and Rachelle Alkemade (the “Alkemades”) bought a house from Meltebeke Built Paradise Homes (“Meltebeke”). The home was built on… more

Mind the gap – New Size-of-Transaction Test in German merger control

New German competition law: Germany takes a pioneering role in adapting its competition law to the digital economy (Part 1) - On 9 June 2017, the 9th amendment of the German Act Against Restraints of Competition (ARC) entered into… more

The Continuing Stream of Website Accessibility Claims: A Trial Victory for a Plaintiff and a Dismissal for a Company

Over the past 18 months, the number of claims being filed over website accessibility has increased dramatically. Although courts continue to differ as to whether websites are places of public accommodation covered by Title III of the… more

Venezuela Mines for a Reversal in Federal Appeals Court

Venezuela is taking its fight over a $1.4 billion arbitral award to the District of Columbia’s federal court of appeals. The award capped a bitter dispute between Venezuela and Crystallex International Corporation, a Canadian mining… more

Your Daily Dose of Financial News

The latest Wall Street revolution appears to be driven in large part by companies like Creative Planning, a registered investment adviser in a suburb of Kansas City that’s helping lead a shift away from brokers and mutual fund… more

United States v. Burden

On June 19, 2017, the Second Circuit (Katzmann, Kearse, Livingston) issued a per curiam decision in United States v. Burden, et al., vacating the term of supervised release imposed on the defendants and remanding the case for… more

Second Circuit Holds that Contingent Equity-Based Compensation of Former Lehman Employees are Subordinate to Creditor Claims

In In re Lehman Bros. Holdings Inc. 855 F.3d 459 (2d Cir. 2017), the United States Court of Appeals for the Second Circuit affirmed a district court order subordinating the claims of former Lehman Bros. (“Lehman”) employees for… more

Supreme Court's Refusal Keeps Electronic Logging Device Rule on Track

In an earlier article (see Holland & Knight's alert, "Is There an Opening to Withdraw or Modify Electronic Logging Device Rule?," Jan. 13, 2017), we described the controversial final Electronic Logging Device (ELD) rule, published by… more

New Statistics Predict Drone Production Will Soar to $73.5 Billion Over Next 10 Years

According to recent studies and statistics, unmanned aerial systems (or drones) promise to have the most dynamic growth of any sector in the aerospace industry. With the ease of airspace regulations and operational limitations set by… more

United States Announces New Cuba Policy

On June 16, 2017, President Trump issued the "National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba" (the "Cuba Memorandum") describing the Administration’s policy on Cuba and… more

New Revenue Recognition Standards Reinforce Need for Precise Accounting Definitions in Transaction Documents

Revenue recognition standards adopted by the Financial Accounting Standards Board (FASB) will become effective over the next two years. In light of the changes, it is a good time to remind ourselves that accounting terms in transaction… more

Some States Forge Ahead On Salary Thresholds

Since last November, employers have waited with bated breath for a resolution of the status of the U.S. Department of Labor's salary-threshold increase for an executive, administrative, professional, or derivative "white collar"… more

Queen's speech paves the way for Brexit

The Queen's Speech has set out the UK Government's intended legislative programme for the next two years – and its focus is Brexit. While there is little to no new detail, there are some further hints of how the Government intends… more

Kyle Bass Ends with a Bang: Success in Final PTAB Decision

On June 7, 2017, Kyle Bass received his last final written decision in a long list of PTAB decisions rendered over the past two years as Kyle Bass sought to invalidate pharma patents. U.S. Patent No. 8,476,010 (the “’010 patent”) is… more

FERC Staff Questions Wind Farms on Calculation of PURPA’s One-Mile Rule

On June 9, 2017, Beaver Creek Wind II, LLC and Beaver Creek Wind III, LLC (together, “Beaver Creek”) responded to a deficiency letter from the Federal Energy Regulatory Commission (FERC or the “Commission”) staff seeking further… more

Health Care Reform Weekly Roundup – Issue 5

The Senate’s health care reform bill was released today, and we will report on that separately. In the meantime, below are key health care reform developments from the week of June 12th… more

Italy Addresses "Carried Interest" Tax Treatment

The Italian government has enacted Law Decree no. 50 ("Decree 50"), providing a set of new tax measures aimed at, among other things, attracting investments in Italy. Decree 50 was finally approved by the Italian Parliament on June 15… more

Lending Club Decision Provides Guidance For Bringing Section 11 Claims Based on Weaknesses in Internal Controls

We have been following defendants’ motions to dismiss in the In re Lending Club Securities Litigation class action, No 3:16-cv-02627-WHA, in the United States District Court for the Northern District of California (“the Lending Club… more

Employers May Wish to Update Electronic Access Policies to Assure Access to Employee's Emails with Counsel - New York Appellate Division Raises Questions About Possible Use of Work Product Privilege Even if Attorney-Client Privilege Does Not Apply

In most states, it is fairly clear that attorney-client privilege does not apply to communications between an employee and the employee's personal lawyer if the communications are made using the employer's email system and if the… more

Captain Morgan makes Admiral Nelson’s walk the plank

Smart & Biggar prevails at trial on behalf of Diageo in trade dress case. On June 12, 2017, the Federal Court issued its 99-page decision in Diageo Canada Inc v Heaven Hill Distilleries Inc et al, 2017 FC 571. The Court found… more

Queen’s Speech confirms (new) data protection law for the UK

The Queen’s Speech on 21 June 2017 confirmed the government’s plans for a new data protection law ensuring "that the United Kingdom retains its world-class regime protecting personal data"… more

Scope of Personal Jurisdiction In Nationwide and Multistate Class Actions Potentially Impacted By Supreme Court Decision In Bristol-Myers Squibb Case

This week the Supreme Court issued a new opinion in a case that involved the scope of personal jurisdiction in a nationwide mass action brought in a state court. Although it is not entirely clear the extent to which this decision may… more

Bottini v. GEICO: Parties to Bad Faith Action Not Bound by $30.8 million-dollar Verdict Without Appellate Review

For years, when a bad faith action was brought pursuant to a jury verdict in excess of policy limits in the underlying UM claim, everyone assumed the jury verdict was binding in the bad faith action. Then, Bottini v. GEICO resulted in… more

NYC’s “Freelance Isn’t Free Act” Might End Up Impacting Businesses Across the Country

Many workers are leaving the comfort and stability of traditional 9 to 5 jobs in favor of more flexible options. This paradigm shift may be new to the general public, but it certainly does not appear to be a passing fad. In fact, in… more

Credit reporting standards for civil judgments and tax liens to change July 1

An informative new American Banker podcast discusses recent and possible future changes to traditional credit scores, what they mean for industry, and possible industry responses. The podcast begins with a discussion of changes that… more

The Government Uses Multiple Tools to Fight Corruption

There are multiple ways to deal with an issue which can provide known and unforeseen benefits. Today we celebrate one of those as it was on this day in 1944, that President Franklin Roosevelt signed the GI Bill into existence. The… more

The Supreme Court Holds the Lanham Act’s Disparagement Clause Unconstitutional

In a closely watched decision, the eight participating members of the Supreme Court unanimously held that the so-called disparagement clause of the Lanham Act violates the First Amendment. The high-profile case of Matan v. Tam was… more

Tenth Circuit Finds Citizen Petition Denial to be "Clear Evidence" of Conflict Preemption

A U.S. Court of Appeals has held that a Food and Drug Administration (FDA) denial of a citizen petition can be “clear evidence” of conflict preemption under the test set forth by the Supreme Court in Wyeth v. Levine, 555 U.S. 555… more

Biofuel Mandates Escape Current EPA Scrutiny

The Renewable Fuel Standard (RFS) is a regulatory program administered by EPA that requires petroleum-based transportation fuel sold in the U.S. to contain a minimum volume of various categories of biofuels. The program’s mandates are… more

Is Software Patentable? Recent US Case Law Offers a Glimmer of Hope

Many inventions involve software, and many inventors are interested in protecting such inventions with a patent. The question is: are software inventions patentable? Based on recent cases in the United States, the answer is: yes… more

Clarifying the status of Gainful Employment and Borrower Defense to Repayment

During the second term of the Obama administration, the U.S. Department of Education promulgated several complex regulatory packages. Among the most significant and controversial were the Gainful Employment (“GE”) rule, effective July… more

The Board can Rely on a Party’s Arguments in an IPR, as Long as it Explains Why

In Outdry Technologies Corp. v. Geox S.P.A., [2016-1769] (June 16, 2017), the Federal Circuit affirmed the Board’s determination that claims 1–15 of U.S. Patent No. 6,855,171 would have been obvious over a combination of prior art… more

[Video]Entrepreneur Minute: Why Women Entrepreneurs Should Use Reward-Based Crowdfunding

Geri Stengel of Ventureneer discusses why women succeed with crowdfunding. Baker Donelson's Entrepreneur Minute features attorneys, entrepreneurs and business leaders sharing advice on starting, growing and running your… more

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