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Searching for Greener Pastures: SEC Insider Trading Enforcement in a Post-Newman Era

In United States v. Newman, the U.S. Court of Appeals for the Second Circuit dealt a substantial blow to federal prosecutors’ epic crackdown on insider trading by raising the bar for the government’s burden of proof in...more

Forum Selection For SEC Cases – District Court or Administrative Proceeding?

In late September the SEC filed a settled insider trading case against an associate of an unregistered investment adviser. In the Matter of Richard O’Leary, Adm. Proc. File No. 3-16166 (September 25, 2014). The next week the...more

Should Judicial Deference To The SEC Be Strong, Weak or Non-Existent?

This post yesterday by Broc Romanek alerted me to Judge Leonard P. Stark’s recent opinion in Trinity Wall Street v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 165431 (D. Del. Nov. 26, 2014). The case involved Wal-Mart’s...more

New Jersey Court Supports Peer Review Immunity for Hospital

On November 24, 2014, the New Jersey Appellate Division affirmed a lower court’s decision to dismiss a physician’s lawsuit against a hospital based on federal and state statutory immunity provisions that shield hospitals and...more

5th Circuit Denies Louisiana Public Service Commission’s Petition for Review of FERC’s Entergy Bandwidth Implementation Orders

On November 14, 2014, the U.S. Court of Appeals for the 5th Circuit denied the Louisiana Public Service Commission’s (LPSC) petition for review of various Federal Energy Regulatory Commission (FERC) orders on the...more

NAD Finds Fault with Taste Test’s Survey Universe and Test Locations

In a recent decision involving taste tests and preference claims for sweetened breakfast cereals, the National Advertising Division (NAD) once again reminds advertisers that advertising claims must be substantiated by...more

Beleaguered D.C. Taxpayers Achieve Another Success in Ongoing Challenges to the Methodology Used in the District’s Transfer...

On Friday, November 14, 2014, an administrative law judge (ALJ) issued three identical orders granting the taxpayer’s motion for summary judgment in Hess v. OTR, Shell v. OTR and ExxonMobil v. OTR. In these orders, the ALJ...more

Huerta v. Pirker—NTSB Says No More “Gray Area” for Drone Operations

Unmanned aircraft systems (UAS) have operated within an uncertain legal framework while players across a rapidly growing range of commercial industries — from energy to rail transport to forestry to all types of...more

Will The Courts Stop Deferring To SEC Interpretations?

In 1984, the U.S. Supreme Court announced a foundational principle of administrative law. When a court reviews an agency’s construction of a statute that it administers, the court should...more

The FCC’s Clarification of its Blast Fax Rules to “Solicited” Fax Ads under Siege

In an attempt to clear out the backlog of numerous pending petitions addressing how the FCC’s “Blast Fax” rules apply to consensual fax advertisement transmissions, the agency on October 30, 2014 issued an Order addressing...more

SEC’s Increased Use of Administrative Proceedings Draws Criticism and Legal Challenges

The SEC’s plan to bring more enforcement actions as administrative proceedings before its own administrative law judges rather than in the federal district courts — even in insider trading cases — has been drawing increasing...more

Courts Uphold Supplemental Assessment of Wells and Related Facilities/Improvements; and Validate Use of Cost Approach

The County of Kern Tax Assessor’s (“Assessor”) use of the cost approach to value to appraise new oil and gas wells for the purpose of levying supplemental assessments has been upheld by the Fifth District Court of Appeal. In...more

MoFo New York Tax Insights - Volume 5, Issue 11 - November 2014

In This Issue: - Court Orders Department of Finance to Release Corporate Tax Return Records to City Comptroller - ALJ Upholds State Tax Department Policy on Personal Liability of LLC Members for Sales...more

NLRB Reaffirms 2012 D. R. Horton Decision

The decision holds that arbitration agreements with class and collective action waivers violate the National Labor Relations Act. On October 28, the National Labor Relations Board (NLRB or the Board) held fast to its...more

FDA and the Center for Food Safety Reach Settlement Regarding FDA’s GRAS Rule

On October 20, 2014, FDA reached a settlement with the Center for Food Safety (“CFS”) in litigation pending in the U.S. District Court for the District of Columbia. This litigation is related to FDA’s rule for food additives...more

Seminal Decision Could Make it Harder for Publicly Traded Employers to Defeat Sarbanes-Oxley Whistleblower Claims

Long awaited in Sarbanes-Oxley Act (SOX) whistleblower circles, on October 9, 2014 the U. S. Department of Labor's Administrative Review Board (ARB) issued a split 2-1 panel decision in Fordham v. Fannie Mae, ARB No. 12-061,...more

Do Lawyers Professional Liability Policies fall within the “no prejudice” amendments to New York’s Insurance Law for late notice?

The New York State Insurance Department has issued an ambiguous opinion taking the position that the amendment to Insurance Law §3420(a)(5), changing the “no prejudice” rule, applies to all liability policies, which arguably...more

Fifth Circuit Holds that Texas Public Utility Commission Can Limit Ability of Intermittent Wind Generators to Sell Their Power...

On September 8, 2014, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”), in a 2-1 decision, reversed an opinion by the United States District Court for the Western District of Texas (“District Court”)...more

Corporate Responses to Investigative Requests by the Federal Government

In light of these new realities corporations face, the first step a company should take is to establish internal guidelines addressing interaction with government agents. Companies should have a response policy in place and...more

TCPA Hot Issues: Is the Scope of Consent Unlimited?

What constitutes valid consent under the Telephone Consumer Protection Act? A hot issue in TCPA litigation is the scope of consent necessary to place automated calls to consumers where the consumer has provided a cell phone...more

Arizona Enacts Limited Privilege For Insurance Self-Audits

Arizona has enacted a privilege applicable to voluntary compliance audits conducted by insurance companies. This “self-evaluative” privilege protects audit documents and testimony in civil and some administrative proceedings....more

Non-Incumbent Transmission Developers Win with Court’s Affirmance of FERC’s Order No. 1000

Non-incumbent transmission developers scored a big win last week. As we previously reported here, the D.C. Circuit Court of Appeals upheld FERC’s Order No. 1000. Among other things, Order 1000 mandated that a regional...more

D.C. Circuit Rejects Challenges to FERC’s Order No. 1000

The court turned back all challenges to FERC’s order, which imposed major regional transmission planning requirements, concluding that FERC has adequately justified the order and acted within its statutory authority....more

Revenue-Driven Licensing Activities Fail to Satisfy Domestic Industry Requirement for ITC Action

The ALJ terminated the ITC investigation upon granting respondent's motion for summary judgment for lack of domestic industry, finding that the complainant's (a licensing entity) patent-related activities were solely...more

Judge Rakoff’s “Sour Grapes”: SEC v. Citigroup Settlement Approved

On August 5, 2014, U.S. District Judge Jed Rakoff reluctantly approved a$285 million settlement in the SEC’s enforcement action against Citigroup. In SEC v. Citigroup, the SEC alleged that after Citigroup realized in early...more

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