Baker Donelson

Government Employee Pensions May Now Be Fair Game for Cuts During Bankruptcy Restructuring

On Tuesday, December 2, 2013, Judge Steven Rhodes of the Eastern District of Michigan ruled that the City of Detroit, which filed for Chapter 9 bankruptcy protection in the U.S. Bankruptcy Court on July 18, 2013, met the…more

Chapter 9, Municipal Bankruptcy, Municipalities, Pensions, Public Employees

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Keep Your Eye On the Ball: Begin 2014 With a Renewed Effort at Compliance

While most of the financial world has been focused on the new CFPB mortgage rules that went into effect on January 10, the Bureau has continued its enforcement activities in other areas. On January 16, 2013, the CFPB announced…more

CFPB, Chief Compliance Officers, Client Referrals, Compliance, Enforcement

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Florida Court Rules Borrowers Who Surrender Property in Bankruptcy Can't Later Take it Back

Thanks to several recent United States Bankruptcy Court decisions in Florida, mortgage servicers should now expect borrowers who surrender their real property in bankruptcy to not contest foreclosure later. Since the bankruptcy…more

Bank of America, Bankruptcy Code, Borrowers, Chapter 13, Chapter 7

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Franchisees Flatline in Case Against Doctors Express

On April 1, 2015, the U.S. Court of Appeals for the Third Circuit thoroughly shot down claims brought by franchisees of Doctors Express Franchising. Those claims asserted that Doctors Express misrepresented initial start-up…more

Appeals, Breach of Contract, Dismissals, Franchises, Franchisors

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NIST Releases Guidelines for Vetting the Security of Mobile Applications Used by Businesses and Their Employees

Companies and their employees are increasingly using mobile devices and mobile applications (apps) to improve connectivity, communication and productivity. Unfortunately, these same companies may be unintentionally exposing…more

Cybersecurity, Cybersecurity Framework, Mobile Apps, Mobile Devices, NIST

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Power Company Plans to Capture Carbon Dioxide Emissions to Sell for Enhanced Oil Recovery

Cost overruns at a controversial coal-gasification plant under construction in Kemper County, Mississippi apparently have cost the CEO of Mississippi Power Company his job. Ed Day recently resigned and has been replaced by G…more

Carbon Capture and Sequestration, CEOs, Coal, Coal-Gasification, Greenhouse Gas Emissions

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OCS Operators and Lenders Beware - Comment Period Ending on BOEM Risk Management, Financial Assurance and Loss Prevention Notice of Proposed Rulemaking

Monday, November 17, 2014, is the last day to provide comments to the Bureau of Ocean Energy Management (BOEM) in connection with its Advance Notice of Proposed Rulemaking (ANPR) with respect to risk management, financial…more

BOEM, Department of the Interior, Leases, Mineral Leases, NOPR

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Some H4 Spouses of H-1Bs Can Apply for Work Cards Beginning May 26, 2015

On Tuesday, February 24, the United States Citizenship and Immigration Services (USCIS) announced that, effective May 26, 2015, USCIS will begin accepting applications for work authorization of H-4 spouses of two groups of H-1B…more

DHS, Employment Authorization Document, H-1B, H-4 Spouses, Spouses

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Interior Department Releases Final Rule Regulating Fracking on Federal and Tribal Lands

On Friday, March 20 the Obama Administration announced a final rule from the Bureau of Land Management (BLM) regulating hydraulic fracturing on federal and tribal lands. Key components of the rule, which will take effect in 90…more

Bureau of Land Management, Final Rules, Fracking, Government Land, Popular

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CFPB Shifts Focus to Auto Lending Industry

Auto lenders and servicers be advised: the Consumer Financial Protection Bureau (CFPB) turns its lonely eyes to you. On June 17, 2015, the CFPB brought an action in the Southern District of Ohio against Security National…more

Automotive Industry, Automotive Loans, CFPA, CFPB, Compliance

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Weigh In with Comments on CMS Proposed Rule for Medicare IRP by June 28

The Centers for Medicare and Medicaid Services (CMS) issued a proposed rule entitled "Medicare Program; Requirements for the Medicare Incentive Reward Program and Provider Enrollment" on April 29, 2013. This proposed rule,…more

CMS, Medicare, Proposed Regulation, Public Comment, ZPIC

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Managing Regulatory Risk in Nursing Home-Hospice Arrangements

Challenges of Nursing Home-Hospice Arrangements. As a nursing home resident's life expectation sunsets, transfer of the resident from the restorative care of a skilled nursing facility (SNF) to the palliative care of a hospice…more

Hospice, Nursing Homes

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Challenging the Denial of a Trademark Application in District Court Just Got More Expensive

In Shammas v. Focarino, the Eastern District of Virginia holds that an applicant must pay the government attorney's fees regardless of the applicant's success in a Section 1071(b) civil matter. …more

Applications, Attorney's Fees, Litigation Fees & Costs, Trademark Litigation, Trademark Trial and Appeal Board

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Mississippi Court Rules Discriminatory Exclusion is Unconstitutional

The Hinds County Chancery Court recently issued an opinion in AT&T Corp. v. Miss. Dep't of Revenue finding that Mississippi's dividend exclusion statute unlawfully discriminates against interstate commerce and is therefore…more

AT&T, Audits, Commerce Clause, Corporate Taxes, Department of Revenue

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Florida Law on Assignment of Rents Provisions

A recent bankruptcy decision from a New Jersey Bankruptcy Court (In re Surma, 504 B.R. 770 (Bankr. D.N.J. 2014)) has once again drawn attention to the effect assignment of rents provisions in mortgages can have, depending on…more

Assignment of Rent Clauses, Bankruptcy Code, Consumer Bankruptcy, Mortgages

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Buying and Selling Your HUD-Financed Long Term Care Project: Navigating the TPA Process

So you have refinanced your long term care facility with Federal Housing Authority (FHA)-insured financing – a nonrecourse, 30-year (or longer) loan at an amazingly low fixed interest rate. Yes, the process may have been…more

Change of Ownership, FHA, Financial Institutions, Financing, Healthcare

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Throw the DOL "Intern Fact Sheet" Away: Second Circuit Rejects DOL's Unpaid Intern Six-Factor and Adopts New "Primary Beneficiary" Standard.

The Department of Labor's ("DOL") six-factor test has long been the incontrovertible standard for determining whether employers are required to pay an intern under the Fair Labor Standards Act. That may no longer be the case…more

DOL, FLSA, Internships, Just Compensation, Minimum Wage

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Case Study of a CFPB Enforcement Action: In re JPMorgan Chase Bank, N.A.; and Chase Bank USA, N.A.

The Consumer Financial Protection Bureau (CFPB) brought an enforcement action against JPMorgan Chase Bank, N.A. and Chase Bank USA, N.A. (collectively, the Bank), pursuant to 12 U.S.C. §§ 5563 and 5565 with regard to their…more

Audits, CFPB, Chase Bank, Civil Monetary Penalty, False Billing

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Bill Introduced to Curtail the Stark Law's In-Office Ancillary Services Exception

On August 1, Rep. Jackie Speier (D-CA) introduced H.R. 2914, the Promoting Integrity in Medicare Act. The legislation would provide that the Stark Law's in-office ancillary services (IOAS) exception is not available for…more

CMS, Healthcare, HHS, Medical Devices, Medical Expenses

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IRS Issues Final Regulations for Charitable Hospitals

On December 29, 2014, the Internal Revenue Service and the Department of Treasury issued final regulations on requirements described in Section 501(r) for charitable hospitals exempt from federal income tax under Section…more

Charitable Organizations, CHNA, Exempt Organizations, Final Rules, Hospitals

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Federal District Court Rules Favorably for Medical Device Manufacturer in Off-Label Promotion Lawsuits

On April 13, 2015, in the case of Kathleen Hafer v. Medtronic, Inc., the United States District Court for the Western District of Tennessee issued a favorable opinion to a medical device manufacturer in the context of preemption…more

Leave to Amend, Manufacturers, Medical Devices, Medtronic, Misrepresentation

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New HUD Guidance for Long Term Care Industry

On April 25, 2014, HUD issued a new Mortgagee Letter (Mortgagee Letter 2014-06) that implements revised policies with respect to master leases and portfolios for HUD-insured financing of long term care facilities. This letter…more

Commercial Leases, Financing, HUD, Leases, Long Term Care Facilities

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The Inside Scoop: Top 10 Employer Mistakes According to the Solicitor of Labor

Meeting in our nation's capital and having a strong public policy group have some definite perks, such as getting the inside scoop on employment law trends directly from the Department of Labor's Solicitor. During a recent Baker…more

Best Management Practices, Corporate Counsel, DOL, Human Resources Professionals, Internships

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"The Stark Law has become a booby trap…" Says the Federal Appeals Court. Why Health Care Providers Should Heed the Warning

After reading through the hundreds of pages of the District Court's and Appeals Court's decisions, including the recent Fourth Circuit Court of Appeals decision that was filed on July 2, 2015, one thing is certain: Mixing one…more

Agency Agreement, Appeals, Compliance, Employment Contract, False Claims Act

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Student Loans: The Next CFPB Target?

There is approximately $1 trillion in total outstanding student loan debt in the United States, according to the Consumer Finance Protection Bureau. With the large amount of student loan debt nationwide as well as on a…more

CFPB, Student Loans

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EEOC v. Abercrombie & Fitch Continued: Did the Supreme Court Pave the Way for ADA Claims Based on Nonobvious Disabilities?

Earlier this month, the Supreme Court decided EEOC v. Abercrombie & Fitch, a Title VII case involving religious discrimination. While the case did not directly involve the Americans with Disabilities Act (ADA), the accommodation…more

Abercrombie & Fitch, ADA, Disability, EEOC, EEOC v Abercrombie

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Lessons Learned in Conservation Partnerships

The Internal Revenue Code has provided an incentive under Section 170(h) for charitable conservation gifts. Since at least 2002 there has been an interest in combining through partnership those land owners who may have little…more

Charitable Donations, Conservation, Conservation Easements, IRC, IRS

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NLRB's Quickie Election Rule Takes Effect - A New Threat for Employers: A Proactive Solution for You

The National Labor Relations Board (NLRB) released its final Rule on "quickie elections" in December, and they are now in effect. These rules come down heavily in favor of unions…more

Ambush Election Rules, Final Rules, NLRA, NLRB, Union Elections

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Wait A Minute? Is Pregnancy a Disability Now?

On July 14, 2014, the Equal Employment Opportunity Commission issued guidance relating to pregnancy discrimination. Since that time, in federal courts around the country the EEOC has filed multiple lawsuits on behalf of…more

ADA, EEOC, Employer Liability Issues, FMLA, PDA

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Out With the Old and in With the New…Guidance

During a Summit on Disability and Employment in February of this year, the White House announced the release of a new guide entitled Recruiting, Hiring, Retaining, and Promoting People with Disabilities, A Resource Guide For…more

Disabled, Hiring & Firing, Human Resources Professionals, New Guidance, Obama Administration

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Fines, fees, and the soaking of the poor

My client is a homeless veteran of the US Army. He served honorably, returned home and worked hard at a relatively low wage job, but unfortunately became involved with drugs and alcohol and his life went off the rails. During…more

Access To Justice

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Five Changes to the Tennessee Nonprofit Corporation Act That You Need to Know

The following are five important changes to the Tennessee Nonprofit Corporation Act (the Act) which became effective January 1, 2015: 1. Affirmative Disclosure Requirement to Report Up the Chain of Command; 2…more

Board of Directors, Corporate Conversions, Disclosure Requirements, Fiduciary Duty, Indemnification

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Hospitalitas Newsletter - Winter 2014

In This Issue: - Marriott Fined $600,000 For Wi-Fi Jamming - Franchisor Liability for Franchisee Employment Decisions: The NLRB’s General Counsel Addresses the Move to Expand the Joint-Employer Standard, and…more

Consent Decrees, Corporate Fines, Fast-Food Industry, Franchises, Hiring & Firing

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Implementing An Employee Wellness Program? Be Careful - The EEOC Is Interested

According to recent studies, over 90% of employers offer some type of wellness incentives to their employees. This is a significant jump from 2009 when only a little over half of employers had employee wellness programs, and the…more

Adverse Employment Action, Corporate Counsel, EEOC, Employer Liability Issues, Enforcement Actions

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Louisiana Legislative Update

The 2015 Louisiana legislative session is over, so let’s check on the four-pack of bills and the proposed tax increase. HB132 would have required individuals consuming alcoholic beverages at commercial establishments to have a…more

Breweries, Excise Tax, Proposed Legislation, Wine & Alcohol

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SCOTUS Jurisdiction Watch: Exhaustion of EEOC Administrative Remedies

On May 28, 2015, the United States Supreme Court is scheduled to meet and decide whether to grant or deny certiorari in Duble v. FedEx Ground Package System Inc., Supreme Court Case No. 14-1028. Petitioner, Duble, seeks review…more

Administrative Remedies, Discrimination, EEOC, FedEx, Retaliation

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New Opportunities in Cuba for U.S. Travel and Medical Companies – Cigars but not Commerce

After President Obama's announcement that his Administration will pursue a policy aimed at improving U.S.-Cuba diplomatic relations and ultimately eliminating the economic embargo on Cuba, the U.S. Treasury and Commerce…more

Amended Legislation, Banking Sector, Barack Obama, BIS, CACR

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Supreme Court Resolves Circuit Split Over TILA Rescissions Limitations Period

The United States Supreme Court ruled yesterday that a borrower relying on the Truth in Lending Act (TILA) to rescind his mortgage loan need only mail written notice of his intent to his lender within three years of the loan's…more

Bank of America, Countrywide, Mortgage Lenders, Mortgages, Refinancing

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$840 Million in Grants From Government Available to Providers

The Centers for Medicare & Medicaid Services (CMS) Innovation Center intends to award $840 million in grants to test methodologies to improve clinical practices and care. CMS's Transforming Clinical Practice Initiative (TCPI)…more

CMS, Federal Grants, Health Care Providers, Healthcare, TCPI

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Religious Protection or Religious Preference? – Supreme Court Rules in Abercrombie Headscarf Case

On Monday, June 1, the Supreme Court decided a religious discrimination case involving Abercrombie & Fitch and the EEOC. The Court held that "[a]n employee may not make an applicant's religious practice, confirmed or otherwise,…more

Abercrombie & Fitch, Corporate Counsel, Disparate Treatment, EEOC, EEOC v Abercrombie

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Class Action Attempt to Void Jimmy John's Non-Competes Goes Stale

Sandwich chain Jimmy John's has been in the news lately because of non-compete agreements that employees of its franchisees sign. This is not necessarily good news for Jimmy John's, but it does underscore some interesting…more

Class Action, Confidentiality Agreements, Employer Liability Issues, Fast-Food Industry, Franchisee

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Lender Involved Condemnation Part 2: Lender Concerns in Condemnation

This is the second installment in a series of articles related to lender-involved condemnations. The first installment provided a basic discussion of eminent domain and condemnation principles…more

Condemnation, Eminent Domain, Lenders, Risk Management, Takings

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CFPB Demonstrates its Broad Scope

While it has only just begun its third year, the CFPB has already left its mark with a series of recent enforcement actions. Below are four examples of how the CFPB has wielded the broad scope of its mandate…more

Bonuses, Capital One, CFPB, Debt-Relief Industry, Enforcement Actions

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NLRB Takes Aim at Non-Union Employers

The National Labor Relations Board (NLRB) recently handed down a series of decisions that challenged the fundamental tenet of the employee-employer relationship: at-will employment. This new affront came on the heels of a…more

At-Will Employment, Confidentiality, Internal Investigations, NLRA, NLRB

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Colorado's New Flood Impact Rules and the Effect on State or Local Control of the Oil and Gas Industry

On Monday, March 2, 2015, the Colorado Oil and Gas Conservation Commission (COGCC) adopted new rules to limit the impact of spills in flood-prone areas of Colorado, like the ones that occurred in the Front Range and eastern…more

COGCC, Flood Zones, New Regulations, Oil & Gas, Oil Spills

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North Carolina Legislators Look to Criminalize Disclosure of Fracking Fluids

As many states and the federal government look towards calling for greater disclosure and regulation of the chemicals used in hydraulic fracturing, state senators in North Carolina appear to be pushing against the tide in…more

Chemicals, Disclosure Requirements, Energy, Environmental Liability, Fracking

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Talks Resume in Ongoing Refinery Worker Strike

Representatives of the major oil companies and the United Steelworkers Union returned to the table on March 9, 2015 to resume talks regarding a three-year labor contract during a strike by workers that has now entered its sixth…more

Contract Negotiations, Oil & Gas, Refineries, Strike, Unions

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Texas Supreme Court Reinforces that Subcontractors May be Liable to Property Owners

On August 22, 2014, the Texas Supreme Court ruled that both the trial court and the court of appeals improperly dismissed a property owner's claim for negligence against a subcontractor for improper plumbing installation in…more

Breach of Duty, Contractors, Duty of Care, Negligence, Property Owners

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Alumni Profile: Joan Lucas, the General Counsel of Mississippi State University

Mississippi State University received national attention on the football field this year. Amy Champagne recently sat down with Baker Donelson Alum Joan Lucas, the General Counsel of Mississippi State University, to talk about…more

General Counsel, Interviews

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HIPAA Settlement Regarding Use of Internet Applications

On July 10, 2015, the U.S. Department of Health and Human Services, Office for Civil Rights (OCR) announced a settlement agreement with St. Elizabeth's Medical Center (SEMC) in Brighton, Massachusetts, regarding potential…more

Compliance, Corrective Actions, Data Breach, Data Privacy, Data Protection

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Liberalization of Louisiana Foreclosure Law: Cat on a Hot Tin Roof

Legislation liberalizing Louisiana foreclosure law was signed by Louisiana’s governor on June 5. House Bill 697 becomes effective on August 1, 2015. One particular area where lenders strive to use technology involves the…more

Banking Sector, Banks, E-Signatures, Electronic Records, Financial Institutions

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Transgender Litigant Challenges Exclusion of "Gender Identity Disorder" in Americans with Disabilities Act

The Americans with Disabilities Act, 42 U.S.C. § 12191, et seq. ("ADA"), expressly excludes from its protections individuals whose gender identity disorder is not the result of a physical impairment. The so-called "GID…more

Cabela's, Canada, Categorical Exclusions, Disability, EEOC

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FTC Ordered to Testify Regarding Data Security Standards in LabMD Dispute

The Federal Trade Commission (FTC) has suffered a significant setback in its ongoing dispute with LabMD, a now-closed medical laboratory that the FTC charged with failing to adopt reasonable data security practices that resulted…more

Data Breach, Data Protection, Electronic Medical Records, Enforcement Actions, FTC

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Sin of Omission: Ninth Circuit Splits with the Fifth, Finds That Failure to Include Addendum No. 2 Creates Ambiguity in Marine Builder's Risk Policy

In a marine builder's risk policy coverage dispute decided under Washington state law, the United States Court of Appeals for the Ninth Circuit reversed and remanded a grant of summary judgment for Underwriters…more

Commercial General Liability Policies, Reversal, Summary Judgment, Underwriting, Vessels

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Prepare for the July 1 SaVE Act Deadline

By July 1, 2015, all higher education institutions must be in full compliance with the Campus Sexual Violence Elimination (SaVE) Act amendments to the Clery Act, per the final regulations issued last October. See 34 C.F.R. Part…more

Amended Regulation, Clery Act, Colleges, SAVE Act, Title IX

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Business Succession Planning in the Current Tax Environment

Business succession planning in the current tax environment may require an adjustment in thinking from traditional planning. Traditional planning usually attempts to transfer ownership of the business to the next owner (often…more

Business Succession, Capital Gains, Estate Tax, Estate-Tax Exemption, Fair Market Value

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Governor Jindal Signs Bill Aimed at Ending Suit by Levee Board

On June 6, 2014, by signing into law SB 469, Louisiana Governor Bobby Jindal took an aggressive step towards stymieing the lawsuit recently filed by the Southeast Louisiana Flood Protection Authority-East against 97 oil and gas…more

New Legislation, Oil & Gas, Utilities Sector

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Deadline Approaching to Report Certain HIPAA Breaches to Federal Officials

The HIPAA Breach Notification Rule requires covered entities to notify the Secretary of the Department of Health and Human Services (HHS) if a breach of unsecured protected health information (PHI) is discovered. As most…more

Breach Notification Rule, Covered Entities, Deadlines, HHS, HIPAA

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Women's Initiative Newsletter - Issue 3, 2014

The Baker Donelson Women’s Initiative is pleased to present the latest issue of our newsletter. Our Newsletter Chairs, Jennifer Keller and Amy Mahone, have done a fantastic job and I know that you will find it useful and…more

Career Development, Client Services, Professional Development, Professional Networking, Women in the Law

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NLRB's Quickie Election Rule Takes Effect - A New Threat for Employers: A Proactive Solution for You

The National Labor Relations Board (NLRB) released its final Rule on "quickie elections" in December, and they are now in effect. These rules come down heavily in favor of unions…more

Ambush Election Rules, Final Rules, NLRA, NLRB, Union Elections

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HHS: Providers May Be Able to Subsidize Premiums For Uninsured in Marketplace Plans

An announcement October 30 from Health and Human Services Secretary Kathleen Sebelius could remove the first hurdle for providers wishing to offer premium support for individuals eligible for health insurance on the Health…more

Affordable Care Act, Anti-Kickback Statute, Health Insurance, Health Insurance Exchanges, Healthcare

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Beware! Long Term Care Class Actions are Coming

Long term care providers beware, class action suits are coming. Due to allegations of chronic understaffing, long term care providers are beginning to face massive class action lawsuits nationwide. The trend began in 2010, when…more

Arbitration Agreements, Class Action, Compensatory Damages, Healthcare, Healthcare Providers

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"The Stark Law has become a booby trap…" Says the Federal Appeals Court. Why Health Care Providers Should Heed the Warning

After reading through the hundreds of pages of the District Court's and Appeals Court's decisions, including the recent Fourth Circuit Court of Appeals decision that was filed on July 2, 2015, one thing is certain: Mixing one…more

Agency Agreement, Appeals, Compliance, Employment Contract, False Claims Act

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Volcker Rule Restricts Banks' Activities with Hedge Funds and Private Funds

On December 10, 2013, the Federal Reserve Board of Governors, the Federal Deposit Insurance Corporation, the Office of Comptroller of the Currency, the Securities and Exchange Commission and the Commodity Futures Trading…more

Banks, Dodd-Frank, Hedge Funds, Private Funds, Volcker Rule

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Transgender Complaints on the Rise: What Should Employers Do?

The President, the EEOC and the Justice Department have announced that gender identity discrimination is prohibited sex discrimination under Title VII. Since these declarations, the number of lawsuits alleging gender identity…more

Best Management Practices, Discrimination, DOJ, EEOC, Employer Liability Issues

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Legislation Enhances Florida Craft Beer Industry

While many states, including such craft beer meccas as Colorado, Oregon and Vermont, have been embracing the explosion of the craft beer culture in America, Florida has been waging war against craft beer in true prohibition-era…more

Anheuser-Busch, Beer, Breweries, Economic Development, Entrepreneurs

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Texas Becomes First State to Ban Fracking Bans

On May 18, 2015, Texas Governor Greg Abbott signed House Bill 40 into law, putting restrictions on the ability of municipalities to regulate the oil and gas industry in their jurisdictions. Because the bill passed both the Texas…more

Denton Fracking Bill, Fracking, Fracking Bans, New Legislation, Oil & Gas

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Florida Court Rules Borrowers Who Surrender Property in Bankruptcy Can't Later Take it Back

Thanks to several recent United States Bankruptcy Court decisions in Florida, mortgage servicers should now expect borrowers who surrender their real property in bankruptcy to not contest foreclosure later. Since the bankruptcy…more

Bank of America, Bankruptcy Code, Borrowers, Chapter 13, Chapter 7

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Women's Initiative Newsletter - Issue 3, 2014

The Baker Donelson Women’s Initiative is pleased to present the latest issue of our newsletter. Our Newsletter Chairs, Jennifer Keller and Amy Mahone, have done a fantastic job and I know that you will find it useful and…more

Career Development, Client Services, Professional Development, Professional Networking, Women in the Law

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Fracking Revenue Offsets Education Costs

Many colleges across the country are now looking directly to oil and gas as a source of much needed revenue for education. With cut-backs to state budgets, many states are strongly considering whether to allow hydraulic…more

Engineering, Fracking, Oil & Gas, Students

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Keeping the Benefit of Your Bargain: Strengthening Your Right to Prepayment Premiums

Anyone involved in commercial lending transactions is familiar with provisions of loan agreements that provide for compensation to the lender in the event the indebtedness is paid in advance of the contemplated due date. These…more

Commercial Bankruptcy, Commercial Leases

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An Overview of the Lingering Uncertainty Surrounding the "Guns in Trunks" Law

Background The volume of gun sales has been increasing steadily across the United States over the last few years, and more citizens than ever are obtaining state-issued concealed firearms licenses. State governments, as well as…more

Employer Liability Issues, Guns-in-Trunks Legislation, Legislative Agendas, Private Property, Private Property Rights

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CMBS Pre-negotiation Agreements

Pre-negotiation agreements ("PNA’s") are contractual arrangements in which a lender and a distressed borrower agree to negotiate the terms of a potential workout or settlement. The primary purpose of a PNA is to foster an open,…more

Borrowers, CMBS, Lenders, Loan Agreements, Pre-Negotiation Agreements

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U.S. Visa Systems Down Globally – DOS Continues to Work on a Fix – Expect Delays!

The following bulletin was published by the Department of State (which oversees all consulates/embassies), advising of a global glitch that has stopped all U.S. visa issuance worldwide. The issue has not resolved since the alert…more

Delays, Department of State, Visas

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Supremes Expand Liability Under FHA

On June 25, 2015, the Supreme Court of the United States, by a margin of 5-4, held that disparate impact claims are cognizable under the Fair Housing Act. Texas Department of Housing and Community Affairs v. The Inclusive…more

ADEA, Affordable Housing, Civil Rights Act, Disparate Impact, FHA

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Transocean/BP Settlement Ends Texas Law Insurance Dispute: What Are the Possible Future Implications?

A lesser known but interesting legal issue regarding the 2010 BP oil spill was whether an operator (BP) could recover insurance proceeds as an additional insured under its driller's (Transocean) insurance policies for…more

Additional Insured, BP, Gulf Oil Spill, Insurance Litigation, Master Service Agreement

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Employment Reform Legislation Passes Tennessee Legislature

On April 16, 2014, the Tennessee General Assembly, at the urging of Baker Donelson, passed significant employment litigation reform that will benefit employers throughout Tennessee. The bill places caps on compensatory damages,…more

Damages, Employer Liability Issues, Non-Pecuniary Losses, Pain and Suffering

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Iran – Don’t Forget the General License!

Iran entered into a historic nuclear agreement with the U.S. and other world powers on July 14th 2015. The agreement will allow the licensing of the export, re-export, sale, lease or transfer to Iran of commercial passenger…more

Aircraft, Airlines, Compliance, Due Diligence, Exports

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Q&A on .bank Registration

By now, many members of the banking community have heard from their trade associations that there will be a new generic Top Level Domain (gTLD) released by ICANN (the Internet Corporation for Assigned Names and Numbers) for…more

Banking Sector, gTLD, ICANN

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Was Asbestos Used in Your Drilling Mud Program?

With the bankruptcy of dozens of traditional defendants in asbestos litigation, plaintiffs' attorneys have been creative in pursuing claims in previously untapped areas. One such area is alleged oilfield worker exposure via…more

Asbestos, Asbestos Litigation, Chemicals, Hazardous Substances, Oil & Gas

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No Damage for Delay Clauses Have Limits on Louisiana Public Works Projects

The Louisiana Public Works Act prohibits “no damage for delay” clauses in contracts for publicly bid projects. Recently, the State of Louisiana tested the boundaries of that prohibition by including a provision in a public…more

Change Orders, Construction Contracts, Construction Industry, Construction Site, Contractors

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Sixteen Attorneys General from Coast to Coast Seek CFPB Regulation on Arbitration Clauses

Attorneys General (AG) from 16 states – Delaware, Kentucky, Massachusetts, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington – have joined forces…more

Arbitration, Attorney Generals, CFPB, Consumer Financial Contracts, Mandatory Arbitration Clauses

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Prepare for the July 1 SaVE Act Deadline

By July 1, 2015, all higher education institutions must be in full compliance with the Campus Sexual Violence Elimination (SaVE) Act amendments to the Clery Act, per the final regulations issued last October. See 34 C.F.R. Part…more

Amended Regulation, Clery Act, Colleges, SAVE Act, Title IX

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UPDATE: CFPB Publishes Rule Authorizing it to Supervise Auto Finance Companies

On June 10, 2015, the CFPB published a new regulation that has been dreaded by the auto finance industry for more than a year. Following up on the rule it proposed in June 2014, the CFPB published a final rule on June 10, which…more

Automotive Industry, Automotive Loans, Car Dealerships, CFPB, Consumer Lenders

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Same-Sex Marriage and Employment Discrimination: The Future of Sexual Orientation Bias Claims

On June 26, 2015, the Supreme Court of the United States legalized same-sex marriage throughout the country. In Oberfell v. Hodges, the Court held that Section 1 of the Fourteenth Amendment – commonly referred to as the Equal…more

Anti-Discrimination Policies, Benefit Plan Sponsors, Corporate Counsel, DOMA, Domestic Partner Benefits

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New HUD Guidance for Long Term Care Industry

On April 25, 2014, HUD issued a new Mortgagee Letter (Mortgagee Letter 2014-06) that implements revised policies with respect to master leases and portfolios for HUD-insured financing of long term care facilities. This letter…more

Commercial Leases, Financing, HUD, Leases, Long Term Care Facilities

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ABA Resolution 105 on Punitive Damages Is Dead for Now

On the eve of the ABA's Annual Meeting next week, the ABA's Standing Committee on Medical Professional Liability announced its withdrawal of proposed Resolution 105 from consideration by the ABA House of Delegates. The proposed…more

ABA, FDA, Healthcare, Healthcare Professional Liability Policies, Medical Devices

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Why Take a Deed in Lieu of Foreclosure? Why Not?

So you're headed for receivership and foreclosure, when the borrower rep or your counsel asks, "What about a deed in lieu?" "I don't know," you think. "Getting a receiver appointed and foreclosing is what I'm most familiar…more

Deed of Trust, Foreclosure, Mortgages

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Women's Initiative Newsletter - Issue 2, 2014

The Baker Donelson Women’s Initiative is pleased to present the latest issue of our newsletter. Our Newsletter Chairs, Jennifer Keller and Amy Mahone, have done a fantastic job and I know that you will find it useful and…more

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Litigation Alert For Businesses With Tennessee Operations

On March 9, 2015, a Tennessee trial court struck down Tennessee's statutory limitation on the amount of non-economic damages recoverable in personal injury cases. The court held that the legislature's attempt to limit…more

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Women's Initiative Newsletter - Issue 2, 2014

The Baker Donelson Women’s Initiative is pleased to present the latest issue of our newsletter. Our Newsletter Chairs, Jennifer Keller and Amy Mahone, have done a fantastic job and I know that you will find it useful and…more

See All Updates »

Louisiana Public Bid Law Update: Two Big Wins in the Louisiana First Circuit for Unsuccessful Bidders Disputing Public Bid Awards

Last month, the Louisiana First Circuit Court of Appeal issued two decisions in favor of unsuccessful bidders on public projects. In Phylway Const., LLC v. Terrebonne Parish Consol. Government, 2013-1589 (La. App. 1 Cir…more

Attestation Deadlines, Bids, Construction Contracts, Construction Industry, Contractors

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Summary of Senate Bill 2622 - Mississippi's Construction Lien Law

This is the first in a series of alerts exploring how this new law will affect your business. Look for more information regarding this law in the coming weeks. The bill has passed out of conference but it must be enrolled and…more

Construction Liens, Materialman's Lien

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Top 10 Recommendations to Avoid Litigation

Nursing homes and assisted living facilities have been targeted by plaintiff's attorneys who advertise heavily in an effort to solicit plaintiffs for malpractice suits…more

Medical Liability

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NLRB's Quickie Election Rule Takes Effect - A New Threat for Employers: A Proactive Solution for You

The National Labor Relations Board (NLRB) released its final Rule on "quickie elections" in December, and they are now in effect. These rules come down heavily in favor of unions…more

Ambush Election Rules, Final Rules, NLRA, NLRB, Union Elections

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To the Woodshed: Self-Defense, Defense of Others and Retaliatory Discharge

The workplace can be very tumultuous. Employees working in close quarters inevitably have disagreements, and some employees prove themselves to be disagreeable troublemakers. Workplace bullying is considered by some to be such a…more

Adverse Employment Action, Appeals, At-Will Employment, Bullying, Employer Liability Issues

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Spotlight on Bankruptcy: Basic Bankruptcy for Mortgage Litigators

Mortgage litigators often face a variety of bankruptcy issues. There are three main chapters of bankruptcy that affect the average mortgage litigator: Chapter 7, Chapter 13 and Chapter 11. Upon the filing of Chapter 7, Chapter…more

Automatic Stay, Consumer Bankruptcy, Mortgages

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Service Contractor's Bid Protest Blocked by Lack of LEED Experience

The lack of LEED experience cost an incumbent service contractor the ability to protest the award of a federal contract to its rival, according to an opinion released on April 22, 2014 by the United States Court of Federal…more

Bid Protests, Bids, Contractors, LEED Certified, LEED Rules

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Even Under the ADA, Some Jobs Require Being On-Site; Court of Appeals Decision Offers Lessons

Last month in EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc), the United States Court of Appeals for the Sixth Circuit found that a Ford employee was not qualified for her job under the ADA because she was not…more

ADA, Attendance, EEOC, Essential Functions, Ford Motor

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CFPB: Reverse Mortgages Subject to Scrutiny

In a likely preview of an area subject to future regulation and enforcement, on June 4, 2015, the Consumer Financial Protection Bureau (CFPB) released results of a focus group study on reverse mortgage advertisements and also…more

Advertising, CFPB, Consumer Lenders, Mortgage Lenders, Mortgages

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NLRB's Quickie Election Rule Takes Effect - A New Threat for Employers: A Proactive Solution for You

The National Labor Relations Board (NLRB) released its final Rule on "quickie elections" in December, and they are now in effect. These rules come down heavily in favor of unions…more

Ambush Election Rules, Final Rules, NLRA, NLRB, Union Elections

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EEOC Proposed Rule to Shed Light on Wellness Programs under the ADA

On April 20, 2015, the U.S. Equal Employment Opportunity Commission ("EEOC") published a proposed new rule that would amend the regulations for Title I of the Americans with Disabilities Act ("ADA") as they relate to employer…more

ADA, Affordable Care Act, Benefit Plan Sponsors, EEOC, ERISA

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Supreme Court Resolves Circuit Split Over TILA Rescissions Limitations Period

The United States Supreme Court ruled yesterday that a borrower relying on the Truth in Lending Act (TILA) to rescind his mortgage loan need only mail written notice of his intent to his lender within three years of the loan's…more

Bank of America, Countrywide, Mortgage Lenders, Mortgages, Refinancing

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NIST Releases Guidelines for Vetting the Security of Mobile Applications Used by Businesses and Their Employees

Companies and their employees are increasingly using mobile devices and mobile applications (apps) to improve connectivity, communication and productivity. Unfortunately, these same companies may be unintentionally exposing…more

Cybersecurity, Cybersecurity Framework, Mobile Apps, Mobile Devices, NIST

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Increased SEC and FINRA Scrutiny on Confidentiality Provisions

Over the past several months, confidentiality provisions included in settlement agreements, employment or independent contractor contracts, or in other documents, have come under increased scrutiny in the financial industry. In…more

Broker-Dealer, Confidentiality Agreements, Dodd-Frank, DOJ, Financial Institutions

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Fissured Employment – the Government Has Set Its Sights on You

For centuries, businesses have used subcontracting arrangements, franchise agreements or otherwise contracted out the performance of some functions third parties. The business reasons for such actions are obvious: it allows for…more

Franchises, Joint Employers, Right to Control, Subcontractors

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OSHA Update: A Tale of Two Proposed OSHA Regulations

Back in February, we mentioned that public comments were being accepted on OSHA's proposed rule that would require employers with more than 250 employees to electronically report to OSHA their OSHA 300 (the injury and illness…more

Compliance, OSHA, Recordkeeping Requirements, Reporting Requirements, Workplace Injury

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Fifth Circuit Protects Franchisors, For Now

In the wake of the National Labor Relations Board General Counsel’s announcement that he intends to pursue unfair labor practice charges against a franchisor, franchisors are on high alert. With the NLRB considering an upheaval…more

Employee Rights, Franchises, Franchisors, Joint Employers, McDonalds

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SCOTUS Alert: Same-Sex Marriage is a Go, and ACA Stays Alive

Two big decisions in two days from the Supreme Court. Read on for details. Same-Sex Marriage is a Go! Today, the United States Supreme Court issued a monumental decision in Obergefell, et al. v. Hodges, et al.; Case No. 14-556…more

Affordable Care Act, Anti-Discrimination Policies, Anti-Harassment Policies, Discrimination, Employee Benefits

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Guns At Work In Tennessee: What Can Be Banned, What Can Probably Be Banned, And What Is Left

The Tennessee legislature's recent enactment of what has been widely named the "Guns in the Trunk" statute, codified at Tennessee Code Annotated § 39-17-1313, has sparked debate across the state about the statute's impact on an…more

At-Will Employment, Concealed Carry Permit, Firearms, Guns-in-Trunks Legislation, Hiring & Firing

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CFPB Seeking Public Comment on Proposed Amendments to 2013 Mortgage Rules

The CFPB is currently seeking public comment on several proposed amendments to its final rules issued in 2013, which went into effect in January 2014. The comment period is open through March 16, 2015, so mortgage servicers, or…more

CFPB, Final Rules, Mortgage Servicing Rules, Proposed Amendments, Public Comment

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“One Shelf, One Standard” Continues to Evolve – USCG Issues Final Rule Regarding Electrical Equipment in Hazardous Locations

The United States Coast Guard (“USCG”), continuing its “One Shelf, One Standard” approach to regulating the Outer Continental Shelf (“OCS”) recently issued a Final Rule enacting new regulations governing electrical equipment in…more

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Accommodations for Pregnant Employees Reaches Supreme Court

What accommodations must employers provide to pregnant employees? On December 3, 2014, the Supreme Court heard oral argument in a case, Young v. United Parcel Service, that may help clarify the answer to this question. The…more

ADA, EEOC, Employer Liability Issues, PDA, Pregnancy

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New Wage Regulations Dramatically Increase the Number of Hourly Workers

Yesterday, the U.S. Department of Labor (DOL) proposed new regulations that will dramatically increase the number of employees who must be paid on an hourly basis. Before today, employees who earned $455.00 per week (or…more

DOL, Exempt-Employees, FLSA, NPRM, Wage and Hour

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DOL Gives States More Control Over Self-Insured Health Plans

On November 6, 2014, the U.S. Department of Labor, Employee Benefits Security Administration (DOL) published Technical Release 2014-01, which provides technical guidance to States concerning stop-loss insurance. Stop-loss…more

DOL, Employer Group Health Plans, Health Insurance, Self-Insured Health Plans

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Is Forum Shopping for Equal Rights on the Horizon?

Race discrimination claims brought by members of the racial majority have long been recognized as legitimate claims under Title VII of the Civil Rights Act of 1964 (Title VII) and various state discrimination laws. However,…more

Civil Rights Act, Forum Selection Clause, Forum Shopping, Racial Discrimination, Title VII

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Spotlight on Manufacturers: Tennessee's 2015 Tax and Related Legislation

Manufacturing is a primary driver of our economic growth. As such, those businesses involved with fabricating, processing, converting and producing goods in today's marketplace must be ever-vigilant regarding new laws that could…more

Brownfield Grants, Contractors, Data Storage Providers, Department of Revenue, Distributors

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DOL Presents: The Ghost of Violations Past

On May 28, 2015, the Department of Labor (DOL) issued proposed guidance for President Obama's infamous Executive Order 13673 – "Fair Pay and Safe Workplaces" (the Order). Although the stated purpose of the Order is "to increase…more

ADA, ADEA, Agricultural Workers, Arbitration, Compliance

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Meet the New Sharif: Bankruptcy Court Jurisdiction in the Wake of Wellness International

The 1978 Bankruptcy Code was hailed as a comprehensive bankruptcy overhaul, designed, in part, to eliminate the uncertainty as to which matters could be handled by a bankruptcy referee depending on the outcome of a summary…more

Article III, Bankruptcy Code, Bankruptcy Court, Jurisdiction, SCOTUS

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Don't Get Caught Out in the Cold: Winter Wage Law Woes

Now that winter will soon be officially here and many parts of the country are expecting snow in the near future, employers should be mindful of how winter weather impacts wage laws. Employers should review their inclement…more

Corporate Counsel, Employer Liability Issues, Employment Policies, Severe Weather, Wage and Hour

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OSHA Issues Guidance Regarding Transgender Employees

As transgender issues seem to dominate the headlines, another federal agency has stepped into the debate. Last week, the Occupational Health and Safety Administration (OSHA) issued guidance strongly urging employers to give…more

EEOC, Employee Restrooms, Employee Rights, Equal Access, Gender Discrimination

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HHS Issues Guidance on Permitted Remuneration for Prescription Refill Reminders in the Absence of Patient Authorization

On September 19, the Health and Human Services Department (HHS) issued guidance on the effect of the January 25, 2013 Final Rule provision about remuneration related to prescription refill reminders and medication adherence…more

Compliance, HHS, HIPAA, HIPAA Omnibus Rule, Refill Reminders

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CFPB Proposes New Rules for Payday Loans

On March 26, 2015, the Consumer Financial Protection Bureau (the Bureau) proposed new regulations on short-term loans, commonly known as "payday loans," which are typically issued by non-depository institutions. The Bureau…more

CFPB, Debt Collection, Payday Loans, Proposed Regulation, SBREFA

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Georgia Supreme Court Rules Construction Defects Satisfy CGL Policy's 'Occurrence' Requirement

Homeowners sued their homebuilder alleging that the concrete foundations of their homes were improperly constructed. As a result, it was alleged that the foundations were failing, and the defects in the foundations had caused…more

Commercial General Liability Policies, Construction Defects, Occurrence, Property Damage

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NLRB Says Individual Gripes About Wages are "Inherently Concerted" Activity

Many employers consider it appropriate to discourage employees from discussing compensation with their coworkers. Particularly in non-unionized environments, employers may not think twice before disciplining employees for…more

Employer Liability Issues, Employment Policies, NLRB, Protected Activity, Protected Concerted Activity

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CFPB Shifts Focus to Auto Lending Industry

Auto lenders and servicers be advised: the Consumer Financial Protection Bureau (CFPB) turns its lonely eyes to you. On June 17, 2015, the CFPB brought an action in the Southern District of Ohio against Security National…more

Automotive Industry, Automotive Loans, CFPA, CFPB, Compliance

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Playing Zone(-ing) Defense

ZONE(-ING) DEFENSE --- With March Madness in full swing, now is a great time to review how local zoning ordinances can turn a mortgage servicer’s foreclosure layup into a blocked shot. Many U.S. states rely on a judicial process…more

Foreclosure, Local Ordinance, Mortgages

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Uncivil Civil Investigative Demands

Responding to civil investigative demands (CIDs) issued by the CFPB is one of the larger challenges faced by financial institutions in acclimatizing to the new regulatory agency. Moreover, the CFPB has demonstrated that it will…more

CFPB, Civil Investigation Demand, Federal Rules of Civil Procedure, Investigations

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The National Labor Relations Board Expands Union Access to Witness Statements

On June 26, 2015, in a split 3-2 decision, the National Labor Relations Board (Board), overturned the 37-year-old standard protecting the confidentiality of witness statements taken by employers during workplace investigations…more

Anheuser-Busch, Balancing Test, Confidentiality, Hiring & Firing, NLRB

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Builder Beware! Does Your Project Infringe Someone’s Copyright?

On Friday, November 8, 2013, the United States Circuit Court of Appeals for the Fifth Circuit, which comprises Texas, Louisiana, and Mississippi, affirmed a $3.2 million damages award for copyright infringement in favor of Kipp…more

Architects, Construction Disputes, Copyright, Copyright Infringement, Infringement

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Redskins Trademarks Cancelled - Found Disparaging to Native Americans (Again)

On June 18, 2014, in Amanda Blackhorse et al. v. Pro-Football, Inc., Cancellation No. 92046185 (TTAB 6/18/2014), the Trademark Trial and Appeals Board (TTAB) cancelled six trademark registrations issued between 1967 and 1990 for…more

Blackhorse v Pro-Football, Disparagement, Football, Laches, Native American Issues

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The New China and Your Company's Intellectual Property

The Chinese economy has changed dramatically in the past two, five, and even 20 years, but its intellectual property (IP) laws have only very recently developed to somewhat better deal with the new reality. The new Chinese…more

China, Corporate Counsel, Gray Market Goods, Intellectual Property Litigation, State-Owned Enterprises

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Mississippi Supreme Court Upholds the Net Operating Income Method for Determining True Value of Affordable Housing

In a much anticipated decision, on October 17, 2013, the Mississippi Supreme Court upheld the Income Approach to Valuation of Affordable Housing, which is a significant victory for affordable housing developers and the larger…more

Affordable Housing, Appraisal, Subsidies, Valuation

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A Gathering Storm in the Dietary Supplement World

This past February, the New York State Attorney General's office accused four major retailers of selling fraudulent and possibly dangerous herbal supplements and demanded that they remove the products from their shelves. The…more

Dietary Supplements, Distributors, FDA Warning Letters, GNC, Labeling

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Alabama Legislative Update – Sine Die – The 2014 Legislative Session Ends

The Alabama Legislature adjourned sine die on Thursday, April 3, 2014 at 7:30 p.m. In previous years, sessions have ended just minutes before midnight on the 30th legislative day. This year was different. As soon as both…more

Ethics, Fraud, Legislative Agendas, Lobbying

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Fourth Circuit Joins Other Federal Courts in Broadly Interpreting the Scope of Title VII Retaliation Claims

On May 7, 2015, the Fourth Circuit ruled that an isolated instance of harassment, if "extremely serious," can create a hostile work environment, and that complaining about such harassment constitutes protected activity under…more

Employer Liability Issues, Harassment, Hostile Environment, Protected Activity, Title VII

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Bill Introduced to Curtail the Stark Law's In-Office Ancillary Services Exception

On August 1, Rep. Jackie Speier (D-CA) introduced H.R. 2914, the Promoting Integrity in Medicare Act. The legislation would provide that the Stark Law's in-office ancillary services (IOAS) exception is not available for…more

CMS, Healthcare, HHS, Medical Devices, Medical Expenses

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Georgia Supreme Court Rules Construction Defects Satisfy CGL Policy's 'Occurrence' Requirement

Homeowners sued their homebuilder alleging that the concrete foundations of their homes were improperly constructed. As a result, it was alleged that the foundations were failing, and the defects in the foundations had caused…more

Commercial General Liability Policies, Construction Defects, Occurrence, Property Damage

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Louisiana Town Files Second Suit to Block Oil and Gas Well

The Town of Abita Springs filed a suit on December 1, 2014, seeking a declaratory judgment to block the drilling of an oil and gas well about 40 miles north of New Orleans into the Tuscaloosa Marine Shale. Earlier this year,…more

Declaratory Judgments, Oil & Gas, Tuscaloosa Marine Shale, Well Drilling

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Spotlight on Louisiana Tax Amnesty: Better to Ask for Forgiveness?

For a two-month period beginning on September 23, 2013 and ending on November 22, 2013, eligible Louisiana taxpayers may apply to wipe the slate clean with the Louisiana Department of Revenue (Department) by voluntarily paying…more

Department of Revenue, Income Taxes, Interest Rates, Tax Amnesty

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The Supremes Tell the Eleventh Circuit: No Lien Stripping

On June 1, 2015, the United States Supreme Court issued a unanimous ruling resolving a split amongst circuit courts in which the 11th circuit was the singular minority, addressing the permissibility of “lien-stripping” in…more

Bank of America, Bank of America v. Caulkett, Chapter 7, Consumer Bankruptcy, Dewsnup

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Can You Keep a Secret? The SEC Says to Ask Carefully

Employers have a lot to be worried about. Employees are given access to trade secrets, customer lists, financial accounts, and other highly sensitive, confidential information. Most employers attempt to deter improper use of…more

Confidential Information, Confidentiality Agreements, Contract Drafting, Enforcement Actions, Internal Investigations

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HUD Issues New Handbook for Long Term Care Financing Under Section 232

On May 22, 2014, HUD published a new Handbook covering its Section 232 Healthcare Insurance Mortgage Program, which insures HUD-approved lenders against financial loss from mortgage loan defaults in loans to qualifying long term…more

Healthcare, HUD, Long Term Care Facilities, Long-Term Care, Mortgages

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Sanity in Florida? New Ruling Sheds Some Light on the Business Records Exception

On May 6, 2015, Florida's Third District Court of Appeal finally weighed in on an important tactic relied on by servicers in residential foreclosure actions. In Bank of America, N.A. v. Delgado, No. 3D13-910 (Fla. 3d DCA May 6,…more

Appeals, Bank of America, Business Records, Foreclosure, Mortgage Servicers

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Litigation Alert For Businesses With Tennessee Operations

On March 9, 2015, a Tennessee trial court struck down Tennessee's statutory limitation on the amount of non-economic damages recoverable in personal injury cases. The court held that the legislature's attempt to limit…more

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Summary of Senate Bill 2622 - Mississippi's Construction Lien Law

This is the first in a series of alerts exploring how this new law will affect your business. Look for more information regarding this law in the coming weeks. The bill has passed out of conference but it must be enrolled and…more

Construction Liens, Materialman's Lien

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Time Saver Savvy – June 2015

This month's tips are from some of the women who are part of Baker Donelson's newest group of shareholders. "Learn when it may be best to say no. Not every opportunity presented to you is appropriate to take. By being selective…more

Professional Development

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HIPAA Settlement Underscores the Vulnerability of Unpatched and Unsupported Software

The title of this alert, which comes straight from the Department of Health and Human Services Office for Civil Rights' (OCR) announcement of its most recent settlement, again underscores the critical need for covered entities…more

Business Associates, Covered Entities, HIPAA, OCR, Patient Confidentiality Breaches

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On My Bookshelf – Sponsoring Women: What Men Need to Know

For this month's book review, Tim Lupinacci, the leader of the Firm's Financial Services Department, and Staci Pierce, an associate in Financial Services, provide their points of view on Sponsoring Women by Ida O. Abbott…more

Corporate Social Responsibility, Diversity, Leadership, Women's Initiative

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Spotlight on Alabama: Retailers Will be Subject to Sales Tax Because of Deliveries into Local Jurisdictions

For many years, retailers subject to Alabama's sales tax have correctly avoided collecting sales taxes for those Alabama cities and counties where the retailer is not located but where the retailer nevertheless makes deliveries…more

Nexus, Retailers, Sales & Use Tax

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Recent, Significant Changes in Florida's Law of Foreclosure

On June 7, 2013, Florida Governor Rick Scott signed into law House Bill 87, now known as Chapter 2013-137, which provides for substantial changes in mortgage foreclosures filed in Florida…more

Consumer Bankruptcy, Foreclosure, Mortgages, New Legislation

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Class Action Fairness Act (CAFA) is Challenged Before the U.S. Supreme Court

A significant protection afforded by the 2005 Class Action Fairness Act (CAFA) is being challenged before the U.S. Supreme Court in State of Mississippi ex rel Jim Hood, Attorney General v. AU Optronics Corp, et al., No…more

CAFA, Class Action, Federal Jurisdiction, SCOTUS

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Georgia Supreme Court Rules Construction Defects Satisfy CGL Policy's 'Occurrence' Requirement

Homeowners sued their homebuilder alleging that the concrete foundations of their homes were improperly constructed. As a result, it was alleged that the foundations were failing, and the defects in the foundations had caused…more

Commercial General Liability Policies, Construction Defects, Occurrence, Property Damage

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Spotlight on Mississippi: Domestic Asset Protection Trust Legislation

Mississippi recently became the 16th state to pass legislation permitting the creation of domestic asset protection trusts. The new law was effective July 1, 2014. Under the new Mississippi Act, a domestic asset…more

Trusts

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Patent Protection for Isolated Genetic Sequences Upheld in Australia

Last year in AMP v Myriad Genetics, the U.S. Supreme Court concluded that isolated, naturally occuring DNA are not patent eligible, which caused considerable consternation in the biotech community. However, this does not appear…more

AMP v Myriad, Australia, BRCA, DNA, Genetic Materials

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Texas Supreme Court Leaves Trespass Question Unanswered

Last week, the Texas Supreme Court issued its opinion in Environmental Processing Systems LC v. FPL Farming Ltd., case number 12-0905, and specifically declined to address the issue of whether wastewater that migrates under…more

Appeals, Farms, Hazardous Waste, Trespass, TX Supreme Court

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Supreme Court Puts Raging Bull Copyright Back in the Ring

This month, the U.S. Supreme Court in Petrella v. Metro-Goldwyn-Mayer, Inc. revived copyright infringement claims based on the motion picture Raging Bull, and in the process may have killed the "discovery rule" for when a…more

Copyright, Copyright Infringement, MGM, Petrella v. MGM, Raging Bull

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The Telephone Consumer Protection Act – FCC Approves New Rules

John met Susan in a bar. Enamored, he later asked her friend Mary for Susan's telephone number. The next day John called Susan on his iPhone to ask her out on a date. Sadly, John did not get the girl. Instead, he got sued by…more

ATDS, Cell Phones, FCC, Mobile Devices, Popular

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NLRB's Quickie Election Rule Takes Effect - A New Threat for Employers: A Proactive Solution for You

The National Labor Relations Board (NLRB) released its final Rule on "quickie elections" in December, and they are now in effect. These rules come down heavily in favor of unions…more

Ambush Election Rules, Final Rules, NLRA, NLRB, Union Elections

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Long Term Care Lenders Beware: Could You Be Liable For Patient Care?

Plaintiffs are increasingly seeking to extend to remote lenders liability for alleged negligent care of residents in long term care facilities. The current strategy is to use "alter ego and veil piercing" theories which claim…more

Alter Ego, Commercial Bankruptcy, Health Care Providers, Healthcare, Lender Liability

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Tennessee Proposes Fracturing Practices for Oil and Gas Wells

The Tennessee Department of Environment and Conservation's (TEDC) proposed rules regarding fracturing practices for oil and gas wells have received approval by the Joint Government Operation Committee in the Tennessee General…more

Fracking, Oil & Gas

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The Alcohol Tobacco Tax and Trade Bureau Frequently Asked Questions: Growlers

What are the concerns for filling a growler? A growler is either a bottle or a large glass. The distinction is solely dependent on the manner in which the brewer fills the container. When is a growler a bottle? A growler is a…more

Beer, Breweries, Compliance, Labeling, Point-of-Consumption

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Taking Time to Give Thanks and Review Your Estate Plan

As you take time to give thanks this holiday season, it may be time for you to consider how you will show your family your appreciation. Keeping your estate planning documents and beneficiary designations up-to-date is one of…more

Estate Planning, Year-End Planning

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Sparta to Memphis: Bruce McMullen Shares His Path to Success

Bruce McMullen is a shareholder in Baker Donelson's Memphis office and focuses his practice in health care law and commercial litigation. Over the years, Bruce has built a successful career, earning an AV® Preeminent™ Peer…more

Career Development

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New Georgia Law Sets Deadlines for Deeds, Relaxes Attestation Requirements

If you thought you knew the decades-old Georgia requirements for attesting a security instrument or recording a deed under power, think again. These basic rules are changing on July 1, 2015, and the changes are expected to have…more

Deeds, Mortgage Servicing Rules, Mortgages, Notarization, Recording Requirements

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Redefining the Term "Spouse" Under the FMLA

For employers that operate in states that do not recognize same-sex marriage and for those that operate in multiple states, the Family Medical Leave Act's (FMLA) application to same-sex partners of employees has been a constant…more

DOL, DOMA, Final Rules, FMLA, Same-Sex Marriage

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SCOTUS Reinforces ERISA Fiduciaries' Continuing Duty To Monitor Plan Investments

Recently, in Tibble v Edison International, 575 U.S.(2015), the United States Supreme Court addressed the application of the Employment Retirement Income Security Act (ERISA) statute of limitations for violations of fiduciary…more

401k, Beneficiaries, Employee Benefits, ERISA, Fiduciary Duty

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“Materially Less”: The Foreclosure Deficiency Standard in Tennessee

Like many other states, Tennessee allows a creditor who has conducted a foreclosure sale of real property secured by a deed of trust or mortgage to recover "a deficiency judgment in an amount sufficient to satisfy fully the…more

Debt, Deficiency Judgments, Foreclosure, Mortgages

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Texas City Council Rejects Fracking Ban

On July 16, 2014, the City Council of Denton, Texas rejected an ordinance that would prohibit hydraulic fracturing. The initiative will now be considered by the Denton residents in the November election. Earlier this year, the…more

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OSHA Concentrates its Health Care Facility Inspections on Key Areas, but Specific Requirements Remain Elusive

On June 25, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) issued a press release outlining its focus areas for health care facility inspections. Musculoskeletal disorders (MSDs), blood-borne…more

DOL, General Duty Clause, Healthcare, HHS, Hospitals

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Alabama Legislative Update – Sine Die – The 2014 Legislative Session Ends

The Alabama Legislature adjourned sine die on Thursday, April 3, 2014 at 7:30 p.m. In previous years, sessions have ended just minutes before midnight on the 30th legislative day. This year was different. As soon as both…more

Ethics, Fraud, Legislative Agendas, Lobbying

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Supreme Court Broadens Scope for Housing Discrimination Claims

Beneficial intent will not shield lenders and other financial services companies from discrimination claims under the Fair Housing Act (FHA), according to a recent decision by the United States Supreme Court. Specifically, the…more

ACLU, Affordable Housing, Discrimination, Disparate Impact, FHA

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11th Circuit Affirms No Indemnity for a Subcontractor's Deceased Employee Under Employee Exclusion Contained in General Contractor's Commercial General Liability Insurance Policy

On April 24, 2014, the United States Court of Appeals for the 11th Circuit issued an opinion affirming summary judgment deny a claim by the estate of a subcontractor's employee against a general contractor's commercial general…more

Commercial General Liability Policies, General Contractors, Indemnification, Subcontractors, Wrongful Death

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Five Things to Consider When Expanding in a Global Market

More and more oil and gas companies, based in the United States or elsewhere, are considering a venture into foreign waters (or land). Following is a list of just a few issues that could impact expansion efforts. …more

Compliance, FCPA, Foreign Currency, Fraud, Oil & Gas

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The Effect of California's New Privacy Laws on Your Company

California Governor Jerry Brown signed into law on September 30, three amendments to California's privacy laws of which every business must be aware. The amendments to the Civil Code (i) significantly broaden the scope of…more

Breach Notification Rule, Data Protection, Identity Theft, Jerry Brown, New Legislation

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Mitigating Successor Liability in Long Term Care Acquisitions

As in any business acquisition, purchasers in the long term care industry can encounter potential liability due to employment claims, seller violations of representations and warranties under the purchase agreement, tort…more

Long-Term Care, Succession Planning, Successor Liability

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Georgia Legislature Clarifies Service of Process Statute for Georgia Domestic and Foreign Corporations Doing Business in Georgia

On July 1, 2013, clarifying changes to Georgia’s Civil Practice Act went into effect regarding how a plaintiff can accomplish service of civil process against a Georgia corporation, as well as foreign corporations doing business…more

Foreign Corporations, New Legislation, Service of Process

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Inclement Weather Issues:

This year’s winter weather has wreaked havoc on many parts of the country. Employees have been unable to travel to work, and businesses throughout major cities have shut down their offices. Office closures are costly to…more

Severe Weather, Wage and Hour, Wages

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Immigration Corner: Major E-Verify Changes Proposed

On June 8, 2015 USCIS released the details of proposed major changes to the E-Verify program. The notice, found here, proposes several major changes to the E-Verify program and seeks public comments until August 7, 2015. These…more

Compliance, E-Verify, FAR, I-9, Section 3

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Proposed Amendments to Outer Continental Shelf Regulations Clear Up the Meaning of a Safe Drilling Margin

On April 17, 2015, the Bureau of Safety and Environmental Enforcement (BSEE) published proposed amendments to regulations for offshore well operators in the Outer Continental Shelf (OCS). The proposed amendments address numerous…more

BSEE, Offshore Drilling, Oil & Gas, Outer Continental Shelf, Proposed Amendments

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On My Bookshelf: Flash Boys

In the spring of 2007, Brad Katsuyama, a successful New York banker at the Royal Bank of Canada (RBC), thought something was wrong with his computer. He was trying to buy 10,000 shares of Intel, offered at $22. But the moment he…more

Flash Boys, High Frequency Trading, SEC, Wall Street

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Employers of Home Care Workers to Begin Paying Overtime in January 2015

The United States Department of Labor issued a final rule, extending the protections of the Fair Labor Standards Act (FLSA) to home health care workers who provide care for the sick, disabled or elderly, otherwise known as…more

Caregivers, Employee Rights, FLSA, Unpaid Overtime, Wage and Hour

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What is Implicit Bias and Why Should Employers Care?

In 2014, Baker Donelson's Diversity Committee instituted a mandatory firm-wide training program on "implicit bias" which has continued into 2015. While the Firm regularly conducts training in how to prevent discrimination,…more

American Bar Association, Bias, Discrimination, Employment Discrimination, Harassment

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U.S. Supreme Court Bartlett Decision in Favor of Generic Drug Manufacturers

In a 5-4 decision, the United States Supreme Court held that state law design defect claims against manufacturers of generic pharmaceuticals are preempted by federal law when the claim hinges on the adequacy of the drug's…more

Design Defects, Drug Manufacturers, Generic Drugs, Pharmaceutical, Preemption

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DOL Gives States More Control Over Self-Insured Health Plans

On November 6, 2014, the U.S. Department of Labor, Employee Benefits Security Administration (DOL) published Technical Release 2014-01, which provides technical guidance to States concerning stop-loss insurance. Stop-loss…more

DOL, Employer Group Health Plans, Health Insurance, Self-Insured Health Plans

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On My Bookshelf – Sponsoring Women: What Men Need to Know

For this month's book review, Tim Lupinacci, the leader of the Firm's Financial Services Department, and Staci Pierce, an associate in Financial Services, provide their points of view on Sponsoring Women by Ida O. Abbott…more

Corporate Social Responsibility, Diversity, Leadership, Women's Initiative

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Hospitalitas Newsletter - Spring 2015

In This Issue: - The Next Hot Trend in Economic Development: Craft Beer - Class Action Attempt to Void Jimmy John’s Non-Competes Goes Stale - Use of Customer Survey Data Upheld in Hotel Franchise…more

Ambush Election Rules, Beer, Breweries, Class Action, Contract Terms

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SCOTUS Alert: Same-Sex Marriage is a Go, and ACA Stays Alive

Two big decisions in two days from the Supreme Court. Read on for details. Same-Sex Marriage is a Go! Today, the United States Supreme Court issued a monumental decision in Obergefell, et al. v. Hodges, et al.; Case No. 14-556…more

Affordable Care Act, Anti-Discrimination Policies, Anti-Harassment Policies, Discrimination, Employee Benefits

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Women's Health Tip – June 2015

Jackson, Mississippi, attorney Anna Powers has traveled the world and lived in some of the globe's most fascinating places, picking up bits and pieces of fitness and nutrition practices along the way that shape her very active,…more

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A Not-So-Happy Valentine's Day for UAW and Its Continued Efforts to Feel the Love

On February 14, 2014, the results of a NLRB-conducted unionization vote by Volkswagen workers at the Chattanooga, Tennessee, plant were released. Plant workers voted 712-626 against representation by the United Auto Workers…more

Automotive Industry, NLRA, NLRB, Unions

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Alabama Homestead and Personal Property Exemptions Increased

On June 11, 2016, Governor Bentley (Alabama) signed into law ACT No. 2015-484 which became effective that same day. The law increases the personal property exemption available to individual debtors and surviving spouses to…more

Debtors, Homestead Exemption, Personal Property, Surviving Spouse

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Eleventh Circuit Case Delivers Big Win for Contractors Seeking Insurance Coverage

The U.S. Court of Appeals for the Eleventh Circuit has issued an important opinion that is good for contractors making claims on general liability policies, and not so good for the insurers issuing those policies. Specifically,…more

Appeals, Commercial General Liability Policies, Construction Disputes, Construction Industry, Contractors

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Federal District Court Rules Favorably for Medical Device Manufacturer in Off-Label Promotion Lawsuits

On April 13, 2015, in the case of Kathleen Hafer v. Medtronic, Inc., the United States District Court for the Western District of Tennessee issued a favorable opinion to a medical device manufacturer in the context of preemption…more

Leave to Amend, Manufacturers, Medical Devices, Medtronic, Misrepresentation

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Supreme Court Leaves Post-Patent Expiration Royalty Rule in Place

The U.S. Supreme Court today in Kimble v. Marvel Entertainment, LLC upheld the longstanding Brulotte rule that a patent owner cannot continue to receive royalties for sales made after its patent expires. In a 6-3 decision, the…more

Brulotte, IP License, Kimble v Marvel Enterprises, Marvel Comics, Patent Litigation

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Hospitalitas Newsletter - Spring 2014

In This Issue: - Your Grandmother Doesn’t Work for Free: Volunteer and Intern Positions Under Closer Scrutiny - Excessive Celebration – Penalty Declined - Four Crisis Management Lessons from the…more

Class Action, Crisis Management, DOL, FLSA, Fourth Amendment

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NLRB's Quickie Election Rule Takes Effect

In previous articles, we have explained how the National Labor Relations Board (NLRB) has taken the position that franchisors and franchisees are joint employers of the employees, setting the stage for large-scale union…more

Ambush Election Rules, NLRB, Union Elections, Unions

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Get Your Ducks in a Row: Thoughts on Foreclosure of Securitized Debt in Alabama

Alabama remains one of the simplest jurisdictions in the country for commercial foreclosure. Nevertheless, foreclosure in Alabama can quickly become expensive if a lender does not carefully follow the letter of the law and…more

Debt, Foreclosure, Securitization

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Women's Initiative Newsletter - Issue 2, 2014

The Baker Donelson Women’s Initiative is pleased to present the latest issue of our newsletter. Our Newsletter Chairs, Jennifer Keller and Amy Mahone, have done a fantastic job and I know that you will find it useful and…more

See All Updates »

Rig Counts Drill Down as Oil Prices Fall

As a follow up to last week's blog entitled Consequences of the Falling Price of Oil and LOGA's Perspective, this week we focus on the impact of the falling oil prices on rig counts. As noted on Baker Hughes' website, Baker…more

Market Participants, Oil & Gas, Oil Prices

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CFPB's Latest Supervisory Report Signals Enforcement Trends

The CFPB's most recent Supervisory Highlights report, which covers the second half of 2014, confirms that the bureau is continuing an aggressive focus on debt collection, overdraft fees, mortgage origination, fair lending and…more

Ability-to-Repay, CFPB, Consumer Financial Contracts, Consumer Financial Products, Consumer Lenders

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Q & A: ICANN's Global Trademark Clearinghouse

The Internet Corporation for Assigned Names and Numbers (ICANN), the body tasked with coordinating and preserving global Internet stability, is embarking on its largest expansion ever of the domain name system. Last week, on…more

Domain Names, gTLD, ICANN, Registration, Trademark Clearinghouse

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Maintaining the Magic: Disney's Use of Confidentiality Restrictions to Promote Character Integrity

When your business depends on a carefully-crafted public image, you do not want the public to know how hard you work to maintain that image. These days, that includes preventing your employees from revealing too much via Twitter…more

Actors, Confidentiality Agreements, Corporate Counsel, Disney, Disney World

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CFPB Report Likely Precursor to Regulatory Limits on Mandatory Arbitration Provisions

The Consumer Financial Protection Bureau (CFPB) released a study in March 2015 criticizing the use of mandatory, pre-dispute arbitration agreements in financial contracts with consumers. As expected, the CFPB found arbitration…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Consumer Financial Contracts

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For Convenience Store Chains in Georgia, Leasing Business Operations to Separate Entity Can Maximize Recovery in Condemnations

In Georgia, when a convenience store chain both owns and operates a location, it should lease business operations to a separate legal entity to maximize recovery in the event of a partial condemnation. In limited…more

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"The Stark Law has become a booby trap…" Says the Federal Appeals Court. Why Health Care Providers Should Heed the Warning

After reading through the hundreds of pages of the District Court's and Appeals Court's decisions, including the recent Fourth Circuit Court of Appeals decision that was filed on July 2, 2015, one thing is certain: Mixing one…more

Agency Agreement, Appeals, Compliance, Employment Contract, False Claims Act

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U.S. Institutes New International Design Applications

In February 2015, the United States completed steps to become a member of the Hague Agreement Concerning the International Registration of Industrial Designs (Hague Agreement). The Hague Agreement went into effect for the United…more

Design Patent, Hague Agreement, Patent Applications, Patent Cooperation Treaty, Patents

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Legislative Update for Brand Manufacturers Distributing in Alabama

On April 28, 2015, the Alabama House of Representatives passed SB-80, thereby abolishing the highly criticized theory of innovator liability adopted in Wyeth, Inc. v. Weeks, ___ So.3d___, 2014 WL 4055813 (Ala. Aug. 15, 2014)…more

Inventors, Liability, Manufacturers, New Legislation

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Hydraulic Fracturing Continues to Produce More Legislation and Oversight

As U.S. oil and gas production has dramatically increased due to the more frequent use of hydraulic fracturing and horizontal drilling to release tight oil and gas, new state legislation and rules around oil and gas drilling…more

Energy, Fracking, Natural Gas, Oil & Gas

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Recent Changes in Off-Site Employment Requirements

There have been recent changes in the immigration world regarding the requirements for off-site employment. Both the H-1B visa category and the L-1B visa category, which are two of the more common employment-based visa…more

Administrative Appeals, DOL, H-1B, LCA, Location Changes

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President Obama Signs Several Bills Aimed at Cybersecurity

On December 18, 2014, President Barack Obama signed several significant cybersecurity bills into law. These bills include the Federal Information Security Modernization Act, the Border Patrol Agent Pay Reform Act, the…more

Barack Obama, Cybersecurity, New Legislation, Popular

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Georgia Supreme Court Rules Construction Defects Satisfy CGL Policy's 'Occurrence' Requirement

Homeowners sued their homebuilder alleging that the concrete foundations of their homes were improperly constructed. As a result, it was alleged that the foundations were failing, and the defects in the foundations had caused…more

Commercial General Liability Policies, Construction Defects, Occurrence, Property Damage

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Four Tips for Responding to a Civil Investigative Demand: A Report from the Trenches

Simply being served with a Civil Investigative Demand (CID) means enormous financial strain and reputational risk for some companies. On top of that, in this heightened regulatory environment, federal agencies seem to be trying…more

Attorney-Client Privilege, CID, Data Retention, Document Productions, Enforcement Actions

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On My Bookshelf – The Other Fellow May Be Right: The Civility of Howard Baker

It was a beautiful fall afternoon in Knoxville and 100,000 Big Orange fans milled around Neyland Stadium shortly before kickoff. One of them was a then-young partner in a then medium-sized law firm, dressed in jeans and sneakers…more

Howard Baker

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Tennessee Benefit Corporation Statute

Governor Haslam recently signed into law the "For-Profit Benefit Corporation Act" (the FPBCA), which has now been assigned Public Chapter No. 497. The FPBCA will take effect on January 1, 2016 and will allow for-profit…more

B Corporation, Corporate Governance, Emerging Growth Companies, New Legislation, Public Benefits

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Top 10 Recommendations to Avoid Litigation

Nursing homes and assisted living facilities have been targeted by plaintiff's attorneys who advertise heavily in an effort to solicit plaintiffs for malpractice suits…more

Medical Liability

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New Texas Law Hopes to Eliminate the Barriers to Recycling Fracking Wastewater

Following a unanimous vote of approval in both the House and Senate and signature of Governor Rick Perry, House Bill 2767 will go into effect in Texas on September 1, 2013…more

Drilling Waste Disposal, Fracking, Oil & Gas, Wastewater

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Proposed Outer Continental Shelf Oil and Gas Leasing Program

On Wednesday, January 28, as required by the Outer Continental Shelf Lands Act, Secretary of the Interior Sally Jewell and Bureau of Ocean Energy Management (BOEM) Director Abigail Ross Hopper announced the next step in the…more

BOEM, Mineral Leases, Offshore Drilling, Oil & Gas, Outer Continental Shelf

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Spotlight on Tennessee: Ruling Highlights Importance of State Income Tax Considerations for Section 338 Elections

In Spotlight on Tennessee: Letter Ruling Addresses Treatment of a Section 338(h)(10) Election, dated July 10, 2014, we examined how Tennessee treats the federal election under Internal Revenue Code Section 338(h)(10) for…more

Excise Tax, Franchise Taxes, Income Taxes, State Taxes

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Top 10 Questions Employers Have About the Newly Proposed Overtime Regulations

Employers across the country are trying to get their arms around the implications of the Department of Labor's (DOL) proposed changes to the overtime regulations. These proposed changes, which were published on June 30, 2015,…more

Compliance, Consumer Price Index, Corporate Counsel, DOL, FLSA

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EEOC Implements Digital Charge Pilot Program

The Equal Employment Opportunity Commission (EEOC) recently announced the launch of its ACT Digital pilot program that allows the EEOC to communicate directly with employers through an online portal. Phase I of ACT Digital…more

ACT Digital, EEOC

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Florida to Government: Your Lien Doesn't Foreclose This Old Mortgage

The Florida Supreme Court has ruled that cities cannot create ordinances that subject prior recorded mortgages to their subsequently recorded county or governmental liens, because it conflicts with Florida's state statutes on…more

Foreclosure, Liens, Local Ordinance, Mortgages, Municipalities

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CFPB Refines Mortgage Rules to Resolve Conflicts and Inconsistencies

On October 15, 2013, the Consumer Financial Protection Bureau (CFPB) issued an interim final rule and bulletin refining and making technical changes to certain provisions of its January 2013 mortgage rules. The interim rule…more

CFPB, Conflict Resolution, Consumer Bankruptcy, FDCPA, Mortgages

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Texas Supreme Court Reinforces that Subcontractors May be Liable to Property Owners

On August 22, 2014, the Texas Supreme Court ruled that both the trial court and the court of appeals improperly dismissed a property owner's claim for negligence against a subcontractor for improper plumbing installation in…more

Breach of Duty, Contractors, Duty of Care, Negligence, Property Owners

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Women's Initiative Newsletter - Issue 3, 2014

The Baker Donelson Women’s Initiative is pleased to present the latest issue of our newsletter. Our Newsletter Chairs, Jennifer Keller and Amy Mahone, have done a fantastic job and I know that you will find it useful and…more

Career Development, Client Services, Professional Development, Professional Networking, Women in the Law

See All Updates »

Summary of Senate Bill 2622 - Mississippi's Construction Lien Law

This is the first in a series of alerts exploring how this new law will affect your business. Look for more information regarding this law in the coming weeks. The bill has passed out of conference but it must be enrolled and…more

Construction Liens, Materialman's Lien

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Five Changes to the Tennessee Nonprofit Corporation Act That You Need to Know

The following are five important changes to the Tennessee Nonprofit Corporation Act (the Act) which became effective January 1, 2015: 1. Affirmative Disclosure Requirement to Report Up the Chain of Command; 2…more

Board of Directors, Corporate Conversions, Disclosure Requirements, Fiduciary Duty, Indemnification

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Waive Goodbye to Confirmation Hurdle! Recent Decision from the Georgia Court of Appeals Gives Lenders an Alternate Route to Collect Post-Foreclosure Deficiency From Guarantors

By most accounts, a decision from the Georgia Court of Appeals last September represents a sea change in the law governing judicial confirmation of foreclosure sales and post-foreclosure deficiency claims. Indeed, the Court's…more

Appeals, Deficiency Judgments, Foreclosure, Guarantors, Mortgages

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Tennessee Benefit Corporation Statute

Governor Haslam recently signed into law the "For-Profit Benefit Corporation Act" (the FPBCA), which has now been assigned Public Chapter No. 497. The FPBCA will take effect on January 1, 2016 and will allow for-profit…more

B Corporation, Corporate Governance, Emerging Growth Companies, New Legislation, Public Benefits

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2014 EEOC Enforcement and Litigation Statistics: Retaliation Claims on the Rise

On February 4, the EEOC released a comprehensive set of private sector data for fiscal year 2014. The data tables provide detailed breakdowns of the 88,778 charges of workplace discrimination filed with the agency. While the…more

EEOC, Enforcement Statistics, Retaliation

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Between the "Like" Button and a Hard Place: Understanding the Implications of Hulu's Latest Argument Against User's Privacy Allegations

Companies commonly utilize Facebook as part of their online social media advertising strategy. Companies should revisit this strategy in light of a recent finding in the Northern California U.S. District Court (In re Hulu…more

Advertising, Data Protection, Facebook, Hulu, Online Videos

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Lessons Learned in Conservation Partnerships

The Internal Revenue Code has provided an incentive under Section 170(h) for charitable conservation gifts. Since at least 2002 there has been an interest in combining through partnership those land owners who may have little…more

Charitable Donations, Conservation, Conservation Easements, IRC, IRS

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Volcker Rule Restricts Banks' Activities with Hedge Funds and Private Funds

On December 10, 2013, the Federal Reserve Board of Governors, the Federal Deposit Insurance Corporation, the Office of Comptroller of the Currency, the Securities and Exchange Commission and the Commodity Futures Trading…more

Banks, Dodd-Frank, Hedge Funds, Private Funds, Volcker Rule

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Medical Marijuana Use and the ADA – A New Intersect

On behalf of your company, you hire a new employee. As part of the hiring process, the new employee must complete a satisfactory physical examination, including passing a drug test. During the physical exam, the new employee…more

ADA, Drug Testing, EEOC, Employer Liability Issues, Hiring & Firing

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Mississippi Lt. Governor Proposes Tax Cuts

Lt. Governor Tate Reeves recently unveiled a plan to cut taxes in Mississippi by approximately $380 million over a ten-year period. Reeves' proposal is called the "Taxpayer Raise Act of 2015," and has been introduced to the…more

Proposed Legislation, Tax Cuts

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Receiverships in Georgia

In addition to Georgia's relatively swift non-judicial foreclosure process, lenders with a defaulting borrower in Georgia have the option of seeking a receivership over property securing their loans. A court-appointed receiver…more

Receivership

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ABA Resolution 105 on Punitive Damages Is Dead for Now

On the eve of the ABA's Annual Meeting next week, the ABA's Standing Committee on Medical Professional Liability announced its withdrawal of proposed Resolution 105 from consideration by the ABA House of Delegates. The proposed…more

ABA, FDA, Healthcare, Healthcare Professional Liability Policies, Medical Devices

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Multiple Dangers of Meth Labs in Hotels

A quick Internet search sheds a bright light on the dangers to hotels if guest rooms are used for methamphetamine, or "meth," production. There are dangers related to contamination and its impact on other guests, as well as…more

Contaminated Properties, Hotels, Meth Labs, Methamphetamine, Safety Precautions

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Federal District Court Rules Favorably for Medical Device Manufacturer in Off-Label Promotion Lawsuits

On April 13, 2015, in the case of Kathleen Hafer v. Medtronic, Inc., the United States District Court for the Western District of Tennessee issued a favorable opinion to a medical device manufacturer in the context of preemption…more

Leave to Amend, Manufacturers, Medical Devices, Medtronic, Misrepresentation

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Time to Revisit Your Physician Relationships

On June 9, 2015, the Department of Health and Human Services, Office of Inspector General issued a new Fraud Alert entitled "Physician Compensation Arrangements May Result in Significant Liability" (Alert) in the wake of 12…more

Anti-Kickback Statute, DOJ, False Claims Act, Healthcare, HHS

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New Anti-Corruption Law to Take Effect in Brazil

With the continued ongoing work to exploit the discoveries in the Lula (Tupi) field and the recently announced 2013 subsalt strike in the Campos and Santos basins off Brazil's southern coast, oil and gas exploration and…more

Anti-Bribery, Anti-Corruption, Brazil, Clean Companies Act, Compliance

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Legislative Update for Brand Manufacturers Distributing in Alabama

On April 28, 2015, the Alabama House of Representatives passed SB-80, thereby abolishing the highly criticized theory of innovator liability adopted in Wyeth, Inc. v. Weeks, ___ So.3d___, 2014 WL 4055813 (Ala. Aug. 15, 2014)…more

Inventors, Liability, Manufacturers, New Legislation

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Challenging the Denial of a Trademark Application in District Court Just Got More Expensive

In Shammas v. Focarino, the Eastern District of Virginia holds that an applicant must pay the government attorney's fees regardless of the applicant's success in a Section 1071(b) civil matter. …more

Applications, Attorney's Fees, Litigation Fees & Costs, Trademark Litigation, Trademark Trial and Appeal Board

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Diversity Matters: Note from the Editor - Implicit Bias Training

Freudian slips are commonplace mistakes in speech which are believed to reveal underlying, unconscious thoughts. Neuroscientists have shown that the unconscious mind is in control of decisions, actions and emotions 95 percent of…more

Bias, Diversity, Diversity and Inclusion Standards (D&I), Employment Policies

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Immigration Corner: USCIS Elaborates on When to File Amendment Under Simeio

We previously provided an alert on the precedential decision Matter of Simeio Solutions, LLC and its holding that an H-1B amendment must be filed whenever a new Labor Condition Application (LCA) is required to change an H-1B…more

Compliance, Filing Requirements, Foreign Workers, H-1B, H-2B

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Time Saver Savvy – June 2015

This month's tips are from some of the women who are part of Baker Donelson's newest group of shareholders. "Learn when it may be best to say no. Not every opportunity presented to you is appropriate to take. By being selective…more

Professional Development

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Featuring: Off-the-Record Mentoring

A structured, formal mentoring plan is an important part of any female professional's career path. Helping the next generation of female leaders through mentoring has been shown to be enormously helpful to both parties. However,…more

Career Development, Young Lawyers

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New Wage Regulations Dramatically Increase the Number of Hourly Workers

Yesterday, the U.S. Department of Labor (DOL) proposed new regulations that will dramatically increase the number of employees who must be paid on an hourly basis. Before today, employees who earned $455.00 per week (or…more

DOL, Exempt-Employees, FLSA, NPRM, Wage and Hour

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The U.S. Supreme Court Rejects Extraterritorial Lawsuit Against Shell Oil

The United States Supreme Court, in Kiobel v. Royal Dutch Petroleum, recently restricted the scope of the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), a 224-year-old law often used to invoke jurisdiction in suing corporations…more

Alien Tort Statute, Extraterritoriality Rules, Human Rights, Jurisdiction, SCOTUS

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Six Months in Review: Florida Case Law

Florida has witnessed developments in three areas of mortgage foreclosure litigation already this year. The opinions offered by various courts of appeal have come at a time when litigants crave guidance more than ever, but the…more

Banks, Business Records, Foreclosure, Mortgages, Statute of Limitations

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Pharmacies: Watch Out for Future HHS Crackdowns on Security Rule Violations

As we all know by now, HIPAA required the Secretary of the U.S. Department of Health and Human Services (HHS) to adopt regulations protecting the privacy of "protected health information" (PHI). HHS responded to that requirement…more

Covered Entities, Cybersecurity, Healthcare, HHS, HIPAA

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Increased SEC and FINRA Scrutiny on Confidentiality Provisions

Over the past several months, confidentiality provisions included in settlement agreements, employment or independent contractor contracts, or in other documents, have come under increased scrutiny in the financial industry. In…more

Broker-Dealer, Confidentiality Agreements, Dodd-Frank, DOJ, Financial Institutions

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HHS Issues Guidance on Permitted Remuneration for Prescription Refill Reminders in the Absence of Patient Authorization

On September 19, the Health and Human Services Department (HHS) issued guidance on the effect of the January 25, 2013 Final Rule provision about remuneration related to prescription refill reminders and medication adherence…more

Compliance, HHS, HIPAA, HIPAA Omnibus Rule, Refill Reminders

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Per NLRB, Employees May Use Company Email For Union Organizing

On December 11, 2014, the National Labor Relations Board (NLRB), through a divided panel, held that employees may use employer-provided email systems for union organizing. Specifically, the NLRB held "employee use of email for…more

Email, NLRB, Protected Concerted Activity, Purple Communications, Unions

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A Wolf in Sheep's Clothing? The Department of Labor's Proposed Changes to the White Collar Exemptions

On June 29, 2015 the Department of Labor published its long-anticipated proposed rule and request for comments on changing the "white collar" exemptions for the executive, administrative and professional exemptions under the…more

Compliance, DOL, FLSA, Minimum Salary, NPRM

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Federal Crowdfunding Efforts Stall While Tennessee Prepares for Takeoff

On January 1, 2015, pursuant to the Invest Tennessee Exemption (ITE), crowdfunding in Tennessee became legal, granting Tennessee-based companies and investors increased access to capital and broadened opportunities to invest…more

Crowdfunding, Equity Financing, Issuers, JOBS Act, Legislative Agendas

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Time Saver Savvy – Helpful Tips for the Busy Professional

A colleague and I took a seminar on time management for working mothers some 20 years ago. We met each other at the hotel conference room, rushing in at the last minute just as did every other woman in attendance – approximately…more

Law Practice Management, Women in the Law, Young Lawyers

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Spotlight on Louisiana: 2015 Legislative Session Increases Tax Burdens to Balance State Budget

Even though Louisiana's 2015 legislative session has concluded, the dust may be far from settled as to how increases in tax burdens meant to balance the State's budget will impact taxpayers. At least one industry trade…more

Ad Valorem Tax, Audio Recording, Coal Industry, Dependent Coverage, Digital Media

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Q & A: ICANN's Global Trademark Clearinghouse

The Internet Corporation for Assigned Names and Numbers (ICANN), the body tasked with coordinating and preserving global Internet stability, is embarking on its largest expansion ever of the domain name system. Last week, on…more

Domain Names, gTLD, ICANN, Registration, Trademark Clearinghouse

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Rise in misclassification suits and DOL audits quite a fright: what an employer can do to prepare

Few things are more frightening to an employer than a worker misclassification suit. Perhaps a Department of Labor audit over wage and hour issues may be just as scary. One thing is for sure: disagreements about how workers are…more

Audits, Discrimination, DOL, Enforcement Actions, Misclassification

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NLRB's Quickie Election Rule Takes Effect

In previous articles, we have explained how the National Labor Relations Board (NLRB) has taken the position that franchisors and franchisees are joint employers of the employees, setting the stage for large-scale union…more

Ambush Election Rules, NLRB, Union Elections, Unions

See All Updates »

Sound, Speed, and Distance - The Second Circuit Allows Use of SVDR Data as Evidence in Maritime Casualty

In a Summary Order dated March 13, 2014, the United States Court of Appeals for Second Circuit affirmed a summary judgment of the Southern District of New York, which ruled in favor of a vessel owner based on data of the ship's…more

Data Recovery, Evidence, Telecommunications, Vessels

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Senator Allain Proposes Mandatory Mediation in Legacy Lawsuits

Legacy litigation refers to hundreds of lawsuits in Louisiana seeking damages allegedly related to environmental harm caused by oil and gas exploration and production activities. These lawsuits have been likened to winning the…more

Environmental Liability, Legacy Litigation, Mediation, Oil & Gas, Proposed Legislation

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Contact

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