Baker Donelson

OIG Pushing FEMA to Get Tougher on Procurement Compliance

The Department of Homeland Security Office of Inspector General (OIG) recently released their report "FEMA Can Do More to Improve Public Assistance Grantees' and Subgrantees' Compliance with Federal Procurement Rules." OIG…more

FEMA, Natural Disasters, OIG, Procurement Guidelines

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Fee-Shifting Corporate Bylaws: What's the Law in Maryland?

In May 2014, the Supreme Court of Delaware held that a non-stock corporation could enact bylaws that could force a shareholder to pay the corporation’s legal fees, costs, and expenses if the shareholder sues the corporation and…more

Bylaws, Fee-Shifting, Shareholder Litigation, Shareholders

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Federal Circuit Issues Sprawling Opinion Certain to Continue Big Pharma Forum Shopping in ANDA Litigation

In an opinion handed down Friday that will continue the trend of forum shopping, the Federal Circuit in Acorda Therapeutics Inc. v. Mylan Pharmaceuticals, Inc., 2015-1456, (Fed. Cir. 2016) held that the filing of an abbreviated…more

ANDA, FDA, Forum Shopping, Generic Drugs, Hatch-Waxman

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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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Post-Election Events Making Waves in the Cannabis Industry

As we reported previously, the cannabis industry had a historic election night, with eight out of nine states approving their respective referendums legalizing some form of adult cannabis use. In the short time since that vote,…more

Attorney Generals, DOJ, Donald Trump, Marijuana, Marijuana Related Businesses

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So You Want To Sell Your Business… PART 4 of 4 – Engaging Advisors to Assist in the Sale

The time has come. You have well-thought-out reasons to sell your business. You have put your business in the best possible position for sale. You are ready to devote significant time and money to the sales process. Market…more

Accountants, Due Diligence, Non-Disclosure Agreement, Selling a Business

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Roadmap for Merger Decision-Making Process in Delaware

In a string of recent cases, the Delaware courts have given public companies a roadmap for structuring the decision-making process in merger transactions. Before delving into the recent decisions, it may help to understand the…more

Board of Directors, Breach of Duty, Business Judgment Rule, Controlling Stockholders, Corporate Counsel

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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, Greenhouse Gas Emissions

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FTC and DOJ Warn HR Professionals Against Anticompetitive Hiring and Compensation Agreements

On October 20, 2016, the Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (DOJ) issued a joint Antitrust Guidance for Human Resources Professionals to address antitrust issues associated with…more

Antitrust Violations, DOJ, FTC, Hiring & Firing, Human Resources Professionals

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Oil and Gas Gathering Contracts: Contracts Running With the Land or Running On Empty?

In a much anticipated ruling, Bankruptcy Judge Shelley Chapman has granted the motion of Sabine Oil and Gas Corporation (No. 15-11835, USBC SDNY) to reject certain executory contracts with Nordheim Eagle Ford Gathering, LLC and…more

Chapter 11, Commercial Bankruptcy, Covenants that Run With the Land, Energy Sector, Midstream Contracts

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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 Documents (EAD), H-1B, H-4 Spouses, Spouses

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Just Play the Game: Sixth Circuit Says Student-Athletes Have No Right of Publicity in Game Broadcasts

In a short, sharp opinion filed August 17, 2016, a three-judge panel on the Sixth Circuit Court of Appeals affirmed dismissal of a class action lawsuit brought by ten former college athletes asserting they were entitled to…more

Broadcasting, Corporate Counsel, Lanham Act, Name and Likeness, NCAA

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Interior Secretary Sally Jewell: No Drilling in Atlantic Ocean

In a major reversal of the 2017-2022 Outer Continental Shelf Oil and Gas Leasing Program announced by the Obama administration on January 28, 2015, Interior Secretary Sally Jewell announced yesterday that the U.S. government…more

Department of the Interior, Energy Sector, Offshore Drilling, Oil & Gas, Outer Continental Shelf

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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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CMS Relaxes Proposals for Returning Overpayments, but Significant Questions Remain

On Thursday, the Centers for Medicare and Medicaid Services (CMS) published a long awaited final rule that fleshes out the requirement for health care providers and suppliers that participate in Medicare Parts A and B to report…more

60-Day Rule, CMS, False Claims Act (FCA), Health Care Providers, Medicare Part A

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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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IRS Provides Guidance Addressing Leave-Based Donations Benefiting Louisiana Storm Victims

In the wake of several severe storms and widespread flooding in Louisiana, many local residents and businesses are dealing with catastrophic property damage and loss. These burdens have resulted in an overwhelming need for…more

Charitable Donations, Flooding, IRS

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The Spotlight on Pay Equity is Here to Stay

On January 29, 2016, the Equal Employment Opportunity Commission (EEOC) announced proposed rules that would require all employers with 100 or more employees – not just federal contractors as had been anticipated – to add W-2…more

Comment Period, Data Collection, EEO-1, EEOC, Equal Pay

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New Amendments to Florida's Proceedings Supplementary Statute Offer Clarity and Guidance for Judgment Creditors

Chapter 56 of the Florida Statutes provides the framework for judgment creditors to collect amounts owed pursuant to money judgments. Within Chapter 56, Section 56.29 governs the process by which a judgment creditor may seek to…more

Collection Action, Discovery, Fraudulent Transfers, Judgment Creditors, Third-Party

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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, Fair Housing Act (FHA), Financial Institutions, Financing, Healthcare

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City of Birmingham Raises Minimum Wage, Establishes Severe Employer Penalties in Aggressive Wage and Hour Ordinance

On August 18, 2015, the Birmingham, Alabama, City Council passed an aggressive wage and hour ordinance that raises the minimum wage to $10.10 by July 1, 2017. Presently, the minimum hourly wage in Alabama is $7.25, which is the…more

Minimum Wage, Tip Credit, Tipped Employees, Tips, Wage and Hour

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Failing to Pay Proper Wages on Government Contracts Can Lead to Liability Under the False Claims Act

For FY 2016, there are more than 36,000 federal government construction contracts where Davis-Bacon Act, 40 U.S.C. § 3142, prevailing wages applied. According to www.spending.gov, these types of contracts accounted for $9…more

Construction Project, Davis-Bacon Act, DOL, False Claims Act (FCA), False Implied Certification Theory

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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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Vicarious Liability of Motor Vehicle Lessors in Canada

The equipment finance industry breathed a sigh of relief when Federal legislation was enacted in 2005 preempting state laws imposing vicarious liability on lessors of motor vehicles. That relief may have been premature if the…more

Automotive Industry, Automotive Loans, Canada, Cars, Leases

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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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New Salary Threshold Is One Step Closer to Reality

Buckle your seat belts: the new pay regulations may be coming out as early as this April or May. Yesterday, the Department of Labor (DOL) forwarded its proposed final overtime regulations to the White House's Office of…more

DOL, Final Rules, FLSA, Minimum Salary, OMB

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HHS OIG Expands Safe Harbors, but Doubles Down with Enhanced Civil Monetary Penalties

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) published two rules on December 7, 2016, updating certain existing safe harbor regulations, adding new safe harbor rules under the…more

Civil Monetary Penalty, FQHC, Health Care Providers, HHS, Medicare

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Murphy Oil USA v. NLRB: The Fifth Circuit and the NLRB Remain in Disagreement Over Arbitration Agreements that include Class and Collective Action Waivers

If persistence is what you want from the NLRB, then you are probably happy with the Board’s recent ruling on Murphy Oil USA’s class and collective action waivers. In case you missed it, the NLRB held that employment arbitration…more

Class Action Arbitration Waivers, Collective Actions, D.R. Horton v NLRB, FLSA, Murphy Oil USA

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WHITE PAPER: .bank is here!

A white paper from OBER/KALER describing what you need to know about .bank - Sunrise is on the horizon for .bank. A new Internet land rush begins mid-2015 for websites bearing the extension .bank, the financial world’s…more

gTLD, ICANN, Online Banking, Trademarks

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What the Mahalo??

Although commonly known, judgment creditors rarely utilize the charging order as a collection mechanism. This may change as a result of recent case law developments. The charging order has long been recognized in the partnership…more

Charging Orders, Creditors, Jurisdiction, Limited Liability Company (LLC), Partnerships

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OFAC Further Amends Cuban Assets Control Regulations – President Obama Authorizes More Travel and U.S. Presence in Cuba

On March 16, 2016, in what could be the final set of amendments to the Cuban Assets Control Regulations (CACR) under the Obama Administration, the Office of Foreign Assets Control (OFAC) published a final rule that further…more

Cuban Assets Control Regulations (CACR), Final Rules, General Licenses, OFAC, Trade Relations

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New Year, New Filing Deadline for Certain Tax Returns

In 2015, President Obama signed the Surface Transportation and Veterans Health Improvement Act of 2015 (the "Act") into law. The Act included provisions which changed the due dates for many federal tax returns, effective for…more

Barack Obama, Corporate Taxes, Filing Deadlines, Surface Transportation and Veterans Health Care Choice Improvement Act, Tax Returns

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NLRB Decision on Joint Employer Standards Results in a Major Change in Business Relationships

On, August 27, 2015, the National Labor Relations Board (NLRB) in a 3-2 decision gutted more than 30 years of legal precedent when it changed the joint employer standard in business relationships. See Browning-Ferris Industries…more

Browning-Ferris Industries of California Inc., Collective Bargaining, Franchisee, Franchises, Franchisors

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Final Rule Implements Quality Payment Program under MACRA

If you are a physician, mid-level provider, or work with those providers, then you have been bombarded with new acronyms for new programs and promises to remove older acronyms from your Medicare vocabulary. Medicare…more

Advanced Care Directives, Affordable Care Act, Alternative Payment Models (APM), CEHRT, CMS

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WHITE PAPER: .bank is here!

A white paper from OBER/KALER describing what you need to know about .bank - Sunrise is on the horizon for .bank. A new Internet land rush begins mid-2015 for websites bearing the extension .bank, the financial world’s…more

gTLD, ICANN, Online Banking, Trademarks

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Coalition of Lawyers and Civil Rights Groups Brings Down Corporate Bad Guy in Alabama

Wonderful news today in Alabama – private probation company Judicial Correction Services (JCS) is high-tailing it out of the State after several years of being repeatedly sued over its mistreatment of low income people who are…more

Injunctive Relief, Probation

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Spotlight on Tennessee: Department of Revenue Proposes Tax Regulations

The Tennessee Department of Revenue (the Department) is in the process of proposing a wide range of regulations addressing current state tax laws. The purpose of this project is to promulgate new regulations to clarify and…more

Business Taxes, Department of Revenue, Enforcement Actions, Excise Tax, Franchise Taxes

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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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Reading the CFPB Amicus Tea Leaves

Because the CFPB is still a young agency, having formed in 2011 pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), the enforcement record of the Agency is somewhat limited, not by…more

Amicus Briefs, Cause of Action Accrual, CFPB, Corporate Counsel, Dodd-Frank

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California Dreams Becoming Reality for Franchisees; Amended Franchise Relationship Law Nears Passage

The California State Assembly saw the seventh amended version of proposed changes to the California Franchise Relationship Act (CFRA) introduced August 17, 2015. This amendment is the product of industry negotiations that…more

Buyback Programs, California Family Rights Act (CFRA), Criminal Prosecution, Franchise Agreements, Franchisee

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CFPB Cites Violations of Regulation X

The CFPB recently cited several loan servicers for violations of Regulation X that stemmed from "outdated and deficient servicing technology." The CFPB announced in its June 2016 Supervisor Highlights: Mortgage Servicing,…more

CFPB, Loss Mitigation, Mortgage Servicers, Mortgages, Regulation X

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The Ritual of Renewal on Opening Day

The ritual of renewal that is Opening Day can be both transformative and defining. While it offers the opportunity for a new beginning, it is also invites reflection as to where we have been and where we are headed. And that…more

Baseball, Race Discrimination, Segregation

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Medicaid: Significant Changes Coming in 2017 and Beyond

With Congress back in session, attention in the health care policy universe is directed squarely at Washington, where Republicans in Congress and the Trump Administration are debating how to repeal and replace the Affordable…more

1115 Waivers, Affordable Care Act, Block Grants, CHIP, Health Insurance

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Blue Cross Plans Effort to Escape MDL Antitrust Case on Jurisdictional Grounds Fails

On December 21, District Judge David Proctor (N.D. Alabama) denied an attempt by nine Blue Cross plans to escape the In re Blue Cross Blue Shield Antitrust Litigation. Finding that the Blues (Mississippi, Triple-S Salud [Puerto…more

Blue Cross, Health Care Providers, Motion to Dismiss, Multidistrict Litigation

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The October DDoS Attack – Separating Fact from Fiction

Baker Donelson's Data Protection, Privacy and Cybersecurity attorneys are pleased to introduce a series of client alerts that will address significant cyber-threats to your business and how you can protect yourself by thoughtful…more

Cyber Attacks, Cybersecurity, Denial of Service Attacks, Distributed Denial of Service, Hackers

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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, Confidential Information, Internal Investigations, NLRA, NLRB

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Bartram Affirmed: Florida Supreme Court Provides Guidance For Filing a Successive Foreclosure Action Post Dismissal

Nearly a year after hearing oral argument on the matter, the Supreme Court of Florida affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., SC14-1265 (Fla. Nov. 3, 2016), holding that a…more

Foreclosure, Mortgage Lenders, Mortgage Servicers, Mortgages

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Wage and Hour Focus in the Energy Sector Alive and Well

The U.S. Department of Labor’s (DOL) focus on wage and hour violations, which caught the oil and gas industry by surprise a little more than six years ago, continues to cause problems for the energy sector. Most recently, the…more

DOL, Energy Sector, FLSA, Oil & Gas, Over-Time

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Virginia General Assembly Addresses Fourth Circuit Decision to Uphold Statutory Cap on Recovery by Public Works Contractors for Changed Work

In Carnell Construction Corp. v. Danville Redevelopment & Housing Authority, 745 F.3d 703 (2014), the United States Court of Appeals for the Fourth Circuit upheld the trial court’s ruling that, without government approval, the…more

Change Orders, Construction Contracts, Damage Caps, Modification, Proposed Amendments

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The Meaning of "No" – Putting the Italian Referendum in Perspective

Italian voters overwhelmingly rejected a set of constitutional changes that would have streamlined Italy's government and consolidated power in the hands of the Prime Minister's office. The practical impact of the "No" vote on…more

Italy, Prime Minister, Referendums

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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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Final Rule Implements Quality Payment Program under MACRA

If you are a physician, mid-level provider, or work with those providers, then you have been bombarded with new acronyms for new programs and promises to remove older acronyms from your Medicare vocabulary. Medicare…more

Advanced Care Directives, Affordable Care Act, Alternative Payment Models (APM), CEHRT, CMS

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What Does a Trump Presidency Mean for Oil and Gas?

President-elect Donald Trump has made some big promises regarding the energy industry. He has included the Keystone pipeline in his plan for his first 100 days in office and is planning to grant the necessary State Department…more

Barack Obama, Climate Change, DOE, Donald Trump, Energy Sector

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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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EPA Finalizes Methane Emissions Limits for Oil and Gas Industry

On May 12, 2016, the Environmental Protection Agency (EPA) released its final rules establishing – for the first time – limits on methane emissions. In addition to creating the new methane emissions standards, the amendments to…more

Climate Action Plan, Climate Change, EPA, Final Rules, Methane

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OCR Examines Hybrid Entity Designation in Latest HIPAA Settlement

On November 22, 2016, the University of Massachusetts Amherst (UMass) agreed to pay $650,000 and enter into a corrective action plan to settle allegations that it violated the HIPAA Privacy and Security Rules in connection with…more

Cybersecurity, Electronic Medical Records, HIPAA, Malware, OCR

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American Apparel to Send 3,500 Workers Home: What You Need to Remember About the WARN Act

In the fallout of American Apparel's planned Chapter 11 bankruptcy, the clothing manufacturer warned almost 3,500 employees in its California locations that they may be laid off come the first of the year. Documents published by…more

Employer Liability Issues, Hiring & Firing, Layoff Notices, Layoffs, Notice Requirements

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Annie Get Your Gun – Court Rules Termination For Bringing Gun to Work Unlawful

In a recent decision that could have implications in many states, a federal appeals ruled that an employee could state a claim for wrongful termination under state law after being discharged for storing a gun in his car on…more

Employer No-Weapons Policies, Gun Laws, Guns-in-Trunks Legislation, Hiring & Firing, Wrongful Termination

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CMS Releases the 2016 OPPS Final Rule

On November 1, 2016, CMS published its final policy changes, quality provisions, and payment rates for 2017, as they relate to the Medicare Hospital Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center…more

Affordable Care Act, Ambulatory Surgery Centers, Bipartisan Budget Act, CEHRT, CMS

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Seventh Circuit Sidelines Claims That Student-Athletes Are "Employees" Under The FLSA

The NCAA and its member institutions scored another win last week in a Chicago courtroom when the Seventh Circuit closed the book on former student-athletes' proposed class action claiming that their participation in college…more

Colleges, Educational Institutions, FLSA, Minimum Wage, NCAA

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Health Care Legislation Maryland 2016 First Interim Report

The bills cited and reviewed in this Report are not an exhaustive presentation of all healthcare legislation. Rather, they represent either proposed or adopted legislation that we believe are among the most beneficial, curious…more

Acupuncture, Chiropractors, End-of-Life-Care, FTC, Health Care Providers

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Spotlight on Alabama: Department of Revenue Announces 2016 Tax Amnesty Program

The Alabama Department of Revenue (DOR) has announced the conditions, requirements and limitations of its tax delinquency amnesty program for 2016 (the Amnesty Program), pursuant to the Alabama Tax Delinquency Amnesty Act of…more

Business Taxes, Department of Revenue, Income Taxes, State Taxes, Tax Amnesty

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Is It Time to Take a Fresh Look at Your Parental Leave Policy?

In 2014, Baker Donelson's Women's Initiative decided it was time to revisit our decade-old parental leave policy. While the policy was still competitive in our market, offering 12 weeks of leave for primary caregivers, we wanted…more

Employee Benefits, Employer Liability Issues, Employment Policies, Parental Leave, Wage and Hour

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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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CMS Final Rule and 21st Century Cures Act Include Good and Bad News for Provider-Based Sites

CMS recently published its final outpatient prospective payment system (OPPS) rule, which includes its new policies governing payment related to services furnished at off-campus provider-based departments (OPBDs). 81 Fed. Reg…more

21st Century Cures Initiative, CMS, Dedicated Emergency Departments, Final Rules, Hospitals

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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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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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Women's Health Tip: I'm SO STRESSED

I had a bad week. A really bad week. No one died. There was no terminal diagnosis. No damage that is permanent. But it was bad enough that I started questioning my goals and priorities. It also got me thinking of a trip to Napa…more

Stress Reduction, Work-Induced Stress

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Obama's Clean Power Plan Rule Halted By SCOTUS

On February 9, 2016, the Supreme Court of the United States (SCOTUS) took an unprecedented step by halting the implementation of the Obama Administration's federal regulation to control carbon dioxide emissions, generally…more

Carbon Emissions, Clean Air Act, Clean Power Plan, Climate Change, Coal-Fired Generation

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Justice Scalia’s Sudden Death: What Does It Mean for You?

The news of Justice Antonin Scalia’s death at a hunting lodge in Texas on February 13th rocked the country over Valentine’s weekend. The timing and suddenness of the staunch conservative’s death during President Obama’s last…more

Affirmative Action, Affordable Care Act, Contraceptive Coverage Mandate, Justice Scalia, Legislative Agendas

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Fifth Circuit Agrees To Fast-Track DOL's Overtime Appeal

Late last month, we brought you breaking news that a federal court in Texas had granted a preliminary nationwide injunction blocking the enforcement of the Department of Labor’s Final Overtime Rule. The December 1, 2016…more

Appeals, DOL, Final Rules, FLSA, Minimum Salary

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Todd Construction v. United States: Navigating Performance Evaluation Claims in the Court of Federal Claims

A default termination can be a nightmare for a contractor that bids on federal projects, but a negative performance evaluation can prove just as troublesome for a contractor that finishes the job. The Federal Acquisition…more

Construction Industry, Contract Disputes, Court of Federal Claims, Federal Acquisition Regulations (FAR), Federal Contractors

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HHS OIG Expands Safe Harbors, but Doubles Down with Enhanced Civil Monetary Penalties

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) published two rules on December 7, 2016, updating certain existing safe harbor regulations, adding new safe harbor rules under the…more

Civil Monetary Penalty, FQHC, Health Care Providers, HHS, Medicare

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Obama Signs Bill Making Changes to Affordable Care Act

On October 7, President Obama signed into law H.R.1624, the Protecting Affordable Coverage for Employees Act. The act amends a provision of the Affordable Care Act (ACA) to allow states to opt out of the scheduled expansion of…more

Affordable Care Act, Eligibility, Health Insurance, Healthcare, Obama Administration

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Update on First 60-Day Case

A settlement was reached on August 23, 2016, in U.S. ex rel. Kane v. Healthfirst, Inc., et al., No. 11 CIV. 2325 (ER) (SDNY), a little over one year after the judge in that case issued the first judicial interpretation of the…more

60-Day Rule, Affordable Care Act, False Claims Act (FCA), Hospitals, Interpretive Opinions

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Employers Beware of the Cat's Paw

The cat scratches again! Five years ago, the United States Supreme Court handed down Staub v. Proctor Hospital, wherein it held that an employer may be liable for a supervisor's discriminatory animus when the independent…more

Adverse Employment Action, Cat's Paw, Employment Discrimination, Hiring & Firing, Retaliation

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Houston Shareholder Dedicated to Profession and Helping Others

Eddy De Los Santos grew up in Port Isabel, Texas, where he lived until graduating high school in 1991. He went on to begin his undergraduate career at Texas A&M, receiving a Bachelor of Business Administration in Management…more

Business Development, Law Firm Associates

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Final Rule Implements Quality Payment Program under MACRA

If you are a physician, mid-level provider, or work with those providers, then you have been bombarded with new acronyms for new programs and promises to remove older acronyms from your Medicare vocabulary. Medicare…more

Advanced Care Directives, Affordable Care Act, Alternative Payment Models (APM), CEHRT, CMS

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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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What Happens if You Wait Too Long to File Your Patent Case?

Patent owners recently were reminded that delay in pursuing patent infringers can be fatal. A patent lawsuit that is not filed timely can be blocked by the doctrine of laches, even to the extent of preventing the patent owner…more

Laches, MGM, Patent Infringement, Patent Litigation, Patent Royalties

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What Fluctuating Oil Prices Mean for Patent Infringement Lawsuits

A notable trend has developed between the price of oil and gas and the prevalence of patent infringement lawsuits. As the price of oil plummeted, the number of patent infringement lawsuits in the oil business has increased…more

Oil & Gas, Patent Infringement, Patents, Popular, USPTO

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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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First Circuit Reinstates Consumer Action Previously Dismissed on FDCA Preemption Grounds

In 2014, Ronda Kaufman brought a proposed nationwide class action against drug store giant CVS alleging that the labeling of its Vitamin E supplements misled consumers about heart health benefits. Kaufman's complaint, among…more

Class Action, CVS, Dietary Supplements, FDCA, Preemption

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Alumni Profile: Steven King – Ducks Unlimited

Steven King worked with Baker Donelson for six years as an associate in the Memphis office and is now the assistant general counsel for Ducks Unlimited (DU), a long-time client of the Firm. While a number of our attorneys keep…more

Professional Development, Young Lawyers

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USCIS Rule Expands Work Card Authorization All Employers Must Accept

In finalizing a regulation focused on eligibility of workers being sponsored by employers for various temporary and permanent visas, USCIS has established some rules that affect all employers, even those not sponsoring…more

Employer Liability Issues, Employment Authorization Documents (EAD), Hiring & Firing, I-9, USCIS

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The Sixth Circuit: “Honest Belief” of FMLA Misuse May Not Be Enough to Defeat FMLA Interference Claims

Eddie Employee is an hourly employee of Company, Inc. Eddie notifies Sally Supervisor that he will undergo surgery, and will need continuous medical leave to recover. While out on leave, Eddie’s co-workers, who are “friends”…more

Employer Liability Issues, FMLA, Hiring & Firing, Retaliation, Wage and Hour

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Consumer Data Privacy in Bankruptcy

Bankruptcy law and privacy law may appear to be wholly separate areas of the law, but they overlap more than one might anticipate. Balancing individual rights and interests to achieve a social good is at the heart of both…more

BAPCPA, Chapter 11, Commercial Bankruptcy, Data Privacy, FTC

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What Employers Need to Know - Requests for Medical Information and the Genetic Information Nondiscrimination Act: Avoiding a Hidden Pitfall

The Genetic Information Non-discrimination Act took effect in November 2009. It should also be noted that many States, including Maryland, have separate statutes prohibiting the acquisition of genetic information and…more

Discrimination, EEOC, Employer Liability Issues, Genetic Materials, Genetic Testing

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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, Pain and Suffering

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Trade Watch – Understanding U.S. Trade Policy in the New Trump Administration

Baker Donelson's Trade and Compliance attorneys are pleased to introduce a quarterly series of client alerts that address how trade and compliance matters in the new administration could affect your business, as well as how you…more

Donald Trump, Free Trade Agreements, Imports, NAFTA, Trans-Pacific Partnership

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Comparison of Maryland Trust Act to Current Maryland Law and the Uniform Trust Code

To incorporate the Maryland Trust Act (“MTA” or “Act”) into Maryland law, the Act is added as new Title 14.5 of the Estates and Trusts Article, with ten subtitles. Existing Title 14, Subtitle 1 of the Estates and Trusts Article…more

Uniform Trust Code

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Tax Season Becomes "Spear Phishing" Season for Cybercriminals

Imagine this scenario. Your HR team receives an email from your CEO: "I want you to send me W-2s of employees' wage and tax statement for 2015, I need them in PDF file type, you can send it as an attachment." They hurry to get…more

Cyber Attacks, Cyber Threats, Cybersecurity, Phishing Scams, Tax Returns

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Bank Websites Targeted for Title III ADA Violations – 12 Ways to Comply

An increasing number of companies in the banking industry are reporting receiving demand letters from law firms alleging website violations under Title III of the Americans with Disabilities Act (Title III). These letters claim…more

ADA, Banks, DOJ, Public Accommodation, Title III

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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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Hospitalitas Newsletter - Summer 2016

In this issue: - Controversial Overtime Rule Comes in For a Landing - What You Need to Know About Hospitality REITs - The Legal Implications of Restaurant-Designed House Brand Craft Beers - FDA Finalizes Revisions to…more

DOL, Exempt-Employees, FLSA, Hospitality Industry, Institutional Investors

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CFPB Appears Poised to Increase Its Focus on Auto Lending

The CFPB utilizes a risk-based analysis in its approach to its supervisory and enforcement efforts. The Bureau's risk-based approach includes factors such as the potential risk to a consumer from products offered in the market…more

Automotive Industry, Automotive Loans, CFPB, Financial Institutions, Lenders

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Extended Leave Under the ADA: Necessary Next Steps to Consider

Earlier this summer, I wrote an article for the July issue of our firm's L&E Newsletter, surveying cases on when an employee's request for extended medical leave is, and is not, a reasonable accommodation under the ADA. As that…more

ADA, EEOC, FMLA, Hiring & Firing, Reasonable Accommodation

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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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Ransomware – A Significant Cybersecurity Concern

Over the past year, no information security threat has demanded more media and corporate attention than ransomware. The evolution of this threat from an ineffective nuisance to a sophisticated business model generating hundreds…more

Cyber Attacks, Cybersecurity, Data Security, Hackers, HHS

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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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Salman v. U.S.: More Questions than Answers?

The United States Supreme Court recently rendered a decision in Salman1 resolving a circuit split over whether the government prosecuting an insider trading case must show that the person giving an insider tip received something…more

Confidential Information, Criminal Prosecution, Dirks v SEC, Illegal Tipping, Insider Trading

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OIG Finalizes CMP Regulations, Largely as Proposed

On December 7, 2016, the Department of Health and Human Services, Office of Inspector General (OIG) finalized [PDF] its proposal to update the civil monetary penalty (CMP) regulations – namely, incorporate new CMP authorities…more

Affordable Care Act, Civil Monetary Penalty, CMS, Final Rules, HHS

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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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Landlords Beware: Potential Post-Holiday Bankruptcy Filings By Retail Tenants

The holiday shopping season has long been the most important time of the year for many retailers. In the past, it has been common for troubled retailers to file for bankruptcy protection in the months following the holiday…more

Chapter 11, Commercial Bankruptcy, Landlords, Popular, Retail Market

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Will Your EU Registrations Be Invalidated by the New Law?

On December 15, 2015, following several years of negotiations, the European Parliament and the Council of the European Union approved a new EU Trade Mark Directive as well as a new Trade Mark Regulation…more

EU, Fees, Intellectual Property Protection, Trade Mark Directive, Trademarks

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Spotlight on Tennessee: Department of Revenue Proposes Tax Regulations

The Tennessee Department of Revenue (the Department) is in the process of proposing a wide range of regulations addressing current state tax laws. The purpose of this project is to promulgate new regulations to clarify and…more

Business Taxes, Department of Revenue, Enforcement Actions, Excise Tax, Franchise Taxes

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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 »

High Volatility Commercial Real Estate: Loan Document Considerations

As of January 1, 2015, global Basel III regulations and the Dodd-Frank Wall Street Reform Consumer Protection Act required banks in the United States to comply with certain new capital rules and regulations. Among other…more

Banks, Basel III, Capital Rules, Dodd-Frank, HVCRE Rule

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Louisiana Fourth Circuit Holds Public Bid Invalid Absent Written Evidence of Authority to Sign Bid

Contractors that bid public projects in Louisiana are familiar with the Public Bid Law's requirement that "[w]ritten evidence of authority of the person signing the bid for public works shall be submitted at the time of…more

Competitive Bidding, Construction Industry, Contractors, Limited Liability Company (LLC)

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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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INJUNCTION GRANTED: AHCA Jumps the First Hurdle in Overturning CMS's Ban on Pre-Dispute Arbitration

Judge Michael P. Mills granted a preliminary injunction in favor of the American Healthcare Association (AHCA) earlier today in the case of AHCA v. Burwell. A copy of the court's injunction order can be accessed here. The…more

Arbitration, Arbitration Agreements, CMS, Federal Arbitration Act, Health Care Providers

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Eighth Circuit Rules That Sleep Apnea Testing Does Not Violate Disabilities Act

On October 12, 2016, the U.S. Court of Appeals for the Eighth Circuit, which hears appeals from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, ruled that a trucking company did…more

ADA, Department of Transportation (DOT), Employer Liability Issues, FMCSA, Popular

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The CFPB's Latest: Student Loans and Fix-It Forms

The Consumer Financial Protection Bureau has taken two actions that are worthy of note. First, the Student Loan Ombudsman released his mid-year report, in which he focused his attention on complaints about servicer activity…more

Borrowers, CFPB, Student Loans, Students

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To Plead or Not to Plead (the Fifth Amendment) in Civil Litigation — That is the Question

Criminal law and procedure can make even the most seasoned bankruptcy and restructuring lawyers uneasy. However, the Fifth Amendment privilege, in particular, does arise in civil matters from time to time. And there can be…more

Business Records, Civil Investigation Demand, Discovery, Fifth Amendment, Self-Incrimination

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Owner’s Indemnity Claim for Wrongful Death Barred by Contractor’s Statute of Repose

A United States district court in Alabama recently dismissed an owner’s claim for indemnity against a contractor based on Alabama’s statute of repose. The indemnity claim arose out of a 2014 accident on an escalator built in…more

Construction Industry, Contractors, Indemnity Claim, Wrongful Death

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2016 Christmas Party Post Mortem

Three years ago, the Company Christmas Party resulted in various criminal charges, allegations of sexual harassment, compensation of the entire Accounting Department for an all-night game of Truth-Or-Dare, a workers compensation…more

Employer Liability Issues, Holiday Parties, Holidays, Reasonable Accommodation, Sexual Harassment

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Bank Websites Targeted for Title III ADA Violations – 12 Ways to Comply

An increasing number of companies in the banking industry are reporting receiving demand letters from law firms alleging website violations under Title III of the Americans with Disabilities Act (Title III). These letters claim…more

ADA, Banks, DOJ, Public Accommodation, Title III

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Update on the J.G. Wentworth CID Fight

Earlier this summer we wrote about the challenge by J.G. Wentworth, LLC to the CFPB's jurisdictional reach. Now, the Chamber of Commerce of the United States of America has asked that it be allowed to file an amicus brief in the…more

CFPB, Civil Investigation Demand, Dodd-Frank, J.G. Wentworth, Truth in Lending Act (TILA)

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Mandatory Salary Increases Now in Effect for New York – What to Do Now

Employers in New York must scramble to assess the impact of the new substantial salary level increases that take effect on December 31, 2016. Below is a summary of the new salary levels for exempt administrative and executive…more

Exempt-Employees, Minimum Salary, Over-Time, Wage and Hour

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CMS Publishes the Medicare Outpatient Observation Notice Form and Instructions

On December 8, 2016, CMS published the final version of the Medicare Outpatient Observation Notice (MOON) that hospitals and critical access hospitals (referred collectively as "hospitals" herein) must use to provide notice to…more

CMS, Hospitals, Medicare, Medicare Outpatient Observation Notice (MOON), NOTICE Act

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Field Trips, Resident Safety and Liability: Considerations for Long Term Care Facilities

In virtually any skilled nursing or assisted living facility, activities for senior residents are an integral part of the facility's operations. Many facilities tout or advertise the activities that their facility offers to…more

Health and Safety, Health Care Providers, Long Term Care Facilities, Nursing Homes, Patient Safety

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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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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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Ransomware – A Significant Cybersecurity Concern

Over the past year, no information security threat has demanded more media and corporate attention than ransomware. The evolution of this threat from an ineffective nuisance to a sophisticated business model generating hundreds…more

Cyber Attacks, Cybersecurity, Data Security, Hackers, HHS

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New Requirements for Broker Recruitment

On December 16, 2015, the Financial Industry Regulatory Authority (FINRA) proposed Rule 2273 requiring brokers who move to a new firm to send an "educational communication" to customers they want to take with them, informing the…more

Broker-Dealer, Educational Communications Rule, FINRA, SEC, Transfer of Assets

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The Confederate Flag is Down in South Carolina, but It's Up in Your Parking Lot: What Should You Do?

There has been considerable press lately regarding efforts to remove the Confederate flag from state capitols, and to otherwise remove public displays of Confederate or similar symbols of "southern heritage." What is often left…more

Employer Liability Issues, First Amendment, Hostile Environment

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Say-On-Pay Considerations for Compensation Committees

Now that most public companies have held their 2016 annual meetings, and stockholders have voiced their opinions regarding executive compensation, it is more important now than ever for companies and their compensation…more

Compensation Committee, Dodd-Frank, Executive Compensation, Regulation S-K, Say-on-Pay

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Is Sexual Orientation a Protected Category under Title VII?

That question has been asked for many years, especially after the U.S. Supreme Court struck down the Defense of Marriage Act in 2013 (U.S. v. Windsor) and subsequently held state bans of same-sex marriages are unconstitutional…more

EEOC, LGBT, Sexual Orientation, Sexual Orientation Discrimination, Title VII

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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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Looking Ahead: What the Auto Lending Industry Can Expect from the CFPB in 2016

The CFPB's critics are getting louder, arbitration clauses are spending some time on the chopping block and credit reporting continues to garner more and more attention. These are all things we can expect to focus on this year…more

Automotive Loans, Car Dealerships, CFPB, Credit Reports, Discriminatory Lending Practices

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“Mighty Difference Between a Living Thump and a Dead Thump” – BSEE’s “Universal Thump” Invalidated; District Court Holds that BSEE Has No Jurisdiction Over Offshore Contractors

In a dramatic reversal of a prior and equally dramatic, watershed administrative decision of the Interior Bureau of Land Appeals (IBLA) upholding the Bureau of Safety and Environmental Enforcement’s (BSEE) regulatory…more

BSEE, Department of the Interior, Offshore Drilling, Outer Continental Shelf

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EEOC Announces Six-Figure Transgender Discrimination Settlement

The onslaught of news stories about "bathroom bills" has thrust issues facing transgender people into the national spotlight, but do you know what rights are afforded to transgender people in the workplace? Employers should know…more

EEOC, Employee Restrooms, Employer Liability Issues, Gender Discrimination, Gender Identity

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Start Planning for the Worst While You Hope for the Best

For the past several months we have been updating you on the proposed changes to the Fair Labor Standards Act (FLSA) and the impact those changes could have on your workforce. The comment period for the proposed regulations has…more

Comment Period, DOL, FLSA, Independent Contractors, Minimum Salary

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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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Dietary Supplements and Class Actions: Getting Schooled in California

Three cases pending in the Ninth Circuit Court of Appeals may help resolve splits in the district courts over (1) defining an appropriate class of plaintiffs ("ascertainability") and (2) the propriety of awarding class-wide…more

Ascertainable Class, Class Action, Corporate Counsel, Dietary Supplements, Food Labeling

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Spotlight on Tennessee: R&D Exemption for Sales/Use Taxes

This State's industrial machinery exemption for sales and use tax purposes offers a significant benefit to manufacturers in Tennessee. With a general State tax rate of 7%, together with the added local tax rates, substantial…more

Department of Revenue, Manufacturers, Research and Development, Sales & Use Tax, Tax Exemptions

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HHS OIG Expands Safe Harbors, but Doubles Down with Enhanced Civil Monetary Penalties

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) published two rules on December 7, 2016, updating certain existing safe harbor regulations, adding new safe harbor rules under the…more

Civil Monetary Penalty, FQHC, Health Care Providers, HHS, Medicare

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The Oil Bust…Bankruptcy Boom?

Although the news is filled with stories of falling oil and gas prices and suggestions that a third of the exploration and production companies may file for bankruptcy, this most recent downturn may not produce the bankruptcy…more

Abandonment, Chapter 11, Commercial Bankruptcy, Energy Sector, Oil & Gas

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2016 Changes to Tennessee Workers’ Compensation

This year, there are several notable revisions to TN law regarding workers’ compensation. First, reasonable attorney fees and costs can be awarded to the employee and his/her counsel when the employer fails to initiate…more

Attorney's Fees, State and Local Government, Workers Compensation Reform, Workers' Compensation Claim

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It Ain't Over 'Till It's Over – First Circuit Rejects Settlement Agreements Between Providers and Intermediary and Upholds Cost Report Reopenings

On October 27, 2016, a three-judge panel for the United States Court of Appeals for the First Circuit issued an opinion concluding that a Medicare fiscal intermediary (Intermediary) does not have the authority to enter into a…more

Administrative Review, Appeals, Disproportionate Share Adjustments, HHS, Hospitals

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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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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: Warning Coworker that Job is at Risk Inherently Protected Activity

Earlier this month, the National Labor Relations Board (NRLB) ruled that an employee who was fired after warning a co-worker his job was at risk had engaged in inherently protected activity and must be reinstated. The case,…more

Corporate Counsel, Employer Liability Issues, Hiring & Firing, NLRB, Protected Activity

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Summary of Updated Mortgage Servicing Examination Procedures

On June 22, 2016, the CFPB released a special edition of its Supervisory Highlights focused on examinations of mortgage servicers between January 2014 and April 2016. Additionally, it released its third update to the mortgage…more

CFPB, ECOA, Fair Lending, Foreclosure, Loss Mitigation

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Government Investigations - How to Respond to a Search Warrant: 10 Practical Steps

In a highly regulated industry such as health care, it’s not uncommon to be the subject of a government investigation. In-house counsel and leadership must be prepared in advance for the possibility of a search warrant being…more

Government Investigations, Popular, Search Warrant

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Final Rule Implements Quality Payment Program under MACRA

If you are a physician, mid-level provider, or work with those providers, then you have been bombarded with new acronyms for new programs and promises to remove older acronyms from your Medicare vocabulary. Medicare…more

Advanced Care Directives, Affordable Care Act, Alternative Payment Models (APM), CEHRT, CMS

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CFPB Agrees to Give Originators a Grace Period for Compliance with New TRID Regulations

On the eve of the New Year, the Consumer Financial Protection Bureau (CFPB) took steps to calm industry concerns about the effect of the new TILA RESPA Integrated Disclosure (TRID) rules enacted by the CFPB. Effective October 3,…more

CFPB, Disclosure Requirements, Grace Period, Mortgage Loan Originators, TILA-RESPA Integrated Disclosure Rule (TRID)

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The EEOC's New Corporate Wellness Regulations

With so much coverage of the DOL's new overtime regulations, the Equal Employment Opportunity Commission's (EEOC) May 16, 2016 regulation affecting wellness programs has gone mostly unnoticed. The rules describe how the American…more

ADA, Affordable Care Act, EEOC, Employer Group Health Plans, GINA

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When is a Receivership Sale of Real Estate a Reasonable Alternative to Foreclosure?

Foreclosure is usually the remedy of choice used by secured creditors to monetize their real estate collateral; however, there are situations where a sale of real estate through receivership could be an attractive alternative to…more

Foreclosure, Real Estate Market, Secured Creditors

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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 FAA’s New Drone Regulations

The use of small unmanned aircraft systems (sUAS or, colloquially, drones) is becoming more prolific. In the oil and gas context, drones can play a key role in conducting risky oilfield operations. The uses for drones in the oil…more

Drones, Federal Aviation Administration (FAA), Oil & Gas, Section 333 Exemption, Unmanned Aircraft Systems

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Advertising and Fair Use of Trademark: Oprah's Aha! Moment

On September 16, 2016, the Second Circuit cleared Oprah Winfrey's company and magazine of charges that their use of the phrase "Own Your Power" infringed a motivational speaker's trademark rights. The judges said that despite…more

Trademark Infringement, Trademark Litigation, Trademarks

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Government Offers Guidance for Employers Conducting Internal I-9 Audits

The U.S. Immigration and Customs Enforcement (ICE) Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued guidance to help employers conduct internal I-9 audits in compliance with the…more

Anti-Discrimination Policies, E-Verify, I-9, ICE, Immigration and Nationality Act

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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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U.S. District Court for District of Columbia Requires HHS to Eliminate Medicare Appeals Backlog by December 31, 2020

On December 5, 2016, a U.S. District Court for the District of Columbia granted summary judgment in American Hospital Association, et al., v. Burwell, in favor of the American Hospital Association (AHA) in its quest to reduce…more

ALJ, American Hospital Association, Appeals, HHS, Mandamus Petitions

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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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Electronic Discovery Preparedness Audit Handbook

While your organization may not regularly be involved in costly or complicated litigation, there are instances in which it may nonetheless be required to identify, collect, and produce documents most likely in the form of…more

Business Necessity, Data Collection, Data Management, Data Mapping, Data Preservation

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Supreme Court's Four-to-Four Decision in Hawkins v. Community Bank of Raymore Leaves Open Question About Application of Equal Credit Opportunity Act to Spousal Guaranties of Commercial Loans

In its first evenly split vote since the death of Justice Scalia, the U.S. Supreme Court last week affirmed an Eighth Circuit Court of Appeals ruling in Hawkins v. Community Bank of Raymore that spouses who guarantee commercial…more

Commercial Loans, ECOA, Family Status Discrimination, Hawkins v Community Bank of Raymore, Real Estate Development

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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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Helis Oil & Gas Poised to Drill Well in St. Tammany Parish

On June 17, 2016, the Louisiana Supreme Court denied review of an appellate decision effectively terminating efforts by the St. Tammany Parish government and a group of citizens to block Helis Oil & Gas from drilling an…more

Oil & Gas, Preemption, Well Drilling

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FTC and DOJ Warn HR Professionals Against Anticompetitive Hiring and Compensation Agreements

On October 20, 2016, the Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (DOJ) issued a joint Antitrust Guidance for Human Resources Professionals to address antitrust issues associated with…more

Antitrust Violations, DOJ, FTC, Hiring & Firing, Human Resources Professionals

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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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CFPB's First Project Catalyst Innovation Report Addresses FinTech Regulation

In October, the CFPB issued its first ever Project Catalyst Innovation Report highlighting "innovation insights" by FinTech companies in multiple areas. The CFPB launched the Project Catalyst initiative in November 2012 with the…more

CFPB, Credit Reports, FinTech, Mortgage Servicers

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FBAR Deadlines Not as Close as You Think: New Tax Bill's Language Points to 2017 as Likely Timetable

Thank you for your interest in the 5th Annual IRS Hot Topic Seminar held in Jerusalem in July. In continuing our efforts to provide timely and extremely important updates on tax matters affecting U.S. citizens and green card…more

C-Corporation, FBAR, Filing Deadlines, Foreign Bank Accounts, Income Taxes

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Letters of Intent: What Do They Really Do?

A construction project usually contains a web of contractual relationships, such as between owner-contractor, contractor-subcontractor, subcontractor-supplier, owner-architect, architect-engineer, and so forth. To make things…more

Construction Contracts, Construction Industry, Construction Project, Contractors, Letters of Intent

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Diversity Recruiting Spotlight: Noah Kressler

Tell us a little about yourself and your practice. I am of counsel in the New Orleans office and specialize in corporate transactions, finance and securities. Prior to joining Baker Donelson in 2015, I spent nearly a decade…more

Diversity, Diversity and Inclusion Standards (D&I), LGBT

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The Case of Actually Actual Fraud

On May 16, the bankruptcy world of “actual fraud” got larger. In an opinion delivered by Justice Sotomayor, the Supreme Court addressed what it recognized was a deepening circuit split regarding the interpretation of “actual…more

Chapter 7, Commercial Bankruptcy, Fraudulent Conveyance, Husky International Electronics v Ritz, SCOTUS

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OIG Approves Another Medigap/Preferred Hospital Network Arrangement in Advisory Opinion 16-11

On November 3, 2016, the OIG issued another favorable Advisory Opinion, No. 16–11, regarding an agreement between a Medigap insurer and preferred hospital network. The OIG has issued several opinions regarding similar…more

Advisory Opinions, Anti-Kickback Statute, Civil Monetary Penalty, Fraud and Abuse, Hospitals

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Maryland Court Affirms that Unpaid Recordation Tax on Indemnity Deed of Trust is not an Obligation of Beneficiary

In good news for foreclosing lenders in Maryland, the Circuit Court for Howard County has affirmed a Maryland Tax Court Memorandum and Order concluding that the recordation tax payable on an indemnity deed of trust ("IDOT")…more

Beneficiaries, Property Tax, Recordation Taxes, Tax Exemptions

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NLRB Continues to "Like" Enforcement over Social Media Policies and Related Issues

In recent years, the National Labor Relations Board (NLRB) has focused attention on company policies that attempt to limit employee engagement in social media. Specifically, the NLRB has consistently taken the position that…more

ALJ, Chipotle Grill, NLRA, NLRB, Popular

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Drafting Arbitration Clauses in Chinese/American Commercial Contracts for Arbitration in China

American companies doing business with Chinese companies in China are often concerned about the credibility, neutrality and quality of the arbitration institutions in China. As a result, American companies generally try to avoid…more

Arbitration, China, Commercial Contracts, Young Lawyers

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HUD Proposes Expanding Indebtedness Eligible for Refinancing with FHA-Insured Loans

The U.S. Department of Housing and Urban Development (HUD) recently published proposed revisions to its Handbook covering its Healthcare Insurance Mortgage Program under Section 232 of the National Housing Act (the Section 232…more

Fair Housing Act (FHA), Government-Guaranteed Loans, HUD, National Housing Act (NHA), Refinancing

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Bartram Affirmed: Florida Supreme Court Provides Guidance For Filing a Successive Foreclosure Action Post Dismissal

Nearly a year after hearing oral argument on the matter, the Supreme Court of Florida affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., SC14-1265 (Fla. Nov. 3, 2016), holding that a…more

Foreclosure, Mortgage Lenders, Mortgage Servicers, Mortgages

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Tennessee Supreme Court Modifies Summary Judgment Standard

On October 26, 2015, the Tennessee Supreme Court returned to a summary judgment standard consistent with the Federal Rules of Civil Procedure in a Memphis health care liability case. In Rye v. Women's Care Center of Memphis, the…more

Healthcare, Summary Judgment, TN Supreme Court

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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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EEOC Issues Its First Guidance on Retaliation in Almost Two Decades: Next Steps for Employers

On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) published its Final Enforcement Guidance on Retaliation and Related Issue. This was the first guidance from the EEOC on these issues since 1998. The EEOC…more

Adverse Employment Action, EEOC, Employer Liability Issues, Enforcement Guidance, Protected Activity

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Recent Eleventh Circuit Decisions Clarify "Debt Collector" Status Under the FDCPA

Recent decisions within the Eleventh Circuit Court of Appeals have clarified two required elements needed to support a viable claim under the Fair Debt Collection Practices Act (FDCPA). In Davidson v. Capital One Bank (USA),…more

Appeals, Capital One, Debt Collection, Debt Collectors, FDCPA

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CMS Therapy Payment Model Under Review: What to Expect in 2016

In 2015, the Medicare payment system for therapy services provided by Skilled Nursing Facilities (SNFs) saw intense media and governmental scrutiny. Several news articles and reports were published on the need for reform, many…more

Civil Investigation Demand, CMS, Health Care Providers, Long Term Care Facilities, Physician Medicare Reimbursements

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Spotlight on Tennessee: Department of Revenue Proposes Tax Regulations

The Tennessee Department of Revenue (the Department) is in the process of proposing a wide range of regulations addressing current state tax laws. The purpose of this project is to promulgate new regulations to clarify and…more

Business Taxes, Department of Revenue, Enforcement Actions, Excise Tax, Franchise Taxes

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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

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Susan E. Rich: A Legacy of "Firsts"

Susan Elliott Rich is a legend at Baker Donelson. In fact, she holds all of the "firsts" – first female shareholder, first woman to be an Office Managing Shareholder and first woman appointed to the Firm's Board of Directors…more

Board of Directors, Shareholders, Young Lawyers

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MLPs, REITs and S&P's New Real Estate Sector Classification

On September 1, 2016, Standard & Poor's (S&P) upgraded real estate as a stand-alone sector within its Dow Jones Global Industry Classification Standard (GICS). GICS is the de facto classification system for equity securities…more

Corporate Governance, Income Taxes, Investors, Master Limited Partnerships, REIT

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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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Fifth Circuit Court of Appeals Decision Worsens Headaches for Employers Negotiating Pattern or Practice EEOC Claims

In Equal Employment Opportunity Commission v. Bass Pro Outdoor World, L.L.C., a three-judge panel of the Fifth Circuit Court of Appeals held that the EEOC can seek punitive and compensatory damages for a pattern or practice…more

Civil Rights Act, Compensatory Damages, Corporate Counsel, EEOC, Punitive Damages

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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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OIG Finalizes CMP Regulations, Largely as Proposed

On December 7, 2016, the Department of Health and Human Services, Office of Inspector General (OIG) finalized [PDF] its proposal to update the civil monetary penalty (CMP) regulations – namely, incorporate new CMP authorities…more

Affordable Care Act, Civil Monetary Penalty, CMS, Final Rules, HHS

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Florida Inferior Liens Not Extinguished If Recorded After Foreclosure Judgment – What To Do Now

The Fourth District has ruled that inferior liens are extinguished in a foreclosure proceeding when the final judgment is entered, not when the certificate of sale is issued, putting 30 years of established law into…more

Financial Institutions, Foreclosure, Lienholders, Mortgages

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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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CMS Takes First Step to Reduce Payments for Clinical Laboratory Tests

CMS recently published a proposed rule that would substantially revise the methodology used to pay for clinical laboratory tests that continue to be compensated separately by Medicare. Medicare Program; Medicare Clinical…more

Clinical Laboratories, Clinical Laboratory Testing, CMS, Medicaid, Medicare

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Spotlight on Tennessee: Department of Revenue Proposes Tax Regulations

The Tennessee Department of Revenue (the Department) is in the process of proposing a wide range of regulations addressing current state tax laws. The purpose of this project is to promulgate new regulations to clarify and…more

Business Taxes, Department of Revenue, Enforcement Actions, Excise Tax, Franchise Taxes

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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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Court Says No Protection for Sexual Orientation Discrimination

On July 28, the Seventh Circuit became the first of the thirteen federal appellate courts to address whether Title VII protects against discrimination on the basis of sexual orientation since the EEOC administratively ruled that…more

EEOC, Sexual Orientation, Sexual Orientation Discrimination, Title VII

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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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Whether You Know It or Not, There Are or Will Be a Granny Cam in Your Center: What Are You Going to Do About It?

You are the exception if you haven't had a family member put a video camera in a resident's room. Sometimes they do it secretly, like in a digital photo frame, and sometimes they put them in plain view. This raises major issues…more

Health Care Providers, Long Term Care Facilities, Nursing Homes, Policies and Procedures, Security Cameras

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Spotlight on Tennessee: Department of Revenue Proposes Tax Regulations

The Tennessee Department of Revenue (the Department) is in the process of proposing a wide range of regulations addressing current state tax laws. The purpose of this project is to promulgate new regulations to clarify and…more

Business Taxes, Department of Revenue, Enforcement Actions, Excise Tax, Franchise Taxes

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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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Social Media Compliance Policies: Your Company Needs One

Use of social media is ubiquitous in today's society. This is astounding when you think back to 2004 and realize that social media did not exist then. Fast forward ten years and by September 2014, 58% of all American adults ages…more

Compliance, Dominos, Facebook, FINRA, Hashtags

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NYSE Amends Rule Regarding Disclosure of Material Nonpublic Information

Companies listed on the New York Stock Exchange (NYSE) are certainly familiar with the NYSE rules regarding public disclosure of material information. Those rules require prompt disclosure of material information that may affect…more

Compliance, Material Nonpublic Information, NYSE, Public Disclosure, Publicly-Traded Companies

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Provider Mergers: The Need for Early Antitrust Advice

Given the Federal Trade Commission’s (FTC’s) aggressive antitrust enforcement program attacking provider mergers in hospital, physician, and other markets, it’s become extremely important for those considering a merger to seek…more

Anti-Competitive, Antitrust Investigations, Due Diligence, FTC, Hart-Scott-Rodino Act

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The New Broader Standard for Divided Patent Infringement

On Thursday, August 13, 2015, the United States Court of Appeals for the Federal Circuit in Akamai Technologies, Inc. v. Limelight Networks, Inc. unanimously overruled its prior narrow interpretation of divided infringement…more

Akamai Technologies, Covered Business Method Patents, Divided Infringement, Joint Venture, Limelight

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Vicarious Liability of Motor Vehicle Lessors in Canada

The equipment finance industry breathed a sigh of relief when Federal legislation was enacted in 2005 preempting state laws imposing vicarious liability on lessors of motor vehicles. That relief may have been premature if the…more

Automotive Industry, Automotive Loans, Canada, Cars, Leases

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INJUNCTION GRANTED: AHCA Jumps the First Hurdle in Overturning CMS's Ban on Pre-Dispute Arbitration

Judge Michael P. Mills granted a preliminary injunction in favor of the American Healthcare Association (AHCA) earlier today in the case of AHCA v. Burwell. A copy of the court's injunction order can be accessed here. The…more

Arbitration, Arbitration Agreements, CMS, Federal Arbitration Act, Health Care Providers

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OSHA's New Recordkeeping Rule

On Wednesday, May 11, 2016, the U.S. Occupational Safety and Health Administration (OSHA) finalized its controversial workplace injury and illness reporting rules. The new requirements are effective August 10, 2016, with…more

Electronic Filing, NIOSH, OSHA, Recordkeeping Requirements, Workplace Injury

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New Federal Health Care Facility Regulations Could Mean More Construction Work

On April 16, 2014, the Centers for Medicare & Medicaid Services (CMS), an agency of the U.S. Department of Health and Human Services, published proposed rules that would amend the fire safety standards for hospitals, long-term…more

CMS, Construction Contracts, Construction Workers, Contractors, Healthcare

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United States Supreme Court to Review Student Transgender Bathroom Access Case

On October 28, 2016, the Justices of the United States Supreme Court announced that they would hear the appeal of the Gloucester County School Board's appeal from the United States Court of Appeals for the Fourth Circuit in the…more

Department of Education, Gender Identity, School Restrooms, Sex Discrimination, Students

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OIG Finalizes New and Amended Anti-Kickback and CMP Safe Harbors

On December 7, 2016, the Department of Health and Human Services Office of the Inspector General (OIG) issued a final rule to establish new safe harbors under the anti-kickback statute and civil monetary penalty (CMP) rules, as…more

Ambulance Providers, Anti-Kickback Statute, Civil Monetary Penalty, Cost-Sharing, Free Health-Related Services

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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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How Government Contractors Can Prepare for "Fair Pay and Safe Workplaces"

On August 25, 2016, the Federal Acquisition Regulatory Council and the U.S. Department of Labor published the Final Rule and its associated Guidance implementing President Barack Obama's "Fair Pay and Safe Workplaces" Executive…more

Corporate Counsel, Disclosure Requirements, DOL, Executive Orders, Fair Pay and Safe Workplaces

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Advisers Charged with Cleansing Dirty Money from Industry

On August 25, 2015, the Financial Crimes Enforcement Network (FinCEN) proposed an anti-money laundering rule applicable to SEC-registered investment advisers (RIAs). The proposed rule would require RIAs to establish anti-money…more

Anti-Money Laundering, Bank Secrecy Act, Banking Sector, Banks, Broker-Dealer

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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's New Recordkeeping Rule

On Wednesday, May 11, 2016, the U.S. Occupational Safety and Health Administration (OSHA) finalized its controversial workplace injury and illness reporting rules. The new requirements are effective August 10, 2016, with…more

Electronic Filing, NIOSH, OSHA, Recordkeeping Requirements, Workplace Injury

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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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Industry May Be Foreshadowing More CFPB Challenges

In our last newsletter, we discussed the CFPB's proposed amendments to its rule regarding the confidential treatment of information obtained from supervised or regulated entities in connection with the exercise of the Bureau's…more

American Bar Association (ABA), Attorney-Client Privilege, CFPB, PHH Corp. v CFPB, Proposed Amendments

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Executive Order Requiring Paid Sick Leave In the Works

We previously reported on other recently executed Executive Orders and it appears there is another in the works directed to government contractors. The new Executive Order circulating Washington will likely mandate paid sick…more

Construction Industry, Domestic Violence, Employee Benefits, Federal Contractors, PTO

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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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OCR Releases Tool to Help Organizations Safeguard Health Data

Health data is among the most attractive targets for cybersecurity attacks. To help ward off attacks, health care organizations and their subcontractors subject to the Health Insurance Portability and Accountability Act (HIPAA)…more

Cybersecurity, Data Protection, Health Care Providers, HIPAA, NIST

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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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New Baltimore City Law Limits Employee Criminal Record Checks: How Health Care Employers Are Affected

Effective August 13, 2014, certain Baltimore City employers will be restricted from asking applicants and employees about their criminal history. However, many health care employers will be exempt from this new law either…more

Assisted Living Facility, Background Checks, Ban the Box, Criminal Background Checks, EEOC

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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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FCRA Class Action Suits on the Rise

It is a common practice for employers to check criminal backgrounds or credit ratings of potential, and sometimes current, employees. Background checks that provide this type of information are helpful to employers when…more

Background Checks, Chipotle Grill, Class Action, Compliance, Corporate Counsel

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GAO's Report Suggests Congress Give CFPB More Oversight

This past February, the United States General Accounting Office (GAO) released a report to Congress entitled "Financial Regulation – Complex and Fragmented Structure Could Be Streamlined to Improve Effectiveness" (the Report)…more

CFPB, Depository Institutions, Dodd-Frank, Financial Regulatory Reform, GAO

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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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Louisiana Governor Institutes Sexual Orientation and Transgender Protections for State Workers and Contractors

On April 13, 2016, Louisiana Governor John Bel Edwards signed Executive Order No. JBE 2016-11 prohibiting discrimination or harassment by Louisiana state agencies against individuals based on their sexual orientation or gender…more

Discrimination, Employer Liability Issues, Executive Orders, Federal Contractors, Federal Employees

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Louisiana Fourth Circuit Holds Public Bid Invalid Absent Written Evidence of Authority to Sign Bid

Contractors that bid public projects in Louisiana are familiar with the Public Bid Law's requirement that "[w]ritten evidence of authority of the person signing the bid for public works shall be submitted at the time of…more

Competitive Bidding, Construction Industry, Contractors, Limited Liability Company (LLC)

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Franchisor Protected from Unfair Competition, Not All Competition

The fine line between protecting your system's legitimate interests and trying to eliminate a competitor can be hard to define in advance. With social media so important for consumer businesses, the line is even more difficult…more

Franchisors, Non-Compete Agreements, Restaurant Industry, Trademarks, Unfair Competition

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INJUNCTION GRANTED: AHCA Jumps the First Hurdle in Overturning CMS's Ban on Pre-Dispute Arbitration

Judge Michael P. Mills granted a preliminary injunction in favor of the American Healthcare Association (AHCA) earlier today in the case of AHCA v. Burwell. A copy of the court's injunction order can be accessed here. The…more

Arbitration, Arbitration Agreements, CMS, Federal Arbitration Act, Health Care Providers

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Highlights of H.R. 22: Fixing America's Surface Transportation (FAST) Act

On December 1, a conference committee unveiled the FAST Act, which would authorize approximately $305 billion for highway, transit, rail and safety spending for the next five years, until September 30, 2020. The Act would…more

Amtrak, Fixing America’s Surface Transportation Act (FAST Act), Highway Trust Fund, Pending Legislation, Surface Transportation

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More Overtime Headaches for Employers

The Ninth Circuit has ruled that employer payments of cash in lieu of benefits will be included in an employee's "regular rate of pay" for purposes of overtime calculations. The California City of San Gabriel has been held in…more

Corporate Counsel, DOL, FLSA, Over-Time, Wage and Hour

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Eighth Circuit Rules That Sleep Apnea Testing Does Not Violate Disabilities Act

On October 12, 2016, the U.S. Court of Appeals for the Eighth Circuit, which hears appeals from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, ruled that a trucking company did…more

ADA, Department of Transportation (DOT), Employer Liability Issues, FMCSA, Popular

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New SEC Rules and Their Impact on Securities Offerings

On October 26, 2016, the Securities & Exchange Commission ("SEC") adopted final rules that may have significant impact on local securities offerings made in one state (or, "intrastate" offerings) and offerings of securities of…more

Crowdfunding, Exemptions, Final Rules, Regulation D, Rule 147

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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 Lowers Bar for Awarding Enhanced Damages for Patent Infringement

The U.S. Supreme Court today ruled in favor of patent owners with a unanimous (8-0) decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. The Court held that the Federal Circuit's strict test for awarding enhanced…more

Enhanced Damages, Halo v Pulse, Patent Infringement, Patents, SCOTUS

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Potty Wars: North Carolina Doubles Down on Transgender Bathroom Law

It seems like an odd place to wage a civil rights war, but right now across the country there is a serious debate over public bathroom use. The LGBT community, backed by the U.S. Department of Labor (OSHA), has taken the…more

DOJ, Employee Restrooms, Gender Discrimination, OSHA, Restroom Legislation

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Data Localization and the TPP: Financial Institutions Beware

After five years of negotiations, the Trans-Pacific Partnership (TPP) Agreement was finally signed in early February 2016 in Auckland, New Zealand. The TPP, which President Obama describes as a strategic "pivot" toward Asia, is…more

Cross-Border Transactions, E-Commerce, Financial Institutions, Trade Policy, Trade Relations

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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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5 Things to Know About Transgender Rights in the Workplace

The EEOC in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), held that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or…more

EEOC, Gender Identity, Title VII, Transgender

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Susan E. Rich: A Legacy of "Firsts"

Susan Elliott Rich is a legend at Baker Donelson. In fact, she holds all of the "firsts" – first female shareholder, first woman to be an Office Managing Shareholder and first woman appointed to the Firm's Board of Directors…more

Board of Directors, Shareholders, Young Lawyers

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Fifth Circuit Reverses Citgo Convictions Under Clean Air Act and Migratory Bird Treaty Act

The U.S. Court of Appeals for the Fifth Circuit, in United States v. CITGO Petroleum Corp., No. 14-40128 (5th Cir. September 4, 2015), reversed the district court’s convictions of Citgo Petroleum Corp. (Citgo) for alleged…more

Bird Fatalities, Citgo, Clean Air Act, Migratory Bird Treaty Act, National Emissions Standards

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ACG Louisiana Holding Second Annual Energy Case Cup Competition

The Louisiana Chapter of the Association for Corporate Growth (ACG Louisiana) will hold its second annual Energy Case Cup Competition in October. Last year's inaugural competition included more than 100 undergraduate students…more

Corporate Financing, Energy Sector, Financial Adviser, Investment Banks, Non-Profits

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The Presidential Election: Trying to Become Comfortable in an Uncertain Time

Saturday Night Live has been a mainstay of my television diet since my teenage years in the early 1980s. Shortly after the election, SNL featured Alec Baldwin portraying Donald Trump in a skit about Mr. Trump's transition from…more

Acquisitions, Affordable Care Act, Dodd-Frank, Donald Trump, Mergers

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CFPB Allies and Opponents Clash Over Arbitration Proposal

The CFPB's recently-announced proposal to limit arbitration clauses in consumer finance contracts has drawn thousands of comments from groups and individuals on both sides of this issue. The deadline for submitting comments was…more

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

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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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