Ballard Spahr LLP

Pennsylvania Office of Open Records Blasts Charter Schools

Charter school managers and officials should be aware that the Executive Director of Pennsylvania’s Office of Open Records has recently made public statements criticizing charter schools that take the position that they should…more

Charter Schools, Disclosure Requirements, Exemptions, Public Records, Right To Know

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Real Estate News in Metro DC

Ballard Spahr’s mixed-use, condominium, and multifamily lawyers are pleased to provide this newsletter to keep you apprised of important developments and trends in real estate law in Maryland, Virginia, and Washington, D.C…more

Condominiums, Construction Defects, Construction Industry, Construction Project, Disclosure Requirements

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Ballard Opinion Letter Program to Replace IRS Determination Letter Program

The Internal Revenue Service has largely ended its determination letter program by which sponsors of individually designed retirement plans can obtain confirmation that their plan documents are tax-qualified. The IRS has…more

Determination Letter, Employee Benefits, IRS, Qualified Retirement Plans, Retirement Plan

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The Sum of the Parts ? the Whole? SCOTUS on Samsung v Apple

The U.S. Supreme Court unanimously overturned a $400 million damages award against Samsung for infringing Apple's smartphone design patents. In a decision that upsets a long-standing rule for calculating damages for design…more

Apple, Apple v Samsung, Cell Phones, Design Patent, iPhone

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Updated HMDA resources for data collected in 2017 and 2018

As we have previously discussed, on October 15, 2015, the Consumer Financial Protection Bureau (CFPB) released a final rule amending Regulation C, which implements the Home Mortgage Disclosure Act (HMDA), requiring certain data…more

Banking Sector, CFPB, HMDA, Mortgage Lenders, Mortgage Servicers

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Liens Recorded Between Foreclosure, Sale Date Ruled Valid by Florida Appellate Court

In a case of first impression among the Florida appellate courts, the Fourth District Court of Appeal held that liens recorded between the foreclosure judgment and the sale date are valid and enforceable against the property so…more

Banking Sector, Banks, Final Judgment, Florida, Foreclosure

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CA Supreme Court Issues First Decision Extending FTC v. Actavis to State Antitrust Litigation

The California Supreme Court issued a decision today in the Cipro antitrust cases, concluding that the analysis set forth by the U.S. Supreme Court in FTC v. Actavis applies to alleged “pay-for-delay” pharmaceutical patent…more

Antitrust Litigation, Antitrust Provisions, Bayer, CA Supreme Court, Cartwright Act

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HUD continues reorganization of key leadership

As part of its efforts towards continued reorganization, the U.S. Department of Housing and Urban Development (HUD) has recently announced changes to the Office of Multifamily Housing leadership staff. Mark Van Kirk, the…more

Administrative Appointments, HUD

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Tax Truths: Volume 1, No. 2 – December 2016

AN ANALYSIS OF TAX LAW PROPOSALS OF THE PRESIDENT-ELECT AND THE HOUSE - President-elect Trump made tax reform a highlight of his campaign, calling for fewer tax brackets, lower individual rates, and reduced corporate tax…more

Affordable Care Act, Alternative Minimum Tax, Capital Gains, Child Tax Credit, Controlled Foreign Corporations

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Philadelphia Limits Employer Use of Credit Information

Beginning July 7, 2016, employers in Philadelphia may not consider credit history or other credit-related information for job-related decisions for many non-managerial jobs. This change stems from an amendment to the Fair…more

Credit Discrimination, Credit History, Employee Credit Checks, Employer Liability Issues, Employment Discrimination

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CFPB Finalizes Sweeping Expansion of Prepaid Account Regulations

The Consumer Financial Protection Bureau (CFPB) has issued its long-anticipated final rule for general purpose prepaid accounts. As expected, the new regulations expand the products covered by Regulation E, introduce significant…more

CFPB, Consumer Financial Products, Final Rules, Financial Sector, Financial Services Industry

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Freddie Mac closes first direct purchase of a tax-exempt loan

Freddie Mac recently closed its first direct purchase of a tax-exempt loan. The loan financed the acquisition and rehabilitation of a 417-unit senior housing community in Dayton, Ohio known as The Lakewoods. The deal represents…more

Freddie Mac, HUD, Loans, Real Estate Market, Tax Exemptions

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Arizona Court Consolidates ADA Lawsuits

The number of claims under the design and construction requirements of the Americans with Disabilities Act (ADA) continues to increase, but a recent development in Arizona may slow this trend. The Arizona Attorney General has…more

Accessibility Rules, ADA, Disability, Disability Access Claims, Disability Discrimination

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New California Landlord Disclosure Requirements Effective July 1

Two new landlord disclosure requirements become effective in California on July 1, 2013. One requires that all new commercial leases state whether the property has been inspected for disability access—and if so, the results. The…more

Certified Access Specialists, Commercial Leases, Compliance, Disability, Disclosure Requirements

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Pa. Superior Court Affirms Punitive Damage Award in Breach of Noncompetition Agreement

The Pennsylvania Superior Court has affirmed a lower court ruling that assesses punitive damages against several individuals and their new employer resulting from their en masse departure from a previous firm and, in the…more

Breach of Contract, Contacts List, Corporate Counsel, Non-Compete Agreements, Non-Solicitation Agreements

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States and Business Groups Challenge Increase to FLSA Salary Threshold

Twenty-one states and more than 50 business groups, in separate actions, have filed suit in the Eastern District of Texas seeking to enjoin implementation of the Department of Labor's (DOL) Final Rule increasing the salary…more

DOL, Exempt-Employees, Final Rules, FLSA, Minimum Salary

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The Sum of the Parts ? the Whole? SCOTUS on Samsung v Apple

The U.S. Supreme Court unanimously overturned a $400 million damages award against Samsung for infringing Apple's smartphone design patents. In a decision that upsets a long-standing rule for calculating damages for design…more

Apple, Apple v Samsung, Cell Phones, Design Patent, iPhone

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Supreme Court to Resolve Circuit Split Over Filing Bankruptcy Proof of Claim on Time-Barred Debt

The U.S. Supreme Court granted certiorari last week in Midland Funding, LLC v. Aleida Johnson, a decision of the 11th Circuit that held that Midland’s filing of a proof of claim in the plaintiff’s bankruptcy case on a…more

Bankruptcy Code, Certiorari, Consumer Bankruptcy, FDCPA, Financial Sector

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New Utah Law Prohibits Unequal Treatment of Rental Units by Homeowners Associations

Recent revisions to Utah law clarify the role and authority of homeowners associations in restricting owners’ renting out of their units, and may require associations to take action to comply. House Bill 98, signed into law this…more

Amended Legislation, Condominiums, Homeowners' Association, Rental Property

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New IRS Management Guidance is Flexible, Furthers P3s

State and local governments and 501(c)(3) organizations have been given very flexible guidance by the IRS for longer-term private management of tax-exempt bond financed projects to facilitate general operations and major…more

501(c)(3), Compensation, Construction Industry, Infrastructure, IRS

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Federal Circuit Limits On-Sale Bar’s Reach

If you were concerned that outsourcing the manufacture of your invention before you filed your patent application triggered a "sale" that could put your patent at risk, you can rest easy. In The Medicines Company v…more

ANDA, Generic Drugs, Hospira, On-Sale Bar, Patent Applications

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Second Circuit Affirms Fair Use in Google Books Decision

The Second Circuit Court of Appeals ruled today that Google's digitization of books for use in its Google Books and Google Books Library Project is not copyright infringement. The Court also ruled that providing a public online…more

Appeals, Authors, Authors Guild, Class Action, Copyright

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Utah's New Post-Employment Restrictions Act Effective Tomorrow

Utah's newly enacted Post-Employment Restrictions Act (Act) takes effect tomorrow and significantly limits the duration of newly entered noncompetition agreements. Employers should review their noncompetition agreements going…more

Employer Liability Issues, Employment Contract, Former Employee, Hiring & Firing, New Legislation

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EPA Doubles Down on Methane Regulation for Oil and Gas Industry

The U.S. Environmental Protection Agency (EPA) released a packet of measures targeting methane emissions from operations of the oil and gas industry on May 12, 2016. These measures include three final regulations affecting new…more

Energy Sector, EPA, Fracking, Greenhouse Gas Emissions, Methane

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U.S. Supreme Court Urges Resolution of Bankruptcy Disputes

The U.S. Supreme Court has provided new stimulus to the use of mediation in disputes over attorney fees in its June 15, 2015, decision in Baker Botts LLP v. Asarco. Baker Botts was employed by the bankruptcy debtor estate and,…more

Appeals, Attorney's Fees, Baker Botts v ASARCO, Bullard v Blue Hills Bank, Debtors

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Creating a Social Network of Tax Savings: The Use of LLCs in Structuring Philanthropic and Public Good Activities

The use of a limited liability company (LLC) by Mark Zuckerberg and his wife Priscilla Chan as the vehicle for advancing of “philanthropic, public advocacy, and other activities for the public good” has recently received a great…more

Charitable Donations, Charitable Organizations, Limited Liability Company (LLC), Mark Zuckerberg, Tax Deductions

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Federal Circuit Finds Software Patent Not Abstract

Reversing a district court holding, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that two patents directed to a method for organizing data in a computer database did not claim an unpatentable…more

Abstract Ideas, CLS Bank v Alice Corp, Computer-Related Inventions, Mayo v. Prometheus, Microsoft

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Pennsylvania County Recorder Cannot Sue MERS for Failure to Record Mortgage Assignments, Third Circuit Rules in Overturning Oft-Cited District Court Opinion

The U.S. Court of Appeals for the Third Circuit has ruled that Pennsylvania’s recording statute does not require the recording of all conveyances. As a result, the Third Circuit reversed the district court’s refusal to enter…more

Banking Sector, Banks, Class Action, Declaratory Judgments, Deeds

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Action Needed – FY 2016 Appropriations Bill may cut HOME program funding by 93%

The Fiscal Year 2016 Transportation, Housing and Urban Development, and Related Agencies (THUD) Subcommittee has proposed critical markups to the Year 2016 Appropriations Bill. One of the most dramatic funding cuts all but…more

Affordable Housing, Appropriations Bill, Community Development Block Grants, Congressional Committees

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Bourne Valley Redux

The dispute between lenders and the purchasers at homeowners’ association foreclosure sale regarding superiority of title has embroiled the State of Nevada since at least as early as 2012. Since the issue rose in volume and…more

Appeals, Banking Sector, Due Process, En Banc Review, Foreclosure

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Supreme Court Clarifies Extraterritorial Reach of RICO

In an unusual four-member majority opinion in RJR Nabisco, Inc. v. European Community, the U.S. Supreme Court settled a host of controversial questions about the extraterritorial scope of the Racketeer Influenced and Corrupt…more

Corporate Counsel, EU, Extraterritoriality Rules, Foreign Entities, Mail Fraud

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Housing options for veterans

With Independence Day right around the corner and with several bond financings benefitting homeless veterans recently in the news (see Proposition 41 Bond Measure and Apartments for Homeless Veterans), it seemed fitting to…more

Affordable Housing, Bond Financing, Bonds, Department of Veterans Affairs, Homeless Issues

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New Jersey Takes Emergency Action To Speed Rebuilding after Hurricane Sandy

The New Jersey Department of Environmental Protection (NJDEP) took emergency action to reduce approval backlogs and to make it easier for those seeking to rebuild in wake of Hurricane Sandy to obtain regulatory approvals by…more

Department of Environmental Protection, Hurricane Sandy, Reconstruction, Redevelopment

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U.S. Issues Unmanned Aircraft Fact Sheet for State, Local Regulators

While Unmanned Aircraft Systems (UAS), more commonly—if inaccurately—known as drones, continue to fly near the edges of federal preemption, the Federal Aviation Administration (FAA) continues to provide guidance for this…more

Drones, Federal Aviation Administration (FAA), Registration Requirement, Unmanned Aircraft Systems

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Third Circuit Expands Liability Under the ADEA for Disparate Impact Claims

The Third Circuit recently held that the Age Discrimination in Employment Act (ADEA) permits disparate impact claims by older "subgroups" of workers within the law's protected 40-and-over class. Under the court's ruling, workers…more

ADEA, Age Discrimination, Auto Manufacturers, Automotive Industry, Disability Discrimination

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Hague Agreement Streamlines Registration of Industrial Designs

On April 2, the U.S. Patent and Trademark Office (USPTO) issued Final Rules to implement the provisions of the Hague Agreement concerning the international registration of industrial designs. The Agreement is effective in the…more

Design Patent, Final Rules, Hague Agreement, Industrial Design, Patents

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Congress Extends EB-5 Again Without Changes Despite Months of Legislative Meetings, Lobbying, Proposals, and Negotiations

In what is considered a significant victory for real estate developers, Congress capped off months of handwringing and numerous proposals by extending the EB-5 Immigrant Investor Program without amendment until September 30,…more

Construction Industry, EB-5, EB-5 Regional Centers, Housing Developers, Immigrant Investor Program

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Mass. Pay Equity Law Brings Wave of Hiring Restrictions

Signaling a new era in employee pay equity, "The Act to Establish Pay Equity" will require Massachusetts employers to make sweeping changes in their pay and hiring practices. Among the most significant changes, the Act bars…more

Civil Rights Act, Equal Pay, Equal Pay Act, Gender-Based Pay Discrimination, New Legislation

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Georgia Passes New Social P3 Legislation

Georgia Governor Nathan Deal signed into law new public-private partnership (P3) legislation, the Partnership for Public Facilities and Infrastructure Act (SB 59) (the Act) on May 5, 2015. The Act allows state and local…more

Governor Deal, New Legislation, Public Private Partnerships (P3s), Public Projects, State and Local Government

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IP Due Diligence in M&A Transactions

Wendy A. Choi, who leads Ballard Spahr's Patents Group, talks about the importance of intellectual property due diligence during M&A transaction…more

Due Diligence

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HUD Issues Statement on Applicability of Disparate Impact Liability to Insurance Industry

The U.S. Department of Housing and Urban Development (HUD) has announced it will continue to address disparate impact liability for discriminatory insurance practices on a case-by-case basis. HUD addressed concerns from the…more

Administrative Procedure Act, Discrimination, Disparate Impact, Housing Market, HUD

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IRS Approves New Rules To Minimize Taxes Related to M&A Transactions

The Internal Revenue Service recently adopted long-awaited regulations intended to provide a new means of minimizing taxes in M&A transactions. The newly adopted regulations take effect on May 15, 2013, under Section 336(e) of…more

IRS

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Planning for Tenant's Changing Needs: Options To Renew, Expand, Cancel, or Reduce

As a tenant's business changes, its needs and space requirements also change. If possible, a commercial tenant should anticipate the possibility of changing needs by negotiating certain beneficial options and rights into the…more

Commercial Leases, Contract Drafting, Default, Fair Market Value, Landlords

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New Utah Law Prohibits Unequal Treatment of Rental Units by Homeowners Associations

Recent revisions to Utah law clarify the role and authority of homeowners associations in restricting owners’ renting out of their units, and may require associations to take action to comply. House Bill 98, signed into law this…more

Amended Legislation, Condominiums, Homeowners' Association, Rental Property

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Philadelphia Amends Fuel Oil Ordinance, Allows Use of Old Oil After New Standards Take Effect July 1

An amendment to Philadelphia Code relating to the use of No. 2 fuel oil—the most widely used oil for heating, industrial operations, and emergency generation, was signed into law by Mayor Michael Nutter on June 18. This…more

Local Ordinance, Manufacturing Facilities, Oil & Gas

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OSHA Incorporates Previous Guidance into Whistleblower Manual

The Occupational Safety and Health Administration (OSHA) has issued a new Whistleblower Investigations Manual that clarifies the new, relaxed standard to be used by its investigators in determining whether to pursue a…more

Affordable Care Act, Anti-Retaliation Provisions, Burden of Proof, Dodd-Frank, OSHA

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U.S. District Court Enters Injunction Preventing Enforcement of New FLSA Rules

A federal judge in Texas has granted a nationwide preliminary injunction sought by several business groups and states preventing the U.S. Department of Labor (DOL) from enforcing its new overtime rules, which had been set to go…more

DOL, Exempt-Employees, Final Rules, FLSA, Minimum Salary

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EPA Doubles Down on Methane Regulation for Oil and Gas Industry

The U.S. Environmental Protection Agency (EPA) released a packet of measures targeting methane emissions from operations of the oil and gas industry on May 12, 2016. These measures include three final regulations affecting new…more

Energy Sector, EPA, Fracking, Greenhouse Gas Emissions, Methane

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Investment Management Update

IRS Issues Proposed Regulations Providing Guidance On The Tax Qualification Of Mutual Funds - On September 27, 2016, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) that provide…more

Beneficial Owner, Conflicts of Interest, Controlled Foreign Corporations, Enforcement Actions, FCPA

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$6.3 Million Judgment Awarded in Alleged Timeshare Resale Scam

A federal court recently entered a final judgment against and approved settlement agreements with several telemarketing companies charged by the Federal Trade Commission with operating a timeshare resale scam. The judgment…more

FTC, Scams, Telemarketing Sales Rule, Timeshare

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Proposed reform measure passed by House would result in seismic change in congressional review procedure for “major rules”

We have previously written about the Congressional Review Act (“CRA”), which was enacted as part of the Contract with America Advancement Act of 1996. The CRA created a fast-track legislative process for Congress to nullify a…more

Congressional Review Act, Proposed Legislation, Regulatory Oversight, Rulemaking Process

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CFPB releases report on student loan debt owed by older consumers

The CFPB has released a new report, “Snapshot of older consumers and student loan debt,” that provides statistics on the growing number of consumers age 60 and over (older consumers) who owe student loan debt and the growing…more

Banking Sector, Borrowers, CFPB, Consumer Complaint Management, Consumer Financial Products

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U.S. Supreme Court Affirms Limits on State Open Records Laws

Businesses and organizations that request public records from other states could find their access to such records restricted as a result of a recent U.S. Supreme Court ruling…more

FOIA, Public Records, SCOTUS

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Bankruptcy Trustees Target Colleges and Universities

Over the past few years, higher education institutions have seen an increase in litigation from an unexpected source: bankruptcy trustees. Trustees appointed in personal bankruptcy cases are seeking to claw back tuition payments…more

Clawbacks, Colleges, Consumer Bankruptcy, Educational Institutions, Tuition

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CFPB’s national debt collection consumer survey findings lays groundwork for future enforcement and rulemaking priorities

Early yesterday, the CFPB released the findings of its national debt collection consumer survey. Both the headline of the CFPB’s press release and Director Cordray’s remarks highlight the survey’s finding that “over one-in-four…more

Banking Sector, CFPB, Consent Order, Consumer Financial Products, Consumer Lenders

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Eleventh Circuit Weighs In on the FCRA’s Furnisher Investigation Requirement

The 11th Circuit has clarified that the Fair Credit Reporting Act (FCRA) requires furnishers of credit information—like their credit reporting agency (CRA) counterparts—to conduct "reasonable" investigations of consumer…more

Collection Agencies, Credit Reporting Agencies, Credit Reports, Creditors, Debt Buyers

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Pennsylvania Supreme Court Rules Only Original Purchasers May Recover Damages for Breach of the Builder’s Implied Warranty of Habitability

The Pennsylvania Supreme Court ruled that a builder’s implied warranty of habitability extends only to the initial buyer of a home, and not to subsequent purchasers. In Conway v. The Cutler Group, Inc., the Court reversed an…more

Buyers, Construction Contracts, Construction Defects, Construction Industry, Contract Disputes

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Supreme Court Agrees Again To Decide Critical Disparate Impact Questions under the Fair Housing Act

The question of whether plaintiffs suing under the Fair Housing Act may bring disparate impact claims is back on the U.S. Supreme Court's docket as a result of the Court's decision today to grant certiorari in Mount Holly v…more

CFPB, Discrimination, Disparate Impact, ECOA, Fair Housing Act (FHA)

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Plaintiffs Cannot Bring Data Breach Lawsuits Without Evidence That Information Will Be Used To Harm

The latest development in how American courts will handle the standing question for data breach class actions came last week when the U.S. District Court for the District of Columbia dismissed for lack of standing a putative…more

Article III, Blue Cross, Blue Shield, CareFirst, Class Action

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California, Nevada Expand Scope of Customer Personal Information Subject to Reasonable Security Measures

Recent statutory amendments passed in California and Nevada expanding the definition of “personal information” will significantly impact the security measures businesses operating in these states must implement when handling…more

Compliance, Cybersecurity, Data Privacy, Data Security, Financial Institutions

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Section 202: using federal sources to assist the growing elderly population

During one of the sessions at Ballard Spahr’s Ninth Annual National Housing Symposium, Mara Blitzer from the U.S. Department of Housing and Urban Development (HUD) discussed federal housing resources for aging Americans with a…more

Affordable Housing, HUD

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Eighth Circuit Clarifies Spokeo Ruling to Require Injury-in-Fact to Satisfy Article III Standing

In a victory to the defense bar, the U.S. Court of Appeals for the Eighth Circuit has published the first appellate opinion to apply the principles the U.S. Supreme Court articulated in Spokeo, Inc. v. Robins regarding Article…more

Article III, Cable Television Providers, Corporate Counsel, Injury-in-Fact, Personally Identifiable Information

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Obama Signs 21st Century Cures Act, Adding $6.3 Billion For Medical Research

The Cures Act aims to increase the speed by which new drugs are brought to market by streamlining clinical trials, allowing the use of patient data in the regulatory review process, and modernizing U.S. Food and Drug…more

21st Century Cures Initiative, Addiction Equity Act, Affordable Care Act, Benefit Plan Reimbursements, Clinical Trials

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Colorado Supreme Court Upholds Firing Over Off-Duty Medical Marijuana Use

An employer did not act unlawfully when it fired a quadriplegic worker who used medical marijuana while off duty, the Colorado Supreme Court ruled today in a 6-0 decision. Affirming the April 2013 decision of the Colorado Court…more

Coats v Dish Network, Controlled Substances Act, Disabled, Dish Network, Drug Testing

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In re Tam en banc decision—Lanham Act 2(a) is unconstitutional

In a highly anticipated decision, the Federal Circuit Court of Appeals, sitting en banc, ruled today that Section 2(a) of the Lanham Act, which bars registration of marks that “disparage” a group of persons, unconstitutionally…more

Disparagement, First Amendment, Free Speech, Lanham Act, NFL

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Proposed IRS Rules Endanger Business Valuation Discounts for Family-Owned Entities

Historically, the IRS has closely scrutinized transfers of interests in family-owned entities between family members. In particular, it has sought to curtail the use of discounts to decrease the estate and gift tax value of such…more

Business Succession, Business Valuations, Closely Held Businesses, Estate Planning, Estate Tax

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New Law Affects FHA Requirements for Condominium Financing

President Obama signed the Housing Opportunity Through Modernization Act (H.R. 3700) into law on July 29. Title III of the Act will significantly modify Federal Housing Administration (FHA) condominium mortgage insurance…more

Condominiums, Fannie Mae, Federal Housing Administration (FHA), Freddie Mac, HUD

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Redrawing of Arizona Legislative Districts Upheld by U.S. Supreme Court

The U.S. Supreme Court, in an opinion written by Justice Breyer, has unanimously upheld the Arizona Independent Redistricting Commission's plan to redraw Arizona's legislative districts. Lawyers from Ballard Spahr's Political…more

Equal Protection, Fourteenth Amendment, Harris v Arizona Independent Redistricting Commission, Redistricting, SCOTUS

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11th Circuit Holds That Entity Collecting Its Own Debt, Which It Acquired After Default, Is Not a “Debt Collector” Under the FDCPA, Highlighting Split Among the Circuits

The 11th Circuit Court of Appeals has affirmed its prior holding in Arencibia v. Mortgage Guaranty Insurance Corp. that an entity that acquires and collects debt on its own behalf does not qualify as a debt collector under the…more

Class Action, Debt Buyers, Debt Collection, Debt Collectors, FDCPA

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New Economic Development Opportunities Possible Thanks to Improved Marketability of Philadelphia Tax Increment Finance Transactions

The tools available to the City of Philadelphia to finance community and economic development projects have been enhanced under a new law that authorizes the imposition of special assessments to support tax increment finance…more

Bonds, Economic Development, New Legislation, Public Finance, Public Improvement Projects

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Student Athletes Are Not Employees Under FLSA, Circuit Court Affirms

The Seventh Circuit Court of Appeals has affirmed a lower court decision holding that student athletes' participation in college sports does not make them school employees entitled to compensation, a decision that should cause…more

College Athletes, Educational Institutions, Employee Definition, Employees, FLSA

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D.C. Circuit Holds CFPB Structure Unconstitutional, Interpretation of RESPA Not Entitled to Deference

The D.C. Circuit yesterday issued its long-awaited decision in PHH Corporation v. CFPB. In reversing the decision of Consumer Financial Protection Bureau (CFPB) Director Cordray to impose an enhanced penalty of $109 million on…more

Administrative Proceedings, Article II, Banking Sector, CFPB, Constitutional Challenges

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Treasury Department Announces $3.5 Billion in New Markets Tax Credit Allocation Awards

Eighty-five community development entities (CDEs) have been selected to receive $3.5 billion in New Markets Tax Credit (NMTC) allocation authority in the 2012 round of the NMTC Program. The announcement of the latest round of…more

Community Development Entities, New Market Tax Credits

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NLRB: Student Assistants Now Employees Entitled to Unionize

The National Labor Relations Board has ruled in a 3-1 decision that graduate students at private, nonprofit higher education institutions "who perform services at a university in connection with their studies are statutory…more

Brown University, Collective Bargaining, Colleges, Educational Institutions, Graduate Students

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OCC Addresses Concerns on Issuance of National Bank Charters to Fintech Companies

The Office of the Comptroller of the Currency (OCC) has proposed to allow financial technology (fintech) companies to apply for full or special purpose national bank charters. In advance of the proposal's January 15, 2017,…more

Banking Sector, Federal Reserve, FinTech, Fintech Charter, National Bank Charters

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Federal Court Addresses Frequently Overlooked Nuances of Electronic Document Production

U.S. Magistrate Judge Paul S. Grewal of the Northern District of California recently issued an order in Venture Corp., Ltd. v. Barrett shedding light on the meaning of two Federal Rules of Civil Procedure governing document…more

Discovery, Document Productions, Federal Rules of Civil Procedure

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Criminal Charges Brought in Food Safety Case

In another show of force against food processors, federal prosecutors in Colorado recently brought criminal charges against two brothers who owned a cantaloupe farm linked to a 2011 listeria outbreak that killed 33 people. The…more

Criminal Prosecution, FDCA, Food Manufacturers, Food Safety, Listeria

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FHFA proposed rule on Enterprise housing goals is open for comments

Issued earlier this month, a proposed rule from the Federal Housing Finance Agency considers updates to the Agency’s Enterprise housing goals. The rule applies to mortgages purchased by Fannie Mae and Freddie Mac for housing…more

Affordable Housing, Enterprise Zones, Fannie Mae, FHFA, Freddie Mac

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GAO report highlights gap in SCRA oversight for private student loans; encourages CFPB to seek additional statutory authority

On November 18, the GAO released a report examining issues related to implementation of the Servicemembers Civil Relief Act (SCRA) interest rate cap for student loans. The Senate Committee on Homeland Security and Governmental…more

Banking Sector, CFPB, Consumer Lenders, Federal Student Loans, Financial Institutions

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Supreme Court Affirms Invalidation of Maryland's Program to Incentivize New Power Generation

The U.S. Supreme Court, in a narrowly crafted opinion by Justice Ginsburg, has unanimously invalidated Maryland's program to promote construction of new natural gas capacity by guaranteeing new generating capacity. The Maryland…more

Energy Sector, Federal Power Act, FERC, Hughes v Talen Energy, Natural Gas

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HUD Issues Statement on Applicability of Disparate Impact Liability to Insurance Industry

The U.S. Department of Housing and Urban Development (HUD) has announced it will continue to address disparate impact liability for discriminatory insurance practices on a case-by-case basis. HUD addressed concerns from the…more

Administrative Procedure Act, Discrimination, Disparate Impact, Housing Market, HUD

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SEC Announces Second Wave of MCDC Enforcement Actions

The Securities and Exchange Commission (SEC) this week announced enforcement actions under its Municipalities Continuing Disclosure Cooperation (MCDC) Initiative, targeting 22 municipal bond underwriting firms for alleged due…more

Borrowers, Compliance, Disclosure Requirements, Due Diligence, EMMA

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Third Circuit Expands Liability Under the ADEA for Disparate Impact Claims

The Third Circuit recently held that the Age Discrimination in Employment Act (ADEA) permits disparate impact claims by older "subgroups" of workers within the law's protected 40-and-over class. Under the court's ruling, workers…more

ADEA, Age Discrimination, Auto Manufacturers, Automotive Industry, Disability Discrimination

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EEOC Rule Requires Employers to Report Summary Pay Data

The Equal Employment Opportunity Commission (EEOC) has finalized its anticipated rule regarding the addition of pay data to its annual Employer Information Report (EEO-1). Beginning on March 31, 2018, private employers with more…more

Data Collection, EEO-1, EEOC, Employment Discrimination, Equal Pay

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Regulators Decline to Exempt TOBs from Risk Retention Rule but Add Helpful Revisions and Clarifications

Although regulators have rebuffed industry efforts to have tender option bonds (TOBs) exempted from the final credit risk retention rule (the CRRR), they have nevertheless provided some helpful changes and clarifications that…more

ABS, Asset-Backed Securities, Dodd-Frank, Municipal Bonds, Risk Retention

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Dept. of Ed. Bans Pre-Dispute Arbitration Agreements by Title IV Schools

The U.S. Department of Education has issued a final rule that broadly addresses the ability of a student to assert a school's misconduct as a defense to repayment of a federal student loan. The final rule includes a ban on all…more

Arbitration Agreements, Borrowers, CFPB, Consumer Financial Products, Department of Education

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New York AG Takes Proactive Approach to Regulation of Nonprofits

Signaling increased oversight of nonprofit organizations, the New York Attorney General’s Office recently began to scrutinize the management and operation of New York nonprofits in an effort to head off potential crises before…more

Affordable Housing, Financial Reporting, Misappropriation, Non-Profits, Private Schools

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SEC Adopts Final Rules to Facilitate Intrastate and Regional Securities Offerings

The Securities and Exchange Commission (SEC) has adopted final rules modernizing and expanding the ways in which smaller companies can raise capital. Rule 147 of the Securities Act of 1933, as amended, provides a safe…more

Capital Raising, Crowdfunding, Doing Business, Financial Markets, Financial Sector

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HUD soliciting public comments on revised and new RAD forms

On March 17, 2016, HUD published a notice in the Federal Register to announce that as part of the process to renew the use of the form documents used under both the 1st and 2nd Component of its Rental Assistance Demonstration…more

HUD, Public Comment, Public Housing Authorities, Rental Assistance Demonstration, Required Forms

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Bipartisan Budget Act Creates New TCPA Exemptions

Prior to the amendment, these calls would have been prohibited absent the recipient’s prior express consent if placed to a cellular telephone and if they were made by an automatic telephone dialing system or included an…more

Bipartisan Budget, Cell Phones, Corporate Counsel, Debt Collection, Prior Express Consent

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The Panama Papers - What the Fallout Means for U.S. Companies and Professionals

White Collar Defense/Internal Investigations Partner Peter D. Hardy discusses the financial implications of the Panama Papers leak on U.S. companies and professionals, the growing perception of the United States as a tax haven,…more

Internal Investigations, Money Laundering, Panama Papers, Tax Evasion, White Collar Crimes

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FDA Issues Draft Guidance on Cybersecurity for Postmarket Medical Devices

The Food and Drug Administration's (FDA) most recent draft guidance focuses on cybersecurity in postmarket medical devices and makes recommendations for identifying, assessing, and responding to cybersecurity vulnerabilities…more

Cybersecurity, FDA, Medical Devices

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Real Estate News in Metro DC

Ballard Spahr’s mixed-use, condominium, and multifamily lawyers are pleased to provide this newsletter to keep you apprised of important developments and trends in real estate law in Maryland, Virginia, and Washington, D.C…more

Condominiums, Construction Defects, Construction Industry, Construction Project, Disclosure Requirements

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Utah Supreme Court Finds No Employer Protection in Rule of Professional Conduct

The Utah Supreme Court held that Rule 1.13(b) of the Utah Rules of Professional Conduct, which requires in-house counsel to report suspected illegal activity to upper management, does not reflect a “clear and substantial public…more

ADA, At-Will Employment, Employment Contract, Employment Policies, Popular

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Third Circuit Requires Affidavit of Merit in Products Liability Case Against Residential Homebuilder

In a case of first impression, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of design defect claims against a residential homebuilder under New Jersey’s Product Liability Act when the homeowner failed…more

Architecture, Construction Litigation, Design Defects, Inadequate Warning, Professional Liability

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Temporary Relief for Certain Student Health Plans Extended Indefinitely

In recently issued guidance, the U.S. Departments of Treasury, Labor, and Health and Human Services indicated that they will indefinitely extend relief to colleges and universities that subsidize the cost of individual insurance…more

Affordable Care Act, Colleges, DOL, Educational Institutions, Employee Benefits

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Ballard Opinion Letter Program to Replace IRS Determination Letter Program

The Internal Revenue Service has largely ended its determination letter program by which sponsors of individually designed retirement plans can obtain confirmation that their plan documents are tax-qualified. The IRS has…more

Determination Letter, Employee Benefits, IRS, Qualified Retirement Plans, Retirement Plan

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New IRS Management Guidance is Flexible, Furthers P3s

State and local governments and 501(c)(3) organizations have been given very flexible guidance by the IRS for longer-term private management of tax-exempt bond financed projects to facilitate general operations and major…more

501(c)(3), Compensation, Construction Industry, Infrastructure, IRS

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SEC Proposed Rule 10D-1 Regarding Clawback Policies

The Securities and Exchange Commission (SEC) recently proposed rules requiring national securities exchanges such as the New York Stock Exchange and NASDAQ to establish listing standards requiring publicly traded companies to…more

Clawbacks, Comment Period, Disclosure Requirements, Executive Compensation, Incentive Compensation

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CFPB Mortgage Servicing Rule Amendments Published in Federal Register

The CFPB Mortgage Servicing Rule Amendments were published in the Federal Register yesterday, starting the clock for the effective date of the amended provisions.  Most of the provisions are effective on October 19, 2017.  The…more

Banking Sector, Borrowers, CFPB, Consumer Bankruptcy, FDCPA

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EEOC Releases New Guidance on National Origin Discrimination

The Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on national origin discrimination, which serves as a timely reminder of the law and the EEOC's continued focus in this area in the wake of an…more

Discrimination, EEOC, Employer Liability Issues, Employment Discrimination, Harassment

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Court: Stored Communications Act Warrant Cannot Be Used to Seize Data Held Overseas

In a case that may have significant impact for companies providing public Internet and cloud services, the Second Circuit has ruled that a federal court may not issue a criminal warrant ordering a U.S. company to produce emails…more

Cloud Computing, Criminal Investigations, e-Discovery, Electronically Stored Information, Email

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Oregon Creates Community Solar Program

Oregon Governor Kate Brown has signed legislation enacting a new community solar program permitting utilities and third parties to own or operate a community-based renewable energy project. The law also sets a specific target…more

Coal-Fired Generation, Energy Projects, Energy Sector, New Legislation, Public Utilities Commission

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Impact of USPTO Interim Guidance on Chemical, Pharmaceutical, and Biotech Inventions

The recent interim guidance issued by U.S. Patent and Trademark Office (USPTO) provides applicants and practitioners with more helpful information about which types of claims the USPTO will find to satisfy subject matter…more

AMP v Myriad, Genetic Materials, Guidance Update, Mayo v. Prometheus, Patent-Eligible Subject Matter

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Louisiana Amends P3 Legislation Granting Authority to DOTD

The State of Louisiana has passed a public-private partnership (P3) law to help alleviate a $12.7 billion backlog in highway and bridge maintenance and construction needs across the state. The law authorizes the Louisiana…more

Bridges, Construction Industry, Construction Project, Department of Transportation (DOT), Highways

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Reminder: Comments to revised RAD forms due October 28th and RAD Report out for review

On September 28, 2016, HUD published a notice in the Federal Register to solicit comments to revised form documents used in the Rental Assistance Demonstration (“RAD”). This notice follows a 60-day comment period on…more

Affordable Housing, Comment Period, Federal Register, Financing, HUD

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Amendments Strengthen Toxic Substances Control Act

President Obama's signing of amendments to the Toxic Substances Control Law sealed a welcome effort to overhaul the 40-year-old Toxic Substances Control Act (TSCA). The amendments were spurred on by a rare bipartisan consensus…more

Chemicals, EPA, Legislative Amendments, Manufacturers, Preemption

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Real Estate News in Metro DC

Ballard Spahr’s mixed-use, condominium, and multifamily lawyers are pleased to provide this newsletter to keep you apprised of important developments and trends in real estate law in Maryland, Virginia, and Washington, D.C…more

Condominiums, Construction Defects, Construction Industry, Construction Project, Disclosure Requirements

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CFPB’s national debt collection consumer survey findings lays groundwork for future enforcement and rulemaking priorities

Early yesterday, the CFPB released the findings of its national debt collection consumer survey. Both the headline of the CFPB’s press release and Director Cordray’s remarks highlight the survey’s finding that “over one-in-four…more

Banking Sector, CFPB, Consent Order, Consumer Financial Products, Consumer Lenders

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New Incentive-Based Compensation: Proposed Rules for Financial Institutions

A group of financial regulatory agencies has released for comment revised proposed rules under Section 956 of the Dodd-Frank Act Wall Street Reform and Consumer Protection Act. The rules provide for regulations and guidelines…more

Banking Sector, Clawbacks, Corporate Officers, Dodd-Frank, Executive Compensation

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Courts, States Continue to Wrestle with Homeowners Association Assessment Liens

The circumstances under which a condominium or homeowners association (HOA) lien for unpaid assessments may wipe out a lender’s mortgage lien continues to evolve across the country. As noted in our previous alerts regarding…more

Bank of America, Condominiums, Fannie Mae, FHFA, Foreclosure

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SEC Adopts Rules Permitting Forward Incorporation by Reference on Form S-1 and Simplifying Disclosure Requirements for EGCs

The Securities and Exchange Commission (SEC) has adopted interim final rules permitting smaller reporting companies, generally companies with a public float of less than $75 million, to incorporate by reference on Form S-1 any…more

Emerging Growth Companies, Fixing America’s Surface Transportation Act (FAST Act), Form S-1, Incorporation, Interim Rule

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China's Stringent New Rules on Yuan Transfers Could Hinder EB-5 Fundraising

The Chinese government has enacted new rules severely limiting foreign currency transfers out of China. The scope of the limitations are not clear but the Xinhua News Agency reported that Chinese banks advised their customers…more

China, Crowdfunding, Currency Control, EB-5, Financial Institutions

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FTC Scores Another Victory in FTC v. Advocate Health Care Network

The Federal Trade Commission (FTC) won another decisive victory in its effort to fight health care provider consolidation when the U.S. Court of Appeals for the Seventh Circuit reversed a district court’s decision denying the…more

Antitrust Litigation, Antitrust Provisions, Appeals, FTC, Health Care Providers

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Website Urges Employees to Form Unions

In a move designed to aid unionization efforts, union activists have launched Unionizeme.org—with the stated goal of ending poverty for employees at large companies through unionization. The website—which generally targets…more

NLRB, Online Platforms, Union Organizers, Unions, Wage and Hour

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Important Changes to Nevada's Non-Judicial Foreclosure Process

Lenders who secure loans with real property and their foreclosing trustees should be aware of important changes to the Nevada Revised Statutes regarding non-judicial foreclosures that went into effect on June 1, 2013…more

Borrowers, Deed of Trust, Foreclosure, Lenders, Mortgages

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MDE Self-Disclosure Can Limit, Even Eliminate Risk of Environmental Penalties

Maryland entities that voluntarily discover and disclose environmental violations can still receive penalty reductions, or even complete forgiveness, under the rarely invoked Maryland Department of the Environment (MDE)…more

Environmental Violations, EPA, Penalties, Self-Disclosure Requirements, Self-Reporting

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Pennsylvania Capital Stock Tax Phased Out; LLCs Now Are the Entity of Choice in PA; Procedure for Filing Final Returns

Until it expired at the end of 2015, Pennsylvania Capital Stock Franchise Tax (CSFT) was imposed on all limited liability companies (LLCs), corporations, joint-stock associations, and business trusts doing business in or owning…more

Business Taxes, Commercial Property Owners, Limited Liability Company (LLC), Limited Partnerships, Tax Rates

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SEC Adopts Final Rules to Facilitate Intrastate and Regional Securities Offerings

The Securities and Exchange Commission (SEC) has adopted final rules modernizing and expanding the ways in which smaller companies can raise capital. Rule 147 of the Securities Act of 1933, as amended, provides a safe…more

Capital Raising, Crowdfunding, Doing Business, Financial Markets, Financial Sector

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EU e-Privacy Regulation Raises Stakes for Compliance

The European Commission's proposed e-privacy regulation sets forth obligations on handling electronic communications and clarifies obligations for seeking consent for the use of cookies. Meant to bring the e-privacy directive in…more

Cookies, Corporate Counsel, Data Breach, Data Collection, Data Privacy

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FTC Can Regulate Cybersecurity Practices, Third Circuit Rules

The Federal Trade Commission (FTC) can regulate cybersecurity policies and procedures as “unfair” acts or practices under Section 5 of the FTC Act, the U.S. Court of Appeals for the Third Circuit has ruled in a very important…more

Appeals, Banking Sector, Banks, Best Practices, COPPA

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Redrawing of Arizona Legislative Districts Upheld by U.S. Supreme Court

The U.S. Supreme Court, in an opinion written by Justice Breyer, has unanimously upheld the Arizona Independent Redistricting Commission's plan to redraw Arizona's legislative districts. Lawyers from Ballard Spahr's Political…more

Equal Protection, Fourteenth Amendment, Harris v Arizona Independent Redistricting Commission, Redistricting, SCOTUS

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Department of Labor Releases Final Investment Advice Fiduciary Rules

The U.S. Department of Labor (DOL) has finalized regulations describing the circumstances in which a person who provides investment advice in connection with a retirement plan or individual retirement arrangement (IRA) acts as a…more

Best Interest Contract Exemptions, DOL, Employee Benefits, ERISA, ESOP

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D.C. Circuit grants PHH’s motion for leave to file supplemental response

Last Friday, the D.C. Circuit entered an order granting PHH’s motion for leave to file a supplemental response to the CFPB’s petition for rehearing en banc.  On December 22, PHH and the United States filed responses to the…more

Administrative Proceedings, Banking Sector, CFPB, Constitutional Challenges, Dodd-Frank

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Court Rules NCAA Can Block Colleges from Paying Student-Athletes, But Allows Scholarships for “Full Cost of Attendance”

In a partial victory for the NCAA, the Ninth Circuit Court of Appeals overturned in part a permanent injunction issued by the District Court for the Northern District of California, which had required the NCAA to allow schools…more

Basketball, Class Action, College Athletes, Colleges, Deferred Compensation

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District Court Holds That a Late Assignment to a Securitized Trust Is Voidable, Not Void, and Does Not Permit a Claim for Wrongful Foreclosure

The U.S. District Court for the Northern District of California has issued an opinion in Spangler v. Selene Finance, LP, rejecting a borrower’s allegation that an assignment of a deed of trust recorded after a foreclosure sale…more

Banking Sector, Deed of Trust, Foreclosure, Mortgages, Residential Real Estate Market

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Sharp Increase in NJ Consumer Class Actions as Company Websites Targeted

A formerly obscure, 35-year-old New Jersey statute is increasingly taking its place as the claim of choice for class action lawyers suing consumer-facing companies. Most recently, plaintiffs' lawyers are using the ambiguous…more

Class Action, Consumer Fraud, Disclaimers, Terms and Conditions, Websites

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States and Business Groups Challenge Increase to FLSA Salary Threshold

Twenty-one states and more than 50 business groups, in separate actions, have filed suit in the Eastern District of Texas seeking to enjoin implementation of the Department of Labor's (DOL) Final Rule increasing the salary…more

DOL, Exempt-Employees, Final Rules, FLSA, Minimum Salary

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Arizona Raises Minimum Wage, Adds Paid Sick Leave Requirement

When Arizona voters passed Proposition 206, The Fair Wages and Healthy Families Act, on November 8, 2016, they not only approved an increase in Arizona's minimum wage, they also approved a requirement for employers to provide…more

Ballot Measures, Minimum Wage, PTO, Sick Leave, Wage and Hour

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EEOC Releases New Guidance on National Origin Discrimination

The Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on national origin discrimination, which serves as a timely reminder of the law and the EEOC's continued focus in this area in the wake of an…more

Discrimination, EEOC, Employer Liability Issues, Employment Discrimination, Harassment

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CFPB amends service provider guidance

The CFPB has reissued its guidance on service providers which was formerly titled CFPB Bulletin 2012-03, and as published in the Federal Register on October 26, 2016, is now titled “Compliance Bulletin and Policy Guidance…more

CFPB, Consumer Financial Products, Financial Sector, Financial Services Industry, Guidance Update

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New Hampshire Enacts P3 Legislation

New Hampshire has joined a growing number of jurisdictions in the United States that have enacted legislation enabling public-private partnerships (P3) for transportation infrastructure projects. According to Governor Maggie…more

Construction Industry, Construction Project, Department of Transportation (DOT), Design-Build-Finance-Operate-Maintain (DBFOM), Infrastructure

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DOL Releases New FMLA Forms

The U.S. Department of Labor (DOL) has issued new forms for employers to use in connection with employee leave under the Family and Medical Leave Act (FMLA). The new forms, which replace the forms that expired in February, are…more

DOL, Employer Mandates, FMLA, GINA, Required Forms

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FinCEN Imposes $650,000 Civil Penalty on Small ''Card Club'' Gaming Establishment

The Financial Crimes Enforcement Network (FinCEN) announced its first enforcement action against a small “card club” gaming establishment imposing a civil penalty of $650,000. The enforcement action, announced December 17, 2015,…more

BSA/AML, Casinos, Enforcement Actions, FinCEN, Gambling

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Investment Management Update

IRS Issues Proposed Regulations Providing Guidance On The Tax Qualification Of Mutual Funds - On September 27, 2016, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) that provide…more

Beneficial Owner, Conflicts of Interest, Controlled Foreign Corporations, Enforcement Actions, FCPA

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Investment Management Update

IRS Issues Proposed Regulations Providing Guidance On The Tax Qualification Of Mutual Funds - On September 27, 2016, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) that provide…more

Beneficial Owner, Conflicts of Interest, Controlled Foreign Corporations, Enforcement Actions, FCPA

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New York DFS Brings Enforcement Action Against Two Debt Buyers for Collecting on Payday Loans

The New York Department of Financial Services (DFS) announced last week that it had entered into consent judgments with Webcollex LLC d/b/a CKS Financial (CKS) and National Credit Adjusters (NCA) for allegedly violating the…more

Civil Monetary Penalty, Consumer Financial Products, Debt Buyers, Debt Collection, FDCPA

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Investment Management Update

IRS Issues Proposed Regulations Providing Guidance On The Tax Qualification Of Mutual Funds - On September 27, 2016, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) that provide…more

Beneficial Owner, Conflicts of Interest, Controlled Foreign Corporations, Enforcement Actions, FCPA

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China's Stringent New Rules on Yuan Transfers Could Hinder EB-5 Fundraising

The Chinese government has enacted new rules severely limiting foreign currency transfers out of China. The scope of the limitations are not clear but the Xinhua News Agency reported that Chinese banks advised their customers…more

China, Crowdfunding, Currency Control, EB-5, Financial Institutions

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Who Is a ‘Foreign Official’ under the FCPA? Eleventh Circuit Weighs In

Providing appellate guidance for the first time, the U.S. Court of Appeals for the Eleventh Circuit interpreted a key term defining the types of “foreign officials” subject to the Foreign Corrupt Practices Act (FCPA) and…more

Appeals, Appellate Review, DOJ, FCPA, Foreign Official

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Philadelphia Toughens Its Realty Transfer Tax Law

Philadelphia just dramatically tightened its realty transfer tax rules to impose more realty transfer tax. Under the current Philadelphia and Pennsylvania realty transfer tax law, a real estate company owes realty transfer tax…more

Real Estate Market, Real Estate Transfers, Realty Transfer Taxes, Transfer Taxes

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Philadelphia Toughens Its Realty Transfer Tax Law

Philadelphia just dramatically tightened its realty transfer tax rules to impose more realty transfer tax. Under the current Philadelphia and Pennsylvania realty transfer tax law, a real estate company owes realty transfer tax…more

Real Estate Market, Real Estate Transfers, Realty Transfer Taxes, Transfer Taxes

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Supreme Court Provides New Ammunition for Defeating Securities Fraud Class Actions

The U.S. Supreme Court today gave companies new ammunition to defeat securities fraud class actions. In Halliburton v. Erica P. John Fund, the Court held that defendants can, at the preliminary class certification stage, rebut…more

Basic v Levinson, Class Action, Fraud, Fraud-on-the-Market, Halliburton

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Company Prevails in Challenge to FTC Data Security Complaint

A recent decision by the Federal Trade Commission (FTC) Chief Administrative Law Judge (ALJ) dismissed the FTC’s complaint against LabMD, Inc. (LabMD) asserting the company’s alleged failure to protect consumer data in two…more

ALJ, Data Protection, FTC, LabMD, Personally Identifiable Information

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Fed Circuit Decision Gives Broad Patents New Concerns

The Federal Circuit Court of Appeals overruled prior precedent this week in Williamson v. Citrix Online, LLC and lowered the standard for patent invalidity under 35 U.S.C. § 112 (f)—the statute that requires functional claims…more

Appeals, Covered Business Method Patents, Means-Plus-Function, Patent Invalidity, Patent Litigation

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Foreclosure of Nevada HOA Super Lien Cannot Extinguish Mortgage Lender’s Security Interest

The non-judicial foreclosure of a Nevada HOA super lien cannot constitutionally extinguish a mortgage lender's security interest, the Ninth Circuit Court of Appeals has held. This holding will affect many lawsuits in federal…more

Banking Sector, Due Process, Foreclosure, Fourteenth Amendment, HOA

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Northwestern University Football Players Can’t Form Union, NLRB Says and Refuses to Determine if They Are “Employees”

Northwestern University football players cannot form a union, the National Labor Relations Board (NLRB or Board) decided today. The NLRB based its ruling on its duty to maintain stability in labor relations and notably avoided…more

Employees, Football, NCAA, NLRA, NLRB

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NYSE MKT Amends Rules on How Listed Companies May Disclose Material News

Recent amendments to the NYSE MKT Company Guide provide that NYSE MKT-listed companies can comply with that Exchange’s immediate release policy by disseminating required information using any method or combination of methods…more

NYSE, Press Releases, Publicly-Traded Companies, Regulation FD, SEC

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The Need for Speed: The Delaware Rapid Arbitration Act

The Delaware Rapid Arbitration Act (DRAA), 10 Del. C. §§5801-581, which became effective this month, provides a new, speedy, and relatively low-cost arbitration process for commercial disputes through the Delaware Court of…more

Arbitration, Delaware Rapid Arbitration Act, Mediation

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FTC Scores Another Victory in FTC v. Advocate Health Care Network

The Federal Trade Commission (FTC) won another decisive victory in its effort to fight health care provider consolidation when the U.S. Court of Appeals for the Seventh Circuit reversed a district court’s decision denying the…more

Antitrust Litigation, Antitrust Provisions, Appeals, FTC, Health Care Providers

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Eighth Circuit Clarifies Spokeo Ruling to Require Injury-in-Fact to Satisfy Article III Standing

In a victory to the defense bar, the U.S. Court of Appeals for the Eighth Circuit has published the first appellate opinion to apply the principles the U.S. Supreme Court articulated in Spokeo, Inc. v. Robins regarding Article…more

Article III, Cable Television Providers, Corporate Counsel, Injury-in-Fact, Personally Identifiable Information

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EEOC Releases Guidance on Mental Health Discrimination

The Equal Employment Opportunity Commission (EEOC) has issued guidance reminding employers that it is illegal under the Americans with Disabilities Act (ADA) and other laws to discriminate against an employee simply because he…more

ADA, Disabilities, Disability Discrimination, EEOC, Employer Liability Issues

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Oregon Creates Community Solar Program

Oregon Governor Kate Brown has signed legislation enacting a new community solar program permitting utilities and third parties to own or operate a community-based renewable energy project. The law also sets a specific target…more

Coal-Fired Generation, Energy Projects, Energy Sector, New Legislation, Public Utilities Commission

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NYDFS Revises Cybersecurity Regulation, Extends Effective Date to March 1, 2017

The New York Department of Financial Services (NYDFS) announced today a revised regulation that will require all institutions subject to NYDFS supervision to establish and maintain a cybersecurity program meeting "certain…more

Banking Sector, Banks, CISO, Comment Period, Cybersecurity

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Supreme Court Agrees to Decide Enforceability of Class Action Waivers in Employment Agreements

The U.S. Supreme Court has agreed to decide an important issue that has deeply divided the Courts of Appeals—are arbitration provisions in employment agreements that waive an employee's right to bring or participate in class or…more

Arbitration, Arbitration Agreements, Case Consolidation, Certiorari, Class Action

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New Incentive-Based Compensation: Proposed Rules for Financial Institutions

A group of financial regulatory agencies has released for comment revised proposed rules under Section 956 of the Dodd-Frank Act Wall Street Reform and Consumer Protection Act. The rules provide for regulations and guidelines…more

Banking Sector, Clawbacks, Corporate Officers, Dodd-Frank, Executive Compensation

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Solar Project Financing

Darin Lowder discusses emerging financing and development trends in utility-scale solar projects. Mr. Lowder—a partner in Ballard Spahr's Energy and Project Finance Group—handles commercial and residential alternative energy…more

Renewable Energy, Solar Energy

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Courts, States Continue to Wrestle with Homeowners Association Assessment Liens

The circumstances under which a condominium or homeowners association (HOA) lien for unpaid assessments may wipe out a lender’s mortgage lien continues to evolve across the country. As noted in our previous alerts regarding…more

Bank of America, Condominiums, Fannie Mae, FHFA, Foreclosure

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Ballard Spahr Partner Dee Spagnuolo Joins CFPB OMWI Director on Panel at ABA Meeting

Ballard Spahr Partner Dee Spagnuolo joined Director Stuart Ishimaru of the CFPB’s Office of Minority and Women Inclusion and other industry leaders for the panel discussion "Diversity and Dodd-Frank Section 342," on September 8,…more

American Bar Association (ABA), CFPB, Disabled, Diversity, Diversity and Inclusion Standards (D&I)

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Real Estate News in Metro DC

Ballard Spahr’s mixed-use, condominium, and multifamily lawyers are pleased to provide this newsletter to keep you apprised of important developments and trends in real estate law in Maryland, Virginia, and Washington, D.C…more

Condominiums, Construction Defects, Construction Industry, Construction Project, Disclosure Requirements

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HHS Designates Cloud Service Providers as Business Associates Under HIPAA

Cloud service providers that process electronic protected health information (ePHI) are business associates under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), even if the PHI is encrypted and the…more

Breach Notification Rule, Business Associates, Cloud Computing, Cloud Service Providers (CSPs), Covered Entities

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Moody’s Finalizes Green Bonds Assessment Methodology

The municipal green bond market has taken another modest step towards solidifying recognized "green" standards in the market. Moody's previously published a proposed Green Bonds Assessment (GBA) methodology—a forward-looking…more

Financial Institutions, Financial Markets, Green Bonds, Moody's, Rating Agencies

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Implications of a homeowner association’s statutory priming lien

While representing an institutional lender in the making of a loan secured by real property located in Colorado, we came across an increasingly relevant issue regarding properties subject to a homeowner association or similar…more

Condominium Associations, Condominiums, Liens, Mortgage Priority, Priority Debt

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Supreme Court Limits Defenses to Induced Infringement

In an important decision in Commil USA, LLC v. Cisco Systems, Inc., the U. S. Supreme Court held yesterday that a good-faith belief in the invalidity of a patent cannot negate the intent required for induced infringement. The…more

Cisco v CommilUSA, Frivolous Lawsuits, Honest Belief Defense, Induced Infringement, Patent Infringement

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Delaware Court of Chancery Holds Anti-Reliance Clause May Bar Fraud Claims Premised on Representations Outside of Agreement

Delaware's Chancery Court rejected a buyer's fraud claims premised on misrepresentations and omissions other than the statements the contract identified as the seller's "sole and exclusive representations" in a recent decision…more

Contract Disputes, Fraud, Misrepresentation, Omissions, Stock Purchase Agreement

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Bankruptcy Trustees Target Colleges and Universities

Over the past few years, higher education institutions have seen an increase in litigation from an unexpected source: bankruptcy trustees. Trustees appointed in personal bankruptcy cases are seeking to claw back tuition payments…more

Clawbacks, Colleges, Consumer Bankruptcy, Educational Institutions, Tuition

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Beware of Phishing Email Disguised as Official OCR Audit Communication

The Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) has posted an alert (and a follow-up alert) warning health plans, health care providers, and their vendors of a mock communication…more

Cybersecurity, Data Security, Electronic Medical Records, Email, Health Care Providers

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Real Estate News in Metro DC

Ballard Spahr’s mixed-use, condominium, and multifamily lawyers are pleased to provide this newsletter to keep you apprised of important developments and trends in real estate law in Maryland, Virginia, and Washington, D.C…more

Condominiums, Construction Defects, Construction Industry, Construction Project, Disclosure Requirements

See All Updates »

Amended PTAB Rules Give Patent Owners a Boost

The U.S. Patent and Trademark Office (USPTO) has unveiled a series of new rules that provide for significant changes to the procedures followed in Patent Trial and Appeal Board (PTAB) proceedings, including inter partes review,…more

Corporate Counsel, Covered Business Method Proceedings, Derivation Proceeding, Inter Partes Review (IPR) Proceeding, Patent Infringement

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EU e-Privacy Regulation Raises Stakes for Compliance

The European Commission's proposed e-privacy regulation sets forth obligations on handling electronic communications and clarifies obligations for seeking consent for the use of cookies. Meant to bring the e-privacy directive in…more

Cookies, Corporate Counsel, Data Breach, Data Collection, Data Privacy

See All Updates »

Investment Management Update

IRS Issues Proposed Regulations Providing Guidance On The Tax Qualification Of Mutual Funds - On September 27, 2016, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) that provide…more

Beneficial Owner, Conflicts of Interest, Controlled Foreign Corporations, Enforcement Actions, FCPA

See All Updates »

HUD Publishes Further Revisions to RAD Notice

In an announcement on January 12th, the U.S. Department of Housing and Urban Development (HUD) published a significant third revision to the Rental Assistance Demonstration (RAD) Notice (PIH 2012-32/ H 2017-03 Rev-3). According…more

Affordable Housing, Disclosure Requirements, Federal Register, Housing Market, HUD

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Landlords in Philadelphia Face New Legal Requirements Concerning Residential Rental Increases

Mayor Michael Nutter last week signed into law a bill that imposes new requirements on residential landlords in Philadelphia. The bill establishes strict notice requirements that landlords will need to follow regarding rental…more

Rent Control, Rental Rates, Residential Leases, Residential Property Owners

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IRS Approves New Rules To Minimize Taxes Related to M&A Transactions

The Internal Revenue Service recently adopted long-awaited regulations intended to provide a new means of minimizing taxes in M&A transactions. The newly adopted regulations take effect on May 15, 2013, under Section 336(e) of…more

IRS

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EEOC Issues Revised Regulations To Require Employers To Submit Pay Data

The U.S. Equal Employment Opportunity Commission (EEOC) this week published revised proposed regulations for collecting pay data through the Employer Information Report (EEO-1). The revised proposal incorporates more than 300…more

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

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Nearly 2 Million Home Care Workers Now Qualify for Minimum Wage, Overtime Protections

The U. S. Court of Appeals for the District of Columbia Circuit unanimously upheld a Department of Labor (DOL) rule which extended the Fair Labor Standard Act’s (FLSA) minimum wage and overtime protections to certain home care…more

Appeals, Companionship Exemptions, DOL, FLSA, Health Care Providers

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Ninth Circuit Rejects Implied "Ascertainability" Requirement for Class Certification

Deepening an already-existing circuit split, the Ninth Circuit has held that class certification is appropriate even if plaintiff has not shown that identifying class members is "administratively feasible." Expressly rejecting…more

Ascertainable Class, Class Action, Class Certification, ConAgra, False Advertising

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Final Guidance Released on Considering Climate Change in Environmental Reviews

The President's Council on Environmental Quality has issued its finalized guidance on how federal agencies should consider greenhouse gas emissions and the effects of climate change in reviews of federal actions under the…more

Climate Change, Environmental Policies, Environmental Review, Greenhouse Gas Emissions, Guidance Update

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Mass. Pay Equity Law Brings Wave of Hiring Restrictions

Signaling a new era in employee pay equity, "The Act to Establish Pay Equity" will require Massachusetts employers to make sweeping changes in their pay and hiring practices. Among the most significant changes, the Act bars…more

Civil Rights Act, Equal Pay, Equal Pay Act, Gender-Based Pay Discrimination, New Legislation

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Supreme Court to Resolve Circuit Split Over Filing Bankruptcy Proof of Claim on Time-Barred Debt

The U.S. Supreme Court granted certiorari last week in Midland Funding, LLC v. Aleida Johnson, a decision of the 11th Circuit that held that Midland’s filing of a proof of claim in the plaintiff’s bankruptcy case on a…more

Bankruptcy Code, Certiorari, Consumer Bankruptcy, FDCPA, Financial Sector

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Want to Keep Your DMCA Safe Harbor? New Copyright Rules Require Reregistering

If you have a website, you need to reregister your designated agent with the Copyright Office. If you don’t, you will lose the safe harbor protections for copyright infringement liability afforded by the Digital Millennium…more

Copyright, Copyright Infringement, Digital Media, DMCA, Internet Service Providers (ISPs)

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The Sum of the Parts ? the Whole? SCOTUS on Samsung v Apple

The U.S. Supreme Court unanimously overturned a $400 million damages award against Samsung for infringing Apple's smartphone design patents. In a decision that upsets a long-standing rule for calculating damages for design…more

Apple, Apple v Samsung, Cell Phones, Design Patent, iPhone

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Subway, DOL Partner to Improve FLSA Compliance

Last week, the Subway restaurant chain entered into a landmark partnership with the U.S. Department of Labor (DOL) aimed at improving Fair Labor Standards Act (FLSA) compliance among the chain's 27,000 franchisees. The DOL…more

Back Wages, Browning-Ferris Industries of California Inc., Corporate Counsel, Fast-Food Industry, FLSA

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CFPB previews company portal update

The CFPB has released an overview of an updated online company portal for viewing and responding to consumer complaints that it plans to launch in early 2017. The overview is intended to serve “only as a first glance at…more

Banking Sector, CFPB, Consumer Complaint System, Consumer Financial Products, Financial Services Industry

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Moody’s Finalizes Green Bonds Assessment Methodology

The municipal green bond market has taken another modest step towards solidifying recognized "green" standards in the market. Moody's previously published a proposed Green Bonds Assessment (GBA) methodology—a forward-looking…more

Financial Institutions, Financial Markets, Green Bonds, Moody's, Rating Agencies

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New York Grand Jury Indicts 12 Online Payday Lenders and 3 Individuals

In a shot across the bow of online payday lenders who allegedly disregard state law where their borrowers reside, a New York County grand jury recently voted a criminal usury and conspiracy indictment against 12 companies…more

Conspiracies, Grand Juries, Lenders, Payday Loans, Usury

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HUD Publishes Guidance on Disposition of Particular Public Housing Property

On November 29, 2016, HUD published Notice PIH 2016-20 (HA) on the subject 2 CFR 200.311(c)(1) Disposition Instructions for the Public Housing Agency (PHA) Retention of Certain Public Housing Real Property (that is no longer…more

Affordable Housing, Fair Market Value, HUD, Low-Income Issues, Public Housing

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Mandatory Training for Community Association Board Members

Following the release of a report evaluating the Montgomery County Commission on Common Ownership Communities, the Montgomery County Council in Maryland enacted legislation that requires training and certification for board…more

Board of Directors, Common Ownership, Condominiums, HOA, New Legislation

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Liens Recorded Between Foreclosure, Sale Date Ruled Valid by Florida Appellate Court

In a case of first impression among the Florida appellate courts, the Fourth District Court of Appeal held that liens recorded between the foreclosure judgment and the sale date are valid and enforceable against the property so…more

Banking Sector, Banks, Final Judgment, Florida, Foreclosure

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11th Circuit Holds That Entity Collecting Its Own Debt, Which It Acquired After Default, Is Not a “Debt Collector” Under the FDCPA, Highlighting Split Among the Circuits

The 11th Circuit Court of Appeals has affirmed its prior holding in Arencibia v. Mortgage Guaranty Insurance Corp. that an entity that acquires and collects debt on its own behalf does not qualify as a debt collector under the…more

Class Action, Debt Buyers, Debt Collection, Debt Collectors, FDCPA

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Fact Sheet Clarifies AML/BSA Enforcement Priorities

The U.S. Department of the Treasury and four U.S. federal banking regulators have issued the "Joint Fact Sheet on Foreign Correspondent Banking" in an effort to clarify enforcement priorities regarding Anti-Money Laundering…more

AML-CTF, Anti-Money Laundering, Banking Sector, Banks, BSA/AML

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Ninth Circuit Rejects Implied "Ascertainability" Requirement for Class Certification

Deepening an already-existing circuit split, the Ninth Circuit has held that class certification is appropriate even if plaintiff has not shown that identifying class members is "administratively feasible." Expressly rejecting…more

Ascertainable Class, Class Action, Class Certification, ConAgra, False Advertising

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SEC Issues Final Rule on Pay Ratio Disclosure

Nearly two years after issuing the proposed rule, the U.S. Securities and Exchange Commission (SEC) on August 5, 2015, adopted by a 3-2 vote, the final rule on CEO-to-median employee pay ratio disclosure in what has become known…more

Compliance, Data Security, Disclosure Requirements, Dodd-Frank, Employees

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Creating a Social Network of Tax Savings: The Use of LLCs in Structuring Philanthropic and Public Good Activities

The use of a limited liability company (LLC) by Mark Zuckerberg and his wife Priscilla Chan as the vehicle for advancing of “philanthropic, public advocacy, and other activities for the public good” has recently received a great…more

Charitable Donations, Charitable Organizations, Limited Liability Company (LLC), Mark Zuckerberg, Tax Deductions

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President Obama Seeks To Expand Market for P3 Transportation Projects

As part of his ongoing effort to urge Congress to address the nation’s critical infrastructure needs, President Obama recently announced the signing of an executive order creating the Build America Investment Initiative (the…more

Department of Transportation (DOT), Infrastructure, Public Private Partnerships (P3s), Public Transit

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In re Tam en banc decision—Lanham Act 2(a) is unconstitutional

In a highly anticipated decision, the Federal Circuit Court of Appeals, sitting en banc, ruled today that Section 2(a) of the Lanham Act, which bars registration of marks that “disparage” a group of persons, unconstitutionally…more

Disparagement, First Amendment, Free Speech, Lanham Act, NFL

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Real Estate News in Metro DC

Ballard Spahr’s mixed-use, condominium, and multifamily lawyers are pleased to provide this newsletter to keep you apprised of important developments and trends in real estate law in Maryland, Virginia, and Washington, D.C…more

Condominiums, Construction Defects, Construction Industry, Construction Project, Disclosure Requirements

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Investment Management Update

IRS Issues Proposed Regulations Providing Guidance On The Tax Qualification Of Mutual Funds - On September 27, 2016, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) that provide…more

Beneficial Owner, Conflicts of Interest, Controlled Foreign Corporations, Enforcement Actions, FCPA

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DOJ Continues ADA Web Accessibility Enforcement

The U.S. Department of Justice (DOJ) has filed a consent decree to resolve allegations by a blind student regarding the accessibility of a university's website and other technologies. The DOJ requires the university to pay…more

ADA, Consent Decrees, Disability, DOJ, Website Accessibility

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Renewed interest in Mortgage Credit Certificate programs

Section 25 of the Internal Revenue Code (IRC) permits issuers of tax-exempt qualified mortgage revenue bonds to elect to issue mortgage credit certificates (MCCs) to eligible homebuyers in lieu of offering mortgages financed…more

Ginnie Mae, Internal Revenue Code (IRC), Mortgage Interest, Mortgage-Backed Securities, Tax Credits

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Prepayment of tax-exempt bonds in connection with the sale of a multifamily housing project

In the last few years, we have seen an increase in the number of multifamily housing projects being sold at the completion of the 15-year low-income housing tax credit compliance period. Strong rental demand in many areas of the…more

LIHTC, Multi-Family Development, Real Estate Development, Real Estate Investments, Tax-Exempt Bonds

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Down Payment Assistance Stand-Off between HUD and the Inspector General Clouds the Waters

The HUD Office of Inspector General (OIG) released an audit on July 9, 2015, in which it opined that loans that included down payment assistance programs from state housing agencies ran afoul of HUD regulations. (OIG Report…more

Affordable Housing, Audits, Federal Housing Administration (FHA), Financial Assistance Policy, Financial Sector

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China's Stringent New Rules on Yuan Transfers Could Hinder EB-5 Fundraising

The Chinese government has enacted new rules severely limiting foreign currency transfers out of China. The scope of the limitations are not clear but the Xinhua News Agency reported that Chinese banks advised their customers…more

China, Crowdfunding, Currency Control, EB-5, Financial Institutions

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HHS Designates Cloud Service Providers as Business Associates Under HIPAA

Cloud service providers that process electronic protected health information (ePHI) are business associates under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), even if the PHI is encrypted and the…more

Breach Notification Rule, Business Associates, Cloud Computing, Cloud Service Providers (CSPs), Covered Entities

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SEC Announces Second Wave of MCDC Enforcement Actions

The Securities and Exchange Commission (SEC) this week announced enforcement actions under its Municipalities Continuing Disclosure Cooperation (MCDC) Initiative, targeting 22 municipal bond underwriting firms for alleged due…more

Borrowers, Compliance, Disclosure Requirements, Due Diligence, EMMA

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N.Y. Appeals Court Ruling on Short-Term Rental Lodging May Have Implications for Airbnb and Other “Sharing Economy” Companies

The New York Appellate Division’s recent decision that blocked a municipality’s attempt to regulate a homeowner’s renting out of his individual residence as short-term lodging demonstrates challenges that may face municipalities…more

AirBnB, Hospitality Industry, Rental Property, Residential Real Estate Market, Sharing Economy

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Ninth Circuit Rejects Implied "Ascertainability" Requirement for Class Certification

Deepening an already-existing circuit split, the Ninth Circuit has held that class certification is appropriate even if plaintiff has not shown that identifying class members is "administratively feasible." Expressly rejecting…more

Ascertainable Class, Class Action, Class Certification, ConAgra, False Advertising

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FTC and DOJ Release Antitrust Guidance for HR Professionals

The Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice (DOJ) yesterday jointly issued guidance to human resource professionals and others involved in hiring and compensation decisions. This…more

Antitrust Provisions, Compensation, DOJ, Employer Liability Issues, FTC

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SCOTUS to Decide Constitutionality of State "No Credit Card Surcharge" Laws

The U.S. Supreme Court has agreed to decide whether state laws that prohibit merchants from imposing a surcharge on credit card purchases violate the First Amendment. The petition for certiorari granted by the Supreme Court…more

Credit Card Surcharges, Credit Cards, Debit and Credit Card Transactions, First Amendment, Free Speech

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Student Athletes Are Not Employees Under FLSA, Circuit Court Affirms

The Seventh Circuit Court of Appeals has affirmed a lower court decision holding that student athletes' participation in college sports does not make them school employees entitled to compensation, a decision that should cause…more

College Athletes, Educational Institutions, Employee Definition, Employees, FLSA

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New Law Affects FHA Requirements for Condominium Financing

President Obama signed the Housing Opportunity Through Modernization Act (H.R. 3700) into law on July 29. Title III of the Act will significantly modify Federal Housing Administration (FHA) condominium mortgage insurance…more

Condominiums, Fannie Mae, Federal Housing Administration (FHA), Freddie Mac, HUD

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Changes to Pa. Power of Attorney Law: A Problem for Commercial Transactions

Secured lenders and other parties entering into commercial transactions face new, potentially problematic requirements under recent changes to Pennsylvania’s statute governing powers of attorney (20 Pa.C.S.A. Ch. 56), which…more

Amended Regulation, Commercial Loans, Lenders, Power of Attorney

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FCC Denies TCPA Exemption for Mortgage Servicing Calls

The Federal Communications Commission (FCC) has denied the petition filed by the Mortgage Bankers Association (MBA) seeking an exemption from the prior express consent requirement of the Telephone Consumer Protection Act (TCPA)…more

ATDS, Banking Sector, Cell Phones, Exemptions, FCC

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Eighth Circuit Clarifies Spokeo Ruling to Require Injury-in-Fact to Satisfy Article III Standing

In a victory to the defense bar, the U.S. Court of Appeals for the Eighth Circuit has published the first appellate opinion to apply the principles the U.S. Supreme Court articulated in Spokeo, Inc. v. Robins regarding Article…more

Article III, Cable Television Providers, Corporate Counsel, Injury-in-Fact, Personally Identifiable Information

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N.Y. Appeals Court Ruling on Short-Term Rental Lodging May Have Implications for Airbnb and Other “Sharing Economy” Companies

The New York Appellate Division’s recent decision that blocked a municipality’s attempt to regulate a homeowner’s renting out of his individual residence as short-term lodging demonstrates challenges that may face municipalities…more

AirBnB, Hospitality Industry, Rental Property, Residential Real Estate Market, Sharing Economy

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NYDFS Revises Cybersecurity Regulation, Extends Effective Date to March 1, 2017

The New York Department of Financial Services (NYDFS) announced today a revised regulation that will require all institutions subject to NYDFS supervision to establish and maintain a cybersecurity program meeting "certain…more

Banking Sector, Banks, CISO, Comment Period, Cybersecurity

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Deadlines for Pennsylvania Real Property Tax Appeals

In view of market conditions, now is a good time to review your company’s real estate portfolio to consider assessment appeals for tax year 2016. Deadlines for appeal in certain Pennsylvania counties follow:…more

Ad Valorem Tax, Appeals, Property Tax, Tax Appeals, Tax Assessment

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Ballard Opinion Letter Program to Replace IRS Determination Letter Program

The Internal Revenue Service has largely ended its determination letter program by which sponsors of individually designed retirement plans can obtain confirmation that their plan documents are tax-qualified. The IRS has…more

Determination Letter, Employee Benefits, IRS, Qualified Retirement Plans, Retirement Plan

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Arizona Court Consolidates ADA Lawsuits

The number of claims under the design and construction requirements of the Americans with Disabilities Act (ADA) continues to increase, but a recent development in Arizona may slow this trend. The Arizona Attorney General has…more

Accessibility Rules, ADA, Disability, Disability Access Claims, Disability Discrimination

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Dismissal of Retained Asset Account Putative Class Action Upheld by Third Circuit

The U.S. Court of Appeals for the Third Circuit has affirmed summary judgment in favor of The Lincoln National Life Insurance Company in a putative class action. In Edmonson v. Lincoln National Life Ins. Co. the plaintiff…more

Class Action, ERISA, Insurance Industry, Retained Asset Accounts

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California Federal Court Rules ‘No Surcharge’ Law Unconstitutional

A federal district court in California has ruled that a state law prohibiting retailers from imposing a surcharge on credit card purchases placed an unconstitutional restriction on the retailers’ freedom of speech and is…more

Commercial Speech, Credit Card Surcharges, Credit Cards, First Amendment, Retailers

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N.Y. Appeals Court Ruling on Short-Term Rental Lodging May Have Implications for Airbnb and Other “Sharing Economy” Companies

The New York Appellate Division’s recent decision that blocked a municipality’s attempt to regulate a homeowner’s renting out of his individual residence as short-term lodging demonstrates challenges that may face municipalities…more

AirBnB, Hospitality Industry, Rental Property, Residential Real Estate Market, Sharing Economy

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NLRB: Student Assistants Now Employees Entitled to Unionize

The National Labor Relations Board has ruled in a 3-1 decision that graduate students at private, nonprofit higher education institutions "who perform services at a university in connection with their studies are statutory…more

Brown University, Collective Bargaining, Colleges, Educational Institutions, Graduate Students

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HUD publishes final Affirmatively Furthering Fair Housing Assessment Tool

On December 31, 2015, the U.S. Department of Housing and Urban Development (HUD) announced the availability of the Affirmatively Furthering Fair Housing (AFFH) Assessment Tool. The AFFH Assessment Tool is for use by local…more

Federal Funding, HUD, Public Housing Authorities, Residential Real Estate Market

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Borrowers’ Counsel Sanctioned for Frivolous Lawsuit Against Lender Who Attempted to Resolve Foreclosure Action

An Ohio appellate court has affirmed an order of sanctions against counsel for borrowers who filed a frivolous lawsuit against the lender alleging fraud, breach of contract and estoppel in connection with failed attempts to…more

Attorney's Fees, Default, Financial Institutions, Foreclosure, Frivolous Lawsuits

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Supreme Court Upholds FCC's Authority To Impose Time Limitations on Land Use Approvals for Wireless Facilities

Last month, the U.S. Supreme Court ruled in a 6-3 decision that the Federal Communications Commission (FCC) had authority under the Telecommunications Act of 1996 to impose time limits for state and local governments to act on…more

Chevron, FCC, Preemption, SCOTUS, Telecommunications

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Proposed IRS Rules Endanger Business Valuation Discounts for Family-Owned Entities

Historically, the IRS has closely scrutinized transfers of interests in family-owned entities between family members. In particular, it has sought to curtail the use of discounts to decrease the estate and gift tax value of such…more

Business Succession, Business Valuations, Closely Held Businesses, Estate Planning, Estate Tax

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Mobile Financial Services Addressed in FFIEC Examination Handbook

The federal body tasked with creating standards for the uniform regulation of financial institutions has released new information to assist examiners in evaluating mobile services offered by financial institutions and their…more

Banking Sector, FFIEC, Financial Institutions, Financial Services Industry, Mobile Banking

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District Court Holds That a Late Assignment to a Securitized Trust Is Voidable, Not Void, and Does Not Permit a Claim for Wrongful Foreclosure

The U.S. District Court for the Northern District of California has issued an opinion in Spangler v. Selene Finance, LP, rejecting a borrower’s allegation that an assignment of a deed of trust recorded after a foreclosure sale…more

Banking Sector, Deed of Trust, Foreclosure, Mortgages, Residential Real Estate Market

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DC Circuit Hears TCPA Oral Arguments

Oral arguments were recently held before the U.S. Court of Appeals District of Columbia Circuit in a consolidated case, spearheaded by ACA International, challenging the Federal Communications Commission's (FCC) recent order and…more

Arbitrary and Capricious, ATDS, Auto-Dialed Calls, Cell Phones, Declaratory Rulings

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New Economic Development Opportunities Possible Thanks to Improved Marketability of Philadelphia Tax Increment Finance Transactions

The tools available to the City of Philadelphia to finance community and economic development projects have been enhanced under a new law that authorizes the imposition of special assessments to support tax increment finance…more

Bonds, Economic Development, New Legislation, Public Finance, Public Improvement Projects

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Colorado Legislature Tries Again on Construction-Related Litigation Reform

As the Colorado Legislature begins its 2015 session, construction defect reform legislation is again at the fore. Senate Bill 177 was introduced on February 10 in an effort to spur condominium projects by providing developers…more

Class Action, Condominiums, Construction Defects, Construction Industry, Homeowners' Association

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Speed of Pharmaceutical Innovation at Stake in N.Y. Antitrust Lawsuit

A pharmaceutical firm’s ability to efficiently produce and promote a better treatment for Alzheimer’s disease lies at the center of an antitrust lawsuit pending before the U.S. Court of Appeals for the Second Circuit. In State…more

Actavis Inc., Antitrust Litigation, Appeals, Generic Drugs, Injunctions

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OCC Addresses Concerns on Issuance of National Bank Charters to Fintech Companies

The Office of the Comptroller of the Currency (OCC) has proposed to allow financial technology (fintech) companies to apply for full or special purpose national bank charters. In advance of the proposal's January 15, 2017,…more

Banking Sector, Federal Reserve, FinTech, Fintech Charter, National Bank Charters

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Investment Management Update

IRS Issues Proposed Regulations Providing Guidance On The Tax Qualification Of Mutual Funds - On September 27, 2016, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) that provide…more

Beneficial Owner, Conflicts of Interest, Controlled Foreign Corporations, Enforcement Actions, FCPA

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Prepare for Compliance with General Data Protection Regulation Checklist

The Irish Data Protection Commissioner (DPC) has issued a 12-step checklist of actions companies can take now to better prepare for compliance with the General Data Protection Regulation (GDPR), the new EU privacy regulation…more

Data Breach, Data Collection, EU, EU Data Protection Laws, General Data Protection Regulation (GDPR)

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Supreme Court Agrees to Decide Enforceability of Class Action Waivers in Employment Agreements

The U.S. Supreme Court has agreed to decide an important issue that has deeply divided the Courts of Appeals—are arbitration provisions in employment agreements that waive an employee's right to bring or participate in class or…more

Arbitration, Arbitration Agreements, Case Consolidation, Certiorari, Class Action

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Investment Management Update

IRS Issues Proposed Regulations Providing Guidance On The Tax Qualification Of Mutual Funds - On September 27, 2016, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) that provide…more

Beneficial Owner, Conflicts of Interest, Controlled Foreign Corporations, Enforcement Actions, FCPA

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The Sum of the Parts ? the Whole? SCOTUS on Samsung v Apple

The U.S. Supreme Court unanimously overturned a $400 million damages award against Samsung for infringing Apple's smartphone design patents. In a decision that upsets a long-standing rule for calculating damages for design…more

Apple, Apple v Samsung, Cell Phones, Design Patent, iPhone

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Ninth Circuit Reverses ECOA Violation Ruling

In Gomez v. Quicken Loans, Inc., -- Fed Appx. --, 2015 WL 6655476 (9th Cir. Nov. 2, 2015), the Ninth Circuit reversed the district court's dismissal of the appellant's Equal Credit Opportunity Act (ECOA) claim that was based on…more

Bright-Line Rule, Disability Discrimination, ECOA, Mortgage Lenders, Quicken Loans

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Clarity May Finally Arrive in the District of Columbia for Lenders and Title Insurers

In response to the concerns of lenders and title insurers, the District of Columbia recently enacted clarifying legislation to amend the Saving D.C. Homes from Foreclosure Emergency Amendment Act of 2010 (the Act). The Act went…more

Foreclosure, Mortgages, Title Insurance

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District Court Holds That a Late Assignment to a Securitized Trust Is Voidable, Not Void, and Does Not Permit a Claim for Wrongful Foreclosure

The U.S. District Court for the Northern District of California has issued an opinion in Spangler v. Selene Finance, LP, rejecting a borrower’s allegation that an assignment of a deed of trust recorded after a foreclosure sale…more

Banking Sector, Deed of Trust, Foreclosure, Mortgages, Residential Real Estate Market

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ACC Foundation Releases Largest Study of its Kind on Cybersecurity Among In-House Counsel Study Underwritten by Ballard Spahr

The Association of Corporate Counsel Foundation (ACC) released a State of Cybersecurity report underwritten by Ballard Spahr on December 9, 2015. The report provides valuable insights on cybersecurity issues from more than 1,000…more

Corporate Counsel, Cybersecurity Framework, Data Breach, FTC, In-House Perspective

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CFPB Focuses on Servicing in Update to Student Loan Examination Procedures

On Monday the CFPB released updated examination procedures for student loans.  This update revises and expands on a previous update that was released in December 2013 in conjunction with the CFPB’s “larger participants” rule for…more

Banking Sector, CFPB, Consumer Financial Products, Consumer Lenders, ECOA

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Condominium Association Liens Have "Super-Priority" Over First Mortgage Liens, Rhode Island Supreme Court Holds

The Supreme Court of Rhode Island, in a 4-1 decision, recently joined a growing list of states that allow a homeowners or condominium association lien for delinquent assessments to take priority over, and potentially wipe out, a…more

Condominium Act, Condominium Associations, Delinquent Assessment Dues, Foreclosure, Liens

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Proposed IRS Rules Endanger Business Valuation Discounts for Family-Owned Entities

Historically, the IRS has closely scrutinized transfers of interests in family-owned entities between family members. In particular, it has sought to curtail the use of discounts to decrease the estate and gift tax value of such…more

Business Succession, Business Valuations, Closely Held Businesses, Estate Planning, Estate Tax

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To (Dis)Close for Comfort–FTC Workshop Seeks Effective Consumer Disclosures

A goal of providing effective disclosures to consumers is to allow consumers to make informed decisions. But what must be done to make disclosures effective? This was the question the Federal Trade Commission (FTC) explored in…more

Advertising, Banking Sector, CFPB, Consumer Financial Products, Disclosure Requirements

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New IRS Management Guidance is Flexible, Furthers P3s

State and local governments and 501(c)(3) organizations have been given very flexible guidance by the IRS for longer-term private management of tax-exempt bond financed projects to facilitate general operations and major…more

501(c)(3), Compensation, Construction Industry, Infrastructure, IRS

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Supreme Court to Resolve Circuit Split Over Filing Bankruptcy Proof of Claim on Time-Barred Debt

The U.S. Supreme Court granted certiorari last week in Midland Funding, LLC v. Aleida Johnson, a decision of the 11th Circuit that held that Midland’s filing of a proof of claim in the plaintiff’s bankruptcy case on a…more

Bankruptcy Code, Certiorari, Consumer Bankruptcy, FDCPA, Financial Sector

See All Updates »

Arizona Court Consolidates ADA Lawsuits

The number of claims under the design and construction requirements of the Americans with Disabilities Act (ADA) continues to increase, but a recent development in Arizona may slow this trend. The Arizona Attorney General has…more

Accessibility Rules, ADA, Disability, Disability Access Claims, Disability Discrimination

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Supreme Court Upholds Ban on Royalties after Licensed Patent Expires

In a 6-3 decision in Kimble v. Marvel, the U.S. Supreme Court refused to overturn the long-standing rule that bars a licensor from being able to collect royalties for sales after the expiration of the licensed patent—even if the…more

Contract Term, IP License, Kimble v Marvel Enterprises, Patent Royalties, Patents

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Nevada Supreme Court Accepts Certified Question in HOA Lien Litigation Case – Should the SFR Decision Apply Retroactively?

We previously reported on the Nevada Supreme Court’s decision in SFR Investments Pool 1, LLC. v. U.S. Bank, N.A., holding that a homeowners association (HOA) lien is a true super-priority lien that upon foreclosure extinguishes…more

Banking Sector, Deed of Trust, Foreclosure, HOA, Liens

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Maryland Public Service Commission Issues Draft Regulations Implementing Community Solar Pilot Program

On November 10, 2015, five months after Maryland Governor Larry Hogan approved a law creating a three-year pilot program for community solar projects in the state, the Public Service Commission (PSC or Commission) released draft…more

Energy Sector, New Regulations, Rulemaking Process, Solar Energy, Utilities Sector

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Insights from the executive director of the United States Interagency Council on Homelessness

Our Ninth Annual National Housing Symposium successfully brought together a rich panorama of perspectives across the affordable housing industry. Laura Green Zeilinger, the Executive Director for the United States Interagency…more

Affordable Housing, Department of Veterans Affairs, Homeless Issues, HUD

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Redrawing of Arizona Legislative Districts Upheld by U.S. Supreme Court

The U.S. Supreme Court, in an opinion written by Justice Breyer, has unanimously upheld the Arizona Independent Redistricting Commission's plan to redraw Arizona's legislative districts. Lawyers from Ballard Spahr's Political…more

Equal Protection, Fourteenth Amendment, Harris v Arizona Independent Redistricting Commission, Redistricting, SCOTUS

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Deadlines for Pennsylvania Real Property Tax Appeals

In view of market conditions, now is a good time to review your company’s real estate portfolio to consider assessment appeals for tax year 2016. Deadlines for appeal in certain Pennsylvania counties follow:…more

Ad Valorem Tax, Appeals, Property Tax, Tax Appeals, Tax Assessment

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HUD Issues Statement on Applicability of Disparate Impact Liability to Insurance Industry

The U.S. Department of Housing and Urban Development (HUD) has announced it will continue to address disparate impact liability for discriminatory insurance practices on a case-by-case basis. HUD addressed concerns from the…more

Administrative Procedure Act, Discrimination, Disparate Impact, Housing Market, HUD

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FCC Ruling Clarifies TCPA for Schools and Utilities

The Federal Communications Commission (FCC) has issued a Declaratory Ruling clarifying the application of the Telephone Consumer Protection Act (TCPA) to communications from schools and utilities. Specifically, the Ruling…more

Auto-Dialed Calls, Declaratory Rulings, Educational Institutions, Emergency Alerts, FCC

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More ADA Enforcement – Effective Communication Requirements for Service Providers

Recently, the U.S. Department of Justice and Franciscan St. James Health (St. James), a nonprofit health care system providing comprehensive health care at hospitals in Illinois, settled a lawsuit alleging that St. James…more

ADA, DOJ, Enforcement Actions, Healthcare, Hospitals

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OCC Proposes to Grant National Bank Charters to Financial Technology Companies

For the first time, the Office of Comptroller of Currency (OCC) will allow financial technology (fintech) companies to apply for national bank charters. The OCC has invited public comment on the concept with a deadline for…more

Banks, Financial Sector, FinTech, Innovative Technology, OCC

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NLRB Allows Single Bargaining Unit for Sole and Joint Employer Employees

In the much-anticipated Miller & Anderson, Inc., decision, the National Labor Relations Board has reverted to a policy allowing solely employed and jointly employed employees to be represented in the same bargaining unit without…more

Bargaining Units, Browning-Ferris Industries of California Inc., Collective Bargaining, Consent, Employees

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California Amends RMLA: Federal Agency Approval Not Required For Processing and Underwriting Companies

Effective January 1, 2017, the definition of lender under the California Residential Mortgage Lending Act (RMLA) will be amended to include third-party processors and/or underwriters who do not solicit loan applicants, originate…more

Banking Sector, Fannie Mae, Federal Housing Administration (FHA), Freddie Mac, Mortgage Lenders

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MBA launches new networking platform for women

Women in the real estate financing sector have a new opportunity to connect with others in their field and to access and exchange information about the industry. On October 18, the Mortgage Bankers Association (MBA) announced…more

Banking Sector, CFPB, Diversity, Diversity and Inclusion Standards (D&I), Dodd-Frank

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SEC Announces Second Wave of MCDC Enforcement Actions

The Securities and Exchange Commission (SEC) this week announced enforcement actions under its Municipalities Continuing Disclosure Cooperation (MCDC) Initiative, targeting 22 municipal bond underwriting firms for alleged due…more

Borrowers, Compliance, Disclosure Requirements, Due Diligence, EMMA

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Colorado Supreme Court Limits Jurisdiction Over Manufacturers

The Colorado Supreme Court has joined a number of other federal and state courts in limiting the extent to which product manufacturers can be subjected to a state’s general personal jurisdiction, even when the manufacturer's…more

Car Accident, CO Supreme Court, Ford Motor, Manufacturers, Motion to Dismiss

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FTC Settles with Targeted Digital Advertising Company over Supercookie Advertising Practices

The Federal Trade Commission (FTC) has entered into a proposed consent order requiring digital advertising company Turn Inc. to include a clear and conspicuous notice detailing how it collects, uses, or shares information from…more

Advertising, Cookies, FTC, FTC Act, Misrepresentation

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Utah Supreme Court Finds No Employer Protection in Rule of Professional Conduct

The Utah Supreme Court held that Rule 1.13(b) of the Utah Rules of Professional Conduct, which requires in-house counsel to report suspected illegal activity to upper management, does not reflect a “clear and substantial public…more

ADA, At-Will Employment, Employment Contract, Employment Policies, Popular

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MBA launches new networking platform for women

Women in the real estate financing sector have a new opportunity to connect with others in their field and to access and exchange information about the industry. On October 18, the Mortgage Bankers Association (MBA) announced…more

Banking Sector, CFPB, Diversity, Diversity and Inclusion Standards (D&I), Dodd-Frank

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ACC Foundation Releases Largest Study of its Kind on Cybersecurity Among In-House Counsel Study Underwritten by Ballard Spahr

The Association of Corporate Counsel Foundation (ACC) released a State of Cybersecurity report underwritten by Ballard Spahr on December 9, 2015. The report provides valuable insights on cybersecurity issues from more than 1,000…more

Corporate Counsel, Cybersecurity Framework, Data Breach, FTC, In-House Perspective

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Prosecutors Strike Out on Barry Bonds as Ninth Circuit Narrows Obstruction Strike Zone

The indictment and trial of famed baseball slugger Barry Bonds for perjury and obstruction of justice drew nationwide attention. The Ninth Circuit Court of Appeals’ April 22, 2015, en banc decision reversing Bonds’ obstruction…more

Barry Bonds, En Banc Review, Government Investigations, Obstruction of Justice, Young Lawyers

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Arizona Raises Minimum Wage, Adds Paid Sick Leave Requirement

When Arizona voters passed Proposition 206, The Fair Wages and Healthy Families Act, on November 8, 2016, they not only approved an increase in Arizona's minimum wage, they also approved a requirement for employers to provide…more

Ballot Measures, Minimum Wage, PTO, Sick Leave, Wage and Hour

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Investment Management Update

IRS Issues Proposed Regulations Providing Guidance On The Tax Qualification Of Mutual Funds - On September 27, 2016, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) that provide…more

Beneficial Owner, Conflicts of Interest, Controlled Foreign Corporations, Enforcement Actions, FCPA

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Supreme Court Agrees to Decide Enforceability of Class Action Waivers in Employment Agreements

The U.S. Supreme Court has agreed to decide an important issue that has deeply divided the Courts of Appeals—are arbitration provisions in employment agreements that waive an employee's right to bring or participate in class or…more

Arbitration, Arbitration Agreements, Case Consolidation, Certiorari, Class Action

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New Bankruptcy Forms Affect Residential Mortgage Lenders, Servicers

Sweeping changes to the federal bankruptcy forms went into effect on December 1, 2015. The changes pertaining to proofs of claim for residential mortgage loans are especially significant. The new forms are to be used in all…more

Consumer Bankruptcy, Mortgage Servicers, Mortgages, Popular, Proof of Claims

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Third Circuit Expands Liability Under the ADEA for Disparate Impact Claims

The Third Circuit recently held that the Age Discrimination in Employment Act (ADEA) permits disparate impact claims by older "subgroups" of workers within the law's protected 40-and-over class. Under the court's ruling, workers…more

ADEA, Age Discrimination, Auto Manufacturers, Automotive Industry, Disability Discrimination

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Colorado Supreme Court Limits Jurisdiction Over Manufacturers

The Colorado Supreme Court has joined a number of other federal and state courts in limiting the extent to which product manufacturers can be subjected to a state’s general personal jurisdiction, even when the manufacturer's…more

Car Accident, CO Supreme Court, Ford Motor, Manufacturers, Motion to Dismiss

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Federal Circuit Narrows Availability of CBM Patent Review

In a key decision that both patent owners and accused infringers need to be aware of, the U.S. Court of Appeals for the Federal Circuit has significantly narrowed the availability of "covered business method" (CBM) patent…more

Corporate Counsel, Covered Business Method Patents, Patent Infringement, Patents, Popular

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Patent Trial & Appeal Board Finds Obscure Russian Doctoral Thesis Qualifies as Prior Art

The Patent Trial and Appeal Board (Board) recently provided important guidance for prior art “printed publications” asserted in invalidity challenges under the 2011 Leahy-Smith America Invents Act (AIA) concerning a doctoral…more

America Invents Act, Educational Institutions, Patent Infringement, Patent Litigation, Patent-Eligible Subject Matter

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