Bradley Arant Boult Cummings LLP

Gift and Estate Tax Changes in the American Taxpayer Relief Act of 2012

On January 1, 2013, President Obama signed into law the American Taxpayer Relief Act of 2012 (the “2012 Act”) that was passed by Congress during the past 72 hours, bringing closure to the main tax aspects of the so-called…more

American Taxpayer Relief Act, Charitable Donations, Estate Tax, Federal Budget, Fiscal Cliff

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HUD Issues New Rules about Surviving Spouses Following Death of Reverse Mortgage Borrower

For the past year and a half, mortgagees of FHA-insured Home Equity Conversion Mortgages (“HECMs”), commonly referred to as reverse mortgages, have had to grapple with issues related to the foreclosure of homes occupied by…more

Foreclosure, HECM, HUD, Mortgages, New Regulations

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Digital Imports: Should Downloads Be Subject to the Tariff Act?

On April 3, the International Trade Commission (ITC) ruled that the agency has jurisdiction to police digital transmission for intellectual property infringement. The ITC hears trade disputes regarding “articles” imported into…more

Digital Goods, Digital Media, Illegal Imports, Imports, Infringement

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2015 – The Health Law Year in Review

With 2015 in the books, we are pleased to reflect on some of the major developments over the past year in the field of health law. The year was marked by changes in Medicare payment models—from government pronouncements…more

Affordable Care Act, DOJ, False Claims Act (FCA), Individual Accountability, King v Burwell

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Never Forever: Indefinite Extension of Light-Duty Not Required Under ADA (Per Eleventh Circuit)

Employers evaluating ADA reasonable accommodation requests often must decide whether they have to provide extended light duty for an injured employee. In Frazier-White v. Gee, the Eleventh Circuit recently provided helpful…more

ADA, Corporate Counsel, Light-Duty Positions, Reasonable Accommodation

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Big Changes to Federal Jurisdiction over Waters of the U.S. through the Clean Water Act

On March 25, 2014, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) announced the release of their proposed rule redefining what waters fall under federal jurisdiction under the…more

Clean Water Act, EPA, Federal Jurisdiction, Jurisdiction, Mining

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What’s Mine is Not Yours: Former Officers and Directors and a Corporation’s Attorney–Client Privilege

An officer or director’s company exit often feels like a divorce, with post-departure monetary payments and document-custody issues dominating the immediate aftermath. Companies are quick to enforce non-compete agreements and…more

Attorney-Client Privilege, Board of Directors, Confidential Information, Corporate Counsel, Corporate Officers

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Recordkeeping Non-Compliance Will Cost You—the EEOC Settles its Sex Discrimination Case Against Coca-Cola Bottling of Mobile

We posted in October 2015 about the EEOC filing suit against Coca-Cola Bottling of Mobile, asserting sex discrimination in violation of Title VII’s record retention provisions. The complaint alleged that in June 2010 Martina…more

Coca Cola, Consent Decrees, EEOC, Employment Application, Hiring & Firing

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Can the CFPB Really Prohibit Pre-Dispute Arbitration Agreements?

Section 1028 of the Dodd-Frank Act, entitled “Authority to Restrict Mandatory Pre-Dispute Arbitration,” gives the CFPB the authority to promulgate regulations imposing conditions, limitations, or outright prohibitions on…more

Administrative Authority, Arbitration, Arbitration Agreements, CFPB, Consumer Financial Products

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Alternative Approaches to Alternative Design: Understanding the Reasonable Alternative Design Requirement and Its Different Applications

In 1997, the American Law Institute (ALI) adopted the final draft of its Restatement (Third) of Torts on the topic of product liability. The most notable—and controversial—feature of the ALI’s work was its requirement that…more

Design Defects

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Courts Strike Down Church Plan Exemptions for Church-Affiliated Organizations

Until recently, the Internal Revenue Service (IRS), the Department of Labor (DOL), and federal courts seemed to agree that a retirement plan established and maintained by a church-affiliated organization generally qualified as a…more

Churches, Defined Benefit Plans, DOL, ERISA, IRS

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SEC Issues Stern Reminder for Timely Filing of Beneficial Ownership Reports

After years of little enforcement action, the Securities and Exchange Commission (“SEC”) issued a press release yesterday announcing charges against 28 officers, directors, or major shareholders for violating federal securities…more

Beneficial Owner, Deadlines, Directors, Enforcement, Enforcement Actions

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OCC Revises Its Policies for Assessing Penalties against Financial Institutions

The Office of the Comptroller of the Currency (OCC) has revised its civil monetary penalty (CMP) policy, effective February 26, 2016. The revised Policy and Procedures Manual sets forth the OCC’s new scheme for the assessment of…more

Banking Sector, Breach of Duty, Civil Monetary Penalty, Enforcement Actions, Fiduciary Duty

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Public-Private Partnerships: The Solution to the Problem with Our Aging Infrastructure?

It is no secret that the most significant budget challenges that the United States faces on both a state and national level revolve around the cost to repair and replace our aging infrastructure. In 2014, the American Society of…more

Construction Industry, Critical Infrastructure Sectors, Design-Build, Investment, Public Private Partnerships (P3s)

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Proposed FAR Rule Would Restrict Confidentiality Agreements between Contractors and Their Employees

Recently, the Federal Acquisition Regulation Council published a proposed rule that, if implemented, would impose a government-wide prohibition on contracting with companies “that require employees or subcontractors to sign an…more

Confidentiality Agreements, Farms, Federal Contractors, Proposed Regulation, Whistleblower Protection Policies

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U.S. Supreme Court Vacates Fourth Circuit’s Decision Under the Pregnancy Discrimination Act

On Wednesday, in a 6-3 decision with Justice Breyer writing for the majority, the Supreme Court revived Peggy Young’s pregnancy discrimination claim against UPS under the Pregnancy Discrimination Act (PDA) in Young v. United…more

Essential Functions, PDA, Pregnancy Discrimination, Reasonable Accommodation, SCOTUS

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Specific Specifications: Takeaways From Inphi Patent Case

The patent attorney often faces the problem that broad claims for a class can be rejected when prior art surfaces for one of the members of the class. One strategy is to exclude those members of the class found in the prior art,…more

Class Members, Inter Partes Reexamination, Patent Trial and Appeal Board, Prior Art

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Eleventh Circuit Allows Miami’s Claims under the Fair Housing Act to Move Forward

The Eleventh Circuit Court of Appeals recently reversed a lower court ruling that dismissed discriminatory lending claims against Wells Fargo & Co., Bank of America Corp. and Citigroup Inc., all brought by the City of Miami. The…more

Appeals, Bank of America, Citigroup, Continuing Violation Theory, Discriminatory Lending Practices

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Unaccepted Offer of Judgment Does Not Moot TCPA Plaintiff’s (or Putative Class’s) Claim, Supreme Court Says

In a 6-3 decision, the U.S. Supreme Court in Campbell-Ewald v. Gomez ruled last week that an unaccepted offer of judgment under Rule 68 of the Federal Rules of Civil Procedure does not divest the trial court of subject matter…more

Campbell Ewald v Gomez, CLASS Act, Class Representatives, Mootness, Rule 68

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The Department of Labor Releases its Final Fiduciary Rule

The White House recently announced the Department of Labor’s (DOL) highly anticipated final fiduciary/conflict of interest rule and exemptions intended to ensure that retirement savers get investment advice in their best…more

Best Interest Contract Exemptions, Broker-Dealer, Conflicts of Interest, DOL, ERISA

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Special Session Ends with Handful of Noteworthy Tax Bills, Predictions for Next Special Session

The first Special Session of 2015 ended on Tuesday, August 11, without accomplishing the primary objective of passing a General Fund budget for the 2015-2016 fiscal year. The Governor’s “call” for the special session included…more

Business Taxes, Legislative Agendas, Legislative Process, Reciprocity Rules, Repeal

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A Primer to Understanding Wrap-Up Insurance Programs

Whether you are a property owner, general contractor, or subcontractor, understanding wrap-up insurance programs—when to consider one, what they insure, and how they affect the project—is vital to a construction project’s…more

Bids, CCIP, Construction Project, Contractors, Federal Contractors

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Data Breach Response Planning: Laying the Right Foundation

Part of Bradley Arant’s Privacy and Information Security Team’s seven-part Data Breach Toolkit Webinar Series, the “Data Breach Response Planning: Laying the Right Foundation” webinar, led by Paige Boshell and Amy Leopard,…more

Banking Sector, Banks, Breach Notification Rule, Cyber Attacks, Cyber Crimes

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Tennessee Legislature Passes Sweeping Changes to CON Law

On April 20, 2016, the Tennessee House and Senate completed final actions to pass legislation that makes significant modifications to the state’s certificate of need (CON) laws. The legislation, SB1842/HB1730 was sponsored by…more

Applications, Certificate of Need, Governor Haslam, Health Care Providers, Healthcare Facilities

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EEOC Seeks More Pay Data

Most private employers with 100 or more employees, and certain federal government contractors with 50 or more employees, are required to annually submit “The Employer Information Report” (known as the EEO-1) to the Equal…more

EEO-1, EEOC, Equal Pay, Executive Orders, Federal Contractors

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Land Banking Comes to Birmingham

On Tuesday, May 6, 2014, the City of Birmingham joined a number of other municipalities in a vote to authorize a Land Bank Authority. The Birmingham City Council passed the resolution to establish a land bank in hopes of…more

Abandoned Property, Banks, Economic Development, Foreclosure, Government Entities

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U.S. Supreme Court Clarifies Requirements for Removing Class Actions to Federal Court

Today the U.S. Supreme Court issued its decision in Dart Cherokee Basin Operating Co. v. Owens, No. 13-719, a case involving the procedural requirements for removing a class action from state to federal court under the Class…more

Amount in Controversy, CAFA, Class Action, Dart Cherokee Basin Operating Co. v. Owens, Diversity

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FHFA Proposes Rule on Fannie Mae’s & Freddie Mac’s Duty to Serve Underserved Markets

Pursuant to the Housing and Economic Recovery Act of 2008, which amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, federal law requires the Federal National Mortgage Association (Fannie Mae) and…more

Affordable Housing, Fannie Mae, FHFA, Freddie Mac, Proposed Regulation

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Supreme Court Upholds ACA Tax Credits; Employers Must Continue to Play or Pay

In a much-anticipated decision, the Supreme Court upheld in King v. Burwell the validity of tax credits under the Patient Protection and Affordable Care Act (ACA) that are available to individuals in States that have Federal…more

Affordable Care Act, Employer Mandates, Health Insurance, Health Insurance Exchanges, Individual Mandate

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Obtaining Title Insurance on Construction Loans: Avoiding Pitfalls Regarding Title Insurance Underwriting for Construction Loans

Avoiding Pitfalls in Construction Mortgages: Top 5 Tips for Title Insurance Underwriting - Construction mortgages pose significant risks for title insurers and require specific underwriting analysis. Avoid the pitfalls…more

Construction Loans, Mortgages, Title Insurance, Underwriting

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CMS Announces Next Generation ACO with Increased Risk and Reward

On March 10, 2015, the Centers for Medicare & Medicaid Services announced its “Next Generation ACO Model,” which CMS hopes will provide more experienced accountable care organizations an opportunity to assume higher levels of…more

ACOs, CMS, Health Care Providers, Healthcare, Medicare Shared Savings Program

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Update: Finding the Earliest and Least Expensive Exit from Financial Services Class Actions

In this Newsletter: - Gather The Facts And Assess The Risk Up Front. - If The Class Action Is Filed In State Court, Think Strategically About Whether To Remove. - Invest Time, Effort And Resources In…more

Class Action, Litigation Strategies

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Finally, a SOL Decision Focused On Unjust Enrichment and Inequitable Results

This week, the First District Court of Appeals joined the Fourth District Court of Appeals in holding that Florida’s five-year statute of limitation (SOL), under Fla. Stat. § 95.11(2)(c), did not bar the lender’s second…more

Acceleration, Appeals, Borrowers, Debt, Foreclosure

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Eleventh Circuit Refuses to Extend Scope of Assignee TILA Liability to Failure to Provide Payoff Balance

Ruling on an issue of first impression at the Circuit Court level, the Eleventh Circuit recently refused in Evanto v. Federal National Mortgage Association to impose Federal Truth in Lending Act (TILA) liability on assignees for…more

Assignees, First Impression, Mortgage Lenders, Mortgage Servicers, Third-Party Liability

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Deadline Extensions Possible for Expanded Retail Accountability Program

The rollout of the newly expanded Tennessee Retail Accountability Program is meeting with some opposition as the first reporting deadline under the 2015 changes in the program approaches. In response to these concerns, the…more

Automotive Industry, Deadlines, Department of Revenue, Food Manufacturers, Recordkeeping Requirements

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TILA Notice Requirement Not Retroactive: Ninth Circuit

The Ninth Circuit Court of Appeals recently ruled that a 2009 amendment to the Truth in Lending Act (TILA) does not apply retroactively. In a putative class action, Plaintiffs Mohammad and Rosa Talaie brought a claim under…more

Assignments, Borrowers, Creditors, Mortgages, Notice Requirements

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8 Simple Rules for Accommodating Responsible Innovation

From mobile deposits to securing account access with biometric data, financial institutions are interacting with their customers in never-before-seen ways. But long before these advances come to market they must survive…more

Banks, Innovation, OCC, Risk Management, Technology

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Tennessee Amends Condominium Lien Law to Clarify Lack of Superpriority Right

On April 19, 2016, Tennessee Governor Bill Haslam signed HB 2401, amending Tennessee’s condominium statue to make it clear that condominium associations cannot acquire a “superpriority” lien that trumps a first security interest…more

Amended Legislation, Condominium Act, Condominium Associations, Condominiums, Foreclosure

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Tennessee Adopts Expansive Trade Secret Preemption Standard

In a case of first impression decided August 19, 2014, the Tennessee Court of Appeals has decided the standard for determining the scope of preemption under the Tennessee Uniform Trade Secrets Act (TUTSA). The court adopted a…more

Misappropriation, Preemption, Trade Secrets, UTSA

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Supreme Court Limits ERISA Reimbursement Rights: Insurers Will Need to be Diligent

On January 20, 2016, the United States Supreme Court held that an ERISA plan could not satisfy its reimbursement rights from a participant’s general assets. ERISA plans’ reimbursement rights are now so limited that participants,…more

Employer Group Health Plans, Equitable Relief, ERISA, Medical Expenses, Medical Liens

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Alabama CON Report - April 2014

In this Issue: - I. Old Business - II. Certificate of Need Program - III. Reviewability Determinations and Pending Reviewability Determinations - III. New Business - Excerpt from Certificate of Need…more

Ambulatory Surgery Centers, Certificate of Need, Home Health Care, Hospitals, Inpatient Rehab Facilities

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CFPB Outlines Expectations for In-Person Debt Collection Activities by First- and Third-Party Debt Collectors

Consumer debt collection activities remain one of the primary focus areas of the Consumer Financial Protection Bureau (CFPB)—and this focus is not limited to the activities of third—party debt collectors…more

CFPB, Debt Collection, FDCPA, Financial Sector, Third-Party Service Provider

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House Bill 59, Alabama Reinvestment and Abatements Act, Expands Alabama Abatements Significantly

The Alabama Reinvestment and Abatements Act, HB59, Act No. 2015-24 (the “Act”), makes several changes to Alabama abatement law and expands the list of industries and types of projects that are eligible for those abatements…more

Abatement, Pending Legislation, Tax Abatement

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Let’s Talk About Pay: New Requirements for Federal Contractors

Federal contractors—recheck your compliance because there is a regulation (effective January 11, 2016) implementing President Obama’s Executive Order 13665—Non-Retaliation for Disclosure of Compensation Information. The…more

Anti-Discrimination Policies, Anti-Pay Secrecy, Employee Handbooks, Executive Orders, Federal Contractors

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FHFA Proposes Rule on Fannie Mae’s & Freddie Mac’s Duty to Serve Underserved Markets

Pursuant to the Housing and Economic Recovery Act of 2008, which amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, federal law requires the Federal National Mortgage Association (Fannie Mae) and…more

Affordable Housing, Fannie Mae, FHFA, Freddie Mac, Proposed Regulation

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The Form I-9 Has “Expired”: What’s an Employer to Do?

Federal law requires employers to verify the work authorization of new employees by reviewing acceptable documentation provided by the employee and then completing an Employment Eligibility Verification (commonly known as Form…more

Hiring & Firing, I-9, USCIS

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Bankruptcy Proof of Claim Form Gets a Makeover

Several of the Official Bankruptcy Forms will be replaced on December 1, 2015. For creditors, the most notable changes will be to two forms: the Proof of Claim form, Form 410, and the Mortgage Proof of Claim Attachment, Form…more

Bankruptcy Code, Bankruptcy Court, Creditors, Default, Mortgages

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CFPB Proposes Rules to Limit Arbitration Agreements in Consumer Financial Products

Last week, the CFPB announced two proposals related to the inclusion clauses that require arbitration to resolve all future disputes (“pre-dispute arbitration agreements”) in consumer financial products. The first proposal would…more

Administrative Review, Arbitration, Arbitration Agreements, CFPB, Class Action

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SEC Adopts Regulation A+

Newly adopted exemption to securities registration requirements may offer new capital raising opportunities for developing companies - A company that seeks to raise capital by offering or selling securities to potential…more

Blue Sky Laws, Debt Securities, Equity Financing, Exemptions, JOBS Act

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Distressed Municipal Debt-Considerations for Local Governments

A confluence of factors, including high debt, spiraling pension obligations, and lower sales and property tax revenues, has forced more municipalities to face insolvency than any time since the 1930s. The two largest municipal…more

Municipalities

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Update: New Reporting Requirements Deadline for Physician-Owned Hospitals Extended to March 1

The Centers for Medicare & Medicaid Services (CMS) has extended the deadline for physician-owned hospitals seeking to avail themselves of the “whole hospital” exception or “rural provider” exception to the Stark Law to report…more

CMS, Hospitals, Reporting Requirements, Stark Law

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Florida Courts Continue to Take the Wind Out of Foreclosure Defense Attorneys’ Sails

In late July, another Florida appellate court took a sizable chunk out of foreclosure defense attorneys’ litigation playbook, holding that substantial compliance, rather than strict compliance, is the prevailing standard to be…more

Compliance, Default, Defense Strategies, Foreclosure, Lenders

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BABC eDiscovery Newsletter - April 2013

In this issue: - The Firm’s Ediscovery Team Attorneys - Case Insights - Editor’s Corner - Excerpt from Peerless Industries, Inc. v. Crimson Av, LLC, Case No. 1:11-cv-1768, 2013 U.S. Dist. LEXIS 2985…more

Clawbacks, Document Productions, Document Review, Email, Record Preservation

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Cybersecurity for the Construction Industry

Warren Buffett, Chairman and CEO of Berkshire Hathaway, issued his annual letter to shareholders at the end of February. He included one dire warning about a threat over which he admits he has no control: “That threat to…more

Berkshire Hathaway, Cybersecurity, Popular, Risk Assessment, Risk Management

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CFPB Moves TRID Effective Date to October 3

In previous blog postings, we discussed an informal announcement from the Consumer Financial Protection Bureau (CFPB) of its intent to delay the effective date of the new integrated mortgage disclosure rule under Truth In…more

CFPB, Effective Date, Final Rules, Financial Institutions, Mortgage Lenders

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Buyer Beware – Know Before You Wire: FTC and NAR Warn Home Buyers on Closing Costs Wire Transfer Phishing Scams

In a recent blog post on the Federal Trade Commission (FTC) Consumer Information blog, the FTC warned home buyers of an e-mail and wire transfer phishing scam in which hackers pose as real estate professionals or title…more

FTC, National Association of Realtors, Phishing Scams, Real Estate Professionals, Title Companies

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What General Counsel Should Know When a Company's Tenant Files for Bankruptcy

Your tenant files for bankruptcy-what’s your move? Debtors who are lessees under real property leases have certain rights regarding their lease under § 365 of the Bankruptcy Code. Essentially, the debtor has two options: 1)…more

Assignments, Chapter 11, Chapter 7, Commercial Bankruptcy, Commercial Leases

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ALTA Introduces New CPL Form with Major Potential Negative Implications for the Financial Services Industry

In April, we posted about the significant protection afforded mortgage lenders and servicers as part of closing protection letters including recent judicial interpretations providing critical indemnity to lenders for “actual…more

ALTA, Closing Protection Letters, Financial Services Industry, Lenders, Mortgage Lenders

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Class Certification Issues In O’Bannon v. NCAA

In This Presentation: - Important Players - Underlying Lawsuit - Procedural Pre-Class Certification - Class Certification Issues - Aftermath and Trial - Recent Developments -…more

Athletes, Class Action, Class Certification, College Athletes, License Agreements

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IRS Extends Affordable Care Act Reporting Deadlines

Last week, the Internal Revenue Service (IRS) granted a reprieve of sorts with respect to the 2015 information reporting requirements under the Affordable Care Act (ACA). Under the ACA, an “applicable large employer” (generally,…more

Affordable Care Act, Applicable Large Employers (ALE), Employer Group Health Plans, Filing Deadlines, IRS

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Progress Report on ADOR’s Non-Nexus Vendor Remittance Program

The Alabama Department of Revenue’s (ADOR) well-publicized effort to subject remote sellers to the state's sales and use tax regime is designed primarily to force either the U.S. Supreme Court or Congress to settle questions as…more

Department of Revenue, Nexus, Physical Presence Test, Sales & Use Tax, Vendors

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CMS Finalizes Stark Law Changes in CY 2016 Medicare Physician Fee Schedule Final Rule

This past July, on the heels of a decision in which a judge for the U.S. Court of Appeals for the Fourth Circuit characterized the federal physician self-referral prohibition commonly known as the “Stark Law” as, “even for…more

CMS, Final Rules, Health Care Providers, Physician Fee Schedule, Stark Law

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How Government Contractors Can Manage the Challenges of Rapid Reporting of Cyber Incidents

In the past few years, the Department of Defense’s (DoD) regulations have mandated that DoD contractors and subcontractors rapidly report cyber incidents to the government. That trend continues and may spread to civilian…more

Cybersecurity, Department of Defense (DOD), Federal Contractors, Reporting Requirements

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Construction and Procurement Law News - First Quarter 2014

In this Issue: - Federal Circuit’s Metcalf Decision a Big Win for Contractors - Government Defenses of Defective Certification and the Severin Doctrine not a Silver Bullet - Are No-Damage-for-Delay…more

CBCA, Federal Contractors, Federal Procurement Systems, HHS, Licenses

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Predicting How the New Partnership Audit Rules Will Affect S Corporations and Their Shareholders

This column has three focal points: S corporations (of course!), the new partnership audit procedures and Jeanne Dixon. Yes, that Jeanne Dixon—the self-professed psychic who claimed to have predicted the assassination of…more

Audits, Bipartisan Budget, Partnerships, S-Corporation, TEFRA

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Raging Bull Decision Riles Hollywood, Thrills Plaintiffs

In June, the Supreme Court issued a landmark decision affecting copyright claims and defenses. The copyrighted work at issue was the popular motion picture Raging Bull, in which Robert DeNiro plays famous boxing champion Jake…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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Contractors Beware: Subcontractor Exception to “Your Work” Exclusion May Not Save the Day

Commercial general liability (CGL) coverage for a general contractor is not guaranteed, even if property damage is all a subcontractor’s fault. Consider the following example: A general contractor builds a stadium for which a…more

Commercial General Liability Policies, Construction Industry, General Contractors, Insurance Industry, Policy Exclusions

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Ninth Circuit Rejects Whistleblower Argument that Fannie Mae and Freddie Mac are Federal Instrumentalities under the False Claims Act

Liability under the False Claims Act (FCA) is premised on the submission of a claim for money or property either to a federal government “officer, employee, or agent” or, under certain circumstances, to a nongovernmental…more

Amicus Briefs, DOJ, False Claims Act (FCA), Fannie Mae, Freddie Mac

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Fifth Circuit Court of Appeals Clarifies Abandonment of Loan Acceleration

The Fifth Circuit Court of Appeals recently clarified how mortgage lenders and servicers can abandon a loan acceleration under Texas law. Although Texas generally requires foreclosure actions to be brought no more than four…more

Acceleration, Banks, Default, Delinquent Borrowers, Foreclosure

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Summary of Mississippi’s New Construction Lien Law

Mississippi recently enacted a new construction lien law. This article addresses certain key provisions of the new law - codified at Mississippi Code Annotated § 85-7-401 (Rev. 2014) - that apply to commercial projects. …more

Construction Contracts, Construction Liens, Construction Workers, Contractors, Liens

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Tennessee – 2014 Legislative Highlights

Effective January 1, 2015, the method of issuing tax assessments and the informal conference process available to taxpayers will be revamped. 2014 Tenn. Pub. Acts 854. Touted as being more taxpayer-friendly, the two most…more

Fuel Tax, Marketing, Natural Gas, Notice Requirements, Property Tax

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Mortgage Servicers Can Submit Proof of Standing after Filing Complaint, Says Ohio Supreme Court

In Wells Fargo Bank, N.A. v. Horn, the Ohio Supreme Court held “that the plaintiff in a foreclosure action must have standing at the time it files its complaint. But…the plaintiff [is not required to] submit proof of standing at…more

Foreclosure, Mortgage Lenders, Mortgage Servicers, OH Supreme Court, Standing

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Oil and Gas Industry Concerned about EPA’s Proposed Methane Emissions Rules

On August 18, 2015, the EPA released proposed rules aimed at reducing methane and other volatile organic compound (VOC) emissions in the oil and natural gas industry. In January 2015, the EPA stated its goal to decrease methane…more

EPA, Greenhouse Gas Emissions, Methane, NSPS, Oil & Gas

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Alabama Rewrites Its Noncompete Statute

The Alabama legislature recently passed a comprehensive revision of the state’s noncompete statute, and Governor Bentley has signed the act into law. The new statute will become effective January 1, 2016. The new statute does…more

Amended Legislation, Employer Liability Issues, Non-Compete Agreements, Reasonableness Factors

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OCC Revises Its Policies for Assessing Penalties against Financial Institutions

The Office of the Comptroller of the Currency (OCC) has revised its civil monetary penalty (CMP) policy, effective February 26, 2016. The revised Policy and Procedures Manual sets forth the OCC’s new scheme for the assessment of…more

Banking Sector, Breach of Duty, Civil Monetary Penalty, Enforcement Actions, Fiduciary Duty

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Alaska Supreme Court Extends FDCPA Coverage to Trustees Involved in Non-Judicial Foreclosures

In Alaska Trustee, LLC and Stephen Routh v. Brett Ambridge and Josephine Ambridge, the Alaska Supreme Court considered whether Alaska Trustee and Routh were “debt collectors” subject to liability under the Federal Debt…more

Debt Collectors, FDCPA, Non-Judicial Foreclosures, Popular, Trustees

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SCRA Will Continue to Receive Regulatory Scrutiny

On March 22, 2016, the U.S. House of Representatives passed the Foreclosure Relief and Extension for Servicemembers Act of 2015. This bill was signed into law by President Obama on March 31, 2016. This follows the recodification…more

CFPB, DOJ, Enforcement Actions, Financial Institutions, Foreclosure

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Our customer has filed bankruptcy but demands that we continue to extend trade credit! Are we obligated to do so?

Trade creditors often face the issue of whether they are required to continue providing goods or services on credit to a customer that has filed chapter 11 bankruptcy. Unfortunately, the Bankruptcy Code fails to specifically…more

Cash Transactions, Chapter 11, Commercial Bankruptcy, Creditors, Debtors

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If Employed by a Federal Government Contractor, Sometimes It Pays to Be Sick

A 286-page Notice of Proposed Rule Making was issued by the Department of Labor (DOL) in the Federal Register on February 25, 2016. The DOL estimates that 437,000 employees of federal contractors will begin to receive paid sick…more

DOL, Executive Orders, Federal Contractors, NPRM, Sick Pay

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Several Key Business Associations Announce 2016 Tax Legislative Agendas

In preparation for the 2016 regular session, which begins on February 2, several of Alabama's key trade and business organizations recently announced their tax legislative agendas. As reflected in these agendas, the 2016 session…more

Business Taxes, Corporate Taxes, Department of Revenue, Income Taxes, Legislative Agendas

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The Upcoming “Patent Cliff”: Plan to File New Patent Applications Before March 16, 2013

On March 16, 2013, one of the most important and controversial provisions of the “Leahy-Smith America Invents Act,” or AIA, is scheduled to take effect and this event will mark a significant change in United States patent filing…more

America Invents Act, First-to-File, First-to-Invent, Patent Reform, Patents

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Oral Modification of Mortgage Not Permitted by Florida Court of Appeals

This week, the Florida Fourth District Court of Appeals held that Florida’s Statute of Frauds precludes oral modification of a mortgage and that the judicial doctrine of promissory estoppel may not be used to circumvent the…more

Mortgages, Oral Modification, Promissory Estoppel, Statute of Frauds

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New Law Affects the Timeframe to Cancel Mortgages in Florida

Effective July 1, 2016, lenders will have less time to cancel a mortgage in Florida once it is paid in full. Furthermore, open-end mortgages must now be cancelled within a specified time of the borrower’s request for…more

Cancellation Rights, Mortgage Lenders, Mortgages

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CFPB Issues Compliance Guides for New TILA, RESPA, and ECOA Requirements

In January 2013, the Consumer Financial Protection Bureau (“CFPB”) issued a number of new final rules to implement amendments to the Truth in Lending Act (“TILA”), Real Estate Settlement Procedures Act (“RESPA”), and Equal…more

CFPB, Compliance, ECOA, RESPA, Truth in Lending Act (TILA)

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False Claims Act: 2015 Year in Review

This year continued the trend of aggressive False Claims Act (FCA) enforcement by the Department of Justice (DOJ) and high volumes of qui tam lawsuits brought by whistleblowers. In fiscal year 2015, the DOJ marked the fourth…more

Anti-Kickback Statute, Certiorari, DOJ, False Claims Act (FCA), False-Certification of Conformance

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2015 – The Health Law Year in Review

With 2015 in the books, we are pleased to reflect on some of the major developments over the past year in the field of health law. The year was marked by changes in Medicare payment models—from government pronouncements…more

Affordable Care Act, DOJ, False Claims Act (FCA), Individual Accountability, King v Burwell

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Employer Liability for the Lone Wolf

Shocking acts of violence are reported in the press every day. Reading about bombers, gunmen, and rapists in schools and homes and nightclubs is almost unbearable. For us labor lawyers, workplace violence is particularly…more

Employer Liability Issues, Risk Management, Workplace Safety, Workplace Violence

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Florida Court of Appeals Finds Notice of Assignment Not Condition Precedent to Foreclosure Suit

In January, the Florida Second District Court of Appeals—addressing an issue of first impression in the Florida district courts of appeal—held that providing written notice of assignment of a note described in Fla. Stat. §…more

Banking Sector, FL Supreme Court, Foreclosure, Mortgages

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Leaving Real Estate Investment Trusts in the Cold: How the Americold Case Could Preclude Establishing Diversity Jurisdiction in Federal Court

The Supreme Court’s most recent citizenship opinion, Americold Realty Trust v. Conagra Foods, Inc., could make removing or keeping a case in federal court based on diversity more difficult for a statutory trust with a…more

Americold Realty Trust v Conagra Foods, Beneficial Owner, Citizenship, Diversity Jurisdiction, Members

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A Primer to Understanding Wrap-Up Insurance Programs

Whether you are a property owner, general contractor, or subcontractor, understanding wrap-up insurance programs—when to consider one, what they insure, and how they affect the project—is vital to a construction project’s…more

Bids, CCIP, Construction Project, Contractors, Federal Contractors

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2014 – The Health Law Year in Review

Each year brings significant changes and challenges in the laws governing the health care industry, and 2014 proved to be no exception. What the year may have lacked in the high drama that accompanies comprehensive health reform…more

ACOs, Affordable Care Act, Anti-Kickback Statute, CMP Law, CMS

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The Sunshine Act Final Rule: CMS Sheds Light on Reporting Physician and Teaching Hospital Payments

On February 1, 2013, the Centers for Medicare & Medicaid Services (CMS) released a final rule implementing the Physician Payment Sunshine Act (the “Act”). The Act requires certain manufacturers of covered drugs, devices, and…more

Applicable Manufacturers, Biologics, CMS, Covered Recipients, Disclosure Requirements

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Chapter 7 Debtors Cannot Strip Off Junior Liens on Underwater Home Loans, United States Supreme Court Rules

Yesterday, the United States Supreme Court ruled that debtors in Chapter 7 bankruptcy cases cannot “strip off,” or completely void, junior mortgages that—based on the value of the property and the amount of claims secured by…more

Bank of America v. Caulkett, Bankruptcy Code, Borrowers, Chapter 13, Chapter 7

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The EEOC Turns 50: What Employers Can Expect In 2015

In 1964, the average income was $5,880. Minimum wage was $1.25/hour. You could buy a new home for $20,500, a new Ford Mustang for $2,360, and Congress passed The Civil Rights Act of 1964, creating the EEOC. This year the EEOC…more

Best Management Practices, EEOC, Employer Liability Issues, Harassment, Minimum Wage

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Alabama CON Report - April 2014

In this Issue: - I. Old Business - II. Certificate of Need Program - III. Reviewability Determinations and Pending Reviewability Determinations - III. New Business - Excerpt from Certificate of Need…more

Ambulatory Surgery Centers, Certificate of Need, Home Health Care, Hospitals, Inpatient Rehab Facilities

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Understanding CIPs, Builder’s Risk, and Inland Marine Insurance Policies

Part of Bradley Arant’s Policyholder Insurance Coverage Team’s six-part Maximize Your Company's Insurance Coverage Webinar Series, the “Understanding CIPs, Builder’s Risk, and Inland Marine Insurance Policies” webinar, led by…more

Builder's Risk Exclusion, CIP, Commercial General Liability Policies, Construction Industry, Contractors

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Will Alabama Honor Your Choice of Law Provisions?

Amendment 884 calls into question the validity and enforceability of the choice of law provisions in contracts brought before Alabama courts. In November of 2014, Alabama voters ratified Amendment 884 to the Alabama…more

Amended Legislation, Choice-of-Law, Contract Drafting, Contract Terms, Dispute Resolution

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The Camel’s Nose: Incorporating Commercial and Construction Arbitration Rules

There is an old proverb that states, “If the camel once gets his nose in the tent, his body will soon follow.” Stated differently, one should not let the camel’s nose inside unless he or she is prepared to accept the whole…more

AL Supreme Court, American Arbitration Association, Commercial Insurance Policies, Liability Insurance, Mandatory Arbitration Clauses

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Legislation Targeting Non-Practicing Entities (NPEs) Passes in House by Comfortable Margin

On Thursday, December 5, 2013, the U.S. House of Representatives approved the “Innovation Act” (H.R. 3309), a bill principally aimed at curtailing certain patent infringement litigation practices of non-practicing entities…more

Disclosure Requirements, Discovery, Infringement, Innovation Act, Legal Costs

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House Bill 59, Alabama Reinvestment and Abatements Act, Expands Alabama Abatements Significantly

The Alabama Reinvestment and Abatements Act, HB59, Act No. 2015-24 (the “Act”), makes several changes to Alabama abatement law and expands the list of industries and types of projects that are eligible for those abatements…more

Abatement, Pending Legislation, Tax Abatement

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House Bill 59, Alabama Reinvestment and Abatements Act, Expands Alabama Abatements Significantly

The Alabama Reinvestment and Abatements Act, HB59, Act No. 2015-24 (the “Act”), makes several changes to Alabama abatement law and expands the list of industries and types of projects that are eligible for those abatements…more

Abatement, Pending Legislation, Tax Abatement

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FTC and DOJ Take Aim at State Certificate of Need Laws

Earlier this year, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) released their formal recommendation that South Carolina repeal its certificate of need (CON) law regulating the…more

Anticompetitive Agreements, Certificate of Need, Competition, DOJ, FTC

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Tennessee Supreme Court Revisiting Summary Judgment Standard

On the heels of two new Justices joining the Tennessee Supreme Court, the Court has indicated its intention to reconsider the summary judgment standard set forth in Hannan v. Alltel Publishing Co., 270 S.W. 3d 1 (Tenn. 2008). In…more

Appeals, Pleading Standards, Summary Judgment

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False Claims Act: 2015 Year in Review

This year continued the trend of aggressive False Claims Act (FCA) enforcement by the Department of Justice (DOJ) and high volumes of qui tam lawsuits brought by whistleblowers. In fiscal year 2015, the DOJ marked the fourth…more

Anti-Kickback Statute, Certiorari, DOJ, False Claims Act (FCA), False-Certification of Conformance

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NAIC’s New 12-Step Cybersecurity Program

The Cybersecurity Task Force of the National Association of Insurance Commissioners (NAIC) has released formal guidance outlining the data security safeguards that the insurance industry and state insurance regulators should…more

Cybersecurity, Insurance Industry, NAIC

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Rejecting Government’s “Fairyland” Theory, Sixth Circuit Applies Commonsense Calculation to Dramatically Reduce Contractor’s False Claims Act Damages

In a humorous yet stern rebuke of the government’s damages theory, the Sixth Circuit in United States ex rel. Wall v. Circle C Construction, LLC, No. 14-6150, 2016 WL 423750 (6th Cir. Feb. 4, 2016), reversed a lower court’s…more

Construction Industry, Davis-Bacon Act, False Claims Act (FCA), Underpayment, Wage and Hour

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Offer Expired: The FAR’s 30-Day Offer Expiration Rule Applicable to Commercial Items

The language of FAR 52.212-1(c) states that an “offeror agrees to hold the prices in its offer firm for 30 calendar days from the date specified for receipt of offers, unless another time period is specified in an addendum to…more

Department of Defense (DOD), Expiration Date, Federal Acquisition Regulations (FAR), Federal Contractors, General Solicitation

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Nevada State Court Ruling on Application of HERA to HOA Foreclosure Sales Holds Promise for Lenders and GSEs

The first Nevada state court ruling on the federal Housing and Economic Recovery Act (HERA) holds that a deed of trust owned by a GSE cannot be extinguished by a homeowners’ association’s (HOA) foreclosure sale, a promising…more

Action to Quiet Title, Deed of Trust, Foreclosure Sales, GSE, HERA

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Marketing Services Agreements Pose Grave Compliance Risk – Mortgage and Real Estate Industry on Notice

The CFPB issued Compliance Bulletin 2015-05 (Bulletin) today, which sets forth its position concerning the use of Marketing Services Agreements (MSAs) by mortgage companies and settlement service providers. Importantly, the CFPB…more

CFPB, CFPB Bulletins, Criminal Sanctions, Marketing Services Agreements, Mortgages

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False Claims Act: 2015 Year in Review

This year continued the trend of aggressive False Claims Act (FCA) enforcement by the Department of Justice (DOJ) and high volumes of qui tam lawsuits brought by whistleblowers. In fiscal year 2015, the DOJ marked the fourth…more

Anti-Kickback Statute, Certiorari, DOJ, False Claims Act (FCA), False-Certification of Conformance

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Budget Deal Limits Payment to New Off-Campus Hospital Outpatient Departments

On November 2, 2015, President Obama signed the Bipartisan Budget Act of 2015 (the “Act”) into law. The Act, widely hailed as a rare act of bipartisan cooperation, raises the federal debt ceiling and sets federal spending…more

Ambulatory Surgery Centers, Barack Obama, Bipartisan Budget, CMS, Debt Ceiling

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April 30 Deadline to Restate Pre-Approved Plans

Sponsors of pre-approved defined contribution retirement plans are generally required to sign new plan documents that incorporate changes required by the Pension Protection Act on or before April 30, 2016. Defined contribution…more

Benefit Plan Sponsors, Defined Contribution Plans, Filing Requirements, IRS, Patent Protection Act

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Don’t Be Bullied by a Patent Troll

One of our favorite stories growing up was the “Three Billy Goats Gruff,” the main character of which is a terrible troll who lived under a bridge. The troll tried to terrorize and eat three goats who just wanted to cross a…more

Infringement, Patent Trolls, Patents, USPTO

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Burn Notice: Why Strict Compliance with Notice Requirements is Critical

Compliance with notice provisions in contracts is often a threshold question for courts when evaluating contract claims. In Contractors Edge, Inc. v. City of Mankato, the Minnesota Court of Appeals addressed such a circumstance…more

Construction Disputes, Contract Terms, Notice Requirements, Public Projects

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Fourth Circuit Clarifies When a Regulatory Violation May Lead to a False Claims Act Violation

The U.S. Fourth Circuit Court of Appeals’ recent decision in United States ex rel. Rostholder v. Omnicare, Inc., reconfirms the well-founded principle that a civil False Claims Act (FCA) claim that is based on the defendant’s…more

False Claims Act (FCA), Healthcare, Omnicare, Pharmaceutical Industry

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No Notice of Mortgage Assignment in Florida? No Problem

Earlier this month, the United States District Court for the Southern District of Florida in Summerlin Asset Mgmt. V Trust v. Jackson decided an issue of first impression regarding whether compliance with Florida Statute section…more

Assignments, Debt Collection, FCCPA, FDCPA, First Impression

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New York DFS Set to Regulate Cybersecurity Rules

On November 9, 2015, the New York State Department of Financial Services (“NYDFS”) issued a letter to several federal regulatory agencies and trade organizations advising of potential new state regulations intended to increase…more

Cybersecurity, Department of Financial Services, Financial Institutions, Financial Services Industry

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CFPB Director Denies J.G. Wentworth’s Petition to Set Aside Civil Investigative Demand

Recipients of a Civil Investigative Demand (CID) from the Consumer Financial Protection Bureau (CFPB) have yet another reason to be wary of petitioning the Director to have the CID formally modified or set aside…more

Annuities, CFPA, CFPB, Civil Investigation Demand, Corporate Counsel

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Real Estate Newsletter - December 2013

The Alabama Supreme Court recently addressed whether a lender must own a mortgage when it initiates foreclosure proceedings and, if not, whether that would invalidate the ownership rights in the property that the lender obtained…more

Foreclosure, Mortgages, Real Estate Market

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Final Clean Water Act Rule Goes Into Effect

On May 27, 2015, the Environmental Protection Agency (EPA) released the Waters of the U.S. Final Rule under the Clean Water Act (CWA). This is an expansion by the Obama Administration of the federal protection of U.S. waterways…more

Clean Water Act, EPA, Federal Jurisdiction, Final Rules, US Army Corps of Engineers

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HIPAA and HITECH Privacy and Security Rule Update: Final Omnibus Rule

The Office of Civil Rights (“OCR”) of the Department of Health and Human Services (“HHS”) published today the much anticipated final omnibus rule implementing the Health Information Technology for Economic and Clinical Health…more

Business Associates, Compliance, Covered Entities, Data Breach, Data Protection

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Patent Examiners Who Cut Corners in Subject Matter Eligibility Decisions Can Be Reversed

Due to the rapidly shifting requirement for subject matter eligibility, some patent examiners seem to believe that, when it comes to software inventions, they are entitled to assume the invention is not patent eligible subject…more

Abstract Ideas, CLS Bank v Alice Corp, Due Process, Examiners, Mayo v. Prometheus

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Charitable Lead Annuity Trusts: An Estate Planning Strategy for a Low-Interest-Rate Environment

In the current economic environment, IRS-prescribed monthly interest rates for certain intra-family transactions are at historic lows. As a result, an excellent opportunity exists to transfer wealth to lower generation family…more

Asset Transfer, Charitable Deductions, Charitable Lead Annuity Trust, Gift Tax, Gift-Tax Exemption

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House Bill 59, Alabama Reinvestment and Abatements Act, Expands Alabama Abatements Significantly

The Alabama Reinvestment and Abatements Act, HB59, Act No. 2015-24 (the “Act”), makes several changes to Alabama abatement law and expands the list of industries and types of projects that are eligible for those abatements…more

Abatement, Pending Legislation, Tax Abatement

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U.S. Supreme Court Ruling Opens the Door to More State-Law Securities Class Actions

Today, in a 7-2 decision with Justice Breyer writing for the majority, the Supreme Court issued a narrow interpretation of when the federal Securities Litigation Uniform Standards Act (“SLUSA”) preempts state-law securities…more

Class Action, Corporate Counsel, Ponzi Scheme, Preemption, SCOTUS

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CMS Announces Next Generation ACO with Increased Risk and Reward

On March 10, 2015, the Centers for Medicare & Medicaid Services announced its “Next Generation ACO Model,” which CMS hopes will provide more experienced accountable care organizations an opportunity to assume higher levels of…more

ACOs, CMS, Health Care Providers, Healthcare, Medicare Shared Savings Program

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Data Breach Response Planning: Laying the Right Foundation

Part of Bradley Arant’s Privacy and Information Security Team’s seven-part Data Breach Toolkit Webinar Series, the “Data Breach Response Planning: Laying the Right Foundation” webinar, led by Paige Boshell and Amy Leopard,…more

Banking Sector, Banks, Breach Notification Rule, Cyber Attacks, Cyber Crimes

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The Supreme Court Tightens Up State-Action Immunity: Justices Rule that Phoebe-Putney/Palmyra Transaction Is Not Immune from Antitrust Scrutiny

On February 19, 2013, the Supreme Court unanimously held that the effective acquisition of Palmyra Medical Center (“Palmyra”) by Phoebe Putney Health System, Inc. (“PPHS") in Southwestern Georgia was not immune from antitrust…more

FTC, FTC v. Phoebe Putney Health System, Government Entities, Governmental Immunity, Governmental Liability

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Defense of Marriage Act: What the U.S. Supreme Court’s Windsor Decision May Mean for Employer-Sponsored Benefit Plans

Now that the U.S. Supreme Court has ruled in U.S. v. Windsor that the federal Defense of Marriage Act (“DOMA”) is an unconstitutional “deprivation of the equal liberty of persons that is protected by the Fifth Amendment of the…more

Discrimination, DOMA, Due Process, Employee Benefits, Equal Protection

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The Eleventh Circuit Issues Two Unanimous Opinions Finding No Private Right of Action Under TARP

On October 3, 2008, George W. Bush signed the Troubled Asset Relief Program (TARP) into law as part of the government’s efforts to combat the subprime mortgage crisis and shore up the faltering economy. In general terms, TARP…more

Delinquent Borrowers, HAMP, Judicial Foreclosure Process, Loan Modifications, Mortgages

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Raging Bull Decision Riles Hollywood, Thrills Plaintiffs

In June, the Supreme Court issued a landmark decision affecting copyright claims and defenses. The copyrighted work at issue was the popular motion picture Raging Bull, in which Robert DeNiro plays famous boxing champion Jake…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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FTC and DOJ Take Aim at State Certificate of Need Laws

Earlier this year, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) released their formal recommendation that South Carolina repeal its certificate of need (CON) law regulating the…more

Anticompetitive Agreements, Certificate of Need, Competition, DOJ, FTC

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Third Circuit Expands FMLA Interpretation

In Deborah Hansler v. Lehigh Valley Hospital Network, the United States Court of Appeals for the Third Circuit overturned a motion to dismiss granted to Lehigh Valley based on FMLA regulations and its interpretation regarding…more

Appeals, Employee Rights, Employer Liability Issues, FMLA, FMLA Certification Forms

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Progress Report on ADOR’s Non-Nexus Vendor Remittance Program

The Alabama Department of Revenue’s (ADOR) well-publicized effort to subject remote sellers to the state's sales and use tax regime is designed primarily to force either the U.S. Supreme Court or Congress to settle questions as…more

Department of Revenue, Nexus, Physical Presence Test, Sales & Use Tax, Vendors

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Community Banks Face Ever-Increasing Compliance Burden As a Result of Dodd-Frank Rules

According to a “Dodd-Frank Regulations Impacts on Community Banks, Credit Unions and Systematically Important Institutions” report recently released by the Government Accountability Office (GAO), community banks continue to…more

Community Banks, Credit Unions, Dodd-Frank, GAO, Mortgage Lenders

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Buyer Beware – Know Before You Wire: FTC and NAR Warn Home Buyers on Closing Costs Wire Transfer Phishing Scams

In a recent blog post on the Federal Trade Commission (FTC) Consumer Information blog, the FTC warned home buyers of an e-mail and wire transfer phishing scam in which hackers pose as real estate professionals or title…more

FTC, National Association of Realtors, Phishing Scams, Real Estate Professionals, Title Companies

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CFPB Issues Compliance Guides for New TILA, RESPA, and ECOA Requirements

In January 2013, the Consumer Financial Protection Bureau (“CFPB”) issued a number of new final rules to implement amendments to the Truth in Lending Act (“TILA”), Real Estate Settlement Procedures Act (“RESPA”), and Equal…more

CFPB, Compliance, ECOA, RESPA, Truth in Lending Act (TILA)

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Alabama Rewrites Its Noncompete Statute

The Alabama legislature recently passed a comprehensive revision of the state’s noncompete statute, and Governor Bentley has signed the act into law. The new statute will become effective January 1, 2016. The new statute does…more

Amended Legislation, Employer Liability Issues, Non-Compete Agreements, Reasonableness Factors

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After Second Thought……..North Carolina Governor Signs Executive Order Rolling Back Portions of Controversial Law

Just weeks after he signed HB 2, which covered transgender bathroom access, on April 12, North Carolina Governor Pat McCory signed an Executive Order clarifying and apparently attempting to repeal certain aspects of the law. In…more

Employee Restrooms, Executive Orders, Gender Identity, Governor Pat McCrory, Religious Freedom

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The Importance of Providing Timely Notice to the Insurer

One of the most valuable assets a business owns is its insurance coverage. The goal when purchasing liability insurance—and regularly paying insurance premiums—is to have coverage when, for example, your business is faced with a…more

Business Assets, Commercial General Liability Policies, Liability Insurance, Notice Requirements, Risk Management

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New Rule Requires Federal Contractors to Disclose Federal Tax Delinquencies and Felonies

On December 4, 2015, the Department of Defense, General Services Administration and the National Aeronautics and Space Administration issued an interim rule amending the Federal Acquisition Regulations to implement sections of…more

Construction Industry, Department of Defense (DOD), Disclosure Requirements, Federal Acquisition Regulations (FAR), Federal Contractors

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West Virginia’s Bank of Mingo Pays $4.5 Million for BSA/AML Compliance Program Deficiencies, Showing that Small and Midsize Institutions Also Face Enforcement Scrutiny

A series of recent federal enforcement actions targeting weaknesses in financial institutions’ Bank Secrecy Act/anti–money laundering (BSA/AML) compliance programs continued on June 15, when the Department of Justice (DOJ),…more

Anti-Money Laundering, Bank Secrecy Act, Banks, BSA/AML, Civil Monetary Penalty

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Contractor Authority Over Means and Methods

A central principle of construction contracts is that, where a contractor (a) commits to construct in accordance with plans and specifications (b) provided by the owner (c) in exchange for payment of a firm, fixed price, the…more

Board of Contract Appeals, Construction Defects, Construction Industry, Construction Project, Contract Disputes

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Concerted Activity or Insubordination?

With its recent decision in Central States SE and SW Areas, Health & Welfare and Pension Funds, 362 N.L.R.B. No. 155, 203 LRRM 2082 (August 4, 2015), the National Labor Relations Board (“NLRB” or “Board”) has provided another…more

Administrative Appeals, ALJ, Dismissals, NLRB, Protected Concerted Activity

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S. 682 Offers Possible Relief for Consumers Stranded by CFPB

Recent history has shown that the regulations designed to implement the Dodd-Frank Act thresholds for High-Cost Mortgages under the Home Ownership and Equity Protections Act (HOEPA) for personal property loans are having a…more

CFPB, Dodd-Frank, High-Risk Mortgages, HOEPA, HUD

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The Government Shutdown and its Effect on the Real Estate Market

On September 30, the federal government shut down or significantly reduced staffing for many of its programs because of Congress’ failure to pass a budget for this fiscal year. The shutdown appears set to affect the real estate…more

Fair Housing Act (FHA), Fannie Mae, Freddie Mac, Government Shutdown, Mortgages

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Nevada Supreme Court Reverses Course on MERS

The Nevada Supreme Court recently reversed – or at least clarified – the impact of MERS in Nevada under the approach set forth in the Restatement (Third) of Property: Mortgages. The Supreme Court had held in 2012 that at the…more

Bank Notes, Bank of New York (BNY) Mellon, Beneficiaries, Consumer Lenders, Deed of Trust

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EEOC Issues Controversial Updated Enforcement Guidance on Pregnancy Discrimination

For the first time in over 30 years, the Equal Employment Opportunity Commission (EEOC) recently issued a comprehensive update to its guidelines on pregnancy discrimination. The EEOC’s Enforcement Guidance on Pregnancy…more

ADA, ADAAA, Discrimination, EEOC, Employer Liability Issues

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Alabama CON Report - April 2014

In this Issue: - I. Old Business - II. Certificate of Need Program - III. Reviewability Determinations and Pending Reviewability Determinations - III. New Business - Excerpt from Certificate of Need…more

Ambulatory Surgery Centers, Certificate of Need, Home Health Care, Hospitals, Inpatient Rehab Facilities

See All Updates »

False Claims Act: 2015 Year in Review

This year continued the trend of aggressive False Claims Act (FCA) enforcement by the Department of Justice (DOJ) and high volumes of qui tam lawsuits brought by whistleblowers. In fiscal year 2015, the DOJ marked the fourth…more

Anti-Kickback Statute, Certiorari, DOJ, False Claims Act (FCA), False-Certification of Conformance

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Will Expanding P3 Legislation Impact You?

Recent legislation in Kentucky and Tennessee: Kentucky and Tennessee have recently been added to the growing list of states allowing the use of public-private partnerships (P3). The Kentucky Legislation (HB 309) was passed…more

Construction Industry, Infrastructure, Public Private Partnerships (P3s), Public Projects, Roads

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2015 – The Health Law Year in Review

With 2015 in the books, we are pleased to reflect on some of the major developments over the past year in the field of health law. The year was marked by changes in Medicare payment models—from government pronouncements…more

Affordable Care Act, DOJ, False Claims Act (FCA), Individual Accountability, King v Burwell

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Design Errors Exception to the Economic Loss Doctrine

A recent Pennsylvania case, Gongloff Contracting, LLC v. L. Robert Kimball & Assocs., Architects and Engineers, Inc., sheds light on circumstances in which design errors can lead to damages in tort as courts recognize exceptions…more

Construction Industry, Design Defects, Design Professionals, Economic Loss Doctrine, Negligent Misrepresentation

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Sixth Circuit Affirms Dismissal of $2.3 Billion FCA Case Due to Prior Public Disclosure

Last week, in U.S. ex rel. Advocates for Basic Legal Equality, Inc. (ABLE) v. U.S. Bank, the Sixth Circuit affirmed the dismissal of a False Claims Act (FCA) suit against U.S. Bank because the conduct alleged by the qui tam…more

Corporate Counsel, Fair Housing Act (FHA), False Claims Act (FCA), Foreclosure, US Bank

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Changes to IRS Partnership and LLC Audit Rules

Recent history has seen a proliferation of health care organizations—including tax-exempt organizations, for-profit companies, and physician practice groups—that have joined together to take advantage of different synergies…more

Audits, Bipartisan Budget, Business Taxes, Income Taxes, Indemnification

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Fifth Circuit Upholds Arbitrations with Class Waivers – Gasses NLRB in Murphy Oil Case

More frequently, employers are turning to arbitration agreements to keep lawsuits out of court and prevent the threat of run-away juries. Many arbitration agreements also contain class action waivers which require employees to…more

Arbitration, Arbitration Agreements, Class Action Arbitration Waivers, D.R. Horton v NLRB, Employer Liability Issues

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Interacting with Settlement Agents to Ensure TRID Compliance

Last October, the Consumer Financial Protection Bureau’s (CFPB) new integrated mortgage disclosure rule under the Truth in Lending Act and the Real Estate Settlement Procedures Act (commonly known as the TILA-RESPA Integrated…more

CFPB, Closing Documents, Financial Services Industry, Mortgage Lenders, TILA-RESPA Integrated Disclosure Rule (TRID)

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Post-Accident Investigation Reports: Protecting Work Product

A workplace accident causes injury. In-house legal counsel edits the resulting post-accident investigation report and labels it “prepared in anticipation of litigation.” Many would assume without question that the report is…more

Accident Reports, Corporate Counsel, Internal Investigations, Work Product Privilege, Workers' Compensation Defense

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ERISA Retaliation Claims: Avoiding Potential Employer Pitfalls

Most employers and human resources professionals are well aware of the various federal discrimination statutes, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination…more

Discrimination, Employee Benefits, Employee Definition, ERISA, FMLA

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Deadline Extensions Possible for Expanded Retail Accountability Program

The rollout of the newly expanded Tennessee Retail Accountability Program is meeting with some opposition as the first reporting deadline under the 2015 changes in the program approaches. In response to these concerns, the…more

Automotive Industry, Deadlines, Department of Revenue, Food Manufacturers, Recordkeeping Requirements

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Annual Report Filing Deadline in Mississippi

If you are responsible for a for-profit corporation or a limited liability company operating in the State of Mississippi, please be aware of the upcoming April 15 deadline to file your mandatory 2015 Annual Report. Failure to…more

Annual Reports, Business Entities, Filing Deadlines, Secretary of State

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2015 – The Health Law Year in Review

With 2015 in the books, we are pleased to reflect on some of the major developments over the past year in the field of health law. The year was marked by changes in Medicare payment models—from government pronouncements…more

Affordable Care Act, DOJ, False Claims Act (FCA), Individual Accountability, King v Burwell

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Preemption Issues Heat Up in the Payday Lending Space

Last week, Director Cordray testified at a hearing before the House Financial Services Committee during the CFPB’s Semi-Annual Report to Congress. As part of those proceedings, the issue of federal preemption arose in the…more

CFPB, Financial Services Committee, Payday Loans, Preemption, Tribal Governments

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Innovators Beware! Patent Reform Creates the New “Anti-Patent” Troll

Recent years have seen a wave of efforts to control frivolous patent-infringement lawsuits perpetrated by so-called patent trolls. These started with the America Invents Act of 2011 and have been followed by the Patent Law…more

America Invents Act, Innovation Act, Inter Partes Review Proceedings, Patent Reform, Patent Trolls

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CMS Finalizes Stark Law Changes in CY 2016 Medicare Physician Fee Schedule Final Rule

This past July, on the heels of a decision in which a judge for the U.S. Court of Appeals for the Fourth Circuit characterized the federal physician self-referral prohibition commonly known as the “Stark Law” as, “even for…more

CMS, Final Rules, Health Care Providers, Physician Fee Schedule, Stark Law

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U.S. Supreme Court Clarifies Timing for Appeal of Individual Case Dismissed Within Consolidated Multidistrict Litigation Proceeding

On January 21, 2015, the U.S. Supreme Court issued its decision in Gelboim v. Bank of America Corp., No. 13-1174, a case involving the timing for an appeal of an individual case that has been dismissed within a consolidated…more

Antitrust Litigation, Bank of America, Case Consolidation, Class Action, Gelboim v Bank of America

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The Sunshine Act Final Rule: CMS Sheds Light on Reporting Physician and Teaching Hospital Payments

On February 1, 2013, the Centers for Medicare & Medicaid Services (CMS) released a final rule implementing the Physician Payment Sunshine Act (the “Act”). The Act requires certain manufacturers of covered drugs, devices, and…more

Applicable Manufacturers, Biologics, CMS, Covered Recipients, Disclosure Requirements

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Will Your 401(k) Plan be Sued in the New Year?

Late last year, another lawsuit was brought on behalf of participants in a 401(k) plan alleging breaches of fiduciary duties resulting from allegedly high plan fees. This type of case is not novel; the law firm that brought the…more

401k, ERISA, Excessive Fees, Fiduciary Duty, Plan Administrators

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CFPB Issues Proposal to Amend Mortgage Servicing Rules

Yesterday, the Consumer Financial Protection Bureau (CFPB) proposed additional amendments to Regulation X, which implements the Real Estate Settlement Procedures Act (RESPA), and Regulation Z, which implements the Truth in…more

CFPB, Mortgage Servicers, Mortgage Servicing Rules, Mortgages, Proposed Amendments

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Tennessee Supreme Court Launches Business Court Pilot Project in Davidson County

The Tennessee Supreme Court recently announced the creation of the Davidson County Business Court Pilot Project. The business court represents the court system’s effort to ensure the development of the necessary experience and…more

Business Court, Business Disputes, Business Torts, TN Supreme Court

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Federal Circuit Rolls Back Geographic Descriptiveness Rejections for Trademark Applications

I’m sure Newbridge, Ireland, is a lovely place, but most Americans haven’t heard of it. That was the spirit of the Court of Appeals for the Federal Circuit’s decision in In re Newbridge Cutlery Co., involving the trademark…more

Geographically Descriptive, Trademarks

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No Damages for Delay Exceptions: Active Interference?

While a contractor generally has a right to a time extension and damages stemming from a delay caused by the owner, the owner (or general contractor if the harmed party is a subcontractor) may be able to assert several defenses…more

Construction Contracts, Construction Industry, Construction Project, Contractors, General Contractors

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New HOA Decision by Nevada Supreme Court Indicates Continued Litigation to Save First Liens

As the lending community is well aware, the mortgage industry in the state of Nevada remains in flux. Nevada continues to deal with the aftermath of the Nevada Supreme Court’s September 2014 decision in SFR Investments Pool 1,…more

First-Lien, Foreclosure, HOA, Mortgages, NV Supreme Court

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Nevada HOA Super-Priority Lien Statute Preempted by Federal Law, Holds U.S. District Court

On Monday, the U.S. District Court for Nevada issued significant decisions in three cases, holding that a foreclosure on a Nevada HOA’s super-priority lien could not extinguish a deed of trust securing a debt owned by a…more

Deed of Trust, Foreclosure, GSE, HERA, HOA

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Antideficiency Protection Applies to Both Short Sales and Foreclosure Sales

In January, the Supreme Court of California affirmed the Court of Appeal’s application of Code of Civil Procedure section 580b and held that the statute’s antideficiency protection applies to short sales just as it does to…more

CA Supreme Court, Foreclosure, JPMorgan Chase, Short Sales, Transfer of Interest

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US Supreme Court Upholds Use of Disparate Impact Claims in Fair Lending Enforcement

The US Supreme Court finally weighed in today on whether the disparate impact theory may be used to prove housing discrimination and ruled that such claims are viable under the Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq…more

Affordable Housing, Disparate Impact, Fair Housing Act (FHA), HUD, Pleading Standards

See All Updates »

2015 – The Health Law Year in Review

With 2015 in the books, we are pleased to reflect on some of the major developments over the past year in the field of health law. The year was marked by changes in Medicare payment models—from government pronouncements…more

Affordable Care Act, DOJ, False Claims Act (FCA), Individual Accountability, King v Burwell

See All Updates »

Novel Applications of Natural Laws Remain Unpatentable Under 35 USC §101

In Genetic Technologies (GTG), the U.S. Court of Appeals for the Federal Circuit (CAFC) held the line in the patent eligibility saga in the field of biotechnology. GTG asserted U.S. Patent No. 5,612,179 against Merial and…more

CAFC, Claim Construction, CLS Bank v Alice Corp, DNA, Failure To State A Claim

See All Updates »

BABC eDiscovery Newsletter - April 2013

In this issue: - The Firm’s Ediscovery Team Attorneys - Case Insights - Editor’s Corner - Excerpt from Peerless Industries, Inc. v. Crimson Av, LLC, Case No. 1:11-cv-1768, 2013 U.S. Dist. LEXIS 2985…more

Clawbacks, Document Productions, Document Review, Email, Record Preservation

See All Updates »

Kentucky Court Affirms Consumer Act Claim Does Not Apply to Real Estate Transactions

In Kennedy v. Parks, the Kentucky Court of Appeals affirmed that the Kentucky Consumer Protection Act (CPA) does not apply to real estate transactions. In Kennedy, the plaintiffs entered into a contract with a builder for…more

Commercial Bankruptcy, Construction Contracts, Consumer Protection Act, Real Estate Transactions, Services

See All Updates »

CFPB Director Denies J.G. Wentworth’s Petition to Set Aside Civil Investigative Demand

Recipients of a Civil Investigative Demand (CID) from the Consumer Financial Protection Bureau (CFPB) have yet another reason to be wary of petitioning the Director to have the CID formally modified or set aside…more

Annuities, CFPA, CFPB, Civil Investigation Demand, Corporate Counsel

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CFPB Releases FDCPA Annual Report

The Consumer Financial Protection Bureau (CFPB) recently released its fifth annual Fair Debt Collection Practices Act (FDCPA) Annual Report, detailing the CFPB and FTC’s activities throughout 2015 related to debt collection…more

CFPB, Credit Cards, Credit Reporting Agencies, Debt Collection, FDCPA

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Government’s Penn State Investigation Produces Lessons for In-House Counsel

The fallout at Penn State University in the wake of the Jerry Sandusky child-sexual-abuse scandal, including the victims’ suffering, Sandusky’s criminal conviction, the firing and subsequent death of legendary Coach Joe Paterno,…more

Attorney-Client Privilege, Conflicts of Interest, Corporate Officers, Grand Juries, Motions to Quash

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Supreme Court of South Carolina sides with MERS in Kubic v. MERSCORP Holdings, Inc.

On March 30 2016, the Supreme Court of South Carolina weighed in on the attempts of several South Carolina counties to make Mortgage Electronic Registrations Systems, Inc. (MERS), and its member banks pay for the correction of…more

Declaratory Rulings, Deed of Trust, Fraud, Land Titles, MERS

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Government Contractor Exemption Bill Passes House

On April 9, the House of Representatives passed HB 419 on a vote of 89-6. The bill, sponsored by Representative Paul DeMarco (R-Homewood) among others and championed by the Alabama Chapter of the Associated Builders &…more

Contractors, Department of Revenue, Exemptions, Government Entities, Proposed Legislation

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Do the CFPB Mortgage Servicing Rules Provide For Rescission?

The Consumer Financial Protection Bureau’s (CFPB) mortgage servicing rules have now been in place for nearly 18 months. These rules have set forth extensive loss mitigation procedures that nearly all servicers must follow. In…more

CFPB, Foreclosure, Mortgage Lenders, Mortgage Servicers, Mortgage Servicing Rules

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Tennessee Legislature Passes Sweeping Changes to CON Law

On April 20, 2016, the Tennessee House and Senate completed final actions to pass legislation that makes significant modifications to the state’s certificate of need (CON) laws. The legislation, SB1842/HB1730 was sponsored by…more

Applications, Certificate of Need, Governor Haslam, Health Care Providers, Healthcare Facilities

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Hanging Around: Fourth Circuit Confirms the Coverage for Data Breach Can Still Be Found in Traditional Liability Policies

With today’s increased focus on data breaches and related cyber liability exposure, the insurance market continues to develop policies tailored to this unique risk. Insurers are also excluding cyber risks in many traditional…more

Class Action, Commercial General Liability Policies, Cyber Insurance, Data Breach, Data Security

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EEOC Proposes Revised Affirmative Action Rules for Federal Agencies and their Obligations to Disabled Employees

The EEOC recently published a Notice of Proposed Rulemaking clarifying federal agencies’ affirmative action obligations under Section 501 of the Rehabilitation Act of 1973. Section 501 requires federal agencies to establish an…more

Affirmative Action, Disabled, EEOC, Federal Employees, Hiring & Firing

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Year-End Tax Planning and Expanded Scholarship Tax Credits

The Alabama Accountability Act of 2013 (the “Act”) provides state income tax credits to certain donors who make contributions to a state-approved scholarship granting organization (SGO) operating within Alabama. The Act was…more

Business Taxes, Charitable Donations, Scholarship Granting Organizations (SGOs), Tax Credits, Tax Deductions

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The Four Cornerstones: Regulatory Focus Sharpens on Student Loan Servicing Industry

We have previously written about recent regulatory focus on the student loan servicing industry. In particular, we discussed the issuance of a 151-page report issued by the Consumer Financial Protection Bureau (CFPB) titled…more

CFPB, Department of Education, Federal Student Loans, Joint Policy Statements, Loan Servicer

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Details of Governor Bill Haslam’s “Revenue Modernization Act” Emerge: Broad-Sweeping Tax Proposals to all Major Tennessee Taxes

The Administration introduced the “Revenue Modernization Act” on February 11 in the Senate Finance Committee, and the proposal includes numerous modifications to all Tennessee’s major taxes, including economic nexus, click-thru…more

Proposed Legislation, Tax Reform

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Mississippi CON Report - April 2014

In this Report: I. March 2014 – Mississippi Certificate of Need Meeting II. Certificate of Need Program Report – Filings/Reports Since February 2014 - A. Letters of Intent to Change Ownership - B…more

Certificate of Need, Extensions, Hospitals, Inpatient Rehab Facilities, Letters of Intent

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SEC Issues Stern Reminder for Timely Filing of Beneficial Ownership Reports

After years of little enforcement action, the Securities and Exchange Commission (“SEC”) issued a press release yesterday announcing charges against 28 officers, directors, or major shareholders for violating federal securities…more

Beneficial Owner, Deadlines, Directors, Enforcement, Enforcement Actions

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Sixth Circuit Affirms Dismissal of $2.3 Billion FCA Case Due to Prior Public Disclosure

Last week, in U.S. ex rel. Advocates for Basic Legal Equality, Inc. (ABLE) v. U.S. Bank, the Sixth Circuit affirmed the dismissal of a False Claims Act (FCA) suit against U.S. Bank because the conduct alleged by the qui tam…more

Corporate Counsel, Fair Housing Act (FHA), False Claims Act (FCA), Foreclosure, US Bank

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New Acting Deputy Director David Silberman of the CFPB Appointed Without Advice and Consent

Last week, the Consumer Financial Protection Bureau (CFPB) Director, Richard Corday, appointed David Silberman as the new Acting Deputy Director of the CFPB. Silberman will replace Meredith Fuchs, who previously served as both…more

Administrative Appointments, CFPB, Dodd-Frank

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Mortgage Industry Scores Big Nevada Supreme Court Win in Continued Battle over HOA Super-Priority Liens

The mortgage lending community was dealt a serious blow in September 2014, when the Nevada Supreme Court held that an HOA’s foreclosure of its nominal super-priority lien could extinguish a first lien interest in SFR Investments…more

Foreclosure, Homeowners' Association, Lien Priority, Mortgage Lenders, NV Supreme Court

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Defense of Marriage Act: What the U.S. Supreme Court’s Windsor Decision May Mean for Employer-Sponsored Benefit Plans

Now that the U.S. Supreme Court has ruled in U.S. v. Windsor that the federal Defense of Marriage Act (“DOMA”) is an unconstitutional “deprivation of the equal liberty of persons that is protected by the Fifth Amendment of the…more

Discrimination, DOMA, Due Process, Employee Benefits, Equal Protection

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SEC Issues Stern Reminder for Timely Filing of Beneficial Ownership Reports

After years of little enforcement action, the Securities and Exchange Commission (“SEC”) issued a press release yesterday announcing charges against 28 officers, directors, or major shareholders for violating federal securities…more

Beneficial Owner, Deadlines, Directors, Enforcement, Enforcement Actions

See All Updates »

“Ban the Box” Gains Momentum, At Least with Public Employers – Tennessee Becomes Latest State to Bar State Agencies from Asking Applicants About Criminal Histories

Tennessee has become one of the latest states to “ban the box,” joining a growing list of jurisdictions barring employers from asking about job applicants’ criminal histories. As of April 18, 2016, a total of 23 states and more…more

Background Checks, Ban the Box, Criminal Background Checks, EEOC, Hiring & Firing

See All Updates »

California Expands the Duty of Professional Consultants

Professional consultants and sub-consultants provide essential services to a Project during its planning, design, construction, and acceptance. In some jurisdictions, they enjoy protections from liability for “economic losses”…more

Bodily Injury, Construction Industry, Construction Project, Consultants, Negligence

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Eleventh Circuit Refuses to Extend Scope of Assignee TILA Liability to Failure to Provide Payoff Balance

Ruling on an issue of first impression at the Circuit Court level, the Eleventh Circuit recently refused in Evanto v. Federal National Mortgage Association to impose Federal Truth in Lending Act (TILA) liability on assignees for…more

Assignees, First Impression, Mortgage Lenders, Mortgage Servicers, Third-Party Liability

See All Updates »

FTC Announces Hart-Scott-Rodino Annual Threshold Adjustments

The Federal Trade Commission (FTC) has announced the annual revisions to the monetary thresholds that determine whether companies are required to notify federal antitrust authorities about a transaction under Section 7A of the…more

Fees, Filing Requirements, FTC, Hart-Scott-Rodino Act, The Clayton Act

See All Updates »

False Claims Act: 2015 Year in Review

This year continued the trend of aggressive False Claims Act (FCA) enforcement by the Department of Justice (DOJ) and high volumes of qui tam lawsuits brought by whistleblowers. In fiscal year 2015, the DOJ marked the fourth…more

Anti-Kickback Statute, Certiorari, DOJ, False Claims Act (FCA), False-Certification of Conformance

See All Updates »

BABC Attorneys Author Amicus Brief on Behalf of DRI Regarding Tibble Case in United States Supreme Court

In Tibble v Edison International, Plaintiffs brought fiduciary duty claims against Edison International for alleged mismanagement of Edison’s 401(k) Plan. Plaintiffs’ claims centered upon the fact that the Plan’s investment…more

401k, Employer Liability Issues, ERISA, Fiduciary Duty, SCOTUS

See All Updates »

False Claims Act: 2015 Year in Review

This year continued the trend of aggressive False Claims Act (FCA) enforcement by the Department of Justice (DOJ) and high volumes of qui tam lawsuits brought by whistleblowers. In fiscal year 2015, the DOJ marked the fourth…more

Anti-Kickback Statute, Certiorari, DOJ, False Claims Act (FCA), False-Certification of Conformance

See All Updates »

Construction and Procurement Law News - First Quarter 2014

In this Issue: - Federal Circuit’s Metcalf Decision a Big Win for Contractors - Government Defenses of Defective Certification and the Severin Doctrine not a Silver Bullet - Are No-Damage-for-Delay…more

CBCA, Federal Contractors, Federal Procurement Systems, HHS, Licenses

See All Updates »

Tennessee Property Tax Assessment Appeals: Davidson County in Reappraisal Year

With Davidson County and several other Tennessee counties in reappraisal years, we remind Tennessee property owners that now is the time to request an appointment to appeal real or personal property assessments if you disagree…more

See All Updates »

Connecticut Supreme Court Upholds Constitutionality of MERS Recording Statute

In a recently issued opinion, the Connecticut Supreme Court upheld the constitutionality of a recording statute specifically targeted by the Connecticut legislature to impose higher recording fees on residential mortgage loans…more

CT Supreme Court, Dormant Commerce Clause, Equal Protection, MERS, Mortgages

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FHFA Proposes Rule on Fannie Mae’s & Freddie Mac’s Duty to Serve Underserved Markets

Pursuant to the Housing and Economic Recovery Act of 2008, which amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, federal law requires the Federal National Mortgage Association (Fannie Mae) and…more

Affordable Housing, Fannie Mae, FHFA, Freddie Mac, Proposed Regulation

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CFPB Studies Electronic Closings

In an age of online banking, e-vites, and digital media, the mortgage loan closing process sticks out as one of the few areas that remain primarily paper-driven. Mortgage loan closings, however, could be the next target of a…more

Banks, Borrowers, CFPB, eClosing Pilot Program, Lenders

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The Government Shutdown and its Effect on the Real Estate Market

On September 30, the federal government shut down or significantly reduced staffing for many of its programs because of Congress’ failure to pass a budget for this fiscal year. The shutdown appears set to affect the real estate…more

Fair Housing Act (FHA), Fannie Mae, Freddie Mac, Government Shutdown, Mortgages

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Good Faith Belief in Invalidity of Patent Will Not Immunize Induced Infringer

Bringing a lawsuit for a distinct variety of patent infringement has been made a little easier, which is good news for patent owners but probably bad news for victims of patent trolls. This outcome follows from a recent United…more

Cisco, Cisco v CommilUSA, Good Faith, Honest Belief Defense, Induced Infringement

See All Updates »

Sixth Circuit Holds That Cases Directly Filed in MDLs Are Governed By Law of Where Case Would Have Been Filed

On May 22, 2015, the United States Court of Appeals for the Sixth Circuit Court of Appeals addressed an important choice-of-law issue for parties involved in multidistrict litigation. When multidistrict litigation is centralized…more

Choice-of-Law, Complex Litigation, Forum, Multidistrict Litigation, Pharmaceutical Industry

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USDA Pairs with Lean and Green Michigan to Approve First PACE Loan

Last month, the United States Department of Agriculture (USDA), as part of the USDA’s Rural Development mission area, announced its intention to approve a Property Assessed Clean Energy loan (“PACE” loan) to provide energy…more

Energy Efficiency, PACE, Popular, Rural Development, USDA

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BABC eDiscovery Newsletter - April 2013

In this issue: - The Firm’s Ediscovery Team Attorneys - Case Insights - Editor’s Corner - Excerpt from Peerless Industries, Inc. v. Crimson Av, LLC, Case No. 1:11-cv-1768, 2013 U.S. Dist. LEXIS 2985…more

Clawbacks, Document Productions, Document Review, Email, Record Preservation

See All Updates »

BABC eDiscovery Newsletter - April 2013

In this issue: - The Firm’s Ediscovery Team Attorneys - Case Insights - Editor’s Corner - Excerpt from Peerless Industries, Inc. v. Crimson Av, LLC, Case No. 1:11-cv-1768, 2013 U.S. Dist. LEXIS 2985…more

Clawbacks, Document Productions, Document Review, Email, Record Preservation

See All Updates »

Alstom Guilty Plea Sends Strong Message that DOJ Has Harsh View of Inadequate Internal Controls and Failure to Fully Cooperate

On December 22, 2014, French power and transportation company Alstom S.A. (“Alstom”) pleaded guilty to violating the Foreign Corrupt Practices Act (“FCPA”) and agreed to pay $772.29 million, the largest criminal fine ever…more

Alstom, Books & Records, Bribery, C-Suite Executives, China

See All Updates »

Sixth Circuit Holds That Cases Directly Filed in MDLs Are Governed By Law of Where Case Would Have Been Filed

On May 22, 2015, the United States Court of Appeals for the Sixth Circuit Court of Appeals addressed an important choice-of-law issue for parties involved in multidistrict litigation. When multidistrict litigation is centralized…more

Choice-of-Law, Complex Litigation, Forum, Multidistrict Litigation, Pharmaceutical Industry

See All Updates »

’Tis the Season of Giving, Right?

We all think of December as the season of giving. Unfortunately, prevailing defendants in Title VII cases don’t always feel that way. Under Title VII of the Civil Rights Act of 1964, prevailing plaintiffs enjoy compensatory…more

Attorney's Fees, Civil Rights Act, Damages, Discrimination, Injunctions

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Special Session Ends with Handful of Noteworthy Tax Bills, Predictions for Next Special Session

The first Special Session of 2015 ended on Tuesday, August 11, without accomplishing the primary objective of passing a General Fund budget for the 2015-2016 fiscal year. The Governor’s “call” for the special session included…more

Business Taxes, Legislative Agendas, Legislative Process, Reciprocity Rules, Repeal

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Third Time’s a Charm: Governor Bentley and Legislature Reach Budget/Tax Compromise

Summary - Governor Robert Bentley called a second special session of the Alabama Legislature on Tuesday, September 9 at 5 p.m. to address the FY 2016 General Fund budget and associated revenue measures. After meeting for…more

Ad Valorem Tax, Business Privilege Tax, CMS, Combined Reporting, Department of Revenue

See All Updates »

False Claims Act: 2015 Year in Review

This year continued the trend of aggressive False Claims Act (FCA) enforcement by the Department of Justice (DOJ) and high volumes of qui tam lawsuits brought by whistleblowers. In fiscal year 2015, the DOJ marked the fourth…more

Anti-Kickback Statute, Certiorari, DOJ, False Claims Act (FCA), False-Certification of Conformance

See All Updates »

Tennessee CON Report - November 2013

In this Report: - I. November 2013 — Tennessee Certificate of Need Meeting - A. Emergency Certificate of Need Review - B. General Counsel’s Report - C. Agency Review of Administrative Law Judge’s…more

Certificate of Need, Healthcare, Hospitals, Medicare

See All Updates »

Arbitration vs. Litigation: The Great Debate

Many of the “form” commercial construction contracts (e.g., AIA forms) contain “dispute resolution” clauses proposing binding arbitration as opposed to courtroom litigation. Most U.S. courts, faced with the number of cases…more

Arbitration, Construction Contracts, Construction Disputes, Construction Industry

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Alabama Tax Developments – 2015 Year in Review

This SALT Alert summarizes many of the major legislative, judicial, and administrative developments affecting Alabama business taxpayers with respect to income, transactional, and property taxes. The Spring 2015 legislative…more

Ad Valorem Tax, Business Taxes, Department of Revenue, Pending Legislation, Property Tax

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Will Expanding P3 Legislation Impact You?

Recent legislation in Kentucky and Tennessee: Kentucky and Tennessee have recently been added to the growing list of states allowing the use of public-private partnerships (P3). The Kentucky Legislation (HB 309) was passed…more

Construction Industry, Infrastructure, Public Private Partnerships (P3s), Public Projects, Roads

See All Updates »

What Does the Department of Labor's New Fiduciary Rule Mean?

The Department of Labor (DOL) has announced its highly anticipated final fiduciary rule, which is intended to help ensure that Americans saving for retirement get investment advice that is in their best interest. Originally…more

Best Interest Contract Exemptions, Best Interest Standard, Conflicts of Interest, DOL, Fiduciary Duty

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SEC Issues Stern Reminder for Timely Filing of Beneficial Ownership Reports

After years of little enforcement action, the Securities and Exchange Commission (“SEC”) issued a press release yesterday announcing charges against 28 officers, directors, or major shareholders for violating federal securities…more

Beneficial Owner, Deadlines, Directors, Enforcement, Enforcement Actions

See All Updates »

EPA Extends Comment Period on Significant Proposed Rule Under the Clean Water Act

The U.S. Environmental Protection Agency (“EPA”) announced that it has extended the comment period on a proposed rule that has the potential to significantly expand the authority of the EPA and the U.S. Army Corps of Engineers…more

Clean Water Act, EPA, Federal Jurisdiction, Public Comment, Rulemaking Process

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“Open and Frank Discussions” or Agency-Level Protest

In Coulson Aviation (USA), Inc. (B-411525, B-411525.2, 2015 CPD ¶ 272), the Government Accountability Office (GAO) recently denied a contractor’s protest over the terms of a request for proposals (RFP) issued by the Department…more

Bid Protests, Federal Acquisition Regulations (FAR), Federal Contractors, Federal Procurement Systems, Forest Service

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U.S. Supreme Court Addresses Preclusive Effect of Likelihood of Confusion Rulings by Trademark Trial and Appeal Board

Adverse findings in trademark registration opposition and cancellation proceedings in the United States Patent and Trademark Office (PTO) may come back to bite the parties to these relatively inexpensive administrative…more

B&B Hardware v Hargis Industries, Issue Preclusion, Likelihood of Confusion, Popular, SCOTUS

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OCC Outlines its 2016 Operating Plan to Set Forth the Agency’s Supervision Priorities and Objectives

The Office of the Comptroller of the Currency (OCC) released its bank supervision operating plan for fiscal year 2016 on September 25th. The operating plan sets forth the agency’s supervision priorities and objectives as related…more

Banks, Financial Institutions, Mortgages, OCC, RESPA

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The New Texas Two-Step: Construction Defect Litigation by Condominium Owners’ Associations

On June 17, 2015, Texas adopted amendments to the Texas Uniform Condominium Act by requiring condominium unit owners’ associations (“Association”) to take specified procedural steps prior to initiating a construction defect or…more

Condominiums, Construction Defects, Construction Industry, Homeowners' Association, Inspections

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Florida Appellate Court Bolsters Statutory HOA Safe Harbor

A significant opinion from the Florida Third District Court of Appeal further clarifies the extent of the Florida statutory homeowners association (HOA) “safe harbor.” In the end, entities that obtain title through judicial…more

Attorney's Fees, Declaratory Judgments, Estoppel, Fannie Mae, Fees

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Hands Tied: Patenting Diagnostic Inventions Remain a Difficult Task

What does the Federal Circuit really think about the Supreme Court’s recent § 101 jurisprudence? The denial of the petition for rehearing en banc in Ariosa Diagnostics v. Sequenom in November of 2015 answers that question. The…more

Biotechnology, DNA, En Banc Review, Inventions, Life Sciences

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Mortgage Servicer Must Post ACH Payment on Date of Authorization, Appeals Court Says

In Fridman v. NYCB Mortgage Co., the U.S. Court of Appeals for the Seventh Circuit recently held that If a customer authorizes an electronic payment via the servicer’s website, the servicer must credit the payment as of the date…more

ACH Payments, Mortgage Servicers, Regulation Z

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Amendments to FRCP 26(b) Put Significant Emphasis on Proportionality

Revisions to several key provisions of the Federal Rules of Civil Procedure took effect on December 1, 2015, and will have a significant impact on discovery procedure and practice in federal court. The aim of these revisions is…more

Discovery, Electronically Stored Information, Evidence, Federal Rules of Civil Procedure, Financial Institutions

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Florida Courts Continue to Take the Wind Out of Foreclosure Defense Attorneys’ Sails

In late July, another Florida appellate court took a sizable chunk out of foreclosure defense attorneys’ litigation playbook, holding that substantial compliance, rather than strict compliance, is the prevailing standard to be…more

Compliance, Default, Defense Strategies, Foreclosure, Lenders

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Federal Circuit Rolls Back Geographic Descriptiveness Rejections for Trademark Applications

I’m sure Newbridge, Ireland, is a lovely place, but most Americans haven’t heard of it. That was the spirit of the Court of Appeals for the Federal Circuit’s decision in In re Newbridge Cutlery Co., involving the trademark…more

Geographically Descriptive, Trademarks

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Charitable Planning with S Corporation Stock—Making It Work

Since 1998, charities have been able to own S corporation stock (“S stock”). However, the ownership of S stock by an exempt organization may result in either an unexpected tax burden or a liability rather than an asset for the…more

Charitable Donations, Charitable Organizations, Charitable Trusts, Corporate Taxes, Estate Tax

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SEC Issues Stern Reminder for Timely Filing of Beneficial Ownership Reports

After years of little enforcement action, the Securities and Exchange Commission (“SEC”) issued a press release yesterday announcing charges against 28 officers, directors, or major shareholders for violating federal securities…more

Beneficial Owner, Deadlines, Directors, Enforcement, Enforcement Actions

See All Updates »

Bankruptcy 101 for Intellectual Property Licenses

Generally, license agreements are “executory contracts” in bankruptcy. Executory means performance is due from both sides. When a party to an executory contract becomes a debtor in bankruptcy, it may either reject or assume the…more

Assignments, Executory Contracts, License Agreements, Licenses, Trademarks

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3 Strategies for Employers in Light of the EEOC’s Title VII Lawsuits Alleging Sexual Orientation Discrimination

An ounce of prevention is worth a pound of cure. It is far less costly to identify and address complaints of sexual orientation discrimination in the workplace on the front end when compared to the costs of protracted litigation…more

Discrimination, EEOC, Employer Liability Issues, Legal Perspectives, Sexual Orientation Discrimination

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California Supreme Court Weighs in on Standing

The California Supreme Court recently held that borrowers may have standing to challenge an assignment of a deed of trust in a wrongful foreclosure action where they assert that the assignment is void. The decision likely gives…more

Assignments, Borrowers, CA Supreme Court, Commercial Bankruptcy, Liquidation

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The Legal Maze of Solar Globalisation

As the utility-scale solar market continues to expand and globalise, project developers and engineering, procurement and construction (EPC) contractors increasingly find themselves considering unfamiliar jurisdictions. A new…more

Energy Projects, Entrepreneurs, EPC Contractor, Foreign Investment, Risk Assessment

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Mississippi Legislature Overwhelmingly Approves Equifax Fix

Earlier this week the Mississippi Legislature approved the conference committee report on tax reform legislation (House Bill 799) that significantly changes Mississippi’s tax assessment and appeals procedures. Both the House and…more

Appeals, Apportionment, Pay-To-Play, Tax Assessment, Tax Penalties

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Real Estate Newsletter - December 2013

The Alabama Supreme Court recently addressed whether a lender must own a mortgage when it initiates foreclosure proceedings and, if not, whether that would invalidate the ownership rights in the property that the lender obtained…more

Foreclosure, Mortgages, Real Estate Market

See All Updates »

Important New Tennessee MERS Opinion Issued

On an issue of first impression, the Tennessee Supreme Court held on December 12, 2015, that MERS does not have a property interest that is protected under the Due Process Clause of the Fourteenth Amendment to the United States…more

Due Process, Financial Services Industry, First Impression, Fourteenth Amendment, Mortgage Lenders

See All Updates »

HUD Announces Another Delay in Implementation of Property Charge Default Rules

On January 12, 2016, the U.S. Department of Housing and Urban Development (HUD) published its first Mortgagee Letter of the year, in which it again delayed the implementation of the sweeping changes related to Home Equity…more

Delays, HECM, HUD, Mortgages, Reverse Mortgages

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Check Your Solicitation Policies and How You Apply Them

Most employers prohibit solicitation in the workplace, often not allowing outsiders to come onto company property and prohibiting employees from soliciting their coworkers while they are working. The National Labor Relations Act…more

ALJ, Dish Network, Employer Liability Issues, NLRB, Solicitation

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Contact

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