Dorsey & Whitney LLP

Supreme Court Decides Two First Amendment Cases

Two recent Supreme Court decisions provide timely guidance on the First Amendment implications of publicly displaying the Confederate Flag or other symbols or signage related to protected beliefs. First, in Walker v. Sons of…more

Churches, Content-Neutral, First Amendment, Fourteenth Amendment, Government Speech Doctrine

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A Call to Action: Leading Executives Issue “Commonsense Principles of Corporate Governance”

Citing the importance of publicly owned companies to the U.S. economy, a group of thirteen leading executives issued a set of principles, on July 21, 2016, outlining their vision for the critical elements of good corporate…more

Asset Management, BlackRock, Board of Directors, Corporate Executives, Corporate Governance

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China Adopts Tough and Sweeping Cybersecurity Law

On November 7, 2016, the Standing Committee of China’s National People’s Congress promulgated the Cybersecurity Law of the People’s Republic of China, a law James Zimmerman, chairman of the American Chamber of Commerce in China…more

Chamber of Commerce, China, Cybersecurity, Innovation, New Regulations

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After the FACTA: A Judgment Creditor Must Establish a “Credit” Transaction to Get a Credit Report

On July 25, 2016, the United States District Court for the Western District of Washington held that before obtaining a consumer’s credit report, a third party judgment creditor must establish that the transaction at issue is a…more

CFPB, Credit Reports, Debt Collection, Experian, FACTA

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NLRB Implements Dramatic Changes to Union Representation Election Procedures

Late last week, the National Labor Relations Board (the “Board”) issued a long-anticipated final rule implementing dramatic changes to the procedures for union representation elections. The so-called “quickie election” or…more

Ambush Election Rules, NLRB, Union Elections, Unions

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SEC Proposes Universal Ballots in Contested Elections

On October 26, 2016, in a split vote, the SEC proposed the mandated use of universal ballots in contested director elections at annual meetings. The proposed rules were controversial even before they were proposed – the House of…more

Annual Meeting, Board of Directors, Corporate Counsel, Corporate Governance, Dissident Shareholders

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Crowdfunding: A New Way for Montana Companies to Raise Money

A new exemption passed in the Montana 2015 legislative session will allow Montana companies to use crowdfunding to offer and sell securities in Montana beginning July 1, 2015. This exemption is subject to various limitations and…more

Crowdfunding, Financing, JOBS Act, SEC, Securities

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State Retirement Plans (2.5 of 3) Carrots instead of Sticks — marketplaces, prototypes and “closed MEPs”

This is Part 2.5 of a 3-part series on state retirement plan legislation. Part 1 was an Overview. Part 2 focused on recent Department of Labor guidance making it easier for states to get a bit heavy-handed by mandating…more

DOL, ERISA, Pensions, Preemption, Retirement Plan

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District Court Grants Motion to Dismiss Relators’ Claims in One of the First Post-Escobar Decisions

The District Court for the Eastern District of Washington recently granted the defendants’ Motion to Dismiss relators’ claims in a consolidated False Claims Act lawsuit against Monaco Enterprises, Inc. (“MEI”). MEI provides…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Implied Certification, Material Misrepresentation

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Seattle to Impose Work Scheduling Restrictions on Large Retail and Food Services Employers

On September 19, 2016, the Seattle City Council voted unanimously to approve a new legislation that would regulate how large retail and food-service businesses schedule their employees. Known as the “secure scheduling” law, the…more

Fast-Food Industry, Local Ordinance, New Regulations, Retailers, Wage and Hour

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SEC acts against Private Equity Firm for Acting as an Unregistered Broker

On June 1, 2016, the SEC issued a press release that announced a Maryland-based private equity fund advisory firm and its owner have agreed to pay more than $3.1 million to settle charges that they engaged in brokerage activity…more

Broker-Dealer, Enforcement Actions, FINRA, Investment Advisers Act of 1940, Private Equity Funds

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EU Securities – Proposed Settlement System to Facilitate London Listings of US Companies

Historically, due to certain restrictions under US securities laws, equity securities of US companies and other companies that do not qualify as “foreign private issuers” under US securities laws (collectively, “US-Based…more

Electronic Trading, EU, Foreign Private Issuers, London Stock Exchange, Regulation S

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Third Circuit: The Repossession of Your Car as Collateral on a Usurious Loan is Not an FDCPA Violation

The U.S. Court of Appeals for the Third Circuit recently held that a repossession company did not violate the Fair Debt Collection Practices Act (“FDCPA”) when it repossessed the defaulting debtor’s car, even though the loan may…more

Cars, Collateral, Debt Collection, Default, FDCPA

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EPA and Corps Final Clean Water Rule’s Potential Impacts on Farming

The Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) published a final rule on May 27, 2015, that purports to clarify the definition of “waters of the United States” under the Clean Water Act…more

Clean Water Act, EPA, Farms, Federal Jurisdiction, Permits

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Quirky Question #241, Working for Free In Montana At A Start-Up Business

Quirky Question - I was laid off by my Montana employer and I have decided to help my brother with his start up business. I will be a 50% owner but we are not going to take a salary until revenue is substantial. An…more

Startups, Unemployment Benefits, Volunteers

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SEC Issues Proposed Rules for Director, Officer and Employee Hedging Disclosures

On February 9, the Securities and Exchange Commission proposed rules to implement Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which requires annual meeting proxy statement disclosure of a…more

Annual Meeting, Dodd-Frank, Hedging, Proposed Regulation, Proxy Statements

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Passive Trademark Licensor Held Not Liable for Product Defect

Can merely licensing a trademark result in strict liability for injuries resulting from a product bearing the trademark? A decision earlier this month says no…more

Corporate Counsel, IP License, License Agreements, Popular, Product Defects

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Another New Day in Cuba: The Obama Administration Further Loosens U.S. Sanctions

On March 16, 2016, the Obama Administration further loosened sanctions on Cuba in accordance with President Obama’s policy previously announced on December 17, 2014, and partially implemented thus far, to engage and empower the…more

Banking Sector, BIS, Cuba, Cuban Assets Control Regulations (CACR), EAR

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Efaxers Beware! FCC Finds Efaxes Subject to Consumer Protections of TCPA and JFPA

The Federal Communications Commission (“FCC” or “Commission”) has released a declaratory ruling holding that a type of fax that contains unsolicited advertisements – an “efax” – is subject to the consumer protections of the…more

Advertising, Faxes, FCC, Popular, TCPA

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EEOC Updates Its National Origin Discrimination Guidance

On November 18, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued Enforcement Guidance on National Origin Discrimination, replacing the 2002 Compliance Manual section on the same topic. The new guidance discusses…more

Corporate Counsel, EEOC, Enforcement Guidance, National Origin Discrimination

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Important Changes Under MN Data Practices Act for Public/Private Contracts for Government Functions

On May 29, 2014, the Minnesota governor signed into law Senate File 1770, which makes a company’s or private individual’s records subject to Minnesota public records law – the Minnesota Government Data Practices Act – when the…more

Contractors, Data Protection, Personally Identifiable Information

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UK Litigation in a Post Brexit World

As in so many other areas, the effect of the decision to leave the European Union in the referendum on 23 June 2016 on litigation in England and Wales in still highly uncertain. There are a number of issues that the UK…more

Choice-of-Law, Contract Interpretation, Corporate Counsel, Debt Collection, EU

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Another New Day in Cuba: The Obama Administration Further Loosens U.S. Sanctions

On March 16, 2016, the Obama Administration further loosened sanctions on Cuba in accordance with President Obama’s policy previously announced on December 17, 2014, and partially implemented thus far, to engage and empower the…more

Banking Sector, BIS, Cuba, Cuban Assets Control Regulations (CACR), EAR

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Senate Finance Committee Explores Revisions to Stark Law

At a July 12, 2016 hearing entitled “Examining the Stark Law: Current Issues and Opportunities,” members of the U.S. Senate Finance Committee expressed openness to potentially significant amendments to the Stark Law aimed at…more

Congressional Investigations & Hearings, False Claims Act (FCA), Health Care Providers, Medicare, Physician Compensation Arrangements

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Understanding the SEC’s Proposed New Mining Disclosure Rules: Questions and Answers

On June 16, 2016, the SEC proposed a major overhaul of the disclosure requirements for companies that are engaged in material mining operations, including royalty companies. The proposed rules would replace the SEC’s…more

Canada, Comment Period, Corporate Counsel, CRIRSCO, Disclosure Requirements

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EEOC Updates Its National Origin Discrimination Guidance

On November 18, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued Enforcement Guidance on National Origin Discrimination, replacing the 2002 Compliance Manual section on the same topic. The new guidance discusses…more

Corporate Counsel, EEOC, Enforcement Guidance, National Origin Discrimination

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Supreme Court Asked To Clarify Application of Rule 9(b) in FCA Cases

On September 21, 2015, counsel for AT&T, Inc., and other telecommunications providers asked the U.S. Supreme Court to resolve a circuit split over what relators asserting FCA claims must do to meet Federal Rule of Civil…more

AT&T, False Claims Act (FCA), Federal Pleading Requirements, FRCP 9(b), Lifeline Program

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OIG Releases 2017 Work Plan

Executive Summary - The United States Department of Health and Human Services Office of the Inspector General (“OIG”) published its Fiscal Year 2017 Work Plan (“2017 Plan”) on November 10, 2016. The work plan is published…more

Audits, Hospitals, Medical Devices, Nursing Homes, OIG

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Dorsey Anti-Corruption Digest - April 2016

Welcome to Dorsey & Whitney’s monthly Anti-Corruption Digest. In this digest, we draw together news of enforcement activity throughout the world and aim to reduce your information overload. Our London, Minneapolis, New York…more

Alstom, Anti-Corruption, Avon, Brazil, Bribery

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New Copyright Office Electronic Registration System for DMCA Agents – Are You Ready?

The Digital Millennium Copyright Act (DMCA) sets forth a mechanism through which online service providers can avail themselves of a safe harbor from copyright infringement liability by recording an agent with the Copyright…more

Copyright Office, DMCA, Filing Requirements, Safe Harbors

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USPTO Issues Second Round of Proposed Changes to the Rules of Practice Before the Patent Trial and Appeal Board

The America Invents Act (AIA) was enacted into law on September 16, 2011. A major provision of the AIA provided for a number of post grant proceedings to be heard by the rebranded Patent Trial and Appeal Board (PTAB)…more

America Invents Act, Covered Business Method Proceedings, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board, Patents

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Quirky Question #282: A Briefing on the Brexit

Question: How will the UK’s “Brexit” vote on withdrawing from the EU affect the way we employ people in our UK subsidiary? Answer: A vote to “Leave” is unlikely to bring significant change to UK employment law in the short…more

Collective Bargaining, Equal Pay, EU, Holiday Pay, Maternity Leave

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BIAS Rules: New FCC Regulations on Broadband Customer Privacy

On October 27, 2016, the Federal Communications Commission (“FCC” or “Commission”) adopted sweeping new privacy rules applicable to all telecommunications providers including broadband internet access service (“BIAS”) and…more

Breach Notification Rule, Broadband, Customer Proprietary Network Information (CPNI), Data Breach, FCC

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Hong Kong Securities Laws Violations: SFC’s Case Against Moody’s – Part 2

On March 31, 2016, the Securities and Futures Appeals Tribunal (“SFAT”) upheld the disciplinary action of the SFC against Moody’s. This landmark decision is the first of its kind, as a disciplinary action brought by the…more

Credit Rating Agencies, Due Diligence, Enforcement Actions, Fines, Hong Kong

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Extended BE-10 Filing Deadline Fast Approaching

U.S. Persons Owning Non-U.S. Businesses Should Request a Filing Extension Now and Submit Form BE-10 by August 31, 2015, In Order to Avoid Penalties. The Bureau of Economic Analysis (BEA), an agency of the U.S. Department of…more

BEA, Form BE-10

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Hong Kong Securities Laws Violations: The SFC’s Extra-Territorial Reach – Part 2 (U.S. short-seller found culpable of market misconduct)

Hong Kong’s Market Misconduct Tribunal (the "MMT") has found U.S.-based Andrew Edward Left culpable of market misconduct in connection with his research report (“Left’s report”), published on June 21, 2012 on a U.S.-based…more

Enforcement Actions, Hong Kong, Hong Kong Securities and Futures Commission (HKSFC), Misleading Statements, SEC

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EEOC Updates Its National Origin Discrimination Guidance

On November 18, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued Enforcement Guidance on National Origin Discrimination, replacing the 2002 Compliance Manual section on the same topic. The new guidance discusses…more

Corporate Counsel, EEOC, Enforcement Guidance, National Origin Discrimination

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Public–Private Partnerships Core Toll Concessions Contract Guide

On September 10, 2014, the Federal Highway Administration (“FHWA”) published its final Model Public – Private Partnerships Core Toll Concessions Contract Guide (“Guide”) presenting key concepts for the structuring and…more

Contracting Procedures, Federal Contractors, Federal Highway Administration, Highways, Infrastructure

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Brexit – Real Estate Update

In the run-up to the referendum, many of the headlines focused on the economy and immigration. Little was made of the real estate market, which is surprising given that it is reported to be worth nearly £7 trillion; account for…more

Bank of England, Commercial Real Estate Market, EU, Free Movement, Land Developers

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Campaign IP Violations Part 3 – Huckabee’s Campaign Pays Up

In December, we told you about Mike Huckabee’s campaign getting sued for copyright infringement for using “Eye of the Tiger” without permission at a rally supporting Kim Davis, the Tennessee clerk that refused to issue marriage…more

Campaign Finance Reform, Campaign Funds, Copyright Infringement, Disclosure Requirements, Fair Use

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#ThatPostCouldCauseALegalRoast (Are you using Instagram content illegally… without even knowing it?)

Love it or hate it, Instagram is coming to dominate the world of advertising. During Super Bowl 50, 38 million people reportedly made 155 million Super Bowl-related interactions on Instagram…more

Class Action, Consent, Copyright Infringement, Fair Use, Instagram

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Federal Circuit Confirms The Use Of Broadest Reasonable Interpretation In Inter Partes Review

Since going into effect on September 16, 2012, inter partes review (IPR) has become a widely-used mechanism for challenging the validity of patents. One reason for the popularity of IPR could be that the U.S. Patent and…more

Broadest Reasonable Interpretation Standard, Claim Construction, Cuozzo Speed Technologies, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board

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Six Important Things for Telecommunications Providers to Know When Filing the 2015 FCC Form 499-A

It’s that time again. Spring is in the air, the birds are chirping, the days are longer, and telecommunications providers are required to complete their FCC Forms 499-A, reporting historical revenues for calendar year 2014. Like…more

FCC, Filing Requirements, Telecommunications

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China Adopts Tough and Sweeping Cybersecurity Law

On November 7, 2016, the Standing Committee of China’s National People’s Congress promulgated the Cybersecurity Law of the People’s Republic of China, a law James Zimmerman, chairman of the American Chamber of Commerce in China…more

Chamber of Commerce, China, Cybersecurity, Innovation, New Regulations

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Federal Circuit Confirms The Use Of Broadest Reasonable Interpretation In Inter Partes Review

Since going into effect on September 16, 2012, inter partes review (IPR) has become a widely-used mechanism for challenging the validity of patents. One reason for the popularity of IPR could be that the U.S. Patent and…more

Broadest Reasonable Interpretation Standard, Claim Construction, Cuozzo Speed Technologies, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board

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DuPont Appeal May Clarify What Constitutes a Reverse False Claim “Obligation”

On January 20, a federal district court in Louisiana certified for appeal its 2014 ruling denying defendant DuPont’s motion for summary judgment, thereby permitting DuPont to seek appellate review of the district court’s ruling…more

Appeals, DuPont, False Claims Act (FCA), Reverse False Claims, Toxic Substances Control Act (TSCA)

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Build America Transportation Investment Center

On July 17, President Barack Obama announced the launch of the Build America Investment Initiative. The initiative includes a host of measures to increase infrastructure investment and economic growth, including the formation of…more

Barack Obama, Build America Investment Initiative, Department of Transportation (DOT), Economic Development, Federal Funding

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DOJ Settles “First of its Kind” FCA Suit Involving Retention of Overpayments

On August 3, the Department of Justice announced the first False Claims Act settlement of a case involving a health-care provider’s alleged failure to investigate, identify and refund overpayments from government programs,…more

DOJ, False Claims Act (FCA), Health Care Providers, Medicaid, Medicare

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It’s Final: The DOL Issues Final Rule Providing Paid Sick Leave For Employees of Federal Contractors

Federal contractors must provide their employees up to seven days of paid sick leave each year under a final rule published September 30, 2016, by the U.S. Department of Labor (“DOL”). The DOL estimates that the final rule will…more

DOL, Executive Orders, Federal Contractors, Final Rules, Paid Leave

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Stark Law Updates in 2017 Medicare Physician Fee Schedule Final Rule

On November 2, the Centers for Medicare & Medicaid Services (CMS) finalized the 2017 Medicare Physician Fee Schedule (PFS) rule. This rule, which takes effect on January 1, 2017, updates payment policies and rates for services…more

CMS, Physician Fee Schedule, Stark Law

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Supplemental Registrations – Actually Worth a Hill of (Coffee) Beans

The potential defensive value of a registration on the Supplemental Register is highlighted in a recent opinion of the Trademark Trial and Appeal Board, In re Morinaga Nyugyo Kabushiki Kaisha. While we often think of trademarks…more

Geographically Descriptive, Lanham Act, Likelihood of Confusion, Supplemental Register, Trademark Application

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Eleventh Circuit Holds that Borrower’s TILA Claims Are Subject to Agreement’s Forum Selection Clause

The Eleventh Circuit Court of Appeals recently held that a borrower’s Truth-in-Lending-Act (“TILA”) claim fell within the scope of a loan agreement’s forum selection clause. Stiles v. Bankers Healthcare Grp., Inc., ___ Fed…more

Default, Dismissals, Forum Selection Clause, Loan Agreements, Truth in Lending Act (TILA)

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The Supreme Court Reaffirms Dirks in Salman

On December 6th, the U.S. Supreme Court handed down its first major decision on insider trading in over 20 years, and affirmed the conviction of Bassam Salman for violations of Section 10(b) of the Securities Exchange Act of…more

Dirks v SEC, Illegal Tipping, Insider Trading, Material Nonpublic Information, Personal Benefit

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Wednesday Benefits Developments – Cadillac Tax, Fiduciary Rule, ACA Reporting & More

Interest rates going up? Easy call. But what about those benefits developments from Wednesday? There’s plenty to digest over the last few weeks in December. Here’s a sampling of what we found interesting…more

Affordable Care Act, Cadillac Tax, Davis-Bacon Act, Disabled, ERISA

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NYSE Clarifies Answers to Certain FAQs on Equity Compensation Plans

Rule 303A.08 of the NYSE Listed Company Manual requires that shareholders must be given the opportunity to vote on all equity-compensation plans and material revisions to such plans, with limited exceptions specified in the…more

Corporate Governance, Equity Compensation, NYSE, Shareholder Approval, Shareholder Rights

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Sample ADA Notice for Wellness Programs

The EEOC has published a sample notice intended to help employers comply with the notice requirement under the new Americans with Disabilities Act (ADA) final rule (published on May 17, 2016). The final rule requires employers…more

ADA, Biometric Information, EEOC, Employer Group Health Plans, Final Rules

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Understanding the SEC’s Proposed New Mining Disclosure Rules: Questions and Answers

On June 16, 2016, the SEC proposed a major overhaul of the disclosure requirements for companies that are engaged in material mining operations, including royalty companies. The proposed rules would replace the SEC’s…more

Canada, Comment Period, Corporate Counsel, CRIRSCO, Disclosure Requirements

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Another New Day in Cuba: The Obama Administration Further Loosens U.S. Sanctions

On March 16, 2016, the Obama Administration further loosened sanctions on Cuba in accordance with President Obama’s policy previously announced on December 17, 2014, and partially implemented thus far, to engage and empower the…more

Banking Sector, BIS, Cuba, Cuban Assets Control Regulations (CACR), EAR

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Seattle to Impose Work Scheduling Restrictions on Large Retail and Food Services Employers

On September 19, 2016, the Seattle City Council voted unanimously to approve a new legislation that would regulate how large retail and food-service businesses schedule their employees. Known as the “secure scheduling” law, the…more

Fast-Food Industry, Local Ordinance, New Regulations, Retailers, Wage and Hour

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The Supreme Court - December, 2016 #2

The Supreme Court of the United States issued decisions in three cases today: Samsung Electronics Co. v. Apple Inc., No. 15-777: A jury found that smartphones manufactured by petitioner Samsung infringed respondent Apple…more

Apple v Samsung, Calculation of Damages, Design Patent, Dirks v SEC, False Claims Act (FCA)

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The Law on Tribal Court Jurisdiction over Non-Members Stands with Supreme Court’s Tied Vote in Dollar General Corp. v. Mississippi Band of Choctaw Indians

John Doe, a teenage member of the Mississippi Band of Choctaw Indians, was working as an intern at a Dollar General store on the Tribe’s Reservation when he was sexually molested by the manager of the store. Doe sued Dollar…more

Dollar General Co v Mississippi Band of Choctaw Indians, Jurisdiction, Negligent Hiring, Negligent Supervision, SCOTUS

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Franchisors May Be Liable to Franchisees’ Employees Under Recent State Cases

As noted in our first blog, the National Labor Relations Board (NLRB) has recently identified temporary service workers, outsourced and subcontracted services, and franchising as target areas for an expanded joint employer…more

Franchise Agreements, Franchisee, Franchisors, Joint Employers, NLRB

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Texas Diagnostic Imaging Service Settles FCA Allegations for $3.5 Million; Whistle-Blower to Receive $596,700

A recent settlement illustrates the substantial recovery available to whistle-blowers under the FCA’s qui tam provisions. Those provisions allow a qui tam plaintiff to receive typically between 15 percent and 25 percent of the…more

False Claims Act (FCA), Medicaid, Medicare, Qui Tam, Settlement

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Comparative Advertising Do’s and Don’ts from the NAD – Part 2

Last week we blogged about a recent decision of the National Advertising Division of the Better Business Bureau, holding that two YouTube videos for Rayovac brand batteries misleadingly communicated an unsupported “line” claim…more

Advertising, Comparative Advertising, NAD

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Persons with Significant Control: Important new regulations that are now in force

On 6 April 2016, amendments to the Companies Act 2006 (the “Act”) came into effect that require companies incorporated under the Act (including companies limited by guarantee) and limited liability partnerships to produce and…more

Amended Legislation, Limited Liability Partnerships, Notice Requirements, Person of Significant Control (PSC Register), Registration Requirement

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Eleventh Circuit Holds that Borrower’s TILA Claims Are Subject to Agreement’s Forum Selection Clause

The Eleventh Circuit Court of Appeals recently held that a borrower’s Truth-in-Lending-Act (“TILA”) claim fell within the scope of a loan agreement’s forum selection clause. Stiles v. Bankers Healthcare Grp., Inc., ___ Fed…more

Default, Dismissals, Forum Selection Clause, Loan Agreements, Truth in Lending Act (TILA)

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Ed Sheeran Gears up to “Get it On” in Another Copyright Lawsuit

English pop musician Ed Sheeran once again finds himself in the crosshairs of a high-profile copyright infringement lawsuit, this time in the Southern District of New York over alleged similarities between his smash hit…more

Copyright Infringement, Music, Popular, Song Lyrics

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Brand Names as Stage Names – Tribute or Infringement?

While all the world might be a stage, the famous U.K. fashion house Burberry Limited has now established that none of its players – except Burberry – has the right in the U.S. to use the famous Burberry trademark as a stage…more

Burberry, Fashion Branding, Fashion Industry, Music Industry, Trademark Infringement

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Fighting Cyberflight of Domain Names: ICANN Seeks Enforcement of New UDRP Rules

In what appears to be a first, the Internet Corporation for Assigned Names and Numbers (“ICANN”), the organization responsible for maintenance of domain names and IP addresses, has sent a notice of non-compliance to a registrar,…more

Domain Names, Enforcement, ICANN, New Regulations, Trademarks

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OIG Releases 2017 Work Plan

Executive Summary - The United States Department of Health and Human Services Office of the Inspector General (“OIG”) published its Fiscal Year 2017 Work Plan (“2017 Plan”) on November 10, 2016. The work plan is published…more

Audits, Hospitals, Medical Devices, Nursing Homes, OIG

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Washington State’s Cooperative Law Overhauled Effective January 1, 2016

For the first time in years, Washington’s cooperative statutes have been given a facelift. Effective January 1, 2016 (except certain provisions affecting Limited Liability Companies (LLCs)), Washington state has created a set…more

Corporate Governance, Corporations Code, Foreign Entities, Limited Liability Company (LLC), Limited Liability Partnerships

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IRS Notice 2016-4 — ACA Reporting Extension for Forms 1094 & 1095

IRS Notice 2016-4 makes for some happy reading. (IRS Notice 2016-4) - Background. All Applicable Large Employers (those with 50 or more full time equivalent employees) must report on Form 1095 whether they offered…more

Affordable Care Act, COBRA, Form 1094, Form 1095, IRS

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Lumentum Holdings, Inc. v. Capella Photonics, Inc., Case IPR2015-00739 (Mar. 4, 2016) (Paper 38)

Takeaway: - The statutory provision that sets forth the requirement to identify all real parties-in-interest in an IPR petition, 35 U.S.C. §312(a)(2), is not jurisdictional in nature. Failing to comply with this…more

Inter Partes Review (IPR) Proceeding, Jurisdiction, Patent Litigation, Patent Trial and Appeal Board, Patents

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A Close to Open Internet Challenges?

In a major victory for the Federal Communications Commission (“FCC” or “Commission”) a three-judge panel of the United States Court of Appeals for the District of Columbia (“DC Circuit”) upheld the Commission’s 2015 Open…more

Broadband, Common Carriers, Communications Act of 1934, FCC, First Amendment

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Dorsey Anti-Corruption Digest - April 2016

Welcome to Dorsey & Whitney’s monthly Anti-Corruption Digest. In this digest, we draw together news of enforcement activity throughout the world and aim to reduce your information overload. Our London, Minneapolis, New York…more

Alstom, Anti-Corruption, Avon, Brazil, Bribery

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Another Shoe Drops: More Changes to the U.S. Cuban Sanctions from the White House

On January 25, the Obama Administration made concurrent announcements about its evolving posture on the Cuban sanctions. On that date, the Office of Foreign Assets Control (OFAC) released more changes to the Cuban Assets…more

Cuba, Cuban Assets Control Regulations (CACR), EAR, Embargo, Exports

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EU Securities – Proposed Settlement System to Facilitate London Listings of US Companies

Historically, due to certain restrictions under US securities laws, equity securities of US companies and other companies that do not qualify as “foreign private issuers” under US securities laws (collectively, “US-Based…more

Electronic Trading, EU, Foreign Private Issuers, London Stock Exchange, Regulation S

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Update on China’s New Restrictions on Internet Content

Apple’s iTunes and Disney’s DisneyLife websites have reportedly become early targets of China’s internet regulators who are beginning to enforce new rules restricting the publication of online content. The new rules, the Online…more

Apple, China, Corporate Counsel, Disney, Foreign Corporations

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How does Utah’s New Noncompete Law Affect You?

Utah employers should update their form noncompete agreements to ensure they comply with the state’s new Post-Employment Restrictions Act. Employers of all sizes are subject to the Act, which was adopted by the Utah legislature…more

Attorney's Fees, Consideration, Good Faith, New Legislation, Non-Compete Agreements

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Form ADV Gets an Overhaul

On August 25, 2016, the Securities and Exchange Commission (“SEC”) modernized the reporting regime for investment advisers by adopting amendments to the Investment Advisers Act of 1940, as amended (the “Advisers Act”) and Form…more

Form ADV, Investment Adviser, Investment Advisers Act of 1940, Reporting Requirements, SEC

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New Immigration Rule to Welcome Start-Up Foreign Entrepreneurs

Following up on President Obama’s proposal to acknowledge the global marketplace of ideas and leverage current immigration law to encourage entrepreneurship and economic growth, the U.S. Citizenship and Immigration Service…more

Entrepreneurs, Foreign Nationals, Global Marketplace, Proposed Regulation, USCIS

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EU-US Data Transfer Privacy Shield: Political Agreement Achieved Regarding “Safe Harbor 2.0”

Significant uncertainty and concern regarding US companies’ ability to process and use personal data received from the EU has loomed since the October 2015 decision by Europe’s highest court invalidating the EU-US Safe Harbor. …more

Article 29 Working Party (WP29), Binding Corporate Rules, Data Protection Authority, EU, EU-US Privacy Shield

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Security Interest v. License Agreement: Low Tech Precautions for the High Tech Investment

In this exciting age of startups, the market is brimming with opportunities for individuals and entities alike to invest in emerging companies. Today’s rapid rate of technology development justifies investors’ eagerness to take…more

Chapter 11, Chapter 7, Commercial Bankruptcy, Counterparties, Debtors-in-Possession

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Utah Unemployment Law Update - Part 2

In this Issue: - Mobile Phone / Driving Laws - Unemployment Benefits - Facts - Procedural History - The Law - Court of Appeals Decision - Takeaway - Wrongful Termination - Religious…more

Appeals, Distracted Driving, Employer Liability Issues, Hiring & Firing, Mobile Devices

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China Adopts Tough and Sweeping Cybersecurity Law

On November 7, 2016, the Standing Committee of China’s National People’s Congress promulgated the Cybersecurity Law of the People’s Republic of China, a law James Zimmerman, chairman of the American Chamber of Commerce in China…more

Chamber of Commerce, China, Cybersecurity, Innovation, New Regulations

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Missed Calls Don’t Cut It: Injury in Fact is Required for Each Call and Must Be Traceable to the Use of an ATDS

In the latest dismissal of a TCPA case for lack of Article III standing, a District Court in California held that a plaintiff does not suffer an injury in fact from calls she did not hear, calls she heard but did not answer, and…more

Article III, Creditors, Dismissals, Injury-in-Fact, Robocalling

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Washington Employers, Be Careful When Demanding Arbitration Agreements from Current Employees

Yesterday, in case called Mayne v. Monaco Enterprises, Inc., a Washington Appellate Court struck down an arbitration clause because the employee faced immediate termination if he did not sign. The employee in this case had…more

Adverse Employment Action, Appeals, Arbitration, Arbitration Agreements, Consideration

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Sample ADA Notice for Wellness Programs

The EEOC has published a sample notice intended to help employers comply with the notice requirement under the new Americans with Disabilities Act (ADA) final rule (published on May 17, 2016). The final rule requires employers…more

ADA, Biometric Information, EEOC, Employer Group Health Plans, Final Rules

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The Supreme Court Reaffirms Dirks in Salman

On December 6th, the U.S. Supreme Court handed down its first major decision on insider trading in over 20 years, and affirmed the conviction of Bassam Salman for violations of Section 10(b) of the Securities Exchange Act of…more

Dirks v SEC, Illegal Tipping, Insider Trading, Material Nonpublic Information, Personal Benefit

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Supreme Court Will Decide Whether to Relax the Standard for Award of Enhanced Patent Damages

The U.S. Supreme Court announced last week that it will decide two cases concerning the issue of when district courts may award enhanced damages to patentees upon a finding of infringement. Stryker Corp. v. Zimmer, U.S., No…more

Attorney's Fees, Bad Faith, Brooks Furniture, Enhanced Penalties, Evidence

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International Transactions May Escape German Merger Control Even if Statutory Control Thresholds Are Exceeded - New FCO German Guidelines

In many countries turnover tests triggering merger control can be overly far-reaching and cover transactions that are “entirely foreign” and do not have any appreciable effect in the country concerned. Newly issued German…more

European Merger Control Regulation, Germany, Notice Requirements

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DOJ, SEC Change “Cooperation Credit” Process, Add Resources to Fight Corruption

During recent speeches Deputy Attorney General Sally Yates and SEC Enforcement Division head Andrew Ceresney announced changes to the processes the DOJ and the SEC will use to decide if a company will receive “cooperation…more

Compliance, Cooperation Initiative, DOJ, FCPA, SEC

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D.C. Circuit Upholds Public-Disclosure-Bar Dismissal Based On Information Posted to Websites

Last week, the U.S. Court of Appeals for the D.C. Circuit upheld a district court’s dismissal of a qui tam action under the oft-litigated, “public disclosure bar,” where the transactions that gave rise to an inference of fraud…more

Army, Corporate Counsel, False Claims Act (FCA), Jurisdiction, Original Source

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Quirky Question #223, Meal Periods Outside California

We have offices in 13 states, a headquarters in Iowa and a manufacturing facility in Alaska. Several employees have used our “open suggestion box” to request that we allow them to work through lunch so they can go home earlier…more

On-Duty Meal Period Waivers, Rest and Meal Break, Wage and Hour

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The FCC’s 2016 BBA Implementing Ruling Digested (Volume 3): “Making a Call” and “Initiating a Call” Are the Same Thing – Except that They Aren’t

Here’s something a lot of folks—even so-called TCPA “experts—tend to overlook. Most people realize that the TCPA contains two separate provisions with respect to the use of regulated technology to place calls to phone…more

Bipartisan Budget Act, FCC, Robocalling, TCPA

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DOL Issues Guidance Reminding Employers That “Most Workers Are Employees”

On July 15, 2015, the U.S. Department of Labor (“DOL”) issued an important Administrator’s Interpretation discussing the misclassification of employees as independent contractors. Many companies engage independent contractors,…more

Best Management Practices, DOL, Employer Liability Issues, FLSA, Independent Contractors

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Proposed Federal Breach Notification Law: Panacea Or Flash in the Pan?

The Obama Administration has just released the proposed text of the Personal Data Notification & Protection Act as the latest step in its uniform federal breach notification initiative. Similar legislative efforts in the past…more

Barack Obama, Breach Notification Rule, Corporate Counsel, Personally Identifiable Information, Proposed Legislation

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Ninth Circuit holds that Fannie Mae and Freddie Mac are not officers, employees, or agents of the United States under 31 U.S.C. § 3729(b)(2)(A)(i) of the False Claims Act

On February 22, the Ninth Circuit affirmed the dismissal of an FCA claim brought by relators alleging that various lenders and loan servicers made false certifications to Fannie Mae and Freddie Mac, concluding that claims…more

Dismissals, False Claims Act (FCA), Fannie Mae, FHFA, Freddie Mac

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Deadline Approaching for Disclosure of Continuing Disclosure Violations

The Securities and Exchange Commission (the SEC) recently launched its Municipalities Continuing Disclosure Cooperation Initiative (the MCDC Initiative). Obligated persons (including issuers and conduit borrowers) and…more

Bonds, Disclosure Requirements, MCDC, Municipal Bonds, SEC

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The Supreme Court Emerges From Its Carbon Freeze on Design Patents

When we last left our story, Jedi combatants Apple and Samsung were circling the Supreme Court imploring it to review their dispute involving design patents—an area of the law that the Court has not touched in over a century. …more

Amicus Briefs, Apple, Apple v Samsung, Calculation of Damages, Certiorari

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EHR ROI: Meaningful Use and Leveraging Your Electronic Health Record

Meaningful Use (MU) is again at the forefront of many hospital leaders’ minds, as the Centers for Medicare and Medicaid Services (CMS) released a proposed rule in early April that aligns Stage 1 and Stage 2 incentives and sets…more

CMS, EHR, HITECH, Meaningful Use

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Improvements to technology used in your business are eligible for patenting?—?it’s not your business.

If you have talked about patenting inventions lately, you might have been told that software per se is not eligible for patenting and that you should protect your business’s intellectual property (IP) using copyrights, trade…more

Bascom Global v AT&T Mobility, CLS Bank v Alice Corp, DDR Holdings v Hotels.com, Enfish v Microsoft, McRo v Bandai Namco

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Preparing for the 2015 Proxy Season

Similar to last year, there are no new disclosure requirements which need to be reflected in this year’s proxy statement; however, with ongoing shareholder activism and the desire of companies to communicate effectively with…more

Bylaws, Corporate Governance, Equity Compensation, Executive Compensation, Glass Lewis

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Deadline Approaching for Disclosure of Continuing Disclosure Violations

The Securities and Exchange Commission (the SEC) recently launched its Municipalities Continuing Disclosure Cooperation Initiative (the MCDC Initiative). Obligated persons (including issuers and conduit borrowers) and…more

Bonds, Disclosure Requirements, MCDC, Municipal Bonds, SEC

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Alice’s Patent Invalidated as “Abstract,” But Court Declines to Articulate Standard Applicable across Industries

In deciding Alice Corp. v. CLS Bank International, the Supreme Court Thursday invalidated Alice’s patent to software for intermediated settlement of transactions – finding the patent claimed nothing more than a general computer…more

Alice Corporation, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus, Patent Litigation

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Minnesota Amends Trust Instruction Procedure Statute

The 2015 Minnesota Legislature adopted, and Governor Dayton signed into law, a revised Minnesota Trust Code, which will go into effect on January 1, 2016. The Minnesota Trust Code, Chapter 501C, is the first major revision of…more

Amended Legislation, Governor Dayton, Personal Jurisdiction, Securitization, Uniform Trust Code

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The Impact of Rejection on Trademark Licensees’ Rights in Bankruptcy: the Latest Decision on an Issue that Has Courts Divided

A decision by the Bankruptcy Court for the District of New Hampshire is the latest of a handful of cases in the past few years to weigh in on a circuit split as to whether a licensor of trademark rights can fully terminate a…more

Appeals, Bankruptcy Code, Commercial Bankruptcy, IP License, Trademarks

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Aereo’s Antenna Arrays and Streaming of Broadcast Programming to Individual Subscribers Found Infringing

In a significant victory for the broadcast industry, the Supreme Court has held in a 6-3 decision that Aereo’s TV streaming service is a public performance within the meaning of the Copyright Act. Aereo operates massive antenna…more

ABC, ABC v Aereo, Aereo, Broadcasting, Cable Television Providers

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New York High Court Holds Business Judgment Rule May Apply to Going-Private Mergers

On May 5, 2016, the New York Court of Appeals in Matter of Kenneth Cole Productions, Inc., Shareholder Litigation, 2016 WL 2350133 (N.Y. May 5, 2016) (Matter of Kenneth Cole), adopted the approach of the Supreme Court of…more

Business Judgment Rule, Buyouts, Class Action, Going-Private Transactions, Kenneth Cole

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EEOC Updates Its National Origin Discrimination Guidance

On November 18, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued Enforcement Guidance on National Origin Discrimination, replacing the 2002 Compliance Manual section on the same topic. The new guidance discusses…more

Corporate Counsel, EEOC, Enforcement Guidance, National Origin Discrimination

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Second Circuit Rules Unintended UCC Termination Statement Was Authorized

When terminating a financing statement, it is necessary to be certain that other financing statements are not unintentionally released, according to an opinion last week of the Second Circuit Court of Appeals. The effect of not…more

Commercial Bankruptcy, General Motors, Lenders, Perfected Security Interest, Secured Debt

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Recent Developments in Proxy Access

As the 2017 proxy season begins to unfold, proxy access continues to be a focus of shareholder proposals. Last year, companies that had already adopted mainstream proxy access bylaws, or that were planning to put mainstream…more

Bylaws, Corporate Counsel, Corporate Governance, Proxy Access, Proxy Season

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Avatar Wins Against Another Copyright Owner… in an Unusual Manner

A recent decision from the California Court of Appeal, Fourth Appellate District, ended the hopes and dreams of a copyright owner from receiving a share of the $2.8 billion earned by James Cameron’s Avatar film. In this…more

Anti-SLAPP, Attorney's Fees, Avatar, Breach of Contract, Copyright Infringement

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U.S. Tax Implications of Offshore Migration of Intellectual Property

Challenges of Transferring IP Offshore - What constitutes intellectual property (“IP”) has long been a contested issue in tax practice, but generally includes intangible assets as wide-ranging as patents, copyrights,…more

Exceptions, Foreign Subsidiaries, Intra-Group Transactions, IRS, Patents

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The Supreme Court Narrowly Defines an ERISA Plan’s Right to Subrogation in Montanile v. Board of Trustees of Nat. Elevator Industry Health

Most ERISA group health plans have subrogation terms – that is, terms allowing the plan to recover benefits paid to injured participants who later recover a tort settlement for their injuries. These subrogation claims are…more

Benefit Plan Reimbursements, Equitable Relief, Equitable Subrogation, ERISA, Health and Welfare Plans

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New CDIs Help Issuers With Pay Ratio Disclosure, A Little

On October 19th, the SEC released five new Compliance and Disclosure Interpretations (“CDIs”) relating to the upcoming “Pay Ratio Disclosure” requirements in Item 402(u) of Regulation S-K. Item 402(u) Pay Ratio Disclosure…more

C&DIs, Disclosure Requirements, Dodd-Frank, Executive Compensation, Pay Ratio

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Comic-Con, Costumes, and Copyright Concerns

Get ready, nerds! This summer’s Comic-Con season is almost upon us and your costume is not going to make itself. But before you squeeze into your tights and cape, do you need to worry about copyright infringement? This blog…more

Certiorari, Cheerleaders, Comics, Copyright, Copyright Infringement

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China Adopts Tough and Sweeping Cybersecurity Law

On November 7, 2016, the Standing Committee of China’s National People’s Congress promulgated the Cybersecurity Law of the People’s Republic of China, a law James Zimmerman, chairman of the American Chamber of Commerce in China…more

Chamber of Commerce, China, Cybersecurity, Innovation, New Regulations

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Former CEO of Health System Agrees to Pay $1 Million to Settle False Claims Act Case with U.S. Department of Justice

In the most recent example of its continued effort to hold individuals accountable for corporate misconduct, the U.S. Department of Justice (“DOJ”) announced on September 27, 2016, that the former CEO of Tuomey Healthcare System…more

CEOs, Corporate Counsel, Corporate Misconduct, DOJ, Enforcement Actions

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TUPE – What Will The 2014 Changes Bring?

Following a 2-year consultation process, legislation comes into force on 31 January 2014 to amend ‘TUPE’, the Transfer of Undertakings (Protection of Employment) Regulations 2006. The 2006 TUPE regulations provide for the…more

Employee Rights, TUPE, UK

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Bankruptcy Court Opinion Clarifies California Law on Duties of Directors & Officers Upon Insolvency

It is not unusual in the lifecycle of a start-up for the company to hit road blocks and have cash flow issues. During these times, the board and its members will ask the company’s professionals what their fiduciary duties are…more

Bankruptcy Court, Board of Directors, Business Judgment Rule, Commercial Bankruptcy, Corporate Counsel

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Bankruptcy Court Opinion Clarifies California Law on Duties of Directors & Officers Upon Insolvency

It is not unusual in the lifecycle of a start-up for the company to hit road blocks and have cash flow issues. During these times, the board and its members will ask the company’s professionals what their fiduciary duties are…more

Bankruptcy Court, Board of Directors, Business Judgment Rule, Commercial Bankruptcy, Corporate Counsel

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Board Refreshment: Investors Respond to Trends in Mandatory Retirement Age and Tenure with More Stringent Voting Policies

As many institutional investors have concluded, prevailing governance policies and practices have not produced desired board refreshment, which these investors would support in order to strengthen expertise, promote diversity…more

Board of Directors, CalPERS, Corporate Governance, Directors, Glass Lewis

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Oracle vs. Google: More Than Just Coffee

Java – what does it mean to you? If you are like me, it’s your favorite morning beverage. It’s also an island in Indonesia that you hope to visit someday on a dive trip. If you are the owner of an Android smartphone, Java may…more

Affirmative Defense, APIs, Copyright Infringement, Fair Use, Google

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The Long and Winding Road of the Clean Power Plan Litigation

The Clean Power Plan (CPP) is without a doubt one of the most complex and controversial regulatory undertakings in the EPA’s history, so much so that it was challenged in court – twice – before it was even published in the…more

Clean Power Plan, EPA, Greenhouse Gas Emissions, Justice Scalia, Michigan v. EPA

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Revised Uniform Fiduciary Access to Digital Accounts Act Adopted by Four States

With the shift from traditional hard copy paper documents towards electronic records stored Cloud Computing-based software and services (e.g., iCloud, Dropbox, Google Drive, etc.), access to and use of digital assets by…more

Cloud Computing, Deceased, Digital Assets, Electronic Records, Estate Planning

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A Close to Open Internet Challenges?

In a major victory for the Federal Communications Commission (“FCC” or “Commission”) a three-judge panel of the United States Court of Appeals for the District of Columbia (“DC Circuit”) upheld the Commission’s 2015 Open…more

Broadband, Common Carriers, Communications Act of 1934, FCC, First Amendment

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How to Prepare for Theft of Company Information

Companies should take three steps now to ensure use of the Defend Trade Secrets Act. In May, President Barack Obama signed into law the Defend Trade Secrets Act that creates a federal civil cause of action for the…more

Asset Seizure, Confidential Information, Confidentiality Agreements, Data Protection, Defend Trade Secrets Act (DTSA)

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“The Man Who Brought the Beatles to America” is Bringing Them Back…to a U.S. District Court

Sid Bernstein was a legendary promoter and producer of iconic rock-and-roll performers including the Rolling Stones, the Moody Blues and, of course, the Beatles. Bernstein earned his moniker as “The Man Who Brought the Beatles…more

Authorship, Copyright Infringement, Derivative Works, Music Industry, Video Recordings

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Settling Parties Beware: Failing to Provide Notice to Your Insurer Before Settling May Doom Your Chance of Recovery

On April 25, 2016, the Colorado Supreme Court issued a decision in Travelers Prop. Cas. Co. v. Stresscon Co. Stresscon, a subcontracting concrete company, entered into a settlement agreement – without providing notice to its…more

CO Supreme Court, Commercial General Liability Policies, Corporate Counsel, Insurance Industry, Notice Prejudice Rule

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Gossip Cop Gets Cuffed For Copyright Infringement

The U.S. District Court for the Southern District of New York recently found that Gossip Cop, a website that rates celebrity gossip on a scale of “real” to “rumor,” infringed the copyrights in three photographs of famous…more

Copyright Infringement, Fair Use, Photographs, Transformativeness

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SEC Proposes Amendments to Update and Simplify Disclosure Requirements

Overview - The Securities and Exchange Commission (the “SEC”) recently announced proposed amendments in order to update and simplify its disclosure requirements. The proposed amendments are intended to simplify compliance…more

Disclosure Requirements, FASB, Fixing America’s Surface Transportation Act (FAST Act), GAAP, IFRS

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United States Patent and Trademark Office issues guidance in the wake of Myriad and Prometheus decisions

On March 4th, the United States Patent and Trademark Office issued formal guidelines for the determination of patent-eligible subject matter in the wake of two recent U.S. Supreme Court cases: Association for Molecular Pathology…more

AMP v Myriad, Mayo v. Prometheus, Patent-Eligible Subject Matter, Pharmaceutical Industry, USPTO

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Eighth Circuit Determines that Compliance with Reasonable Interpretation of Government Regulation Sufficient to Avoid FCA Liability (Absent a Government Warning to the Contrary)

The Centers for Medicare and Medicaid Services (“CMS”) establishes requirements for how medical procedures must be performed for a medical provider to seek payment for those procedures. Seeking payment without properly…more

CMS, False Claims Act (FCA), Health Care Providers, Inpatient Billing

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California Proposition 65 Update – A New Judicial Interpretation for the Defense of Proposition 65 Claims

In 1986, Californian’s adopted Proposition 65 (Prop 65). The law was intended to act as a labeling law to require a clear and reasonable warning to consumers about the presence of State-listed chemicals in consumer products at…more

Beech-Nut, Children's Products, Proposition 65, Toxic Chemicals, Warning Labels

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Reducing the risk for Property Professionals of money laundering in UK real estate

Scale of money laundering in UK real estate - Transparency International UK, the anti-corruption organisation, highlighted the risk of money laundering in the high-end UK real estate market in its report published last…more

Anti-Corruption, Anti-Money Laundering, Commercial Real Estate Market, Offshore Companies, Real Estate Market

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How and Why Your Team Is Everything (And Other Essentials for Startup Success...)

The multi-faceted answer to our question: over the years working with entrepreneurs and inventors, what have you seen as an essential attribute to startup success?…more

Legal Perspectives, Startups

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FASB’s Current Expected Credit Loss Proposal - Capital Recapture Considerations for Loan Documents

This eUpdate addresses a concern regarding the impact on bank capital of the FASB’s “Proposed Accounting Standards Update, Financial Instruments—Credit Losses (Subtopic 825-15)” (the “Proposal”), should it be adopted. …more

Banking Sector, Borrowers, Commercial Loans, FASB, GAAP

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Washington State’s Cooperative Law Overhauled Effective January 1, 2016

For the first time in years, Washington’s cooperative statutes have been given a facelift. Effective January 1, 2016 (except certain provisions affecting Limited Liability Companies (LLCs)), Washington state has created a set…more

Corporate Governance, Corporations Code, Foreign Entities, Limited Liability Company (LLC), Limited Liability Partnerships

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Dr. Seuss Sues in Sue-ville This Holiday Season

You know Green Eggs and Ham, and the Cat in The Hat, Horton, the Lorax, and others like that. But a new book is coming, although now a bit slow, It’s called “Oh, The Places You’ll Boldly Go!”…more

Copyright, Infringement, Trademarks

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Guidance Provided by SEC on Abbreviated Debt Tender Offers

On November 18, 2016, the SEC’s Division of Corporation Finance issued a set of compliance and disclosure interpretations (“C&DIs”) pertaining to abbreviated debt tender offers, which were the subject of an SEC no-action letter…more

C&DIs, No-Action Letters, SEC, Tender Offers

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Now’s the Time to Review Compensation Arrangements Relating to Unvested Rights

Correction of Errors before Year End Could Avoid Costly 409A Penalties - Sometimes overlooked is the fact that many employment, severance and change-of-control agreements are subject to U.S. Internal Revenue Code Section…more

Change of Control, Deferred Compensation, Directors, Foreign Corporations, Foreign Entities

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CEO of World Trade Center contractor found guilty of fraud by misstating compliance with Port Authority’s minority- and women-owned business programs

Public entities at the Federal, state, and local levels set aside contracting opportunities, provide preferential price treatment, or otherwise grant favorable treatment to contractors (1) owned by veterans, women, minorities,…more

CEOs, Compliance, Construction Contracts, Criminal Liability, Fraud

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Second Circuit Eases Tension Between U.S. Discovery Requirements and EU Privacy Laws

Microsoft scored an important victory when the Second Circuit ruled that the government is not authorized to issue warrants for customer data stored overseas. In re Warrant to Search a Certain E-mail Account Controlled &…more

Cloud Computing, Discovery, Email, EU, Microsoft

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Quirky Question #279: Concerted Activity in 140 Characters or Less

Question: I am a manager in a medium-sized retailer that has locations and employees in 16 states. The company maintains a social media policy, which was recently updated…more

ALJ, Chipotle Grill, Discipline, Facebook, NLRA

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Director Cybersecurity Risk Oversight and Actions

This article begins by providing an overview of the duty of directors to oversee risk, including cybersecurity risk, in the cyberattack context and then outlines actions that board of directors are taking as reported by surveys,…more

Board of Directors, Cyber Attacks, Cybersecurity, Data Breach Plans, DE Supreme Court

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Dorsey’s TCPA Team Earns First-of-Its-Kind Order Staying Individual TCPA Case Pending D.C. Circuit’s Ruling on Consolidated Appeal of the FCC’s 2015 Omnibus Order

On June 14, 2016, Dorsey’s Telephone Consumer Protection Act (“TCPA”) litigation team secured a stay in an individual TCPA case in the Northern District of Georgia pending the D.C. Circuit’s decision in ACA Int’l, et al. v. Fed…more

ATDS, FCC, Order to Stay, Prior Express Consent, TCPA

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In the Weeds Between Federal and State Law: Brand Name for Legal Marijuana Sales Denied Federal Registration

In a precedential opinion, the Trademark Trial and Appeal Board (TTAB) affirmed a USPTO refusal to register the trademark HERBAL ACCESS on the basis the use of the mark in commerce was unlawful under the Controlled Substances…more

Brand, Controlled Substances Act, Intellectual Property Protection, Marijuana Related Businesses, Medical Marijuana

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Does This Year’s Nobel Prize in Economics Suggest Any Lessons Regarding the Regulation of the Consumer Finance Industry?

On Monday October 12, 2015, Professor Angus Deaton won the Nobel Memorial Prize in Economic Science. Professor Deaton’s work focuses in part on consumer behavior, and, more specifically, on techniques used by researchers for…more

CFPB, Data Collection, Financial Services Industry, Mandatory Arbitration Clauses, Scientific Research

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Sound Marks in China

A sound mark can be registered in China since May 1, 2014. According to a draft Standard of Examination issued by the Chinese Trademark Office, a sound mark can consist of a musical or non-musical sound, or a combination of…more

China, Sound Marks, Trademark Registration

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Can an Enforcement Standard be Discerned from the SFC’s Case Against Moody’s?

The hearings have recently concluded in Moody’s appeal of the November 24, 2014 decision of Hong Kong Securities and Futures Commission (the “SFC”) to fine Moody’s HK$23 million for its release of a report applying a “red flag”…more

Credit Rating Agencies, Due Diligence, Emerging Markets, Enforcement Actions, Fairness Standard

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Ninth Circuit Raises The Bar For Plaintiffs Seeking Trademark Injunctions

The Ninth Circuit’s recent decision in Herb Reed Enterprises, LLC v. Florida Entertainment Management Inc. increases the burden on trademark plaintiffs seeking preliminary injunctions. The case is the first decision from a…more

eBay, Injunctions, Irreparable Harm, Trademarks

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Ground-Breaking Delaware Opinion: Books and Records include Electronic Documents Subject to Inspection and to be Incorporated in any Resulting Action

On February 2, 2016, Vice Chancellor Laster of the Delaware Chancery Court ordered a tailored production of the electronic and other documents identified by the plaintiff, Amalgamated Bank, in its demand for inspection of…more

Books & Records, Breach of Duty, Corporate Counsel, Document Productions, Executive Compensation

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BIAS Rules: New FCC Regulations on Broadband Customer Privacy

On October 27, 2016, the Federal Communications Commission (“FCC” or “Commission”) adopted sweeping new privacy rules applicable to all telecommunications providers including broadband internet access service (“BIAS”) and…more

Breach Notification Rule, Broadband, Customer Proprietary Network Information (CPNI), Data Breach, FCC

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China-Hong Kong Connect: An Interconnected World

In November 2014, the Shanghai-Hong Kong Stock Connect (the ‘‘Shanghai Train’’), a pilot program for establishing mutual stock market access between mainland China and Hong Kong, was officially launched. The new cross-border…more

China, Commodities, Derivatives, Foreign Investment, HKEx

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CFPB Supervisory Highlights – January 2016 to April 2016

On June 30, 2016, the Consumer Financial Protection Bureau (“CFPB”) released the twelfth edition of its Supervisory Highlights report (“Report”), which focused on supervision work completed between January and April 2016. The…more

Automotive Loans, CFPB, Citibank, Civil Monetary Penalty, Corrective Actions

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Naturally Misleading? Ninth Circuit Keeps “All Natural” Fruit Labeling Dispute Alive

Does a food label advertising a product as “all natural fruit” mislead consumers when that product contains artificial preservatives? That is the question presented in Brazil v. Dole Food Co. Inc., which the Court of Appeals…more

All Natural, Class Action, Dole Food, False Advertising, FDA

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IPOs and IPAs: Ballast Point Transaction Illustrates Benefits of a Dual-Track Approach

The menu for craft breweries raising capital and looking for investor liquidity now includes another viable alternative – public offerings. With the filing of public offering documents by Ballast Point Brewing & Spirits and the…more

Acquisitions, Beer, Business Valuations, Capital Raising, Dual Track Process

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Paid Family Leave and $15 Minimum Wage Coming to New York

New York has enacted legislation that, over the next several years, will phase in 12 weeks of paid family leave for all employees, as well as a $15 minimum wage in New York City and other parts of New York State. The paid…more

Disability Benefits, FMLA, Minimum Wage, New Legislation, Paid Family Leave Law

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The Renewed Standard for Awarding Enhanced Patent Damages

On June 13, 2016, the U.S. Supreme Court issued an opinion with large ramifications for patent holders and potential infringers alike. Deciding the consolidated cases of Halo Electronics, Inc. v. Pulse Electronics, Inc. and…more

Enhanced Damages, Halo v Pulse, Judicial Discretion, Patent Infringement, Patents

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Release the Drones: New Small UAS Regulations Now in Effect in the U.S.

Commercial uses for drones, also known as unmanned aircraft systems (UAS), abound. From handling dangerous inspections to collecting soil and crop data for use in precision agriculture, drones can be extraordinarily helpful…more

Agricultural Sector, Commercial Use, Federal Aviation Administration (FAA), Part 107, Privacy Concerns

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Public–Private Partnerships Core Toll Concessions Contract Guide

On September 10, 2014, the Federal Highway Administration (“FHWA”) published its final Model Public – Private Partnerships Core Toll Concessions Contract Guide (“Guide”) presenting key concepts for the structuring and…more

Contracting Procedures, Federal Contractors, Federal Highway Administration, Highways, Infrastructure

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DOJ and FTC Issue Antitrust Guidance for Human Resource Professionals

Everyone knows that price-fixing among sellers of competing products is illegal, but price-fixing by buyers can also violate the antitrust laws. That is true even in the market for buying services of employees, regardless of…more

Adobe, Antitrust Violations, DOJ, eBay, FTC

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Question #275: Can We Take A Stand On Employees Sitting?

Question: Some of our retail company’s employees in California are demanding chairs to sit in while they work. Management thinks it appears unprofessional to have workers sitting, but I hear the employees might have a legal…more

Banks, CA Supreme Court, Class Action, CVS, Employer Liability Issues

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China Adopts Tough and Sweeping Cybersecurity Law

On November 7, 2016, the Standing Committee of China’s National People’s Congress promulgated the Cybersecurity Law of the People’s Republic of China, a law James Zimmerman, chairman of the American Chamber of Commerce in China…more

Chamber of Commerce, China, Cybersecurity, Innovation, New Regulations

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D.C. Circuit Tosses Consumer Complaint Following Spokeo

On July 26, 2016, the D.C. Circuit rejected a consumer class action complaint based on alleged violations of two D.C. consumer protection statutes. Citing the recent U.S. Supreme Court decision in Spokeo, Inc. v. Robins, No…more

Article III, Class Action, Consumer Protection Act, Corporate Counsel, Dismissals

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Federal Circuit Holds District Court Abstractness Analysis Too Abstract for Alice under 35 USC § 101

Clients in the software space now have stronger arguments for subject matter eligibility, following the Federal Circuit decision in Enfish LLC v. Microsoft Corp. (May 12, 2016). The decision also touches on novelty,…more

Abstract Ideas, CLS Bank v Alice Corp, Guidance Update, Microsoft, Patent Invalidity

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The Supreme Court Once Again Visits The Employer Stock Dispute — Amgen, Inc. v. Harris

Background — fiduciary obligations vs. ERISA’s specific nod to employer stock. Courts have long struggled to determine how to reconcile ERISA’s rules explicitly allowing participants in defined contribution plans to invest in…more

Amgen v Harris, ERISA, ESOP, Fiduciary Duty, FIfth Third Bancorp v Dudenhoeffer

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The New AML Regulations and Their Impact on Banks—Increased Compliance for Lending Transactions with Legal Entities

On May 11, 2016, FinCEN published in the Federal Register its long-awaited anti-money laundering (“AML”) rules (the “Final Rules”) governing corporate entities doing business with banks and other financial institutions that are…more

Anti-Money Laundering, Banking Sector, Beneficial Owner, Covered Financial Institutions, Customer Due Diligence (CDD)

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Release the Drones: New Small UAS Regulations Now in Effect in the U.S.

Commercial uses for drones, also known as unmanned aircraft systems (UAS), abound. From handling dangerous inspections to collecting soil and crop data for use in precision agriculture, drones can be extraordinarily helpful…more

Agricultural Sector, Commercial Use, Federal Aviation Administration (FAA), Part 107, Privacy Concerns

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SEC Fines KBR $130,000 for Using Employee Confidentiality Agreement that Violates Dodd-Frank Whistleblower Protections

The Securities and Exchange Commission (“SEC”) has brought its first-ever enforcement action against a company for using language in confidentiality agreements that prohibits employees from speaking with the SEC without prior…more

Confidentiality Agreements, Enforcement Actions, Internal Investigations, KBR (formerly Kellogg Brown & Root), SEC

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FDA Guidance on Evaporated Cane Juice Not So Sweet for Class-Action Defendants

In recent years, a boomlet of litigation – primarily in California – has arisen regarding the product known as “evaporated cane juice” or “ECJ.” The product – made by extracting fluid from crushed sugar cane, clarifying the…more

Evaporated Cane Juice, FDA, Food Labeling, New Guidance, Primary Jurisdiction Doctrine

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Wellness Watch: Guidance Is (Almost) Here

In December 2014, we highlighted the challenges that employers have been facing in ensuring that their wellness programs are not in violation of the Americans with Disabilities Act (ADA), the Genetic Information…more

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

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Delaware Rapid Arbitration Act

On April 2, 2015, Delaware Governor Jack Markell signed legislation enacting the Delaware Rapid Arbitration Act (“DRAA”) which became effective on May 2, 2015. 10 Del. C. § 5801, et seq. On June 17, 2015, the Delaware Supreme…more

Arbitration, Delaware Rapid Arbitration Act

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Crowdfunding: A New Way for Montana Companies to Raise Money

A new exemption passed in the Montana 2015 legislative session will allow Montana companies to use crowdfunding to offer and sell securities in Montana beginning July 1, 2015. This exemption is subject to various limitations and…more

Crowdfunding, Financing, JOBS Act, SEC, Securities

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A Matter of Protocol - Rules for Departing Brokers Trying to Solicit Former Clients

Question: We operate a financial services firm that employs account executives who execute investment trades on behalf of clients. One of our brokers recently resigned to move to a competitor firm…more

Brokers, Investment Adviser, Non-Solicitation Agreements, Restrictive Covenants

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2016 Amendments to the Delaware General Corporation Law

On June 16, 2016, Delaware Governor Jack Markell signed into law House Bill No. 371, which makes a number of noteworthy changes to the Delaware General Corporation Law (“DGCL”). The most significant 2016 amendments to the…more

Amended Legislation, Appraisal Rights, Board of Directors, Certificates of Incorporation, De Minimis Claims

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Insider Trading: The Supreme Court Takes Another Look

The law of insider trading is back before the U.S. Supreme Court with far–reaching implications for insider trading prosecutions in the U.S. The Court will decide whether a close friend or relative of an insider is allowed to…more

Criminal Prosecution, Illegal Tipping, Insider Trading, Personal Benefit, SCOTUS

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Federal Civil Penalties Going Up, Way Up

The United States Department of Justice (“DOJ”) published an Interim Final Rule on June 30th nearly doubling the per-claim civil penalties for violations of a number of laws, including the False Claims Act (FCA), the Program…more

Anti-Kickback Statute, Bipartisan Budget, Civil Monetary Penalty, Comment Period, Corporate Counsel

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SEC Clarifies Baby Shelf Rules

The Securities and Exchange Commission (“SEC”) recently issued a new compliance and disclosure interpretation (the “New C&DI”) in Question 116.25 regarding the availability of Form S-3 for the registration and sale of shares by…more

Form S-3, Public Disclosure, SEC, Shelf Registration, Stock Float

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Second Circuit Eases Tension Between U.S. Discovery Requirements and EU Privacy Laws

Microsoft scored an important victory when the Second Circuit ruled that the government is not authorized to issue warrants for customer data stored overseas. In re Warrant to Search a Certain E-mail Account Controlled &…more

Cloud Computing, Discovery, Email, EU, Microsoft

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Delaware Rapid Arbitration Act

On April 2, 2015, Delaware Governor Jack Markell signed legislation enacting the Delaware Rapid Arbitration Act (“DRAA”) which became effective on May 2, 2015. 10 Del. C. § 5801, et seq. On June 17, 2015, the Delaware Supreme…more

Arbitration, Delaware Rapid Arbitration Act

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Supreme Court Concludes that Violation of FCA Seal Provision Does Not Necessarily Mandate Dismissal of Qui Tam Suits

The Supreme Court held yesterday that a violation of the False Claims Act’s seal provision does not mandate dismissal of a relator’s complaint. Justice Kennedy authored the Court’s opinion in the unanimous 8-0 decision…more

Dismissals, False Claims Act (FCA), FEMA, Flood Insurance, Fraud

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Crowdfunding: A New Way for Montana Companies to Raise Money

A new exemption passed in the Montana 2015 legislative session will allow Montana companies to use crowdfunding to offer and sell securities in Montana beginning July 1, 2015. This exemption is subject to various limitations and…more

Crowdfunding, Financing, JOBS Act, SEC, Securities

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Recent Developments in China Bond Markets

Tapping the Euromarkets - A number of Chinese issuers have issued bonds in the European debt markets recently. To date in 2015, more than ten Chinese companies have issued in excess of €9 billion of Euro-denominated bonds,…more

Banks, Bonds, China, Corporate Bonds, Debt Market

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New Questions Raised by Judge Rakoff: Misuse of the ® Symbol and Literal Falsity Examined

Judge Rakoff is back at it in Classic Liquor Importers, Ltd. v. Spirits International, B.V. We previously blogged about the dangers inherent in sending a cease and desist letter without the concurrent appetite for litigation, a…more

Cease and Desist, False Advertising, Judge Rakoff, Lanham Act, Motion for Summary Judgment

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The Changing Landscape of the Fight Against Opioid and Heroin Addiction and the Availability of Naloxone

In recent months, the Obama administration and many health and pharmaceutical players at the state and local levels have focused their attention on the national opioid epidemic. Based on recent findings from the National Center…more

Drug & Alcohol Abuse, Legislative Agendas, Opioid, Pharmaceutical Industry, Pharmacies

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New Immigration Rule to Welcome Start-Up Foreign Entrepreneurs

Following up on President Obama’s proposal to acknowledge the global marketplace of ideas and leverage current immigration law to encourage entrepreneurship and economic growth, the U.S. Citizenship and Immigration Service…more

Entrepreneurs, Foreign Nationals, Global Marketplace, Proposed Regulation, USCIS

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Can an Enforcement Standard be Discerned from the SFC’s Case Against Moody’s?

The hearings have recently concluded in Moody’s appeal of the November 24, 2014 decision of Hong Kong Securities and Futures Commission (the “SFC”) to fine Moody’s HK$23 million for its release of a report applying a “red flag”…more

Credit Rating Agencies, Due Diligence, Emerging Markets, Enforcement Actions, Fairness Standard

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Construction Subcontractor Settles FCA Allegations for $2.8 Million

A recent settlement illustrates the broad reach of the FCA and the substantial liability that “mere retention” of an overpayment can impose on contractors several steps removed from a government contract. The dispute involved…more

Construction Contracts, Energy Projects, False Claims Act (FCA), Federal Contractors, Neither Admit Nor Deny Settlements

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LVL XIII and Louis Vuitton Go Toe-To-Toe Over Toe Plates

In a previous post, we discussed Louis Vuitton’s unsuccessful lawsuit against My Other Bag, Inc., in which the “parody defense” was a key issue. Louis Vuitton is making trademark law news again – this time as a…more

Counterclaims, Dismissals, Fashion Branding, Fashion Design, Louis Vuitton

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Iowa Supreme Court: So-Called “Shuttle Diplomacy” May Violate Open Meeting Law

This is the first part in a three part series exploring important changes to Iowa’s open meeting law. Iowa’s open meeting law seeks to ensure that the basis and reasoning for governmental decisions are easily accessible to…more

Agents, Board of Directors, Government Entities, IA Supreme Court, Open Meetings Act

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Court Halts DOL Rule Set To Extend Overtime To Millions on December 1

In an unexpected decision, on Tuesday, November 22nd, the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction against implementation of the Department of Labor’s (“DOL’s”)…more

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

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Minnesota Issues Revenue Notice Regarding Apportionment of Compensation Paid to Nonresident Corporate Board Members

On August 25, 2014, the Minnesota Department of Revenue released Revenue Notice 14-02, which provides an alternative method of apportioning compensation earned by certain corporate directors who are not residents of Minnesota…more

Apportionment, Board of Directors, Directors, Executive Compensation, Income Taxes

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Problems With the CFPB’s Argument: An Analysis of the D.C. Circuit Oral Arguments on Statute of Limitations

What began as a challenge to the Consumer Financial Protection Bureau’s (“CFPB”) $109 million enforcement ruling against the mortgage company PHH Corp. (“PHH”) for alleged violations of the Real Estate Settlement Procedures Act…more

Administrative Proceedings, CFPA, CFPB, Corporate Counsel, Enforcement Actions

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Is Music Sampling Back En Vogue?

The mere mention of Madonna conjures many images and associations: feminism, reinvention, Kabbala, the cone bra, and her many memorable performances. But today we have yet another thing to associate with the Material Girl: an…more

Copyright Infringement, Copyright Litigation, De Minimus Quantity Exemption, Digital Sampling, Madonna

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Iowa Supreme Court: So-Called “Shuttle Diplomacy” May Violate Open Meeting Law

This is the first part in a three part series exploring important changes to Iowa’s open meeting law. Iowa’s open meeting law seeks to ensure that the basis and reasoning for governmental decisions are easily accessible to…more

Agents, Board of Directors, Government Entities, IA Supreme Court, Open Meetings Act

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Originality in Remastering: CBS Secures Victory in War Over Rights to Play Oldies

CBS recently secured a potential landmark victory that could benefit radio stations, streaming services, and satellite radio providers—many of whom have been mired in litigation for years with owners of sound recordings of…more

CBS, Copyright, Copyright Infringement, Derivative Works, Music Industry

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Stark Law Updates in 2017 Medicare Physician Fee Schedule Final Rule

On November 2, the Centers for Medicare & Medicaid Services (CMS) finalized the 2017 Medicare Physician Fee Schedule (PFS) rule. This rule, which takes effect on January 1, 2017, updates payment policies and rates for services…more

CMS, Physician Fee Schedule, Stark Law

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Patent for Technology that “Revolutionized Prenatal Care” Nonetheless Invalid as Patent Ineligible

The Federal Circuit Friday held in Ariosa Diagnostics, Inc. v. Sequenom, Inc. that Sequenom’s patent directed toward its MaterniT21 test—involving methods of detecting and using cell-free fetal DNA— was invalid for lack of…more

Biotechnology, Diagnostic Method, Diagnostic Tests, DNA, Patent-Eligible Subject Matter

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Unexpected Post-Brexit IP Development: UK is to ratify the Unified Patent Court Agreement

On 28 November 2016, the UK Government made a surprising announcement at the meeting of the Competitiveness Council (an EU institution), stating that it intends to ratify the Unified Patent Court Agreement, marking its first…more

Article 50 Treaty of the EU, EU, Popular, UK, UK Brexit

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Release the Drones: New Small UAS Regulations Now in Effect in the U.S.

Commercial uses for drones, also known as unmanned aircraft systems (UAS), abound. From handling dangerous inspections to collecting soil and crop data for use in precision agriculture, drones can be extraordinarily helpful…more

Agricultural Sector, Commercial Use, Federal Aviation Administration (FAA), Part 107, Privacy Concerns

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SEC Proposes Amendments to Update and Simplify Disclosure Requirements

Overview - The Securities and Exchange Commission (the “SEC”) recently announced proposed amendments in order to update and simplify its disclosure requirements. The proposed amendments are intended to simplify compliance…more

Disclosure Requirements, FASB, Fixing America’s Surface Transportation Act (FAST Act), GAAP, IFRS

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Hong Kong - The Gold Standard of International Arbitration in Asia

According to the 2015 International Arbitration Survey conducted by Queen Mary University of London, Hong Kong is the third most preferred seat of international commercial arbitration in the world, behind only Paris and…more

Arbitration Awards, Hong Kong, International Arbitration, New York Convention, UNCITRAL

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SEC Clarifies Baby Shelf Rules

The Securities and Exchange Commission (“SEC”) recently issued a new compliance and disclosure interpretation (the “New C&DI”) in Question 116.25 regarding the availability of Form S-3 for the registration and sale of shares by…more

Form S-3, Public Disclosure, SEC, Shelf Registration, Stock Float

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What You Need to Know about CFPB’s Proposal to Ban Mandatory Arbitration Clauses in Financial Contracts

On May 5, 2016, the Consumer Financial Protection Bureau (the “CFPB”) published in the Federal Register its 376-page proposed rule to limit the use of mandatory arbitration clauses in certain financial contracts. The proposal…more

AT&T Mobility v Concepcion, CFPB, Class Action Arbitration Waivers, Comment Period, Consumer Financial Contracts

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The Law on Tribal Court Jurisdiction over Non-Members Stands with Supreme Court’s Tied Vote in Dollar General Corp. v. Mississippi Band of Choctaw Indians

John Doe, a teenage member of the Mississippi Band of Choctaw Indians, was working as an intern at a Dollar General store on the Tribe’s Reservation when he was sexually molested by the manager of the store. Doe sued Dollar…more

Dollar General Co v Mississippi Band of Choctaw Indians, Jurisdiction, Negligent Hiring, Negligent Supervision, SCOTUS

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Lumentum Holdings, Inc. v. Capella Photonics, Inc., Case IPR2015-00739 (Mar. 4, 2016) (Paper 38)

Takeaway: - The statutory provision that sets forth the requirement to identify all real parties-in-interest in an IPR petition, 35 U.S.C. §312(a)(2), is not jurisdictional in nature. Failing to comply with this…more

Inter Partes Review (IPR) Proceeding, Jurisdiction, Patent Litigation, Patent Trial and Appeal Board, Patents

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Now’s the Time to Review Compensation Arrangements Relating to Unvested Rights

Correction of Errors before Year End Could Avoid Costly 409A Penalties - Sometimes overlooked is the fact that many employment, severance and change-of-control agreements are subject to U.S. Internal Revenue Code Section…more

Change of Control, Deferred Compensation, Directors, Foreign Corporations, Foreign Entities

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Bankruptcy Court Opinion Clarifies California Law on Duties of Directors & Officers Upon Insolvency

It is not unusual in the lifecycle of a start-up for the company to hit road blocks and have cash flow issues. During these times, the board and its members will ask the company’s professionals what their fiduciary duties are…more

Bankruptcy Court, Board of Directors, Business Judgment Rule, Commercial Bankruptcy, Corporate Counsel

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Utah Legislature Expands Antidiscrimination Laws to Address LGBT and Religious Rights

Last night, the Utah House passed landmark legislation (the "Act") already approved by the Senate that modifies Utah's antidiscrimination and fair housing acts to provide protection for lesbian, gay, bisexual, and transgender…more

Adverse Employment Action, Anti-Discrimination Policies, Boy Scouts, Employee Handbooks, Employer Liability Issues

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A Matter of Protocol - Rules for Departing Brokers Trying to Solicit Former Clients

Question: We operate a financial services firm that employs account executives who execute investment trades on behalf of clients. One of our brokers recently resigned to move to a competitor firm…more

Brokers, Investment Adviser, Non-Solicitation Agreements, Restrictive Covenants

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The 9th Circuit Injects Some “Octane” into the Lanham Act Attorneys’ Fee Provision

In the immortal words of the most recent Nobel Laureate in literature, “the times they are a changin.’” Section 35(a) of the Lanham Act provides that “[t]he court in exceptional cases may award reasonable attorney fees to the…more

Abuse of Discretion, Attorney's Fees, Corporate Counsel, De Novo Standard of Review, Exceptional Case

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The Advantage of Crossover Refunding of Build America Bonds

Many governmental entities considering an advance refunding of their Build America Bonds (“BABs”) can achieve a better economic result by using a crossover refunding. While an advance “net” refunding typically results in a loss…more

Bonds, Build America Investment Initiative, Debt Restructuring, Escrow Accounts, Government Entities

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Minnesota Department of Revenue Publishes Revenue Notice Addressing Location of a Taxpayer’s Attorneys, Accountants, and Bank Accounts for Minnesota Income Tax Residency Test

On February 1, 2016, the Minnesota Department of Revenue (the “Department”) issued Revenue Notice # 16-01 (available here), in which the Department explains how it will view the location of a taxpayer’s attorneys, accountants,…more

Accountants, Bank Accounts, CPAs, Department of Revenue, Domicile

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IRS Publishes Final Guidance for Tax-Exempt Hospitals Regarding Section 501(r) Compliance

On December 29, 2014, the Internal Revenue Service (“IRS”) released final regulations pertaining to Section 501(r) of the Internal Revenue Code of 1986, as amended (the “Code”). The final regulations may be found here (“Final…more

CHNA, Final Rules, Healthcare, Hospitals, Internal Revenue Code (IRC)

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Settling Parties Beware: Failing to Provide Notice to Your Insurer Before Settling May Doom Your Chance of Recovery

On April 25, 2016, the Colorado Supreme Court issued a decision in Travelers Prop. Cas. Co. v. Stresscon Co. Stresscon, a subcontracting concrete company, entered into a settlement agreement – without providing notice to its…more

CO Supreme Court, Commercial General Liability Policies, Corporate Counsel, Insurance Industry, Notice Prejudice Rule

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California’s Latest Attack on Franchise Industry Goes Into Effect

A new California law (AB 525, effective January 1, 2016) makes it harder for franchisors to terminate defaulting franchisees, requires franchisors to buyout franchisees in some cases, and adds new burdens for evaluating…more

Buyback Programs, Franchise Agreements, Franchisee, Franchises, New Legislation

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Second Circuit Finds FCA Claims about Night-Vision Goggles Lack Sufficient Particularity

On Wednesday, May 25, 2016, the Second Circuit affirmed the district court’s decision to dismiss FCA claims alleging that defendants supplied $1.5 billion worth of deficient night-vision goggles to the U.S. military. United…more

False Claims Act (FCA), FRCP 9(b), Motion to Dismiss, Pleading Standards, Public Policy

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Trump University Files Motion to Compel Depositions of Allegedly Defrauded Consumers

On September 16, 2016, Trump University filed a motion to compel the New York State Attorney General to produce the names of the consumers who were allegedly defrauded by Trump University and to produce those witnesses to…more

Appeals, Depositions, Donald Trump, Motion to Compel, Statute of Limitations

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Court Upholds Prison for Flea Market Owner for Counterfeiting by Tenants

As trademark and copyright counterfeiting and piracy has grown, courts have become more willing to grant meaningful relief to rights owners and to penalize counterfeiters and those who facilitate their illicit activities. For…more

Aiding and Abetting, Convictions, Copyright Infringement, Counterfeiting, Criminal Conspiracy

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Quirky Question #270: A Win for Wellness Plans

Question: Our company offers employees a self-funded and self-insured health plan. We’d now like to implement a wellness program. Can we require employees to complete a health risk assessment which requests personal medical…more

ADA, Biometric Information, EEOC, Employer Group Health Plans, Medical Examinations

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Supreme Court Decides Two First Amendment Cases

Two recent Supreme Court decisions provide timely guidance on the First Amendment implications of publicly displaying the Confederate Flag or other symbols or signage related to protected beliefs. First, in Walker v. Sons of…more

Churches, Content-Neutral, First Amendment, Fourteenth Amendment, Government Speech Doctrine

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Minneapolis Sick and Safe Time Ordinance Compliance Guide

On May 27, 2016, the Minneapolis City Council passed its long awaited Sick and Safe Time Ordinance, requiring most employers with employees working in the City of Minneapolis to provide paid sick/safe time to those employees…more

Employee Rights, Local Ordinance, New Legislation, Notice Requirements, Paid Leave

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SEC Releases Long Awaited Rules on Regulation A+

On December 18, the Securities and Exchange Commission released their long-awaited proposed rules on Regulation A+. The proposed rules, which are intended to increase access to the capital markets for smaller issuers, were…more

Blue Sky Laws, JOBS Act, Preemption, Regulation A, Reporting Requirements

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3 Fundraising Mistakes Startup Entrepreneurs Make (and How to Avoid Them)

Some startups want to tout big fundraising numbers. Resist that urge. Focus on a smart valuation and return focus to the product…more

Business Formation, Fundraisers, Legal Perspectives, Startups, Venture Capital

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After the FACTA: A Judgment Creditor Must Establish a “Credit” Transaction to Get a Credit Report

On July 25, 2016, the United States District Court for the Western District of Washington held that before obtaining a consumer’s credit report, a third party judgment creditor must establish that the transaction at issue is a…more

CFPB, Credit Reports, Debt Collection, Experian, FACTA

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Hong Kong Securities Laws Violations: The SFC’s Extra-Territorial Reach – Part 2 (U.S. short-seller found culpable of market misconduct)

Hong Kong’s Market Misconduct Tribunal (the "MMT") has found U.S.-based Andrew Edward Left culpable of market misconduct in connection with his research report (“Left’s report”), published on June 21, 2012 on a U.S.-based…more

Enforcement Actions, Hong Kong, Hong Kong Securities and Futures Commission (HKSFC), Misleading Statements, SEC

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Hong Kong - The Gold Standard of International Arbitration in Asia

According to the 2015 International Arbitration Survey conducted by Queen Mary University of London, Hong Kong is the third most preferred seat of international commercial arbitration in the world, behind only Paris and…more

Arbitration Awards, Hong Kong, International Arbitration, New York Convention, UNCITRAL

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Can My Website Subject My Business to Liability Under the Americans With Disabilities Act (ADA)?

It may come as a surprise that the answer to the above question is yes, or so a number of plaintiffs claim in lawsuits that have been filed recently in the U.S. More specifically, in the U.S. District Court for the Western…more

ADA, Corporate Liability, Public Accommodation, Reasonable Accommodation, Website Accessibility

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SEC Approves NASDAQ Rule Requiring Disclosure of “Golden Leash” Arrangements

On July 1, 2016, the Securities and Exchange Commission approved a change to the NASDAQ Stock Market LLC’s Listing Rules that will require NASDAQ-listed companies to publicly disclose so-called “golden leash” arrangements…more

Board of Directors, Directors, Disclosure Requirements, Final Rules, Golden Leash Arrangements

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2014 Changes to the Minnesota Business Corporation Act

On April 25, 2014, Governor Mark Dayton signed House Bill H.F. No. 2190, which makes a number of changes to Chapter 302A of the Minnesota Statutes, the Minnesota Business Corporation Act (the “MBCA”). These changes will go into…more

Corporate Conversions, Corporations Code, Cross-Border, Dissenters Rights, Mergers

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Monumental Change Announced for Alaska Native Tribes—BIA will Allow Alaskan Land to be Taken into Trust

On December 19, 2014, the Bureau of Indian Affairs announced the promulgation of a final rule that will allow land to be taken into trust for federally-recognized tribes in Alaska. Allowing trust lands in Alaska is a seismic…more

Alaska, Bureau of Indian Affairs, Economic Development, Final Rules, Indian Tribal Trusts

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First Circuit Affirms Dismissal For CVS Caremark Under Public Disclosure Bar

The FCA’s public disclosure bar precludes liability when a relator’s allegations have been publicly disclosed in a list of statutorily enumerated sources. Last week, the First Circuit added to the growing jurisprudence both…more

Attorney Generals, Customer-Loyalty Programs, CVS, Exceptions, False Claims Act (FCA)

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As EPA Sets 2017 Renewable Fuel Volumes, Future Is Unclear

On Nov. 23, 2016, the Environmental Protection Agency (EPA) released its final 2017 volumes under the Renewable Fuel Standard (RFS), an ever-controversial program established by Congress to spur the development and use of…more

EPA, Renewable Fuel Standard

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Hart-Scott-Rodino Premerger Reporting Thresholds Increase

On January 26, the Federal Trade Commission published the annual adjustment of the thresholds that trigger premerger reporting obligations (and the mandatory waiting period) under the Hart-Scott Rodino (HSR) Act. The new…more

Filing Fees, FTC, Hart-Scott-Rodino Act, Interlocking Directorate, Pre-Merger Filing Requirements

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Related Party Transactions under PCAOB AS 18 Audits: Experiences from the First Year

The 2015 audit was the first one for most companies under the PCAOB’s Auditing Standard 18, Related Parties. This Auditing Standard created new and expanded audit procedures for related party transactions; significant unusual…more

Audits, Board of Directors, Corporate Officers, Financial Reporting, Financial Statements

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SEC Publishes Staff Interpretations on New Regulation A+

The Securities and Exchange Commission has published 11 Compliance and Disclosure Interpretations (“C&DIs”) related to the new rules implementing “Regulation A+,” which became effective June 19, 2015. The C&DIs are numbered…more

Blue Sky Laws, C&DIs, Capital Formation, New Regulations, Regulation A

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International Comity is Alive and Well: Second Circuit Defers to China’s Interpretation of Its Own Laws in Vacating Multimillion-Dollar Antitrust Judgment

Last week, the Second Circuit affirmed that U.S. courts should, and indeed must, defer to a foreign government’s interpretation of its own laws. That should hardly be a controversial proposition, but up until now, lower courts…more

Antitrust Provisions, Appeals, China, Comity, Exports

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SEC Issues Proposed Rules for Director, Officer and Employee Hedging Disclosures

On February 9, the Securities and Exchange Commission proposed rules to implement Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which requires annual meeting proxy statement disclosure of a…more

Annual Meeting, Dodd-Frank, Hedging, Proposed Regulation, Proxy Statements

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Trump University Files Motion to Compel Depositions of Allegedly Defrauded Consumers

On September 16, 2016, Trump University filed a motion to compel the New York State Attorney General to produce the names of the consumers who were allegedly defrauded by Trump University and to produce those witnesses to…more

Appeals, Depositions, Donald Trump, Motion to Compel, Statute of Limitations

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New Orleans Federal Court Dismisses Relators’ Improper Billing Claims against FEMA Temporary Housing Contractor Due to Insufficient Evidence

On September 14, 2016, the United States District Court for the Eastern District of Louisiana granted a government contractor’s summary judgment motion and dismissed a lawsuit brought against it by False Claims Act relators…more

Burden of Proof, False Claims Act (FCA), FEMA, Hurricane Katrina, Relators

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Fashion Retailer Zara Hit With Pricing Disclosure Lawsuit

Zara USA, Inc., the affiliate of the Spanish fashion retailer, has been hit with a class action lawsuit in federal court in California advancing a relatively simple and novel set of theories. Rose v. Zara USA, Inc. Plaintiff,…more

Class Action, Euro, Exchange Rates, Fashion Industry, Product Pricing

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Security Interest v. License Agreement: Low Tech Precautions for the High Tech Investment

In this exciting age of startups, the market is brimming with opportunities for individuals and entities alike to invest in emerging companies. Today’s rapid rate of technology development justifies investors’ eagerness to take…more

Chapter 11, Chapter 7, Commercial Bankruptcy, Counterparties, Debtors-in-Possession

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SEC Playing Bigger Role in Cybersecurity

Besides clarifying disclosure requirements,the agency is prompting companies to take proactive steps. Cybersecurity threats have reached a point where they cannot go ignored by any government agency, even the U.S…more

Cybersecurity, Data Protection, HITECH, Popular, SEC

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Quirky Question #286: Best Practices on Restroom Access and Terminology for Transgender Employees

Question: There has been a lot of news coverage lately on restroom policies related to transgender employees. Can you provide some guidance on how to structure our restroom-use policies to be both lawful and respectful of all…more

Anti-Discrimination Policies, EEOC, Employee Restrooms, Employer Liability Issues, Gender Identity

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District Court Rejects “Worthless Services” FCA Claim, Interprets First-to File Bar and Res Judicata in FCA Context

Earlier this month, the U.S. District Court for the Eastern District of Virginia dismissed a 2-count False Claims Act (FCA) complaint against Unisys Corporation. United States ex rel. Soodavar v. Unisys Corp., 2016 WL 1367163…more

Corporate Counsel, Dismissal With Prejudice, False Claims Act (FCA), First-to-File, Fraud

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Sample ADA Notice for Wellness Programs

The EEOC has published a sample notice intended to help employers comply with the notice requirement under the new Americans with Disabilities Act (ADA) final rule (published on May 17, 2016). The final rule requires employers…more

ADA, Biometric Information, EEOC, Employer Group Health Plans, Final Rules

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Can an Enforcement Standard be Discerned from the SFC’s Case Against Moody’s?

The hearings have recently concluded in Moody’s appeal of the November 24, 2014 decision of Hong Kong Securities and Futures Commission (the “SFC”) to fine Moody’s HK$23 million for its release of a report applying a “red flag”…more

Credit Rating Agencies, Due Diligence, Emerging Markets, Enforcement Actions, Fairness Standard

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SEC Issues Regulation A+ Rules; Increases Access to Capital Markets for Smaller Issuers

On March 25th, the Securities and Exchange Commission (the “SEC”) adopted new rules to amend Regulation A under the Securities Act of 1933, as amended (the “Securities Act”). The new rules, referred to as “Regulation A+,” were…more

Capital Formation, Emerging Growth Companies, IPO, JOBS Act, New Regulations

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“Is This The Party To Whom I Am Speaking?”: Third Circuit Okays TCPA Suit Against Bank Over Call Meant For Roommate

On March 11, 2005, Bank of America (“BofA”) attempted to call Genevieve Dutriaux at her home where she resided with a roommate, Mark Leyse. Dutriaux was the registered subscriber for the phone number that BofA dialed. The call…more

Appeals, Bank of America, Collateral Estoppel, Standing, TCPA

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Sound Marks in China

A sound mark can be registered in China since May 1, 2014. According to a draft Standard of Examination issued by the Chinese Trademark Office, a sound mark can consist of a musical or non-musical sound, or a combination of…more

China, Sound Marks, Trademark Registration

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Minneapolis Sick and Safe Time Ordinance Compliance Guide

On May 27, 2016, the Minneapolis City Council passed its long awaited Sick and Safe Time Ordinance, requiring most employers with employees working in the City of Minneapolis to provide paid sick/safe time to those employees…more

Employee Rights, Local Ordinance, New Legislation, Notice Requirements, Paid Leave

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Another Shoe Drops: More Changes to the U.S. Cuban Sanctions from the White House

On January 25, the Obama Administration made concurrent announcements about its evolving posture on the Cuban sanctions. On that date, the Office of Foreign Assets Control (OFAC) released more changes to the Cuban Assets…more

Cuba, Cuban Assets Control Regulations (CACR), EAR, Embargo, Exports

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Quirky Question #250, New York wage notice burdens lifted

Question: I am a New York employer and I have heard about some onerous requirements to furnish wage notices to all employees. Is this law taking effect soon?…more

Amended Legislation, Annual Notices, Employer Liability Issues, Wages

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CMS Issues Proposed Rule Addressing Off-Campus Outpatient Departments

The Centers for Medicare and Medicaid Services (CMS) published its 2017 Medicare Outpatient Prospective Payment System (OPPS) proposed rule on July 14, 2016 (the Proposed Rule). In part, the Proposed Rule addresses CMS’s…more

Alternative Payment Models (APM), Bipartisan Budget Act, CMS, Comment Period, Health Care Providers

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EEOC Releases Final Reporting Form for Compensation Data

The Equal Employment Opportunity Commission (“EEOC”) has finalized a reporting form that requires certain employers to report summary compensation data categorized by gender, race, and ethnicity. Beginning on March 31, 2018, and…more

Data Collection, EEO-1, EEOC, Reporting Requirements

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7 Intellectual Property Mistakes Startup Entrepreneurs Often Make

What’s the biggest mistake startup entrepreneurs make with respect to their intellectual property, and what can they do to fix it? That’s the question we recently put to IP attorneys writing on JD Supra, knowing that the…more

Business Formation, Copyright, First-to-File, Legal Perspectives, Patents

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Federal Circuit finds software patent for 3D animation technique patent eligible

McRO v. Bandai Namco Games America is the latest in a line of Federal Circuit cases to reverse a district court finding of patent ineligibility for software patents. See Bascom v. AT&T Mobility (2016) and Enfish v. Microsoft…more

CLS Bank v Alice Corp, Patent-Eligible Subject Matter, Popular, Section 101, Software

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DOJ and FTC Issue Antitrust Guidance for Human Resource Professionals

Everyone knows that price-fixing among sellers of competing products is illegal, but price-fixing by buyers can also violate the antitrust laws. That is true even in the market for buying services of employees, regardless of…more

Adobe, Antitrust Violations, DOJ, eBay, FTC

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“Nonbank” Lender Seeks Injunction Restraining CFPB Administrative Action

On May 9, 2016, Integrity Advance, LLC and its CEO James Carnes filed suit against the Consumer Financial Protection Bureau (“CFPB”) in United States District Court for the District of Columbia seeking to enjoin the CFPB from…more

Administrative Proceedings, CFPA, CFPB, Consumer Financial Contracts, EFTA

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Health Care Discrimination Litigation Gets a New Set of Teeth under the ACA: 2015 Litigation Review and Preview of 2016

Discrimination in health care was prohibited before the Affordable Care Act, but on a limited basis. Protected classes did not include sex; prohibitions excluded private physicians accepting Medicare Part B; and, most…more

Affordable Care Act, Disparate Impact, Disparate Treatment, Health Care Providers, Health Insurance

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The Law on Tribal Court Jurisdiction over Non-Members Stands with Supreme Court’s Tied Vote in Dollar General Corp. v. Mississippi Band of Choctaw Indians

John Doe, a teenage member of the Mississippi Band of Choctaw Indians, was working as an intern at a Dollar General store on the Tribe’s Reservation when he was sexually molested by the manager of the store. Doe sued Dollar…more

Dollar General Co v Mississippi Band of Choctaw Indians, Jurisdiction, Negligent Hiring, Negligent Supervision, SCOTUS

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Caribbean Cruise Line Resolves Class Action for Potentially the Highest TCPA Settlement in History

The four-year long saga of Aranda, et al. v. Caribbean Cruise Line, Inc., et al. looks like it will finally be coming to an end. The plaintiffs, which include approximately 1 million individuals who received calls from Caribbean…more

Class Action, Cruise Ships, Marketing, Settlement Agreements, TCPA

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It’s Final: The DOL Issues Final Rule Providing Paid Sick Leave For Employees of Federal Contractors

Federal contractors must provide their employees up to seven days of paid sick leave each year under a final rule published September 30, 2016, by the U.S. Department of Labor (“DOL”). The DOL estimates that the final rule will…more

DOL, Executive Orders, Federal Contractors, Final Rules, Paid Leave

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Is Marriage a “Material Connection”? The FTC Challenges an “Independent” Expert Based on Marital Status

Medical endorsements can be powerful selling tools for health care products. But if a medical professional has a connection to the company marketing the products that would be material to consumers in evaluating the credibility…more

Advertising, Corporate Counsel, Endorsements, Enforcement Actions, FTC

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Ultramercial: Software Patent Invalidated After Application of Alice, Patent Eligibility Becoming Threshold Question for Litigation

The Federal Circuit recently applied Alice Corp. v. CLS Bank to invalidate all claims of a patented method for advertising over the Internet in Ultramercial, Inc. v. Hulu, LLC (Fed. Cir. November 14, 2014). Like the Supreme…more

CLS Bank v Alice Corp, Online Advertisements, Patent Litigation, Patent-Eligible Subject Matter, Patents

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Second Circuit Deals Blow to Government’s Use of FIRREA as an Enforcement Tool

When does a breach of contract amount to fraud? Last week the Second Circuit answered this question and reversed a $1.27 billion judgment against Bank of America and a $1 million judgment against a former executive for their…more

Bank of America, Breach of Contract, Corporate Counsel, Countrywide, DOJ

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DOJ Files FCA Complaint Against Recipient of Grant Funding

The FCA began as a response to procurement fraud by military contractors during the Civil War. In the intervening years, its reach has extended and increasingly the government is using the FCA as a tool in the context of grant…more

Attorney Generals, Civil Monetary Penalty, Criminal Prosecution, DOJ, False Claims Act (FCA)

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Dawning of New Era in Trade Secrets Litigation

Both houses of Congress have now approved a bill (the Defend Trade Secrets Act) that would create a federal civil cause of action for trade secrets misappropriation—a sea change for claims previously subject only to state law. …more

Asset Seizure, Defend Trade Secrets Act (DTSA), Ex Parte, Intellectual Property Protection, Misappropriation

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Alice v. CLS Bank Applied Broadly by the Federal Circuit

On Friday, the Federal Circuit released its first opinion citing the Supreme Court’s June 2014 decision in Alice Corp. v. CLS Bank. This opinion is significant because it shows how the Federal Circuit intends to follow the clear…more

Alice Corporation, Bilski, CLS Bank v Alice Corp, Mayo v. Prometheus, Patent Litigation

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SEC Clarifies Baby Shelf Rules

The Securities and Exchange Commission (“SEC”) recently issued a new compliance and disclosure interpretation (the “New C&DI”) in Question 116.25 regarding the availability of Form S-3 for the registration and sale of shares by…more

Form S-3, Public Disclosure, SEC, Shelf Registration, Stock Float

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It Is Now Easier To Draft Class Action Waivers and Arbitration Agreements

Last week, the California Supreme Court provided additional guidance as to how to draft an enforceable arbitration agreement and how Courts should analyze whether mandatory arbitration provisions can be held unconscionable and…more

Arbitration, Arbitration Agreements, AT&T Mobility v Concepcion, CA Supreme Court, Car Dealerships

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Hong Kong Securities Laws Violations: The SFC’s Extra-Territorial Reach – Part 2 (U.S. short-seller found culpable of market misconduct)

Hong Kong’s Market Misconduct Tribunal (the "MMT") has found U.S.-based Andrew Edward Left culpable of market misconduct in connection with his research report (“Left’s report”), published on June 21, 2012 on a U.S.-based…more

Enforcement Actions, Hong Kong, Hong Kong Securities and Futures Commission (HKSFC), Misleading Statements, SEC

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Bankruptcy Court Opinion Clarifies California Law on Duties of Directors & Officers Upon Insolvency

It is not unusual in the lifecycle of a start-up for the company to hit road blocks and have cash flow issues. During these times, the board and its members will ask the company’s professionals what their fiduciary duties are…more

Bankruptcy Court, Board of Directors, Business Judgment Rule, Commercial Bankruptcy, Corporate Counsel

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IRS Publishes Final Guidance for Tax-Exempt Hospitals Regarding Section 501(r) Compliance

On December 29, 2014, the Internal Revenue Service (“IRS”) released final regulations pertaining to Section 501(r) of the Internal Revenue Code of 1986, as amended (the “Code”). The final regulations may be found here (“Final…more

CHNA, Final Rules, Healthcare, Hospitals, Internal Revenue Code (IRC)

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Likelihood of “Initial Interest” Confusion Powers The University of Houston to Preliminary Injunction Win in Law School Name Battle

On June 22, 2016, the South Texas College of Law announced that it was changing its name to Houston College of Law. This seems like a natural choice, as the school is based in Houston and is a stand-alone institution not…more

Educational Institutions, Likelihood of Confusion, Trademark Infringement

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Quirky Question #287: “Cat’s Paw” Claims – How could an employer violate antidiscrimination laws, even though the decision-making manager has no discriminatory bias at all?

Question: We just went through a five-person layoff, and one of the individuals laid off (an African American) has hired a lawyer and is threatening to sue for racial discrimination. I have enormous confidence in the fairness of…more

Cat's Paw, Corporate Management, Employer Liability Issues, Hiring & Firing, McDonnell Douglas Formula

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Can Trump Make the TCPA Great Again? A Highly-Speculative Look at the Future of the TCPA under a Trump Presidency

So the person that won the second-most votes in last-week’s presidential election will soon be our new commander-in-chief (isn’t the electoral college neat?) Now I like watching interest rates spike as much as the next guy,…more

Donald Trump, FCC, Free Speech, Separation of Powers, TCPA

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Ninth Circuit Finds “Gem-Shaped” USB Flash Drive Potentially Protectable Under the Copyright Act

The Sims is a popular series of video games in which players create virtual people called “Sims,” design these virtual peoples’ homes and neighborhoods, and help them navigate their in-game relationships, careers, and social…more

Copyright, Copyright Infringement, Derivative Works, Popular, Video Games

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China Supreme Court Has Spoken: Long Anticipated Decision on OEMs and Trademark Use

China has been the factory of the world for the past few decades. Countless foreign brand owners have taken advantage of the low-cost manufacturing environment and have flocked to the middle kingdom to source their goods – many…more

Brand, China, Exports, Intellectual Property Protection, International Trademark Protection

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Recent Developments in Proxy Access

As the 2017 proxy season begins to unfold, proxy access continues to be a focus of shareholder proposals. Last year, companies that had already adopted mainstream proxy access bylaws, or that were planning to put mainstream…more

Bylaws, Corporate Counsel, Corporate Governance, Proxy Access, Proxy Season

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2014 Amendments to the Delaware General Corporation Law

On July 15, 2014, Delaware Governor Jack Markell signed Delaware House Bill No. 329, which makes a number of noteworthy changes to the Delaware General Corporation Law. The 2014 amendments address: (1) mergers under DGCL Section…more

Corporate Governance, Delaware General Corporation Law, Proposed Amendments

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2015 Changes to the Minnesota Business Corporation Act

On August 1, 2015, House Bill H.F. No. 385, which was signed into law by Governor Mark Dayton in May 2015, will become effective. The new law streamlines the process for executing cross-entity and cross-border conversions under…more

Business Corporation Act, Corporate Conversions, Cross-Border, Governor Dayton, Limited Liability Company (LLC)

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The Advantage of Crossover Refunding of Build America Bonds

Many governmental entities considering an advance refunding of their Build America Bonds (“BABs”) can achieve a better economic result by using a crossover refunding. While an advance “net” refunding typically results in a loss…more

Bonds, Build America Investment Initiative, Debt Restructuring, Escrow Accounts, Government Entities

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Likelihood of “Initial Interest” Confusion Powers The University of Houston to Preliminary Injunction Win in Law School Name Battle

On June 22, 2016, the South Texas College of Law announced that it was changing its name to Houston College of Law. This seems like a natural choice, as the school is based in Houston and is a stand-alone institution not…more

Educational Institutions, Likelihood of Confusion, Trademark Infringement

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The U.S. Supreme Court’s Decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc.

In Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. ___, 2015 WL 2473449 (Jun. 25, 2015), the U.S. Supreme Court, in a 5-4 decision, held that disparate impact discrimination…more

ADEA, Affordable Housing, Discrimination, Disparate Impact, ECOA

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Supreme Court Rejection of Duty of Prudence Presumption—What Does it Mean for Retirement Plans?

On June 25, 2014, the Supreme Court, in a unanimous decision, ruled in Fifth Third Bancorp v. Dudenhoeffer that there is no “presumption” of prudence extended to fiduciaries of employer stock ownership plans (“ESOPs”) in their…more

ERISA, ESOP, Fiduciary Duty, FIfth Third Bancorp v Dudenhoeffer, Fifth Third Mortgage Company

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Ninth Circuit Raises The Bar For Plaintiffs Seeking Trademark Injunctions

The Ninth Circuit’s recent decision in Herb Reed Enterprises, LLC v. Florida Entertainment Management Inc. increases the burden on trademark plaintiffs seeking preliminary injunctions. The case is the first decision from a…more

eBay, Injunctions, Irreparable Harm, Trademarks

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Can Science be Copyrighted? You Might be Surprised…

Biotechnology. For many, the mere mention of the word stirs up a thought of people in white lab coats working in underground bunkers trying to create superhuman mutant weapons, with beakers of green goo bubbling in the…more

AMP v Myriad, Biotechnology, Copyright, Copyright Office, DNA

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The New AML Regulations and Their Impact on Banks—Increased Compliance for Lending Transactions with Legal Entities

On May 11, 2016, FinCEN published in the Federal Register its long-awaited anti-money laundering (“AML”) rules (the “Final Rules”) governing corporate entities doing business with banks and other financial institutions that are…more

Anti-Money Laundering, Banking Sector, Beneficial Owner,