Dorsey & Whitney LLP

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50 South Sixth Street
Suite 1500
Minneapolis, MN 55402-1498, United States
Phone: (612) 340-2600
Fax: (612) 340-2868
Areas of Practice
  • Alternative Dispute Resolution (ADR)
  • Antitrust & Trade Regulation
  • Appellate Practice
  • Art, Entertainment, & Sports Law
  • Bankruptcy
  • Class Action
  • Commercial Law & Contracts
  • Communications & Media Law
  • Construction Law
  • Criminal Law
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  • Environmental Law
  • Finance & Banking
  • Government
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  • Immigration Law
  • Indigenous Peoples
  • Insurance
  • Intellectual Property
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
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  • Products Liability
  • Professional Malpractice
  • Real Estate
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
  • Wills, Trusts, & Estate Planning
  • Zoning, Planning & Land Use
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Other U.S. Locations
  • Alaska
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Other Countries
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  • United Kingdom
Number of Attorneys
100+ Attorneys

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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SEC Endorses Use of Conditional Offers to Buy Shares in IPOs

The Securities and Exchange Commission (the “SEC”) recently issued a no-action letter to Morgan Stanley Smith Barney L.L.C. (“Morgan Stanley”) that will streamline the process for its wealth management clients to participate in…more

Conditional Offers, Initial Public Offerings, Investment Banks, Morgan Stanley, No-Action Letters

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Uber Hits a Bump in the Road with Its Self-Driving Technology with Alleged Trade Secret and Patent Violations

In February, Waymo LLC, formerly Google’s self-driving car development company, sued Uber Technologies, Inc. and others in federal court in San Francisco for, among other things, violations of the Defend Trade Secrets Act of…more

Arbitration Agreements, Defend Trade Secrets Act (DTSA), Driverless Cars, Google, Mandatory Arbitration Clauses

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District Court Stays Class Action in Favor of Arbitration

In Zambrana v. Pressler & Pessler LLP, the Southern District Court of New York stayed a putative class action against various creditors for alleged violations of the Fair Debt Collection Practices Act (FDCPA), referring the…more

Arbitration Agreements, Best Buy, Consumer Financial Contracts, Credit Cards, FDCPA

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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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A Long and Winding Road Ends for Resource Extraction Disclosure

On February 14, 2017, President Trump approved a joint resolution of Congress that disapproves the SEC’s rule requiring specific disclosures by resource extraction issuers, effectively repealing the rule. The rules required…more

Canada, Disclosure Requirements, Dodd-Frank, Energy Sector, Oil & Gas

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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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First Circuit Rejects Fraud-on-the-FDA Theory of FCA Liability

Affirming an earlier order handed down by the United States District Court for the District of Massachusetts, the First Circuit recently denied Plaintiff D’Agostino leave to amend his complaint, finding the proposed claims were…more

False Claims Act (FCA), False Statements, FDA Approval, Medical Devices, Motion to Amend

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Travel Alert

As expected, on January 27, 2017, President Donald Trump issued an Executive Order entitled “Protecting the Nation from Terrorist Attacks by Foreign Nationals”. In addition to temporarily suspending all refugees' admission…more

DHS, Executive Orders, Foreign Nationals, Green Cards, Immigration Procedures

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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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First Department Opens the Door a Bit Wider to “Disclosure-Only” Settlement Agreements in Class Action Cases

On February 2, 2017, the New York Supreme Court, Appellate Division, First Department, approved a “disclosure-only” settlement agreement in Gordon v. Verizon Communications, Inc., 2017 N.Y. App. Div. LEXIS 740 (1st Dep’t Feb. 2,…more

Disclosure-Based Settlements, Failure To Disclose, Fairness Standard, Fiduciary Duty, Shareholder Litigation

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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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General Counsel Permitted to Use Attorney-Client Privileged Information in Whistleblower Retaliation Case

In a recent case, Wadler v. Bio-Rad Laboratories, Inc. case number 3:15-cv-02356 (2016), the federal court in the Northern District of California ruled that the plaintiff and former general counsel of Bio-Rad Laboratories could…more

Attorney-Client Privilege, Bio-Rad Laboratories, Employer Liability Issues, FCPA, Jury Verdicts

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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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Stop The Tolling: Minnesota Supreme Court Rules That an Employee’s Internal Complaint Tolls the Statute of Limitations under the Minnesota Human Rights Act (MHRA)

Under the MHRA, employees have one year to bring a discrimination claim (by filing a Charge of Discrimination with the Minnesota Department of Human Rights or by going directly to court). In a little-used provision, the statute…more

Claims Limitations Period, Discrimination, Dispute Resolution, Human Resources Professionals, Medicines and Healthcare Products Regulatory Agency (MHRA)

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The Ninth Circuit Makes it Easier to Plead Text Message TCPA Cases

As many of you already know, Facebook recently obtained a dismissal of a text message case on the ground that the texts were not sent randomly but, instead, were directed to specific users. This case (Duguid) was only the most…more

ATDS, Corporate Counsel, Dismissals, Facebook, Pleading Standards

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Will forum shopping days, like holiday shopping days, soon come to an end?

It’s no secret that plaintiffs bringing patent litigation choose the forum carefully. Though the appellate review of patent litigation is centralized in one appellate court with limited jurisdiction – the Court of Appeals for…more

Forum Shopping, Patent Infringement, Patent Litigation, Personal Jurisdiction, Popular

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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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Gender Pay Gap Reporting for Companies with More Than 250 Employees in Great Britain

Beginning April 2017, companies with 250 or more employees in England, Wales and Scotland on April 5th should be aware of a requirement to begin publishing annually on their own website and on a government website the following…more

Bonuses, Compensation Standards, Pay Gap, Public Disclosure, UK

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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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Federal Appeals Court Takes a Stand, Holding that Title VII Prohibits Discrimination on the Basis of Sexual Orientation

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex. For decades, federal courts across the country have consistently held that “sex” does not include “sexual…more

Employer Liability Issues, Gender Discrimination, LGBT, Sexual Orientation Discrimination, Split of Authority

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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 Announces Drug Pricing and Reimbursement Web Portfolio

On February 17, 2017 the Office of the Inspector General (OIG) posted a Drug Pricing and Reimbursement Web portfolio on its website that, according to the OIG announcement, “pulls together the HHS OIG’s body of work since 2010…more

Drug Pricing, HHS, Medicaid, 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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Sis Boom Bah – Supreme Court Extends Copyright Protection to Cheerleading Uniform Designs

In a decision announced today, the Supreme Court held that Varsity Brands is entitled to assert copyright protection in two-dimensional designs featured on its cheerleading uniforms. These designs consist of various lines,…more

Cheerleaders, Copyright Infringement, Fashion Design, SCOTUS, Sports Apparel

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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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Don’t Get Hooked! W-2 Phishing Scams on the Rise During Tax Season

Tax season can be a trying time of the year for any employer, but even more so now. As HR Departments across the country are working hard to distribute W-2 forms to employees, cybercriminals are using increasingly sophisticated…more

Email, Human Resources Professionals, IRS, Personally Identifiable Information, Phishing Scams

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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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UK Real Estate Aims for a “World’s First”

The Government has published a consultation document, proposing the introduction of a public register that details the identity of the ultimate owners behind foreign companies that purchase real estate in the UK. It is said that…more

Beneficial Owner, Commercial Real Estate Market, Consultation, Foreign Investment, Person of Significant Control (PSC Register)

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Of Klingons and Copyrights: Trekkie Fan Film Hits Fair Use Flameout

A Star-Trek fan-film is boldly headed to a jury trial to determine whether Axanar Productions—the company behind the fan-film—is liable for copyright infringement. Paramount Pictures and CBS Studios sued Axanar Productions in…more

CBS, Copyright Infringement, Fair Use, Paramount Pictures, Star Trek

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Frozen Until March 21: The USPTO’s New Evidence Requirements to Clear “Deadwood” From The Federal Trademark Register

President Trump’s deep freeze of regulatory actions has delayed the effective date of new rules issued by the United States Patent and Trademark Office (USPTO) to assess and promote the accuracy of the trademark…more

Federal Trademark Register, Trademark Act, Trademark Registration, Trademarks, USPTO

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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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Trump Administration’s Position on Transgender Rights Not Likely To Impact Employers

President Trump’s administration rescinded the Obama administration’s directive that allowed transgender public school students to use the bathroom matching their gender identity and also declared that discrimination against…more

EEOC, Obama Administration, Sexual Orientation Discrimination, Title IX, Transgender

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CMS Proposes Affordable Care Act Exchange, Individual, and Small Group Insurance Market Changes

Not relying on Congress to take action on the Affordable Care Act, the Centers for Medicare and Medicaid Services (“CMS”) has proposed new regulations intended to attract health insurance issuers back into ACA health insurance…more

Affordable Care Act, CMS, Health Insurance, Health Insurance Exchanges, Insurance Risk Pool

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Improper Assignment of THE EMERALD CITY Mark – Registration Cancelled in Toto

Assignment of an intent-to-use trademark application can be fraught with risk. To deter “trafficking” in ITU applications, Section 10 of the Lanham Act prohibits the assignment of an ITU application before an amendment to allege…more

Intent-to-Use, IP Assignment Agreements, Lanham Act, Trademark Application, Trademark Opposition Proceedings

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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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U.S. Supreme Court Agrees To Hear Securities Fraud Omissions Case

The U.S. Supreme Court will resolve a critical question governing the scope of liability in securities fraud cases which has split the circuit courts to date. The case, Leidos Inc. v. Indiana Public Retirement System, No…more

Disclosure Requirements, Failure To State A Claim, Kickbacks, Leidos Inc v Indiana Public Retirement System, Money Laundering

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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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Stop The Tolling: Minnesota Supreme Court Rules That an Employee’s Internal Complaint Tolls the Statute of Limitations under the Minnesota Human Rights Act (MHRA)

Under the MHRA, employees have one year to bring a discrimination claim (by filing a Charge of Discrimination with the Minnesota Department of Human Rights or by going directly to court). In a little-used provision, the statute…more

Claims Limitations Period, Discrimination, Dispute Resolution, Human Resources Professionals, Medicines and Healthcare Products Regulatory Agency (MHRA)

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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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SEC Issues No Action Letter Regarding Canadian Companies’ Registration of Rights Offerings on MJDS Form F-7

In December 2015, the Canadian Securities Administrators (CSA) announced an amended regime for a prospectus-exempt rights offering in Canada. This amended regime allows certain public companies in Canada to conduct a…more

Canada, Canadian Securities Administration, Corporate Issuers, Cross-Border Transactions, Disclosure Requirements

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Trump Administration’s First Major Statement On Foreign Trade Affects Agriculture

On March 1, 2017, President Donald Trump released his first major policy statement on U.S. foreign trade relations. Issued through the Office of the U.S. Trade Representative (“USTR”), a part of the Executive Office of the…more

Agricultural Sector, America First Trade Policy, NAFTA, Trans-Pacific Partnership, Trump Administration

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U.S. Supreme Court Grants Certiorari To Evaluate Class Waivers Under the National Labor Relations Act

The U.S. Supreme Court decided today to consider related cases addressing whether arbitration agreements containing class action waivers violate employee rights under the National Labor Relations Act (“NLRA”). The National…more

Certiorari, Class Action Arbitration Waivers, Collective Actions, Ernst & Young, Murphy Oil USA

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The Supreme Court - April 26, 2017

Lewis v. Clarke, No. 15-1500: Petitioners Brian and Michelle Lewis were involved in an automobile accident with a limousine transporting patrons of the Mohegan Sun Casino, a casino operated by the Mohegan Tribal Gaming…more

Car Accident, Indemnification Clauses, Real Party in Interest, SCOTUS, Sovereign Immunity

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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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Northern District of Illinois Dismisses Whistleblower’s FCA Suit for Failing to Connect Allegations of Misconduct with Submission of False Claims

In United States ex rel. Keen v. Teva Pharmaceuticals USA, Inc., relator Janice Keen sued her former employer—the pharmaceutical company Teva—for violations of the FCA. According to Ms. Keen, Teva trained its sales force to…more

Dismissals, False Advertising, False Claims Act (FCA), Pharmaceutical Industry, Pharmacies

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Who Owns That Trademark - The Manufacturer or the Exclusive Distributor?

The Court of Appeals for the Third Circuit, with a ringing endorsement of Prof. McCarthy’s trademark law treatise, issued a precedential opinion last week on the issue of whether a trademark is owned by the manufacturer or its…more

Distributors, Foreign Trademark, Manufacturers, Trademarks, USPTO

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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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When a Regulation is Like “a ‘Mongrel’ – With No Offense to Dogs”

It’s not every day that a federal court describes a regulation as “a ‘mongrel’ – with no offense to dogs.” But last week, that’s how a federal court characterized a Federal Communications Commission (FCC) regulation on the…more

Auto-Dialed Calls, FCC, Robocalling, TCPA, Text Messages

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Phish Snared in Trademark Office’s Net Due to Phan Products

Ask any fan of the American improvisatory rock band Phish to explain the significance of the following pattern and you will invariably receive the same answer:         It’s of course the pattern of drummer Jon Fishman’s…more

Corporate Branding, Music Industry, Trademark Registration, USPTO, Young Lawyers

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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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CMS Issues New SRDP Forms

The Centers for Medicare and Medicaid Services (“CMS”) issued new Self-Referral Disclosure Protocol (“SRDP”) forms, and, beginning June 1, 2017, these SRDP forms will be mandatory for those parties submitting voluntary…more

CMS, Health Care Providers, Physicians, Provider Self-Disclosure Protocol, Stark Law

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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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Common Compliance Issues for Investment Advisers

On February 7, 2017, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) published a Risk Alert listing the five most frequent compliance topics identified on investment adviser examinations completed within the…more

Chief Compliance Officers, Investment Adviser, OCIE, Risk Alert, 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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Bankruptcy Dispute Regarding “Coolcore” Trademark Heats Up in the First Circuit

In December 2015, the TMCA blogged about a decision in In re Tempnology, LLC, in which the Bankruptcy Court for the District of New Hampshire held that a debtor’s rejection of a licensing agreement in bankruptcy terminated the…more

Appeals, Bankruptcy Court, Commercial Bankruptcy, Contract Drafting, Executory Contracts

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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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Student Loan Creditor Off the Hook for Third Party Collectors’ TCPA Violations, But is Not Exempt for Collecting Government Backed Debts

A District Court in the Southern District of California recently cut loose a student loan creditor entangled in a Telephone Consumer Protection Act (TCPA) lawsuit, finding the defendant was not vicariously liable for the alleged…more

Corporate Counsel, Debt Collection, Government-Guaranteed Loans, Navient, Student Loans

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Damages: The Dark Side of Having Employees in the United States

Canadian employment law is, in many ways, far more employee favorable than U.S. employment law. With the exception of a few states, employment in the United States is “at-will.”…more

Calculation of Damages, Canada, Employer Liability Issues, Multinationals

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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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Investment Banker Charged with Insider Trading by SEC, USAO

Investment banker Avaneesh Krishnamoorthy was supposed to report his outside brokerage account and that of his wife to his firm. He did not…more

Attorney Generals, Criminal Prosecution, Enforcement Actions, FINRA, Insider Trading

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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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German Copyright Law Sets Limitations on Exclusive Licenses

The German parliament adopted a series of amendments to copyright law designed to protect authors of copyright works (“authors”) against the perceived superior bargaining power of the copyright industry. The new rules introduced…more

Copyright, Germany, IP License, New Regulations, Royalties

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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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Compliance with XBRL for Foreign Private Issuers that Prepare their Financial Statements in Accordance with IFRS Required Beginning with Annual Reports for Fiscal Periods Ending on or after December 15, 2017

On March 1, 2017, the United States Securities and Exchange Commission (SEC) published the taxonomy for the eXtensible Business Reporting Language (XBRL) for financial statements prepared in accordance with International…more

Foreign Private Issuers, IFRS, Regulation S-T, Reporting Requirements, SEC

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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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What do Raging Bull and Adult Diapers Have in Common?

Apparently, quite a bit according to the Supreme Court. The Supreme Court has dipped its toe into the waters of intellectual property law again and has decided to overturn 150 years or more of common law precedent in its…more

Damages, Equitable Estoppel, Laches, Patent Infringement, Petrella v. MGM

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Virtual Care Realities: Launching a Telehealth Initiative – Key Questions a Provider Should Address to Ensure Impact

Author’s note: Dorsey Health Strategies (DHS), a healthcare business consultancy founded by Dorsey & Whitney, offers a comprehensive array of business advisory and regulatory services to health industry clients; accordingly, DHS…more

Health Care Providers, Telehealth, Telemedicine

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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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First Department Opens the Door a Bit Wider to “Disclosure-Only” Settlement Agreements in Class Action Cases

On February 2, 2017, the New York Supreme Court, Appellate Division, First Department, approved a “disclosure-only” settlement agreement in Gordon v. Verizon Communications, Inc., 2017 N.Y. App. Div. LEXIS 740 (1st Dep’t Feb. 2,…more

Disclosure-Based Settlements, Failure To Disclose, Fairness Standard, Fiduciary Duty, Shareholder Litigation

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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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The House Financial Services Committee to Hold a Hearing on Financial CHOICE Act 2.0 this Wednesday – Here’s a Summary of Governance and Executive Compensation Provisions

While passage in the House seems likely, the Financial Choice Act may undergo significant changes before it may pass in the Senate. Here is a summary of certain governance and executive compensation provisions that are included…more

Congressional Investigations & Hearings, Corporate Governance, Executive Compensation, Pay Ratio, Proxy Advisors

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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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When Will a Canadian Corporation be Treated as a Passive Foreign Investment Company?

A Canadian corporation will generally be a passive foreign investment company or “PFIC” if, for a tax year, (a) 75% or more of its gross income is passive income (the “PFIC income test”) or (b) 50% or more of the value of its…more

Canada, Internal Revenue Code (IRC), Passive Foreign Investment Company

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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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Dear Fashion Santa, Let Me Explain…

We only want one thing for Christmas this year: clear and unambiguous terms for ownership of intellectual property. We know you’ll understand after the year you’ve been having…more

Canada, Contract Negotiations, Copyright Registration, Fashion Branding, Trademark Application

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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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Court Enforces CFPB Civil Investigative Demand Against Tribal Lending Entity; Rejects Argument that Tribal Sovereignty Precludes Such Demands

On January 20, 2017, in CFPB v. Great Plains Lending, a three-judge panel of the Ninth Circuit Court of Appeals upheld the Consumer Financial Protection Bureau’s civil investigative demands for documents from lending companies…more

CFPB, Dodd-Frank, EFTA, Enforcement Authority, Gramm-Leach-Blilely Act

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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