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Limitation Periods for Antitrust Damages Actions in The European Union

The last decade or so has seen a marked increase in antitrust damages actions brought before the national courts of the EU Member States. As things currently stand, such actions are governed by the various national laws of the…more

Antitrust Litigation, EU, EU Directive, Statute of Limitations

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Section 752 Proposed Regulations Regarding Partnership Recourse Liabilities and Rules for Related Persons

On December 13, 2013, the Internal Revenue Service and U.S. Department of the Treasury issued proposed regulations under Section 752 regarding recourse liabilities of a partnership and the special rules for related persons…more

IRS, Partnerships, Proposed Regulation, Risk of Loss, U.S. Treasury

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International News: Focus on Mining and Metals

In This Issue: - Features ..Investors in Africa Benefit from Regional Trading Blocs ..Understanding the COMESA Merger Control Regime ..Protecting Your UK Business Against Departing…more

Africa, Brand, China, Coal, COMESA

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Developments Impacting Benefits for Same-Sex Spouses

As federal and state agencies and courts further examine the implications of the Supreme Court of the United States’ ruling on same-sex marriage in U.S. v. Windsor, the laws and regulations governing employee benefits for…more

DOMA, Employee Benefits, Employee Rights, Employer Liability Issues, ERISA

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1782 Discovery Applications Now Permitted in a ‘Reasonably Contemplated’ Foreign Judicial Proceeding

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a decision by the Southern District of Florida that substantially expanded a litigant’s ability to obtain discovery in aid of a foreign proceeding. The…more

28 U.S.C. §1782, Discovery, Foreign Corporations, Foreign Jurisdictions

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Pre-AIA Statute Did Not Give Patent Owner in an Ex Parte Reexamination the Right to Bring an Action in District Court

In re Teles AG Informationstechnologien - Addressing whether a patent owner involved in a pre-America Invents Act (AIA) ex parte reexamination, could challenge an adverse reexamination decision in a district court action…more

Appeals, Claim Construction, Ex Partes Reexamination, Obviousness, Patent Litigation

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Ensuring Timely Filing with Private Delivery Services

Most of us are aware of the timely-mailed-timely-filed “mailbox rule” contained within the Internal Revenue Code. Most of us are probably also aware that a document mailed with a private delivery service may also qualify for…more

DHL, Electronic Filing, FedEx, IRC, IRS

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Costs Sanctions For Failing to Respond to an Offer to Mediate: A Warning to Litigants in the UK

A recent UK Court of Appeal judgment demonstrates a clear and unequivocal endorsement of mediation and makes clear that a party who refuses to acknowledge or engage in an invitation to participate in mediation can face…more

Mediation, UK

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Claim Scope Based on Claim Construction Submitted in IDS

Golden Bridge Tech., Inc. v. Apple Inc. - Addressing the doctrine of prosecution disclaimer, the U.S. Court of Appeals for the Federal Circuit affirmed a district court’s summary judgment of non-infringement, finding that…more

Apple, Information Disclosure Statement, Patent Infringement, Patent Litigation, Patents

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FTC Updates Guidelines for Making Proper Disclosures in Digital Advertising

The U.S. Federal Trade Commission (FTC) released updated guidance on how to make online advertising and marketing disclosures “clear and conspicuous” to avoid consumer deception. The guidelines affect the structure and format…more

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Plaintiff Lacks Standing to Enforce Patent When Co-Owner Refuses to Participate in Litigation

STC.UNM v. Intel Corp. - Addressing whether standing and joinder are matters dictated by substantive patent law or by Federal Rule of Civil Procedure 19(a), the U.S. Court of Appeals for the Federal Circuit affirmed a…more

Patent Infringement, Patent Litigation, Patent Ownership, Patents, Standing

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Mexican Energy Reforms Bring E&P Opportunities and Much More

Last week the Mexican Congress approved legislation including Constitutional amendments that were approved by the required number of Mexican states on December 16 that will bring changes to the nation’s energy laws that…more

Energy, Energy Reform, Mexico, Oil & Gas

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French Supreme Administrative Court Rules on the Procedure for Returning Artworks Looted by the Nazis

After World War II, works of art suspected of having been stolen by the Nazis were listed on a special registry called the Musées Nationaux Récupération (MNR registry), and stored in French museums until they could be returned…more

Art, EU, Museums, Theft

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IP Update, Vol. 16, No. 7, July 2013

“Reverse Payment” Settlements Face Greater Antitrust Scrutiny Following U.S. Supreme Court Ruling in FTC v. Actavis: Federal Trade Commission v. Actavis, Inc. - Resolving a split among the U.S. Courts of Appeals, the U.S…more

Advertising, ANDA, Antitrust Investigations, Arbitration Agreements, Claims Limitations Period

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IP Update, Vol. 16, No. 7, July 2013

“Reverse Payment” Settlements Face Greater Antitrust Scrutiny Following U.S. Supreme Court Ruling in FTC v. Actavis: Federal Trade Commission v. Actavis, Inc. - Resolving a split among the U.S. Courts of Appeals, the U.S…more

Advertising, ANDA, Antitrust Investigations, Arbitration Agreements, Claims Limitations Period

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Proposed Ban on Non-Competes in Massachusetts

Proposed legislation introduced by Governor Patrick to eliminate most forms of non-competition agreement in Massachusetts may be enacted before July 31, 2014. This legislation creates significant risks for employers with…more

Employment Contract, Employment Policies, Equity Compensation, Hiring & Firing, Incentive Compensation

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Non-Direct Competitors May Sue Under the Lanham Act, Doctrine of Prudential Standing Eliminated

The Supreme Court of the United States swept away the different standards for Lanham Act prudential standing previously applied by the courts of appeals, and expressly discarded the amorphous concept of prudential standing in…more

Corporate Counsel, False Advertising, Lanham Act, Lexmark, Lexmark v Static Control Components

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MTC’s Market-Based Sourcing Recommendations for UDITPA: Too Little, Too Late?

Member states of the Multistate Tax Commission (MTC) voted to adopt proposed amendments to Article IV of the Multistate Tax Compact during their annual meeting in late July. The proposed amendments likely to have the most…more

Income Taxes, Multistate Tax Commission, State Taxes, UDITPA

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Exemptions for Energy Intensive Companies From Renewable Energy Surcharges: Commission Opens In-Depth State Aid Investigation Against France

The European Commission has opened an in-depth State aid investigation into a French scheme, under which energy intensive companies are exempted from renewable energy surcharges. The decision to open the formal investigation…more

Energy, Energy Policy, EU, Renewable Energy

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EPA Proposes to Eliminate Affirmative Defenses for Many Clean Air Act Violations

The U.S. Environmental Protection Agency (EPA) issued a proposed rule on September 5, 2014 that would prevent states from including affirmative defenses in their Clean Air Act state implementation plans (SIPs) for emissions…more

Affirmative Defenses, Clean Air Act, EPA, Proposed Regulation, Sierra Club

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Guidance on Personal Data Used in Advertising in Germany

German data protection authorities published new guidelines in December 2013 about the collection and processing of personal data for advertising purposes. The 2013 advertising guidelines (available here in German) supplement…more

Advertising, Data Protection, EU, Personally Identifiable Information

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Camp Tax Reform Proposal Could Impact Executive Compensation

On February 26, 2014, U.S. House of Representatives Committee on Ways and Means Chairman Dave Camp (R-MI) released the proposed Tax Reform Act of 2014 (the Camp Proposal), which would simplify the Internal Revenue Code and…more

Corporate Taxes, Deferred Compensation, Executive Compensation, IRS, Tax Reform

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IRS Releases Draft Revised Form 5300 and Instructions

The Internal Revenue Service (IRS) recently released a draft revised Form 5300 and its instructions. Form 5300, the Application for Determination for Employee Benefit Plan, is generally used to request an IRS determination that…more

Employee Benefits, IRS, Retirement, Section 401, Section 501

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Federal Circuit Sidesteps Constitutionality of AIA First-to-File Provision

MadStad Eng’g, Inc. v. USPTO - The U.S. Court of Appeals for the Federal Circuit faced an issue of first impression when a named inventor on three patents challenged the first-inventor-to-file provision of the America…more

America Invents Act, Appeals, Federal Jurisdiction, First-to-File, Inventors

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Know Your Objections: Notices, Motions and Discussions with the PTAB

ABB, Inc. v. ROY-G-BIV Corp. - In a final written decision, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) commented that evidence can only be excluded by properly serving a notice and filing…more

Patent Infringement, Patent Litigation, Patent Trial and Appeal Board, Patents

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New EU Competition Commissioner Magrethe Vestager to Take Office in November, Pending Approval

In an announcement made on 10 September 2014, the President-elect of the next European Commission, Jean-Claude Juncker from Luxemburg, unveiled his team and announced that Magrethe Vestager from Denmark will replace Joaquin…more

Administrative Appointments, EU, European Commission, Political Appointments

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Did France Really Ban Work E-Mails After 6 p.m.?

Several international news sources recently reported that French law now prevents employees from answering their mobile phones or professional e-mails after 6.00 pm (see articles in the Guardian and USA Today, among others). The…more

CBAs, Email Policies, Employment Contract, France, Mobile Devices

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Lawmakers Reach Deal to End Government Shutdown, Raise Debt Ceiling

While the focus over the past 16 days has been on the shuttered government and the prospect of the United States defaulting on its debt obligations, there are subtexts that are relevant to the health care industry. This On the…more

Affordable Care Act, CMS, Debt Ceiling, Federal Budget, Government Shutdown

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New California LLC Law Requires Members To Reconsider Their Operating Agreement

On January 1, 2014, California limited liability company (LLC) law changes in several respects. Unlike other new laws regulating business entities, the new LLC law does not give existing LLCs a choice as to whether to be…more

Consent, Corporate Governance, Fiduciary Duty, LLC, Managers

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The New Normal: Big Data Comes of Age

On May 1, 2014, the White House released two reports addressing the public policy implications of the proliferation of big data. The first report is by the Executive Office of the President, entitled “Big Data: Seizing…more

Barack Obama, Big Data, Data Breach, Data Protection, ECPA

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Focus on Private Equity - July 2014

In This Issue: - Latin American Private Equity on the Rise - Tax Considerations When Acquiring Non-U.S. Portfolio Companies—Mitigating Subpart F Inclusions - Private Equity Funds at Higher Risk of Antitrust…more

Antitrust Investigations, International Tax Issues, Latin America, Private Equity, Subpart F

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New Developments in The UK Shale Gas Sector

The shale gas sector in the United Kingdom is still in its infancy, but the UK Government has announced recently new measures and incentives to encourage its growth. On 13 December 2012, the Government lifted a temporary…more

Fracking, Oil & Gas, Shale Gas

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DOJ Makes Headway in Fight Against Financial Fraud

On August 18, 2014, following a Department of Justice (DOJ) investigation and criminal indictment, Paul Robson became the second former Rabobank employee to plead guilty for his participation in a scheme to manipulate the…more

Criminal Prosecution, Currency Manipulation, DOJ, Libor, Rabobank

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Illinois Enacts Legislation Imposing a Self-Procurement Tax While Also Narrowing the Industrial Insured Exception for Transacting Nonadmitted Insurance

Illinois will soon begin taxing self-procured insurance premiums for the first time, as required by Senate Bill 3324, now Public Act 98-0978 (the Act). The Act, which was signed into law by Governor Quinn on August 15, was…more

Business Taxes, Corporate Taxes, State Taxes, Tax Exemptions, Tax Reform

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IP Update, Vol. 16, No. 11, November 2013

Appellate Decision Sets Stage for Next Skirmish In The Apple vs. Samsung Smart Phone Wars - A unanimous panel of the U.S. Court of Appeals for the Federal Circuit has concluded that the district court was within its…more

Apple, Apple v Samsung, Fresenius, Patent Infringement, Patent Litigation

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Supreme Court Rejects “Presumption of Prudence,” Adopts New Pleading Standards in Fifth Third Bancorp v. Dudenhoeffer

The Supreme Court of the United States has issued its highly anticipated decision in Fifth Third Bancorp v. Dudenhoeffer, No. 12-751. In an opinion written by Justice Breyer for a unanimous court, the Supreme Court held that..…more

Duty of Prudence, Employee Benefits, ERISA, ESOP, FIfth Third Bancorp v Dudenhoeffer

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What Do We Do Now that the World Didn’t End in 2012?

The countdown to the launch of the new generic top-level domains, or gTLDs, and the surrounding uncertainty about whether the potential commercial benefits will outweigh the perceived burdens, has begun. Is your company ready?…more

Domain Names, gTLD, Trademarks

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Proposed Ban on Non-Competes in Massachusetts

Proposed legislation introduced by Governor Patrick to eliminate most forms of non-competition agreement in Massachusetts may be enacted before July 31, 2014. This legislation creates significant risks for employers with…more

Employment Contract, Employment Policies, Equity Compensation, Hiring & Firing, Incentive Compensation

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French 3 Per Cent Tax on Distributions: French Subsidiaries of Foreign Companies Should Consider Claiming a Refund

Scope of The 3 Per Cent Tax - The 3 per cent tax is levied on dividend distributions and/or deemed dividend distributions by French companies, French permanent establishments and other French entities that are liable for…more

EU, Foreign Corporations, Foreign Subsidiaries, Subsidiaries, Tax Refunds

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Inside M&A - Summer 2013

A Closer Look at Leveraged Dividend Recapitalizations - With merger and acquisition activity down over the course of 2012 into 2013, and a weak market for initial public offerings (IPOs), many private equity firms have…more

Bridge Loans, Collateralized Loan Obligations, Debtors, Dividends, Financing

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Have Employees In New York City? Earned Sick Time Act Requires Notice by TODAY, May 1

New York City’s Earned Sick Time Act (Act) requires all Covered Employers to provide all Covered Employees with written notice of the new law by today, May 1, 2014…more

Employee Rights, Paid Leave, Sick Leave

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Perspectives from the Federal Antitrust Enforcement Agencies

The Antitrust in Health Care conference took place May 13 to 14, 2014, in Arlington, Virginia, where a number of the speakers were representatives of the Federal Trade Commission (FTC) or the Antitrust Division of the U.S…more

ABA, Affordable Care Act, Competition, DOJ, FTC

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Better Describe Trade Secret If You Want to Protect It

New Castle Beverage, Inc. v. Spicy Beer Mix, Inc. - In an unpublished opinion, the Court of Appeal of the State of California’s Second Appellate District affirmed the lower court’s denial of a preliminary injunction for…more

Appeals, Former Employee, Misappropriation, Non-Disclosure Agreement, Preliminary Injunctions

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OCR Issues Final Modifications to the HIPAA Privacy, Security, Breach Notification and Enforcement Rules to Implement the HITECH Act

On January 25, 2013, the Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) published a final rule (Final Rule) containing modifications to the privacy standards (Privacy Rule), security…more

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

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Insights for Driving Value Through Operational Performance of Private Equity Investments

The 13th annual Beecken Petty O’Keefe & Company Private Equity Conference took place on Friday, February 21st. McDermott, a lead sponsor of the event, hosted a panel of leading, mid-market private equity (PE) funds to discuss…more

Private Equity Funds

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Secret Practice of a Russian Invention on U.S. Soil Invalidates a Patent - Solvay, S.A. v Honeywell International

Affirming the federal district court, the U. S. Court of Appeals for the Federal Circuit concluded that a claim was invalid under § 102(g)(2), i.e., the invention was made in this country by another who had not abandoned,…more

Patents, Russia

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New EU Competition Commissioner Magrethe Vestager to Take Office in November, Pending Approval

In an announcement made on 10 September 2014, the President-elect of the next European Commission, Jean-Claude Juncker from Luxemburg, unveiled his team and announced that Magrethe Vestager from Denmark will replace Joaquin…more

Administrative Appointments, EU, European Commission, Political Appointments

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IP Update, Vol. 16, No. 10, October 2013

No Case or Controversy in DJ Against Patentee Who Sued Manufacturer’s Customers: Cisco Systems, Inc. v. Alberta Telecommunications Research Center - In a non-precedential opinion addressing declaratory judgment…more

Cisco, Claim Construction, Copyright, FRAND, Offsets

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OCR to Begin Phase 2 of HIPAA Audit Program

The U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) will soon begin a second phase of audits (Phase 2 Audits) of compliance with Health Insurance Portability and Accountability Act of 1996 (HIPAA)…more

Audits, Best Management Practices, Business Associates, Chief Compliance Officers, Covered Entities

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Hospital and Health System M&A Series: Developing a Hospital Transaction Strategy and Process

Hospital transactions involve complex processes and carry significant ramifications for an institution and the communities it serves. This article outlines key steps that a hospital board and management team should take in…more

Charitable Purpose, Competition, FTC, Healthcare, Hospital Mergers

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Physicians Write Letter to FDA Regarding Biosimilar Naming Concerns

On Thursday, August 14, 2014, several physicians wrote a letter to Commissioner Hamburg of the U.S. Food and Drug Administration (FDA) expressing their concerns regarding the naming of biosimilar products in light of the…more

Biosimilars, BPCIA, FDA, Generic Drugs, Pharmaceutical

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Connecticut Hires Chainbridge Software LLC for Transfer Pricing Training

On July 15, 2014, the Connecticut Department of Revenue Services awarded Chainbridge Software LLC a contract worth $50,000 for on-site and remotely supported training for transfer pricing audits. Chainbridge is infamous for…more

Audits, SALT, Training, Transfer Pricing

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CMS Proposes Update to 2015 Home Health Prospective Payment System for Comment

The Centers for Medicare & Medicaid Services (CMS) published its proposed update of the Medicare home health prospective payment system (HH PPS) rates for calendar year (CY) 2015 in the July 7, 2014 Federal Register. In…more

CMS, Healthcare, Home Health Care, Patient Prospective Payment System

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Focus on Private Equity - July 2014

In This Issue: - Latin American Private Equity on the Rise - Tax Considerations When Acquiring Non-U.S. Portfolio Companies—Mitigating Subpart F Inclusions - Private Equity Funds at Higher Risk of Antitrust…more

Antitrust Investigations, International Tax Issues, Latin America, Private Equity, Subpart F

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New York Proposes Revised Regulations for Health Care Collaborations

Today, New York health regulators proposed revised rules that would allow health care providers to merge or cooperate with one another without being subject to federal or state antitrust scrutiny…more

Antitrust Provisions, Healthcare, Healthcare Providers, Hospital Mergers, Hospitals

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Proposed Regulations Clarify Definition of “Real Property” for Real Estate Investment Trusts

On May 9, 2014, the Internal Revenue Service and U.S. Department of the Treasury issued proposed regulations (the Proposed Regulations) under Section 856 of the Internal Revenue Code (the Code) to clarify the definition of “real…more

Business Assets, C-Corporation, IRS, Private Letter Rulings, Proposed Regulation

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International News: Focus on Mining and Metals

In This Issue: - Features ..Investors in Africa Benefit from Regional Trading Blocs ..Understanding the COMESA Merger Control Regime ..Protecting Your UK Business Against Departing…more

Africa, Brand, China, Coal, COMESA

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Whistleblowing in China and the United States

The Chinese Government’s wide-ranging bribery and corruption investigation into the pharmaceutical industry takes a new turn every week. Media reports contain numerous incidents of purported whistleblowers making allegations or…more

Bribery, China, Compliance, Corruption, Dodd-Frank

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CMS Proposes Removing CME Exclusion from Sunshine Act Regulations, Citing Redundancy with Indirect Payment Exclusion

In the July 3, 2014, issue of the Federal Register, The Centers for Medicare & Medicaid Services (CMS) published the proposed calendar year 2015 Medicare physician fee schedule update (the Proposed Rule). The Proposed Rule…more

Affordable Care Act, CMS, Continuing Medical Education, Medicare, Physician Medicare Reimbursements

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The Importance of the One-Year AIA Timeline

Rackspace US, Inc. v. Personal Web Techs., LLC - Addressing the one-year time frame for completing inter partes review (IPR) in the context of a stay request, the U.S. Patent and Trademark Office’s (PTO) Patent Trial and…more

America Invents Act, Inter Partes Review Proceedings, Patent Reform, Patents, USPTO

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IP Update, Vol. 16, No. 11, November 2013

Appellate Decision Sets Stage for Next Skirmish In The Apple vs. Samsung Smart Phone Wars - A unanimous panel of the U.S. Court of Appeals for the Federal Circuit has concluded that the district court was within its…more

Apple, Apple v Samsung, Fresenius, Patent Infringement, Patent Litigation

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Commission Publishes White Paper on Minority Shareholdings

Under the current Council Regulation (EC) No 139/2004 (the Merger Regulation), the Commission is only able to review transactions that lead to a change of control. The Commission also has the power to review existing minority…more

Acquisitions, Change in Control, European Commission, Minority Shareholders, Shareholders

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IRS Extends Implementation of Certain FATCA Provisions, Eliminates 2013 Reporting

On July 12, 2013, the Internal Revenue Service (IRS) issued Notice 2013-43, which extended the implementation of certain provisions of the Foreign Account Tax Compliance Act (FATCA) by six months and eliminated reporting on U.S…more

FATCA, FFI, Foreign Banks, IGAs, IRC

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SEC Approves Changes to Private Offering Rules and Adopts New “Bad Actor” Prohibitions; Proposes Additional Changes to Better Monitor Private Offering Market

On July 10, 2013, the U.S. Securities and Exchange Commission (SEC) approved changes to Rule 506 of Regulation D under the Securities Act of 1933 to implement the elimination, mandated by the Jumpstart Our Business Startups…more

Advertising, Bad Actors, JOBS Act, Marketing, Private Placements

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Flexible Working Flexes

With effect from yesterday, 30 June 2014, the right to request flexible working has expanded so that it now applies to any employee with at least 26 weeks’ service. Employers should amend their flexible working policy documents…more

Employee Rights, Flex-Time Policies, Flexible Work Arrangements, UK

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Focus on Private Equity - July 2014

In This Issue: - Latin American Private Equity on the Rise - Tax Considerations When Acquiring Non-U.S. Portfolio Companies—Mitigating Subpart F Inclusions - Private Equity Funds at Higher Risk of Antitrust…more

Antitrust Investigations, International Tax Issues, Latin America, Private Equity, Subpart F

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Genus Claims Require Disclosure of “Representative Species Encompassing the Breadth of the Genus”

AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc. - Finding that a patent specification did not disclose a representative number of antibody species within the claimed genus, the U.S. Court of Appeals for the…more

AbbVie, Patent Litigation, Patents, Pharmaceutical, Pharmaceutical Manufacturers

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USPTO Revises Patent Term Extension Calculation

On May 15, 2014, the U.S. Patent and Trademark Office (USPTO) issued final rules revising the way patent term extensions are calculated for patents granted on or after January 14, 2013. In accordance with § 1(h) of the AIA…more

Patent Infringement, Patent Litigation, Patents, USPTO

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FDA Issues Draft Guidance on Communications Over Internet and Social Media Platforms

On June 17, 2014, the U.S. Food and Drug Administration (FDA or the Agency) issued two draft guidance documents, providing recommendations for two types of communication over internet and social media platforms. The first…more

Advertising, FDA, Internet, Medical Devices, Prescription Drugs

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U.S. Appeals Courts Issue Conflicting Decisions on Whether ACA Permits Tax Subsidies of Health Care Coverage Purchased Through Federal Exchanges

On July 22, 2014, three-judge panels of the U.S. Courts of Appeals for the District of Columbia and Fourth Circuits issued conflicting decisions regarding whether the Affordable Care Act (ACA) permits federal tax credits for…more

Affordable Care Act, Halbig v Burwell, Healthcare, IRS, King v Burwell

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The New York Court of Appeals Considers the Consequences of a Liability Insurer’s Breach of the Duty to Defend

What are the consequences of a liability insurer’s breach of the duty to defend its insured against a potentially covered claim? Recent decisions from the New York Court of Appeals highlight differing views nationwide on…more

Breach of Duty, Commercial General Liability Policies, Duty to Defend, Insureds, Insurers

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Final Regulations Allow Retirement Plan Payments for Accident, Health and Disability Insurance

On May 9, 2014, the Internal Revenue Service finalized regulations that govern the tax treatment of payments made by retirement plans to pay accident or health insurance premiums. Under the final regulations, accident or health…more

Benefit Plan Sponsors, Defined Contribution Plans, Disability Insurance, Final Rules, Health Insurance

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SEC Approves Changes to Private Offering Rules and Adopts New “Bad Actor” Prohibitions; Proposes Additional Changes to Better Monitor Private Offering Market

On July 10, 2013, the U.S. Securities and Exchange Commission (SEC) approved changes to Rule 506 of Regulation D under the Securities Act of 1933 to implement the elimination, mandated by the Jumpstart Our Business Startups…more

Advertising, Bad Actors, JOBS Act, Marketing, Private Placements

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IP Update, Vol. 16, No. 8, August 2013

President Disapproves ITC Exclusion Order - For the first time since the administration of President Ronald Reagan, an exclusion order issued by the U.S. International Trade Commission (ITC) has been disapproved by the…more

Copyright, Exclusion Orders, ITC, Mobile Devices, Patents

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Proposed Ban on Non-Competes in Massachusetts

Proposed legislation introduced by Governor Patrick to eliminate most forms of non-competition agreement in Massachusetts may be enacted before July 31, 2014. This legislation creates significant risks for employers with…more

Employment Contract, Employment Policies, Equity Compensation, Hiring & Firing, Incentive Compensation

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340B Federal Drug Pricing Program September Update: Self-Disclosures

As part of its ongoing series of monthly 340B Federal Drug Pricing Program (340B Program) integrity updates, the Health Resources and Services Administration (HRSA) Office of Pharmacy Affairs (OPA) released an update on…more

340B, FDA, HRSA, Pharmaceutical, Prescription Drugs

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The Notice Period: Employees Who Refuse to Work

If an employee walks out, refusing to work his notice period, can an employer elect to keep the contract of employment alive, without paying the recalcitrant employee?…more

Breach of Contract, Employer Liability Issues, Hiring & Firing

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UK Court of Appeal: “Defaulting Shareholder” Provisions Are Unenforceable Penalties

Talal El Makdessi v Cavendish Square Holdings BV dealt with restrictive covenants in the context of a share sale. The UK Court of Appeal ruling indicates that contractual deterrents should not be used without careful…more

Default, Shareholder Litigation, Shareholders, UK

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Illinois Trust Taxation Deemed Unconstitutional

Ruling creates planning opportunities to minimize income taxes. In Linn v. Department of Revenue, the Illinois Fourth District Appellate Court reviewed the state’s statutory framework for taxing trusts. Linn v…more

Income Taxes, Property Tax, Trusts

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Agencies Sign New Cooperation Agreement with Colombia

The Department of Justice (DOJ) Antitrust Division announced on September 16 that the DOJ and Federal Trade Commission (FTC) have entered into a new antitrust cooperation agreement with Colombia’s Superintendence of Industry and…more

Antitrust Provisions, Cooperation Agreement, DOJ, FTC

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Full D.C. Circuit to Rehear ACA Premium Tax Credit Case

The full U.S. Court of Appeals for the D.C. Circuit has vacated the 2-1 panel decision issued July 22, 2014, in Halbig v. Burwell, which struck down the Internal Revenue Service (IRS) Rule providing for Affordable Care Act (ACA)…more

Affordable Care Act, Appeals, Halbig v Burwell, Health Insurance Exchanges, IRS

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Non-Direct Competitors May Sue Under the Lanham Act, Doctrine of Prudential Standing Eliminated

The Supreme Court of the United States swept away the different standards for Lanham Act prudential standing previously applied by the courts of appeals, and expressly discarded the amorphous concept of prudential standing in…more

Corporate Counsel, False Advertising, Lanham Act, Lexmark, Lexmark v Static Control Components

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China’s NHFPC issues Opinions on Promotion and Administration of Telemedicine Services

In recent years, China’s central government has made substantial investments to support the development of telemedicine. According to statistics from the National Health and Family Planning Commission (NHFPC), there were 2,057…more

China, Healthcare, Telemedicine

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European Court of Human Rights Finds That Greater Protections Are Required For The Political Beliefs Of UK Employees

The European Court of Human Rights (ECtHR), in Redfearn v United Kingdom [2012] ECHR 1878, has held that employment law in the United Kingdom does not adequately protect individuals from dismissal as a result of their political…more

EU, Hiring & Firing, Political Expression, Termination

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ITC Issues Its First Stay of a CDO - In the matter of Certain Digital Models, Digital Data, and Treatment Plans for Use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances Made Therefrom, and Methods of Making Same

For the first time the U.S. International Trade Commission (U.S. ITC) issued a stay of a cease and desist order (CDO) issued at the conclusion of an investigation under § 337 of the Tariff Act. In the matter of Certain Digital…more

Cease and Desist Orders, Digital Assets, ITC, Motion To Stay, Patent Infringement

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Recent Alcohol Liability Decision Focuses on Insurance Policy Terms

A December 16, 2013 federal appeals court decision on alcohol liability coverage provides an important reminder to industry members to carefully review the terms of their insurance policies…more

Commercial General Liability Policies, Liquor, Wine & Alcohol

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Movement Toward a National Press Shield Law

Two proposed bills would provide additional protection not only to reporters, but also to their sources. Any company spokesperson or defense lawyer who speaks to a reporter has a modest vested interest in the passage of the…more

DOJ, Journalists, Media, Press Shield Laws, Proposed Legislation

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Taxpayer Victory Helps Trusts Holding Business and Real Estate Avoid Tax

One of the most vexing tax issues remaining unresolved since the 1986 enactment of the passive loss (PAL) rules is whether business or rental income earned by a trust can be active income and whether business or rental losses…more

Income Taxes, Passive Losses, Property Tax, Rental Income, Rental Property

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District Court Strikes Down Rental Allowance Tax Exemption for Ministers

A federal court recently declared unconstitutional Internal Revenue Code Section 107(2), which excludes from gross income a rental allowance paid to a “minister of the gospel” as part of his or her compensation, on the grounds…more

Clergy Members, Exemptions, Income Taxes, Religious Institutions

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Inside M&A - Summer 2013

A Closer Look at Leveraged Dividend Recapitalizations - With merger and acquisition activity down over the course of 2012 into 2013, and a weak market for initial public offerings (IPOs), many private equity firms have…more

Bridge Loans, Collateralized Loan Obligations, Debtors, Dividends, Financing

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Per Second Circuit: Full Text Searchable Database Is Fair Use

Authors Guild, Inc., et al. v. HathiTrust, et al. - The U.S. Court of Appeals for the Second Circuit, affirming a district court summary judgment ruling in favor of a consortium of authors, ruled that the unauthorized…more

Copyright, Copyright Infringement, Databases, Fair Use

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Final Regulations Allow Retirement Plan Payments for Accident, Health and Disability Insurance

On May 9, 2014, the Internal Revenue Service finalized regulations that govern the tax treatment of payments made by retirement plans to pay accident or health insurance premiums. Under the final regulations, accident or health…more

Benefit Plan Sponsors, Defined Contribution Plans, Disability Insurance, Final Rules, Health Insurance

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U.S. International Trade Commission Grants Injunctive Relief on Standard Essential Patent

The U.S. International Trade Commission has issued an exclusion order barring importation of certain older model Apple products for infringing a Samsung patent. The case is significant because the infringed patent was standard…more

Apple, FRAND, Imports, Infringement, Injunctions

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Rule Overhaul to Save Health Industry Up To $640 Million, Medicare Says

On May 7, 2014, the U.S. Centers for Medicare & Medicaid Services (CMS) issued a long-awaited final rule in response to President Obama’s Executive Order (EO) 13563, “Improving Regulation and Regulatory Review,” which set as its…more

Barack Obama, CMS, Executive Orders, Final Rules, Healthcare

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Bear Down: In a Preseason Loss to Cook County’s Poor Play, the Appellate Court Finds Chicago Bears Ticket Holder Amenities Taxable

The First District of the Illinois Appellate Court, in Chicago Bears Football Club v. Cook County Department of Revenue, 2014 IL App (1st) 122892 (Aug. 6, 2014), has affirmed an administrative determination finding the Chicago…more

Appeals, Spectator Sports, Sports, Taxation

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Aerospace & Defense Series: DOD Study Touts Competition Benefits in Military Purchases—Creates Implications for Future Antitrust Reviews

It is a general tenet that competition serves customers well, enabling them to acquire better products at lower prices. Of course, this premise underlies the antitrust laws. In the aerospace and defense industry, the customers…more

Aerospace, Antitrust Investigations, Antitrust Provisions, Defense Contracts, DOD

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Supreme Court on Evaluation of Claims to Computer-Implemented Inventions under 35 U.S.C. § 101

On June 19, 2014, the Supreme Court of the United States issued its much anticipated decision in Alice Corporation Pty. Ltd. v. CLS Bank International et al., confirming that computer-implemented inventions, such as computer…more

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

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Identifying Class of Algorithms Insufficient To Satisfy Means-Plus-Function Structure Requirement

Triton Tech of Texas, LLC v. Nintendo of America, Inc. - Addressing whether a patent specification provided adequate specificity to satisfy indefiniteness scrutiny of a means-plus-function claim, the U.S. Court of Appeals…more

Appeals, Indefiniteness, Nintendo, Patent Litigation, Patents

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2015 Notice of Benefit and Payment Parameters

The Centers for Medicare & Medicaid Services (CMS or the agency) kicked off a flurry of springtime regulatory activity for health insurance issuers with publication of the final Notice of Benefit and Payment Parameters for 2015…more

Affordable Care Act, CMS, Employee Benefits, Health Insurance Exchanges, Healthcare

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MTC’s Market-Based Sourcing Recommendations for UDITPA: Too Little, Too Late?

Member states of the Multistate Tax Commission (MTC) voted to adopt proposed amendments to Article IV of the Multistate Tax Compact during their annual meeting in late July. The proposed amendments likely to have the most…more

Income Taxes, Multistate Tax Commission, State Taxes, UDITPA

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New Ukraine-Related Sanctions Imposed on Russian Interests

On July 16, 2014, the Obama Administration responded further to developments in Ukraine by imposing another new round of sanctions on Russian, Ukrainian and Crimean parties. Importantly, for the first time, the United States…more

Foreign Policy, OFAC, Russia, Sanctions, Ukraine

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Inside M&A - Summer 2014

“Commercially Reasonable Efforts” Diligence Obligations in Life Science M&A" - More than 80 percent of all deals in the pharmaceutical, medical device and biotech industries include an earnout structure that provides some…more

Best Efforts Clauses, Biotechnology, Commercially Reasonable Efforts, Contingent Payment Clauses, Good Faith

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IP Update, Vol. 16, No. 10, October 2013

No Case or Controversy in DJ Against Patentee Who Sued Manufacturer’s Customers: Cisco Systems, Inc. v. Alberta Telecommunications Research Center - In a non-precedential opinion addressing declaratory judgment…more

Cisco, Claim Construction, Copyright, FRAND, Offsets

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CMS Proposes Removing CME Exclusion from Sunshine Act Regulations, Citing Redundancy with Indirect Payment Exclusion

In the July 3, 2014, issue of the Federal Register, The Centers for Medicare & Medicaid Services (CMS) published the proposed calendar year 2015 Medicare physician fee schedule update (the Proposed Rule). The Proposed Rule…more

Affordable Care Act, CMS, Continuing Medical Education, Medicare, Physician Medicare Reimbursements

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Wearable Technologies Are Here To Stay: Here’s How the Workplace Can Prepare

More than a decade ago, “dual use” devices (i.e., one device used for both work and personal reasons) began creeping into workplaces around the globe. Some employees insisted on bringing fancy new smart phones from home to…more

Bring Your Own Device, Corporate Counsel, Employee Rights, Human Resources Professionals, NLRA

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IRS Rules Captive Reinsurance Arrangement Involving Retiree Medical Benefits Qualifies as Insurance for Federal Tax Purposes

On May 18, 2014, the Internal Revenue Service (IRS) ruled that an employer’s wholly owned captive insurance subsidiary could reinsure the employer’s retiree medical benefit risks and still qualify as insurance for federal tax…more

Captive Insurance Company, Healthcare, IRS, Medical Benefits, Reinsurance

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Prosecution History of Original Examination as Intrinsic Evidence in Post-Grant Proceedings - Tempo Lighting, Inc. v. Tivoli, LLC

In a case arising from an inter partes reexamination while pending district court litigation was stayed for more than eight years, the U.S. Court of Appeals for the Federal Circuit affirmed-in-part, vacated-in-part and remanded…more

Patent Litigation, Patents, Post-Grant Review, USPTO

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IP Update, Vol. 16, No. 6, June 2013

Patents / Patent Eligible Subject Matter - Supreme Court to Myriad: Isolated DNA Sequences Are Not Patent-Eligible Subject Matter -- AMP et al. v. Myriad Genetics, Inc.: In a 9–0 decision the Supreme Court…more

Abuse of Discretion, AMP v Myriad, Burden of Proof, Copyright, Damages

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Washington Watch: House GOP Leadership and the ‘Fiscal Cliff’

An analysis of the year-end fiscal negotiations and their consequences. As the United States rapidly approached the “fiscal cliff,” negotiations between President Barack Obama and House Speaker John Boehner (R-OH) faltered,…more

Alternative Minimum Tax, American Taxpayer Relief Act, Capital Gains, Dividends, Estate Tax

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State Revenue Departments Misapplying Federal Tax Law

State income tax laws generally build on federal tax law. The typical pattern is to begin the calculation of state taxable income with federal taxable income and then to modify it by adding or subtracting items where state tax…more

Auditors, Corporate Taxes, Income Taxes, IRC, Liquidation

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Section 752 Proposed Regulations Regarding Partnership Recourse Liabilities and Rules for Related Persons

On December 13, 2013, the Internal Revenue Service and U.S. Department of the Treasury issued proposed regulations under Section 752 regarding recourse liabilities of a partnership and the special rules for related persons…more

IRS, Partnerships, Proposed Regulation, Risk of Loss, U.S. Treasury

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Bear Down: In a Preseason Loss to Cook County’s Poor Play, the Appellate Court Finds Chicago Bears Ticket Holder Amenities Taxable

The First District of the Illinois Appellate Court, in Chicago Bears Football Club v. Cook County Department of Revenue, 2014 IL App (1st) 122892 (Aug. 6, 2014), has affirmed an administrative determination finding the Chicago…more

Appeals, Spectator Sports, Sports, Taxation

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Public Company Priorities for the New Year

Looking ahead to 2013, directors, executives and general counsel of public companies can take some solace from the fact that 2012 was not a year in which a large number of significant new disclosure rules or governance…more

Conflict Mineral Rules, Cybersecurity, Dodd-Frank, FCPA, Proxy Voting Guidelines

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Court of Justice of the European Union Holds that ISPs May Be Ordered to Block Customer Access to Websites Infringing Copyright

UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH - On a reference from the Supreme Court of Austria, the Court of Justice of the European Union (CJEU) has held that ISPs may be ordered to block their customers’…more

CJEU, Copyright Infringement, Injunctions, ISPs, Websites

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District Court Strikes Down Rental Allowance Tax Exemption for Ministers

A federal court recently declared unconstitutional Internal Revenue Code Section 107(2), which excludes from gross income a rental allowance paid to a “minister of the gospel” as part of his or her compensation, on the grounds…more

Clergy Members, Exemptions, Income Taxes, Religious Institutions

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Proposed Regulations Clarify Definition of “Real Property” for Real Estate Investment Trusts

On May 9, 2014, the Internal Revenue Service and U.S. Department of the Treasury issued proposed regulations (the Proposed Regulations) under Section 856 of the Internal Revenue Code (the Code) to clarify the definition of “real…more

Business Assets, C-Corporation, IRS, Private Letter Rulings, Proposed Regulation

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Whistleblowing in China and the United States

The Chinese Government’s wide-ranging bribery and corruption investigation into the pharmaceutical industry takes a new turn every week. Media reports contain numerous incidents of purported whistleblowers making allegations or…more

Bribery, China, Compliance, Corruption, Dodd-Frank

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Perspectives from the Federal Antitrust Enforcement Agencies

The Antitrust in Health Care conference took place May 13 to 14, 2014, in Arlington, Virginia, where a number of the speakers were representatives of the Federal Trade Commission (FTC) or the Antitrust Division of the U.S…more

ABA, Affordable Care Act, Competition, DOJ, FTC

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French Decree Extends List of Foreign Investments That Must Obtain Prior Authorisation

The French Government issued a decree on 14 May 2014 amending key provisions of the French Monetary and Financial Code dealing with foreign investments. The decree extends the list of investments for which foreign investors must…more

EU, Foreign Investment, France, Investors, New Amendments

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New York’s Revised Nonresident Audit Guidelines: A Tool for Taxpayers?

On June 18, 2014, the New York State Department of Taxation and Finance (Department) published a revised version of its Nonresident Audit Guidelines (Audit Guidelines). The Audit Guidelines are (and have been) issued by the…more

Audits, Income Taxes, Residency Status

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Recent Court Cases Highlight the Difficult Questions Related to Medically Assisted Procreation in France

Law No.2013-404 dated May 17, 2013, (the Law) allowed same-sex couples to get married and to adopt children, through either the mutual adoption of a child or the adoption of the same-sex spouse’s biological or adopted child…more

EU, Medically Assisted Procreation, Same-Sex Marriage

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IP Update, Vol. 16, No. 2, -- February 2013

In This Issue: Patents - Supreme Court: State Court Has Jurisdiction over a Legal Malpractice Claim; Nothing Non-Obvious About Applying Pre-Existing Technology to the Internet; The Federal Circuit Is Not the Place…more

Adverse Inference Instructions, America Invents Act, Assignor Estoppel, Attorney Malpractice, Commercial Bankruptcy

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The Rise of Smaller Class Actions

On July 22, 2014, NERA Economic Consulting (NERA) published a study of consumer class action settlements between 2010 and 2013. The report states that NERA’s data “show a steady increase in consumer class action settlements…more

Class Action, NERA

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Environmental Impact Analysis Required for Natural Gas Facilities Clarified in Court Decision Denying Residents’ Challenge to Compressor Siting Approval

A New York town’s challenge to the Federal Energy Regulatory Commission’s (FERC) siting authorization for a natural gas pipeline compressor station was rejected by the U.S. Court of Appeals for the D.C. Circuit in Minisink…more

Environmental Impact Report, Environmental Policies, Environmental Review, FERC, Natural Gas

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TTB Issues Ruling on Formulas for Beer

On June 5, 2014 the Alcohol and Tobacco Tax and Trade Bureau (TTB) issued TTB Ruling 2014-4, exempting from TTB’s formula and pre-import approval (PIA) submission requirements beer made with dozens ingredients as well as beer…more

Breweries, TTB, Wine & Alcohol

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Italian Parliament Approves Final Rules on Changes to Feed-in Tariffs for Photovoltaic Plants

On 7 August 2014, the Italian Parliament approved the conversion into law of Law Decree no. 91 /2014 (the Decree) regarding, amongst other matters, “urgent measures … for the limitation of costs applied to electricity prices”…more

Energy, EU, Feed-in-Tariffs, Solar Energy, Tariffs

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Federal Circuit Grants Emergency Stay of Preliminary Injunction for Critical Medical Products

Edwards Lifesciences AG v. CoreValve, Inc. - Less than one week after a district court granted a preliminary injunction, banning some U.S. sales of some of CoreValve’s heart valve system, the U.S. Court of Appeals for the…more

Healthcare, Medical Devices, Patent Infringement, Patent Litigation, Patents

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Supreme Court Prohibits Warrantless Mobile Phone Searches, Underscores Individual Right to Privacy

The Supreme Court of the United States released a unanimous decision last week barring law enforcement from searching the mobile phones of individuals placed under arrest without first obtaining a search warrant or the…more

Cell Phones, Evidence, Fourth Amendment, Law Enforcement, Riley v California

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IP Update, Vol. 16, No. 6, June 2013

Patents / Patent Eligible Subject Matter - Supreme Court to Myriad: Isolated DNA Sequences Are Not Patent-Eligible Subject Matter -- AMP et al. v. Myriad Genetics, Inc.: In a 9–0 decision the Supreme Court…more

Abuse of Discretion, AMP v Myriad, Burden of Proof, Copyright, Damages

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Characterization as “Essential Element” Amounts to a Disavowal of Scope

X2Y Attenuators, LLC v. International Trade Commission - Addressing the impact of an alleged disclaimer made in a patent on which asserted patents relied for priority, the U.S. Court of Appeals for the Federal Circuit…more

Appeals, ITC, Patent Litigation, Patents

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Old Compound + Known Purpose + Prior Art Concentrations = Obvious -- Galderma Labs L.P., et al v. Tolmar, Inc.

In a split panel decision, the U.S. Court of Appeals for the Federal Circuit reversed a district court concluding that the claims at issue were invalid as obvious because they were directed to the use of an old compound for a…more

Obviousness, Patent Litigation, Patents, Prior Art

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IP Update, Vol. 15, No. 12, December 2012

In This Issue: Patents - ..Federal Circuit Rules It’s Own Standards Apply When Considering Preliminary Injunctions ..Preliminary Testing of Medical Devices in Animals Enables Their Use in…more

America Invents Act, Claim Construction, Competition, Copyright, Infringement

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CMS Proposes Removing CME Exclusion from Sunshine Act Regulations, Citing Redundancy with Indirect Payment Exclusion

In the July 3, 2014, issue of the Federal Register, The Centers for Medicare & Medicaid Services (CMS) published the proposed calendar year 2015 Medicare physician fee schedule update (the Proposed Rule). The Proposed Rule…more

Affordable Care Act, CMS, Continuing Medical Education, Medicare, Physician Medicare Reimbursements

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Rights of Job Applicants in Germany

The German Federal Labor Court made a very clear ruling regarding job applicants in Germany who are not offered the position for which such applicants applied. In the Federal Labor Court’s view, a rejected applicant has no…more

EU, Job Applicants

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PBGC Coverage May No Longer Apply to Puerto Rico-Only Qualified Retirement Plans

Employers that sponsor defined benefit qualified retirement plans benefiting only Puerto Rico employees should be aware that Pension Benefit Guaranty Corporation (PBGC) coverage may no longer apply. Last year, the PBGC withdrew…more

Employee Benefits, ERISA, PBGC, Pensions, Qualified Retirement Plans

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The Heavy Burden of a Motion to Amend

LaRose Indus., LLC v. Capriola Corp. - Addressing issues of claim construction and the requirements of a motion to amend, the Patent Trial and Appeal Board (the Board) ordered the claims at issue were unpatentable and…more

False Claims Act, Motion to Amend, Patent Litigation, Patent Trial and Appeal Board, Patents

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CMS Announces Proposed SNF Reimbursement Rates for FY2015

On May 1, 2014, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule that would include payment and policy changes for skilled nursing facilities (SNFs) (Proposed SNF Rule). The Proposed SNF Rule would…more

Civil Monetary Penalty, CMS, Healthcare, Medicaid, Medicare

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United States to Participate in New World Trade Organization Trade Negotiation to Lower Tariffs on “Green Goods”

On March 21, the Obama Administration formally notified Congress that it intends to enter into a new plurilateral trade negotiation in the World Trade Organization (WTO) to eliminate tariffs on environmental goods. The…more

Green Technology, Negotiations, Tariffs, WTO

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U.S. Appeals Courts Issue Conflicting Decisions on Whether ACA Permits Tax Subsidies of Health Care Coverage Purchased Through Federal Exchanges

On July 22, 2014, three-judge panels of the U.S. Courts of Appeals for the District of Columbia and Fourth Circuits issued conflicting decisions regarding whether the Affordable Care Act (ACA) permits federal tax credits for…more

Affordable Care Act, Halbig v Burwell, Healthcare, IRS, King v Burwell

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Supreme Court Rules SEC Has Five Years to Seek Penalties

In an important decision, the Supreme Court held that the SEC has five years from when a fraud occurred to file an action to seek civil penalties. Although the ruling was limited to civil penalties, the decision might prompt…more

Civil Monetary Penalty, Discovery Rule, Fraud, Gabelli v SEC, SCOTUS

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Inside M&A - Summer 2014

“Commercially Reasonable Efforts” Diligence Obligations in Life Science M&A" - More than 80 percent of all deals in the pharmaceutical, medical device and biotech industries include an earnout structure that provides some…more

Best Efforts Clauses, Biotechnology, Commercially Reasonable Efforts, Contingent Payment Clauses, Good Faith

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Council of Europe adopts MiFID II

In October 2011, the European Commission released a proposal to amend and extend the Markets in Financial Instruments Directive (MiFID), referred to as MiFID II. The MiFID II proposals consist of revisions to MiFID, along with…more

ESMA, EU, European Commission, Financial Regulatory Reform, MiFID

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MTC State Transfer Pricing Program Looms on the Horizon

Transfer pricing is usually considered an international affair, but state governments, like there larger national brethren, have increasingly, and painfully, come to realize that inter-state transfer pricing has become a leaky…more

Transfer Pricing, Transfer Taxes, Transfers

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Employer Shared Responsibility Payments and Reporting Requirements Under the Affordable Care Act: Code Sections 6055 and 6056

Employer Shared Responsibility Penalties - There are two types of employer shared responsibility payments, also known as pay or play penalties, under the Affordable Care Act (ACA). The first penalty under Internal…more

Affordable Care Act, Compliance, Healthcare, Healthcare Reform, Penalties

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OIG Proposes Rule to Expand Civil Monetary Penalties and Solicit Comments on Penalty for Failure to Report and Return Overpayments

Department of Health and Human Services, Office of Inspector General’s (OIG) proposed rule expands the use of civil monetary penalties and solicits comments on the penalty for failure to report and return overpayments. …more

Civil Monetary Penalty, CMS, Healthcare, HHS, OIG

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OCR to Begin Phase 2 of HIPAA Audit Program

The U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) will soon begin a second phase of audits (Phase 2 Audits) of compliance with Health Insurance Portability and Accountability Act of 1996 (HIPAA)…more

Audits, Best Management Practices, Business Associates, Chief Compliance Officers, Covered Entities

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Domicile Election for Non-UK Domiciled Spouses and Civil Partners

Non-UK domiciled individuals who have a UK domiciled spouse or civil partner now have the option to elect to be treated as domiciled in the United Kingdom for inheritance tax (IHT) purposes. This will enable them to receive…more

Domestic Partnership, Domicile, EU, Transfer of Assets

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Takeover Panel Takes a Wider Aim

From 30 September 2013, all AIM-listed companies registered in the United Kingdom, Channel Islands or the Isle of Man (relevant territories) will be subject to the United Kingdom’s Takeover Code. There are several implications…more

Takeover Code, UK

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PBGC Announces 2014 Moratorium on ERISA Section 4062(e) Enforcement Actions

On July 8, 2014, the Pension Benefit Guaranty Corporation (PBGC) issued a press release announcing a moratorium on its enforcement of Employee Retirement Income Security Act of 1974(ERISA) Section 4062(e) through the end of…more

Enforcement, ERISA, Moratorium, PBGC

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International News: Focus on Mining and Metals

In This Issue: - Features ..Investors in Africa Benefit from Regional Trading Blocs ..Understanding the COMESA Merger Control Regime ..Protecting Your UK Business Against Departing…more

Africa, Brand, China, Coal, COMESA

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Claim Preclusion Bars Second Lawsuit on Reexamined Claims Previously Held Invalid

Senju Pharmaceutical Co., Ltd. v. Apotex Inc. - Addressing whether claim preclusion bars a second suit asserting reexamined claims against a defendant who was victorious on the merits on the original claims in a first…more

Claim Preclusion, Patent Infringement, Patent Litigation, Patents

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Tax Court Extends Implied Waiver of Privilege to Taxpayers’ State of Mind Penalty Defense

The U.S. Tax Court concludes in AD Investment 2000 Fund LLC v. Commissioner that a taxpayer’s assertion of a state of mind penalty defense waives the attorney-client privilege with respect to tax opinions provided to the…more

Attorney-Client Privilege, Privilege Waivers, Tax Court

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New EU Regulation on Cosmetic Products Enters Into Force

On 11 July 2013 Regulation (EC) No 1223/2009 (Regulation) will replace the Cosmetics Directive of 1976 that used to rule cosmetic products in the European Union. Major aims of the Regulation are health protection, animal…more

Animal Testing, Cosmetics, EU, Health Safety, Public Policy

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International News: Focus on Mining and Metals

In This Issue: - Features ..Investors in Africa Benefit from Regional Trading Blocs ..Understanding the COMESA Merger Control Regime ..Protecting Your UK Business Against Departing…more

Africa, Brand, China, Coal, COMESA

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Contractual Duty to Deal Does Not Equal Antitrust Duty to Deal

Addressing for the first time whether a patent holder under a contractual duty to deal is also subject to an antitrust duty to deal, the U. S. Court of Appeals for the Second Circuit upheld dismissal of a putative antitrust…more

Antitrust Litigation, Appeals, Class Action, Corporate Counsel, Drug Manufacturers

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Illinois Trust Taxation Deemed Unconstitutional

Ruling creates planning opportunities to minimize income taxes. In Linn v. Department of Revenue, the Illinois Fourth District Appellate Court reviewed the state’s statutory framework for taxing trusts. Linn v…more

Income Taxes, Property Tax, Trusts

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International News: Focus on Mining and Metals

In This Issue: - Features ..Investors in Africa Benefit from Regional Trading Blocs ..Understanding the COMESA Merger Control Regime ..Protecting Your UK Business Against Departing…more

Africa, Brand, China, Coal, COMESA

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Focus on Private Equity - July 2014

In This Issue: - Latin American Private Equity on the Rise - Tax Considerations When Acquiring Non-U.S. Portfolio Companies—Mitigating Subpart F Inclusions - Private Equity Funds at Higher Risk of Antitrust…more

Antitrust Investigations, International Tax Issues, Latin America, Private Equity, Subpart F

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Inside M&A - Summer 2013

A Closer Look at Leveraged Dividend Recapitalizations - With merger and acquisition activity down over the course of 2012 into 2013, and a weak market for initial public offerings (IPOs), many private equity firms have…more

Bridge Loans, Collateralized Loan Obligations, Debtors, Dividends, Financing

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OIG Proposes Rule to Expand Civil Monetary Penalties and Solicit Comments on Penalty for Failure to Report and Return Overpayments

Department of Health and Human Services, Office of Inspector General’s (OIG) proposed rule expands the use of civil monetary penalties and solicits comments on the penalty for failure to report and return overpayments. …more

Civil Monetary Penalty, CMS, Healthcare, HHS, OIG

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Taxpayer Challenges Validity of IRS Transfer Pricing Regulation

In a petition recently filed in the U.S. Tax Court, a taxpayer has challenged the Internal Revenue Service (IRS) regulation that provides that the IRS can reallocate income between affiliates even when foreign law prohibits…more

IRS, Proctor & Gamble, Transfer Pricing

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Supreme Court Comcast Decision Makes Antitrust Class Action Certification More Difficult

The Supreme Court’s decision in Comcast Corporation v. Behrend, an antitrust case involving a class of more than two million current and former cable television subscribers in the Philadelphia area, raises the bar for plaintiffs…more

Class Action, Class Certification, Comcast, Comcast v. Behrend, Damages

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Deconstructing a Letter of Intent for Business Owners, Part 1

I recently appeared on an episode of the Private Equity FunCast: “The Art (and Science?) of the LOI” to talk deal terms with private equity masters Devin Mathews and Jim Milbery. This well-spent hour got me thinking about how…more

Business Ownership, Contract Formation, Letters of Intent, Private Equity, Purchase Price

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Claim Construction Looks at More than Prosecution History - Frans Nooren Afdichtingssytemen BV v. Stopaq Amcorr Inc.

Addressing a lower court’s ruling of non-infringement after claim construction, the U.S. Court of Appeals for the Federal Circuit vacated and remanded the non-infringement decision, finding that the lower court construed…more

Claim Construction, Patent Infringement, Patent Litigation, Patents

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The Third Piece of EPA’s Clean Power Plan: GHG Emission Limits for Modified and Reconstructed Power Plants

The U.S. Environmental Protection Agency’s proposed greenhouse gas (GHG) regulations for “new” and “existing” power plants have received substantial media attention, but regulated parties should also be aware of the third piece…more

Barack Obama, Carbon Emissions, Clean Air Act, Climate Action Plan, Electricity

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Funkadelic Master Sound Recordings Can Be Involuntarily Transferred to a Court-Appointed Receiver to Satisfy Judgment

Hendricks & Lewis PLLC v. Clinton - Addressing the issue of whether a lower court abused its discretion by appointing a receiver and authorizing the sale of master sound recordings to satisfy monetary judgments, the U.S…more

Audio Recording, Copyright, Copyright Infringement, The Copyright Act

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Be Careful What You Draw: Prosecution History Estoppel Applies to Design Patents - Pacific Coast Marine v. Malibu Boats, LLC

Addressing for the first time the applicability of prosecution history estoppel in design patent cases, the U.S. Court of Appeals for the Federal Circuit reversed the lower court, holding that while prosecution history estoppel…more

Design Patent, Estoppel, Patent Applications, Patent Prosecution, Patents

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IRS Issues Another Significant Ruling on Spin-off of Real Estate

In certain recent transactions, a corporation distributes a subsidiary corporation holding the distributing corporation’s real estate assets to the distributing corporation’s shareholders in a tax-free “spin-off.” Not only is…more

IRC, IRS, Pass-Through Entities, Private Letter Rulings, REIT

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Objective Baselessness and Subjective Bad Faith for Exceptional Case Determination Are Still Applicable Even After Octane Fitness

Bianco v. Globus Medical, Inc. - Interpreting recent Supreme Court of the United States precedent that arguably relaxed the legal test for determining whether a case is “exceptional” to warrant an award of attorneys’ fees,…more

Attorney's Fees, Bad Faith, Exceptional Case, Inventions, Inventors

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IRS Rules Captive Reinsurance Arrangement Involving Retiree Medical Benefits Qualifies as Insurance for Federal Tax Purposes

On May 18, 2014, the Internal Revenue Service (IRS) ruled that an employer’s wholly owned captive insurance subsidiary could reinsure the employer’s retiree medical benefit risks and still qualify as insurance for federal tax…more

Captive Insurance Company, Healthcare, IRS, Medical Benefits, Reinsurance

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Illinois Bill Would Centralize Wind Energy Facility Siting

Recently introduced Illinois Senate Bill 3263 (the Bill), entitled “The Wind Energy Facilities Construction and Deconstruction Act,” would strip Illinois counties of the power to regulate commercial wind energy facilities and…more

Department of Agriculture, Energy, Proposed Regulation, Wind Power

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IRS Extends Implementation of Certain FATCA Provisions, Eliminates 2013 Reporting

On July 12, 2013, the Internal Revenue Service (IRS) issued Notice 2013-43, which extended the implementation of certain provisions of the Foreign Account Tax Compliance Act (FATCA) by six months and eliminated reporting on U.S…more

FATCA, FFI, Foreign Banks, IGAs, IRC

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EU Court Maintains Tough Stance Against Business Practices by Firms With Strong Market Power

On 12 June 2014, the European Union’s court of first instance, the General Court, in Intel v European Commission (Case T-286/09), condemned a number of Intel’s business practices, including loyalty rebates. The General Court’s…more

Antitrust Litigation, Antitrust Provisions, EU, European Commission, Intel

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Supreme Court Grapples With Showing Required For Evidentiary Hearing Before Summons Enforcement

After hearing oral arguments in a case alleging the Internal Revenue Service issued summonses for an improper purpose, the Supreme Court of the United States is set to provide guidance on the type of evidence that a summoned…more

Evidentiary Hearings, IRS, SCOTUS, Summons

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Congress Avoids the Fiscal ‘Cliff’—Now What?

The new federal tax bill establishes permanent income, estate, gift and generation-skipping transfer tax provisions that present additional planning opportunities for 2013 and beyond. …more

American Taxpayer Relief Act, Capital Gains, Charitable Donations, Estate Tax, Fiscal Cliff

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The OECD’s BEPS Project – A UK update (Part I)

As part of the 2014 UK Budget, HM Treasury and HM Revenue and Customs published a position paper on the Organisation for Economic Co-operation and Development’s (OECD) Base Erosion and Profit Shifting (BEPS) project. The…more

BEPS, OECD, UK

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IRS Issues Additional Guidance with Respect to 2013 Beginning of Construction Rules for Wind and Other Renewable Projects

The Internal Revenue Service (Service) issued Notice 2014-46 (Notice) on August 8, 2014, to provide further guidance on meeting the beginning of construction requirements for wind and other qualified facilities (biomass,…more

Construction Contracts, Contractors, Energy, Geothermal Energy, Hydropower

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2015 Notice of Benefit and Payment Parameters

The Centers for Medicare & Medicaid Services (CMS or the agency) kicked off a flurry of springtime regulatory activity for health insurance issuers with publication of the final Notice of Benefit and Payment Parameters for 2015…more

Affordable Care Act, CMS, Employee Benefits, Health Insurance Exchanges, Healthcare

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International News: Focus on Mining and Metals

In This Issue: - Features ..Investors in Africa Benefit from Regional Trading Blocs ..Understanding the COMESA Merger Control Regime ..Protecting Your UK Business Against Departing…more

Africa, Brand, China, Coal, COMESA

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Inside M&A - Fall 2013

M&A Corporate Governance: Oversight of the Board’s Financial Advisors - Recent decisions in the Delaware Court of Chancery highlight the need for increased oversight of financial advisors by corporations engaging in M&A…more

Board of Directors, CFIUS, Financial Adviser, Oversight Committee

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New York State Department of Taxation and Finance Releases Guidance on the Taxability of Computer Software

The New York State Department of Taxation and Finance (Department) has just released Tax Bulletin TB-ST-128 (Tax Bulletin), addressing how the state’s sales tax applies to sales of computer software and related services. The…more

Software, State Taxes, Tax Reform

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PBGC Coverage May No Longer Apply to Puerto Rico-Only Qualified Retirement Plans

Employers that sponsor defined benefit qualified retirement plans benefiting only Puerto Rico employees should be aware that Pension Benefit Guaranty Corporation (PBGC) coverage may no longer apply. Last year, the PBGC withdrew…more

Employee Benefits, ERISA, PBGC, Pensions, Qualified Retirement Plans

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EPA Proposes to Eliminate Affirmative Defenses for Many Clean Air Act Violations

The U.S. Environmental Protection Agency (EPA) issued a proposed rule on September 5, 2014 that would prevent states from including affirmative defenses in their Clean Air Act state implementation plans (SIPs) for emissions…more

Affirmative Defenses, Clean Air Act, EPA, Proposed Regulation, Sierra Club

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Further Policies Liberalizing Foreign Investment in China’s Medical Services and Related Industries

The chairman of China’s National Health and Family Planning Commission (HFPC) highlighted potential reforms that would allow increased foreign investment in China’s medical services industry, as well as support the “two-child…more

China, Foreign Investment, Healthcare

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Illinois Health Facilities and Services Review Board Amends Its Procedural Rules

According to its statutory mandate to periodically review and revise its rules, the Illinois Health Facilities and Services Review Board has amended Part 1130 of its rules, which govern the Board's procedural processes, now…more

Amended Regulation, Certificate of Need, Exemptions, Healthcare Facilities, Permits

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Hedge Funds Plead Guilty to Insider Trading with Historic Penalty and Five-Year Probation

A major plea agreement in the Southern District of New York, which imposed the largest insider trading penalty in history, indicates federal prosecutors aim to follow through on long-standing promises of cracking down on insider…more

Civil Monetary Penalty, Compliance, Enforcement, Guilty Pleas, Hedge Funds

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CMS Proposes Update to 2015 Home Health Prospective Payment System for Comment

The Centers for Medicare & Medicaid Services (CMS) published its proposed update of the Medicare home health prospective payment system (HH PPS) rates for calendar year (CY) 2015 in the July 7, 2014 Federal Register. In…more

CMS, Healthcare, Home Health Care, Patient Prospective Payment System

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340B Federal Drug Pricing Program September Update: Self-Disclosures

As part of its ongoing series of monthly 340B Federal Drug Pricing Program (340B Program) integrity updates, the Health Resources and Services Administration (HRSA) Office of Pharmacy Affairs (OPA) released an update on…more

340B, FDA, HRSA, Pharmaceutical, Prescription Drugs

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Digital Marketing Minute: Bot Fraud Hampers Digital Advertising

Fraudulent web traffic is an increasingly common headache for digital marketers who work with advertising networks to deliver online ads. A predominant source of fraudulent web traffic is software applications known as “bots,”…more

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Two-Party Market: Presumption of Confusion and Injury

Merck Eprova AG v. Gnosis S.p.A., et al. - Clarifying applicable presumptions in Lanham Act false advertising cases, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s use of presumptions of…more

Advertising, Appeals, False Advertising, Lanham Act, Merck

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High Bar for Discovery Motions in IPR

Permobil Inc. v. Pridemobility Products Corp. - Addressing a patent owner's motion to compel a petitioner to produce documents concerning petitioner’s alleged copying in an inter partes review (IPR), the U.S. Patent and…more

Discovery, Document Productions, Inter Partes Review Proceedings, Patent Litigation, Patent Trial and Appeal Board

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Alternatives to Typical Private Equity Funds: Search Funds and Fundless Sponsors

We are frequently asked about the differences between a traditional private equity fund, a search fund and a fundless sponsor. Many investors are familiar with the traditional private equity model in which a fund raises a…more

Funding, Private Equity

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IRS Issues Additional Guidance with Respect to 2013 Beginning of Construction Rules for Wind and Other Renewable Projects

The Internal Revenue Service (Service) issued Notice 2014-46 (Notice) on August 8, 2014, to provide further guidance on meeting the beginning of construction requirements for wind and other qualified facilities (biomass,…more

Construction Contracts, Contractors, Energy, Geothermal Energy, Hydropower

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Equity Investors: Be ForeWARNed

The Worker Adjustment Retraining and Notification Act (WARN Act) requires certain employers to give employees 60 days’ notice of plant closings and mass layoffs. The goal of the WARN Act is to “provide workers and their…more

Compliance, DOL, Investors, WARN Act

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Ensuring Timely Filing with Private Delivery Services

Most of us are aware of the timely-mailed-timely-filed “mailbox rule” contained within the Internal Revenue Code. Most of us are probably also aware that a document mailed with a private delivery service may also qualify for…more

DHL, Electronic Filing, FedEx, IRC, IRS

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IRS Rules Captive Reinsurance Arrangement Involving Retiree Medical Benefits Qualifies as Insurance for Federal Tax Purposes

On May 18, 2014, the Internal Revenue Service (IRS) ruled that an employer’s wholly owned captive insurance subsidiary could reinsure the employer’s retiree medical benefit risks and still qualify as insurance for federal tax…more

Captive Insurance Company, Healthcare, IRS, Medical Benefits, Reinsurance

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Focus on Private Equity - Issue 2, June 2013

In This Issue: - Avoiding Repricing Pitfalls - America Invents Act: Practical Considerations for Portfolio Companies. - Excerpt from Avoiding Repricing Pitfalls: Perhaps it is no more than a result of a…more

America Invents Act, Covered Business Method Patents, First-to-File, Patent Reform, Patents

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Cross-Border Conversion of a Company in the European Union

Traditionally, a cross-border “migration” of a company from one European Union (EU) Member State to another EU Member State, while technically possible, has been cumbersome and costly. Such a migration would involve either a…more

Cross-Border, EU, Mergers, Principal Place of Business

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Focus on Private Equity - Issue 2, June 2013

In This Issue: - Avoiding Repricing Pitfalls - America Invents Act: Practical Considerations for Portfolio Companies. - Excerpt from Avoiding Repricing Pitfalls: Perhaps it is no more than a result of a…more

America Invents Act, Covered Business Method Patents, First-to-File, Patent Reform, Patents

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China Solicits Comments on Good Supply Practices for Medical Devices

The China Food and Drug Administration recently published a draft regulation setting minimum standards for medical device distribution. The regulation sets forth requirements for procurement, delivery acceptance, storage,…more

CFDA, China, Medical Devices, Supply Chain

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