McDermott Will & Emery

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Louise-Astrid Aberg

France Finally Embraces Class Actions

France is one of the last western European countries to introduce a class action system. After decades of debates, two failed attempts by both left wing and right wing Parliament majorities, nine months of legislative procedure…more

Class Action, EU

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Fred Ackerson

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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Joseph S. Adams

IRS Guidance Clarifies Retroactive Retirement Plan Impact of Supreme Court’s Windsor Ruling

The Internal Revenue Service issued Notice 2014-19 and a set of Frequently Asked Questions on April 4, 2014, clarifying certain retroactive retirement plan implications of the Supreme Court’s Windsor ruling. The guidance…more

IRS, Retirement Plan, Same-Sex Marriage

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Justin Aiello

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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Babak Akhlaghi

IP Update, Vol. 16, No. 4, April 2013

Obviousness-Type Double Patenting May Exist When There Is Neither Common Ownership nor Common Inventorship - Addressing an obviousness-type double patenting rejection, the U.S. Court of Appeals for the Federal Circuit…more

Affidavits, Claim Construction, Copyright, Copyright Infringement, Discovery

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Rasha Albazaz

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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Richard Almon

Invalidating Means Plus Function Claim Requires Expert Testimony - Elcommerce.com, Inc. v. SAP AG, et. al

Revisiting the issue of written description support for a means plus function claim, the U.S. Court of Appeals for the Federal Circuit reversed a finding of invalidity of claims directed to supply chain monitoring, concluding…more

Patent Litigation, Patents, Supply Chain, Written Descriptions

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Carrie G. Amezcua

Judge Ends Indirect Purchaser Plaintiffs’ Case in Refrigerant Compressors

Last week, on April 8, 2014, the District Court for the Eastern District of Michigan dismissed the remaining claims of indirect purchaser plaintiffs (IPPs) in the ongoing Refrigerant Compressors litigation. In re: Refrigerant…more

Admissions of Liability, IPPS, Legal Costs

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Jorge Arciniega

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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Jeremiah Armstrong

Ninth Circuit Eliminates Presumption of Irreparable Harm for Trademark Owners Seeking a Preliminary Injunction - Herb Reed Enterprises LLC v. Florida Entertainment Management Inc

In yet another chapter in the epic saga regarding use of the musical group name “The Platters,” the U.S. Court of Appeals for Ninth Circuit overturned precedent by finding that irreparable harm must be proven in trademark cases…more

Injunctions, Irreparable Harm, Preliminary Injunctions, Trademark Litigation, Trademarks

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Scott Arrington

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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Brett Bachtell

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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Stephanie Backovic

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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Steven A. Baddour

Opening the Floodgates for the Water Industry

This newsletter discusses the development of the water cluster and related initiatives in Massachusetts. Massachusetts has historically fully embraced different sectors of the economy in order to rapidly expand employment…more

Economic Development, Energy Policy, Environmental Policies, Water

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M. Miller Baker

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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Catherine Battin

Voiding of Illinois Sales Tax Regulation Leads to Prospective Uncertainty for Sourcing Sales

The Illinois Supreme Court recently struck down an Illinois Department of Revenue (Department) regulation sourcing sales to the location of order acceptance. While the Supreme Court found that the Taxpayers’ Bill of Rights…more

Business Taxes, Retailers, Sales & Use Tax, Taxpayer Relief Provisions

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Robert Bäuerle

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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Jessica Bayles

The President’s Methane Reduction Strategy – Here’s What Energy Companies Need to Know

President Obama recently released a Strategy to Reduce Methane Emissions (Strategy) that sets forth a multi-pronged plan for reducing methane emissions both domestically and globally. Domestically, the plan is to focus on four…more

Climate Action Plan, Climate Change, Environmental Policies, Greenhouse Gas Emissions, Methane

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Paul Melot de Beauregard

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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Anne S. Becker

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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Brian A. Benko

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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Natalie Bennett

Trade Dress, Sovereign Immunity, World Politics and R.60 Collide - Bell Helicopter Textron Inc. v. Islamic Republic of Iran,

The U.S. Court of Appeals for the District of Columbia Circuit affirmed the vacatur of final default judgment against the Islamic Republic of Iran (Iran) for alleged trade-dress infringement. The unanimous panel agreed with the…more

Infringement, Iran, Sovereign Immunity, Subject Matter Jurisdiction, Trade Dress

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Philip Bentley

A Giant Leap: EU-China Bilateral Investment Treaty Negotiations to Be Launched Formally

Negotiations for a bilateral investment treaty between the European Union and China are expected to be formally launched during the EU-China Summit next week. Though the launch would be just the first step in a long negotiation…more

Bilateral Investment Treaties, China, EU

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Andrea Bergman

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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Joel Bernstein

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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Matthew Bielen

Focus on Private Equity - April 2014

In This Issue: - Private Equity Firms Face Potential Liability Under Plant Closing Laws - Incentivising Management Across the Pond - Excerpt from Private Equity Firms Face Potential Liability Under Plant Closing…more

Private Equity, Restricted Stocks, WARN Act

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David Birchall

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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Chelsea Black

Section 1 Claims Dismissed in LIBOR, TIBOR Class Action

On March 28, 2014, Judge Daniels of the Southern District of New York dismissed antitrust and unjust enrichment claims against over 20 banks accused of manipulating prices in the Euroyen interbank lending market by submitting…more

Banks, Class Action, EU, Foreign Banks, Libor

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Matthew Boch

U.S. Supreme Court Denies Certiorari to Review New York’s Click-Through Nexus Law

The U.S. Supreme Court has declined to consider the constitutionality of New York’s “Amazon” click-through sales tax nexus law, leaving it in effect and emboldening other states’ similar efforts. Unless federal legislation is…more

Amazon, Click-Through Nexus, Dormant Commerce Clause, Internet Retailers, Overstock.com

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Evan Boetticher

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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Wilber Boies

Supreme Court Upholds ERISA Plan’s Three-Year Deadline to File a Lawsuit

The Supreme Court of the United States ruled that an ERISA plan may properly impose a reasonable time limit on filing a lawsuit to recover benefits. Such time may start to run even before completion of the required…more

Claim Procedures, Disability Benefits, ERISA, Hartford Life and Accident Insurance Company, Heimeshoff v. Hartford Life & Accident Insurance Co.

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Lynne Boisineau

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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Anthony Bongiorno

U.S. Privacy and Data Protection: 2013 Year in Review and a Look Ahead to 2014

In Boston, we celebrated Data Privacy Day (January 28) by presenting “U.S. Privacy and Data Protection: 2013 Year In Review and a Prediction of What’s to Come in 2014” for participants in an IAPP KnowledgeNet. Our panel of…more

Affordable Care Act, Compliance, Cybersecurity, Data Breach, Data Protection

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Jules Bourboulon

France Tightens Disclosure Requirements for Large Companies, Particularly in Relation to Transfer Pricing

The Anti-Tax Evasion Act and the Finance Act 2014 have introduced an annual transfer pricing documentation filing obligation and new disclosure requirements for large companies…more

Disclosure Requirements, EU, Tax Evasion, Transfer Pricing

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Michael Boykins

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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Jonathan Boyles

View From McDermott: Multiemployer Union Plans Implement Aggressive Litigation Strategies to Fill $390 Billion Funding Deficit

While the funded status of single-employer corporate defined benefit pension plans has improved, the funded status of multiemployer union pension plans has remained stagnate and, in some cases, further deteriorated. The Pension…more

Employee Benefits, Multiemployer Plan, Pension Deficiencies, Pensions, Unions

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Jeffrey W. Brennan

FTC Hosts Public Workshop, “Examining Health Care Competition”

During the last several years, the Federal Trade Commission (FTC) has taken an active role in antitrust enforcement in the health care industry, particularly with respect to hospital and physician group acquisitions. Last week,…more

ACOs, Competition, EHR, FTC, Healthcare

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Christopher Bright

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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Sarah Bro

Hookah Manufacturer’s Copyright Infringement Claims Go Up in Smoke - Inhale, Inc. v. Starbuzz Tobacco, Inc.

The U.S. Court of Appeals for the Ninth Circuit affirmed a summary judgment ruling and an award of attorneys’ fees, finding that a hookah water container used for smoking tobacco was not entitled to copyright protection. Inhale,…more

Copyright, Copyright Infringement, Tobacco Litigation

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Bernadette Broccolo

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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Laurence Bronska

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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Daniel Bucca, Ph.D.

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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Michelle Burke

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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John Callahan

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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James Camden

FTC Hosts Public Workshop, “Examining Health Care Competition”

During the last several years, the Federal Trade Commission (FTC) has taken an active role in antitrust enforcement in the health care industry, particularly with respect to hospital and physician group acquisitions. Last week,…more

ACOs, Competition, EHR, FTC, Healthcare

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Jason Caron

CMS Releases Proposed Calendar Year 2014 Updates to Home Health Prospective Payment System

On June 27, 2013, the Centers for Medicare & Medicaid Services (CMS) released its proposed Calendar Year 2014 rate update to the Home Health Prospective Payment System. In addition to reducing reimbursement rates, CMS is…more

Affordable Care Act, CMS, Healthcare, Healthcare Professionals, Home Health Care

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Nicolò Di Castelnuovo

Commission Holds Goldman Sachs Liable for Former Portfolio Company’s Antitrust Infringement

In its decision of 2 April 2014 in relation to the underground and submarine high voltage power cables cartel case, the European Commission (Commission) held the parent companies of the producers involved liable, on the basis…more

Antitrust Litigation, Antitrust Provisions, Fraud, Goldman Sachs

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Gale Chan

IRS Lacks Authority to Issue and Enforce Tax Return Preparer Regulations

On February 11, 2014, the U.S. Court of Appeals for the District of Columbia upheld the decision of the District Court for the District of Columbia, affirming that the Internal Revenue Service (IRS) lacked the authority to issue…more

IRS, Tax Preparers, Tax Returns

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Henry Chen

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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Jiayan Chen

CMS Proposes to Expand Access to Part D Data for Research

On January 10, 2014, the Centers for Medicare and Medicaid Services (CMS) announced a proposed rule to alter key components of the Medicare Advantage (MA) and Part D Programs (Proposed Rule). Understandably, the Proposed Rule…more

CMS, Medicare, Medicare Part D

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Kenneth Cheney

IP Update, Vol. 16, No. 4, April 2013

Obviousness-Type Double Patenting May Exist When There Is Neither Common Ownership nor Common Inventorship - Addressing an obviousness-type double patenting rejection, the U.S. Court of Appeals for the Federal Circuit…more

Affidavits, Claim Construction, Copyright, Copyright Infringement, Discovery

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Cary Chien

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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Alex Choinski

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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Henry Christensen III

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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David A. Cifrino

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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Katie Clark

Increase in UK Employment Protection Awards

The compensation limits on Employment Tribunal awards and certain other amounts payable under UK employment legislation will increase as of 6 April 2014. The key changes are set out below…more

Termination, UK, Unemployment Insurance

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Robert Clary II

Courts Continue Literal Interpretation of Subpart F Rules on Income Inclusion

Consistent with prior judicial precedent, the U.S. Court of Appeals for the Fifth Circuit recently applied a literal interpretation of the Subpart F inclusion rules based on the plain meaning of Sections 951 and 956…more

Income Taxes, Plain Meaning, Statutory Interpretation, Tax Reform

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K. Nicole Clouse

Evidence in Support of Petition for Venue Transfer Must Be Sufficiently Specific - In re Apple Inc.; In re Barnes & Noble

In two decisions from identical panels, the U.S. Court of Appeals for the Federal Circuit denied mandamus petitions seeking to direct two district courts to vacate their denials of petitioners’ motions to transfer their…more

Apple, Barnes and Noble, Evidence, Patent Litigation, Patents

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Bernard Codd

USPTO Releases Examination Guidelines for Determining Patent Eligibility Under 35 U.S.C. § 101

On March 4, 2014, the U.S. Patent and Trademark Office (USPTO) released examination guidelines titled Guidance For Determining Subject Matter Eligibility Of Claims Reciting Or Involving Laws of Nature, Natural Phenomena, &…more

Patent Litigation, Patent-Eligible Subject Matter, Patents, USPTO

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James S. Cohen

FDA, ONC and FCC Report Outlines Proposed Health Information Technology Regulatory Strategy and Recommendations

On April 3, 2014, the U.S. Food and Drug Administration, in conjunction with the Office of the National Coordinator for Health Information Technology and the Federal Communications Commission, issued a draft report that…more

FCC, FDA, Health Information Technologies, Medical Devices, ONC

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Mark A. Collins

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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Paul Compernolle

Recent Case Opens Door to Civil Enforcement Claims for Negligent FICA Tax Withholding

A District Court in Eastern Michigan recently rejected a motion to dismiss a participant’s benefit claim, holding that an employer legally could be liable to a participant in a nonqualified deferred compensation plan when the…more

Enforcement Actions, Equitable Estoppel, ERISA, FICA Taxes, Negligence

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Thomas P. Conaghan

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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Kristin Connarn

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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Daniel Connelly

Opening the Floodgates for the Water Industry

This newsletter discusses the development of the water cluster and related initiatives in Massachusetts. Massachusetts has historically fully embraced different sectors of the economy in order to rapidly expand employment…more

Economic Development, Energy Policy, Environmental Policies, Water

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Emily J. Cook

Two Recent 340B Developments: New Hospital Registration Guidance and Proposed Rules Under Review at OMB

Earlier this week, the much-anticipated 340B Drug Pricing Program (340B Program) proposed rule arrived at the Office of Management and Budget for review. Publication of this proposed rule is expected in June and will likely…more

340B, Healthcare, Hospitals, OMB, Prescription Drugs

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Richard Cook

Death of the Salaried Partner? Wide Ranging Changes to LLP Member Taxation To Come Into Force on 6 April 2014

Wide ranging changes to the way in which LLP members are taxed are due to take effect on 6 April 2014. LLPs and their members, particularly those in professional service and private equity/fund management firms, should,…more

Income Taxes, LLPs, Partnerships, Wages

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Kary Crassweller

DOL Issues Guidance on Plan Asset Status of Revenue Sharing Payments

The U.S. Department of Labor (DOL) recently issued guidance on whether accounts holding revenue sharing payments constitute “plan assets” under ERISA. Prior to the issuance of the DOL guidance, it was unclear whether these…more

DOL, ERISA, Fiduciary Duty, Recordkeeping Requirements, Revenue Sharing

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Mark Crofskey

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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James Cundiff

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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Young Cynn

Wisconsin Legislators Pass Bill to Thwart “Patent Trolls”

On March 20, 2014, Wisconsin lawmakers passed a bill in an attempt to limit the ability of non-practicing entities (NPE) – also commonly referred to as “patent trolls” – to file claims demanding patent licensing payments. …more

Patent Reform, Patent Trolls, Patents

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Lauren D’Agostino

The Assault on the ACA Continues in the Federal Appeals Courts

Combative oral arguments were seen in two high profile federal court challenges to the Patient Protection and Affordable Care Act of 2010 (ACA). The Supreme Court of the United States heard a vigorous oral argument concerning…more

Affordable Care Act, Healthcare, Healthcare Reform, Tax Credits

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John Dabney

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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David Dalgarno

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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Melissa Nott Davis

Patent Powered Back on By Restrictive Reading of § 112, ¶ 6 - EnOcean GmbH v. Face International Corp.

Reversing the U.S. Patent and Trademark Office Board of Patent Appeals and Interferences, the U.S. Court of Appeals for the Federal Circuit held that EnOcean’s patent claims for a self-powered wireless switch did not invoke…more

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

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Arthur DeCelle

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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Jon Decker

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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Richard Dees

Participation of 100 Hours May Be Sufficient to Generate Active Income Exempt from the 3.8 Percent Health Care Tax on Net Investment Income

As business owners begin filing their 2013 federal income tax returns and pay the 3.8 percent tax on net investment income for the first time, they should be aware that 100 hours of participation in an activity may be sufficient…more

Business Income, Exemptions, IRS, Net Investment Income, Passive Activity

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Ralph DeJong

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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Owen Denby

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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Joseph Devaney III

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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Paul Devinsky

Data Transaction Claim Not Patent Eligible - Cyberfone Systems, LLC v. CNN Interactive, Inc., et al.

The U.S. Court of Appeals for the Federal Circuit, in a ruling designated as non-precedential, affirmed the district court finding that a claimed method involved an “abstract idea” and was therefore not patent eligible. …more

Patent Litigation, Patent-Eligible Subject Matter, Patents

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David Diaz

Company Owners Personally Liable for $3.1 Million Withdrawal Liability Assessment — Owners’ Lease of Commercial Property to Company Constituted “Trade or Business”

The U.S. Court of Appeals for the Seventh Circuit ruled that owners can be personally liable for multiemployer withdrawal liability where the owner leases property to its own closely held corporation. The decision highlights…more

Closely Held Businesses, Commercial Property Owners, Corporate Veil, Leases, Multiemployer Plan

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William Diaz

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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Sandra DiVarco

CMS Again Delays Implementation of Controversial “2 Midnights Rule"

Hospitals gearing up for implementation of the “2 Midnights Rule” have more time to prepare—or consider joining efforts to modify or rescind the rule—now that CMS has delayed implementation for a third time…more

CMS, Healthcare, IPPS, Medicaid, Medicare

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Jessica Dombroff

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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Thomas Donohoe

Voiding of Illinois Sales Tax Regulation Leads to Prospective Uncertainty for Sourcing Sales

The Illinois Supreme Court recently struck down an Illinois Department of Revenue (Department) regulation sourcing sales to the location of order acceptance. While the Supreme Court found that the Taxpayers’ Bill of Rights…more

Business Taxes, Retailers, Sales & Use Tax, Taxpayer Relief Provisions

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Amy Drake

Senate Finance Committee Passes Bill to Extend Certain Lapsed Tax Breaks

The Senate Finance Committee passed the Expiring Provisions Improvement Reform and Efficiency Act (EXPIRE Act) on April 3, 2014. The legislation would renew through 2015 more than 50 tax incentives that either have lapsed or…more

Production Tax Credit, Tax Benefits, Tax Credits, Tax Exemptions

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Jon Dubrow

Notification Threshold Under the Hart-Scott-Rodino Act Increased to $75.9 Million January 23, 2014

The Federal Trade Commission recently announced higher reporting thresholds for pre-merger notifications filed on or after February 24, 2014…more

FTC, Hart-Scott-Rodino Act, Notifications, Pre-Merger Filing Requirements

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Sabrina E. Dunlap

Kentucky Becomes 47th State with a Data Breach Notification Law

On April 10, 2014, Kentucky became the 47th state to enact breach notification legislation. Under the new law, companies that conduct business in Kentucky and hold consumer data of Kentucky residents will now be required to…more

Breach Notification Rule, Data Breach

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Barrington Dyer

Federal Circuit's Last Word on Attorney Fees - Actual Knowledge of Baseless Claim Not Required - Kilopass Tech., Inc. v. Sidenese Corp.

Addressing the proof required to show a bad faith assertion of a baseless claim to establish an exceptional patent case for attorneys’ fees. the U.S. Court of Appeals for the Federal Circuit vacated and remanded a lower court’s…more

Attorney's Fees, Bad Faith, Patent Infringement, Patent Litigation, Patents

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Jeremy Earl

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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Maria P. Eberle

Inside the New York Budget Bill Part Five: Net Operating Losses and Tax Credits

This is the fifth installment of a series that takes an inside look at the corporate tax reform proposals in Governor Andrew Cuomo’s 2014–15 New York Budget Bill. This proposed reform is sweeping and, if enacted, is likely to…more

Net Operating Losses, State Budgets, State Taxes, Tax Credits, Tax Reform

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Jay Eizenstat

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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Jeffrey Ekeberg

Participation of 100 Hours May Be Sufficient to Generate Active Income Exempt from the 3.8 Percent Health Care Tax on Net Investment Income

As business owners begin filing their 2013 federal income tax returns and pay the 3.8 percent tax on net investment income for the first time, they should be aware that 100 hours of participation in an activity may be sufficient…more

Business Income, Exemptions, IRS, Net Investment Income, Passive Activity

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Jeremy T. Elman

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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Glenn Engelmann

FDA Updates Guidance Addressing Distribution of Scientific and Medical Publications on Unapproved New Uses

On February 28, 2014, the U.S. Food and Drug Administration (FDA) released a draft guidance entitled “Distributing Scientific and Medical Publications on Unapproved New Uses – Recommended Practices.” The draft guidance, which…more

FDA, Medical Devices, Off-Label Use, Pharmaceutical, Prescription Drugs

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Stephen Erf

Focus on Private Equity - April 2014

In This Issue: - Private Equity Firms Face Potential Liability Under Plant Closing Laws - Incentivising Management Across the Pond - Excerpt from Private Equity Firms Face Potential Liability Under Plant Closing…more

Private Equity, Restricted Stocks, WARN Act

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Elizabeth Erickson

Inside M&A - Winter 2014

Delaware Court of Chancery Upholds Forum Selection Bylaws - In recent years, virtually every merger and acquisition (M&A) transaction of significant size involving a U.S. public company has been challenged in court. …more

Board of Directors, Corporate Taxes, Shareholder Litigation, Shareholders

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Douglas Espenschied

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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Susan Evans

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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Teddy Eynon

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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Peter Faber

New Jersey Tax Court Issues Important Order on the State’s Throw Out Rule

The Tax Court of New Jersey recently issued an important order that may have eviscerated the impact of the Throw Out Rule on intangibles holding companies. On its face the order does not appear to address the application of the…more

Commerce Clause, Due Process, Intangible Holding Company, New Regulations, Nexus

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Kevin Feeley

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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Lauren Ferrante

Focus on Tax Controversy - December 2013

In This Issue: A Decade of Lessons Learned from State Tax False Claims Act Cases; Second Circuit Reaffirms Taxpayer’s Use of Protective Refund Claims; and Challenging Regulations After Mayo and Home…more

Administrative Procedure Act, False Claims Act, Fraud, IRS, Mayo Foundation for Medical Ed

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Amy Ferrer

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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Désirée Fields

European IP Bulletin - Issue 106

Copyright - ..Court of Appeal Confirms High Court Decision and Finds no Copyright Infringement in Software With Same Functionality: In SAS Institute Inc v World Programming Ltd [2013] EWCA Civ 1482 (21 November…more

Copyright, Copyright Infringement, EU, Infringement, Patents

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Michael Fine

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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Jon Finkelstein

New Proposed Partnership Liability Allocation Regulations May Trigger Gains for Partners

On January 29, 2014, the U.S. Department of the Treasury and the Internal Revenue Service issued far-reaching and extremely taxpayer-adverse proposed regulations dealing with the allocation of partnership recourse and…more

Capital Gains, Corporate Taxes, Partnerships, Recourse Proceedings, U.S. Treasury

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Fredric Firestone

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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Ashley Fischer

Court Orders Divestiture of Consummated Physician Practice Acquisition

In a challenge brought both by private plaintiffs and the government, a court has ruled that a health system’s acquisition of a competing physician group practice violated the antitrust laws where the transaction resulted in the…more

Acquisitions, Divestiture, Healthcare, Physician Ownership, Physicians

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Daniel Foster

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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William Friedman

Massachusetts DOER Releases Solar Carve-Out II Guideline

The Massachusetts Department of Energy Resources (DOER) released a draft guideline last week outlining a proposed process to grant Assurances of Qualification to solar generation facilities seeking to participate in the Solar…more

Energy, Renewable Energy, Solar Panels, Utilities Sector

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Raymond M. Gabriel

Fleeting Use of Work in Historic Display Is Fair Use - Bouchat v. Baltimore Ravens

In deciding the latest dispute in an ongoing battle over the Baltimore Ravens “Flying B” logo, the U.S. Court of Appeals for the Fourth Circuit upheld a finding of fair use in connection with the display of the logo in videos…more

Copyright, Fair Use, Logos

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David Quinn Gacioch

Take Action to Stop the Bleeding: Follow These Steps

“Heartbleed” has been all over the news, and companies have been scrambling to respond. What sounds like a nasty medical condition is actually a recently discovered flaw in popular encryption software called OpenSSL. It has…more

Cybersecurity, Data Breach, FTC, Heartbleed, Internet Privacy

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William Gaede

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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Nitin Gambhir

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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Jeffrey Gargano

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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Mathew G. Gavronski

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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Jennifer S. Geetter

CMS Proposes to Expand Access to Part D Data for Research

On January 10, 2014, the Centers for Medicare and Medicaid Services (CMS) announced a proposed rule to alter key components of the Medicare Advantage (MA) and Part D Programs (Proposed Rule). Understandably, the Proposed Rule…more

CMS, Medicare, Medicare Part D

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Nancy Gerrie

View From McDermott: Expanded In-Plan Conversion Opportunities Will Boost Roth 401(k) Balances

The number of defined contribution plans (including 401(k), 403(b) or 457(b) plans) with a Roth feature has grown significantly in recent years. Roth 401(k) is gaining popularity due in part to tax hedging or tax diversification…more

401k, Income Taxes, IRA, Roth Conversions

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Zachary Getzelman

Properly Analyzing Breach of a NDA - Loftness Specialized Farm Equip., Inc. v. Twiestmeyer

The U.S. Court of Appeals for the Eighth Circuit has explained that under Minnesota law it is inappropriate to apply the test for the tort of misappropriation of trade secrets and confidential information when the issue is the…more

Confidential Information, Employer Liability Issues, Non-Disclosure Agreement, Restrictive Covenants, Trade Secrets

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Carolyn Gleason

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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Ankur Goel

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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Eugene Goldman

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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Simone Goligorsky

EMIR Trade Reporting Requirements Come Into Effect 12 February 2014

Following the European Securities and Markets Authority’s approval and registration of the first four trade repositories (TRs) in November 2013, counterparties to all types of over-the-counter and exchange-traded derivatives…more

CCPs, Cross-Border, Deadlines, Derivatives, EMIR

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A. Tracy Gomes

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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Amy Gordon

Final Regulations Issued Regarding Employer Reporting Requirements Under ACA

Recently issued final regulations on the employer reporting requirements under the Affordable Care Act (ACA) clarify and streamline the process for reporting information relating to the provision of minimum essential coverage…more

Affordable Care Act, Compliance, Employer Mandates, Healthcare, Individual Mandate

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Roozbeh Gorgin

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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Daniel F. Gottlieb

ACA Proposed Rule to Require Health Insurers to Certify Compliance with HIPAA Electronic Transaction Requirements

The U.S. Department of Health and Human Services issued a proposed rule to implement the ACA requirement that health insurers and other HIPAA-covered health plans certify compliance with the standards and operating rules for the…more

Affordable Care Act, EFTs, Healthcare, Healthcare Reform, HHS

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Martyn Gowar

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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Lawrence Grabau

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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Michael Graham

Sixth Circuit to Revisit Unprecedented Expansion of ERISA Wrongful Denial of Benefits Remedies

On December 6, 2013, in Rochow v. Life Insurance Company of North America, 737 F.3d 415 (6th Cir. 2013), the Sixth Circuit affirmed a district court ruling that an insurance company that improperly denied ERISA disability…more

Denial of Benefits, Disability, Disability Benefits, ERISA

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Robin Greenhouse

Choice of Forum in Federal Excise Tax Refund Cases

To challenge an administrative determination and assessment of federal excise tax, taxpayers in refund cases have a choice of two different federal courts to bring an action: the U.S. federal district court and the U.S. Court…more

Excise Tax, Forum, Forum Selection Clause, Tax Refunds

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Jana Grieb

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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Jacob Grierson

ICC Launches New Mediation Rules

On 4 December 2013, the Paris-based International Chamber of Commerce (ICC) published its new Mediation Rules, which will come into effect on 1 January 2014, one year after the ICC’s new Arbitration Rules came into effect. The…more

Arbitration, Chamber of Commerce, Mediation

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Nick Grimmer

FTAIA and Foreign Sales: Seventh Circuit Limits Extraterritorial Reach of U.S. Antitrust Law in Motorola Mobility v. AU Optronics

On March 27, 2014, in Motorola Mobility LLC v. AU Optronics Corp., the Seventh Circuit set precedent in the growing body of law interpreting the Foreign Trade Antitrust Improvements Act (FTAIA). Judge Posner held that the FTAIA…more

Antitrust Litigation, Antitrust Provisions, Extraterritoriality Rules, FTAIA, Motorola

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Mary Hallerman

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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Monica Halloran

DOL Issues Rule Extending FLSA Protections to Home Health Care Workers

The U.S. Department of Labor (DOL) recently issued a Final Rule narrowing the companionship exemption to the Fair Labor Standards Act (FLSA) and extending the FLSA’s minimum wage and overtime protections to in-home health care…more

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Andrea L. Hamilton

Significant Changes to UK Competition Regime Now Effective

The Enterprise and Regulatory Reform Act 2013 took effect on 1 April 2014. Increased efficiencies and deterrence are the main drivers of this reform. As of 1 April 2014, the Enterprise and Regulatory Reform Act 2013…more

Competition, Financial Regulatory Reform, UK

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Elijah Hammans

Focus on Private Equity - April 2014

In This Issue: - Private Equity Firms Face Potential Liability Under Plant Closing Laws - Incentivising Management Across the Pond - Excerpt from Private Equity Firms Face Potential Liability Under Plant Closing…more

Private Equity, Restricted Stocks, WARN Act

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John Hammond

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

See All Updates »

Anne W. Hance

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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Steven Hannes

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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David Hanselman

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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Alexander Harguth

Guide for International Counsel: Customs Enforcement of IP Rights in Europe & Germany – The New Rules

Preface - Customs authorities in the European Union may detain goods under their control which are suspected of infringing intellectual property (IP) rights. Such proceedings are governed by a new Regulation (EU) No…more

Customs, EU, ITC, Patent Infringement, Patent Litigation

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D. Jeremy Harrison

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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Bethany Hatef

Greenhouse Gas Limits for New Power Plants – Comments due to EPA by March 10, 2014

Yesterday, the United States Environmental Protection Agency’s (EPA) proposal to set greenhouse gas emissions limits for new coal-fired and natural gas-fired power plants was published in the Federal Register. This proposal was…more

Carbon Emissions, Environmental Policies, EPA, Greenhouse Gas Emissions, Power Plants

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Charles Hawkins

Website Activity Alone Sufficient to Confer Personal Jurisdiction Over Non-Resident Website Operator - Louis Vuitton Malletier, S.A. v. Joseph Mosseri

Addressing whether a lower court had personal jurisdiction over a defendant found to have defaulted, the U.S. Court of Appeals for the Eleventh Circuit affirmed the lower court’s denial of defendant’s motion to vacate default…more

Internet, Jurisdiction, Personal Jurisdiction, Websites

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Shaun Hawkinson

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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Donna M. Haynes

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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Kristen Hazel

Inside M&A - Winter 2014

Delaware Court of Chancery Upholds Forum Selection Bylaws - In recent years, virtually every merger and acquisition (M&A) transaction of significant size involving a U.S. public company has been challenged in court. …more

Board of Directors, Corporate Taxes, Shareholder Litigation, Shareholders

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Thomas Hefty

California Issues Guidance on Nonprofit Property Owners Hosting Solar

The California Board of Equalization in December 2013 issued guidance to advise nonprofit real-estate owners of the property tax consequences of hosting on their tax exempt properties solar generating equipment owned by…more

Non-Profits, Property Owners, Property Tax, Solar Energy

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Amy Heller

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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David Henry

Significant Changes to UK Competition Regime Now Effective

The Enterprise and Regulatory Reform Act 2013 took effect on 1 April 2014. Increased efficiencies and deterrence are the main drivers of this reform. As of 1 April 2014, the Enterprise and Regulatory Reform Act 2013…more

Competition, Financial Regulatory Reform, UK

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Randolph Herndon Jr.

District Court Accords Work Product Protection to Taxpayer Documents Prepared during a Transaction’s Planning Stages

The U.S. District Court for the District of Delaware recently interpreted the work product privilege in a manner favorable to taxpayers, ruling that documents can be prepared “in anticipation of litigation” even if created…more

Bank Holding Company, Corporate Taxes, Discovery, Federal Rules of Civil Procedure, Income Taxes

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David Herpe

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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Matthew Herrington

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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Sean Higdon

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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Carla A. R. Hine

Notification Threshold Under the Hart-Scott-Rodino Act Increased to $75.9 Million January 23, 2014

The Federal Trade Commission recently announced higher reporting thresholds for pre-merger notifications filed on or after February 24, 2014…more

FTC, Hart-Scott-Rodino Act, Notifications, Pre-Merger Filing Requirements

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Brian Hoffmann

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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Jeffrey Holdvogt

Supreme Court Decides in Favor of IRS in Quality Stores: FICA Generally Applies to Severance Payments

The Supreme Court of the United States has decided in favor of the Internal Revenue Service in United States v. Quality Stores, Inc., holding that severance payments made pursuant to plans that did not tie payments to the…more

FICA Taxes, IRS, Quality Stores, SCOTUS, Severance Pay

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Jacob Hollinger

The President’s Methane Reduction Strategy – Here’s What Energy Companies Need to Know

President Obama recently released a Strategy to Reduce Methane Emissions (Strategy) that sets forth a multi-pronged plan for reducing methane emissions both domestically and globally. Domestically, the plan is to focus on four…more

Climate Action Plan, Climate Change, Environmental Policies, Greenhouse Gas Emissions, Methane

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John Huang

China's Latest Enforcement of the Anti-Monopoly Law and Price Supervision/Regulation

China's National Development and Reform Commission (NDRC) recently outlined its latest efforts in the enforcement of the Anti-Monopoly Law and price supervision. This newsletter summarizes the noteworthy information NDRC…more

Anti-Monopoly, Automotive Industry, China, Instant Milk, NDRC

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Brian Hucker

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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Emre Ilter

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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Elizabeth K. Isbey

Congress Approves Legislation Extending and Changing Medicare Programs

On March 31, 2014, the U.S. Senate approved comprehensive Medicare legislation reauthorizing and extending dozens of Medicare payment enhancements, but also making several substantive changes that will profoundly impact affected…more

Healthcare, Healthcare Reform, Medicare, Shareholders

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David Ivill

Two Recent 340B Developments: New Hospital Registration Guidance and Proposed Rules Under Review at OMB

Earlier this week, the much-anticipated 340B Drug Pricing Program (340B Program) proposed rule arrived at the Office of Management and Budget for review. Publication of this proposed rule is expected in June and will likely…more

340B, Healthcare, Hospitals, OMB, Prescription Drugs

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Julia Jacobson

U.S. Privacy and Data Protection: 2013 Year in Review and a Look Ahead to 2014

In Boston, we celebrated Data Privacy Day (January 28) by presenting “U.S. Privacy and Data Protection: 2013 Year In Review and a Prediction of What’s to Come in 2014” for participants in an IAPP KnowledgeNet. Our panel of…more

Affordable Care Act, Compliance, Cybersecurity, Data Breach, Data Protection

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Bryan James

E-Discovery Costs Related Specifically to Production Recoverable - CBT Flint Partners, LLC v. Return Path, Inc.

Applying U.S. Court of Appeals for the Eleventh Circuit law and addressing whether e-discovery costs are recoverable under 28 U.S.C. § 1920(4), the U.S. Court of Appeals for the Federal Circuit reversed in part, vacated in part…more

Document Productions, Legal Costs, Predictive Coding

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Qasim Jami

Claim Term “Adapted to” Means “Configured to” — Not Just “Capable of” - In re Giannelli

The U. S. Court of Appeals for the Federal Circuit reversed an obviousness rejection by the U.S. Patent and Trademark Office (PTO) Patent Trial and Appeal Board’s (the Board) of application claims directed to a row pulling…more

Claim Construction, Patent Infringement, Patent Litigation, Patents, USPTO

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Raam Jani

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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Justin Jesse

Senate Finance Committee Tax Reform Proposal Streamlines Energy Tax Credits

On December 18, 2013, Senate Finance Committee Chairman Max Baucus (D-MT) released a proposal that would streamline energy tax incentives to make them more predictable and technology neutral. The proposal would consolidate the…more

Carbon Capture and Sequestration, Clean Energy, Coal, Energy, Energy Tax Incentives

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Jeremy Johnson

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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Roger J. Jones

Focus on Tax Controversy - December 2013

In This Issue: A Decade of Lessons Learned from State Tax False Claims Act Cases; Second Circuit Reaffirms Taxpayer’s Use of Protective Refund Claims; and Challenging Regulations After Mayo and Home…more

Administrative Procedure Act, False Claims Act, Fraud, IRS, Mayo Foundation for Medical Ed

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Carey Jordan

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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Iona Kaiser

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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Byron Kalogerou

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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Gary Karch

IRS Office of Chief Counsel Treated Collaboration Arrangement as Partnership

In a newly released Chief Counsel Advice, the Internal Revenue Service (IRS) Office of Chief Counsel treated a collaboration arrangement relating to the development and commercialization of a drug as a deemed partnership for…more

Drug Manufacturers, FDA, IRS, Joint Venture, Partnerships

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Amy Hooper Kearbey

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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Michael Kendall

First Successful Extradition of Foreign National for Price-Fixing Violation

For the first time, the U.S. Department of Justice (DOJ) has successfully litigated an extradition of a foreign national on an antitrust charge. This extradition shows that the DOJ is still pursuing individuals it charged…more

DOJ, Extradition, Foreign Nationals, Price-Fixing

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Joanna Kerpen

Final Regulations Issued Regarding Employer Reporting Requirements Under ACA

Recently issued final regulations on the employer reporting requirements under the Affordable Care Act (ACA) clarify and streamline the process for reporting information relating to the provision of minimum essential coverage…more

Affordable Care Act, Compliance, Employer Mandates, Healthcare, Individual Mandate

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Manoj Khandekar

In with the New: 2014 Privacy, Advertising and Digital Media Predictions

Data privacy and security made the headlines practically daily in 2013. Our second annual Privacy and Data Protection 2013 Year in Review topped 65 pages! What privacy, advertising and digital media trends will make…more

Advertising, CalOPPA, COPPA, Data Breach, Data Protection

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Ann Killilea

The FTC Means It: Another Safe Harbor Enforcement Action

No doubt about it: the U.S. Federal Trade Commission (FTC) is serious about taking action against companies that misrepresent their U.S.-EU Safe Harbor certification status. On February 11, 2014, the FTC announced that…more

Enforcement, Enforcement Actions, EU, FTC, Internet

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Mandy H. Kim

IP Update, Vol. 16, No. 9, September 2013

Patents/Preliminary Injunction: Preliminary Injunction Ordered Based on Appellate Claim Construction Aria Diagnostics, Inc. v. Sequenom, Inc. - Addressing a preliminary injunction filed by a defendant in a…more

Claim Construction, Copyright, Expert Testimony, Fair Use, Governmental Immunity

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Paul J. Kim

Inside M&A - Fall 2012

In This Issue: Bridging the Cross-Border M&A Gap “Korean Style”; Corporate Buyers Beware: FCPA Successor Liability – A Growing Threat; Investing In the Chinese Health Care Sector: A New Frontier to be Explored with Care;…more

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Jennifer Klem

SEC Issues New FAQs on Conflict Minerals Rules

The U.S. Securities and Exchange Commission (SEC) recently published limited guidance on frequently asked questions relating to the SEC’s new Conflict Mineral Rules, which require U.S. issuers that manufacture or contract to…more

Africa, Conflict Mineral Rules, Disclosure Requirements, SEC

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Bernard Knight

Pending Patent Legislation—Round Two of Patent Reform

The U.S. Congress is once again poised to enact a new round of patents reforms. It is important to know the potential impact the legislation could have on your intellectual property portfolio and to be prepared to act…more

Bad Faith, Fees, Innovation Act, Patent Ownership, Patent Reform

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John Kocoras

Illinois Supreme Court Strikes Down State Eavesdropping Statute

The Illinois Supreme Court recently declared unconstitutional a state law criminalizing the recording of conversations without the consent of all parties. However, significant risks remain for companies and individuals in…more

Audio Recording, Eavesdropping, Surveillance

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Christopher M. Koepke

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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Prashant Kolluri

Supreme Court Takes Case About Company Stock Funds and Presumption of Prudence

The Supreme Court of the United States granted certiorari in Fifth Third Bancorp v. Dudenhoeffer, suggesting that the Supreme Court will resolve the current division among U.S. circuit courts regarding the application of the…more

Certiorari, Duty of Prudence, Fiduciary Duty, SCOTUS, Stocks

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Sabine Konrad

Indonesian Government Imposes Export Ban on Nickel and Bauxite

As of January 12, Indonesia has banned the export of the unprocessed ores, nickel and bauxite. The ban may have consequences for investments in the area and could trigger international claims by foreign investors and…more

Export Controls, Mining, Natural Resources

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Andrea S. Kramer

HW&M Chairman Camp Releases Discussion Draft of Financial Product Reform

On January 24, the U.S. House Ways and Means Committee chairman released a discussion draft on the tax treatment of financial products and derivatives. This wide-reaching proposal, if enacted, would fundamentally change the…more

Camp Draft, Derivatives, Hedge Funds, Securities

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Stephen Kranz

U.S. Supreme Court Denies Certiorari to Review New York’s Click-Through Nexus Law

The U.S. Supreme Court has declined to consider the constitutionality of New York’s “Amazon” click-through sales tax nexus law, leaving it in effect and emboldening other states’ similar efforts. Unless federal legislation is…more

Amazon, Click-Through Nexus, Dormant Commerce Clause, Internet Retailers, Overstock.com

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Andrew Kratenstein

Inside M&A - Winter 2014

Delaware Court of Chancery Upholds Forum Selection Bylaws - In recent years, virtually every merger and acquisition (M&A) transaction of significant size involving a U.S. public company has been challenged in court. …more

Board of Directors, Corporate Taxes, Shareholder Litigation, Shareholders

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Toby Kusmer

If Written Description Matches Claim Scope, No § 112 Problem - GlaxoSmithKline LLC v. Banner Pharmacaps, Inc.

The U.S. Court of Appeals for the Federal Circuit affirmed a district court rejection of a written description challenge to patentability, concluding that under either parties’ construction of a disputed claim term the written…more

GlaxoSmithKline, Patent Infringement, Patent Litigation, Patents, Pharmaceutical

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Lindsay LaCava

Inside the New York Budget Bill Part Five: Net Operating Losses and Tax Credits

This is the fifth installment of a series that takes an inside look at the corporate tax reform proposals in Governor Andrew Cuomo’s 2014–15 New York Budget Bill. This proposed reform is sweeping and, if enacted, is likely to…more

Net Operating Losses, State Budgets, State Taxes, Tax Credits, Tax Reform

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Raimbaut Lacoeuilhe

France Finally Embraces Class Actions

France is one of the last western European countries to introduce a class action system. After decades of debates, two failed attempts by both left wing and right wing Parliament majorities, nine months of legislative procedure…more

Class Action, EU

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Nicolas Lafont

Inside M&A - Fall 2012

In This Issue: Bridging the Cross-Border M&A Gap “Korean Style”; Corporate Buyers Beware: FCPA Successor Liability – A Growing Threat; Investing In the Chinese Health Care Sector: A New Frontier to be Explored with Care;…more

See All Updates »

Christopher Lahiff

Proposed FDA Labeling Revisions Would Impact Wines Below 7 Percent ABV and Certain Non-Malt Beers

On March 3, 2014, the Food & Drug Administration (FDA) published a Notice of Proposed Rulemaking (NPRM) that, if and when finalized, would make important changes to the labeling of all foods subject to FDA’s primary labeling…more

FDA, Labeling, Wine & Alcohol

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Patrick Lai

Failure to Clearly List Intermediate Applications Breaks Chain of Priority - Medtronic CoreValve, LLC v. Edwards Lifesciences Corp.

Addressing the issue of whether a failure to specifically reference each earlier filed patent applications will result in a loss of claim of priority to the omitted application, the U.S. Court of Appeals for the Federal Circuit…more

Medtronics, Patent Applications, Patent Litigation, Patents

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Richard Lang

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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Myrtille Lapuelle

CNIL Expands Scope of Whistleblowing Programs under French Privacy Law

On February 11, 2014, the French data protection authority (CNIL) published Deliberation #2014-042 and expanded the list of issues that a whistleblowing program may permissibly receive and process under French privacy laws. …more

CNIL, Data Protection, EU Data Protection Laws, Privacy Laws, Whistleblowers

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James Lastowka

OSHA Proposes New Silica Dust Standard

On August 23, 2013, the Occupational Safety and Health Administration (OSHA) released its long-awaited proposal to considerably toughen its regulation of respirable crystalline silica—the most common form of which is quartz. …more

OSHA, Toxic Exposure, Workplace Hazards

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Edwin Laurenson

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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Jean LeBlanc

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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Amy S. Leder

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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Peter Leone

CMS Policy Memorandum Clarifies Disincentives to Buyer’s Rejection of Seller’s Medicare Agreement

In a September 6, 2013, policy memorandum, effective immediately, the Centers for Medicare & Medicaid Services (CMS) detailed its policy ensuring that providers that choose to reject assignment of the seller’s Medicare agreement…more

Assignments, Change of Ownership, CMS, Medicare

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Lionel Lesur

Commission Holds Goldman Sachs Liable for Former Portfolio Company’s Antitrust Infringement

In its decision of 2 April 2014 in relation to the underground and submarine high voltage power cables cartel case, the European Commission (Commission) held the parent companies of the producers involved liable, on the basis…more

Antitrust Litigation, Antitrust Provisions, Fraud, Goldman Sachs

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David J. Levine

Trade Sanctions Imposed in Response to Events in Ukraine

For any companies with interests in Russia or Ukraine, the events of the past several weeks and sanctions imposed by the United States, the European Union (EU), Switzerland, Canada and others may impact their business. …more

Russia, Sanctions, Ukraine

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Elizabeth Lewis

‘Fiscal Cliff’ Legislation Temporarily Extends Key Provisions for Businesses

As part of legislation enacted in early 2013 to avert the so-called “fiscal cliff,” Congress temporarily extended several beneficial tax provisions for businesses, including the research credit, the active financing exception…more

American Taxpayer Relief Act, Business Taxes, Capital Gains, Dividends, Fiscal Cliff

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Andrew C. Liazos

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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Lisa Linsky

France Allows Same-Sex Marriages

On 23 April 2013, the French Parliament gave final approval to a bill allowing same-sex couples to get married and adopt children. This makes France the 14th country in the world to legalize marriage between same-sex couples,…more

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Leon C.G. Liu

China Compliance Update: Commercial Bribery Risks Remain Very Real in China

The enactment of new legislation, as well as new and continuing investigations, demonstrates that Chinese regulators have not slowed down their efforts to ferret out corruption in the pharmaceutical sector and related…more

Bribery, China, Compliance, Foreign Official, White Collar Crimes

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Shon Lo

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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Lisa Loesel

Employers Should Review How Plan Documents Define Spouse in Light of Recent Benefits Litigation

Two recent cases challenging benefit eligibility for same-sex spouses highlight the need for employer-sponsored retirement and welfare plans to clearly define "spouse" for eligibility purposes. Employers may want to review…more

DOMA, Eligibility, Employee Benefits, ERISA, Same-Sex Marriage

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John Low

Allegations Regarding Third-Party Beneficiary Issues and Alter-Ego Status Belong in the First-Filed Venue - Futurewei Technologies, Inc. v. Acacia Research Corp

Addressing an appeal of a dismissed action filed second-in-time, the U.S. Court of Appeals for the Federal Circuit affirmed a lower court’s ruling on defendants’ motion to dismiss, finding that additional, related claims for…more

Alter Ego, First-to-File, License Agreements, Motion to Dismiss, Patents

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Cym H. Lowell

Focus on Tax Controversy - Spring 2014

Company Jet Audit Issues: A Word to the Wise - Once a business attains a certain level of success, an aircraft often becomes a valued asset. Public and closely held private companies alike find that the use of a private…more

Aircraft, Audits, Corporate Taxes, IRS

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Michelle Lowery

FTC Hit with Lawsuit by Target of its Fraudulent Patent Enforcement Investigation

On January 13, 2014, MPHJ Technology Investment LLC (MPHJ) filed a seven-count complaint against the Federal Trade Commission (FTC) alleging various constitutional and other violations, including violations of MPHJ’s First…more

First Amendment, FTC, Patent Infringement, Patent Litigation, Patents

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Joanne Ludovici

Inside M&A - Spring 2013

Top Five Traps for the Unwary in Spin-Offs - A wave of corporate breakups has swept through the United States over the last few years as investors have taken notice of the fact that smaller companies focused on a single…more

Disclosure Requirements, Employee Benefits, Incentives, Private Letter Rulings, Restructuring

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John Lutz

Safe Harbors for Rehabilitation Tax Credits

On December 30, 2013, the Internal Revenue Service issued much anticipated guidance, in the form of Revenue Procedure 2014-12, providing a safe harbor under which it will not challenge a partnership’s allocations of…more

IRS, Rehabilitation Benefits, Safe Harbors, Tax Credits

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En-Jiun Ma

IRS Office of Chief Counsel Treated Collaboration Arrangement as Partnership

In a newly released Chief Counsel Advice, the Internal Revenue Service (IRS) Office of Chief Counsel treated a collaboration arrangement relating to the development and commercialization of a drug as a deemed partnership for…more

Drug Manufacturers, FDA, IRS, Joint Venture, Partnerships

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Jilali Maazouz

CNIL Expands Scope of Whistleblowing Programs under French Privacy Law

On February 11, 2014, the French data protection authority (CNIL) published Deliberation #2014-042 and expanded the list of issues that a whistleblowing program may permissibly receive and process under French privacy laws. …more

CNIL, Data Protection, EU Data Protection Laws, Privacy Laws, Whistleblowers

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Victoria MacLeod

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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Obiamaka P. Madubuko

New Energy Opportunities in Mexico Raise FCPA, Anti-Bribery Risks

Sweeping reforms across Mexico’s oil, gas and electric markets promise more opportunities for the private sector and increased investment from international firms. However, U.S. companies looking to enter this market will need…more

Anti-Bribery, Compliance, Corruption, Energy, FCPA

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Jacqueline Mahoney

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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Martina Maier

New Rules For Energy Aid: EU Adopts Revised Guidelines For Assessment Of State Aid in The Energy Sector

For the first time, the European Commission has decided on comprehensive rules for the assessment of State aid in the energy sector. The new text adopted on 9 April 2014 will create the framework for the ability of EU Member…more

Energy, Energy Policy, EU, Renewable Energy

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Megan Mardy

Proposed Regulations Expand the Definition of Excepted Benefits

Recently issued proposed regulations would expand the categories of excepted benefits under the Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code (the Code) and the Public Health Service Act. In…more

Affordable Care Act, DOL, Employee Benefits, ERISA, Exemptions

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Lauren Martin

IP Update, Vol. 16, No. 9, September 2013

Patents/Preliminary Injunction: Preliminary Injunction Ordered Based on Appellate Claim Construction Aria Diagnostics, Inc. v. Sequenom, Inc. - Addressing a preliminary injunction filed by a defendant in a…more

Claim Construction, Copyright, Expert Testimony, Fair Use, Governmental Immunity

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Mario Martinelli

The Italian Advance Pricing Agreements

The International Ruling Office (the Office) of the Agenzia delle Entrate (the Italian Revenue Agency) has finally released the second issue of the Bulletin, almost three years after the release of the first issue. Establishing…more

Advance Pricing Agreements, Advance Pricing Arrangement Program, EU, Transfer Pricing

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Leigh J. Martinson

IP Update, Vol. 15, No. 11, November 2012

IN THIS ISSUE: Patents - ..Is It Time to Take a New Look at Appellate Review of PTO Claim Construction? ..Limits on the Use of the Disclosure-Dedication Rule Under Doctrine of Equivalents ..Causal…more

Copyright, First Sale Doctrine, Patents, Trademarks, USPTO

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David Marx, Jr

Court Orders Divestiture of Consummated Physician Practice Acquisition

In a challenge brought both by private plaintiffs and the government, a court has ruled that a health system’s acquisition of a competing physician group practice violated the antitrust laws where the transaction resulted in the…more

Acquisitions, Divestiture, Healthcare, Physician Ownership, Physicians

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Rohan Massey

Take Action to Stop the Bleeding: Follow These Steps

“Heartbleed” has been all over the news, and companies have been scrambling to respond. What sounds like a nasty medical condition is actually a recently discovered flaw in popular encryption software called OpenSSL. It has…more

Cybersecurity, Data Breach, FTC, Heartbleed, Internet Privacy

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Jacob Mattinson

HHS Guidance Clarifies that Insurance Companies Must Make Available Health Insurance Coverage for Same-Sex Spouses

On March 14, 2014, the Department of Health and Human Services (HHS) Centers for Medicare & Medicaid Services (CMS) released guidance clarifying the final regulations implementing Section 2702 of the Public Health Service Act…more

CMS, Healthcare, HHS, Marriage, PHSA

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Ulrika Mattsson

Beneficial Owner of “Spank” Has Standing in Copyright Infringement Suit - Smith v. Casey

The U.S. Court of Appeals for the Eleventh Circuit concluded that the estate of the composer of the famous song “Spank” has statutory standing in a copyright infringement claim, even though he was not the registered owner of the…more

Copyright, Copyright Infringement, Standing

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Christopher May

Actions Under § 337 Based on Inducement Require Existence of Direct Infringement Prior to Importation

In a case of first impression, a divided U.S. Court of Appeals for the Federal Circuit panel ruled that an exclusion order based on a violation of Section 337 may not be predicated on a theory of induced infringement where…more

Exclusion Orders, Imports, Induced Infringement, Patent Infringement, Patents

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Jane May

National Conference of State Legislatures to Tackle Key State Tax Policy Questions

The National Conference of State Legislatures’ (NCSL) Executive Committee Task Force on State and Local Taxation has expanded its scope to include all significant tax policy issues facing the states. As part of its expanded…more

National Conference of State Legislatures, State Taxes

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Lincoln Mayer

FTC Commissioners Disagree on Section 5 Authority

Section 5 of the Federal Trade Commission (FTC) Act confers broad enforcement powers on the Commission to prohibit “unfair methods of competition.” In her February 13, 2014 keynote address to the Competition Law & Economics…more

FTC, Section 5

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Filippo Mazza

Acquiring Italian Distressed Renewable Energy Assets -- Handling Contractual Relationships with Insolvent Companies

Cuts of incentives, increase of competition and the economic crisis have driven many Italian renewable energy companies into financial distress. Dealing with distressed companies involves additional risks and, for foreign…more

Business Assets, Contract Formation, EU, Insolvency, Renewable Energy

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Mary Kay McCalla Martire

Focus on Tax Controversy - December 2013

In This Issue: A Decade of Lessons Learned from State Tax False Claims Act Cases; Second Circuit Reaffirms Taxpayer’s Use of Protective Refund Claims; and Challenging Regulations After Mayo and Home…more

Administrative Procedure Act, False Claims Act, Fraud, IRS, Mayo Foundation for Medical Ed

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Ashley McCarthy

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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Philip McCarty

IRS Office of Chief Counsel Treated Collaboration Arrangement as Partnership

In a newly released Chief Counsel Advice, the Internal Revenue Service (IRS) Office of Chief Counsel treated a collaboration arrangement relating to the development and commercialization of a drug as a deemed partnership for…more

Drug Manufacturers, FDA, IRS, Joint Venture, Partnerships

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G. Matthew McCloskey

Pre-AIA Litigation Triggers Time Bar for Inter Partes Review - Apple Inc. v. VirnetX, Inc. and Science Applications International Corporation

In response to a petitioner’s request for rehearing of a decision denying institution of an inter partes review (IPR) proceeding, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (Board) reiterated that any…more

America Invents Act, Inter Partes Review Proceedings, Patent Litigation, Patents

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Andrew McCune

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

See All Updates »

Kate McDonald

CMS Indicates Select Controversial Part D Proposals Will Not Be Finalized

Acknowledging concerns regarding some proposals in the January 2014 proposed rule for the Medicare Advantage and Part D Programs, the Centers for Medicare & Medicaid Services states it does “not plan to finalize” certain…more

CMS, Healthcare, Medicare, Medicare Part D

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Paul McGrath

UK Employment Tribunal Litigation and Dispute Resolution: Changes in Force From 6 April 2014

Three important legislative changes take effect on 6 April 2014 that will impact employment litigation and dispute resolution strategy in the United Kingdom…more

International Labor Laws, UK

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Nathaniel McQueen

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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Maggie McTigue

Additional Affordable Care Act Guidance Clarifies Exchange Notices and 90-Day Waiting Period

Recent guidance clarifies the exchange notice requirement and the 90-day waiting period limitation under the Affordable Care Act. The U.S. Departments of Labor (DOL), Health and Human Services, and the Treasury (the…more

Affordable Care Act, DOL, Employer Group Health Plans, Health Insurance Exchanges, Healthcare

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Stefan M. Meisner

FTAIA and Foreign Sales: Seventh Circuit Limits Extraterritorial Reach of U.S. Antitrust Law in Motorola Mobility v. AU Optronics

On March 27, 2014, in Motorola Mobility LLC v. AU Optronics Corp., the Seventh Circuit set precedent in the growing body of law interpreting the Foreign Trade Antitrust Improvements Act (FTAIA). Judge Posner held that the FTAIA…more

Antitrust Litigation, Antitrust Provisions, Extraterritoriality Rules, FTAIA, Motorola

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Dwight Mersereau

Second Circuit Disagrees with Claims Court and Denies Deduction for Contingent Dividend Liability

On August 1, 2013, the U.S. Court of Appeals for the Second Circuit held in New York Life Ins. Co. v. U.S., that the taxpayer’s liability for policyholder dividends was contingent, and therefore, was not deductible until the…more

Deductions, Dividends, Insureds, Liability, Life Insurance

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Joel Michaels

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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Jennifer Mikulina

IP Update, Vol. 16, No. 9, September 2013

Patents/Preliminary Injunction: Preliminary Injunction Ordered Based on Appellate Claim Construction Aria Diagnostics, Inc. v. Sequenom, Inc. - Addressing a preliminary injunction filed by a defendant in a…more

Claim Construction, Copyright, Expert Testimony, Fair Use, Governmental Immunity

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Martin Milner

‘Fiscal Cliff’ Legislation Temporarily Extends Key Provisions for Businesses

As part of legislation enacted in early 2013 to avert the so-called “fiscal cliff,” Congress temporarily extended several beneficial tax provisions for businesses, including the research credit, the active financing exception…more

American Taxpayer Relief Act, Business Taxes, Capital Gains, Dividends, Fiscal Cliff

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Mary Moll

CMS Proposes to Restrict Diagnoses from Home Visits for Medicare Advantage Risk Adjustment

The Centers for Medicare and Medicaid Services has proposed to limit how Medicare Advantage Organizations can use in-home wellness or risk assessment visits of their enrollees to affect the risk adjusted payments they receive. …more

CMS, Healthcare, Healthcare Reform, Home Health Care, Medicare Advantage

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Elisabeth Malis Morgan

Experience Jimi Hendrix, Post-Mortem Publicity Rights - Experience Hendrix LLC et al. v. HendrixLicensing.com LTD et al.

The U.S. Court of Appeals for the Ninth Circuit, reversing a district court’s ruling finding unconstitutional the provisions of the Washington Personality Rights Act pertaining to post-mortem publicity rights, qualified that its…more

Copyright, Music, Right of Publicity

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Diane M. Morgenthaler

View From McDermott: Expanded In-Plan Conversion Opportunities Will Boost Roth 401(k) Balances

The number of defined contribution plans (including 401(k), 403(b) or 457(b) plans) with a Roth feature has grown significantly in recent years. Roth 401(k) is gaining popularity due in part to tax hedging or tax diversification…more

401k, Income Taxes, IRA, Roth Conversions

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Clare Morison

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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Megan Morley

Cathay Pacific Airlines Settles Freight Shipping Price-Fixing Class Action

On February 12, 2014, Cathay Pacific Airlines Ltd. settled a freight shipping price-fixing multidistrict class action litigation in the Eastern District of New York. In re Air Cargo Shipping Services Air Cargo Antitrust…more

Air Cargo, DOJ, European Commission, Hong Kong, Price-Fixing

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Eric Moskowitz

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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Jonathan Motto

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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Thomas J. Murphy

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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Claire Murray

Finance Bill 2013: New Residential Property Taxes in the United Kingdom

This note outlines the new residential property tax charges following the publication of draft legislation on 11 December 2012 and, latterly, 31 January 2013 by the UK Government. Following both publications we now have further…more

EU, Property Tax, Stamp Duty Land Tax

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Mai Muto

Seizure of Electronic Data: Dawn Raid Inspection Guidance Revised

In an era when the vast majority of written communications are made by electronic means, a company’s obligations to cooperate with Commission officials in an “antitrust dawn raid” extend to the granting of access to all…more

Compliance, Dawn Raids, Electronically Stored Information, European Commission

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Susan M. Nash

Final Regulations Issued Regarding Employer Reporting Requirements Under ACA

Recently issued final regulations on the employer reporting requirements under the Affordable Care Act (ACA) clarify and streamline the process for reporting information relating to the provision of minimum essential coverage…more

Affordable Care Act, Compliance, Employer Mandates, Healthcare, Individual Mandate

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Sabine Naugès

Focus on Regulatory Law -- December issue

This bi-monthly Regulatory Newsletter synthesizes news in the energy, electronic communications, public health and public procurement legal sectors. The decisions and judgements of the French Supreme Administrative Court…more

Energy, EU, Healthcare, Telecommunications

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Karne Newburn

Antitrust Class Action Against Graco Inc. Dismissed

On March 11, 2014, Judge Ann Montgomery of the District of Minnesota dismissed a putative antitrust class action against Graco Inc. and its distributors that accused Graco of buying two of its closest competitors in the spray…more

Graco, Putative Class Actions