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Limitation Periods for Antitrust Damages Actions in The European Union

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

Antitrust Litigation, EU, EU Directive, Statute of Limitations

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

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

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

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Inside M&A - Winter 2015

Recent U.S. Cases Highlight Liability Risks to Executives in Mining, Heavy Industrial Transactions - Historically, corporate executives rarely faced personal or criminal liability resulting from mining or environmental…more

Africa, C-Suite Executives, COMESA, Compliance, Corporate Officers

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ISS and Glass Lewis Update Proxy Voting Guidelines for 2015

Institutional Shareholder Services Inc. (ISS) and Glass, Lewis & Co., LLC, issued their respective annual updates to their proxy voting guidelines on November 6, 2014. As revised these guidelines have important implications for…more

Bylaws, Employee Stock Purchase Plans, Equity Compensation, Executive Compensation, Fee-Shifting

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International News: Focus on Compliance

In This Issue - Welcome to the final issue of International News for 2014. As regulatory oversight of companies—from Sarbanes Oxley and the Dodd-Frank Act to the Foreign Corrupt Practices Act and the UK Bribery…more

Chief Compliance Officers, China, COMESA, Compliance, Disclosure Requirements

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

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

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

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

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

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

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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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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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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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Focus on Regulatory Law - December 2014

In This Issue: - Regulatory Authorities - Energy - Public Economy Law - Contracts - Public Health - Comparative Law - Excerpt from Regulatory Authorities: French…more

Competition Authorities, Energy Policy, EU

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

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

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

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

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

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

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The New Balance of Power: What the 114th Congress Means for Business

As the now-lame-duck U.S. Congress convenes for its final legislative session of 2014, the 114th U.S. Congress is gearing up for action. Officeholders on both sides of the aisle are preparing for the shift to Republican control…more

Election Results, Legislative Agendas, Legislative Committees, Political Parties

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

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

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

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Pennsylvania Unwraps Final Market-Sourcing Guidance

The Pennsylvania Department of Revenue (the Department) recently finalized its Information Notice on sourcing of services for purposes of determining the appropriate net income and capital franchise tax apportionment factors. …more

Apportionment, Department of Revenue, Franchise Taxes, Multistate Tax Compact

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

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

Energy, Energy Policy, EU, Renewable Energy

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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed…more

Africa, Anti-Spam Legislation, Canada, China, Cybersecurity

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South Carolina Court Upholds Constitutionality of Statutory Limitation on Retail Dealer Licenses

Retail Services & Systems, Inc., dba Total Wine & More v. South Carolina Department of Revenue and ABC Stores of South Carolina - A trial-level court in South Carolina recently issued an opinion upholding the…more

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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed…more

Africa, Anti-Spam Legislation, Canada, China, Cybersecurity

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IRS Releases Highly Anticipated Cash Balance Plan Regulations

The U.S. Department of the Treasury (Treasury) and Internal Revenue Service (IRS) recently released long-awaited final regulations (the Final Regulations) with respect to market rates of return and related Pension Protection Act…more

Equity Plans, Final Rules, Hybrid Plan, IRS, Pension Protection Act of 2006

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IRS Releases Draft Revised Form 5300 and Instructions

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

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

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Reissue Patents Must Be Drawn to the Same Invention as the Original Patent

Antares Pharma, Inc. v. Medac Pharma Inc. - Addressing the original-patent requirement, tracing vintage Supreme Court cases and interpreting the statutory purpose of 35 U.S.C. § 251, the U.S. Court of Appeals for the…more

Patent Infringement, Patent Litigation, Patents, Pharmaceutical Patents, Reissue Patents

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Deposition of Declarants Is Limited after Routine Discovery

Valeo, Inc. v. Magna Electronics, Inc. - In an Order on Conduct of the Proceedings, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB or Board) denied a patent owner’s request to depose a…more

Depositions, Discovery, Inter Partes Review Proceedings, Patent Trial and Appeal Board, Patents

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Cooperation Agreement Between European Union and Switzerland in Competition Matters Enters into Force

The Cooperation Agreement between the European Union and Switzerland in competition matters, which entered into force on 1 December 2014, is the first “second generation” agreement concluded by the European Union with a third…more

Competition Act, Cooperation Agreement, EU, Switzerland

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

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

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

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Lawmakers Reach Deal to End Government Shutdown, Raise Debt Ceiling

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

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

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New California LLC Law Requires Members To Reconsider Their Operating Agreement

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

Consent, Corporate Governance, Fiduciary Duty, LLC, Managers

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The New Normal: Big Data Comes of Age

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

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

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Focus on Private Equity - October 2014

Proposed EU Merger Review of Non-Controlling Minority Shareholding Acquisitions: Challenges and Opportunities for Private Equity - At present, the EU Merger Regulation [Council Regulation (EC) No 139/2004] (the Merger…more

EU, European Commission, European Merger Control Regulation, IPO, JOBS Act

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New Developments in The UK Shale Gas Sector

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

Fracking, Oil & Gas, Shale Gas

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Former Toyoda Gosei Executive Pleads Guilty to Price-Fixing, Bid-Rigging

On January 6, 2015, Makoto Horie of Toyoda Gosei North America pled guilty to the United States Department of Justice (DOJ) for conspiring to fix the prices of automotive hoses sold to U.S. companies. Mr. Horie was sales…more

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Indiana Department of Revenue Rules Forced Disposition is Nonbusiness Income

In Letter of Finding No. 02-20140306 (Dec. 31, 2014), the Indiana Department of Revenue (Department) determined that income from the sale of two operating divisions of a business pursuant to an order of the Federal Trade…more

Business Income, Department of Revenue, Divestiture, FTC, UDITPA

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District Courts Should Not Nit-PIC

Anti-Cancer, Inc. v. Pfizer, Inc., et al. - Addressing the issue of when it is appropriate to issue sanctions for deficient Preliminary Infringement Contentions (PICs) (under state court procedural rules), the U.S. Court…more

Appeals, Patent Infringement, Patent Litigation, Patents, Pfizer

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

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

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

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

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

Domain Names, gTLD, Trademarks

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Skilled Nursing Facilities: Steps for Reducing FCA Liability

Several government agencies have voiced concerns related to the level of therapy services necessary to care for residents of Skilled Nursing Facilities (SNFs). The level of therapy services indicated for SNF residents affects…more

CMS, False Claims Act, Health Care Providers, Healthcare, OIG

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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed…more

Africa, Anti-Spam Legislation, Canada, China, Cybersecurity

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

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

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

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Inside M&A - Summer 2013

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

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

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

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

Employee Rights, Paid Leave, Sick Leave

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Perspectives from the Federal Antitrust Enforcement Agencies

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

ABA, Affordable Care Act, Competition, DOJ, FTC

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Supreme Court Finds Trademark Tacking to Be a Jury Question

On January 21, 2015, the Supreme Court of the United States issued a unanimous decision in Hana Financial, Inc. vs. Hana Bank, et. al., pertaining to a substantive trademark matter, namely, whether a judge or jury should…more

Doctrine of Equivalents, Genuine Issue of Material Fact, Hana Bank, Hana Financial, Hana Financial v Hana Bank

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

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

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

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Insights for Driving Value Through Operational Performance of Private Equity Investments

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

Private Equity Funds

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International News: Focus on Compliance

In This Issue - Welcome to the final issue of International News for 2014. As regulatory oversight of companies—from Sarbanes Oxley and the Dodd-Frank Act to the Foreign Corrupt Practices Act and the UK Bribery…more

Chief Compliance Officers, China, COMESA, Compliance, Disclosure Requirements

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

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

Patents, Russia

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Focus on Private Equity - October 2014

Proposed EU Merger Review of Non-Controlling Minority Shareholding Acquisitions: Challenges and Opportunities for Private Equity - At present, the EU Merger Regulation [Council Regulation (EC) No 139/2004] (the Merger…more

EU, European Commission, European Merger Control Regulation, IPO, JOBS Act

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

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

Cisco, Claim Construction, Copyright, FRAND, Offsets

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Notification Threshold Under the Hart-Scott-Rodino Act Increased to $76.3 Million

The U.S. Federal Trade Commission (FTC) recently announced increased thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) and 2015 thresholds for determining whether parties trigger the prohibition…more

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

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Taxpayer Overcomes New Jersey Amnesty Penalty

The Supreme Court of New Jersey recently affirmed a decision that amnesty and late-filing penalties did not apply to the taxpayers in United Parcel Serv. Gen. Servs. Co. v. Dir., Div. of Taxation, No. 072421 (N.J. Dec. 4,…more

Corporate Taxes, Tax Amnesty, UPS

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OCR to Begin Phase 2 of HIPAA Audit Program

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

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

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

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

Charitable Purpose, Competition, FTC, Healthcare, Hospital Mergers

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Physicians Write Letter to FDA Regarding Biosimilar Naming Concerns

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

Biosimilars, BPCIA, FDA, Generic Drugs, Pharmaceutical

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CMS Finalizes 2015 Home Health Prospective Payment System Rule

The Centers for Medicare & Medicaid Services (CMS) published the annual final rule on the Medicare home health prospective payment system (HH PPS) rates for calendar year (CY) 2015 in the November 6, 2014, Federal Register…more

CMS, Final Rules, Patient Prospective Payment System

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The Immigration Accountability Executive Actions: Ramifications for Business

On November 20 and 21, 2014, President Obama announced his plan for executive action on the United States’ immigration problems, known as the immigration accountability executive actions. The actions represent the most…more

Barack Obama, Citizenship, DACA, DAPA, EB-2

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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed…more

Africa, Anti-Spam Legislation, Canada, China, Cybersecurity

See All Updates »

New York Proposes Revised Regulations for Health Care Collaborations

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

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

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

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

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

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International News: Focus on Mining and Metals

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

Africa, Brand, China, Coal, COMESA

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Whistleblowing in China and the United States

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

Bribery, China, Compliance, Corruption, Dodd-Frank

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CMS Finalizes Proposal to Remove Continuing Medical Education Exclusion from Sunshine Act Regulations

On October 31, 2014, the Centers for Medicare & Medicaid Services (CMS) issued its final Medicare physician fee schedule rule for CY 2015 (the Final Rule), which also includes certain changes to the Sunshine Regulations…more

CMS, Continuing Medical Education, Final Rules, Medicare, Pharmaceutical

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Post-Alice—Claims Directed to an Abstract Idea Must Have Meaningful Limitations

LinkedIn Corp. v. AVMarkets, Inc. - Addressing patent eligibility in a covered business method (CBM) patent review, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB or Board) concluded that the…more

Abstract Ideas, CLS Bank v Alice Corp, Covered Business Method Proceedings, LinkedIn, Patent Litigation

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

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

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

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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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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed…more

Africa, Anti-Spam Legislation, Canada, China, Cybersecurity

See All Updates »

ISS and Glass Lewis Update Proxy Voting Guidelines for 2015

Institutional Shareholder Services Inc. (ISS) and Glass, Lewis & Co., LLC, issued their respective annual updates to their proxy voting guidelines on November 6, 2014. As revised these guidelines have important implications for…more

Bylaws, Employee Stock Purchase Plans, Equity Compensation, Executive Compensation, Fee-Shifting

See All Updates »

Things to Expect in 2015

Now that we have eased into 2015, it’s time to think about the key employment law issues we’ll be facing in the year ahead. The general election in May will, of course, hold most of our attention, but there are other…more

CJEU, Employer Liability Issues, Employer Mandates, Holiday Pay, Parental Leave

See All Updates »

Focus on Tax Strategies & Developments - November 2014

REIT Spin-Offs: Recent Transactions and IRS Rulings - Several recent corporate spin-offs in the United States have involved real estate investment trusts (REITs). Provided several requirements are satisfied, including…more

Corporate Taxes, FATCA, Income Taxes, Inversion, Mortgages

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Amendments to Virtual Representation Statute Take Effect on January 1, 2015

There is increasing interest among trustees and beneficiaries to resolve disputes and modify trust documents without going to court. For many years, the primary mechanism to accomplish that in Illinois has been the Virtual…more

Beneficiaries, Dependents, Minors, New Legislation, Non-Judicial Settlement Agreements

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PTAB Applies Balancing Test in Deciding Motions to Seal Evidence

Search Am., Inc. v. TransUnion Intelligence, LLC - In an recent covered business method (CBM) patent review proceeding, the U.S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB) denied the parties’ motions…more

Confidential Information, Covered Business Method Patents, Evidence, Evidentiary Rulings, Patent Trial and Appeal Board

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

2014 Interim Guidance on Patent Subject Matter Eligibility - On December 15, 2014, the U.S. Patent & Trademark Office (USPTO) released examination guidelines titled 2014 Interim Guidance on Patent Subject Matter…more

CLS Bank v Alice Corp, Interim Guidance, Myriad-Mayo, Patent-Eligible Subject Matter, USPTO

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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed…more

Africa, Anti-Spam Legislation, Canada, China, Cybersecurity

See All Updates »

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

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

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

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

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

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

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Focus on China Compliance - Fall 2014

In This Issue: - Between a Rock and a Hard Place: Navigating Disclosures to U.S. Regulators Within the Framework of China’s State Secrets Law - Internal Investigations in China: Collecting and Reviewing Digital…more

China, Disclosure Requirements, Evidence, FCPA, Internal Controls

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

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

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

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ISS and Glass Lewis Update Proxy Voting Guidelines for 2015

Institutional Shareholder Services Inc. (ISS) and Glass, Lewis & Co., LLC, issued their respective annual updates to their proxy voting guidelines on November 6, 2014. As revised these guidelines have important implications for…more

Bylaws, Employee Stock Purchase Plans, Equity Compensation, Executive Compensation, Fee-Shifting

See All Updates »

Patent Claim Construction Now Subject to Hybrid Review

In a 7–2 decision penned by Justice Breyer, the Supreme Court of the United States overturned the de novo standard as the sole standard of review of issues arising in claim construction. Teva Pharmaceuticals USA v. Sandoz,…more

Claim Construction, Clear Error Standard, De Novo Standard of Review, Federal Rules of Civil Procedure, Patent Litigation

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The New Balance of Power: What the 114th Congress Means for Business

As the now-lame-duck U.S. Congress convenes for its final legislative session of 2014, the 114th U.S. Congress is gearing up for action. Officeholders on both sides of the aisle are preparing for the shift to Republican control…more

Election Results, Legislative Agendas, Legislative Committees, Political Parties

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New Challenge to 340B Rule Regarding Orphan Drugs

On October 9, 2014, Pharmaceutical Research and Manufacturers of America (PhRMA) filed a complaint (the October 9 Complaint) against the U.S. Department of Health and Human Services (HHS), the Health Resources and Services…more

Affordable Care Act, HHS, Hospitals, HRSA, Orphan Drugs

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Things to Expect in 2015

Now that we have eased into 2015, it’s time to think about the key employment law issues we’ll be facing in the year ahead. The general election in May will, of course, hold most of our attention, but there are other…more

CJEU, Employer Liability Issues, Employer Mandates, Holiday Pay, Parental Leave

See All Updates »

Hazardous Waste Recycling Regulations – the Latest Chapter

“A long time ago in a [May 19, 1980 Federal Register] far, far away [or so it seems],” the U.S. Environmental Protection Agency (EPA) declared its authority to regulate all hazardous secondary material, whether discarded or…more

EPA, Hazardous Substances, RCRA, Recycling, Waste Disposal

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Senate Approves Energy Tax Extenders

On Tuesday, December 16, 2014, the U.S. Senate passed the tax extenders bill by a vote of 76-16, extending a number of energy tax incentives through the end of the year. The Senate’s passage of H.R. 5771 followed the U.S. House…more

Energy Tax Incentives, Tax Extenders

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

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

Default, Shareholder Litigation, Shareholders, UK

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Illinois Trust Taxation Deemed Unconstitutional

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

Income Taxes, Property Tax, Trusts

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Agencies Sign New Cooperation Agreement with Colombia

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

Antitrust Provisions, Cooperation Agreement, DOJ, FTC

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

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

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

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

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

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

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Chinese Government Further Encourages, Regulates Multi-Site Practice by Physicians

The Opinions on Encouragement and Regulation of Multi-Sited Practices of Physicians demonstrate the Chinese government’s continued efforts to develop Chinese physicians’ ability to practise at multiple sites, and will provide…more

China, Healthcare, Healthcare Facilities, Hospitals, Physicians

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

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

EU, Hiring & Firing, Political Expression, Termination

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Octane Fitness Changes the Landscape for Trademark Cases Too

Fair Wind Sailing, Inc. v. Dempster - Addressing for the first time the application of the Supreme Court decision in Octane Fitness to trademark cases, the U.S. Court of Appeals for the Third Circuit held that a finding…more

Appeals, Attorney's Fees, Exceptional Case, Lanham Act, Non-Compete Agreements

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The New Balance of Power: What the 114th Congress Means for Business

As the now-lame-duck U.S. Congress convenes for its final legislative session of 2014, the 114th U.S. Congress is gearing up for action. Officeholders on both sides of the aisle are preparing for the shift to Republican control…more

Election Results, Legislative Agendas, Legislative Committees, Political Parties

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Taxpayer Victory Helps Trusts Holding Business and Real Estate Avoid Tax

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

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

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Seventh Circuit: Plaintiffs Lacked Standing to Challenge Tax Exemption for Ministerial Rental Allowances

In November 2013, the U.S. District Court for the Western District of Wisconsin declared unconstitutional Section 107(2) of the Internal Revenue Code, which excludes from gross income rental allowances paid to ministers as part…more

Churches, Establishment Clause, Federal Jurisdiction, Freedom From Religion Foundation, IRC

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Inside M&A - Summer 2013

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

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

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Patent Claim Construction Now Subject to Hybrid Review

In a 7–2 decision penned by Justice Breyer, the Supreme Court of the United States overturned the de novo standard as the sole standard of review of issues arising in claim construction. Teva Pharmaceuticals USA v. Sandoz,…more

Claim Construction, Clear Error Standard, De Novo Standard of Review, Federal Rules of Civil Procedure, Patent Litigation

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

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

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

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

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

Apple, FRAND, Imports, Infringement, Injunctions

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CMS Proposes Recognition of Same-Sex Spouses

On December 12, 2014, CMS issued proposed regulations that would add recognition of same-sex spouses to the Conditions of Participation (CoPs) and Conditions for Coverage (CfCs) relevant to patients in hospitals, ambulatory…more

CMS, Health Care Providers, Same-Sex Marriage

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Focus on Tax Controversy - Fall 2014

Supreme Court to Hear Tax Injunction Act Case - On August 20, 2013, in Direct Marketing Association v. Brohl, the U.S. Court of Appeals for the Tenth Circuit held that the federal Tax Injunction Act (TIA) prohibited the…more

Brohl, Certiorari, Direct Marketing Association, Discovery, Electronically Stored Information

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Notification Threshold Under the Hart-Scott-Rodino Act Increased to $76.3 Million

The U.S. Federal Trade Commission (FTC) recently announced increased thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) and 2015 thresholds for determining whether parties trigger the prohibition…more

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

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

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

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

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Obviousness Must Be Supported by Analysis and Factual Findings

Malico Inc. v. Cooler Master USA Inc. - Addressing the need for factual findings to support a finding of obviousness, the U.S. Court of Appeals for the Federal Circuit vacated the lower court’s decision invalidating a…more

Appeals, Obviousness, Patent Infringement, Patent Litigation, Patents

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2015 Notice of Benefit and Payment Parameters

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

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

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Pennsylvania Unwraps Final Market-Sourcing Guidance

The Pennsylvania Department of Revenue (the Department) recently finalized its Information Notice on sourcing of services for purposes of determining the appropriate net income and capital franchise tax apportionment factors. …more

Apportionment, Department of Revenue, Franchise Taxes, Multistate Tax Compact

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New Ukraine-Related Sanctions Imposed on Russian Interests

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

Foreign Policy, OFAC, Russia, Sanctions, Ukraine

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Inside M&A - Summer 2014

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

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

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

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

Cisco, Claim Construction, Copyright, FRAND, Offsets

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International News: Focus on Compliance

In This Issue - Welcome to the final issue of International News for 2014. As regulatory oversight of companies—from Sarbanes Oxley and the Dodd-Frank Act to the Foreign Corrupt Practices Act and the UK Bribery…more

Chief Compliance Officers, China, COMESA, Compliance, Disclosure Requirements

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Inside M&A - Fall 2014

Managing Compliance Risks in M&A Transactions - Buyers can acquire unintended and potentially very damaging liabilities together with target business or assets. Analyzing the financial situation of a target company,…more

Compliance, DOJ, Due Diligence, FCPA, Integration

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

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

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

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Failure to Address All Graham Factors Dooms CBM Petition

Travelocity.com L.P. v. Cronos Technologies LLC - Addressing the showing required to institute covered business method (CBM) proceedings based on obviousness, the U.S. Patent and Trademark Office Patent Trial and Appeal…more

Covered Business Method Patents, Graham Factors, Obviousness, Patent Litigation, Patent Trial and Appeal Board

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

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

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

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

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

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

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NYS Tax Department Reverses Position on Statutory Residence Rule

The New York State Department of Taxation and Finance (the Department) has backed off from an aggressive position that it has been taking in cases involving New York residence issues…more

Income Taxes, Primary Residence, Residency Requirements

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

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

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

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Arizona’s 2015 TPT Amendments Have 99 Problems, but Origin Sourcing ain’t One

Actually, there are really only two issues, but they are big issues. Arizona’s Transaction Privilege Tax has always been an anomaly in the traditional state sales tax system. Contrary to some commentators, however, the…more

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Public Company Priorities for the New Year

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

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

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

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

CJEU, Copyright Infringement, Injunctions, ISPs, Websites

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Creeping Normality: IRS Releases Final Regulations Under Section 501(r)

In This Issue: - Community Health Needs Assessments (Code Section 501(r)(3)) - Financial Assistance Policies (Code Section 501(r)(4)) - Limitation on Charges (Code Section 501(r)(5)) - Billing and Collection…more

Community Health Systems, Final Rules, Healthcare, Hospitals, IRS

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

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

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

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Whistleblowing in China and the United States

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

Bribery, China, Compliance, Corruption, Dodd-Frank

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Perspectives from the Federal Antitrust Enforcement Agencies

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

ABA, Affordable Care Act, Competition, DOJ, FTC

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

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

EU, Foreign Investment, France, Investors, New Amendments

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Illinois Law Firm Continues to Clog Court System with Tax-Related False Claims Act Allegations—but Proposed Legislation May Offer Relief

As many readers of this blog know, over the past 12 years the Circuit Court of Cook County, Illinois has been deluged with lawsuits filed by a Chicago law firm against internet retailers as a “whistleblower” under the Illinois…more

False Claims Act, Internet Retailers, Proposed Legislation, Retailers, Sales & Use Tax

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

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

EU, Medically Assisted Procreation, Same-Sex Marriage

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

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

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

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International News: Focus on Compliance

In This Issue - Welcome to the final issue of International News for 2014. As regulatory oversight of companies—from Sarbanes Oxley and the Dodd-Frank Act to the Foreign Corrupt Practices Act and the UK Bribery…more

Chief Compliance Officers, China, COMESA, Compliance, Disclosure Requirements

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CFTC Finalizes Exception for Swaps with Utility Special Entities

The Commodity Futures Trading Commission (CFTC) last week released a final rule excluding certain electricity and natural gas swaps with governmental agencies and municipalities from the lower de minimis threshold for swaps with…more

CFTC, Electricity, Final Rules, Municipalities, Natural Gas

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TTB Issues Ruling on Formulas for Beer

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

Breweries, TTB, Wine & Alcohol

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

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

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

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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed…more

Africa, Anti-Spam Legislation, Canada, China, Cybersecurity

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

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

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

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Same Prior Art May Be Considered Differently in Connection with Different Petitions

In re Petition for Inter Partes Review by Mitsubishi Plastics, Inc. - In a request for a rehearing of an earlier decision denying institution of inter partes review, the Patent Trial and Appeal Board (PTAB or Board) ruled…more

Inter Partes Review Proceedings, Mitsubishi, Patent Trial and Appeal Board, Patents, Prior Art

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

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

Obviousness, Patent Litigation, Patents, Prior Art

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

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

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

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

What privacy, advertising and digital media trends will make headlines in 2015? Digital Health for one, Big Data for another…more

Advertising, Big Data, CHI, Digital Media, FTC

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Rights of Job Applicants in Germany

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

EU, Job Applicants

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New IRS Rules on Direct Rollovers of Taxable and Non-Taxable Amounts Require Changes to Defined Contribution Plan Administration By January 1, 2015

The Internal Revenue Service (IRS) recently released guidance allowing participants to allocate the taxable and non-taxable portions of a single distribution from a defined contribution retirement plan into separate accounts. …more

Defined Contribution Plans, Distribution Rules, IRS, Retirement Plan

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Cost of Combination Doesn’t Obviate Obviousness

Polaris Wireless, Inc. v. TruePosition, Inc. - Addressing the issues of patent priority dates (where the asserted priority document did not share an inventor with the challenged patent) and motivation to combine, the Patent…more

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Skilled Nursing Facilities: Steps for Reducing FCA Liability

Several government agencies have voiced concerns related to the level of therapy services necessary to care for residents of Skilled Nursing Facilities (SNFs). The level of therapy services indicated for SNF residents affects…more

CMS, False Claims Act, Health Care Providers, Healthcare, OIG

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Focus on Tax Strategies & Developments - November 2014

REIT Spin-Offs: Recent Transactions and IRS Rulings - Several recent corporate spin-offs in the United States have involved real estate investment trusts (REITs). Provided several requirements are satisfied, including…more

Corporate Taxes, FATCA, Income Taxes, Inversion, Mortgages

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The New Balance of Power: What the 114th Congress Means for Business

As the now-lame-duck U.S. Congress convenes for its final legislative session of 2014, the 114th U.S. Congress is gearing up for action. Officeholders on both sides of the aisle are preparing for the shift to Republican control…more

Election Results, Legislative Agendas, Legislative Committees, Political Parties

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

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

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

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Focus on China Compliance - Fall 2014

In This Issue: - Between a Rock and a Hard Place: Navigating Disclosures to U.S. Regulators Within the Framework of China’s State Secrets Law - Internal Investigations in China: Collecting and Reviewing Digital…more

China, Disclosure Requirements, Evidence, FCPA, Internal Controls

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Inside M&A - Summer 2014

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

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

See All Updates »

OECD/BEPS Intangibles Revisions to Change Character, Treatment of Goodwill

Corporations acquiring intangible assets as part of business combination will no longer be able ignore goodwill in their subsequent restructurings and asset transfers. That’s the upshot from tax authorities from around the…more

Asset Transfer, Asset Valuations, BEPS, Goodwill, Intangibles

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Changes to IRS Form for Qualified Adoption Expenses

The Internal Revenue Service (IRS) has released the 2014 version of Form 8839 (Qualified Adoption Expenses), as well as updated instructions. Taxpayers use Form 8839 to claim the adoption credit, an exclusion for…more

Adoption, IRS

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

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

Civil Monetary Penalty, CMS, Healthcare, HHS, OIG

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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed…more

Africa, Anti-Spam Legislation, Canada, China, Cybersecurity

See All Updates »

Domicile Election for Non-UK Domiciled Spouses and Civil Partners

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

Domestic Partnership, Domicile, EU, Transfer of Assets

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Takeover Panel Takes a Wider Aim

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

Takeover Code, UK

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ERISA Section 4062(e) Significantly Reformed Effective December 16, 2014

On December 16, 2014, President Obama signed into law the Consolidated and Further Continuing Appropriations Act, which contains provisions that significantly reform ERISA Section 4062(e). The new law is meant to ensure that…more

Defined Benefit Plans, Defined Contribution Plans, Employer Liability Issues, ERISA, Facilities Management

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International News: Focus on Mining and Metals

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

Africa, Brand, China, Coal, COMESA

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Claim Preclusion Bars Second Lawsuit on Reexamined Claims Previously Held Invalid

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

Claim Preclusion, Patent Infringement, Patent Litigation, Patents

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

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

Attorney-Client Privilege, Privilege Waivers, Tax Court

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The New EU Clinical Trials Regulation Aims at Harmonization and Transparency

On June 16, 2014, Reg. (EU) No. 536/2014 on Clinical Trials on Medicinal Products for Human Use (Regulation) has entered into force. Once it becomes applicable, the Regulation will provide a comprehensive legal framework for…more

Clinical Trials, EEA, EU, International Harmonization, New Regulations

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International News: Focus on Mining and Metals

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

Africa, Brand, China, Coal, COMESA

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Despite Potential Market Manipulation, FERC Declines to Reject Power Auction Results

The Federal Energy Regulatory Commission (FERC or the Commission) recently opted not to take action to set aside the results of a power auction that was allegedly manipulated. In the face of significant public complaints, the…more

Auction, Electricity, Energy Sector, FERC, ISOs

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Focus on Tax Controversy - Fall 2014

Supreme Court to Hear Tax Injunction Act Case - On August 20, 2013, in Direct Marketing Association v. Brohl, the U.S. Court of Appeals for the Tenth Circuit held that the federal Tax Injunction Act (TIA) prohibited the…more

Brohl, Certiorari, Direct Marketing Association, Discovery, Electronically Stored Information

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Illinois Trust Taxation Deemed Unconstitutional

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

Income Taxes, Property Tax, Trusts

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The EU Directive on Antitrust Damages Actions

In This Issue: - Proof of the Competition Law Infringement - Measure of Damages and the “Passing-On” Defence - Disclosure of Evidence - Limitation Periods - Joint and Several Liability and Contributions from…more

Antitrust Litigation, Dispute Resolution, EU, Private Competition Damages

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Focus on Private Equity - October 2014

Proposed EU Merger Review of Non-Controlling Minority Shareholding Acquisitions: Challenges and Opportunities for Private Equity - At present, the EU Merger Regulation [Council Regulation (EC) No 139/2004] (the Merger…more

EU, European Commission, European Merger Control Regulation, IPO, JOBS Act

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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed…more

Africa, Anti-Spam Legislation, Canada, China, Cybersecurity

See All Updates »

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

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

Civil Monetary Penalty, CMS, Healthcare, HHS, OIG

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Taxpayer Challenges Validity of IRS Transfer Pricing Regulation

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

IRS, Proctor & Gamble, Transfer Pricing

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Supreme Court Comcast Decision Makes Antitrust Class Action Certification More Difficult

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

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

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Get Your Prior Art Ducks in a Row Before Filing Your Inter Partes Review Petition

National Environmental Products Ltd. v. Dri-Steem Corp.; PNC Bank National Ass’n v. Secure Axcess, LLC - In two recent decisions demonstrating that amending a petition for inter partes review (IPR) with supplemental…more

Inter Partes Review Proceedings, Patent Trial and Appeal Board, Patents, PNC, Prior Art

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International News: Focus on Compliance

In This Issue - Welcome to the final issue of International News for 2014. As regulatory oversight of companies—from Sarbanes Oxley and the Dodd-Frank Act to the Foreign Corrupt Practices Act and the UK Bribery…more

Chief Compliance Officers, China, COMESA, Compliance, Disclosure Requirements

See All Updates »

Inside M&A - Winter 2015

Recent U.S. Cases Highlight Liability Risks to Executives in Mining, Heavy Industrial Transactions - Historically, corporate executives rarely faced personal or criminal liability resulting from mining or environmental…more

Africa, C-Suite Executives, COMESA, Compliance, Corporate Officers

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PTAB Denies Motion to Amend for Failure to Show Patentability

Reg Synthetic Fuels, LLC v. Neste Oil Oyj - Addressing a patent owner’s motion to amend by cancelling claims and substituting claims, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB or Board)…more

Inter Partes Review Proceedings, Motion to Amend, Patent Trial and Appeal Board, Patents

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Corresponding Structure Required to Avoid Indefiniteness

Robert Bosch, LLC v. Snap-On, Inc. - In the context of addressing claim indefiniteness under § 112, ¶ 2, for lack of disclosure correspondence to a means plus function claim element (under § 112, ¶ 6) the U.S. Court of…more

Appeals, Indefiniteness, Patent Litigation, Patents

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Focus on Tax Strategies & Developments - November 2014

REIT Spin-Offs: Recent Transactions and IRS Rulings - Several recent corporate spin-offs in the United States have involved real estate investment trusts (REITs). Provided several requirements are satisfied, including…more

Corporate Taxes, FATCA, Income Taxes, Inversion, Mortgages

See All Updates »

Divided PTAB Panel Denies Issue Joinder as a Matter of Law

Target Corp. v. Destination Maternity Corp. - Interpreting the statutory provision regarding the one-year time limitation and joinder of parties, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB)…more

Federal Rules of Civil Procedure, Joinder, Patent Infringement, Patent Litigation, Patent Trial and Appeal Board

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

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

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

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Bankruptcy Courts Fail to Enlighten on Electricity as Goods or Services

Is electricity goods or services? That seemingly simple yet confounding question is illustrated by three recent bankruptcy cases (all of which consider whether an electricity provider is entitled to an administrative expense…more

Bankruptcy Code, Commercial Bankruptcy, Contract Formation, Contract Interpretation, Electricity

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IRS Extends Implementation of Certain FATCA Provisions, Eliminates 2013 Reporting

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

FATCA, FFI, Foreign Banks, IGAs, IRC

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

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

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

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

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

Evidentiary Hearings, IRS, SCOTUS, Summons

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Congress Avoids the Fiscal ‘Cliff’—Now What?

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

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

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Focus on Tax Strategies & Developments - November 2014

REIT Spin-Offs: Recent Transactions and IRS Rulings - Several recent corporate spin-offs in the United States have involved real estate investment trusts (REITs). Provided several requirements are satisfied, including…more

Corporate Taxes, FATCA, Income Taxes, Inversion, Mortgages

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Local Wholesaler-Retailer Dispute Has Federal Implications

On August 14, the U.S. District Court for the Southern District of Mississippi issued an opinion finding that state regulations bolstered one antitrust claim and hindered another in an ongoing dispute between a northern…more

Anheuser-Busch, Antitrust Litigation, Distributors, Interstate Commerce, Retailers

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Focus on Tax Strategies & Developments - November 2014

REIT Spin-Offs: Recent Transactions and IRS Rulings - Several recent corporate spin-offs in the United States have involved real estate investment trusts (REITs). Provided several requirements are satisfied, including…more

Corporate Taxes, FATCA, Income Taxes, Inversion, Mortgages

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2015 Notice of Benefit and Payment Parameters

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

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

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