McDermott Will & Emery

According to the Paris Court of Appeal, the Jurisdiction Clause in Facebook’s Terms and Conditions Is Not Enforceable Against a French User

References: Paris Court of Appeal, judgment rendered on 12 February 2016, docket # 15/08624 In a 12 February 2016 decision, the Paris Court of Appeal ruled that the jurisdiction clause provided for in Facebook’s general…more

Consumer Contracts, Facebook, France, Jurisdiction, Social Networks

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International News: Focus on Real Estate - April 2016

New UK Requirement to Publish Annual Slavery and Human Trafficking Statement - The United Kingdom’s Modern Slavery Act 2015 requires large commercial organisations operating in the United Kingdom to publish a “slavery and…more

Annulment, Antitrust Litigation, Business Interruption, EU, European Commission

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Plain and Simple: Maryland Tax Court Holds Insurance Company is Exempt from Corporate Income Taxes

Although taxpayers often complain that complying with the tax laws imposed by the numerous state and local taxing jurisdictions that exist in the United States is a burdensome process, many of these tax statutes also provide…more

Corporate Taxes, Exempt Organizations, Insurance Industry, State Taxes, Tax Court

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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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IRS Guidance on Employee Benefits Implications of Supreme Court Obergefell Decision on Same-Sex Marriage

The Internal Revenue Service (IRS) recently issued Notice 2015-86, which provides some additional clarification, in the form of questions and answers, on the treatment of same-sex spouses under tax-qualified retirement plans and…more

Cafeteria Plans, DOMA, Employee Benefits, IRS, Obergefell v. Hodges

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International News: Focus on International Private Client

In This Issue: Features - ..The UK Response to BEPS and Hybrid Mismatches ..Parental Liability for French Subsidiaries ..The Evolving US-Cuba Trade Landscape ..Amendments to Taiwan Fair Trade…more

BEPS, Cuba, Foreign Investment, Foreign Subsidiaries, France

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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

Discovery, Foreign Corporations, Foreign Jurisdictions

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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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EEOC Files Lawsuits Against Employers for Sex Discrimination Under Title VII

For the first time, the U.S. Equal Employment Opportunity Commission (EEOC) is suing private employers on behalf of employees alleging sexual orientation discrimination. On March 1, 2016, the EEOC issued a press release…more

Discrimination, EEOC, Enforcement Actions, Sexual Orientation Discrimination, Title VII

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Maker’s Mark Defeats “Handmade” Class Action Lawsuit

Could consumers have plausibly believed that one of the country’s top-selling bourbon brands is “handmade”? Not according to one federal district court in Florida, which recently dismissed a class action alleging Maker’s Mark…more

Advertising, Class Action, Labeling, Wine & Alcohol, Young Lawyers

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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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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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International News: Focus on Private Equity

Our Focus on Private Equity provides a global perspective on some of the challenges being faced by PE firms and how these can be successfully addressed. It also examines some of the many opportunities available, e.g., by taking…more

Abuse of Dominance, China, Corruption, Data Privacy, Data Protection

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Illinois Appellate Court Upholds Finding of Consumer Fraud Act Violation in Sales Tax Overcollection Case

The Illinois Appellate Court recently affirmed a finding for a plaintiff individual, upholding the circuit court’s conclusion that defendant Sears, Roebuck and Co. (Sears) violated the Consumer Fraud and Deceptive Business…more

Appeals, Attorney's Fees, Consumer Fraud, Inadmissible Evidence, Misrepresentation

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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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Farewell ‘Safe Harbor,’ Hello ‘Privacy Shield’: Europe and U.S. Agree on New Rules for Transatlantic Data Transfer

After intense negotiations, and after the official deadline had passed on Sunday, 31 January 2016, the United States and the European Union have finally agreed on a new set of rules—the “EU-U.S. Privacy Shield”—for data…more

EU, EU-US Privacy Shield, European Commission, European Court of Justice (ECJ), FTC

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Certificated Natural Gas Storage Capacity Is Based on Science Not Sales, FERC Rules

The Federal Energy Regulatory Commission (the Commission) issued an order on Thursday, March 19, 2015, refusing to allow the abandonment of certificated working gas capacity when the reason for the request was unrelated to the…more

Energy Storage, FERC, Mineral Leases, Natural Gas, Oil & Gas

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Farewell ‘Safe Harbor,’ Hello ‘Privacy Shield’: Europe and U.S. Agree on New Rules for Transatlantic Data Transfer

After intense negotiations, and after the official deadline had passed on Sunday, 31 January 2016, the United States and the European Union have finally agreed on a new set of rules—the “EU-U.S. Privacy Shield”—for data…more

EU, EU-US Privacy Shield, European Commission, European Court of Justice (ECJ), FTC

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IRS Announces Additional Changes in Determination Letter Program

The Internal Revenue Service (the IRS) recently issued Notice 2016-03 (the Notice) addressing three topics and expanding on its earlier announcement of major changes in the determination letter program for individually designed…more

Defined Contribution Plans, Determination Letter, Internal Revenue Code (IRC), IRS, Pre-approval

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IRS Changes Streamlined Filing Compliance Procedures for Non-Willfulness Certification Forms

The Internal Revenue Service (IRS) recently modified the non-willfulness certification form that individual taxpayers must submit to enroll in the streamlined filing compliance procedures (SFCP). SFCP is a program offered by…more

Certifications, FBAR, IRS, Offshore Funds, OVDP

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Challenges Facing “Narrow” Provider Networks on the ACA Health Care Insurance Exchanges

In This Issue: - The Driving Forces Behind the Trend Toward Narrower Networks - The Trade-Off - Regulatory, Legislative and Litigatious Responses to Narrower Networks Across the Nation - Judicial and CMS…more

Affordable Care Act, Health Insurance, Health Insurance Exchanges, Legislative Agendas, Medicare

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DOL Clarifies Fiduciary Duties for Defined Contribution Plan Sponsors Offering Annuity Contracts

The availability of annuity options under defined contribution plans has increased in recent years due to the shift from defined benefit to defined contribution plans. Fiduciaries, however, are often concerned with potential…more

Benefit Plan Sponsors, Breach of Duty, Defined Contribution Plans, DOL, Duty of Prudence

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Foreign Litigation Does Not Defeat Presumption of Laches - Lismont v. Alexander Binzel Corp.

Addressing laches issues in the context of a multi-jurisdictional dispute, the US Court of Appeals for the Federal Circuit affirmed a summary judgment ruling that the plaintiff’s correction of inventorship lawsuit was barred by…more

Laches, Multi-Jurisdictional Litigation, Patent Cooperation Treaty, Patents, Summary Judgment

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PTAB Exercises Exclusive Jurisdiction Over Patents Involved in IPR (Alarm.com Inc. v. Vivint, Inc.)

Addressing the issue of jurisdiction during an inter partes review (IPR), the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB or Board) exercised exclusive jurisdiction over several requests for…more

Inter Partes Review Proceedings, Jurisdiction, Patent Litigation, Patent Trial and Appeal Board, Patents

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Recent Judgments Illustrate How the European Commission Can Correct Its Errors Post-Annulment

As a general proposition, when the validity of a European Commission antitrust decision is challenged before the General Court of the European Union (GCEU), the procedure is one of judicial review, not a retrial on the merits…more

Antitrust Litigation, Corporate Counsel, Corporate Fines, EU, European Commission

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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 - April 2015

In This Issue: - The Use of Alternative Credit in Europe - Buying and Selling a Craft Brewery in the United States - Excerpt from The Use of Alternative Credit in Europe: As a result of the reduced…more

Breweries, Equity Financing, EU, Private Equity, Regulatory Standards

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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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Sixth Circuit: “Single-Network” Hospitals Not Exempt from Section One Scrutiny

On March 22, 2016, the U.S. Court of Appeals for the Sixth Circuit allowed a claim to proceed under § 1 of the Sherman Act against four hospitals acting as a single network under a joint operating agreement. Med. Center at…more

Antitrust Conspiracies, Appeals, Horizontal Agreements, Hospital Mergers, Hospitals

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Stent Contract Collapses Standing Argument - TriReme Med., LLC v. AngioScore, Inc.

Addressing the issue of when patent rights are assigned under a contract, the US Court of Appeals for the Federal Circuit overturned the district court’s finding that a prospective inventor had surrendered his rights to an…more

Estoppel, IP Assignment Agreements, Medical Devices, Patent Litigation, Successor Interests

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'Right-Sizing' Full-Time Employees to Reduce ACA Obligations May Lead to ERISA Class Action Exposure

Compliance with the Affordable Care Act (ACA) has resulted in increased health benefit costs for many employers. A recent court decision demonstrates that while programs to reduce the number of full-time employees may lower…more

Affordable Care Act, Class Action, Corporate Counsel, Employer Healthcare Costs, ERISA

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Thirty Years’ Use of Mark Is Not Enough to Prove Acquired Distinctiveness if Evidence Is Insufficient - In re Louisiana Fish Fry Products, Ltd.

Addressing the issue of distinctiveness, the Federal Circuit affirmed the Trademark Trial and Appeal Board’s (TTAB) decision to deny registration of a plaintiff’s mark due to the dearth of evidence supporting the plaintiff’s…more

Corporate Counsel, De Novo Standard of Review, Disclaimers, Evidence, Generic

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The 'Super Powered' Rule of Stare Decisis Defeats Spider Man

The Supreme Court of the United States, in a 6-3 decision, left undisturbed the rule from its 51-year-old decision in Brulotte v. Thys Co. (1964), invoking stare decisis and rejecting arguments seeking to overturn the rule…more

Brulotte, Kimble v Marvel Enterprises, Marvel Comics, Patent Royalties, Patents

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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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Focus on Tax Strategies & Developments - January 2016

Protecting Americans from Tax Hikes Act of 2015—the Year-End Legislation f/k/a Extenders - Just in time for Christmas, Congress passed, with bipartisan support, and the President signed, the “Protecting Americans from Tax…more

Audits, Bipartisan Budget, FIRPTA, Holding Companies, International Tax Issues

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French Class Action Law Has Less Impact Than Expected

Since the entry into force on 1 October 2014 of the provisions of the “Hamon” law of 17 March 2014, which introduced class actions into French law in relation to consumer and competition law matters, only six class actions have…more

Anti-Competitive, Class Action, Competition, France

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Focus on Tax Controversy - Summer 2015

The French 3 Percent Distribution Tax: Claiming a Refund - Since December 2012, French companies have been liable for a 3 percent tax on distributions to their shareholders (3 Percent Tax), but practitioners have widely…more

Corporate Taxes, Dividends, Double Taxation, EU, France

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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

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

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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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FTC and Pennsylvania Attorney General Challenge Health System Combination

The Federal Trade Commission (FTC) and Pennsylvania Attorney General (AG) have challenged the proposed combination of The Penn State Hershey Medical Center (Hershey) and PinnacleHealth System (Pinnacle) in Harrisburg,…more

Administrative Proceedings, Advance Pricing Agreements, Anti-Competitive, Attorney Generals, FTC

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First Amendment Prevents Right of Publicity Claim Arising from Film About “Issues of a Public Nature” - Sgt. Jeffrey S. Sarver v. Nicolas Chartier, et. al.

In a lawsuit involving the 2010 Oscar-winning film The Hurt Locker, the US Court of Appeals for the Ninth Circuit held that right of publicity claims arising from expressive works, including films, are in essence content-based…more

Anti-SLAPP, Film Industry, First Amendment, Free Speech, Right of Publicity

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HHS Releases Highly Anticipated Proposal to Modernize U.S. Human Subjects Research Protections

In a notice of proposed rulemaking (NPRM) released September 2, 2015, the U.S. Department of Health and Human Services (HHS), through the Office for Human Research Protections (OHRP) and 15 other federal departments and…more

Clinical Trials, Comment Period, Data Security, Exemptions, HHS

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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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E-Commerce: National Competitions Authorities Weigh In on Sales Restrictions Regarding Online Marketplaces

In May 2015, the European Commission launched a two-year, industry-wide inquiry into the e-commerce sector to gather data on the functioning of e-commerce markets, so as to identify possible competition concerns. This sector…more

Adidas, Amazon Marketplace, Competition, Competition Authorities, E-Commerce

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

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

Patents, Russia

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New Board Compliance Guidance Prompts General Counsel Focus

Health care general counsel should review, and brief their internal clients on, the new Practical Guidance for Health Care Governing Boards on Compliance Oversight (Guidance), released on April 20, 2015. A joint effort by the…more

Chief Compliance Officers, Health Care Providers, Healthcare, Internal Audit Functions, Internal Controls

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CMS and OIG Finalize Waivers of Fraud and Abuse Laws Applicable to Medicare ACOs

On October 29, 2015, the Centers for Medicare and Medicaid Services (CMS) and the Office of Inspector General (OIG) published a final rule regarding the waiver of several federal health care fraud and abuse laws with respect to…more

ACOs, CMS, Final Rules, Fraud and Abuse, Medicare Shared Savings Program

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CMS Finalizes Prior Authorization Program for Certain DMEPOS Items

On December 30, 2015, the Centers for Medicare & Medicaid Services (CMS) published its final rule establishing a prior authorization program for certain durable medical equipment, prosthetics, orthotics and supplies (DMEPOS)…more

CMS, DMEPOS, Durable Medical Equipment, Final Rules, Medicare

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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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Litigants Challenging PTO Decisions in District Court Should Be Prepared to Pay PTO’s Attorneys’ Fees - Shammas v. Focarino

Addressing the issue of attorneys’ fees in connection with a district court challenge of the U.S. Patent and Trademark Office’s (PTO’s) decision to reject a trademark registration, the U.S. Court of Appeals for the Fourth…more

Attorney's Fees, Trademark Registration, Trademarks, USPTO

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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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Government Issues New Tool to Help Mobile App Developers Identify Applicable Federal Laws

This week, the Federal Trade Commission (FTC or Commission) released an interactive tool (entitled the “Mobile Health Apps Interactive Tool”) that is intended to help developers identify the federal law(s) that apply to apps…more

Breach Notification Rule, FDCA, FTC, HIPAA, Mobile Health Apps

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Focus on Tax Controversy - Summer 2015

The French 3 Percent Distribution Tax: Claiming a Refund - Since December 2012, French companies have been liable for a 3 percent tax on distributions to their shareholders (3 Percent Tax), but practitioners have widely…more

Corporate Taxes, Dividends, Double Taxation, EU, France

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Massachusetts Court Holds Department of Revenue’s Guidance to Be Unreasonable

Northeastern University, the Trustees of Boston University, Wellesley College and 131 Willow Avenue, LLC prevailed in their appeal of the Massachusetts Department of Revenue’s (the Department) rejection of their Brownfields tax…more

Department of Revenue, Non-Profits, Tax Credits, Universities

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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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Maryland AG Challenges Resale Price Maintenance Agreement

On February 29, 2016, the Attorney General of Maryland filed a complaint alleging that Johnson & Johnson Vision Care, Inc. (Johnson & Johnson) violated the Maryland state antitrust law by entering into an agreement with a…more

Antitrust Violations, Attorney Generals, Johnson & Johnson, Resales Agreements, Retailers

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In Determining Whether to Apply Intervening Rights, Courts Must Account for Differences Between Claim Construction Standards - Convolve, Inc. et al. v. Compaq Computer Corp., et al.

The US Court of Appeals for the Federal Circuit again reversed a district court’s summary judgment determination (on remand) that liability was precluded by intervening rights and found that district courts must account for the…more

Appeals, Claim Construction, Inter Partes Reexamination, Intervenors, Patent Infringement

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Shifting Hospice Reimbursement – Moving in the Direction of Aligning Payment with Resource Concentration

The United States Department of Health and Human Services (HHS) Centers for Medicare & Medicaid Services (CMS) published its update to the home health prospective payment system (HHPPS) for fiscal year (FY) 2016 in the August 6,…more

Bundled Payments, CMS, HHS, Home Health Care, Hospice

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Corporate Acquisitions and Employment Verification Issues

Under the Immigration Reform and Control Act of 1986 (IRCA), all employers are required to complete an Employment Eligibility Verification Form I-9 on the first day of employment for all hired employees. While most employers…more

Due Diligence, Hiring & Firing, I-9, ICE, IRCA

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Alabama Legislature Rejects (Yet Another) Attempted Digital Tax Expansion

Last month, a much-anticipated bill drafted by the Alabama Department of Revenue (Department) was introduced in the Alabama Senate that would have expanded the definition of tangible personal property to include “digital goods.”…more

Department of Revenue, Digital Goods, Legislative Agendas, State Taxes

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New York Proposes Revised Regulations for Health Care Collaborations

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

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

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International News: Focus on Real Estate - April 2016

New UK Requirement to Publish Annual Slavery and Human Trafficking Statement - The United Kingdom’s Modern Slavery Act 2015 requires large commercial organisations operating in the United Kingdom to publish a “slavery and…more

Annulment, Antitrust Litigation, Business Interruption, EU, European Commission

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E-Commerce: National Competitions Authorities Weigh In on Sales Restrictions Regarding Online Marketplaces

In May 2015, the European Commission launched a two-year, industry-wide inquiry into the e-commerce sector to gather data on the functioning of e-commerce markets, so as to identify possible competition concerns. This sector…more

Adidas, Amazon Marketplace, Competition, Competition Authorities, E-Commerce

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Short-Term Reauthorization of FAA Programs Potentially Paves the Way For Omitted Energy Credit Extenders

As discussed in our post on March 16, the Congressional extension of the Production Tax Credit (PTC) under Internal Revenue Code (IRC) Section 45 and the Investment Tax Credit (ITC) under IRC Section 48 in December 2015 failed…more

Energy Tax Incentives, Federal Aviation Administration (FAA), Internal Revenue Code (IRC), Investment Tax Credits, Production Tax Credit

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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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HHS Releases Highly Anticipated Proposal to Modernize U.S. Human Subjects Research Protections

In a notice of proposed rulemaking (NPRM) released September 2, 2015, the U.S. Department of Health and Human Services (HHS), through the Office for Human Research Protections (OHRP) and 15 other federal departments and…more

Clinical Trials, Comment Period, Data Security, Exemptions, HHS

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Federal Circuit Remands PTAB’s Denial of Motion to Amend in IPR - Nike, Inc. v. Adidas AG

Addressing a decision by the Patent Trial and Appeal Board (PTAB or Board) denying a motion to amend claims under inter partes review (IPR), the US Court of Appeals for the Federal Circuit remanded the matter to the Board for…more

Adidas, Duty of Candor, Inter Partes Review Proceedings, Motion to Amend, Nike

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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, Internal Revenue Code (IRC)

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Should We Hack Back?

“No,” says U.S. Assistant Attorney General Leslie R. Caldwell. At the most recent Cybersecurity Law Institute held at Georgetown University Law Center in late May, the head of the U.S. Department of Justice’s (DOJ) Criminal…more

Corporate Counsel, Cyber Attacks, Cyber Crimes, Cybersecurity, Data Breach

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McDermott’s Public Company & Capital Markets Quarterly: New Rules Impacting Disclosure, Governance and Capital Raising Efforts

During the first quarter of 2016, the Securities and Exchange Commission (SEC) and U.S. stock exchanges issued proposed and final rules that will likely impact disclosure and capital raising efforts. This report provides a brief…more

Capital Raising, Crowdfunding, Nasdaq, NYSE, SEC

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Increase in UK Employment Protection Awards and New Mandatory National Living Wage

The compensation limits on Employment Tribunal awards and certain other amounts payable under UK employment legislation will be increased as of 6 April 2016…more

Minimum Wage, Redundancy Payments, UK, UK Employment Appeal Tribunal

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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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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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Propriety of a Certificate of Correction Requires Assessment of the Teachings of the Specification as a Whole - Cubist Pharms., Inc. v. Hospira, Inc.

In affirming that a certificate of correction may properly be used to correct a later-discovered error in a chemical diagram, the U.S. Court of Appeals for the Federal Circuit looked to the teachings of the specification as a…more

Patent Litigation, Patents, Pharmaceutical Patents, USPTO

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Special Circumstances Justify USPTO Release of Confidential Information About Pending Patent Applications - Hyatt v. Lee

The U.S. Patent and Trademark Office (USPTO) can release confidential information about pending patent applications under special circumstances the U.S. Court of Appeals for the Federal Circuit decided. Hyatt v. Lee, Case No…more

Administrative Procedure Act, Confidential Information, Patent Applications, Patent Litigation, Patents

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FDA Releases Long-Awaited Biological Naming Draft Guidance and Proposed Rule

On August 27, 2015, the U.S. Food and Drug Administration (FDA) released long-awaited and highly anticipated draft guidance regarding the non-proprietary naming of biological products, including biosimilars. The draft guidance…more

Biologics, Biosimilars, Comment Period, Draft Guidance, Drug Safety

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McDermott’s Public Company & Capital Markets Quarterly: New Rules Impacting Disclosure, Governance and Capital Raising Efforts

During the first quarter of 2016, the Securities and Exchange Commission (SEC) and U.S. stock exchanges issued proposed and final rules that will likely impact disclosure and capital raising efforts. This report provides a brief…more

Capital Raising, Crowdfunding, Nasdaq, NYSE, SEC

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King v. Burwell Decision Upholds Subsidies in Federal Exchanges

On June 25, 2015, the Supreme Court of the United States ruled in King v. Burwell that the Affordable Care Act (ACA) requires premium tax credits to be made available in states that use a federal exchange. The case challenged an…more

Affordable Care Act, Chevron Deference, Health Insurance, Health Insurance Exchanges, Individual Mandate

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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, Insurance Industry, Insureds

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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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McDermott’s Public Company & Capital Markets Quarterly: New Rules Impacting Disclosure, Governance and Capital Raising Efforts

During the first quarter of 2016, the Securities and Exchange Commission (SEC) and U.S. stock exchanges issued proposed and final rules that will likely impact disclosure and capital raising efforts. This report provides a brief…more

Capital Raising, Crowdfunding, Nasdaq, NYSE, SEC

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Expert Testimony Not Always a Guarantee for Appellate Review with Deference - Shire Development v. Watson Pharmaceuticals; Teva Pharmaceuticals v. Sandoz

Addressing the impact of expert testimony used during claim construction, the U.S. Court of Appeals for the Federal Circuit in a case remanded by the U.S. Supreme Court, following its January 5, 2015 decision in Teva…more

Appeals, Claim Construction, Clear Error Standard, Expert Testimony, Patent Litigation

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Massachusetts: Proposing to Repeal Tax Credits Might Have Chilling Effect

During the rollout of his fiscal year 2016 budget proposal, Massachusetts Governor Charlie Baker proposed to repeal the state’s film tax credit in 2017. While this tax credit has drawn criticism for its goal of providing public…more

Film Tax Credits, Governor Baker, Repeal, State Budgets, Tax Revenues

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Program Integrity Changes to the Medicare Provider Enrollment Process

On March 1, 2016, the U.S. Department of Health and Human Services Centers for Medicare & Medicaid Services (CMS) published a proposed rule (Proposed Rule) entitled “Medicare, Medicaid, and Children’s Health Insurance Programs;…more

Affordable Care Act, Billing, CHIP, CMS, DMEPOS

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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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Short-Term Reauthorization of FAA Programs Potentially Paves the Way For Omitted Energy Credit Extenders

As discussed in our post on March 16, the Congressional extension of the Production Tax Credit (PTC) under Internal Revenue Code (IRC) Section 45 and the Investment Tax Credit (ITC) under IRC Section 48 in December 2015 failed…more

Energy Tax Incentives, Federal Aviation Administration (FAA), Internal Revenue Code (IRC), Investment Tax Credits, Production Tax Credit

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Waiting to File Makes No (50) Cents (Simmons v. Stanberry)

The U.S. Court of Appeals for the Second Circuit has held that the Copyright Act’s three-year statute of limitations applies to exclusive licensees thereby precluding a lawsuit against rapper Curtis Jackson, also known as “50…more

Copyright Infringement, Exclusive Licenses, Music Industry, Statute of Limitations, The Copyright Act

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California FTB to Discuss Apportionment of Combined Group Income

The California Franchise Tax Board (FTB) will hold a second Interested Parties Meeting at their office in Rancho Cordova on April 20, 2016, dealing with the apportionment of income for combined reporting groups with both…more

Banks, Broker-Dealer, Business Taxes, Combined Reporting, Franchise Tax Board

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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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Baer to Serve as Acting Associate Attorney General

On Monday, April 11, the U.S. Department of Justice (DOJ) confirmed in a press release that Bill Baer will serve in the DOJ’s third-highest ranking position effective April 17, 2016. Baer will be stepping in for Acting Associate…more

Administrative Appointments, DOJ

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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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Reversal of Narrow Claim Construction Results in Satisfaction of Claim Element (Avid Technologies, Inc. v. Harmonic, Inc.)

Addressing the standard to establish a “clear and unmistakable” disclaimer of claim scope during prosecution, the U.S. Court of Appeals for the Federal Circuit reversed the district court’s narrow claim construction and remanded…more

Appeals, Claim Construction, New Trial, Patent Infringement, Patent Litigation

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China Released the Latest Classification Catalogue of Telecommunications Services (2015 Revision)

On December 28, 2015, the Ministry of Industry and Information Technology of China (the MIIT) released the newly revised Classification Catalogue of Telecommunications Services (2015 Catalogue) and the new Catalogue is due to…more

China, Cloud Computing, Digital Service Providers, Licensing Rules, Mobile Devices

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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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Focus on Tax Strategies & Developments - October 2015

Regulatory Developments Under § 367 Affecting Transfers of Appreciated Property to Foreign Corporations - Introduction: On September 14, the U.S. Department of the Treasury (Treasury) and the Internal Revenue Service…more

Administrative Procedure Act, Amended Regulation, BEPS, Clawbacks, Controlled Foreign Corporations

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Focus on Private Equity - April 2015

In This Issue: - The Use of Alternative Credit in Europe - Buying and Selling a Craft Brewery in the United States - Excerpt from The Use of Alternative Credit in Europe: As a result of the reduced…more

Breweries, Equity Financing, EU, Private Equity, Regulatory Standards

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Pre-Issuance Damages Possible Only If You “Know” About the Published Application - Rosebud LMS Inc. v. Adobe Systems Inc.

Addressing for the first time the notice requirement for pre-issuance damages under 35 USC § 154(d), the US Court of Appeals for the Federal Circuit affirmed the grant of summary judgment of no pre-issuance damages where the…more

Adobe, Constructive Notice, Patent Applications, Patent Infringement, Summary Judgment

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International News: Focus on International Private Client

In This Issue: Features - ..The UK Response to BEPS and Hybrid Mismatches ..Parental Liability for French Subsidiaries ..The Evolving US-Cuba Trade Landscape ..Amendments to Taiwan Fair Trade…more

BEPS, Cuba, Foreign Investment, Foreign Subsidiaries, France

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Tied House Laws and Category Management: A Continuing Quandary

On March 16, the federal Alcohol and Tobacco Tax and Trade Bureau (TTB) published a list of frequently asked questions expanding further on a ruling issued in February on application of the federal “tied house law” to industry…more

Advertising, Marketing, Retailers, Rulemaking Process, Tobacco

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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, Internal Revenue Code (IRC)

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International News: Focus on Real Estate - April 2016

New UK Requirement to Publish Annual Slavery and Human Trafficking Statement - The United Kingdom’s Modern Slavery Act 2015 requires large commercial organisations operating in the United Kingdom to publish a “slavery and…more

Annulment, Antitrust Litigation, Business Interruption, EU, European Commission

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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

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

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Yet Another Bite at this Apple: Damages in Design Patent Cases - Samsung Electronics Co., Ltd. v. Apple Inc.

The Supreme Court of the United States has now agreed to review a 2015 decision by the US Court of Appeals for the Federal Circuit regarding the proper measure of damages in cases of design patent infringement. Samsung…more

Apple v Samsung, Attorney's Fees, Calculation of Damages, Claim Construction, Copyright

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IRS Announces Major Changes to its Determination Letter Program for Individually Designed Retirement Plans

On July 21, 2015, the Internal Revenue Service (IRS) issued Announcement 2015-19 (the Announcement), which ends the five year remedial amendment cycles for individually designed plans effective January 1, 2017. For remedial…more

Benefit Plan Sponsors, Comment Period, Defined Benefit Plans, Defined Contribution Plans, Determination Letter

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Microsoft Antitrust Suit Against InterDigital Stands, Judge Says

On April 13, 2016, the US District Court for the District of Delaware denied InterDigital’s motion to dismiss an antitrust suit filed by Microsoft (Microsoft Mobile, Inc. v. InterDigital, Inc., Case No. 15-cv-723-RGA). In the…more

Antitrust Litigation, Corporate Counsel, Microsoft, Motion to Dismiss, Popular

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According to the Paris Court of Appeal, the Jurisdiction Clause in Facebook’s Terms and Conditions Is Not Enforceable Against a French User

References: Paris Court of Appeal, judgment rendered on 12 February 2016, docket # 15/08624 In a 12 February 2016 decision, the Paris Court of Appeal ruled that the jurisdiction clause provided for in Facebook’s general…more

Consumer Contracts, Facebook, France, Jurisdiction, Social Networks

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CMS Finalizes Controversial Changes to "2-Midnight Rule" for Inpatient Stays

On October 30, 2015, the Centers for Medicare & Medicaid Services (CMS) released its final rule updating the Hospital Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) Payment System for Calendar…more

Ambulatory Surgery Centers, CMS, Final Rules, Hospitals, OPPS

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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

Certiorari, Direct Marketing Association, Discovery, Electronically Stored Information, Meal and Entertainment Expenditures

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Aerospace & Defense Series: Implications of the FTC / DOJ Statement on Preserving Competition in the Defense Industry

In Depth - On April 12, 2016, the Federal Trade Commission (FTC) and the US Department of Justice (DOJ) issued a joint statement to explain their “standard of review under the antitrust statutes of proposed transactions…more

Aerospace, Defense Sector, Department of Defense (DOD), DOJ, FTC

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Good Faith Belief in Invalidity No Defense to Active Inducement

The U.S. Supreme Court (Justice Kennedy writing for the majority) has now eliminated a defense that has been available to parties accused of actively inducing patent infringement under 35 USC § 271(b). The Court held that a…more

Cisco, Cisco v CommilUSA, Good Faith, Honest Belief Defense, Induced Infringement

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Trying to Outhustle a Permanent Injunction (LFP IP, LLC v. Hustler Cincinnati, Inc.)

Addressing the issue of modifying a permanent injunction for trademark infringement, the Court of Appeals for the Sixth Circuit held that an injunction may be modified if it is no longer “achieving its principal objects,” due to…more

Injunctions, Modification, Permanent Injunctions, Trademark Infringement, Trademarks

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Unenforceability Due to Client Failure to Correct Counsel’s Misrepresentations to PTO - The Ohio Willow Wood Company v. Alps South, LLC

In the ongoing saga between two manufacturers of liners for prosthetic limbs, the US Court of Appeals for the Federal Circuit confirmed a finding of inequitable conduct committed by the patent owner while the patent at issue was…more

Appeals, Ex Partes Reexamination, Inequitable Conduct, Medical Devices, Order to Stay

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King v. Burwell Decision Upholds Subsidies in Federal Exchanges

On June 25, 2015, the Supreme Court of the United States ruled in King v. Burwell that the Affordable Care Act (ACA) requires premium tax credits to be made available in states that use a federal exchange. The case challenged an…more

Affordable Care Act, Chevron Deference, Health Insurance, Health Insurance Exchanges, Individual Mandate

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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, Good Faith, Life Sciences

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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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McDermott’s Public Company & Capital Markets Quarterly: New Rules Impacting Disclosure, Governance and Capital Raising Efforts

During the first quarter of 2016, the Securities and Exchange Commission (SEC) and U.S. stock exchanges issued proposed and final rules that will likely impact disclosure and capital raising efforts. This report provides a brief…more

Capital Raising, Crowdfunding, Nasdaq, NYSE, SEC

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Form 5500 Deadline Extension Repealed

On December 4, 2015, President Obama signed the Fixing America’s Surface Transportation Act (FAST Act). In addition to authorizing $305 billion in funding for federal highway projects, the FAST Act also repeals the recently…more

Benefit Plan Sponsors, Extensions, Filing Deadlines, Fixing America’s Surface Transportation Act (FAST Act), Form 5500

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CMS Finalizes Stark Law Amendments

On November 16, 2015, the Centers for Medicare and Medicaid Services (CMS) published the 2016 Medicare Physician Fee Schedule final rule with comment period in the Federal Register at 80 Fed. Reg. 70,886, which includes a final…more

Amended Regulation, CMS, Exceptions, Physician Compensation Arrangements, Physician-Owned Hospitals

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Illinois Supreme Court “Upgrades” Willful Misconduct Requirements in Unemployment Cases

The longstanding statutory definition of “willful misconduct” that would disqualify an unemployment insurance claimant has been “the deliberate and willful violation of a reasonable rule or policy of the employing unit,…more

Appellate Courts, Employer Liability Issues, IL Supreme Court, Termination, Unemployment

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Focus on Tax Controversy - December 2015

IRS Updates Administrative Appeals Process for Cases Docketed in Tax Court - In Notice 2015-72, the Internal Revenue Service (IRS) provided a proposed revenue procedure to update Rev. Proc. 87-24, 1987-1 C.B. 720, which…more

Administrative Appeals, Attorney-Client Privilege, Estate Tax, Good Faith, Income Taxes

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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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PTAB Denies Institution Where Claim Indefiniteness Precludes Application of Prior Art to the Claims

The Patent Trial and Appeal Board (PTAB or Board) denied institution of inter partes review (IPR) after determining that the challenged claims were indefinite and that therefore the Board could not apply the prior art to them…more

Claim Construction, Honda, Indefiniteness, Inter Partes Review Proceedings, Patent Litigation

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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 Relaxes Investment Income Identification Rules

The New York State Department of Taxation and Finance has announced that it would extend the time for certain taxpayers to identify stocks as being held for investment so that income from those stocks would be tax-exempt [TSB…more

Corporate Taxes, Internal Revenue Code (IRC), Investment Funds, Net Investment Income

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Treasury Finalizes Regulations on the Varying Interests Rule Under Section 706

On August 3, 2015, the U.S. Department of Treasury (Treasury) and the Internal Revenue Service (IRS) issued final regulations under Section 706(d), providing rules for determining the partners’ distributive shares of partnership…