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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Inside M&A - August 2016

Recent Enforcement Trends in Divestiture Packages - The Federal Trade Commission (FTC) and US Department of Justice’s (DOJ) Antitrust Division have been actively challenging mergers and acquisitions (M&A) across a variety…more

Acquisitions, Antitrust Investigations, Divestiture, DOJ, EU

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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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Employee Benefits Innovators Roundtable: Fiduciary Update and the DOL Fiduciary Rule

The US Department of Labor’s new fiduciary rule is aimed at financial advisors, including brokers, who provide retirement plan services. However, the new rule will impact compliance obligations and potentially, costs for plan…more

Benefit Plan Sponsors, Best Interest Contract Exemptions, Conflicts of Interest, DOL, Duty to Monitor

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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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Responding to Marketplace Notices

Employers have begun to receive notices from the Health Insurance Marketplace Exchanges (Marketplace) notifying them that one or more of their employees is eligible for governmental subsidies under the Marketplace. Employers may…more

Affordable Care Act, Appeals, Employer Liability Issues, Full-Time Employees, Health Insurance Exchanges

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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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Brexit Update: What’s Next for the Global Marketplace

In Depth - UK Withdrawal Process - The United Kingdom will continue to be an EU member until procedures are completed for exiting the European Union, which is likely to be a long process. Under EU Treaty rules, the…more

AIFMD, BEPS, Counterparties, EEA, Energy Sector

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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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401(k) Plan Sponsors and Fiduciaries Face an Alarming Number of Stable Value Fund and Other Class Action Lawsuits

In the last several months, plaintiffs have filed multiple class action lawsuits against plan sponsors, plan fiduciaries and stable value fund providers. These lawsuits, which have involved 401(k) plans sponsored by large…more

401k, Benefit Plan Sponsors, Breach of Duty, Class Action, Duty of Loyalty

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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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Open Internet Order Prevails

Addressing challenges to the Federal Communication Commission’s (FCC’s) 2015 Open Internet Order, the US Court of Appeals for the District of Columbia Circuit concluded that the FCC acted with proper authority when it…more

Administrative Authority, Broadband, Communications Act of 1934, Constitutional Challenges, Dismissals

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A Blueprint for Maintaining an Individually Designed Qualified Plan after the IRS’s Determination Letter Program Cutback

In Depth - On June 29, 2016, the Internal Revenue Service (IRS) officially sounded the death knell for the five-year remedial amendment cycle with its release of Revenue Procedure 2016-37. Effective January 1, 2017,…more

Audits, Benefit Plan Sponsors, Determination Letter, IRS, Qualified Retirement Plans

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Extending the Reach of Octane Fitness Under the Lanham Act **WEB ONLY**

The US Court of Appeals for the Fifth Circuit adopted and applied the Supreme Court of the United States’ rationale for an award of attorneys’ fees in patent cases to a trademark case. In doing so, the Fifth Circuit aligned its…more

Appeals, Attorney's Fees, Bad Faith, Business Disparagement, Clear and Convincing Evidence

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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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Brexit Update: What’s Next for the Global Marketplace

In Depth - UK Withdrawal Process - The United Kingdom will continue to be an EU member until procedures are completed for exiting the European Union, which is likely to be a long process. Under EU Treaty rules, the…more

AIFMD, BEPS, Counterparties, EEA, Energy Sector

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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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Brexit Update: What’s Next for the Global Marketplace

In Depth - UK Withdrawal Process - The United Kingdom will continue to be an EU member until procedures are completed for exiting the European Union, which is likely to be a long process. Under EU Treaty rules, the…more

AIFMD, BEPS, Counterparties, EEA, Energy Sector

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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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Federal Circuit Distinguishes “Motivation to Combine” from “Expectation of Success” for Obviousness Purposes

Addressing issues of obviousness and the proper scope of inter partes review (IPR) reply briefs, the US Court of Appeals for the Federal Circuit upheld a Patent Trial and Appeal Board (PTAB or Board) IPR decision finding the…more

Claim Construction, Inter Partes Review Proceedings, Obviousness, Patent Litigation, Patent Trial and Appeal Board

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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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Augmented Reality

If you haven’t heard about newest gaming craze yet, it’s based on what is called “augmented reality” (AR) and it could potentially impinge on your home life and workplace as such games allow users to “photograph” imaginary items…more

Confidential Information, Photographs, Right of Publicity, Smartphones, Trademarks

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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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The European Court Of Justice Requires The European Commission To Provide Adequate Reasons For Its Requests For Information

On March 10, 2016, the Court of Justice of the European Union (CJEU) rendered its judgment in the so-called Cement case, (C-247/14 P HeidelbergCement v Commission, C-248/14 P Schwenk Zement v Commission, C-267/14 P Buzzi Unicem…more

Antitrust Investigations, Appeals, Cartels, EU, European Commission

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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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Lessons Learned – The State of Affairs in US Merger Review

In Depth - In the last year, the US antitrust regulators successfully challenged multiple transactions in court and forced companies to abandon several other transactions as a result of threatened enforcement actions…more

Antitrust Investigations, Competition, Corporate Counsel, DOJ, FTC

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Burden on Motion to Amend in IPR

Applying its own precedent, the US Court of Appeals for the Federal Circuit confirmed that the burden remains on the patent owner to demonstrate the patentability of substitute claims over the art of record in an inter partes…more

Appeals, Burden of Proof, Inter Partes Review Proceedings, Motion to Amend, Patent Infringement

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Burning Man Bus Not a Protected Work of Visual Art Under VARA

The US Court of Appeals for the Ninth Circuit affirmed the judgment of a Nevada district court when it determined that the Visual Artists Rights Act (VARA) of the US Copyright Act did not apply to a used school bus that had been…more

Appeals, Applied Art, Art, Burning Man, Conversion

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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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Brexit Versus Euratom: What the “No” Vote Could Mean for UK Membership in the European Nuclear Peace Treaty

In Depth - Euratom – An Overview - The Euratom Treaty covers all civil nuclear activities in the European Union. As a nuclear peace treaty, it pools the nuclear industries of its Member States and ensures the security…more

Article 50 Treaty of the EU, Atomic Energy, CJEU, Energy Sector, EU

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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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Left Swinging: Why Mickelson Went Uncharged For Insider Trading

In Depth - The Securities and Exchange Commission recently revealed details of an insider trading case against a gambler named William Walters, who allegedly engaged in insider trading based on information he obtained from…more

Appeals, Enforcement Actions, Hedge Funds, Illegal Tipping, Insider Trading

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Managing the Transition to Transformation: The Strategic Implications of MACRA

In Depth - On April 27, the Centers for Medicare and Medicaid Services (CMS) unveiled the much-anticipated (and, for some, feared) proposal to implement the physician payment reforms required under the Medicare Access to…more

CMS, Health Care Providers, Hospitals, Medicaid, Medicare

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FDA and OHRP Issue Joint Draft Guidance on IRB Written Procedures

On August 2, 2016, the US Food and Drug Administration (FDA) and the Office for Human Research Protections (OHRP) jointly issued draft guidance concerning Institutional Review Board (IRB) written procedures. The guidance…more

Draft Guidance, FDA, HHS, Institutional Review Board (IRB), Office for Human Research Protections (OHRP)

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Inside M&A - August 2016

Recent Enforcement Trends in Divestiture Packages - The Federal Trade Commission (FTC) and US Department of Justice’s (DOJ) Antitrust Division have been actively challenging mergers and acquisitions (M&A) across a variety…more

Acquisitions, Antitrust Investigations, Divestiture, DOJ, EU

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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’ First Really Good Amnesty Program since 2002

The Massachusetts Department of Revenue (Department) is widely promoting a new amnesty program with significant taxpayer benefits. Our experience with Massachusetts amnesty suggests that this is the broadest program offered by…more

Audits, Department of Revenue, Right To Appeal, Tax Amnesty

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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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Second Circuit Affirms Dismissal of Sham Citizen Petition Claim, Summary Judgment on False Advertising Claims **WEB ONLY**

Addressing Sherman Act and Lanham Act claims arising out of an Abbreviated New Drug Application (ANDA), the US Court of Appeals for the Second Circuit upheld the district court’s dismissal of the plaintiffs’ Sherman Act claim…more

ANDA, Apotex, Appeals, Dismissals, False Advertising

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Left Swinging: Why Mickelson Went Uncharged For Insider Trading

In Depth - The Securities and Exchange Commission recently revealed details of an insider trading case against a gambler named William Walters, who allegedly engaged in insider trading based on information he obtained from…more

Appeals, Enforcement Actions, Hedge Funds, Illegal Tipping, Insider Trading

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UK Government Confirms Introduction of New Cap on Interest Deductibility

The UK Government has recently confirmed that it will be introducing a new cap on interest deductibility. Under the new rule, the ability of groups to obtain tax relief for interest will be limited by reference to a ratio of…more

BEPS, Business Taxes, Corporate Taxes, Debt Cap, EBITDA

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CMS Proposes CY 2017 Home Health PPS Rate, Updates to ValueBased Purchasing Model and Quality Reporting

The US Department of Health and Human Services (HHS) Centers for Medicare & Medicaid Services (CMS) released proposed updates to its Calendar Year (CY) 2017 Home Health Prospective Payment System (HH PPS) in the July 5, 2016,…more

CMS, Durable Medical Equipment, HHS, Home Health Care, OPPS

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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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Settlement Reached in Temple-Inland; Delaware Internally Reviewing Unclaimed Property Audit Practices

The court case challenging Delaware’s unclaimed property audit methodologies has settled following an opinion brutalizing Delaware’s position. This settlement leaves the US District Court for the District of Delaware (District…more

Audits, Corporate Counsel, Due Process, Escheat, Settlement

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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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Investment Tax Credit Lessee Income Inclusion Guidance Issued

New Internal Revenue Service (IRS) temporary regulations provide guidance on the income inclusion rules that apply when a lessor elects to treat a lessee as having acquired investment credit property under Treas. Reg. § 1.48-4…more

Internal Revenue Code (IRC), Investment Tax Credits, IRS, Lessee, Partnerships

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ANDA Update - Volume 2, Number 2

180-Day Notice Period for Biosimilar Approval Is Always Mandatory and Enforceable by Injunction - Amgen Inc., v. Apotex Inc., (Fed. Cir. July 5, 2016) - A year after analyzing the patent dance and notice requirements…more

Actavis Inc., Amgen, ANDA, Assignments, Attorney-Client Privilege

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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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Capital Markets & Public Companies Quarterly: Catching up on the SEC's Active Second Quarter

In Depth - New SEC C&DIs Regarding Non-GAAP Financial Measures - On May 17, 2016, the SEC issued several new Compliance & Disclosure Interpretations (C&DIs) and modified existing C&DIs to provide additional…more

C&DIs, Fixing America’s Surface Transportation Act (FAST Act), Form 10-K, GAAP, JOBS Act

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Changes To The Taxation Of Termination Payments

Summary - The government has published its response to feedback received on its proposals to simplify the taxation of termination payments, expected to come into force in April 2018. The following table sets out the…more

Employment Discrimination, Harassment, Hiring & Firing, HMRC, Income Taxes

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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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Capital Markets & Public Companies Quarterly: Catching up on the SEC's Active Second Quarter

In Depth - New SEC C&DIs Regarding Non-GAAP Financial Measures - On May 17, 2016, the SEC issued several new Compliance & Disclosure Interpretations (C&DIs) and modified existing C&DIs to provide additional…more

C&DIs, Fixing America’s Surface Transportation Act (FAST Act), Form 10-K, GAAP, JOBS Act

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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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Representations & Warranties Insurance: Understanding the Underwriting Process, Timeline, and Key Coverage Terms

The use of representations and warranties insurance is becoming increasingly commonplace in M&A transactions, particularly in competitive auction processes where use of the product has become almost ubiquitous. While much has…more

Acquisitions, Actual or Constructive Knowledge, Closing Protection Letters, Consequential Damages, Materiality

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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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Capital Markets & Public Companies Quarterly: Catching up on the SEC's Active Second Quarter

In Depth - New SEC C&DIs Regarding Non-GAAP Financial Measures - On May 17, 2016, the SEC issued several new Compliance & Disclosure Interpretations (C&DIs) and modified existing C&DIs to provide additional…more

C&DIs, Fixing America’s Surface Transportation Act (FAST Act), Form 10-K, GAAP, JOBS Act

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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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HHS Proposes Administrative Dispute Resolution Process for 340B-Related Claims

On August 12, 2016, the US Department of Health and Human Services (HHS) Health Resources and Services Administration issued a notice of proposed rulemaking that establishes an administrative dispute resolution process for…more

Administrative Proceedings, Advanced Notice of Proposed Rulemaking (ANPRM), Affordable Care Act, Covered Entities, Dispute Resolution

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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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Investment Tax Credit Lessee Income Inclusion Guidance Issued

New Internal Revenue Service (IRS) temporary regulations provide guidance on the income inclusion rules that apply when a lessor elects to treat a lessee as having acquired investment credit property under Treas. Reg. § 1.48-4…more

Internal Revenue Code (IRC), Investment Tax Credits, IRS, Lessee, Partnerships

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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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Managing the Transition to Transformation: Provider/Payor Integration: 2016 Is Not the 1990s

McDermott’s Managing the Transition to Transformation series is designed to help health systems and other health care industry leaders address the many challenges presented by the transformation in payment and care delivery…more

Acquisitions, Alternative Payment Models (APM), Fee-for-Service, Health Care Providers, Health Information Technologies

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UK Government Confirms Introduction of New Cap on Interest Deductibility

The UK Government has recently confirmed that it will be introducing a new cap on interest deductibility. Under the new rule, the ability of groups to obtain tax relief for interest will be limited by reference to a ratio of…more

BEPS, Business Taxes, Corporate Taxes, Debt Cap, EBITDA

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ANDA Update - Volume 2, Number 2

180-Day Notice Period for Biosimilar Approval Is Always Mandatory and Enforceable by Injunction - Amgen Inc., v. Apotex Inc., (Fed. Cir. July 5, 2016) - A year after analyzing the patent dance and notice requirements…more

Actavis Inc., Amgen, ANDA, Assignments, Attorney-Client Privilege

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