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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McDermott International Legal Highlights November 2016

The New World of Global Tax Planning: a Checklist for Success - As all multinationals (MNEs) are discovering, domestic implementation of the recommendations set out in the base erosion and profit shifting (BEPS) final…more

BEPS, Enforcement, EU, Japan, Joint Venture

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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 Restates EPCRS Correction Methods and Procedures

The Internal Revenue Service recently issued Revenue Procedure 2016-51, a new version of the Employee Plans Compliance Resolution System (EPCRS) to consolidate and update its prior guidance regarding how to correct of errors in…more

Audits, Benefit Plan Sponsors, Determination Letter, EPCRS, IRS

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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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IRS Adjusted ACA Fee Amounts for the 2017 Policy or Plan Years

The Patient-Centered Outcomes Research Institute (PCORI) fee was established under the Affordable Care Act (ACA) to advance comparative clinical effectiveness research. The PCORI fee is assessed on issuers of health insurance…more

Affordable Care Act, Fees, Healthcare, HHS, IRS

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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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“Who’s on First?” Routine in Broadway Play Strikes Out as Transformative Fair Use

The US Court of Appeals for the Second Circuit determined that a Broadway play’s verbatim use of William “Bud” Abbott and Lou Costello’s “Who’s on First?” comedy routine was not a transformative fair use, but nonetheless…more

Appeals, Copyright, Copyright Infringement, Copyright Litigation, Fair Use

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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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Managing the Transition to Transformation: Quality and Payment Reform: Who Is Asking for What and Why?

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

Alternative Payment Models (APM), CHIP, CMS, Federal Health Care Programs (FHCP), Fee-for-Service

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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 Delivers Another Blow to Relator in False Claims Act Litigation

On Monday, October 17, the Illinois Appellate Court issued another taxpayer-friendly opinion in an Illinois False Claims Act case alleging a failure to collect and remit sales tax on internet and catalog sales to customers in…more

Appellate Courts, False Claims Act (FCA), Nexus, Sales & Use Tax, Standard of Proof

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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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International News: Focus on International M&A

The Impact of The EU General Data Protection Regulation - The EU General Data Protection Regulation 2016/679 (GDPR) was published in the Official Journal of the European Union on 4 May 2016 following the compromise agreed…more

Acquisitions, Antitrust Litigation, Carry Forward, CFIUS, Cross-Border Transactions

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New York’s New Renewable Energy Standard

Last week’s article discussed New York’s Zero-Emissions Credit (ZEC) for nuclear power. The ZEC is one component of New York’s Clean Energy Standard (CES). The other major component of the CES is the new Renewable Energy…more

Carbon Emissions, Clean Energy, Electricity, Nuclear Power, Offshore Wind

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International News: Focus on International M&A

The Impact of The EU General Data Protection Regulation - The EU General Data Protection Regulation 2016/679 (GDPR) was published in the Official Journal of the European Union on 4 May 2016 following the compromise agreed…more

Acquisitions, Antitrust Litigation, Carry Forward, CFIUS, Cross-Border Transactions

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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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Amazon.com Does Not Have to Put Out the Fire

Addressing an interlocutory appeal, the US Court of Appeals for the 11th Circuit affirmed a district court’s denial of a preliminary injunction against Amazon.com for trademark infringement, agreeing that the plaintiff’s motion…more

Amazon, Appeals, Preliminary Injunctions, Trademark Infringement, Trademarks

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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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District Courts on Willful Infringement Post-Halo

In two recent decisions addressing the issue of willful infringement, the US Court of Appeals for the Federal Circuit recalled its mandate, vacated portions of earlier decisions and remanded to the district court the substantive…more

Appeals, Enhanced Damages, Halo v Pulse, Patent Infringement, Patent Litigation

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PTAB Refusal to Permit Claim Amendments Remanded

Addressing the standard for granting a motion to amend claims in inter partes review (IPR), the US Court of Appeals for the Federal Circuit rejected a conclusion by the Patent Trial and Appeal Board (PTAB or Board) that the…more

Appeals, Claim Amendments, Claim Construction, Inter Partes Review (IPR) Proceeding, Patent Ownership

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European Commission Challenges Public Price Announcements by Shipping Liner Companies

On 7 July 2016, the European Commission adopted a decision accepting commitments by 14 shipping liner companies to change their practices concerning announcements of intended price increases for containerised shipping services…more

Anti-Competitive, Cooperation Agreement, European Commission, Shipping, TFEU

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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, Limited Liability Company (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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Indirect Infringement Not Overcome by Objective Strength of Non-Infringement Case

Addressing indirect infringement and claim construction issues, the US Court of Appeals for the Federal Circuit reversed the district court on three of the four patents at issue, finding that it applied the wrong standard for…more

Appeals, Apple, Claim Construction, Indirect Infringement, Patent Infringement

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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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Absent Nexus, Radio Station Play and Intermediaries Are Insufficient to Prove Access **WEB ONLY**

Addressing the standard for proving “access” to a copyrighted work, the US Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment due to a lack of admissible evidence showing sufficient…more

Copyright, Copyright Infringement, Copyright Litigation, Music, Music Industry

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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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Seventh Circuit Hands FTC Another Geographic Market Definition Victory in Chicago Hospital Merger Case

On October 31, 2016, the US Court of Appeals for the Seventh Circuit handed another important victory to the Federal Trade Commission (FTC) and the State of Illinois in a hospital merger case in Chicago, Illinois. This decision…more

Antitrust Litigation, Antitrust Provisions, Appeals, FTC, Health Care Providers

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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 (IPR) Proceeding, Motion to Amend, Patent Infringement

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Ninth Circuit Joins Octane Fitness Trend for Trademark Cases

In 2014, the Supreme Court of the United States issued its ruling in Octane Fitness (IP Update, Vol. 17, No. 5), in which it examined the fee-shifting provision of the Patent Act and clarified the types of “exceptional” cases…more

Lanham Act, Octane Fitness v. ICON, PATENT Act, Patent Litigation, Patents

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Managing the Transition to Transformation: Digital Health Solutions: Essential Ingredients in Alternative Health Care Delivery and Payment Innovations

INTRODUCTION - Digital health—the intersection of health care related software applications, analytical tools, medical device technology and electronic data assets that are enabled and achieved through the use of the…more

ACOs, Alternative Payment Models (APM), Digital Health, EHR, Health Information Technologies

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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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EU Court Confirms European Commission’s Decision on Pay-for-Delay Agreements

On 8 September 2016, the General Court of the European Union upheld the European Commission’s decision in which the antitrust regulator imposed fines of approximately EUR 150 million on Lundbeck and a number of generic companies…more

EU, European Commission, Generic Drugs, Patents, Pay-For-Delay

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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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Massachusetts Determination of Need Proposal Would Implement State Health Policy Initiatives in Updating DoN Regulations

On September 21, the Massachusetts Department of Public Health conducted the first of two public hearings on proposed changes to the Determination of Need (DoN) regulations. The Proposal would implement significant changes…more

Ambulatory Surgery Centers, Change of Ownership, Determination of Need (DoN), Public Comment, Public Health

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Managing the Transition to Transformation: Digital Health Solutions: Essential Ingredients in Alternative Health Care Delivery and Payment Innovations

INTRODUCTION - Digital health—the intersection of health care related software applications, analytical tools, medical device technology and electronic data assets that are enabled and achieved through the use of the…more

ACOs, Alternative Payment Models (APM), Digital Health, EHR, Health Information Technologies

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McDermott International Legal Highlights November 2016

The New World of Global Tax Planning: a Checklist for Success - As all multinationals (MNEs) are discovering, domestic implementation of the recommendations set out in the base erosion and profit shifting (BEPS) final…more

BEPS, Enforcement, EU, Japan, Joint Venture

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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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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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Ninth Circuit Considers Limits to DEA Access to Oregon PDMP

On November 7, 2016, the US Court of Appeals for the Ninth Circuit heard arguments in Oregon Prescription Drug Monitoring Program v. United States DEA, No. 14-35402 (9th Cir. 2016). Here, the Drug Enforcement Administration…more

Appeals, Controlled Substances Act, DEA, Fourth Amendment, Pharmaceutical Industry

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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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Seventh Circuit Hands FTC Another Geographic Market Definition Victory in Chicago Hospital Merger Case

On October 31, 2016, the US Court of Appeals for the Seventh Circuit handed another important victory to the Federal Trade Commission (FTC) and the State of Illinois in a hospital merger case in Chicago, Illinois. This decision…more

Antitrust Litigation, Antitrust Provisions, Appeals, FTC, Health Care Providers

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PTAB Reverses Obviousness Finding After Remand

The Patent Trial and Appeal Board (PTAB or Board) reversed its previous decision invalidating claims of a patent covering a coaxial cable connector after the US Court of Appeals for the Federal Circuit found that the PTAB erred…more

Inter Partes Review (IPR) Proceeding, Obviousness, Patent Litigation, Patent Trial and Appeal Board, Patents

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Expansion of Liability in Product Labeling Cases

An unprecedented surge in consumer fraud lawsuits over the last several years has consumers and lawyers closely scrutinizing product labels and advertisements. While many of these claims challenge the veracity of “Organic,”…more

Advertising, Consumer Fraud, FDA, FDCA, Food Labeling

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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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Revised Uniform Unclaimed Property Act Finalized for State Enactment—Legislative Drafting Notes and Interpretative Comments Added

The fourth iteration of a uniform unclaimed property act—entitled the Revised Uniform Unclaimed Property Act (RUUPA or Act)—has been finalized by the Uniform Law Commission for state enactment. The new Prefatory Note,…more

Administrative Procedure Act, American Bar Association (ABA), Audits, Legislative Committees, Life Insurance

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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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Italian Revenue Agency Ruling on the VAT Regime to be Applied to the Availability Payments in the Concession Agreements

A recent ruling by the Italian Revenue Agency (Agenzia delle Entrate) has provided guidance on the correct VAT regime to be applied on the payments owed by the grantor to the concessionaire on the availability payment based on…more

Concession Agreements, Italy, Public Private Partnerships (P3s), VAT

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E-Commerce: The European Commission Completes Its Preliminary Report on the E-Commerce Sector Inquiry

In May 2015, the European Commission (the Commission) launched a sector inquiry in the field of e-commerce in the context of its Digital Single Market strategy. Its aim was to obtain an overview of prevailing market trends,…more

Competition, Cross-Border, Cross-Licensing Agreement, Digital Goods, Digital Single Market

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Court Awards $206 Million to Alta Wind Projects in Section 1603 Grant Litigation; Smaller Award to Biomass Facility

The US Court of Federal Claims awarded damages of more than $206 million to Plaintiffs/applicants in a case with respect to the cash grant under Section 1603 of the American Recovery and Reinvestment Act of 2009 (Public Law…more

1603 Grants, Alta Wind Energy Center, American Recovery and Reinvestment Act, Arms Length Transactions, Court of Federal Claims

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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 (IPR) Proceeding, 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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Uber Drivers Uber Happy

As you may have seen from the extensive press coverage, the UK Employment Tribunal has delivered its much anticipated judgment in Aslam and Farrar v Uber. The case was about whether Uber drivers are self-employed contractors, or…more

Appeals, Employer Liability Issues, Employment Tribunals, Independent Contractors, Misclassification

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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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Prosecution History Disclaimer of Claim Scope Must Be “Clear and Unambiguous” in View of the Prosecution History as a Whole

Addressing the issue of prosecution history disclaimer, the US Court of Appeals for the Federal Circuit upheld the district court’s claim construction, finding that selected statements during prosecution did not constitute a…more

Appeals, Claim Construction, Patents, Popular

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International News: Focus on International M&A

The Impact of The EU General Data Protection Regulation - The EU General Data Protection Regulation 2016/679 (GDPR) was published in the Official Journal of the European Union on 4 May 2016 following the compromise agreed…more

Acquisitions, Antitrust Litigation, Carry Forward, CFIUS, Cross-Border Transactions

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PTO Releases New Memo on Recent Subject Matter Eligibility Decisions

In a memorandum to patent examiners dated November 2, 2016, the US Patent and Trademark Office (PTO) addressed recent subject matter eligibility decisions. The memorandum was spurred by two precedential US Court of Appeals for…more

Bascom Global v AT&T Mobility, Patent Litigation, Patent-Eligible Subject Matter, Patents, Popular

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Capital Markets & Public Companies Quarterly: Potential Shift in SEC’s Proxy Access No-Action Policy and Other New Guidance from an Active Q3

The third quarter of 2016 saw the US Securities and Exchange Commission (SEC) carry forward its momentum from an active second quarter. Recent developments include new SEC Compliance & Disclosure Interpretations (C&DI) and new…more

401k, C&DIs, Capital Markets, Filing Requirements, FinTech

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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: Potential Shift in SEC’s Proxy Access No-Action Policy and Other New Guidance from an Active Q3

The third quarter of 2016 saw the US Securities and Exchange Commission (SEC) carry forward its momentum from an active second quarter. Recent developments include new SEC Compliance & Disclosure Interpretations (C&DI) and new…more

401k, C&DIs, Capital Markets, Filing Requirements, FinTech

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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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CMS Releases CY 2017 Final Rule Implementing Changes to Outpatient Prospective Payment System

The Centers for Medicare & Medicaid Services released the calendar year 2017 final rule implementing changes to the Medicare hospital Outpatient Prospective Payment System, or OPPS, including provisions implementing Section 603…more

Bipartisan Budget Act, CMS, Drug Pricing, Final Rules, Hospitals

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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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Court Awards $206 Million to Alta Wind Projects in Section 1603 Grant Litigation; Smaller Award to Biomass Facility

The US Court of Federal Claims awarded damages of more than $206 million to Plaintiffs/applicants in a case with respect to the cash grant under Section 1603 of the American Recovery and Reinvestment Act of 2009 (Public Law…more

1603 Grants, Alta Wind Energy Center, American Recovery and Reinvestment Act, Arms Length Transactions, Court of Federal Claims

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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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Claim Differentiation Doctrine Does Not Overcome Construction Dictated by Written Description or Prosecution History **WEB ONLY**

Addressing the application of the claim differentiation doctrine in claim construction, the US Court of Appeals for the Federal Circuit affirmed the district court’s construction, finding that the doctrine of claim…more

Appeals, Apple, Claim Construction, Patent Infringement, Patents

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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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Concerted Actions with Sister Company in Finland Result in Delaware Jurisdiction

Addressing personal jurisdiction over a foreign defendant, the US Court of Appeals for the Federal Circuit found that concerted actions occurring in a foreign jurisdiction but directed at Delaware were sufficient minimum…more

Appeals, Corporate Counsel, Due Process, Foreign Defendants, Foreign Jurisdictions

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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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FDA Announces Availability of Final Guidance on Menu Labeling

On May 5, 2016, the US Food and Drug Administration (FDA) announced the availability of its final menu labeling guidance, “A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods – Part II (Menu…more

FDA, Food Labeling, Food Safety, Menu-Labeling, New Guidance

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Proposed New IRS Rules for Valuing Interests in Family-Controlled Entities May Curb Discounts for Estate, Gift and Generation-Skipping Tax Purposes

In Depth - On August 2, 2016, the US Department of the Treasury issued long-awaited, proposed regulations on the valuation of interests in family-controlled entities for estate, gift and generation-skipping tax purposes. If…more

Estate Planning, Estate Tax, Family Businesses, Generation-Skipping Transfer, Gift Tax

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IRS Issues Regulations Affecting Compensation Arrangements at Tax-Exempt Organizations

On June 21, the IRS issued long awaited proposed regulations under Section 457 of the Internal Revenue Code that affect a broad range of compensation arrangements at tax exempt organizations. If a compensation arrangement is…more

Compensation Agreements, Deferred Compensation, Employee Benefits, Income Taxes, 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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