Mintz Levin

Ringing Off The Hook: TCPA Issues Still At Forefront As Calendar Turns To 2016

We may only be three weeks into 2016, but the Telephone Consumer Protection Act (“TCPA”) has already received a considerable amount of attention this year…more

Auto-Dialed Calls, Campbell Ewald v Gomez, Class Action, Declaratory Rulings, FCC

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FCC Proposes to Establish New Air-to-Ground Mobile Broadband Service for Airline Travelers

In a Notice of Proposed Rulemaking issued last week, the FCC proposed to establish a new, terrestrial-based, air-to-ground (“ATG”) mobile broadband service in the 14.0-14.5 GHz Ku-band, providing multi-gigabyte broadband…more

Airlines, Aviation Industry, Broadband, Competitive Bidding, FCC

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When a Quirk of Copyright Law Creates a Christmas Classic: It’s a Wonderful Life and the Public Domain

George Bailey stands on a bridge begging for another chance at life. Upon being granted a second chance, he joyously runs home to embrace his family. As the community of Bedford Falls rallies around him and raises funds to save…more

Copyright, Derivative Works, Holidays, Movies, Public Domain

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Federal Court Dismisses (Without Prejudice) CNA’s Cyber Insurance Lawsuit

We previously reported that CNA filed a lawsuit against its insured Cottage Health System seeking reimbursement of amounts that it previously paid under Cottage’s cyber liability insurance policy. On Friday, a federal district…more

CNA, Cyber Insurance, Mediation

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Comments on Proposed Rules Amendments (Rules 26, 34, and 37)

Mintz Levin compliments the Committee and supports the proposed amendments to the Federal Rules of Civil Procedure because, on balance, the proposals seek to reduce the costs of discovery and litigation of document preservation…more

Federal Rules of Civil Procedure, Proposed Amendments

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Mintz Levin Health Care Qui Tam Update - Recently Unsealed Whistleblower Cases: December 2015

Trends & Analysis - We have identified 24 health care–related qui tam cases that have been unsealed since our last Qui Tam Update. Of the 24 cases, five were filed within the past year, seven were filed in 2014, three were…more

Anti-Kickback Statute, False Claims Act (FCA), False Statements, Medicaid, Medicare

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ACA Countdown to Compliance - 52 Week Series For Employers

In this volume, we have collected the 52 weekly blog posts that comprise the series entitled, The Affordable Care Act—Countdown to Compliance for Employers. The series appeared in the Mintz Levin Employment Matters Blog during…more

ADA, Affordable Care Act, Cafeteria Plans, EEOC, Employer Group Health Plans

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The PTAB Explores Estoppel in New Representative Decision

The Patent Trial and Appeal Board (PTAB) recently announced the addition of its March 26, 2015 decision in Dell, Inc. et al. v. Electronics and Telecomms. Res. Inst., IPR2015-00549 (“the ‘549 IPR”) to its online list of…more

Dell, Estoppel, Patent Trial and Appeal Board, Patents, Prior Art

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District Court Judge Issues TRO and Preliminary Injunction Under the Defend Trade Secrets Act

In some of the first decisions under the newly enacted Defend Trade Secrets Act, on June 10 and 22, 2016, United States District Judge Jon S. Tigar granted a temporary restraining order and preliminary injunction in Henry…more

Corporate Counsel, Defend Trade Secrets Act (DTSA), Misappropriation, Restraining Orders, Salespersons

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Pokémon Go in the Workplace: Oh Look There’s a Pikachu!

Did you know that the world is now inhabited by creatures called Pokémon? (Or maybe they’ve always been there?) Some run across the plains; others fly through the skies; and some live in the mountains….and some, yes, some, are…more

Data Security, Distracted Driving, Employee Engagement, Employee Handbooks, Games

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The Latest Keyword Advertising Battle: The 10th Circuit Finds No Infringement Based on Use of Another’s Trademark to Generate Sponsored Advertisements

Over the past few years, numerous trademark infringement suits have been filed over keyword advertising. Last month, the 10th Circuit weighed in on this subject, issuing a decision with broad implications. In 1-800 Contacts,…more

Google, Infringement, Keyword Advertising, Keyword Search, SEO

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Federal Circuit Invalidates Diagnostic Method Claims for Prenatal Test Under 35 U.S.C. 101

On June 12, 2015, the Federal Circuit affirmed the finding of U.S. District Court for the Northern District of California (“District Court”) that the method claims in U.S. Patent 6,258,540 (‘540 patent) for detecting…more

AMP v Myriad, Diagnostic Tests, DNA, Mayo v. Prometheus, Patent-Eligible Subject Matter

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Mintz TechConnect - December 2015

Letter from the Editors - Welcome to the second issue of Mintz Levin’s TechConnect — our bi-monthly newsletter on “all things technology” in the legal and business world, from our perspective, of course. This issue contains…more

B Corporation, Broadcasting, Corporate Social Responsibility, Crowdfunding, Cybersecurity Information Sharing Act (CISA)

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What are the USPTO’s Patent Plans for Fiscal Year 2017?

The U.S. Patent and Trademark Office (USPTO) explains several patent prosecution trends, goals, and programs to justify proposed spending of its collected fees in its recently-issued Fiscal Year 2017 Congressional Justification…more

America Invents Act, Corporate Counsel, Examiners, Information Technology, Patent Applications

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Baker Signs FY17 Budget, Issues Vetoes

Governor Charlie Baker signed a budget for FY17 on Friday, July 8, after vetoing $256 million in spending included in the plan approved by the legislature. The budget, which represents the second annual spending plan signed by…more

Budgets, Governor Baker, Governor Vetoes, State Budgets

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Supreme Court Makes It Harder for Willful Infringers to Escape Punishment

The Supreme Court has made it easier for patent owners to prove willful infringement and entitlement to enhanced damages. In a unanimous opinion issued yesterday in a pair of cases decided together, Halo Electronics, Inc. v…more

35 U.S.C. § 284, Abuse of Discretion, Enhanced Damages, Halo v Pulse, Judicial Discretion

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Third-Party Protections In Mass Tort Chapter 11 Cases

A defendant facing thousands of mass tort lawsuits in federal and state courts throughout the country often will seek to address the litigation by seeking Chapter 11 relief under the Bankruptcy Code. The Chapter 11 process…more

Automatic Stay, Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Liability Insurance

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California Update: New Laws Give Residential and Commercial Tenants Rights to Install EV Charging Stations and Streamline Residential Solar Permitting

Last month Governor Brown signed AB 2565, which gives residential and commercial tenants new rights to install electric vehicle (EV) charging stations, and AB 2188, which directs cities and counties to streamline permitting for…more

Auto Manufacturers, Automotive Industry, Commercial Leases, Commercial Tenants, Electric Vehicles

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The DOL Releases Its Final Rule Updating the FLSA White-Collar Overtime Regulations

The wait is over! This morning, the Department of Labor announced its Final Rule, which is aimed at expanding overtime eligibility for millions of American workers. At its core, the final version of the rule doubled the…more

DOL, Final Rules, FLSA, Minimum Salary, Wage and Hour

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Why Directors and Officers Should Demand a Separate Indemnification Agreement

Corporate directors and officers (“D&O’s”) face significant personal exposure whenever their corporation is involved in a dispute or investigation. For this reason, prudent D&O’s avail themselves of all available legal…more

Board of Directors, Bylaws, Corporate Charters, Corporate Officers, D&O Insurance

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CAFC Delivers Another Decision on Patentability of Myriad Patents

In Univ. of Utah Res. Foundation et al. v. Ambry Genetics Corp., No. 2014-1361 (Fed. Cir. Dec. 17, 2014), the Federal Circuit once again has weighed in on the patent eligibility of Myriad Genetics, Inc.’s patents related to…more

Ambry, AMP v Myriad, Genetic Materials, Myriad v Ambry, Patent Infringement

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The Legal and Regulatory Landscape for Wellness Plans: The Affordable Care Act and Beyond

The Patient Protection and Affordable Care Act (the ‘‘Act’’) generally encourages employers to adopt wellness plans and programs in conjunction with their group health plans. Wellness plan vendors tout these arrangements with…more

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Mintz Levin Health Care Qui Tam Update - Recently Unsealed Whistleblower Cases: April 2016

Trends & Analysis - ..We have identified 42 health care–related qui tam cases that have been unsealed in whole or in part since the cases covered in our last Qui Tam Update. Included in that count is one proceeding (the…more

Class Action, Corporate Integrity Agreement, Fraud, HIPAA, Qui Tam

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Jury Acquits Former Pharma Exec in One of the First Post-Yates Memo Health Care Fraud Prosecutions

Like many before it, this year has been one to watch in government health care fraud enforcement efforts. In September 2015, the Department of Justice (DOJ) released the “Yates Memo,” which reaffirmed the government’s…more

Acquittals, Affirmative Defenses, Anti-Kickback Statute, Corporate Counsel, Criminal Prosecution

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FDA Issues Warning Letter to Corporate Sponsor of Clinical Trial

The U.S. Food and Drug Administration (FDA) does not frequently issue Warning Letters to corporate sponsors of FDA-regulated clinical trials, so the June 16, 2015, Warning Letter sent to AB Science, a pharmaceutical company with…more

Audits, Clinical Trials, FDA, Inspections, Pharmaceutical Industry

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New Swap Business Conduct and Record-Keeping Regulations Kick in for Municipal Bond Issuers and Borrowers

Beginning May 1, 2013, many new business conduct regulations adopted by the Commodity Futures Trading Commission (“CFTC”) pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) will begin to…more

Borrowers, CFTC, Dodd-Frank, End-Users, ISDA

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Clean Edge 2014 Clean Energy Trends Report: Key Trends Emerging from 2013

We saw some key trends emerging and we are proud to be part of the Clean Edge 2014 Clean Energy Trends Report, released last week. The report highlights trends on the rise and provides a comprehensive glance back at 2013. Some…more

Clean Energy, Energy, Solar Energy

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CMS Releases 2017 Advance Notice and Draft Call Letter

Last week, the Centers for Medicare & Medicaid Services (CMS) released its 2017 Advance Rate Notice and draft Call Letter (“2017 Draft Call Letter”) for the Medicare Advantage (“MA”) and Part D programs. With the final 2017…more

CMS, Employer Group Health Plans, Medicare Advantage, Medicare Part D, Prescription Drugs

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FCC Releases Declaratory Ruling Clarifying and Expanding the Reach of the Telephone Consumer Protection Act

On July 10, 2015 the Federal Communications Commission (“FCC”) released a Declaratory Ruling and Order clarifying its interpretation of the Telephone Consumer Protection Act (“TCPA”) and expanding its reach…more

Auto-Dialed Calls, Declaratory Rulings, FCC, Prior Express Consent, Revocation

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The Department of Labor’s 2016 Final Fiduciary and Conflict of Interest Regulations: Amendments to Prohibited Transaction Exemption 84-24 for Transactions Involving Insurance Agents and Brokers (and Others)

This post continues our examination of the Department of Labor’s suite of final fiduciary and conflict of interest regulations. Our previous posts discussed the newly expanded definition of “investment advice fiduciary”; the…more

Best Interest Contract Exemptions, Brokers, Conflicts of Interest, Covered Transactions, Disclosure Requirements

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TechConnect - Your Law Firm Link to Industry News - February 2016

As the Northeast begins (hopefully) to thaw out and we head into an early spring (so said the Groundhog), we are excited to deliver our new issue of TechConnect — our bimonthly newsletter on “all things technology” in the legal…more

Corporate Taxes, Drones, Private Equity, Protecting Americans from Tax Hikes (PATH) Act, Small Business

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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Insider Loans Equitably Subordinated

In SGK Ventures, LLC, the Bankruptcy Court for the Northern District of Illinois ordered that the secured claims of two entities controlled by insiders of the debtor be equitably subordinated to the claims of unsecured…more

Bankruptcy Court, Closely Held Businesses, Creditors, Debtors, Equitable Subordination

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Statutory Liens vs. Consensual Liens: Why it Matters and When it may Not

While secured creditors are entitled to special rights in bankruptcy, those rights may differ depending on whether creditors have a statutory or consensual lien on their collateral. This is primarily because section 552(a) of…more

Bankruptcy Code, Chapter 9, Debtors, Liens, Municipal Bankruptcy

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Obama Administration Outlines Religious Accommodations for Contraception Coverage Mandate

Last week, federal regulators released a Proposed Rule outlining accommodations for religious employers that object to the Affordable Care Act’s contraception coverage mandate. The Proposed Rule expands the range of employers…more

Affordable Care Act, Contraceptive Coverage Mandate, Exemptions, Reasonable Accommodation, Religious Institutions

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“Your Money or Your PHI”: OCR Releases Guidance on Ransomware

On July 11, 2016, the Office for Civil Rights (OCR) released important new guidance on ransomware for hospitals and other healthcare providers and finally addressed the question of whether electronic protected health information…more

Breach Notification Rule, Covered Entities, Cyber Attacks, Data Breach, Employee Training

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Five Key Decisions for ACOs Looking to Participate in the 2015 MSSP

The Centers for Medicare & Medicaid Services (CMS) has announced the upcoming deadlines for the third round of new applications to the Medicare Shared Savings Program (MSSP). Accountable Care Organizations (ACOs) that…more

ACOs, Affordable Care Act, CMS, Healthcare

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“GMO” Labeling Food Fight: How Vermont’s Act 120 Is Pressuring An Entire Industry

On July 1, 2016, Vermont’s Act 120 will require food manufacturers to indicate in the labeling of all products regulated by FDA when the food has been produced with the use of genetic engineering (GE). Unless Congress acts with…more

FDA, Food Labeling, Food Manufacturers, Genetically Engineered Seed, GMO

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What Questions Executives Should Be Asking About Their D&O Insurance Following The New DOJ Policies Issued Last Week

As was recently reported in the New York Times and elsewhere, the Justice Department issued new policies last week that place individual executives as the focus of their prosecution efforts, and encourage companies to cooperate…more

Board of Directors, C-Suite Executives, D&O Insurance, DOJ, Indemnification

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New Swap Business Conduct and Record-Keeping Regulations Kick in for Municipal Bond Issuers and Borrowers

Beginning May 1, 2013, many new business conduct regulations adopted by the Commodity Futures Trading Commission (“CFTC”) pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) will begin to…more

Borrowers, CFTC, Dodd-Frank, End-Users, ISDA

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Natural Process of Osmosis Has Potential to Generate Electricity

Research published earlier this month in the journal Nature and highlighted in Newsweek explains how substantial amounts of power can be generated when fresh water river mouths flow into bodies of sea water. This natural…more

Electricity, Energy Sector, Nanotechnology, Renewable Energy, Water

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Making “Material Adverse Change” Mean What You Choose It to Mean — Neither More nor Less

A recent decision by the Court of Chancery of Delaware provides a reason to pause before agreeing to standard, boilerplate “material adverse change” clauses in purchase agreements. In Osram Sylvania, Inc. v. Townsend Ventures,…more

Attorney's Fees, Breach of Contract, MACs, Material Adverse Effects, Purchase Agreement

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Washington Outlook for 2015

In This Issue: - Introduction - Agriculture, Food Safety, and Nutrition - Appropriations, Budget, and Debt Ceiling - Defense and National Security - Education - Energy and Environment - Financial…more

Appropriations Bill, Defense Sector, Department of Transportation (DOT), Energy Policy, Environmental Policies

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Sophisticated Email Scams Targeting the Real Estate Industry

A sophisticated (and effective) wire-fraud scam targeting real estate (and other) transactions is on the rise, and mostly occurring in the United States…more

Data Security, Email, Fraud Alerts, National Association of Realtors, Popular

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FCC Clarifies Rule Governing Foreign Ownership of Broadcast Stations

On November 14, 2013, the Federal Communications Commission (“FCC”) adopted a Declaratory Ruling (“Ruling”) clarifying its policies and procedures for reviewing applications or proposed transactions in the broadcasting industry…more

Consent, FCC, Filing Requirements, Foreign Ownership, Telecommunications

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New Swap Business Conduct and Record-Keeping Regulations Kick in for Municipal Bond Issuers and Borrowers

Beginning May 1, 2013, many new business conduct regulations adopted by the Commodity Futures Trading Commission (“CFTC”) pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) will begin to…more

Borrowers, CFTC, Dodd-Frank, End-Users, ISDA

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Tackling Drug Prices: CMS and PhRMA Propose Steps to Promote Value-Based Purchasing

Last week, the Centers for Medicare & Medicaid Services (CMS) and the Pharmaceutical Research and Manufacturers of America (PhRMA) released proposals to address recent criticism over rising drug prices. CMS proposed to tackle…more

CMS, Drug Pricing, Medicare Part B, PHRMA, Prescription Drug Coverage

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Apple (Finally) Enjoins the Sale of (Obsolete) Samsung Phones

In the latest development in the patent skirmishes between Apple and Samsung, on Monday, January 18, 2016, U.S. District Court Judge Lucy Koh of the Northern District of California entered a permanent injunction barring Samsung…more

Apple, Apple v Samsung, Patent Infringement, Patents, Permanent Injunctions

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Africa Update - March 2016 #4

Leading the News - Libya - On March 28th, Libya’s United Nations (U.N.)-backed unity government accused authorities in Tripoli of closing down the capital’s airspace to prevent it from travelling to Libya from Tunisia…more

Africa, Burundi, Ebola, Human Rights, Humanitarian Assistance

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Patentability of Software Post-Alice: How Do Courts Determine Whether an Idea is Abstract ?

Since the Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l on patentable subject matter, courts have tried to follow the prescribed framework. Under Alice, patent claims are invalid if directed to “abstract ideas” and…more

Bilski, CLS Bank v Alice Corp, Mayo v. Prometheus, New Guidance, Patent-Eligible Subject Matter

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These Taxi Drivers Are Not Employees Says Massachusetts Supreme Judicial Court

We have been following the high-publicity battle between Uber and Lyft, on the one hand, and the drivers on the other, over whether the drivers are properly classified as independent contractors. Uber and Lyft argue they are…more

Drivers, Employee Definition, Independent Contractors, Leases, Lyft

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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2017 Diversity Visa Lottery Registration Begins Today

On October 1, 2015, the US Department of State will begin accepting requests to register for the 2017 Diversity Immigrant Visa Program (DV-2017), also known as the Green Card Lottery. The Diversity Lottery Program provides a…more

Adjustment of Status, Consulate, Diversity Lottery, Eligibility, Green Cards

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FCC Proposes to Establish New Air-to-Ground Mobile Broadband Service for Airline Travelers

In a Notice of Proposed Rulemaking issued last week, the FCC proposed to establish a new, terrestrial-based, air-to-ground (“ATG”) mobile broadband service in the 14.0-14.5 GHz Ku-band, providing multi-gigabyte broadband…more

Airlines, Aviation Industry, Broadband, Competitive Bidding, FCC

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UK High Court confirms jurisdiction to grant cross-border declaration of non-infringement

In Actavis Group HF v. Eli Lilly & Co. the UK High Court has granted a declaration of non-infringement in the UK, France, Italy and Spain. A jurisdictional challenge in relation to the French, Italian and Spanish jurisdictions…more

Actavis Inc., Cross-Border, EU, Foreign Jurisdictions, Jurisdiction

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Design Patents – Unlocking the Value of The User Experience

The oft-overlooked design patent has seen somewhat of a revival recently (at least in the media) ever since a jury in California awarded Apple $399 million in damages — i.e., all Samsung profits from the sale of several of its…more

Apple, Damages, Design Patent, Lost Profits, Patent Infringement

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Work and Travel Guidance for F-1 Students with Pending H-1B “Change of Status” Applications and “Cap-Gap” Employment Authorization for FY16

This advisory summarizes key travel and employment issues if you are an F-1 student with Optional Practical Training (OPT) employment eligibility and an H-1B change of status filing on your behalf has been accepted by US…more

Employment Authorization Documents (EAD), F-1 Visa, Foreign Students, H-1B, International Travel

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District Court Judge Issues TRO and Preliminary Injunction Under the Defend Trade Secrets Act

In some of the first decisions under the newly enacted Defend Trade Secrets Act, on June 10 and 22, 2016, United States District Judge Jon S. Tigar granted a temporary restraining order and preliminary injunction in Henry…more

Corporate Counsel, Defend Trade Secrets Act (DTSA), Misappropriation, Restraining Orders, Salespersons

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FDA Releases Draft Guidance on Codevelopment of Therapeutic Products and Screening Tests

On July 14, 2016, the U.S. Food and Drug Administration (the “FDA”) released draft guidance on the codevelopment of therapeutic products (such as pharmaceuticals) and companion tests that are used to determine if the therapeutic…more

Draft Guidance, FDA, Medical Devices, Pharmaceutical Industry

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CPSC Chairman Kaye and Commissioner Adler: Current Civil Penalties Approach Works

Yesterday, CPSC Chairman Elliot Kaye and Commissioner Robert Adler issued a lengthy joint statement vigorously defending the Commission’s current approach to civil penalties against various criticisms voiced by Commissioners Joe…more

Civil Monetary Penalty, Consumer Product Safety Commission (CPSC), CPSC Commissioner

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Department of State Releases August 2016 Visa Bulletin

The Department of State released the visa bulletin for August 2016 and set cutoff dates for employment-based first preference Chinese and Indian chargeable applicants as well as second preference categories for “all other”…more

China, EB-1, EB-2, India, US Department of State

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Handling Nondiscretionary Incentive Payments Under the New FLSA Overtime Rule

One of the few “wins” for employers under the DOL’s new overtime rule was that employers are now allowed to apply “nondiscretionary incentive payments” to meet up to 10 percent of the new salary threshold. This change could…more

Bonuses, Corporate Counsel, DOL, Exempt-Employees, FLSA

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Energy & Environment Update - May 2015

In This Issue: - Energy and Climate - Congress - Administration - Department of Energy - Department of Interior - Environmental Protection Agency - Energy Regulatory Commission - Nuclear…more

Clean Energy, Energy Tax Incentives, EPA, Nuclear Regulatory Commission, Tax Reform

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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Baker Signs FY17 Budget, Issues Vetoes

Governor Charlie Baker signed a budget for FY17 on Friday, July 8, after vetoing $256 million in spending included in the plan approved by the legislature. The budget, which represents the second annual spending plan signed by…more

Budgets, Governor Baker, Governor Vetoes, State Budgets

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Federal Court Rules That Issuers Face Strict Liability for Erroneous Statements About Legal Compliance in Registration Statements, Even if They Did Not Know the Statements Were False

A recent federal appeals court decision addressing pleading standards for shareholder suits under Section 11 of the Securities Act of 1933, as amended, highlights the potential dangers of giving broad assurances of legal…more

Biotechnology, Compliance, Derivative Suit, False Statements, Healthcare

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When a Quirk of Copyright Law Creates a Christmas Classic: It’s a Wonderful Life and the Public Domain

George Bailey stands on a bridge begging for another chance at life. Upon being granted a second chance, he joyously runs home to embrace his family. As the community of Bedford Falls rallies around him and raises funds to save…more

Copyright, Derivative Works, Holidays, Movies, Public Domain

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FDA Denies Request to Make “Patent Dance” a Prerequisite for Biosimilar Approval

In a decision released on March 25, 2015, FDA denied a Citizen’s Petition that would have effectively made the information and patent exchange described in § 262 of the Biologics Price Competition and Innovation Act (“BPCIA”) a…more

Amgen, Biosimilars, BPCIA, FDA, Pharmaceutical Patents

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Washington Outlook for 2016

Welcome to 2016 and our annual look at what’s in store for the United States Congress in the coming year. Here you will find a preview of the US legislative agenda as well as a look at the Obama Administration’s regulatory…more

Energy Policy, Federal Budget, Foreign Policy, International Tax Issues, Legislative Agendas

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Baker Signs FY17 Budget, Issues Vetoes

Governor Charlie Baker signed a budget for FY17 on Friday, July 8, after vetoing $256 million in spending included in the plan approved by the legislature. The budget, which represents the second annual spending plan signed by…more

Budgets, Governor Baker, Governor Vetoes, State Budgets

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Massachusetts Supreme Judicial Court Rejects "Selective Tender Rule" As Exception to Doctrine of Equitable Contribution Among Co-Insurers

On Monday, March 7, 2016, the Massachusetts Supreme Judicial Court (“SJC”) rejected the “selective tender rule” as contrary to Massachusetts insurance law and sound public policy in Insurance Company of the State of Pennsylvania…more

Contribution Claims, Duty to Defend, Indemnification, Insurance Industry, Public Policy

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Supreme Court Adopts Implied False Certification Theory in Universal Health Services v. United States ex rel. Escobar But Imposes Limits

On June 16, 2016, a unanimous Supreme Court issued its long-awaited decision in Universal Health Services v. United States ex rel. Escobar (“Escobar”). The Court ruled that under certain circumstances the theory of “implied…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Federal Contractors, Federal Pleading Requirements

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FCC Clarifies Rule Governing Foreign Ownership of Broadcast Stations

On November 14, 2013, the Federal Communications Commission (“FCC”) adopted a Declaratory Ruling (“Ruling”) clarifying its policies and procedures for reviewing applications or proposed transactions in the broadcasting industry…more

Consent, FCC, Filing Requirements, Foreign Ownership, Telecommunications

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Fed. Cir. Defers to PTAB Finding of Obviousness in First Pharma IPR Reviews (Merck v. Gnosis)

On December 17, 2015, the Federal Circuit issued a precedential decision affirming a determination by the Patent Trial and Appeal Board (“PTAB”) that patent claims related to methods of treating elevated homocysteine levels were…more

America Invents Act, Corporate Counsel, Inter Partes Review Proceedings, Merck, Obviousness

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OIG Issues Favorable GPO Advisory Opinion

The OIG recently issued a favorable advisory opinion permitting a health system (the “Health System”) to become the sole owner of a Group Purchasing Organization (“GPO”), some of whose members were also owned by the Health…more

GPOs, OIG, Safe Harbors

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Federal Circuit Rules That “Same-Day Continuations” Are Proper

The Federal Circuit yesterday issued a decision that will make many patent owners and IP practitioners breathe easier. In Immersion Corp. v. HTC Corp. the Court reversed a district court holding that a continuation application…more

Filing Requirements, Patent Applications, Patents, Same-Day Continuations, USPTO

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Israel Connect - Legal Insight for Success in the US Market

We are excited to present you with the second issue of Israel Connect — our quarterly newsletter focused on forging new connections and strengthening existing bonds between Israeli businesses and the US market. In our second…more

Anti-Competitive, Biosimilars, D&O Insurance, DOJ, FDA

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Deciphering the Final AMP Rule – Key Provisions Impacting Pharmacies, PBMs, and Manufacturers

In late January, the Centers for Medicare & Medicaid Services (“CMS”) released the much anticipated Covered Outpatient Drugs Final Rule with Comment (the “AMP Final Rule”). The rule creates the regulatory definition for Average…more

Affordable Care Act, CMS, Drug Pricing, Fair Market Value, Final Rules

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Data Dump! AshleyMadison.com Fallout Deepens

The Impact Team, the vigilante group behind the hacking of the infamous website AshleyMadison.com has followed through on its threat to leak the full database of the site’s users online. On Tuesday, August 18, 2015, an…more

Ashley Madison, Credit Cards, Data Breach, Data Protection, Hackers

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Focusing on the Second Step of Alice, Federal Circuit Finds Inventive Concept in Software Patent in BASCOM

Arming software-patentees with additional precedent in favor of eligibility for software patents post-Alice, the Federal Circuit on June 27, 2016 handed down its decision in BASCOM Global Internet Servs., Inc. v. AT&T Mobility…more

Appeals, CLS Bank v Alice Corp, Patent-Eligible Subject Matter, Patents, Section 101

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TechConnect - Your Law Firm Link to Industry News - July 2016

Letter from the Editors - Dear Readers, One of the interesting facts that we have learned over the years is that there appears to be a correlation between the NASDAQ public market (which is heavily weighted with…more

Crowdfunding, E-SIGN, E-Signatures, Funding Portal, Intellectual Property Protection

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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U.S. Supreme Court Decides Aereo Internet Broadcast Television Case

Yesterday, the U.S. Supreme Court released its widely-anticipated decision in American Broadcasting Cos., Inc. et al. v. Aereo, Inc., wherein it reversed and remanded for further consideration a decision by the U.S. Court of…more

Aereo, Broadcasting, Copyright, Copyright Infringement, Internet Streaming

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Political and Economic Conditions Shaping America’s Energy Future

America’s 10 year energy resurgence exhibits the difficulty of prediction. Unexpected global events, from the persistence of the U.S. fracking revolution to the impact (or lack thereof) of low natural gas prices on the business…more

Energy & Climate Debates, Energy Policy, Energy Sector, Global Economy, Legislative Agendas

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FLSA Collective Action: Supreme Court Holds Offer of Judgment Moots Claim

Does a “make whole” offer of judgment to the lead plaintiff in a wage and hour collective action put an end to the case? According to the US Supreme Court, the answer is “yes”- at least on the specific facts of the case before…more

Collective Actions, FLSA, Genesis HealthCare, Genesis Healthcare Corp. v. Symczyk, Mootness

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Pokémon Go in the Workplace: Oh Look There’s a Pikachu!

Did you know that the world is now inhabited by creatures called Pokémon? (Or maybe they’ve always been there?) Some run across the plains; others fly through the skies; and some live in the mountains….and some, yes, some, are…more

Data Security, Distracted Driving, Employee Engagement, Employee Handbooks, Games

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The Federal Circuit Newly Recognizes Patent-Agent Privilege

On March 7, 2016, the Court of Appeals for the Federal Circuit recognized “a patent-agent privilege extending to communications with non-attorney patent agents when those agents are acting within the agent’s authorized practice…more

Attorney-Client Privilege, Discovery, Duty of Candor, Federal Rules of Evidence, Patent Agent Privilege

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Lyondell: Is the Safe Harbor Closed to Former Shareholders of LBOs?

In a recent decision by the United States Bankruptcy Court for the Southern District of New York, Weisfelner, v. Fund 1, et al. (In re Lyondell Chem. Co.), 2014 Bankr. LEXIS 159 (Bankr. S.D.N.Y. January 14, 2014), the Court…more

Fraudulent Transfers, Leveraged Buyout, Safe Harbors, Shareholders, Transfers

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Biodiagnostic Laboratory Services Sentenced; Another Physician Pleads Guilty

The long-running test-referral prosecution against Biodiagnostic Laboratory Services, LLC (“BLS”), a New Jersey clinical blood testing laboratory; its owner and employees; and BLS’s referring physicians recently reached another…more

Anti-Kickback Statute, Bribery, Clinical Laboratories, Criminal Prosecution, Guilty Pleas

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California Plaintiffs Say that Size Matters: Consumer Fraud Class Action Challenges Slack-Fill in Protein Products

According to named plaintiffs in a consumer fraud action filed in December in the Southern District of California, size matters when making it comes to making a purchase. In fact, Plaintiffs claim that the average consumer’s…more

Class Action, CLRA, Consumer Fraud, False Advertising, Food Manufacturers

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Limiting Securities Litigation Risks in EB-5 Offerings: What Regional Centers and Issuers Need to Know

The flurry of federal suits filed by the U.S. Securities and Exchange Commission (SEC) in the past few months against several companies and individuals for alleged fraud and false statements in soliciting foreign investors under…more

Corporate Counsel, EB-5, Immigrant Investor Program, Material Misstatements, SEC

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TechConnect - Your Law Firm Link to Industry News - July 2016

Letter from the Editors - Dear Readers, One of the interesting facts that we have learned over the years is that there appears to be a correlation between the NASDAQ public market (which is heavily weighted with…more

Crowdfunding, E-SIGN, E-Signatures, Funding Portal, Intellectual Property Protection

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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Baker Signs FY17 Budget, Issues Vetoes

Governor Charlie Baker signed a budget for FY17 on Friday, July 8, after vetoing $256 million in spending included in the plan approved by the legislature. The budget, which represents the second annual spending plan signed by…more

Budgets, Governor Baker, Governor Vetoes, State Budgets

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Innocents Abroad: Emergency at the Border—Key Considerations

What an afternoon! When Winston Wild’s manager called me, indicating that he was detained at Pearson International Airport, we did not know what to do, which is why I called you. Thank you for calling Winston Wild so…more

Customs and Border Protection, Traveling Employee, Visas

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Failure to Update Infringement Contentions with New Reexamination Claims Fatal for Patentee

On April 22, 2016, a three judge panel of the United States Court of Appeals for the Federal Circuit, consisting of Judges Prost, Dyk and O’Malley, affirmed a district court’s decision to dismiss as moot a patent case involving…more

Mootness, Patent Infringement, Patent Litigation, USPTO

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Duty to Monitor Investments Extends Statute of Limitations for Fiduciary Breach Claim Says Supreme Court

The Supreme Court has decided an important statute of limitations issue in an ongoing fiduciary breach case, Tibble v. Edison International. Tibble has attracted attention up to this point for its substantive claim: that plan…more

401k, Benefit Plan Sponsors, ERISA, Fiduciary Duty, SCOTUS

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Survival of Reps and Warranties: Avoiding Unpleasant Surprises for Buyers

Survival of representations and warranties (“reps and warranties”) is among the staples of highly negotiated provisions in M&A purchase agreements. The length of the survival period limits the time during which claims may be…more

Breach of Contract, Breach of Warranty, Representations and Warranties, Statute of Limitations, Survival Clauses

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Massachusetts Legislature Overhauls Public Records Law

Last week the Massachusetts Legislature adopted significant changes to the Massachusetts Public Records Law. These changes apply to all state agencies and municipalities and in theory are designed to improve the disclosure of…more

Attorney's Fees, Burden of Proof, Discovery, Municipalities, New Legislation

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Paths to Dispute Resolution

In order to understand the best approach to solving a business dispute, counsel must understand the client's business objectives. A need to win at all costs will drive one particular strategy, while a need to resolve the dispute…more

Arbitration, Business Disputes, Business Litigation, Mediation

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Federal Circuit Backs Finding of Inequitable Conduct in Reexamination of Prosthetics Patent

The Federal Circuit has affirmed a district court’s awarding of attorneys’ fees to Alps South (Alps) based on inequitable conduct by Ohio Willow Wood (OWW) during reexamination of its patent for gel-coated, cushioned socks that…more

Attorney's Fees, Evidence, Inequitable Conduct, Inter Partes Reexamination, Patent Infringement

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Mintz Levin Health Care Qui Tam Update - Recently Unsealed Whistleblower Cases: April 2016

Trends & Analysis - ..We have identified 42 health care–related qui tam cases that have been unsealed in whole or in part since the cases covered in our last Qui Tam Update. Included in that count is one proceeding (the…more

Class Action, Corporate Integrity Agreement, Fraud, HIPAA, Qui Tam

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Privacy Shield: The National Data Protection Authorities Hold Fire

The Article 29 Working Party (WP29) has released a brief updated statement on the final form of the Privacy Shield adequacy decision and supporting annexes. WP29 is an important advisory group made up of representatives of each…more

Article 29 Working Party (WP29), Binding Corporate Rules, Data Protection Authority, EU, EU-US Privacy Shield

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FDA Places Ban on Import of GE Salmon

Reversing course from the end of 2015, FDA recently announced an import ban on genetically engineered (GE) salmon until such a time as comprehensive labeling guidelines are introduced. Despite FDA’s approval of GE salmon in…more

FDA, Food Labeling, GMO Bans, Imports, Interstate Commerce

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FCC Releases Declaratory Ruling Clarifying and Expanding the Reach of the Telephone Consumer Protection Act

On July 10, 2015 the Federal Communications Commission (“FCC”) released a Declaratory Ruling and Order clarifying its interpretation of the Telephone Consumer Protection Act (“TCPA”) and expanding its reach…more

Auto-Dialed Calls, Declaratory Rulings, FCC, Prior Express Consent, Revocation

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A Preview of Business Immigration in 2016: H-4 EAD Reforms (Part 4/6)

From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases,…more

DHS, Employment Authorization Documents (EAD), H-1B, H-4 Spouses, Motion for Summary Judgment

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Another Jury Acquits in One of the First Few Prosecutions of Health Care Executives Following DOJ’s Yates Memo

Last month, we reported on a Massachusetts federal court jury’s decision to acquit the former CEO of Warner Chilcott in one of the first prosecutions of a health care executive following the Department of Justice’s (“DOJ”) Yates…more

Acquittals, CEOs, Corporate Executives, DOJ, False Claims Act (FCA)

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Supreme Court Rewrites the Rules for Individual Campaign Contributions: McCutcheon v. Federal Election Commission

On April 2, 2014, the Supreme Court of the United States rendered the McCutcheon decision, addressing the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002 (the “BCRA”). This case involved a challenge…more

Federal Election Commission (FEC), McCutcheon v. FEC, Political Contributions, SCOTUS

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First Circuit Overturns SEC Commissioners’ Sanctions Order

As we have discussed before, the SEC’s increased use of in-house administrative proceedings in enforcement actions involving allegations of fraud has been a subject of considerable debate. Commentators have questioned the…more

Administrative Proceedings, Enforcement Actions, Materiality, Scienter, SEC

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Fund Manager Annual Update

The SEC brought a record number of enforcement actions against investment advisers in 2015, resulting in approximately $4.2 billion in sanctions.1 This alert highlights current issues for private equity, venture capital and…more

AIFMD, Blue Sky Laws, Cybersecurity, Enforcement Actions, Filing Deadlines

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New FINRA Rule 5123 Regarding Private Placements of Securities Effective December 3, 2012

In an effort to enhance oversight and investor protection over private placement activity of firms on behalf of other issuers, new Financial Industry Regulatory Authority, Inc. (FINRA) Rule 5123 became effective on December 3,…more

Commodity Pool, Exemptions, FINRA, Private Investment Funds, Private Placements

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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FINRA Provides Guidance on the Applicability of the Suitability Rule to Broker-Dealers Marketing Private Placements in the EB-5 Context

In an interpretive letter to a broker-dealer dated August 26, 2013, FINRA (Financial Industry Regulatory Authority) interpreted the suitability requirements under Rule 2111 for recommendations to foreign nationals making…more

Broker-Dealer, EB-5, FINRA, Foreign Investment, Suitability Rule

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Westlake Services v. Credit Acceptance: PTAB’s Precedential Decision to Apply Estoppel on a Claim-by-Claim Basis

The Patent Trial and Appeal Board recently designated as precedential its decision in Westlake Services, LLC v. Credit Acceptance Corp., CBM2014-00176, Paper 28 (PTAB May 14, 2015) addressing the scope of estoppel under 35…more

CLS Bank v Alice Corp, Covered Business Method Proceedings, Estoppel, Patent Litigation, Patent Trial and Appeal Board

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The Department of Labor’s 2016 Final Fiduciary and Conflict of Interest Regulations: The Principal Transactions Exemption

This post continues our examination of the Department of Labor’s suite of final fiduciary and conflict of interest regulations. Our prior posts discussed the newly expanded definition of “investment advice fiduciary” and the…more

Best Interest Contract Exemptions, Broker-Dealer, Conflicts of Interest, DOL, Employee Benefits

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Good News on “Bad Boy” Guarantees – IRS Reverts to Prior Position in Recent Legal Advice Memorandum

On April 15, 2016, the IRS released a generic legal advice memorandum (GLAM 2016-001) (the “April GLAM”) addressing the impact of so-called “bad boy” guarantees (also known as nonrecourse carve-out guarantees) on the…more

Bad Boy Liability, Carve Out Provisions, IRS, Non-Recourse Loans, Real Estate Market

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Preserving Net Operating Losses (NOL) Carryforward: What Are You Doing to Protect Your Company’s Valuable Tax Assets?

A company’s past NOLs can be used to offset taxable income in future years, subject to certain limitations. For companies that have operated at a significant loss and expect to turn a profit in the foreseeable future, the…more

Carry Forward, Corporate Taxes, Life Sciences, Net Operating Losses, Publicly-Traded Companies

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Preparation for 2015 Fiscal Year-End SEC Filings and 2016 Annual Shareholder Meetings

As our clients and friends know, each year Mintz Levin provides an analysis of the regulatory developments that impact public companies as they prepare for their fiscal year-end filings with the Securities and Exchange…more

Annual Meeting, Conflict Mineral Rules, Cybersecurity, Disclosure-Based Settlements, Executive Compensation

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Israel Connect - Legal Insight for Success in the US Market

We are excited to present you with the second issue of Israel Connect — our quarterly newsletter focused on forging new connections and strengthening existing bonds between Israeli businesses and the US market. In our second…more

Anti-Competitive, Biosimilars, D&O Insurance, DOJ, FDA

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Important Changes Resulting from New ALTA/NSPS Land Title Survey Standards

As a follow up to my colleague Allan Caggiano’s post on the new 2016 ALTA/NSPS Land Title Survey Standards, the Planning & Zoning Resource Company (PZR) has recently circulated an important advisory on the practical effects of…more

Land Titles, Urban Planning & Development, Zoning Laws

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Mintz TechConnect - December 2015

Letter from the Editors - Welcome to the second issue of Mintz Levin’s TechConnect — our bi-monthly newsletter on “all things technology” in the legal and business world, from our perspective, of course. This issue contains…more

B Corporation, Broadcasting, Corporate Social Responsibility, Crowdfunding, Cybersecurity Information Sharing Act (CISA)

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Israel Connect - Legal Insight for Success in the US Market

We are excited to present you with the second issue of Israel Connect — our quarterly newsletter focused on forging new connections and strengthening existing bonds between Israeli businesses and the US market. In our second…more

Anti-Competitive, Biosimilars, D&O Insurance, DOJ, FDA

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Supreme Court Makes It Harder for Willful Infringers to Escape Punishment

The Supreme Court has made it easier for patent owners to prove willful infringement and entitlement to enhanced damages. In a unanimous opinion issued yesterday in a pair of cases decided together, Halo Electronics, Inc. v…more

35 U.S.C. § 284, Abuse of Discretion, Enhanced Damages, Halo v Pulse, Judicial Discretion

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TechConnect - Your Law Firm Link to Industry News - February 2016

As the Northeast begins (hopefully) to thaw out and we head into an early spring (so said the Groundhog), we are excited to deliver our new issue of TechConnect — our bimonthly newsletter on “all things technology” in the legal…more

Corporate Taxes, Drones, Private Equity, Protecting Americans from Tax Hikes (PATH) Act, Small Business

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Renewable Energy Tax Credits: Recent IRS Notice Favorable to the Renewable Energy Industry

On May 5, 2016, the IRS released new guidance regarding the renewable energy production tax credit (“PTC”) and energy investment tax credit (“ITC”) which most in the renewable energy industry will find favorable…more

Investment Tax Credits, IRS, Production Tax Credit, Renewable Energy, Tax Credits

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7 Key Roles of a Successful Startup CEO

In your experience, what’s the most important role that a startup CEO should fulfill? That’s the question we put recently to JD Supra contributors, many of whom have spent years working with successful entrepreneurs in various…more

Business Formation, CEOs, Legal Perspectives, Startups

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Fed Circuit Reverses PTAB Decision in IPR Proceeding

On June 16, the Federal Circuit issued its first-ever reversal of a Patent Trial and Appeal Board decision in an America Invents Act post-grant proceeding. The opinion, drafted by Chief Judge Prost and joined by CAFC Judge…more

America Invents Act, Inter Partes Review Proceedings, Microsoft, Patent Trial and Appeal Board, Patents

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Key Takeaways from OIG’s 2015 Work Plan

The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) released its Fiscal Year 2015 Work Plan on October 31. The Work Plan provides the OIG’s planned reviews and activities with respect to HHS…more

Affordable Care Act, CMS, Healthcare, Healthcare Reform, HHS

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SEC Proposes Disclosure Rules on Hedging Policies

On Monday, the Securities and Exchange Commission (the “SEC”) proposed rules requiring disclosure of companies’ policies with respect to hedging transactions, in order to implement Section 955 of the Dodd-Frank Wall Street…more

Dodd-Frank, Hedging, Proposed Regulation, Public Disclosure, Publicly-Traded Companies

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Mintz Levin Health Care Qui Tam Update: Recently Unsealed Whistleblower Cases: October 2015

Trends & Analysis: ..We have identified 15 health care–related qui tam cases that were unsealed since our last Qui Tam Update. Of those, 12 were filed from 2012 to the present. All but two cases had been pending more than a…more

Anti-Retaliation Provisions, Corporate Integrity Agreement, Declination, DOJ, Employees

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Preparation for 2015 Fiscal Year-End SEC Filings and 2016 Annual Shareholder Meetings

As our clients and friends know, each year Mintz Levin provides an analysis of the regulatory developments that impact public companies as they prepare for their fiscal year-end filings with the Securities and Exchange…more

Annual Meeting, Conflict Mineral Rules, Cybersecurity, Disclosure-Based Settlements, Executive Compensation

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FDA Reorganization Takes on Cancer Moonshot and Other Initiatives

On July 11, 1969, the United States accomplished the almost unthinkable –two men walking on the moon. Conjuring images of that moon landing, President Obama moved forward the “Cancer Moonshot” program at his January 2016 State…more

Barack Obama, Cancer, FDA, Medical Devices, National Cancer Moonshot

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FCC Eliminates Foreign Competition Test for Certain International Telecommunications Authorization Applications

In an order released on April 22, 2014, the Federal Communications Commission eliminated its longstanding requirement that certain applications for authorization to provide international telecommunications services or for…more

FCC, Telecommunications, WTO

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More EPO Rule Reversals: Additional Searches Available During European Regional Phase

The EPO has announced rule changes that will provide applicants with the option to have additional searches carried out during the European regional phase of Euro-PCT applications…more

EPO, EU, Patent Applications, Patents, USPTO

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Health Care Update - March 2015 #4

In This Issue: - Permanent Medicare Doc-Fix Entering Critical Week - Implementation of the Affordable Care Act - Other Federal Regulatory Initiatives - Congressional Initiatives - Other Health…more

Affordable Care Act, Congressional Investigations & Hearings, Healthcare, Healthcare Fraud, HHS

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Employment-Based Third Preference (EB-3) Cut-Off Dates Advance on the Visa Bulletin for All Countries Except India and the Philippines

The Visa Bulletin for July 2013 shows continual movement forward for immigrant visas in the employment-based third preference (EB-3) category for all countries except India and the Philippines…more

EB-3, India, Visa Bulletins, Visas

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Foreign Corrupt Practices Act (FCPA): Israel Beware – Trends in Enforcement.

Intuitively, Israeli companies and their directors would likely assume that their businesses are immune to investigation and the assessment of penalties by US regulators that are separated by a vast ocean and located more than…more

Anti-Bribery, Anti-Corruption, Best Practices, Books & Records, Bribery

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CISA Guidelines (Part 3): Guidance to Assist Non-Federal Entities

As we wrote previously, the federal government released several guidance documents last month implementing The Cybersecurity Information Sharing Act (CISA). Among these was the Guidance to Assist Non-Federal Entities to Share…more

Cyber Threats, Cybersecurity, Cybersecurity Information Sharing Act (CISA), DHS, DOJ

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Israel Connect - Legal Insight for Success in the US Market

We are excited to present you with the second issue of Israel Connect — our quarterly newsletter focused on forging new connections and strengthening existing bonds between Israeli businesses and the US market. In our second…more

Anti-Competitive, Biosimilars, D&O Insurance, DOJ, FDA

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What App Users Care About When Sharing Personal Data: Permissions

The latest Pew Research Center Report relayed useful information regarding application users’ concerns with sharing personal data. Ninety percent of app users indicated that how their personal data will be used is “very” or…more

Android, App Developers, Google, Google Play Store, Mobile Apps

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Eighth Circuit Issues Decision Significant for All Executives of FDA-Regulated Businesses

On July 6, 2016, the Eighth Circuit Court of Appeals issued its ruling in United States v. DeCoster, in which it upheld prison sentences for two executives under the “responsible corporate officer” (RCO) doctrine of liability,…more

Appeals, Corporate Counsel, Enforcement Authority, FDA, FDCA

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Health Care Congressional Outlook for the June Work Period

The next six weeks are shaping up to be the final work period before the summer recess, with both chambers scheduled to leave DC by July 15th for party conventions followed by the August recess. The National Defense…more

21st Century Cures Initiative, Affordable Care Act, Legislative Agendas, Mental Health, Opioid

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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House Passes GE Labeling Bill; Obama Expected to Sign

As a parting act before its seven-week recess, the House last Thursday passed by a vote of 306-117 Senator Pat Roberts’s (R-KS) legislation (S.764) requiring the labeling of genetically engineered foods. Already approved by the…more

Department of Agriculture, Food Labeling, GMO, GMO Bans, Preemption

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Key Lessons from Patent Litigation for Drafting and Prosecuting Utility Patent Applications

In almost every U.S. patent suit, the patentee’s counsel considers how the case could have been facilitated had the patent at issue been drafted and prosecuted differently. These considerations demonstrate that patents should…more

Claim Construction, Corporate Counsel, Covered Business Method Patents, Patent Applications, Patent Litigation

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Practice Fusion and FTC Settle Complaint Over Deceptive Statements About the Privacy of Consumer-Generated Online Content

Last week, the Federal Trade Commission (FTC) announced (press release) that Practice Fusion, the largest cloud-based electronic health company in the United States, has agreed to settle FTC charges over deceptive practices…more

Cloud Computing, Disclosure Requirements, EHR, FTC, Patient Confidentiality Breaches

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Proxy Season Litigation Primer: Defending Shareholder Suits to Enjoin Annual Meetings for Allegedly Inadequate Disclosures Concerning Equity Compensation Plans

Over the past few years, as plaintiffs have found it increasingly harder to succeed in “say-on-pay” litigation, another type of litigation over proxy disclosures has been on the rise. These cases are generally brought as class…more

Board of Directors, Class Action, Equity Compensation, Executive Compensation, Fiduciary Duty

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Another Jury Acquits in One of the First Few Prosecutions of Health Care Executives Following DOJ’s Yates Memo

Last month, we reported on a Massachusetts federal court jury’s decision to acquit the former CEO of Warner Chilcott in one of the first prosecutions of a health care executive following the Department of Justice’s (“DOJ”) Yates…more

Acquittals, CEOs, Corporate Executives, DOJ, False Claims Act (FCA)

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Regulation of Health IT: A Risk-Based Approach

The FDA will hold a public workshop on May 13-15, 2014 to discuss the long-awaited report (the “Report”) issued on April 3, 2014 by the three federal agencies charged with regulating health information technology (“health IT”),…more

FCC, FDA, FDASIA, Healthcare, ONC

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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Where do the DOL’s New FLSA White-Collar Overtime Regulations Leave Non-Profits and Educational Institutions?

Over the course of this and next week, we will discuss the final overtime rule’s impact and address related workplace issues on which employers should focus in advance of its December 1st implementation date. Today we focus on…more

DOL, Educational Institutions, Final Rules, FLSA, Minimum Salary

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CPSC Chairman Kaye and Commissioner Adler: Current Civil Penalties Approach Works

Yesterday, CPSC Chairman Elliot Kaye and Commissioner Robert Adler issued a lengthy joint statement vigorously defending the Commission’s current approach to civil penalties against various criticisms voiced by Commissioners Joe…more

Civil Monetary Penalty, Consumer Product Safety Commission (CPSC), CPSC Commissioner

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A New Hope for Software Patents?

Software patents have been facing intense scrutiny under 35 U.S.C. § 101 for subject matter eligibility since the U.S. Supreme Court’s Alice v. CLS Bank decision in 2014. In the last two years, the patent ecosystem (including…more

Abstract Ideas, CLS Bank v Alice Corp, Microsoft, Patent-Eligible Subject Matter, Patents

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New York’s Nonprofit Revitalization Act: A Guide to the Law’s Key Provisions

Significant portions of the New York Nonprofit Revitalization Act (the “Revitalization Act” or the “Act”) went into effect in 2014. The Act represents the first overhaul in more than 40 years of laws applicable to nonprofit…more

Board of Directors, Charitable Organizations, Corporate Governance, Executive Compensation, General Solicitation

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Third Circuit Issues Bright-line Interpretation of FMLA’s “Overnight Stay” Rule

Early last month, the U.S. Court of Appeals for the Third Circuit held that a former employee’s hospital stay did not count as an “overnight stay” under the Family and Medical Leave Act, and thus did not trigger the FMLA’s…more

FMLA, Hiring & Firing, Retaliation, Termination, Wrongful Termination

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Federal Circuit Affirms Dismissal Where Co-Owner of Patent Refuses to Join Suit

The Federal Circuit recently denied en banc review of its prior decision dismissing a patent infringement suit where a co-owner of the patent-in-suit refused to join the case voluntarily and the court held that it could not…more

Co-Ownership, Dismissals, En Banc Review, Joinder, Patent Litigation

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Enlarged Board of Appeal referral – Challenging clarity of post-grant amendments

Lack of clarity is not a ground for opposition before the EPO, but can be raised against amendments filed during the opposition proceedings. In accordance with Article 101(3) EPC, any amendments made to a granted patent during…more

European Patent Convention, Patent Litigation, Patents, Post-Grant Review

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Renewable Energy Tax Credits: Recent IRS Notice Favorable to the Renewable Energy Industry

On May 5, 2016, the IRS released new guidance regarding the renewable energy production tax credit (“PTC”) and energy investment tax credit (“ITC”) which most in the renewable energy industry will find favorable…more

Investment Tax Credits, IRS, Production Tax Credit, Renewable Energy, Tax Credits

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Bayer Given a Headache by Trial Court Decision in FLANAX US Trademark Dispute

On February 6, 2015, a US District Court issued a ruling which underscores the territorial nature of trademark rights and the need to seek formal protection for your marks where possible in all countries of interest. The US…more

Bayer, Lanham Act, Mexico, Paris Convention, Popular

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U.S. Department of Defense Expands Telemedicine Access for Military Members

Last month, Jonathan Woodson, M.D., the Assistant Secretary of Defense for Health Affairs for the U.S. Department of Defense, issued a memorandum that effectively changes the Military Health System (“MHS”) policy on…more

Department of Defense (DOD), Military Service Members, Telemedicine

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Fiscal Cliff Legislation Extends Tax Incentive to Invest in Small Businesses

As a result of the recent “fiscal cliff” legislation, otherwise known as the American Taxpayer Relief Act of 2012 (2012 Tax Act), many individual investors are expecting future tax increases, either in the form of higher capital…more

American Taxpayer Relief Act, C-Corporation, Capital Gains, Fiscal Cliff, Income Taxes

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Risk Management, Indemnification and D&O Coverage — Texas Wall Street Women Style

My colleagues Heidi Lawson, Dionne Lomax, and I just finished our tour of four Texas cities in as many days, meeting a lot of incredibly talented, smart, and fun Wall Street women (yes, and some men too) in San Antonio, Austin,…more

D&O Insurance, Indemnification, Liability Insurance, Risk Management

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Three Strikes and Recovery Act is Out

Today’s U.S. Supreme Court decision in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust puts an end to one of Puerto Rico’s multi-pronged efforts to deleverage itself. Given the comprehensiveness of the First…more

Bankruptcy Code, Commonwealth of Puerto Rico v Franklin California Tax-Free Trust, Contracts Clause, Debt Enforcement & Recovery Act (DERA), Preemption

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Mintz Levin Health Care Qui Tam Update - Recent Developments & Unsealed False Claims Act (FCA) Cases: May 2014

Trends & Analysis: ..We have identified 58 health care–related qui tam cases that have been unsealed since our last Qui Tam Update. Of those, 33 cases were initiated after the start of 2012, with the remaining 25 cases…more

Clinical Laboratories, Diagnostic Imaging Services, Financial Conduct Authority (FCA), Healthcare, Hospitals

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Health Care Reform Update -- April 2, 2013

In This Issue: Implementation of the Affordable Care Act (ACA); Other HHS and Federal Regulatory Initiatives; Other Congressional and State Initiatives; Other Health Care News; and Hearings and Mark-Ups…more

Abortion, Affordable Care Act, CMS, Contraceptive Coverage Mandate, Health Insurance Exchanges

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Focusing on the Second Step of Alice, Federal Circuit Finds Inventive Concept in Software Patent in BASCOM

Arming software-patentees with additional precedent in favor of eligibility for software patents post-Alice, the Federal Circuit on June 27, 2016 handed down its decision in BASCOM Global Internet Servs., Inc. v. AT&T Mobility…more

Appeals, CLS Bank v Alice Corp, Patent-Eligible Subject Matter, Patents, Section 101

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Beware the Ides of March at the US Patent and Trademark Office

Last March, the USPTO experienced an enormous spike in the typical number of application filings per week, as numerous US provisional and non-provisional patent applications were filed in advance of the March 16, 2013 effective…more

America Invents Act, Patent Reform, USPTO

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Illinois Joins the Fray: Strengthens its Laws Around Data Breach Notification and Data Security

Sophisticated phishing scams and muscular hacking efforts continue to compromise personal and sensitive information held by insurers, hospital systems, and businesses large and small. In response, many states have strengthened…more

Breach Notification Rule, Cybersecurity, Data Breach, Data Protection, Encryption

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DC Circuit Court Reaffirms Earlier Decision Partially Invalidating Conflict Minerals Rule On First Amendment Grounds

Pursuant to Section 1502 of the Dodd-Frank Act, which added new Section 13(p)(1) to the Securities Exchange Act of 1934, as amended, the SEC promulgated Rule 13p-1 (the “Conflict Minerals Rule”), which required that issuers that…more

Conflict Mineral Rules, Democratic Republic of Congo, Dodd-Frank, First Amendment, Petition For Rehearing

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New Materials Help Covered Entities Comply with Nondiscrimination Rules

Last week, the Department of Health and Human Services (“HHS”) released new materials for covered entities to use to comply with Section 1557, the nondiscrimination provision of the Affordable Care Act. Section 1557 strengthens…more

Affordable Care Act, Covered Entities, Grievance Process, HHS, Non-Discrimination Rules

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Using Corporate Bylaws and Charters to Set the Rules for Shareholder Litigation

Recent court decisions, including the Delaware Supreme Court’s opinion earlier this month in ATP Tour, Inc. v. Deutscher Tennis Bund, have focused new attention on the use of corporate bylaws and charters to establish the ground…more

American Rule, ATP Tours, Attorney's Fees, Board of Directors, Bylaws

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Activist Investor to Pay Record Fine for Violating HSR Reporting Requirements

The Department of Justice (“DOJ”) announced this week that an activist investment manager has agreed to pay a record $11 million to settle allegations that it violated the requirements of the Hart-Scott-Rodino Antitrust…more

Baker Hughes, Corporate Counsel, DOJ, Enforcement Actions, FTC

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Washington Outlook for 2015

In This Issue: - Introduction - Agriculture, Food Safety, and Nutrition - Appropriations, Budget, and Debt Ceiling - Defense and National Security - Education - Energy and Environment - Financial…more

Appropriations Bill, Defense Sector, Department of Transportation (DOT), Energy Policy, Environmental Policies

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Texas Medical Board Seeks State Action Immunity Protection in Fifth Circuit Brief

On June 17, the Texas Medical Board (“Board”) filed a brief with the Fifth Circuit Court of Appeals reiterating that the Board’s rulemaking processes are protected under the state action immunity doctrine, noting that the case…more

Antitrust Violations, Appeals, Immunity, Regulatory Oversight, Rulemaking Process

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Another Jury Acquits in One of the First Few Prosecutions of Health Care Executives Following DOJ’s Yates Memo

Last month, we reported on a Massachusetts federal court jury’s decision to acquit the former CEO of Warner Chilcott in one of the first prosecutions of a health care executive following the Department of Justice’s (“DOJ”) Yates…more

Acquittals, CEOs, Corporate Executives, DOJ, False Claims Act (FCA)

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U.S. Customs and Border Protection Rolling Out Electronic Travel Records

In April 2013, U.S. Customs and Border Protection (CBP) introduced electronic Forms I-94, enabling nonimmigrants entering the U.S. via air and sea to easily access their Form I-94 Arrival/Departure Records online. As of May 1,…more

Customs and Border Protection, Electronic Records, Form I-94, H-1B, L-1 Visas

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Activism and Engagement: Yadda, Yadda, Yadda or a Useful tool (or a Little of Both)

Activism is on the rise and everyone's activism defense playbook includes engagement, engagement and more engagement as the principal response. The experts in the field are well versed in when to engage, who to engage and…more

Board of Directors, Corporate Governance, Regulation FD, Shareholder Activism, Shareholders

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Software Audits: Strategies for Licensees

Audits Have Become More Common - If you have received a software audit request from your software vendor or one of the industry trade groups representing software publishers, such as the Software & Information Industry…more

Audits, License Agreements, Software, Software Developers

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Health Care Reform Update -- April 15, 2013

In This Issue: Leading the News; Implementation of the Affordable Care Act (ACA); Other HHS and Federal Regulatory Initiatives; Other Congressional and State Initiatives; Other Health Care News; and Hearings and Mark-Ups…more

Affordable Care Act, CMS, Federal Budget, Healthcare, HHS

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Over a Decade in the Making: CMS Releases Long-Awaited Medicaid Managed Care Rule

On May 27, 2015, the Centers for Medicare and Medicaid Services (“CMS”) published a 653-page proposed rule affecting the thirty-nine states (plus the District of Columbia) that use managed care organizations (“MCOs”) to…more

CMS, Health Care Providers, Managed Care Contracts, Medicaid

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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(Trade)Marking Your Territory in the US: A Guide for Non-US Companies

Trademark rights exist on a country-by-country basis, and the laws in the United States differ in a number of significant ways from other markets. As a result, it is critical that before any non-U.S. company seeks trademark…more

Community Trademark, Foreign Corporations, Intellectual Property Protection, Intent-to-Use, Madrid Protocol

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CMS Releases Proposed Outpatient Payment System Rule for 2017, Leaving Hospitals Unhappy

Last week, the Centers for Medicare and Medicaid Services (CMS) released its proposed rule for the Hospital Outpatient Prospective Payment System (OPPS) and the Ambulatory Surgical Center (ASC) Payment System for 2017. CMS…more

Bipartisan Budget Act, CMS, EHR, Health Care Providers, Hospitals

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The Impact of Recently Proposed Regulations on Ineligible Nonqualified Plans Under Internal Revenue Code § 457(f)

The Treasury Department and the Internal Revenue Service recently issued comprehensive proposed regulations governing nonqualified plans subject to tax under Internal Revenue Code § 457. Code § 457 prescribes the tax rules that…more

Deferred Compensation, Forfeiture, Income Taxes, Internal Revenue Code (IRC), IRS

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Even After Enfish, Alice Still Casts a Shadow at the PTAB

When it comes to Enfish, the PTAB may have just indicated that it prefers to cut bait. In Informatica Corp. v. Protegrity Corp., CBM2015-0021 (May 31, 2016), the PTAB held that U.S. Patent No 6,321,201 was void under Alice…more

Abstract Ideas, CLS Bank v Alice Corp, Databases, Microsoft, Patent Litigation

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EU-US Privacy Shield to Launch August 1, Replacing Safe Harbor

I. Introduction: Privacy Shield to Go Live August 1 (at Last) - The replacement for Safe Harbor is finally in effect, over nine months after Safe Harbor was struck down by the Court of Justice of the EU in the Schrems case…more

Consent, Data Protection Authority, Data Security, EU, EU-US Privacy Shield

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Latest Post-Alice Guidance from the Federal Circuit

On Thursday, May 12, 2016, the Federal Circuit reversed a lower court’s finding of invalidity under 35 U.S.C. § 101, as an unpatentable abstract idea, of a software patent concerning a “self-referential” database in Enfish v…more

CLS Bank v Alice Corp, Mayo v. Prometheus, Microsoft, Patent Litigation, Patent-Eligible Subject Matter

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Israel Connect - Legal Insight for Success in the US Market

We are excited to present you with the second issue of Israel Connect — our quarterly newsletter focused on forging new connections and strengthening existing bonds between Israeli businesses and the US market. In our second…more

Anti-Competitive, Biosimilars, D&O Insurance, DOJ, FDA

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On the Second Day of Privacy, Plaintiffs’ Counsel Gave to Me . . .

. . . still more privacy litigation. In 2015, we are likely to see further development of the law in data breach class actions, continuing growth in statutory privacy claims, and increased risk of privacy-related claims arising…more

Data Breach, Data Protection, Popular, Right to Privacy, TCPA

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Africa Update - March 2016 #4

Leading the News - Libya - On March 28th, Libya’s United Nations (U.N.)-backed unity government accused authorities in Tripoli of closing down the capital’s airspace to prevent it from travelling to Libya from Tunisia…more

Africa, Burundi, Ebola, Human Rights, Humanitarian Assistance

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Staffing Firms, Educational Organizations, and Breaks-in-Service under the Affordable Care Act Employer Shared Responsibility Rules: Proposed Changes under Notice 2015-87

In Q&A format, recently issued Notice 2015-87 addresses a number of pressing issues that have arisen under the Affordable Care Act (ACA), including that law’s employer shared responsibility rules, information reporting…more

Affordable Care Act, Applicable Large Employers (ALE), Comment Period, Educational Institutions, Full-Time Employees

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Preparation for 2015 Fiscal Year-End SEC Filings and 2016 Annual Shareholder Meetings

As our clients and friends know, each year Mintz Levin provides an analysis of the regulatory developments that impact public companies as they prepare for their fiscal year-end filings with the Securities and Exchange…more

Annual Meeting, Conflict Mineral Rules, Cybersecurity, Disclosure-Based Settlements, Executive Compensation

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OIG Releases Semiannual Report to Congress

The Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) recently released its Semiannual Report to Congress (“Report”), summarizing OIG’s activities for the six-month period ending on March 31,…more

DHS, DOJ, False Claims Act (FCA), Healthcare, HEAT

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REMINDER: Ultra Light Future Energy Forum Boston on September 25, 2013

On Wednesday, September 25, 2013, Ultra Light Startups is hosting its Future Energy Forum at Microsoft NERD in Cambridge, Massachusetts. The event is part of a series of startup pitch events that connects entrepreneurs,…more

Clean Energy, Clean Tech, Startups

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USPTO Guidance for Examiners Takes Expansive View of Myriad and Prometheus Decisions

On March 4, 2014, the U.S. Patent and Trademark Office (“USPTO”) issued a memorandum to the Patent Examining Corps with guidance for determining the patent eligibility of claims relating to products of nature and laws of nature…more

AMP v Myriad, Mayo v. Prometheus, Patent Litigation, Patent-Eligible Subject Matter, Patents

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J-1 Site Visits

The Department of State’s Office of Private Sector Exchange Administration has announced that it will perform site visits to many J-1 Intern and Trainee host organizations beginning this month. Most individual participants and…more

Internships, J-1 Visas, Site Visit Program, US Department of State

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Massachusetts Legislature Overhauls Public Records Law

Last week the Massachusetts Legislature adopted significant changes to the Massachusetts Public Records Law. These changes apply to all state agencies and municipalities and in theory are designed to improve the disclosure of…more

Attorney's Fees, Burden of Proof, Discovery, Municipalities, New Legislation

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Amarin/FDA Settlement: A Significant First Amendment Victory for Off-Label Marketing

On March 8, 2016, Amarin Pharma, Inc. and FDA entered into a formal settlement, close to a year after the U.S. District Court for the Southern District of New York granted a preliminary injunction against FDA’s threats to treat…more

Amarin, FDA, FDCA, First Amendment, Misbranding

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Energy & Environment Update - March 2016 #3

Energy & Climate Debate: The Senate and the House of Representatives are both on Spring Recess, with the Senate returning on April 4 and the House scheduled to return on April 12. Before breaking for recess, the…more

Climate Change, DOE, Environmental Policies, EPA, Investment Tax Credits

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Texas Medical Board Seeks State Action Immunity Protection in Fifth Circuit Brief

On June 17, the Texas Medical Board (“Board”) filed a brief with the Fifth Circuit Court of Appeals reiterating that the Board’s rulemaking processes are protected under the state action immunity doctrine, noting that the case…more

Antitrust Violations, Appeals, Immunity, Regulatory Oversight, Rulemaking Process

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Federal Court Allows the EEOC to Conduct Investigation on Employer’s Premises Without Employer Consent or a Warrant

Many employers are familiar with the fact that the EEOC regularly conducts on-site workplace investigations after receiving charges of discrimination or harassment. A recent federal court decision, however, may lead to an…more

Corporate Counsel, Disability Discrimination, EEOC, Government Investigations, Hiring & Firing

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7 Key Roles of a Successful Startup CEO

In your experience, what’s the most important role that a startup CEO should fulfill? That’s the question we put recently to JD Supra contributors, many of whom have spent years working with successful entrepreneurs in various…more

Business Formation, CEOs, Legal Perspectives, Startups

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Clean Edge 2014 Clean Energy Trends Report: Key Trends Emerging from 2013

We saw some key trends emerging and we are proud to be part of the Clean Edge 2014 Clean Energy Trends Report, released last week. The report highlights trends on the rise and provides a comprehensive glance back at 2013. Some…more

Clean Energy, Energy, Solar Energy

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At Long Last, CMS Issues Final Rule for Lab Fee Schedule Changes

Last Friday afternoon CMS released its eagerly anticipated final rule (the Final Rule) implementing the Protecting Access to Medicare Act of 2014 (PAMA), which, together with the Final Rule, will make sweeping changes to the…more

Clinical Laboratories, CMS, Final Rules, Laboratory Developed Tests, MCLFS

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What Type of Sale Constitutes an On-Sale Bar?

An invention cannot be patented if it was ready for patenting and was subject to a commercial offer for sale more than one year before the application was filed. This so-called “on-sale bar” can also be used to invalidate a…more

FDA, Hospira, On-Sale Bar, Patent Applications, Patent Invalidity

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FDA Finally Decides that “Evaporated Cane Juice” Is Misleading Consumers

Evaporated cane juice, a term usually used to inform about sweeteners derived from the fluid extract of sugar cane, is present on the ingredient lists of many products we see on grocery store shelves. However, newly finalized…more

Confusingly Similar, Evaporated Cane Juice, FDA, Final Guidance, Food Labeling

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Preparing for an Exit: Selling Your Robotics Company

Robots are everywhere. Healthcare, logistics, manufacturing and other critical areas of the economy are being redefined by the robotics and artificial intelligence advances of today’s technology entrepreneurs. With this…more

Artificial Intelligence, Confidential Information, Drones, Emerging Technology Companies, Federal Acquisition Regulations (FAR)

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Keep Calm and IP On: Planning for UK IP Post-Brexit

This past Thursday the Brexit vote sent shockwaves around world, including the IP community and in particular with respect to IP rights in the UK and Europe. But concerns at the moment are speculative as nothing yet has changed…more

Community Designs, Copyright, EU, European Union Trade Mark (EUTM), Intellectual Property Protection

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Supreme Judicial Court Affirms Award 0f $2,250,000 plus Interest Against Insurer for Breach of Duty to Defend and Settle — on $50,000 Policy

In Boyle v. Zurich American Insurance Company, SJC-11791 (Sept. 14, 2015), the Supreme Judicial Court (SJC) affirmed an award of $2,250,000 plus interest against an insurer for failing to defend its insured on a $50,000 policy…more

Breach of Duty, Commercial General Liability Policies, Damages, Denial of Insurance Coverage, Duty to Defend

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Choice is Knowledge: H.R. 3178

This is the fifth installment in a series examining five bipartisan bills advanced by the House Committee on Education and the Workforce on June 22, 2016 and approved by the full House of Representatives on July 11, 2016. While…more

Disclosure Requirements, Federal Student Loans, Higher Education Act, Proposed Legislation, Transparency

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Massachusetts Earned Sick Time Law Takes Effect July 1st

The Massachusetts Earned Sick Time Law, which requires nearly all Massachusetts employers to provide earned sick time to employees, goes into effect on July 1, 2015. Unless they qualify for the limited safe harbor provision…more

Earned Sick Time, Paid Leave, Safe Harbors, Sick Leave

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Energy & Clean Tech Connections: Your Law Firm Link to Industry News -- January 2013

In the January edition of Energy & Clean Tech Connections, we’ve gathered recent information from a wide variety of sources in an effort to keep you abreast of what’s new in the world of clean energy. We draw your attention to…more

Biofuel, China, Clean Tech, Fiscal Cliff, Investment Tax Credits

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U.S. Supreme Court Upholds Affirmative Action Program at University of Texas

On June 23, 2016, in its second time hearing Fisher v. University of Texas, the U.S. Supreme Court upheld the affirmative action admissions program at the University of Texas at Austin. The Court held that the program is lawful…more

Affirmative Action, College Admissions, Compelling Governmental Interest, Diversity, Equal Protection

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Fizzled Suit Against Target Officers and Directors Raises Question as to the Value of Derivative Claims in Data Breach Cases

In a terse two-page order, Senior District Court Judge Paul Magnuson dismissed derivative claims brought against officers and directors of Target in connection with the 2013 holiday-season data breach. The dismissed claims,…more

Corporate Counsel, Data Breach, Derivatives, Form 10-Q, Form 8-K

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Federal Court Declines to Exercise Jurisdiction Over Toshiba Despite Over-the-Counter ADS Sales in the United States

Ever since the Supreme Court issued its opinion in Morrison v. National Australia Bank, Ltd., 561 U.S. 247 (2010), courts have been making their own interpretations of what Morrison means for whether certain transactions are…more

Class Action, Comity, Extraterritoriality Rules, Foreign Issuers, Forum Non Conveniens

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Innocents Abroad: Employer Considerations When Sending Employees on International Assignments or Business Travel

Carrie: I’m writing to inform you that I am being transferred to our Rio de Janeiro office next month for a twelve month assignment. It’s a bit daunting, but I am confident that the help you have provided me in…more

Business Travel, Employee Transfers, Employer Liability Issues, Human Resources Professionals, International Labor Laws

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A New Hope for Software Patents?

Software patents have been facing intense scrutiny under 35 U.S.C. § 101 for subject matter eligibility since the U.S. Supreme Court’s Alice v. CLS Bank decision in 2014. In the last two years, the patent ecosystem (including…more

Abstract Ideas, CLS Bank v Alice Corp, Microsoft, Patent-Eligible Subject Matter, Patents

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Federal Circuit Flushes Appeal Relating to Infringement of Airline Toilet Patents; Waives-Off Challenge to Finding of Assignor Estoppel

On March 23, 2016, the Federal Circuit in MAG Aerospace Indus., Inc. v. B/E Aerospace, Inc., Nos. 2015-1370, -1426, upheld a decision concerning U.S. patents directed to vacuum toilets found on commercial aircraft. In its…more

Aerospace, Aircraft, Assignor Estoppel, Patent Infringement

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Revel: To Stay or Not to Stay? Third Circuit Reveals the Answer

On Sept. 30, 2015, the Third Circuit Court of Appeals in In re Revel AC Inc. issued a decision of significance to federal jurisprudence and bankruptcy practice. Hon. Thomas L. Ambro delivered the court’s opinion, reversing the…more

363 Sales, Appeals, Casinos, Chapter 11, Commercial Bankruptcy

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Green Chemistry Initiatives: An American Patchwork?

A growing number of states are passing Green Chemistry laws, e.g.; California, Connecticut, Maine, Minnesota, and Washington State. These laws present a challenge to manufacturers who distribute and sell products into the 50…more

Green Chemistry, Manufacturers

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Health Care Enforcement in 2013: A Year in Review

In 2013, the U.S. Department of Justice (“DOJ”), Health and Human Services Office of Inspector General (“HHS-OIG”), and other federal and state agencies continued to aggressively prosecute health care fraud and related offenses…more

Compliance, DOJ, Enforcement, Healthcare, Healthcare Fraud

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Supreme Court Decides Two Key Aspects of IPR in Cuozzo Speed Techs., LLC v. Lee

The U.S. Supreme Court ruled on June 20, 2016 in Cuozzo Speed Techs., LLC v. Lee that: (1) the statutory authority of the Patent Trial and Appeal Board (“Board”) in instituting an inter partes review (“IPR”) proceeding is final…more

Administrative Proceedings, America Invents Act, Appeals, Broadest Reasonable Interpretation Standard, Claim Construction

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Good News on “Bad Boy” Guarantees – IRS Reverts to Prior Position in Recent Legal Advice Memorandum

On April 15, 2016, the IRS released a generic legal advice memorandum (GLAM 2016-001) (the “April GLAM”) addressing the impact of so-called “bad boy” guarantees (also known as nonrecourse carve-out guarantees) on the…more

Bad Boy Liability, Carve Out Provisions, IRS, Non-Recourse Loans, Real Estate Market

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D.C. Circuit Strikes a Potential Blow to the Affordable Care Act

Earlier this month, the Court of Appeals for the D.C. Circuit issued its decision in Central United Life Insurance Co., v. Burwell, striking down a Department of Health and Human Services (HHS) rule prohibiting the sale and…more

Affordable Care Act, HHS, Indemnity Insurance, Minimum Essential Coverage, PHSA

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Could the Eastern District of Texas’s Reign Come to an End?

It has become a patent litigation trope, discussed at every Silicon Valley water cooler, that patent litigation is broken because all patent cases are tried in the plaintiff-friendly Eastern District of Texas. While this…more

Corporate Counsel, Kraft, Motion to Transfer, Patent Infringement, Patent Litigation

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As Affordable Care Act Enforcement Looms, Some Lessons Learned From Massachusetts

As the ACA audit era approaches, many employers are wondering: what will happen? What sorts of documentation will the IRS request? What industries will be targeted? And what can employers do to prepare? In this post, I…more

Affordable Care Act, Audits, Employer Mandates, Enforcement Actions, Fair Share Law

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Dutch Foundation Dismissed for Inadequate Safeguarding of Members’ Interests

On June 29, 2016, the Dutch Court of East Brabant dismissed a foundation’s claims against Rabobank Group for alleged unlawful selling of interest rate swaps because it failed to meet the requirement of the Dutch Claim Code that…more

Collective Actions, Corporate Executives, Dismissals, Dutch Claim Code, Founding Members

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Health Care Update - April 2016

FDA Reform Tops Spring Work Period Agenda - The next work period basically runs from April 4 to May 27, with a both chambers adjourning for a week long recess the week of May 2nd. Following this work period, there will be…more

Biosimilars, CMS, Drug Pricing, FDA, HELP

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FCC Broadband Privacy and Security Proposed Rulemaking Underway

As we reported last month, the FCC was preparing a proposed rulemaking (NPRM) to establish privacy and data security requirements for broadband internet access service (BIAS) providers. The FCC has now released that proposal…more

Customer Proprietary Network Information (CPNI), FCC, Net Neutrality, NPRM, Open Internet Rules

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California Supreme Court Upholds Employment Class Action Waivers, but Rejects Waivers of PAGA Claims

The California Supreme Court issued an important decision last week on the enforceability of employment class action waivers included in arbitration agreements. The result: private parties can contract for the waiver of the…more

Arbitration, Class Action, Class Action Arbitration Waivers, CLS Transportation, Employment Contract

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Washington Outlook for 2016

Welcome to 2016 and our annual look at what’s in store for the United States Congress in the coming year. Here you will find a preview of the US legislative agenda as well as a look at the Obama Administration’s regulatory…more

Energy Policy, Federal Budget, Foreign Policy, International Tax Issues, Legislative Agendas

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Judge Gilstrap awards Section 285 fees where Plaintiff’s Section 101 positions cross the “threshold of exceptionality.”

On December 17, 2015, Judge Rodney Gilstrap of the Eastern District of Texas (EDTX) ruled that, in light of Alice Corporation Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014) (“Alice”), a plaintiff’s position on the…more

Attorney's Fees, CLS Bank v Alice Corp, Covered Business Method Patents, Exceptional Case, Octane Fitness v. ICON

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Regulators Speak at IAPP Breakfast Meeting in NYC

Data Breach Incidents—Especially “Ransom” Incidents, are on the Rise—One panelist observed that the New York State Attorney General’s Office received reports of approximately 900 data breach incidents during the past year alone…more

Cybersecurity, Data Breach, Data Protection, DOJ, FOIA

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Class Action Waivers Enforced in Two Recent Second Circuit Decisions

The Second Circuit Court of Appeals recently issued two opinions each holding that class action waivers may be enforced by employers in cases brought under the Fair Labor Standards Act (FLSA). These decisions — Sutherland v…more

Class Action, Class Action Arbitration Waivers, Employer Liability Issues, FLSA, Wage and Hour

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New Rules for ACOs in the MSSP

CMS issued a final rule, published in the Federal Register on Friday, June 10, 2016, updating how the performance of ACOs participating in the Medicare Shared Savings Program (MSSP) is measured and compensated. This rule is…more

ACOs, Benchmarking, CMS, Final Rules, Medicare

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Canadian Court Holds That Evidentiary Requirement For Leave To File Securities Class Action Is “Not A Low Bar”

In January of 2016, this blog commented on the Supreme Court of Canada’s decision in the seminal case of Canadian Imperial Bank of Commerce v. Green. There, the Court held that a prospective plaintiff must move for leave to…more

Canada, Class Action, Evidentiary Rulings, Market Manipulation, Misrepresentation

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Governor Baker Signs Controversial Solar Legislation

On April 11, 2016, Massachusetts Governor Charlie Baker signed a solar energy bill into law that increases the statewide limits on the amount of solar capacity that will qualify for net metering, but also lowers the value of net…more

Energy Policy, Governor Baker, Net Metering, Proposed Legislation, Solar Energy

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Activism: An Overview from the Company Perspective

Increasingly, companies are being confronted with shareholders seeking to exercise power and influence over business activities. The term “activism” has become a buzzword to refer to shareholders seeking to make operational,…more

Best Management Practices, Board of Directors, Corporate Counsel, Corporate Governance, Proxy Advisors

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UPDATE: Subject Matter Eligibility under 35 U.S.C. § 101 – Abstract Ideas

All patent applications submitted to the United States Patent And Trademark Office (USPTO) are examined subject to the requirements set forth in 35 U.S.C. §§101, 102, 103, 112, which respectively address patent eligibility,…more

Abstract Ideas, CLS Bank v Alice Corp, Interim Guidance, Myriad-Mayo, Patent Applications

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Score One for the NLRB: Seventh Circuit Becomes First Federal Appeals Court to Hold that Class/Collective Action Waivers in Arbitration Agreements Violate the NLRA

The Seventh Circuit recently became the first federal appellate court to say that employers can’t prevent class/collective actions through waivers in mandatory arbitration agreements, holding that such waivers interfere with…more

Appeals, Arbitration Agreements, Class Action, Class Action Arbitration Waivers, Collective Action Waivers

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U.S. Supreme Court Rules That Isolated Human Genes Are Unpatentable

Summary - On June 13, 2013 in a much-anticipated decision, the U.S. Supreme Court in Association for Molecular Pathology v. Myriad Genetics, 569 U.S. __ (2013) unanimously held that claims for isolated DNA sequences are…more

AMP v Myriad, Biotechnology, DNA, Human Genes, Myriad

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Goodyear’s Settlement with the SEC Emphasizes the Importance of FCPA Due Diligence in M&A Transactions and of Having a Robust Anti-Corruption Policy

On February 24, 2015, Goodyear Tire & Rubber Co. agreed to pay more than $16 million to settle charges that two of its subsidiaries allegedly paid $3.2 million in bribes that generated $14,122,535 in illicit profits. The SEC…more

Bribery, Compliance, Corruption, Due Diligence, FCPA

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First Circuit Overturns SEC Commissioners’ Sanctions Order

As we have discussed before, the SEC’s increased use of in-house administrative proceedings in enforcement actions involving allegations of fraud has been a subject of considerable debate. Commentators have questioned the…more

Administrative Proceedings, Enforcement Actions, Materiality, Scienter, SEC

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Director Liability for Cybersecurity Risks

If a corporation is the target of a cyberattack resulting in a data breach, its board may be the target of a shareholder derivative action claiming breach of fiduciary duty. A recent example is Palkon v. Holmes, No. 14-cv-01234…more

Board of Directors, Breach of Duty, Cyber Insurance, Cybersecurity, Data Protection

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NIH Signals “Paradigm Shift” with Policy on Multi-Site Studies

Federally-funded clinical trials conducted at multiple sites will move to a single Institutional Review Board (IRB) review scheme under a new National Institutes of Health (NIH) Policy. The NIH has finalized its policy to have a…more

Clinical Trials, Federal Funding, IRB, NIH

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Health Care Enforcement: The Impact on Private Equity Investments

Brian Platton provides an overview of enforcement trends that private equity investors should be aware of before entering into the health care space…more

Affordable Care Act, CMS, Enforcement, GDP, Healthcare

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Vapor Intrusion: New Rules by the EPA

This video provides background on the EPA’s new rules on vapor intrusion, or the intrusion of chemicals into the air inside buildings. The issue applies to any building constructed on a site that was previously used for…more

Construction Industry, EPA, Vapor Intrusion, Vapor Intrusion Guidance

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FinTech Companies Face Big Privacy Challenges in 2016

According to the FBI, “there are only two types of companies: those that have been hacked and those that will be.” It does not take an actual data breach, however, for a company to be liable for its data security practices. In…more

CFPB, Cybersecurity, Data Breach, Data Collection, Data Privacy

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Overview of Certain Middle and Lower Middle Market Credit Trends

With heavier competition for bigger deals, larger private equity sponsors have increasingly turned to the middle market as a source for new acquisitions…more

Acquisitions, Middle Market, Private Equity

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Same-Day Delivery Companies: 2; MA Independent Contractor Statute: 0. First Circuit Once Again Upholds Classification of Couriers as Independent Contractors

Relying on its precedent, the First Circuit Court of Appeals held for the second time this year that the Federal Aviation Administrative Authorization Act of 1994 (“FAAAA”) preempts application of the Massachusetts Independent…more

Classification, Delivery Drivers, Employer Liability Issues, FAAAA, FedEx

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Patentability of Software Post-Alice: How Do Courts Determine Whether an Idea is Abstract ?

Since the Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l on patentable subject matter, courts have tried to follow the prescribed framework. Under Alice, patent claims are invalid if directed to “abstract ideas” and…more

Bilski, CLS Bank v Alice Corp, Mayo v. Prometheus, New Guidance, Patent-Eligible Subject Matter

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Health Care Update - October 2014 #2

In This Issue: - First Look at Pioneer ACO Data Reveals Murky Path Forward - Implementation of the Affordable Care Act - Other Federal Regulatory Initiatives - Other Congressional Initiatives -…more

ACOs, Affordable Care Act, CDC, CMS, Healthcare

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Ebola Exclusions from Commercial Insurance Policies

Last week we wrote about a new business interruption insurance policy that is being rolled out to healthcare providers which will provide specific coverage for various ebola-related losses. This week we note that some business…more

Business Interruption, Commercial Insurance Policies, Ebola

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Visa-Waiver Program Further Restricted for Travelers of Libya, Somalia, and Yemen

In an update to our post from January 25, 2016, the U.S. Department of Homeland Security on Thursday further restricted visa-free travel to the U.S. for people who have traveled to Libya, Somalia, and Yemen. If visited in the…more

DHS, Libya, Somalia, Terrorist Threats, Travel Restrictions

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