Morrison & Foerster LLP

America Invents Act Updates Take Final Form

In a last-minute decision for the 112th Congress, the House of Representatives approved an America Invents Act (AIA) technical-revisions bill as amended by the Senate (H.R. 6621) on January 1, 2013. President Obama is expected…more

America Invents Act, Derivation Proceeding, First-to-Invent, Inter Partes Review (IPR) Proceeding, Patent Reform

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Important Changes to the IRS Determination Letter Program for Retirement Plans

The Internal Revenue Service (“IRS”) has modified procedures governing favorable determination letters for individually designed qualified retirement plans, including 401(k), profit sharing, defined benefit, and cash balance…more

401k, Benefit Plan Sponsors, Defined Benefit Plans, Determination Letter, Employer Identification Number (EIN)

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Financial Services Report, Summer 2015

In This Issue: - Arbitration Report - Beltway Report - Bureau Report - Mobile & Emerging Payments Report - Mortgage & Fair Lending Report - Operations Report - Preemption Report - Privacy…more

Arbitration Agreements, CashCall, CFPB, Consumer Bankruptcy, Consumer Financial Products

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MoFo IP Newsletter - August 2016

Supreme Court Abolished Federal Circuit's Test for Willfulness - On June 13, 2016, in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. ___ (2016), the Supreme Court unanimously abrogated the Federal Circuit’s…more

Abuse of Discretion, Appeals, Attorney's Fees, Authorship, Books

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SFO and Rolls-Royce agree to half billion pound DPA

Just over a year after the approval of the first ever Deferred Prosecution Agreement (DPA), Southwark Crown Court on 17 January 2017 approved a DPA proposed by the Serious Fraud Office (SFO) with UK leading engineering group,…more

Corruption, Deferred Prosecution Agreements, Penalties, Rolls-Royce, Serious Fraud Office

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Consumer Products: The CPSC Files Suit Seeking Civil Penalties Against Michaels Stores for Failures of Reporting and Material Misrepresentation

Last week, the U.S. Department of Justice, on behalf of the United States Consumer Product Safety Commission (CPSC), filed suit against Michaels Stores, Inc. (“Michaels”) in the Northern District of Texas. United States of…more

Civil Monetary Penalty, Consumer Product Safety Commission (CPSC), Enforcement Actions, Investigations, Michaels

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Individual Liability: What’s Behind The Headlines?

It’s been open season on financial institutions since the 2008-2009 financial crisis (“Financial Crisis”). State and federal prosecutors and regulators are competing with each other for press coverage of their latest consent…more

Banking Crisis, Banking Sector, C-Suite Executives, CFPB, Civil Monetary Penalty

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Top Ten International Anti-Corruption Developments for July 2016

In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important international anti-corruption developments from the past month, with links to primary…more

Airlines, Alstom, Anti-Corruption, Argentina, Brazil

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False Advertising Suit Regarding Plum Organics Mighty 4 Puree Pouches Dismissed

On November 2, 2015, Judge Alsup of the Northern District of California dismissed a consumer class action against food manufacturer Plum Organics for failure to state a claim. In Workman et al. v. Plum Inc., D/B/A Plum Organics,…more

Business & Professions Code, Class Action, Consumers Legal Remedies Act, Failure To State A Claim, False Advertising

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Will You Be Caught In The 'Wrong' Law Or Courts Post-Brexit?

The European Union legal regime currently provides contracting parties with significant predictability and stability. The United Kingdom’s election on June 23, 2016, to exit the EU presents a potential affront to such certainty,…more

Contract Disputes, EU, International Litigation, Jurisdiction, Member State

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The Defend Trade Secrets Act: Some Practical Considerations

Today President Obama signed the Defend Trade Secrets Act (DTSA or the “Act”), which creates a new federal cause of action for trade secret misappropriation effective immediately. The DTSA establishes federal jurisdiction…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Ex Parte, Misappropriation, Private Right of Action

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Looking to Litigate in Secret? Fourth Circuit Creates Hurdles for Product Manufacturers

In April, the Fourth Circuit ruled in Company Doe v. Public Citizen that a manufacturer could not hide behind a veil of secrecy even after successfully enjoining the Consumer Product Safety Commission (CPSC) from publishing an…more

Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), Manufacturers, Transparency

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U.S. Patent and Trademark Office Announces Rule Amendments for Trials Before the Patent Trial and Appeal Board

In an April 1, 2016 Federal Register Notice (“Notice”),1 the United States Patent and Trademark Office (“Office”) finalized amendments to rules governing trial practice for inter partes review, post-grant review, transitional…more

America Invents Act, Claim Construction, Covered Business Method Proceedings, Expert Testimony, Federal Register

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Small Magnets, Big Trouble – Zen Successfully Challenges CPSC Rulemaking in the 10th Circuit

The United States Court of Appeals for the Tenth Circuit recently vacated the Consumer Product Safety Commission’s (CPSC) 2014 rulemaking that prohibits the importation and distribution of high-powered, small, rare earth magnet…more

Consumer Product Safety Commission (CPSC), Enforcement Actions, Safety Standards, Zen Magnets

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The Persuader Rules: Final Opportunity to Avoid Department of Labor Reporting Requirements

The U.S. Department of Labor (“DOL”) recently issued its final regulations regarding the “advice exception” to reporting requirements of employers and lawyers under the Labor-Management Reporting and Disclosure Act…more

Attorney-Client Privilege, Collective Bargaining, DOL, Final Rules, Legal Advice

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Three Key Takeaways from DOJ’s New Yates Memo on Individual Accountability for Corporate Wrongdoing

During a September 10, 2015 conference at New York University, Deputy Attorney General (DAG) Sally Quillian Yates announced new Department of Justice (DOJ or the Department) policy that could significantly affect the way that…more

Attorney-Client Privilege, C-Suite Executives, Cooperation, Corporate Veil, DOJ

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California Appellate Court Requires Actual Viewing of Confidential Information in Data Breach Case Under the California Medical Information Act

In a case against Sutter Health involving records from a stolen office computer, the California Court of Appeal recently issued a decision limiting plaintiffs’ ability to state a claim and obtain statutory damages under the…more

Appeals, CMIA, Electronic Medical Records, Medical Records, Patient Confidentiality Breaches

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Seven IP Cases to Watch in Early 2017

SCA Hygiene AB v. First Quality Baby Products. LLC (Docket No. 15-927, S. Ct.) - In SCA Hygiene AB v. First Quality Baby Products LLC,the Supreme Court will consider “[w]hether and to what extent the defense of laches may…more

Copyright, First Amendment, Free Speech, Inter Partes Review (IPR) Proceeding, Lanham Act

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A View of EB-5 Program Issues from a Top SEC Enforcement Official

As participation in the U.S. Citizen and Immigration Services (USCIS) Immigrant Investor Program or “EB-5 program” grows, regulatory interest is showing a commensurate uptick. On November 20, 2013, Associate Director Stephen…more

Compliance, EB-5, Enforcement, Enforcement Actions, Immigrants

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Examination Priorities for 2017 from FINRA and OCIE

In these uncertain times, the predictability and regularity of the annual priorities letters from FINRA and the Securities and Exchange Commission’s (SEC) Office of Compliance Inspections and Examinations (OCIE) is…more

Anti-Money Laundering, Broker-Dealer, Cybersecurity, ETFs, Examination Priorities

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Autonomous Vehicles: USDOT Issues New Policy on Development and Deployment of Automated Vehicle Technologies

On Tuesday, September 20, the U.S. Department of Transportation (USDOT) will release a new policy designed to expedite the development and deployment of autonomous vehicle (AV) technologies in the United States while protecting…more

Automotive Industry, Department of Transportation (DOT), Driverless Cars, Motor Vehicles

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First Circuit Issues Potentially Significant Ruling on Federal Video Privacy Statute’s Application to Mobile Apps

The First Circuit Court of Appeals’ recent decision in Yershov v. Gannett Satellite Information Network, Inc., — F.3d —-, Case No. 15-1719, 2016 WL 1719825 (1st Cir. Apr. 29, 2016), may carry important implications for mobile…more

Advertising, Class Action, Marketing, Mobile Apps, Personally Identifiable Information

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New Tech, Old Rules: 6 Tips For Tech Cos. Managing FCA Risk

When it was first enacted in 1863, the original purpose of the False Claims Act was to prosecute war profiteers who were selling sick mules and broken muzzle-loaded rifles to the Union Army. In recent years, its use has expanded…more

False Claims Act (FCA), Federal Contractors, Product Pricing, Risk Assessment, State Contractors

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New HSR Filing Thresholds for 2017

On January 19, 2017, the U.S. Federal Trade Commission (FTC), the agency charged with administering the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”), as amended, and its filing requirements, announced the…more

Antitrust Provisions, Filing Requirements, FTC, Hart-Scott-Rodino Act, Mergers

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Are Your Customer Accounts in Order? SEC Announces Sweep of Broker-Dealers and Implementation of the Customer Protection Rule Initiative

On June 23, 2016, the Securities and Exchange Commission (the SEC) announced that it would begin a coordinated effort across divisions to identify potential violations by broker-dealers of Rule 15c3-3 (the “Rule”) under the…more

Broker-Dealer, Custody Rule, Customer Protection Rule, Enforcement Actions, FINRA

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Structured Thoughts: News for the financial services community, Volume 7, Issue 8

Brexit and Structured Products: A Framework for Considering Disclosures - The U.K.’s recent referendum to withdraw from the European Union has affected virtually all segments of the financial industry. The structured…more

Administrative Proceedings, Broker-Dealer, Disclosure Requirements, Distributors, DOL

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Co-Bidder Status in Tender Offers

The recent Allergan litigation in California District Court involved the allegation that Pershing Square Capital Management, LP (together with certain of its affiliates, “Pershing Square”) had violated the prohibition, under…more

Allergan Inc, Disclosure Requirements, Filing Requirements, Securities Exchange Act, Tender Offers

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In Delaware, Privilege Goes to the Buyer -- Court Finds Buyer Controls Attorney-Client Privilege over Seller’s Pre-Closing Communications Regarding Merger Negotiations, Unless Otherwise Agreed

The Delaware court of chancery held recently that control over a target company’s attorney-client privileged communications, including communications between the target company’s counsel and its pre-merger stockholders, passes…more

Attorney-Client Privilege, Contract Drafting, Corporate Counsel, Disqualification, Fraudulent Inducement

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Structured Thoughts: News for the financial services community, Volume 8, Issue 2

Identifying Conflicts of Interest in Structured Products Offerings - With FINRA and other regulators focused on conflicts of interest in the broker-dealer industry, market participants are working diligently to identify and…more

Advertising, Broker-Dealer, Conflicts of Interest, EFTs, FINRA

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Socially Aware - Volume 6, Issue 2 - May 2015

In This Issue: - Court Protects Anonymity of Yelp Users - FTC Issues Landmark Report on Internet of Things - Who Will Update My Status When I’m Dead?: The Biggest Social Media Platforms’ Policies on…more

Anonymity, Copyright, Digital Assets, DMCA, FTC

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Brexit: The Impact on the EC/VC Community

The process of Brexit and the implications for our clients’ businesses will unfold over time. Our MoFo Brexit Task Force is coordinating Brexit-related legal analysis across all our offices and working with our clients on their…more

Currency Fluctuation, EEA, Emerging Growth Companies, EU, EU Passport

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MoFo Tax Talk - Volume 8, No. 4

IRS PROVIDES RICS ALTERNATIVES TO ACCOUNT FOR FOREIGN TAX REFUNDS - Generally, when a U.S. taxpayer pays foreign tax, the U.S. taxpayer is entitled to take a credit (a “Foreign Tax Credit”) against the taxpayer’s U.S. tax…more

Certiorari, ConAgra, Dividends, FIRPTA, Foreign Currency

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Employment Law Commentary -- Volume 26, Issue June 2014 -- Protecting Trade Secrets Globally: Comparing The U.S. And EU

International attention to misappropriation of trade secrets has never been at a higher level. In early May 2014, a U.S. federal grand jury indicted several Chinese military officials for allegedly misappropriating trade secrets…more

China, Defend Trade Secrets Act (DTSA), EU, Misappropriation, Trade Secrets

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Top Ten International Anti-Corruption Developments for July 2016

In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important international anti-corruption developments from the past month, with links to primary…more

Airlines, Alstom, Anti-Corruption, Argentina, Brazil

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SEC Revises Guidance on Granting WKSI Waiver

On March 12, 2014, the SEC’s Division of Corporate Finance updated its guidance regarding requests for waivers by well-known seasoned issuers (“WKSIs”) that would otherwise become ineligible issuers under Rule 405 of the…more

SEC, Securities Exchange Act, Waivers, WKSIs

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Corruption Allegations in China Lead to a Shareholder Class Action in the U.S.

The filing of a shareholder class action has become routine following a drop in stock price after the revelation of adverse news about a company. Allegations of corruption at a public company are proving to be no different, as…more

China, Class Action, Corruption, Foreign Official, Oil & Gas

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California Supreme Court Upholds Class Action Waivers in Arbitration Agreements, but Invalidates Waivers of Representative Actions under the California Private Attorneys General Act

On June 23, the California Supreme Court provided mixed blessings to California employers. In Iskanian v. CLS Transportation, No. S204032 (June 23, 2014), the Court upheld class action waivers in arbitration agreements,…more

Arbitration, Class Action, Class Action Arbitration Waivers, CLS Transportation, Employer Liability Issues

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Form PCT/IB/382: Legal Implications in Countries with Compulsory Licensing Rules

The World Intellectual Property Organization (WIPO) added a new feature in January 2012 in an effort to promote licensing. Patent Cooperation Treaty (PCT) applicants may submit form PCT/IB/382, which informs others that the…more

Licensing Rules, Patents, WIPO

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Structured Thoughts: News for the financial services community, Volume 8, Issue 1

U.S. Court of Appeals Upholds SEC’s Backtesting Finding - In a 2016 case before the U.S. Court of Appeals for the D.C. Circuit, a former investment adviser lost a petition to review and vacate the decision of an SEC…more

Broker-Dealer, DOL, Examination Priorities, Fiduciary Rule, FINRA

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California Supreme Court Opens the Door to Organic Mislabeling Claims

Last week, the California Supreme Court issued a long awaited ruling on organic labeling in Quesada v. Herb Thyme Farms, Inc., No. S216305, 2015 WL 7770635 (Cal. Dec. 3, 2015). At issue in Quesada was whether consumers may bring…more

CA Supreme Court, Consumer Fraud, Corporate Counsel, Food Labeling, Misrepresentation

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MoFo Global Procurement Quarterly: Winter 2015

In This Issue: - Protection of Security Relevant Information vs. Enhancement of Global Competition – Germany's "No Spy Decree" for Public Tenders under Continuous Scrutiny - RWIND Tenderer Test: Objective or…more

Cybersecurity, DOJ, Enforcement Actions, EU, Germany

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Expanding Duties and Eroding Protections for Medical Device Manufacturers

Earlier this month, the Washington Supreme Court saddled medical device manufacturers with a new duty to warn under Washington law—the duty to warn hospitals about potential risks their products may pose—and eroded exemptions…more

Duty to Warn, Manufacturers, Medical Devices, Pharmaceutical Industry

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Ten Key Legal Issues to Consider When Moving Stateside

Stateside - Even before the uncertainties following the Brexit referendum result, a move to the U.S. was an attractive proposition for high growth UK businesses. Common language, similar culture, access to capital and a…more

Corporate Structures, Data Privacy, E-Commerce, Intellectual Property Protection, International Labor Laws

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Final IRS Regulations Under Section 162(m) Will Impact Transition Rule Applicable to Newly Public Companies

On March 31, 2015, the IRS issued final regulations under Section 162(m), the tax code provision which limits the deduction for compensation paid to certain public company executive officers. As signaled by the proposed…more

Corporate Taxes, Executive Compensation, IRS, Proposed Regulation, Publicly-Traded Companies

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Structured Thoughts: News for the financial services community, Volume 6, Issue 6

U.S. Structured Warrant Programs: Introduction - U.S. and non-U.S. banks have offered structured warrants in the U.S. to address the needs of both institutional and high-net worth investors. This article will describe…more

Advertising, Banking Sector, Broker-Dealer, Cease and Desist, Cooperation

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Consumer Products Face New Challenge: State Finds That Many Common Products Must be Managed as Hazardous Waste When Disposed Of

California’s Department of Toxic Substances Control (DTSC) has released the results of aquatic toxicity testing on over-the-counter remedies, health and beauty products, and cleaning products. The results indicate that over…more

DTSC, Enforcement Actions, EPA, Hazardous Waste, Toxic Exposure

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Is Gorsuch A Positivist?

As President Trump applies his whack-a-mole, hammer-them-all-on-thehead theory of leadership, could a Justice Neil Gorsuch legal philosophy join opinions that would declare the president’s actions unconstitutional? It is a lot…more

Judicial Appointments, Neil Gorsuch, Nominations, SCOTUS, Trump Administration

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California Adopts the Sophisticated Intermediary Doctrine

In a recent opinion, the Supreme Court of California formally adopted the Sophisticated Intermediary Doctrine, clarifying what circumstances may permit a raw materials supplier to discharge its duty to warn consumers. Webb v…more

Asbestos, Burden of Proof, CA Supreme Court, Component Parts Doctrine, Duty to Warn

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Certiorari Denied For $6.2 Million Consent Order Violation Based On a Patent Later Held Invalid

On November 28, 2016, the U.S. Supreme Court denied a writ of certiorari seeking appeal of the Federal Circuit’s decision to uphold the ITC’s imposition of a $6.2 million penalty against DBN, Inc. and BDN LLC (collectively,…more

Amicus Briefs, Certiorari, Consent Order, ITC, Patent Infringement

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UCC Standing Blocked in Recent Sabine Decision

What showing must creditors make to be granted the right to prosecute claims on behalf of the bankruptcy estate? Under the widely recognized standard established by the Second Circuit in In re STN Enterprises, a bankruptcy…more

Commercial Bankruptcy, Creditors, Debtors, Fraudulent Conveyance, Mergers

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Recent Decisions Confirm That Forum Selection Bylaws Are Best Considered on a Clear Day - But May Be Beneficial Later as Well

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such…more

Bylaws, Corporate Governance, Delaware General Corporation Law, Exclusive Forum, Forum Selection

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Amid Wave of Final Executive Actions, President Obama Eases Sanctions Against Sudan

On January 13, 2017, the White House issued an executive order revoking significant aspects of the sanctions in place against Sudan (that have been in effect since 1997). In conjunction with the announcement, the Treasury…more

Barack Obama, BIS, Executive Orders, General Licenses, Obama Administration

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The Federal Reserve’s Proposed Rules for Financial Contracts of Global Systemically Important Banking Organizations and ISDA’s Resolution Stay Jurisdictional Modular Protocol

Last month the Board of Governors of the Federal Reserve System (the “Board”) issued proposed new rules (the “Proposed Rules”) intended to reduce the potential risks posed to the U.S. financial system by too-big-to-fail banks.1 …more

Banks, Basel Committee, Cross-Border Transactions, Dodd-Frank, Federal Reserve

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EPA Issues Final Determination That No Adjustments to GHG Standards for Model Years 2022-2025 Will Be Made, but Questions Remain

On January 12, the U.S. Environmental Protection Agency (EPA) finalized its determination not to change greenhouse gas (GHG) emission standards for cars and light trucks manufactured in model years (MYs) 2022-2025. This means…more

Auto Manufacturers, Automotive Industry, CARB, Clean Air Act, Environmental Policies

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Significant Liberalization of Foreign Investment Rules in India

On June 20, 2016, the Indian government, in an effort to open up the Indian economy and bring in much-needed foreign capital, announced a radical liberalization of the foreign direct investment (FDI) rules by liberalizing…more

Aviation Industry, Broadcasting, Defense Sector, E-Commerce, Food Manufacturers

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Practice Pointers: Anticipating and Addressing SEC Comments on Non-GAAP Financial Measures - February 2017

The use of non-GAAP financial measures by public companies continues to be an area of growing concern for the Securities and Exchange Commission (“SEC”). Since the staff of the SEC’s Division of Corporation Finance (the…more

Acquisitions, C&DIs, Capital Markets, Corporate Financing, Financial Reporting

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Significant Government Contract Litigation: A Year in Review

Last year provided a number of important claims and cases that further developed various aspects of litigation regarding the Contract Disputes Act (CDA). The major issues raised in some of the more notable claims include claim…more

Accrual Method, Appeals, Binding Contractual Rules, Board of Contract Appeals, CBCA

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Litigation and enforcement in Japan: overview

MAIN DISPUTE RESOLUTION METHODS - 1. What are the main dispute resolution methods used in your jurisdiction to resolve large commercial disputes? Litigation Litigation is the most frequently used dispute resolution…more

Appeals, Arbitration, Class Action, Commercial Arbitration, Confidential Information

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MoFo IP Newsletter - August 2016

Supreme Court Abolished Federal Circuit's Test for Willfulness - On June 13, 2016, in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. ___ (2016), the Supreme Court unanimously abrogated the Federal Circuit’s…more

Abuse of Discretion, Appeals, Attorney's Fees, Authorship, Books

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Financial Services Report, Winter 2016

EDITOR’S NOTE - Hope you survived all of those awkward Thanksgiving holiday conversations— amazing how divided people are on whether the court got it right in the PHH case, isn’t it? So on we go into the holiday season,…more

Arbitration, Article III, Blockchain, CalOPPA, CFPB

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Universal Health: The Supreme Court Approves Implied Certification; Focus on Materiality Provides a Mixed Blessing to Defendants in False Claims Act Cases

On June 16, 2016, a unanimous Supreme Court blessed the implied false certification theory of False Claims Act (FCA) liability, resolving a circuit split on the theory’s legitimacy. The Court held that implied certification…more

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

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Hong Kong Capital Markets Quarterly News -- October 2013

In This Issue: New Sponsor Regime – Guidance Letters; Policy on Listing Overseas Companies; New Listing Decisions; New Guidance Letters; and Enforcement News Excerpt from New Sponsor Regime – Guidance Letters:…more

Enforcement, Hong Kong, Listing Standards, SFC, Stocks

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China Life Sciences - January 2013

In This Issue: Investor Q&A; Key Regulatory Issues for Strategic Life Sciences Partnerships in China; Compulsory Patent Licensing in China; and New Developments on the “Patentable Subject Matter” Requirement of U.S…more

Biotechnology, China, Compulsory Licenses, Foreign Investment, Licenses

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SPC Issues Interpretation on Jurisdictional Issues Arising from CIETAC Split

In a welcome development, the PRC Supreme People’s Court (the “SPC”) issued on July 15, 2015 an interpretation addressing various jurisdictional issues arising from the decision in mid-2012 of the former CIETAC Shanghai and…more

Arbitration, Arbitration Agreements, China, CIETAC, Foreign Ownership

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Mexico’s National Center for Energy Control (Centro Nacional de Control de Energia: “CENACE”) Publishes Rules for Establishing the Infrastructure Requirements for the Interconnection of Power Plants and Connection of Charging Stations (centros de carga)

On June 2, 2015, CENACE published in the Federal Gazette of the Federation (Diario Oficial de la Federación) the Rules for Establishing the Infrastructure Requirements for the Interconnection of Power Plants and Connection of…more

Charging Stations, New Regulations, Power Infrastructure, Power Plants

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The Latest Word (or Text) on TCPA Standing Post-Spokeo and Consent

On January 30, 2017, in Van Patten v. Vertical Fitness Group, No. 14-55980, the Ninth Circuit Court of Appeals found that a Telephone Consumer Protection Act (TCPA) plaintiff had sufficiently alleged an Article III…more

Article III, Injury-in-Fact, Spokeo, Spokeo v Robins, Standing

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MoFo IP Newsletter - November 2016

FDA (Finally!) Issues New Regulations to Clarify Pharmaceutical Patent Litigation: How to Use Patent “Use Codes” - October 6, 2016, the FDA issued a final rule implementing certain provisions of the Medicare Prescription…more

Copyright, De Minimis Claims, Enforcement, FDA, New Regulations

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China’s Draft Foreign Investment Law: A Paradigm Shift in Regulation of Foreign Investment

On January 19, 2015, China’s Ministry of Commerce (“MOFCOM”) released for public comment a draft Foreign Investment Law; “FIL”) along with an accompanying explanatory note (“Note”). The deadline for comments is February 17,…more

China, Foreign Investment, MOFCOM

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FINAL FAR RULE: Prohibition on Reimbursement for Congressional Investigations and Inquiries

On January 13, 2017, the Department of Defense (“DoD”), General Services Administration (“GSA”), and National Aeronautics and Space Administration (“NASA”) issued a 10 U.S.C. § 2324(k)(2). Under the rule, contractors may not be…more

Contractors, Department of Defense (DOD), False Claims Act (FCA), Final Rules, General Services Administration (GSA)

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Broker-Dealer Registration Issues Associated with Development Projects under the EB-5 Program

The EB-5 Immigrant Investor Program (the “EB-5 Program”) administered by the U.S. Citizenship and Immigration Service (USCIS) has been a significant source of capital for various real estate and other development projects…more

Broker-Dealer, Compliance, EB-5, Enforcement, Limited Partnerships

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Problems Abound with DOD’s Proposed IRAD Rule

On November 4, 2016, the Department of Defense proposed a new rule applicable to major defense contractors who expect to use future independent research and development (“IRAD”) to perform DoD contracts. The proposed rule…more

Anti-Competitive, Contractors, Department of Defense (DOD), Federal Acquisition Regulations (FAR), Proposed Rules

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CFPB Report on Online Short-Term Lending Finds Borrowers Face Hidden Costs

On Wednesday, April 20, 2016, the Consumer Financial Protection Bureau (“CFPB,” or “Bureau”) released a report, entitled “Online Payday Loan Payments” (“Report”), which examines short-term, small-dollar loans—or payday…more

CFPB, Lenders, Online Payments, Payday Loans

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California Governor Signs Bill Limiting Cities and Counties Use of Sales/Use Tax Agreements

The governor of California has signed SB 533, which, beginning on January 1, 2016, further limits the power of a city or a county to enter into an agreement with a retailer that would result in the payment, transfer, diversion,…more

Governor Brown, Local Governance, Local Taxes, New Legislation, Rebates

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President Trump Directs DOL to Review the Fiduciary Rule and Consider Modifications or Revocation

On February 3, 2017, President Trump directed the Department of Labor (“DOL”) to review the fiduciary rule adopted in April 2016 (the “Fiduciary Duty Rule”) and consider whether the Fiduciary Duty Rule should be modified or…more

Administrative Procedure Act, DOL, Fiduciary Rule, Investment Adviser, Retirement

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Employment Law Commentary - October 2014

California Legislative Update - Welcome back to our annual review of new laws that may impact California employers! This year’s highlights include California’s new paid sick leave law, additions to sexual harassment…more

Child Labor, Employer Liability Issues, FEHA, Independent Contractors, Joint Employers

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Litigation and enforcement in Japan: overview

MAIN DISPUTE RESOLUTION METHODS - 1. What are the main dispute resolution methods used in your jurisdiction to resolve large commercial disputes? Litigation Litigation is the most frequently used dispute resolution…more

Appeals, Arbitration, Class Action, Commercial Arbitration, Confidential Information

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Assessing Acquisition Offers from Chinese Buyers - CFIUS and related considerations for technology company boards

Notwithstanding reports earlier this year of transactions that either failed to close (GO Scale / Lumileds; Tsinghua Unisplendour / Western Digital), lost out to competing U.S. bids (China Resources / Fairchild) or were…more

Acquisitions, Board of Directors, CFIUS, China, Emerging Technology Companies

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WARNING: California Adopts New Proposition 65 “How to Warn” Rules

Last Friday, the state published the first major changes to the Proposition 65 regulations in more than a decade. The sweeping changes rewrite the “safe harbor” warning regulations and, in doing so, create a new set of…more

Amended Regulation, Manufacturers, OEHHA, Proposition 65, Retailers

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Department of Labor Clarifies ERISA Fiduciary Requirements With Respect to Economically Targeted Investments and Environmental, Social, and Governance Goals

Last month, the Department of Labor (the “Department”) issued an Interpretive Bulletin 2015-011 (the “Bulletin”) clarifying the extent to which the Employee Retirement Income Security Act of 1974 (“ERISA”) permits fiduciaries to…more

DOL, Economically Targeted Investments, ERISA, Fiduciary Duty

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Socially Aware: The Social Media Law Update Volume 6, Issue 4

Five social media law issues to discuss with your clients - The explosive growth of social media has clients facing legal questions that didn’t even exist a few short years ago. Helping your clients navigate this muddled…more

Anonymity, Anti-Retaliation Provisions, Blogging Platforms, Browsewrap Agreement, Class Action

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MoFo IP Newsletter - November 2016

FDA (Finally!) Issues New Regulations to Clarify Pharmaceutical Patent Litigation: How to Use Patent “Use Codes” - October 6, 2016, the FDA issued a final rule implementing certain provisions of the Medicare Prescription…more

Copyright, De Minimis Claims, Enforcement, FDA, New Regulations

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MoFo BioMeter, Volume 5, Issue 1

The full-year 2015 BioMeter paints the picture of a strong year for biotechnology, but deeper analysis shows a cautionary trend. The average BioMeter value for the entire year across all transactions reporting up-front payments…more

Biometric Information, IPO, Life Sciences, Pharmaceutical Industry

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Ninth Circuit Offers Guidance to Defendants Seeking to Establish Removal Jurisdiction

The Supreme Court recently denied a petition for a writ of certiorari in Leite v. Crane Co., 49 F.3d 1117 (9th Cir. 2014), cert. denied, 574 U.S. ___ (2014) (No. 14-119), a case in which the Ninth Circuit established the…more

Federal Jurisdiction, Federal Rules of Civil Procedure, Jurisdiction, Removal

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Building Block(chain)s: 6 Key Findings – and Featured Predictions – from the World Economic Forum’s Blockchain Report

The World Economic Forum threw a knockout punch this month when it released its report “The Future of Infrastructure: An Ambitious Look at How Blockchain Can Reshape Financial Services.”1 When Giancarlo Bruno, the World Economic…more

Blockchain, Financial Sector, Financial Services Industry, Global Economy, Infrastructure

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D.C. Circuit Grants En Banc Review on the Constitutionality of the CFPB Leadership Structure

CFPB Director Richard Cordray has a little more job security this week than last week. On February 16, 2017, the U.S. Court of Appeals for the District of Columbia granted the CFPB’s request for an en banc review of its October…more

CFPB, Constitutional Challenges, En Banc Review, Hiring & Firing, Removal For-Cause

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Brexit Briefing: English Law Funding For European Banks In Focus As BES Creditors Left Behind… Again

The Court of Appeal has upheld the validity of Banco de Portugal’s exercise of its resolution powers, overturning last year’s decision of the High Court - The Facts - Readers familiar with this case will recall that a…more

Appeals, Creditors, English Common Law, EU, Foreign Banks

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The Shortened Shanghai Free Trade Zone Negative List: One Small Step for Reform…

Amidst high hopes in the foreign investment community for a streamlined framework regulating inbound investment to the PRC, China’s State Council launched the China (Shanghai) Pilot Free Trade Zone (the “SFTZ” or “Zone”) in…more

Banking Sector, China, Foreign Investment, Free Trade Zone, Healthcare

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Social Links: Google Maps gets social; Twitter puts trolls in time out; today’s teens take to chat rooms

New York City’s Conflicts of Interest Board has issued guidelines prohibiting elected officials from using official social media accounts for political purposes or having their staff draft content for their personal social media…more

Chat Rooms, Facebook, Google, Social Media, Social Networks

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Congress Revisits the Data Rights Statutes and Advances Modular Open Systems Architecture in the FY 2017 NDAA

Although there usually is great validity in the aphorism that “no man’s life, liberty, or property is safe while the Legislature is in session,” we might have to rethink that notion when it comes to data rights. Congress did…more

Data Rights, Department of Defense (DOD), DFARS, NDAA

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Seven IP Cases to Watch in Early 2017

SCA Hygiene AB v. First Quality Baby Products. LLC (Docket No. 15-927, S. Ct.) - In SCA Hygiene AB v. First Quality Baby Products LLC,the Supreme Court will consider “[w]hether and to what extent the defense of laches may…more

Copyright, First Amendment, Free Speech, Inter Partes Review (IPR) Proceeding, Lanham Act

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Summary of the Implementing Regulations for Japan’s Feed-In Tariff Law for Renewable Electric Energy

This updates our September 13, 2011 Client Alert entitled “Outline of Japan’s Feed-In Tariff Law for Renewable Electric Energy,” which summarized “The Act on Special Measures Concerning the Procurement of Renewable Electric…more

Electricity, Interconnections, Japan, Power Purchase Agreements, Purchase Price

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Socially Aware: The Social Media Law Update Volume 7, Issue 4

Mixed Messages: Courts Grapple With Emoticons and Emoji - Emoticon and emoji are ubiquitous in online and mobile communications; according to one study, 74 percent of Americans use emoticons, emoji and similar images on a…more

Ad-Blockers, Copyright, Emoji, Facebook, FTC

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10 Key FCA Developments Of 2016

2016 was another active year in the land of False Claims Act enforcement. The U.S. Department of Justice continued to set recovery records and turned its eye more keenly on enforcement of individuals. We heard from the Supreme…more

Anti-Kickback Statute, DOJ, False Claims Act (FCA), Penalties, Rule 9(b)

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Brexit Briefing: English Law Funding For European Banks In Focus As BES Creditors Left Behind… Again

The Court of Appeal has upheld the validity of Banco de Portugal’s exercise of its resolution powers, overturning last year’s decision of the High Court - The Facts - Readers familiar with this case will recall that a…more

Appeals, Creditors, English Common Law, EU, Foreign Banks

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MoFo IP Newsletter - November 2016

FDA (Finally!) Issues New Regulations to Clarify Pharmaceutical Patent Litigation: How to Use Patent “Use Codes” - October 6, 2016, the FDA issued a final rule implementing certain provisions of the Medicare Prescription…more

Copyright, De Minimis Claims, Enforcement, FDA, New Regulations

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SEC Approves Nasdaq Rule Requiring Public Disclosure of Payments to Directors by Third Parties

In March 2016, the Nasdaq Stock Market LLC (“Nasdaq”) proposed new rules regarding disclosure of third-party compensation of directors. This third-party compensation, which may not be publicly disclosed, arises when a party…more

Activist, Board of Directors, Directors, Executive Compensation, Foreign Private Issuers

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