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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 Proceedings, Patent Reform

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Socially Aware - Volume 5, Issue 2 - April 2014

In This Issue: - Employer Access to Employee Social Media: Applicant Screening, ‘Friend’ Requests and Workplace Investigations - Driving Under the Influence (of Google Glass) - U.S. Courts’ Evolving Approaches to…more

Car Accident, Copyright, Distracted Driving, Employer Liability Issues, Google

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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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CPSC Emphasizes Internet Presence with New Monthly Progress Reporting Template

NEW MONTHLY PROGRESS REPORT - In May 2014, the Consumer Product Safety Commission (CPSC) rolled out a new monthly progress report for companies executing a product recall. The form is available here. The new template…more

Compliance, CPSC, Internet, Notice Requirements, Reporting Requirements

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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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Round 2 in Dennis v. Kellogg: Class Action Settlements with Cy Pres Relief

The district court in Dennis v. Kellogg recently granted preliminary approval of a revised class action settlement. Kellogg is a class action alleging unjust enrichment, as well as violation of California’s Unfair Competition…more

Attorney's Fees, Class Action, Cy Pres Funds, Settlement

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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

CPSC, CPSIA, Manufacturers, Transparency

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Partial offers -- Time for a revival?

Although partial offers are not particularly common, with only a handful made in the past several years, in some circumstances, they could be an attractive option for companies to consider. One of the most recent was the hostile…more

Consent, EU, London Stock Exchange, Partial Offers, Regulation

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California Supreme Court Limits Commissioned-Salesperson Overtime Exemption

On Monday, the California Supreme Court issued an important decision for employers who pay salespersons on commission but don’t pay them overtime because they believe these salespersons qualify for the commissioned-salesperson…more

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Investment Management Legal + Regulatory Update -- July 2013

In This Issue: Regulatory Updates - SEC Proposes Money Market Reform; SEC Eases Ban on General Solicitation and General Advertising in Certain Private Placements; SEC and CFTC Adopt Joint Rules to Address Identity…more

Broker-Dealer, CFTC, Disclosure Requirements, FSOC, General Solicitation

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Socially Aware: The Social Media Law Update -- Volume 4, Issue 1 -- January/February 2013

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we explore the challenges that arise when employers and employees battle over work-related social media accounts; we…more

Browser History Sniffing, Communications Decency Act, Copyright, Data Collection, Facebook

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Financial Services Report, Summer 2014

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

Banks, Cybersecurity, Data Protection, Encryption, Fair Lending

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MoFo New York Tax Insights - Volume 4, Issue 5 - May 2013

In This Issue: New York Enacts Significant Changes to Related Member Royalty Add-Back Law; Nuclear Power Plant That Produces Steam and Water to Generate Electricity Not Eligible for Investment Tax Credit; Appellate…more

Add-Back Legislation, Andrew Cuomo, Fraud, Insurers, Investment Tax Credits

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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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SEC Requires Floating NAV for Institutional Money Market Funds; IRS Eases Tax Reporting Burden for Fund Investors

Yesterday, a divided Securities and Exchange Commission adopted rules that will require floating net asset values (NAVs) for institutional money market funds and give most money market funds the discretion to impose liquidity…more

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Dodd-Frank Implementation: Navigating the Road Ahead

Table of Contents: Introduction; Financial Stability Reform; Resolution Planning; Agencies and Agency Oversight Reform; Securitization Reform; Derivatives Regulation; Investor Protection Reform; Credit Rating Agency Reform;…more

Capital Requirements, CFPB, Corporate Governance, Credit Ratings, Derivatives

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Recent FCA Decision Has Important Implications for Contractor Disclosures to the Government

A recent decision from the U.S. District Court for the Eastern District of Virginia has important implications for government contractors that make mandatory disclosures of improper conduct to the U.S. Government. In U.S. ex…more

DOD, False Billing, False Claims Act, Federal Contractors, OIG

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Figuring FRAND

In our December post “A FRANDlier Realm” we discussed emerging law relating to patents that are essential to technological standards, like 3G wireless telecommunications. What happens when patent owners and product makers cannot…more

FRAND, Patents, Royalties

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Global Procurement Quarterly - Spring 2014

In This Issue: - The New Front in U.S. Sanctions: Ukraine and Russia - Electronic Invoicing in EU Public Contracts - German and EU Rules on Joint Bids - Q+A Corner with Melissa Milstead, Associate General Counsel…more

Barack Obama, EU, Executive Orders, Public Contracts, Russia

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Privacy Concerns and the Proposed Reg AB II Revisions Relating to Asset Level Data

In February 2014, the Securities and Exchange Commission (SEC) once again re-opened the comment period with respect to proposed revisions to Regulation AB relating to the disclosure of asset-level data after receiving many…more

ABS, Business Assets, Disclosure, Disclosure Requirements, Dodd-Frank

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Exclusive Forum Provisions: A New Item for Corporate Governance and M&A Checklists

Public companies increasingly are adopting “exclusive forum” bylaws and charter provisions that require their stockholders to go to specified courts if they want to make fiduciary duty or other intra-corporate claims against the…more

Board of Directors, Bylaws, Corporate Charters, Corporate Governance, Exclusive Forum

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Recent Developments Relating to Hostile Deals in the US

In November 2013, Men’s Wearhouse made an unsolicited offer to acquire Jos. A. Bank, just weeks after rejecting a hostile offer from Jos. A. Bank. Jos. A. Bank initially rejected the “Pac Man” counteroffer, but ultimately agreed…more

Acquisitions, Bylaws, Delaware General Corporation Law, Greenmail, Hostile Takeover

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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: Volume 5, Issue 4 - May 30, 2014

In This Issue: - No More KIDding Around: European Parliament Approves PRIIPs Regulation - FINRA Amends Rule 5110 to Exempt Certain Collective Investment Vehicles from Its Filing Requirements - The Time for the SEC…more

Compliance, EU, Financial Regulatory Reform, FINRA, Foreign Investment

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Socially Aware - Volume 5, Issue 4 - July 2014

In This Issue: - European Court of Justice Strengthens the Right to Be Forgotten - California AG Offers Best Practices for Do Not Track Disclosures; Crucial Compliance Questions Left Unanswered - Snap…more

Data Protection, Do Not Track, ECJ, EU, FTC

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Shareholder Activism in Germany Following Takeover Announcements

Over the past few years there has been a noticeable increase in the frequency of activist investors building up considerable stakes in German listed companies in the context of public takeovers. One reason for this development…more

EU, Hedge Funds, Publicly-Traded Companies, Shareholder Activism, Shareholder Litigation

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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, EU, Misappropriation, Trade Secrets

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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, EU, Misappropriation, Trade Secrets

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Anti-Corruption Developments to Expect in Asia in 2014

Recent anti-corruption enforcement developments in Asia should serve as a call to action for international and domestic companies operating in the region. In light of these developments — which include increased enforcement (and…more

Anti-Corruption, Asia, Compliance

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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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Proposed Revision to China’s Copyright Law Not a Hit with Film Producers

The General Administration of Press and Publication released the Notice Regarding Request for Comments on Second Draft Revisions to the Copyright Law of the People’s Republic of China (??«????????? ??»(???????)?????????, the…more

China, Copyright, Movies, WTO

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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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Drugs and the Internet: FDA Distributes New Draft Guidance Regarding Social Media Platforms and Prescription Drugs

Last week the Food and Drug Administration (FDA) promulgated two much-anticipated draft guidance documents on using social media to present information about prescription drugs and medical devices. The draft guidance documents,…more

Advertising, FDA, Marketing, Prescription Drugs, Social Media

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California Reduces Section 409A Penalty

In a victory for California employers and employees, on October 4, 2013, Governor Edmund G. Brown Jr. signed into law California Assembly Bill 1173 (“Bill 1173”), which reduces California’s additional tax on income for…more

Compensation Agreements, Penalties, Section 409A

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Drones: Hollywood’s Requests for Regulatory Exemptions from the FAA Could Get UAS for Commercial Use Off the Ground

The lack of certainty regarding the use and regulation of unmanned aircraft systems (UAS) is prompting companies to seek creative ways to get their drones off the ground. This week, seven aerial photo and video production…more

Drones, Entertainment Industry, Exemptions, FAA, Oil & Gas

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GE food-labelling bill fails in California Senate

Despite the recent passage of a genetically engineered (GE) food-labelling law in Vermont, and similar bills appearing in legislatures in other states, proponents of labelling have again failed to pass such a law in California…more

Food Labeling, Food Manufacturers, GMO, Legislative Agendas, Pending Legislation

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Another Small Step Forward: China Further Clarifies its Notification Procedure for Simple M&A Transactions

Earlier this year, China’s Ministry of Commerce (“MOFCOM”) implemented new regulations under the Anti-Monopoly Law (“AML”) enabling “simple” M&A and joint venture transactions to be eligible for a potentially shorter and less…more

China, Mergers, MOFCOM, Notice Requirements

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ITC Reasserts Jurisdiction over Electronic Transmissions in Digital Models

On April 3, 2014, the International Trade Commission (the ITC or the “Commission”) released an opinion in In the Matter of Certain Digital Models, Digital Data, and Treatment Plans for Use in Making Incremental Dental…more

Electronic Communications, ITC, Section 337

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Exclusive Forum Provisions: A New Item for Corporate Governance and M&A Checklists

Public companies increasingly are adopting “exclusive forum” bylaws and charter provisions that require their stockholders to go to specified courts if they want to make fiduciary duty or other intra-corporate claims against the…more

Board of Directors, Bylaws, Corporate Charters, Corporate Governance, Exclusive Forum

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State + Local Tax Insights -- Spring 2014

In This Issue: - Where’s Walden? Finding Protection under the Due Process Clause - Upcoming Speaking Engagements - CFCs and Subpart F Income in a California Water’s-Edge Election and What’s Wrong with the Apple…more

Apple, CFCs, Due Process, Franchise Tax Board, Franchise Taxes

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U.S. House Votes to Reauthorize the CFTC and Exclude Most RICs from CPO and CTA Requirements

The U.S. House of Representatives on June 24, 2014, passed a version of the CFTC reauthorization bill, H.R. 4413, that would exclude investment advisers to registered investment companies (RICs) from the definitions of commodity…more

CFTC, CPO, CTA, Investment Adviser, Legislative Agendas

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Take That! Second District Court of Appeal Clears Major Hurdles for Newhall Ranch Project, Provides Guidance on California’s “Fully Protected Species”

California’s Second District Court of Appeal, Division Five, issued a decision on March 20 in Center for Biological Diversity v. Department of Fish & Wildlife (Case No. BS131347), overturning the trial court’s decision setting…more

Endangered Species, Endangered Species Act, Environmental Impact Report, Environmental Policies, ESA Listings

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The AIA Technical Corrections Act Changes How Patent Term Adjustment is Calculated and Challenged

On April 1, 2013, the USPTO published an interim final rule implementing various provisions of the AIA Technical Corrections Act (“AIA TCA”). This new legislation and its implementing regulations significantly alter how patent…more

America Invents Act, Patent Reform, Patent Term Adjustment, Patents, USPTO

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Beijing High Court Issues Guidelines For Determining Patent Infringement

On September 4, 2013, the Beijing High People’s Court issued new Guidelines for Determining Patent Infringement (the “Guidelines”). Spanning 133 articles, the Guidelines provide comprehensive and practical guidance on such…more

China, Patent Infringement, Patents

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CFPB Announces Potential Model Packaging Disclosures for GPR Prepaid Cards

On March 18, 2014, the Consumer Financial Protection Bureau (CFPB) continued its long march toward regulating general-purpose reloadable (GPR) prepaid cards by releasing test model disclosures for prepaid card packaging that are…more

CFPB, OMB, Prepaid Payment Products

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World Bank Suspension and Debarment Report

On June 26, 2014, the World Bank’s Office of Suspension and Debarment (OSD) released its public report covering sanctions arising from World Bank-financed projects during OSD’s first six years of operation. The report includes…more

Corruption, Fraud, Information Reports, Performance and Accountability Report, Project Finance

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Socially Aware - Volume 5, Issue 4 - July 2014

In This Issue: - European Court of Justice Strengthens the Right to Be Forgotten - California AG Offers Best Practices for Do Not Track Disclosures; Crucial Compliance Questions Left Unanswered - Snap…more

Data Protection, Do Not Track, ECJ, EU, FTC

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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, Drug Manufacturers, Foreign Copyright Protection

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Apex Inks Deal Selling Rest Of 300-MW Wind Project's Power

An Apex Clean Energy unit will sell the remaining 100 megawatts of wind energy capacity from its 300-megawatt Balko wind project through a power purchase agreement with the Western Farmers Electric Cooperative, Apex said…more

Energy, Utilities Sector, Wind Power

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Financial Services Report, Summer 2014

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

Banks, Cybersecurity, Data Protection, Encryption, Fair Lending

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White House Announces the Administration Strategy on Mitigating the Theft of U.S. Trade Secrets

On February 20, 2013, the White House released the Administration Strategy on Mitigating the Theft of U.S. Trade Secrets (the “Strategy”), which “recognizes the crucial role of trade secrets in the U.S. economy and sets out a…more

Economic Espionage Act, Mitigation, Theft of Trade Secrets Clarification Act, Trade Secrets

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Bowman v. Monsanto: Crisis Averted on IP Protection for Self-Replicating Technologies

Life science companies in general (and seed companies in particular) are breathing a sigh of relief following the Supreme Court’s decision yesterday in Bowman v. Monsanto. As Bowman wended its way through district court…more

Bowman v Monsanto, Genetically Engineered Seed, Infringement, Monsanto, Patent Exhaustion

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2013 Alternative Energy Legislative Roundup: California Continues to Move Forward on Clean Energy

California continued to add to its steady stream of laws and regulatory actions to promote renewable energy and clean technologies with significant new legislation on net metering and community solar projects. While AB 177…more

Clean Energy, Clean Tech, CPUC, Energy

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China’s Supreme Court Ruling in Haifu v. Shiheng Changes the Landscape for Value Adjustment Mechanisms in Onshore Private Equity Transactions

The Supreme People’s Court of China (the “Supreme Court”) rendered its final judgment on November 7, 2012, in the Haifu Investment Co., Ltd. v. Gansu Shiheng Nonferrous Resources Recycle Company Limited (“Haifu v. Shiheng”)…more

China, Foreign Investment, Private Equity, Shareholders, Value Adjustment Mechanisms

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Structured Thoughts: Volume 5, Issue 4 - May 30, 2014

In This Issue: - No More KIDding Around: European Parliament Approves PRIIPs Regulation - FINRA Amends Rule 5110 to Exempt Certain Collective Investment Vehicles from Its Filing Requirements - The Time for the SEC…more

Compliance, EU, Financial Regulatory Reform, FINRA, Foreign Investment

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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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State + Local Tax Insights -- Spring 2014

In This Issue: - Where’s Walden? Finding Protection under the Due Process Clause - Upcoming Speaking Engagements - CFCs and Subpart F Income in a California Water’s-Edge Election and What’s Wrong with the Apple…more

Apple, CFCs, Due Process, Franchise Tax Board, Franchise Taxes

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FINRA Invites Public Comment on a Modified Regulatory Scheme for Broker-Dealers Specializing in M&A and Corporate Finance

FINRA is seeking public comment on a much needed overhaul of the regulatory requirements for broker-dealers who specialize in M&A and corporate finance. The overhaul would be accomplished by creating a new category of…more

Broker-Dealer, FINRA

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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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Consumer Rights and Wrongs: Are You Ready for the New EU Consumer Contracts Rules?

From 13 June 2014, the consumer rights landscape in Europe will change. The EU Consumer Rights Directive (2011/83/EU) (the “CRD”) was introduced in 2011 with the aim of harmonising and simplifying consumer protection legislation…more

Consumer Rights Directive, EU, New Legislation

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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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Reforming Proposition 65: Governor’s “Update” Is a Promising Start

Yesterday, Governor Jerry Brown’s office announced his intention to propose “updates” to Proposition 65 (Health & Safety Code section 25249.5 et seq.) supposedly designed to make the law less susceptible to the widespread abuses…more

Frivolous Lawsuits, Jerry Brown, Proposition 65, Safe Harbors

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Laying the Groundwork for Natural Gas Vehicles

Infrastructure and Regulations may Dictate Speed of Adoption - America’s shale gas revolution is making waves in transportation technology. Currently, only 1 percent of all natural-gas-fueled vehicles worldwide are…more

FERC, Natural Gas, Oil & Gas, Trucking Industry

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Copyright: Europe Explores its Boundaries - Part 3: “Meltwater” - EU rules that browsing does not need a licence - a victory for common sense (or for pirates)?

On 5 June 2014 the European Court of Justice (CJEU) published its decision in the “Meltwater” Case C-360/13, (Public Relations Consultations Association Ltd (PRCA) v Newspaper Licensing Agency Ltd (NLA) and Others). In a ruling…more

CJEU, Copyright, Copyright Infringement, Internet

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Socially Aware - Volume 5, Issue 2 - April 2014

In This Issue: - Employer Access to Employee Social Media: Applicant Screening, ‘Friend’ Requests and Workplace Investigations - Driving Under the Influence (of Google Glass) - U.S. Courts’ Evolving Approaches to…more

Car Accident, Copyright, Distracted Driving, Employer Liability Issues, Google

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Application of the Self-Employment Tax and 3.8% Net Investment Income Tax to Fund Managers

With the imposition of a new 3.8% “net investment income tax” (the “NIIT”) pursuant to Section 1411 of the Internal Revenue Code of 1986, as amended (the “Code”) on passive income and the imposition of an additional .9% on the…more

Fund Managers, Net Investment Income, Self-Employment Tax

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New Jersey punitive damages analysis ignores established precedent

Since 2008 New Jersey law has effectively granted pharmaceutical manufacturers immunity from punitive damages claims. While New Jersey state courts continue to recognise and enforce that immunity, some recent federal court…more

Damages, FDA, Fraud, Prescription Drugs, Punitive Damages

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FTC Updates Its “Dot Com Disclosures” with a Focus on Social Media Advertising

On March 12, 2013, the Federal Trade Commission (“FTC”) issued an update to its “Dot Com Disclosures” guide to advertisers on making effective online disclosures. In doing so, the FTC has driven home the points that: •…more

Advertising, Disclosure Requirements, Dot Com Disclosure Guide, FTC, Social Media

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The Epic Buckyballs® Saga Settles

May 2014 brought an ordinary end to a series of extraordinary events, with the Consumer Product Safety Commission (CPSC) settling an unprecedented proceeding against Craig Zucker, the former CEO of Buckyballs® manufacturer…more

Buckyballs, CPSC, Fifth Amendment, First Amendment, Personal Liability

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Tax Talk -- Volume 7, No. 1 -- April 2014

In This Issue: - FATCA Update: IRS Releases New Regulations, New Forms, and New IGAs - No Rule Policy on MLPs - IRS Introduces New Grandfather Rule for Equity-Linked Instruments Under Section 871(m) - Rev. Proc…more

FATCA, IGAs, IRS, MLPs, Mortgage REITS

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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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Status Updates - July 2014 #9

..According to a current study by Bank of America, Americans are very closely attached to their smartphones. Of those surveyed, 85 percent said they check their phone at least a few times a day and 35 percent say they check it…more

Digital Assets, Law Enforcement, Privacy Concerns, Smartphones, Social Networks

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Socially Aware - Volume 4, Issue 2 - December 2013

In This Issue: Peering Into the Future: Google Glass and the Law; Ownership of Business-Related Social Media Accounts; Two Circuits Address the First Amendment Status of Facebook Activity; Collaborative Consumption – Is…more

Advertising, Behavioral Advertising, First Amendment, Google, Google Glass

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New NDRC Rules Set to Facilitate China Outbound Investments

As we reported in our February 18, 2014 alert, China’s State Council adopted a new, more permissive approach to regulation of overseas direct investment (“ODI”) with the promulgation on December 2, 2013 of the Circular…more

China, Foreign Investment, NDRC, New Regulations

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Investment Management Legal + Regulatory Update -- July 2013

In This Issue: Regulatory Updates - SEC Proposes Money Market Reform; SEC Eases Ban on General Solicitation and General Advertising in Certain Private Placements; SEC and CFTC Adopt Joint Rules to Address Identity…more

Broker-Dealer, CFTC, Disclosure Requirements, FSOC, General Solicitation

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They’re Back? First District Court of Appeal Paves the Way for Possible Reinstatement of Controversial Air Quality Thresholds

California’s First District Court of Appeal issued a decision on August 13 in California Building Industry Association v. Bay Area Air Quality Management District (“CBIA”) (Case No. A135335 (Cal. Ct. App. 1st, August 13, 2013)),…more

Air Quality Standards, CEQA, Environmental Impact Report, Greenhouse Gas Emissions, Land Developers

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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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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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SEC Staff Offers Guidance Regarding Investment Advisers and Proxy Advisory Firms

The SEC’s Division of Investment Management and Division of Corporation Finance published joint guidance on June 30, 2014 regarding investment advisers’ responsibilities in voting client proxies, and two exemptions from the…more

Investment Adviser, Proxies, Proxy Advisors, Proxy Voting Guidelines, SEC

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Japan Discloses New Efforts to Combat Foreign Bribery, as OECD Steps Up Pressure on Japan to Increase Enforcement

While many people don’t know it, a bribery scandal in Japan in 1976 was part of the motivation for the Foreign Corrupt Practices Act (FCPA), which was signed into law on December 19, 1977. Almost exactly two decades later, Japan…more

Bribery, Compliance, FCPA, Foreign Official, Japan

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State + Local Tax Insights -- Spring 2014

In This Issue: - Where’s Walden? Finding Protection under the Due Process Clause - Upcoming Speaking Engagements - CFCs and Subpart F Income in a California Water’s-Edge Election and What’s Wrong with the Apple…more

Apple, CFCs, Due Process, Franchise Tax Board, Franchise Taxes

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JOBS Act Quick Start - A brief overview of the JOBS Act - 2014 Update

In This Issue: - Introduction - The IPO on-ramp - The IPO Process - Applying Title I to other transactions - Private offerings - Crowdfunding - Regulation A+ - Exchange Act…more

Crowdfunding, Dodd-Frank, IPO, JOBS Act, Regulation A

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Don’t Bet On Finding Personal Jurisdiction Where the Injury Is Felt; the Supreme Court Further Restricts the Scope of Specific Personal Jurisdiction: Walden v. Fiore

On February 25, 2014, the Supreme Court decided Walden v. Fiore, No. 12-574. The unanimous opinion reversed the Ninth Circuit’s holding that Nevada had specific personal jurisdiction over an out-of-state defendant who had known…more

Personal Jurisdiction, SCOTUS

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Beyond Basic: Supreme Court’s Halliburton Ruling Strengthens Defenses in Securities Fraud Class Actions

Today, the Supreme Court issued its ruling in Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317 (U.S. June 23, 2014), the most anticipated securities decision since its landmark ruling over 25 years ago in Basic, Inc. v…more

Basic v Levinson, Class Action, Fraud, Fraud-on-the-Market, Halliburton

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The Hot IPO Market Continues

The first half of 2014 has seen the hottest IPO market in 14 years – 133 IPOs priced, raising more than $30 billion in proceeds. This is already greater than the total number of IPOs priced during 2011 and 2012. The second…more

IPO, JOBS Act

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The “Discovery” Rule Is No Longer Supreme: The Supreme Court Holds That State Statutes of Repose Are Not Preempted by CERCLA

On June 9, 2014, the Supreme Court ruled in CTS Corp. v. Waldburger et al. that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or the “Superfund” law), which preempts state statutes of…more

CERCLA, Contaminated Properties, CTS v Waldburger, Discovery, Environmental Liability

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Privacy Changes Coming to China

Originally published in Privacy & Security Law on 03/18/2013. There is continued focus in China on privacy and data security issues. China still has no omnibus law, but it has promulgated some sector-specific regulations…more

Audits, China, Credit Reporting Agencies, Cross-Border, Data Breach

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IP Quarterly - Winter 2014

In This Issue: Suprema, Inc. v. ITC; Ibormeith IP, LLC v. Mercedes-Benz USA, LLC; Intellect Wireless v. HTC; and IPR’s Limited Grounds Prove Challenging for Petitioners. Excerpt from Suprema, Inc. v. ITC…more

HTC America, ITC, Mercedes-Benz, Patent Infringement, Patent Litigation

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IRS Issues Final Circular 230 Rules Simplifying Written Advice Requirements

On June 9, 2014, the U.S. Treasury Department and Internal Revenue Service (“IRS”) issued final regulations replacing the “covered opinion” rules under Circular 230. Effective June 12, 2014, the final rules now subject all…more

Circular 230, Disclaimers, Final Rules, U.S. Treasury

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Lehman Waterfall Application and Game Station Decision

In another judicial decision springing from Lehman Brothers, as a result of the likely surplus in the estate of Lehman Brothers International (Europe) (in administration) (LBIE) after all the provable debts have been paid, Mr…more

Commercial Bankruptcy, Lehman Brothers

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FERC Proposes New Regulations on Priority Rights and Access to Generator Interconnection Facilities

On May 15, 2014, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) on open access and priority rights with regard to Interconnection Customer’s Interconnection Facilities (ICIF). The…more

Electric Generation Suppliers, Electricity, FERC, ICIF, Market Participants

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Employment Law Commentary -- Volume 25, Issue 10 -- October 2013: California Legislative Update – It’s That Time of Year Again

While the federal government ground to a halt, the California Governor and Legislature have been busy voting on and signing a flurry of new legislation at the end of this year’s legislative session. The following is a survey of…more

Compliance, Discrimination, Harassment, Inflation Adjustments, Legislative Agendas

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Calif. High Court Ruling Changes Class Action Landscape

“There are three kinds of lies: lies, damned lies and statistics.” The California Supreme Court could have been channeling Mark Twain when it rejected, emphatically, the unbridled use of statistical sampling to prove liability…more

Class Action, Employer Liability Issues, Statistical Sampling, U.S. Bank National Association, Wage and Hour

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State + Local Tax Insights -- Winter 2014

In This Issue: Ringing in the New Year: Issues from 2013 That Will Likely Impact 2014; Upcoming Speaking Engagements; Defending Against Penalties; and Dueling “Doing Business” Interstate-Commerce Exemptions: Anachronistic…more

Internet Taxation, Interstate Commerce, Penalties, SALT, State Taxes

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Federal Reserve Issues Guidance on Implementation Plans and Other Enhanced Prudential Standards for Foreign Banking Organizations

On June 26, 2014, the Federal Reserve Board (“Board”) published on its website responses to frequently asked questions (“FAQs”) relating to enhanced prudential standards under Section 165 of the Dodd-Frank Act and its…more

Dodd-Frank, FBOs, Federal Reserve, Regulation YY

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The CFPB's Most Recent Consent Order: Defining "Abusive" Acts and Practices Through Enforcement

Last week, the CFPB announced a settlement with payday lender ACE Cash Express of an enforcement action for alleged unfair, deceptive, and abusive practices (UDAAP). The Consent Order reflects the CFPB’s continued focus on debt…more

CFPB, Enforcement, Enforcement Actions, Payday Loans, UDAAP

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Financial Services Report -- Winter 2012

In This Issue: Bureau Report; Operations Report; Beltway Report; Arbitration Report; Mortgage Report; Privacy Report; Preemption Report; and Plastics Report. Excerpt from the Bureau Report: World’s Most Expensive…more

American Express, CFPB, Chase Bank, Cybersecurity, Debt Collection

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CFPB to Assume a Larger Role in Virtual Currency Initiatives

On June 26, 2014, the U.S. Government Accountability Office (“GAO”) released a report, entitled “Virtual Currencies: Emerging Regulatory, Law Enforcement, and Consumer Protection Challenges.” The report, delivered earlier to the…more

CFPB, DHS, DOJ, GAO, Information Reports

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Financial Services Report, Summer 2014

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

Banks, Cybersecurity, Data Protection, Encryption, Fair Lending

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Socially Aware - Volume 5, Issue 4 - July 2014

In This Issue: - European Court of Justice Strengthens the Right to Be Forgotten - California AG Offers Best Practices for Do Not Track Disclosures; Crucial Compliance Questions Left Unanswered - Snap…more

Data Protection, Do Not Track, ECJ, EU, FTC

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FERC Proposes New Regulations on Priority Rights and Access to Generator Interconnection Facilities

On May 15, 2014, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) on open access and priority rights with regard to Interconnection Customer’s Interconnection Facilities (ICIF). The…more

Electric Generation Suppliers, Electricity, FERC, ICIF, Market Participants

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Insider Trading Annual Review - 2013

Looking Back - 2013 witnessed several long-anticipated developments in the world of insider trading, punctuating another year of aggressive enforcement in the United States and abroad. After years of pursuit, the…more

Compliance, DOJ, Insider Trading, SEC, White Collar Crimes

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U.S. Supreme Court Abolishes the Presumption of Prudence in ERISA Stock Drop Cases

A recurring scenario in ERISA litigation involves claims against fiduciaries of 401(k) retirement plans who are alleged to have breached their fiduciary duty by failing to discontinue investment in employer stock following a…more

401k, Employee Benefits, ERISA, Fiduciary Duty, FIfth Third Bancorp v Dudenhoeffer

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Employment Law Commentary -- Volume 25, Issue 5 -- May 2013: When Is a Complaint a Complaint? After Kasten and beyond

Employees, like a lot of people, complain. Work may be too hard, it may be too easy, and for many people work may never be quite right. As they say, the grass is always greener on the other side. But when does a passing negative…more

Anti-Retaliation Provisions, Class Action, Complaint Procedures, FLSA, Hiring & Firing

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A New SEC Enforcement Direction for 2014

Each year, the SEC puts on its most informative conference of the year: The SEC Speaks. During the course of the two-day conference, held this year on February 21 and 22, the Chair and each Commissioner, as well as the most…more

Enforcement, SEC

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Motorola Mobility LLC v. AU Optronics Corp.: Seventh Circuit Clarifies Reach of U.S. Antitrust Law to Foreign Commerce

A recent decision from the Seventh Circuit, Motorola v. AU Optronics Corp., provided much-needed clarification on the scope of the Foreign Trade Antitrust Improvements Act (“FTAIA”). Specifically, the court’s decision clarifies…more

Antitrust Litigation, Antitrust Provisions, Foreign Commerce, FTAIA, Motorola

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Are Financial Institutions Ready for Cloud Computing?

Originally published in BNA’s Banking Report on January 8, 2013. The rapid growth in the availability and sophistication of cloud computing services — on-demand, scalable information technology services provided over the…more

Big Data, Cloud Computing, Data Protection

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Beyond Basic: Supreme Court’s Halliburton Ruling Strengthens Defenses in Securities Fraud Class Actions

Today, the Supreme Court issued its ruling in Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317 (U.S. June 23, 2014), the most anticipated securities decision since its landmark ruling over 25 years ago in Basic, Inc. v…more

Basic v Levinson, Class Action, Fraud, Fraud-on-the-Market, Halliburton

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California Reduces Section 409A Penalty

In a victory for California employers and employees, on October 4, 2013, Governor Edmund G. Brown Jr. signed into law California Assembly Bill 1173 (“Bill 1173”), which reduces California’s additional tax on income for…more

Compensation Agreements, Penalties, Section 409A

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MoFo New York Tax Insights - Volume 4, Issue 1 - January 2013

In This Issue: Court of Appeals Reverses Appellate Division, Holds that EchoStar’s Equipment Purchases Qualified as Sales for Resale; Appellate Court Holds Electronic Messaging Services Subject to Sales Tax; ALJ Finds…more

ALJ, Appeals, Domicile, Innocent Spouse Exception, QEZE Benefits

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Socially Aware - Volume 5, Issue 4 - July 2014

In This Issue: - European Court of Justice Strengthens the Right to Be Forgotten - California AG Offers Best Practices for Do Not Track Disclosures; Crucial Compliance Questions Left Unanswered - Snap…more

Data Protection, Do Not Track, ECJ, EU, FTC

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New FCPA Decision: How Long is the FCPA’s Reach?

A little more than a year after Deustche Telekom (“DT”) and Magyar Telekom entered into multi-million dollar settlements with the SEC and DOJ to resolve claims that the two companies violated the FCPA, three former Magyar…more

Bribery, DOJ, FCPA, Interstate Commerce, Magyar Telekom

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Developments in Multistate Taxation -- November 2013

U.S. Supreme Court - On August 23, 2013, an online retailer filed a petition for a writ of certiorari with the U.S. Supreme Court seeking review of the New York Court of Appeals’ determination that a New York statute that…more

Certiorari, Commerce Clause, Internet Taxation, Multistate Tax Commission, SALT

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SAFE Liberalizes Foreign Exchange Rules … Or Not? -- Two recent circulars from China's foreign exchange regulator represent a welcome move towards streamlined forex transactions

Is the State Administration of Foreign Exchange (“SAFE”) finally loosening its grip on foreign exchange transactions? Not exactly - the baseline principle of control and scrutiny over the flows of money into and out of China…more

China, Foreign Exchanges, SAFE, Securities

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IFLR Regulatory Capital Survey 2013 (Japan Survey)

Section 1: Basel III implementation - 1.1 How advanced is Basel III implementation in your jurisdiction? The Japan Financial Services Agency (JFSA) has issued the following revised notifications: Notification 19 of…more

Basel III, Financial Regulatory Reform, Foreign Banks, Japan

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Proposed Narrowing of Licensing Exemption under California Finance Lenders Law

The California Department of Business Oversight (“CDBO”) has proposed to narrow a long-standing interpretation of a statutory licensing exemption for certain lenders under the California Finance Lenders Law (“CFLL”)1. The…more

Bank Holding Company, Banks, Department of Business Oversight, Exemptions, Lenders

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Federal Reserve Issues Guidance on Implementation Plans and Other Enhanced Prudential Standards for Foreign Banking Organizations

On June 26, 2014, the Federal Reserve Board (“Board”) published on its website responses to frequently asked questions (“FAQs”) relating to enhanced prudential standards under Section 165 of the Dodd-Frank Act and its…more

Dodd-Frank, FBOs, Federal Reserve, Regulation YY

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Supreme Court Takes Up Landmark Disparate Impact Case, Again, Over U.S. Objections

On June 17, 2013, the Supreme Court granted certiorari in Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., No. 11-1507, to decide whether disparate impact claims are cognizable under the Fair Housing Act (“FHA”). It…more

Certiorari, Discrimination, Disparate Impact, Eminent Domain, FHA

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Antitrust by Analogy: Developing Rules for Loyalty Rebates and Bundled Discounts

Economics has come to dominate antitrust jurisprudence. Preserving and enhancing economic welfare (in one form or another) is now the conceded goal of antitrust. Accordingly, economic analysis permeates antitrust scholarship,…more

Antitrust Litigation, Customer-Loyalty Programs, Discounts, Economic Impact Analysis, Rebates

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Supreme Court Rules Out Clean Air Act Permits for Stationary Sources Based on Greenhouse Gas Emissions…Unless You Are Getting a Permit “Anyway”

Today, a divided Supreme Court issued a highly anticipated Clean Air Act (the “Act”) decision in Utility Air Regulatory Group v. EPA. In an opinion authored by Justice Scalia, the Court rejected EPA’s application of the Act to…more

BACT, Clean Air Act, Climate Change, Environmental Policies, EPA

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Japan’s Slow Embrace of Outside Directors

The pressure on Japanese firms to appoint more outside directors is increasing. Japan has long lagged much of the rest of the world in requiring outside directors on the boards of its listed companies. The United States…more

Directors, Independent Boards, Japan

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Tax Talk -- Volume 7, No. 1 -- April 2014

In This Issue: - FATCA Update: IRS Releases New Regulations, New Forms, and New IGAs - No Rule Policy on MLPs - IRS Introduces New Grandfather Rule for Equity-Linked Instruments Under Section 871(m) - Rev. Proc…more

FATCA, IGAs, IRS, MLPs, Mortgage REITS

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Inclusionary Housing on the Run

Several recent legal developments have cast doubt on the ability of California cities to continue using favored tools to promote construction of “inclusionary” affordable housing units. Few would dispute that the state faces a…more

Affordable Housing, Inclusionary Housing Ordinance

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Bright Outlook for Covered Bonds

This year has proven to be an interesting one for the covered bond market, and we anticipate that 2013 will bring many important new developments. During 2012, the covered bond market continued to provide attractive financing…more

Bonds, Covered Bonds, EU, Foreign Banks, SEC

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No-Action Relief Allows Business Development Companies to Hold Shares of Investment Advisers

In two separate no-action letters, the SEC staff quietly expanded the ability of business development companies (BDCs) to invest in registered investment advisers. Section 12(d)(3) of the Investment Company Act of 1940…more

Business Development Companies, Investment Company Act of 1940, No-Action Letters, No-Action Relief, SEC

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Figuring FRAND

In our December post “A FRANDlier Realm” we discussed emerging law relating to patents that are essential to technological standards, like 3G wireless telecommunications. What happens when patent owners and product makers cannot…more

FRAND, Patents, Royalties

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Developments in Unitranch Financing: Balancing Opportunity and Risks

The loan markets saw a continued rise in middle market unitranche financings in 2013. Unitranche loans combine separate senior and subordinated debt financings into a single debt instrument. While unitranche financing is not…more

Debt, Financing, Loans, Middle Market, Popular

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Another Small Step Forward: China Further Clarifies its Notification Procedure for Simple M&A Transactions

Earlier this year, China’s Ministry of Commerce (“MOFCOM”) implemented new regulations under the Anti-Monopoly Law (“AML”) enabling “simple” M&A and joint venture transactions to be eligible for a potentially shorter and less…more

China, Mergers, MOFCOM, Notice Requirements

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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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Social Media and Proxy Contests

As the use of social media continues to grow, social media is likely to play an increasingly more prominent role in proxy contests. In this context, the recent Compliance and Disclosure Interpretations issued by the SEC’s…more

Compliance, Proxy Contests, SEC, Shareholder Activism, Social Media

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Breaking the ISDA Section 2(a)(iii) Insolvency Stalemate

On 19 June 2014, the International Swaps and Derivatives Association (“ISDA”) published an amendment to the ISDA Master Agreement for use in relation to section 2(a)(iii) of that agreement, for parties who wish to amend their…more

Default, Derivatives, ISDA, ISDA Master Agreement, OTC

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Socially Aware: The Social Media Law Update -- Vol. 3, Issue 5 -- December 2012

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we examine why social media marketing strategies should be concerned with clearing more than just copyrights; we revisit…more

COPPA, Copyright, FCRA, Free Speech, FTC

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Socially Aware - Volume 5, Issue 4 - July 2014

In This Issue: - European Court of Justice Strengthens the Right to Be Forgotten - California AG Offers Best Practices for Do Not Track Disclosures; Crucial Compliance Questions Left Unanswered - Snap…more

Data Protection, Do Not Track, ECJ, EU, FTC

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4 Key Questions For Evaluating PPP Opportunities

Public-private partnerships are all the rage, as governments seek new ways to deliver public infrastructure, facilities and services in the face of daunting budget limitations and doubts about older procurement modes. PPP…more

P3s, Public-Private Partnerships

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The American Way – DPAs arrive in the UK

February 2014 marks an important landmark in the UK authorities’ ongoing efforts to fight corporate crime, international corruption and bribery. On 24 February 2014, a new Part 12 of the Criminal Procedure Rules will come into…more

Deferred Prosecution Agreements, UK

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European Commission Adopts Changes to EU Merger Rules: One Step Forward, Two Steps Back

The European Commission (the “Commission”) recently adopted a number of revisions to the EU Merger Regulation intended to streamline and speed up the EU merger review process. The new rules will enter into force on January 1,…more

EU, European Commission, Mergers

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Buyer Beware: Third Circuit Confirms Claims are Subject to Disallowance Despite Sale to Third Party

The Third Circuit in In re KB Toys, Inc. recently affirmed a decision of the Delaware District Court, holding that trade claims are subject to disallowance under section 502(d) of the Bankruptcy Code despite their subsequent…more

Bankruptcy Code, Disallowance Defense

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Second Circuit Applies “Morrison” to Reject “Listing Theory”

On May 5, 2014, the U.S. Court of Appeals for the Second Circuit decided City of Pontiac v. UBS AG, affirming the dismissal of a securities fraud complaint against UBS and holding that the Supreme Court's decision in Morrison v…more

Appeals, City of Pontiac, Extraterritoriality Rules, Foreign Exchanges, Listing Theory

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Supreme Court Unanimously Affirms Federal Circuit’s Decision in CLS Bank: Alice Corp. Pty. Ltd. v. CLS Bank Int’l, No. 13-298

On June 19, 2014, the U.S. Supreme Court affirmed the Federal Circuit’s decision holding that the method, computer-readable medium, and system claims at issue in CLS Bank are not directed to eligible subject matter under 35…more

Alice Corporation, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus, Patent Litigation

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Harmony or Dissonance: The CFTC’s and SEC’s Cross-Border Rules

Recently, the SEC issued final rules addressing, among other things, the applicability of the security-based swap dealer (“SBSD”) and major security-based swap participant (“MSBSP”) definitions to cross-border security-based…more

CFTC, Cross-Border, Major Swap Participants, MSBSPs, SEC

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Poison Pills with Lower Ownership Thresholds for Activist Investors Come Under Attack

On March 25, 2014, Daniel Loeb’s Third Point LLC filed suit against Sotheby’s and its directors in Delaware’s Court of Chancery to invalidate Sotheby’s poison pill. The board of Sotheby’s adopted the poison pill this past…more

Board of Directors, Minority Shareholders, Poison Pill, Professional Liability, Shareholder Litigation

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Structured Thoughts: Volume 5, Issue 4 - May 30, 2014

In This Issue: - No More KIDding Around: European Parliament Approves PRIIPs Regulation - FINRA Amends Rule 5110 to Exempt Certain Collective Investment Vehicles from Its Filing Requirements - The Time for the SEC…more

Compliance, EU, Financial Regulatory Reform, FINRA, Foreign Investment

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Comcast Corp. v. Behrend: Courts Must Assess Merits of Plaintiffs’ Damages Evidence at Class Certification

Yesterday, in Comcast Corp. v. Behrend, 569 U.S. __ (2013), the Supreme Court answered a looming class certification question left open by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. __ (2011): whether a putative class action…more

Class Action, Class Certification, Comcast, Comcast v. Behrend, Dukes v Wal-Mart

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IRS Issues Final Circular 230 Rules Simplifying Written Advice Requirements

On June 9, 2014, the U.S. Treasury Department and Internal Revenue Service (“IRS”) issued final regulations replacing the “covered opinion” rules under Circular 230. Effective June 12, 2014, the final rules now subject all…more

Circular 230, Disclaimers, Final Rules, U.S. Treasury

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Second Circuit Determines the Relevant Date for Determining a Chapter 15 Debtor’s “COMI”

A. INTRODUCTION - Courts in the Southern District of New York and elsewhere have issued conflicting decisions regarding the appropriate time period to consider in determining a foreign debtor’s “center of its main…more

Chapter 15, Foreign Defendants, Venue

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Cooperation Pays in Insider Trading Enforcement and Sentencing

In This Issue: - Overview - Insider Trading Law - Insider Trading Penalties - Cooperating with the Government - Cooperating with the Department of Justice - Cooperating with the Securities and Exchange…more

Compliance, Criminal Prosecution, DOJ, Enforcement, Enforcement Actions

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No Billboards, Please

Companies intending to seek funding under the JOBS Act’s crowdfunding provision gained a seeming advantage in September when the SEC removed its ban on the general solicitation or advertising of certain types of private…more

Crowdfunding, JOBS Act, Private Placements, SEC, Startups

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IP Quarterly - Winter 2014

In This Issue: Suprema, Inc. v. ITC; Ibormeith IP, LLC v. Mercedes-Benz USA, LLC; Intellect Wireless v. HTC; and IPR’s Limited Grounds Prove Challenging for Petitioners. Excerpt from Suprema, Inc. v. ITC…more

HTC America, ITC, Mercedes-Benz, Patent Infringement, Patent Litigation

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Upjohn Upheld: D.C. Circuit Re-Affirms Privilege Protections for Multi-Purpose Internal Investigations

In one of the most important decisions of the year for corporate legal departments, on June 27, the D.C. Circuit held that a company’s internal investigation documents were protected by the attorney-client privilege where “one…more

Attorney-Client Privilege, Compliance, False Claims Act, Internal Investigations, Kellogg Brown & Root

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Ninth Circuit Limits Key Defense in ERISA Stock Drop Cases

On June 4, 2013, the Ninth Circuit issued an opinion in Harris v. Amgen, reversing an order granting a motion to dismiss and reviving a class action ERISA lawsuit based on allegedly imprudent investments in company stock. In…more

Amgen, Class Action, Defense Strategies, Duty of Prudence, ERISA

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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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Further Setback for the CFPB Director’s Authority?

A split panel of the U.S. Court of Appeals for the Third Circuit issued a decision yesterday holding that a “recess” appointment to the National Labor Relations Board (NLRB) was unconstitutional and invalid. NLRB v. New Vista…more

CFPB, Directors, Nominations, Recess Appointments, Richard Cordray

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Global Procurement Quarterly - Spring 2014

In This Issue: - The New Front in U.S. Sanctions: Ukraine and Russia - Electronic Invoicing in EU Public Contracts - German and EU Rules on Joint Bids - Q+A Corner with Melissa Milstead, Associate General Counsel…more

Barack Obama, EU, Executive Orders, Public Contracts, Russia

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The Implications of DOJ’s Auto Parts Price-Fixing Enforcement Actions

BACKGROUND - In plea agreements filed by the U.S. Department of Justice (DOJ) on September 26, 2013, nine automobile parts manufacturers agreed to pay more than $740 million in criminal fines to resolve charges of…more

Antitrust Litigation, Automotive Industry, Cartels, Criminal Prosecution, DOJ

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Federal Court in Manhattan “Likes” Service of Process via Facebook

On March 7, 2013, a federal court in Manhattan ruled, in Federal Trade Commission v. PCCare247 Inc., that service via Facebook is an acceptable alternative means of serving court documents on foreign defendants. Although this is…more

Facebook, Foreign Defendants, FTC, Service of Process, Social Media

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4 Key Questions For Evaluating PPP Opportunities

Public-private partnerships are all the rage, as governments seek new ways to deliver public infrastructure, facilities and services in the face of daunting budget limitations and doubts about older procurement modes. PPP…more

P3s, Public-Private Partnerships

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Shareholder Activism in Germany Following Takeover Announcements

Over the past few years there has been a noticeable increase in the frequency of activist investors building up considerable stakes in German listed companies in the context of public takeovers. One reason for this development…more

EU, Hedge Funds, Publicly-Traded Companies, Shareholder Activism, Shareholder Litigation

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MoFo New York Tax Insights - Volume 5, Issue 7 - July 2014

In This Issue: - Department of Finance Announces Updated Commercial Rent Tax Audit Policy on Billboards - ALJ Finds No Hearing Right To Challenge Notice and Demand, and Corporate “President” Is Personally…more

Advertising, Audits, Commercial Leases, Personal Liability, Sales & Use Tax

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DOJ Turns FCPA Spotlight on Financial Services Sector as Enforcement Efforts in Latin America Continue

Last week, the U.S. Department of Justice (DOJ) announced the indictment of two employees of a U.S. broker-dealer, Direct Access Partners, and a senior official in Venezuela’s state economic development bank, Banco de Desarrollo…more

Anti-Corruption, DOJ, Enforcement, FCPA, Latin America

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FINRA Sanctions a Broker for Violating Japanese Insider Trading Law

On July 2, 2014, FINRA announced that it barred a former equity trader from the securities industry based on its finding that he violated Japanese insider trading law by trading in the securities of a Japanese company listed on…more

Brokers, Compliance, Financial Crimes, FINRA, Insider Trading

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Cooperation Pays in Insider Trading Enforcement and Sentencing

In This Issue: - Overview - Insider Trading Law - Insider Trading Penalties - Cooperating with the Government - Cooperating with the Department of Justice - Cooperating with the Securities and Exchange…more

Compliance, Criminal Prosecution, DOJ, Enforcement, Enforcement Actions

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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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Capital Is Contagious— The FDIC and OCC Approve Final Risk-based Capital Rules, and the Agencies Propose a Supplemental Leverage Capital Ratio for Large U.S. Banking Organizations

Today, July 9, the Federal Deposit Insurance Corporation (“FDIC”) and the Office of the Comptroller of the Currency (“OCC”) took two significant actions on the implementation of new regulatory capital requirements in the U.S…more

Banks, Basel Committee, Basel III, FDIC, Federal Reserve

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Japan Discloses New Efforts to Combat Foreign Bribery, as OECD Steps Up Pressure on Japan to Increase Enforcement

While many people don’t know it, a bribery scandal in Japan in 1976 was part of the motivation for the Foreign Corrupt Practices Act (FCPA), which was signed into law on December 19, 1977. Almost exactly two decades later, Japan…more

Bribery, Compliance, FCPA, Foreign Official, Japan

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Paying for Playing: SEC Brings First Pay-to-Play Action against an Investment Adviser

The SEC has brought the first action under the “pay-to-play” rule adopted under the Investment Advisers Act. Andrew Ceresney, director of the SEC Enforcement Division, served notice that the SEC “will hold investment advisers…more

Affiliates, Broker-Dealer, Enforcement, Investment Adviser, Investment Advisers Act of 1940

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Supreme Court Rules Out Clean Air Act Permits for Stationary Sources Based on Greenhouse Gas Emissions…Unless You Are Getting a Permit “Anyway”

Today, a divided Supreme Court issued a highly anticipated Clean Air Act (the “Act”) decision in Utility Air Regulatory Group v. EPA. In an opinion authored by Justice Scalia, the Court rejected EPA’s application of the Act to…more

BACT, Clean Air Act, Climate Change, Environmental Policies, EPA

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China’s Legislature Weighs in on Online Data Privacy; Other Recent Privacy Developments in China

On December 28, 2012, the Standing Committee of the National People’s Congress (“NPC”), China’s legislature, weighed in on the subject of data privacy with its promulgation of the Decision on Reinforcing the Protection of…more

China, Compliance, Data Protection, Penalties

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The Inversion Craze: Will Today's Routine Tax Planning Be Retroactively Outlawed?

Alongside the more typical summer fare, such as coverage of the best beach reading and the latest action movie blockbuster, this summer the media have been abuzz with seemingly daily reports on the latest so-called “inversion”…more

AbbVie, AstraZeneca, Drug Manufacturers, Inversion, Manufacturers

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Patent Quality: Shining Through

A New Review Process Shows the Importance of a Good Application - The newly available procedure for challenging patent validity known as inter partes review, or IPR, is forcing patent players to raise their game—from…more

Inter Partes Review Proceedings, Patent Infringement, Patent Litigation, Patents

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Proposed Regulations Clarify the Definition of “Real Property” Under the REIT Rules

On May 14, 2014, the Treasury Department published proposed regulations (the “Proposed Regulations”) clarifying the definition of “real property” under the real estate investment trust (“REIT”) rules. The issuance of the…more

IRS, Private Letter Rulings, Property Tax, REIT

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American Express Co. v. Italian Colors Restaurant: The Supreme Court Reaffirms Its Commitment to Enforcing Arbitration Agreements

Last week’s Supreme Court decision in American Express Co. v. Italian Colors Restaurant builds on a recent line of pro-arbitration rulings – including Stolt-Nielsen, S.A. v. Animal Feeds Int’l Corp. and AT&T Mobility LLC v…more

American Express, American Express v Italian Colors Restaurant, Arbitration, Arbitration Agreements, Class Action

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Launch of openFDA Increases Accessibility to Adverse Drug Event Reports

On June 2, 2014, the Food and Drug Administration launched openFDA, a program designed to improve access to publicly available data beginning with adverse event reports. While greater accessibility to adverse event reports has…more

Adverse Events, Databases, FDA, FOIA, HHS

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Spoliation of Social Media Evidence: New Jersey Court Cracks Down

A March 23, 2013 decision from the U.S. District Court for the District of New Jersey serves as a cautionary tale for litigants. As a result of some arguably poor decisions by the plaintiff and likely miscommunication between…more

Discovery, Electronically Stored Information, Evidence, Facebook, Gatto v United Air Lines

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GAO Recommends Consideration of New Privacy Rules for Mobile Technologies

On November 15, 2013, the U.S. Government Accountability Office (“GAO”) released a report it had previously delivered to the U.S. Senate Committee on Commerce, Science and Transportation (“Committee”) that focuses on identifying…more

GAO, Mobile Devices, Privacy Policy

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MoFo New York Tax Insights - Volume 5, Issue 7 - July 2014

In This Issue: - Department of Finance Announces Updated Commercial Rent Tax Audit Policy on Billboards - ALJ Finds No Hearing Right To Challenge Notice and Demand, and Corporate “President” Is Personally…more

Advertising, Audits, Commercial Leases, Personal Liability, Sales & Use Tax

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A Blast from the Past: The SEC Fines Investment Adviser/Broker-Dealer for Breakpoint Violations

In a case reminiscent of the “breakpoint” enforcement actions brought 10 years ago by securities regulators, the SEC recently found that a registered investment adviser and broker-dealer overcharged clients because it improperly…more

Broker-Dealer, Enforcement Actions, Fees, Investment Adviser, SEC

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Inclusionary Housing on the Run

Several recent legal developments have cast doubt on the ability of California cities to continue using favored tools to promote construction of “inclusionary” affordable housing units. Few would dispute that the state faces a…more

Affordable Housing, Inclusionary Housing Ordinance

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Weight Watchers Class Action Dismissed Due to Plaintiff’s Failure to Properly Test the Challenged Products

On October 17, 2013, a federal district court judge in New Jersey dismissed a putative class action against Weight Watchers International, Inc. (Weight Watchers) alleging that Weight Watchers misrepresented the calorie content…more

Class Action, FDCA, Food Labeling, Misrepresentation, Weight-Loss Products

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CFPB Complaints Database Expands to Include Prepaid Cards and Nonbank Products

On July 21, 2014, the Consumer Financial Protection Bureau (“CFPB”) announced that it has further expanded its Consumer Complaint Database (“Database”) to include additional types of financial products. Specifically, the CFPB…more

CFPB, Consumer Complaint System, Credit Repair Services, Debt Settlement Services, Prepaid Payment Products

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2013 Reform of Short Selling Regulations in Japan

On November 5, 2013, the amendments to the laws and regulations related to the Financial Instruments and Exchange Law of Japan (the “FIEL”) went into effect, in which regulations concerning short selling in the Japanese…more

Financial Regulatory Reform, Insider Trading, Japan, Public Offerings, Short Sales

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Changes to FTC Premerger Rules Expand HSR Notification Requirements for Pharmaceutical Patent License Transactions

Yesterday, the U.S. Federal Trade Commission (“FTC”) issued its final rule (the “New Rule”) to the Hart-Scott-Rodino (“HSR”) Act Premerger Notification Regulations to clarify and expand the coverage of the HSR Act to patent…more

FTC, Hart-Scott-Rodino Act, Patents

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Changes to FTC Premerger Rules Expand HSR Notification Requirements for Pharmaceutical Patent License Transactions

Yesterday, the U.S. Federal Trade Commission (“FTC”) issued its final rule (the “New Rule”) to the Hart-Scott-Rodino (“HSR”) Act Premerger Notification Regulations to clarify and expand the coverage of the HSR Act to patent…more

FTC, Hart-Scott-Rodino Act, Patents

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CFPB Announces Potential Model Packaging Disclosures for GPR Prepaid Cards

On March 18, 2014, the Consumer Financial Protection Bureau (CFPB) continued its long march toward regulating general-purpose reloadable (GPR) prepaid cards by releasing test model disclosures for prepaid card packaging that are…more

CFPB, OMB, Prepaid Payment Products

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California’s Cap-and-Trade Auction Is Not a Tax: Court Decides “Close Question”

In a twin set of wins for the state, two lawsuits challenging California’s flagship cap-and-trade auction system first implemented in November 2012 were rejected by Sacramento Superior Court Judge Timothy Frawley this…more

Cap-and-Trade, Carbon Emissions, Environmental Policies, Greenhouse Gas Emissions

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Inclusionary Housing on the Run

Several recent legal developments have cast doubt on the ability of California cities to continue using favored tools to promote construction of “inclusionary” affordable housing units. Few would dispute that the state faces a…more

Affordable Housing, Inclusionary Housing Ordinance

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Structured Thoughts: Volume 5, Issue 4 - May 30, 2014

In This Issue: - No More KIDding Around: European Parliament Approves PRIIPs Regulation - FINRA Amends Rule 5110 to Exempt Certain Collective Investment Vehicles from Its Filing Requirements - The Time for the SEC…more

Compliance, EU, Financial Regulatory Reform, FINRA, Foreign Investment

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Proposed Regulations Clarify the Definition of “Real Property” Under the REIT Rules

On May 14, 2014, the Treasury Department published proposed regulations (the “Proposed Regulations”) clarifying the definition of “real property” under the real estate investment trust (“REIT”) rules. The issuance of the…more

IRS, Private Letter Rulings, Property Tax, REIT

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China’s Renewed Focus on Anti-Corruption Efforts Highlighted by a New Interpretation on Criminal Offense of Paying Bribes

In the three months since the Communist Party of China (the “CPC”) convened its 18th National Congress in November 2012, the CPC’s new leaders, including newly appointed CPC General Secretary and China’s incoming president Xi…more

Anti-Corruption, Bribery, China, Chinese Communist Party, Conditional Gifts

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CSRC Scraps Quantitative Thresholds for Offshore Listings by PRC Companies and Paves the Way for Direct Overseas Listings by Private SMEs

China Securities Regulatory Commission (“CSRC”), the securities regulator of the People’s Republic China (the “PRC” or “China”), has scrapped quantitative threshold requirements for Chinese companies applying for offshore…more

China, CSRC, Foreign Investment, Offshore Listings, SEHK

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State + Local Tax Insights -- Fall 2013

In This Issue: “Occasional Sales” and Single Sales Factor Apportionment in California; Upcoming Speaking Engagements; State Taxation of Financial Institutions; Applying the True Object Test to Determine the Taxability of…more

Apportionment, Economic Presence Nexus, Franchise Taxes, SALT, State Taxes

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The Treasury Department and the IRS Implement Windsor and Adopt “State of Celebration” Rule: Compensation and Benefits Considerations of Same-Sex Marriage Ruling

On August 29, 2013, the Treasury Department and the IRS issued Revenue Ruling 2013-17 (“Rev. Rul. 2013-17”) and updated Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law…more

Deferred Compensation, DOMA, Employee Benefits, IRS, Medicare Taxes

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Employment Law Commentary -- Volume 25, Issue 12 -- December 2013: Religious Discrimination and Muslim Employees

Religious discrimination charges are on the rise. The U.S. Equal Employment Opportunity Commission (EEOC) has seen a 223% increase from 1997 to 2012. And over in the UK, the number of religious discrimination claims has more…more

Compliance, EEOC, Religion, Religious Discrimination

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SEC Staff Provides Guidance on Conflict Mineral and Resource Extraction Disclosure Requirements

On May 30, 2013, the staff (the “Staff”) of the U.S. Securities and Exchange Commission (the “SEC”) published Frequently Asked Questions (“FAQs”) regarding certain disclosures required under the Dodd-Frank Wall Street Reform and…more

Conflict Mineral Rules, Disclosure Requirements, Dodd-Frank, Form SD, Resource Extraction

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Administering Arbitration Clauses in Online Terms of Service Agreements

Morrison & Foerster’s Sherman Kahn Interviews American Arbitration Association Vice President, Sandra Partridge. Many companies are providing for arbitration of disputes in their terms of service agreements governing use…more

American Arbitration Association, Arbitration, Arbitration Agreements, Mandatory Arbitration Clauses, Pre-approval

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Supreme Court Rejects Obama’s Recess NLRB Appointments

On June 26, 2014, the U.S. Supreme Court unanimously limited the President’s power to make recess appointments under the Recess Appointments Clause of the Constitution, Art. II, Sect. 2, Cl. 3. While the decision involved 2012…more

Barack Obama, Canning v NLRB, NLRB, Recess Appointments, SCOTUS

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New Fast Track in East Texas Offers Parties the Chance to Accelerate Patent Cases

On February 25, 2014, Chief Judge Leonard Davis of the Eastern District of Texas issued General Order 14-3, which allows for a "Track B" accelerated discovery schedule in patent infringement lawsuits. The parties must…more

Patent Infringement, Patent Litigation, Patents

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Breaking the ISDA Section 2(a)(iii) Insolvency Stalemate

On 19 June 2014, the International Swaps and Derivatives Association (“ISDA”) published an amendment to the ISDA Master Agreement for use in relation to section 2(a)(iii) of that agreement, for parties who wish to amend their…more

Default, Derivatives, ISDA, ISDA Master Agreement, OTC

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Socially Aware - Volume 5, Issue 2 - April 2014

In This Issue: - Employer Access to Employee Social Media: Applicant Screening, ‘Friend’ Requests and Workplace Investigations - Driving Under the I