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 Proceedings, Patent Reform

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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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Sweett Sentence Provides Guidance for DPAs

After its guilty plea to an offence under the UK Bribery Act, Sweett Group PLC was sentenced on February 19, 2016 at Southwark Crown Court, and ordered to pay a total £2.25 million penalty for the offence. The international…more

Bribery, Construction Contracts, Convictions, Criminal Prosecution, Deferred Prosecution Agreements

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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 March 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

Anti-Corruption, China, Compliance, Corporate Counsel, DOJ

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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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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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CPSC Definitely Not Zen About High-Powered Magnets

The last weeks of March brought us two interesting and seemingly contradictory opinions that show the many tools the U.S. Consumer Product Safety Commission has at its disposal to enforce its own regulations. These orders also…more

Consumer Product Safety Commission (CPSC), Product Recalls, Zen Magnets

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USDOL Proposes Significant Increase in Federal Salary Test for FLSA White Collar Exemptions

On Monday, July 6, the United States Department of Labor (USDOL) published its long awaited proposed rule “updating” regulations “defining and delimiting” the exemptions from overtime for white collar employees (i.e., the…more

Barack Obama, Comment Period, DOL, Employee Rights, Employer Liability Issues

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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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MoFo IP Newsletter - October 2015

The Survey Says: Tiffany Is Not Generic for A Ring Setting - Last month, the Southern District of New York granted summary judgment to Tiffany & Co. on its trademark infringement claim against Costco Wholesale Corporation…more

Abuse of Dominance, Abuse of Process, America Invents Act, Apple v Samsung, China

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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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Possible Worlds Versus Probable Worlds - the Metaphysics of Systemic Risk: FSOC Revisits Asset Managers

On April 18, 2016, the Financial Stability Oversight Council (FSOC) again warned that asset managers present systemic risk to financial stability in five key areas: ..liquidity and redemptions; ..leverage;…more

Asset Management, Dodd-Frank, FSOC, Mutual Funds, SEC

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California Court of Appeal Weighs in on Enforceable “Browsewrap” Arbitration Agreements in ProFlowers Case

The California Court of Appeal (2d App. Dist., Div. 3) recently joined the ever-evolving body of case law addressing the enforceability of so-called “browsewrap” arbitration agreements. In Long v. Provide Commerce, Inc., —…more

Arbitration Agreements, Browsewrap Agreement, Terms and Conditions, Terms of Use

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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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Getting the Deal Done - China, Semiconductors, and CFIUS

Investing in U.S. semiconductor sector companies has become an increasingly challenging task for Chinese investors as the interagency Committee on Foreign Investment in the United States—better known as CFIUS—has increased its…more

Acquisitions, CFIUS, China, Foreign Investment

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A User's Guide to Volcker Rule Complexities

Increasingly, we receive questions from prospective investors in covered bonds on whether an investment is prohibited or limited under the Volcker Rule, which was adopted by the various agencies under section 619 of the…more

Banking Sector, Covered Bonds, Dodd-Frank, Exclusions, Exemptions

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Eighth Circuit Denies Class Certification in Securities Fraud Suit, Finding the “Fraud-on-the-Market” Presumption of Reliance Did Not Apply Under Halliburton II

On April 12, 2016, the U.S. Court of Appeals for the Eighth Circuit issued a significant decision denying class certification in a federal securities fraud action, holding that the defendants had rebutted the fraud-on-the-market…more

Best Buy, Class Certification, Fraud-on-the-Market, Halliburton, Presumption of Reliance

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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 7, Issue 5

Electronic Structured Product Systems and FINRA’s Robo-Advisor Report - In a prior issue of this publication, we wrote about electronic structured note issuance platforms, and how these might be affected by U.S. securities…more

Broker-Dealer, ESMA, Financial Adviser, FINRA, OCC

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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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European M+A News, Fall 2014

In This Issue: - Shareholder Activism in Germany - Reinforced Ukraine-Related Sanctions on Russia - Current Developments Foreign Direct Investment into EU Increasing - Rising Confidence – European M&A…more

Blackberry, Energy, EU, European Merger Control Regulation, Foreign Investment

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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, EU, Misappropriation, Trade Secrets

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Top Ten International Anti-Corruption Developments for March 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

Anti-Corruption, China, Compliance, Corporate Counsel, DOJ

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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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Final Department of Labor Fiduciary Regulations Under ERISA

Earlier this week the Department of Labor (DOL) issued its long-anticipated final regulation (the “Regulation”) defining who is a fiduciary as a result of giving investment advice to plans subject to ERISA, to participants or…more

DOL, ERISA, Fiduciary Duty, Investment Adviser, IRA

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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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CPSC Definitely Not Zen About High-Powered Magnets

The last weeks of March brought us two interesting and seemingly contradictory opinions that show the many tools the U.S. Consumer Product Safety Commission has at its disposal to enforce its own regulations. These orders also…more

Consumer Product Safety Commission (CPSC), Product Recalls, Zen Magnets

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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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Another Major Earthquake: California Creates Big Fissures in Proposition 65 Regulations – Proposals Could Shatter Defenses

In the midst of making Proposition 65’s longstanding warning regulations far more onerous, and vexatious litigation far more likely, California’s Office of Environmental Health Hazard Assessment (OEHHA) has unveiled still more…more

Arsenic, Beech-Nut, Birth Defects, Lead, OEHHA

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En banc Federal Circuit Affirms ITC’s Authority to Issue Exclusion Orders for Induced Infringement of Method Claims

Reversing an earlier panel decision, the en banc Federal Circuit confirmed that the ITC has the authority to issue exclusion orders against imported products that ultimately are used to infringe method claims, even if those…more

Covered Business Method Patents, Direct Infringement, En Banc Review, Imports, Induced 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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CFTC Issues Proposed Rules Regarding the Cross-Border Application of its Uncleared Swaps Margin Requirements

On June 29, 2015, the Commodity Futures Trading Commission (“CFTC”) issued proposed rules (“Proposed Rules”) regarding the cross-border application of its proposed uncleared swaps margin rules issued last October. The Proposed…more

Advanced Notice of Proposed Rulemaking (ANPRM), CFTC, Commodities, Compliance, Cross-Border Transactions

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CEQA Doesn’t Operate in “Reverse” (Usually)

It’s not quite Star Wars, but in the world of land use, this counts as a blockbuster. The California Supreme Court has decided unanimously that the California Environmental Quality Act (CEQA) generally does not require analysis…more

Air Pollution, Bay Area Air Quality Management District, California Building Industry Association (CBIA), CEQA, Housing Developers

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MoFo Global Procurement Quarterly: Spring 2015

In This Issue: - Right to Modify? - International Brands May Trigger Cross-Border Interest in EU Tenders - Q&A with James Koukios - GSA Data Reporting - International IT Companies Face Continuing…more

China, Cross-Border, EU, Government Contractors, GSA

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Guangdong DOJ Wades Into the Fray by Demanding That CIETAC Cease “Illegal Arbitration Activities” in Guangdong

On July 15, 2015, the PRC Supreme People’s Court (SPC) issued an interpretation clarifying various jurisdictional issues arising from the mid-2012 decision of the former South China and Shanghai Sub-Commissions of the China…more

Arbitration, Arbitration Agreements, Arbitration Awards, Cease and Desist, China

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Supreme Court Affirmation of Hawkins Case Raises More Questions Than It Answers

On March 22, 2016, the Supreme Court of the United States issued an order in Hawkins v. Community Bank of Raymore. An evenly divided Court affirmed the Eighth Circuit decision without issuing an opinion, thereby resolving the…more

Commercial Loans, ECOA, Family Status Discrimination, Guarantors, Hawkins v Community Bank of Raymore

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The Difficulty Of Challenging FCA Fine As Excessive

Last month, in U.S. ex rel. Drakeford v. Tuomey, No. 13-2219, (4th Cir. July 2, 2015), the Fourth Circuit affirmed a False Claims Act verdict against a nonprofit hospital in Sumter, South Carolina. In an area of the law where…more

Compensatory Damages, Eighth Amendment, Excessive Fees, False Claims Act (FCA), Fraud and Abuse

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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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Is Your iPhone an Autodialer?

The Third Circuit has become the first appellate court to endorse the FCC’s broad definition of “autodialer” under the TCPA. In a July 10 declaratory ruling, the FCC defined “autodialer” as any device with the capacity to store…more

Auto-Dialed Calls, FCC, iPhone, Reversal, TCPA

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European Patent Office Finds Plants and Plant Products Patent-Eligible

On March 25, the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) handed a victory to those seeking to protect plant inventions in Europe. The EBA found that the essentially biological processes exclusion of…more

EU, European Patent Office, Patent-Eligible Subject Matter, Patents, Plant Patents

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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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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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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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Final Department of Labor Fiduciary Regulations Under ERISA

Earlier this week the Department of Labor (DOL) issued its long-anticipated final regulation (the “Regulation”) defining who is a fiduciary as a result of giving investment advice to plans subject to ERISA, to participants or…more

DOL, ERISA, Fiduciary Duty, Investment Adviser, IRA

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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 in Japan

Each year, many American companies become involved in litigation in Japan and find the legal system to be very different from what they expected. This article explains some of the major differences between the U.S. and…more

International Litigation, Japan, Patent Litigation

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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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Proposed Prop 65 Rules Won't Please Calif. Businesses

California’s Proposition 65 warning requirements (Health & Safety Code Sections 25249.6 et seq.) have long been a major concern for businesses that want their products offered for sale in the state’s large marketplace…more

Labeling, Proposition 65, Safe Harbors, Warning Labels

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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 - April 2016

The 2015 Changes to the Federal Rules Matter for Your Patent Case and Tech Business: Getting in the Courthouse Door Just Got Tougher - It used to be that a complaint for patent infringement would survive a motion to…more

America Invents Act, Anti-Monopoly, Broadest Reasonable Interpretation Standard, Copyright Infringement, Cuozzo Speed Technologies v Lee

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Five Key Lessons for Business Litigators from National Abortion Federation v. Center for Medical Progress

On February 5, 2016, Morrison & Foerster secured a preliminary injunction on behalf of its client, National Abortion Federation (“NAF”), in National Abortion Federation v. Center for Medical Progress. The firm’s work on this…more

Abortion, Anti-SLAPP, Confidentiality Agreements, Corporate Counsel, Credibility

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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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The CFPB & UDAAP: A "Know It When You See It" Standard? 2015 Year-End Update

The Consumer Financial Protection Bureau’s (CFPB) exercise of its sweeping authority to prohibit unfair, deceptive, and abusive acts or practices (UDAAP) continues to command the attention of financial institutions and financial…more

Automotive Loans, CFPB, Consent Order, Credit Reports, Debt Collection

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Looks Like Another Test Case For EU Bank Resolution Law

Readers interested in the Banking Recovery and Resolution Directive (BRRD) no doubt have been following the ongoing travails of the Portuguese "good bank" Novo Banco SA and "bad bank" Banco Espírito Santo SA (BES). The…more

Asset Transfer, Banking Sector, Banks, BRRD, EU

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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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Friday Links - April 2016 #3

A lawsuit alleges this Snapchat feature is making driving even more dangerous, and it’s not texting or instant messaging. This state is considering imposing hefty fines on jurors who post information to social media about…more

Facebook, Instagram, Juror Selection, Personal Data, SnapChat

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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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Judge in High-Profile Case Obtains Attorney Agreement Not to Engage in Juror Social Media Snooping

It seems that almost everyone uses social media today. Of course, this means that most every juror is a social media user, and that courts are dealing with the thorny questions that arise out of the proliferation of social media…more

Google, Impartiality, Internet, Juror Misconduct, Juror Selection

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Top Ten International Anti-Corruption Developments for March 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

Anti-Corruption, China, Compliance, Corporate Counsel, DOJ

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New Staff Legal Bulletin and Proxy Voting Guidelines Released Ahead of the 2016 Proxy Season

Just ahead of the 2016 proxy season, the Staff of the Division of Corporation Finance of the SEC released new guidance—Staff Legal Bulletin No. 14H (“SLB 14H”)—describing how the Staff will evaluate issuers’ arguments for…more

New Guidance, Overboarding, Proxy Season, Proxy Voting Guidelines, SEC

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Top Ten International Anti-Corruption Developments for March 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

Anti-Corruption, China, Compliance, Corporate Counsel, DOJ

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TRIA Extension Fails: An Initial Guide to Next Steps

To the surprise of many, Congress failed to extend the Terrorism Risk Insurance Act of 2002 ("TRIA"), which is set to expire at the end of this year. Many hope that TRIA in some form will be re-authorized early in 2015 and,…more

Terrorism Insurance, TRIA

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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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Digital Single Market Strategy Update: Europe Proposes Further Harmonisation of Consumer Protection Laws

The European Commission has published two draft directives on the supply of digital content and the online sale of goods that aim to help harmonise consumer law across Europe. In proposing these new laws, the European Union is…more

Digital Goods, Digital Single Market, EU, European Commission, Sale of Goods Act (SOGA)

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House of Representatives Passes the HALOS Act; Fair Access to Investment Research Act of 2016 is Introduced

On April 27, 2016, the House of Representatives passed the Helping Angels Lead Our Startups Act (H.R. 4498) (the “HALOS Act”), which was first introduced on April 16, 2015. The HALOS Act directs the SEC to amend Regulation D…more

Advertising, Angel Investors, Broker-Dealer, Funding, General Solicitation

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Employment Law Commentary, March 2016

The California Fair Employment And Housing Council Issues Proposed Regulations To Limit Consideration Of Criminal History In Employment Decisions - Employers take great measures to avoid hiring dangerous employees—not just…more

Anti-Discrimination Policies, Anti-Harassment Policies, Anti-Retaliation Provisions, Criminal Background Checks, Disparate Impact

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Circular 122 – China Starts to Unwind Limits on Foreign Investment in Real Estate in Response to Slowing Economy

Nine years ago, in July 2006, six different Chinese government agencies issued Opinion 171, the first of a number of circulars imposing limits on foreign investment in the property market in response to concerns about a rapidly…more

China, Foreign Investment, Foreign Nationals, Leverage Ratio, MOFCOM

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IP Newsletter - January 2015

In This Issue: - Castle Defense: Federal Circuit Reinforces Patent Damages Gate in VirnetX - Standards Patent Licensing: Always Apportionment, Sometimes Stacking - Supreme Court to Consider Good-Faith Belief…more

Biotechnology, Cisco, Expert Testimony, FRAND, Good Faith

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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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IP Newsletter - January 2015

In This Issue: - Castle Defense: Federal Circuit Reinforces Patent Damages Gate in VirnetX - Standards Patent Licensing: Always Apportionment, Sometimes Stacking - Supreme Court to Consider Good-Faith Belief…more

Biotechnology, Cisco, Expert Testimony, FRAND, Good Faith

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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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In re Lions Gate Entertainment Securities Litigation: Court Rejects Securities Claims Based on Company’s Decision Not to Disclose Ongoing SEC Investigation

In a January 22, 2016 decision, a federal court in New York dismissed federal securities law claims against Lions Gate Entertainment and several of its senior executives based on the company’s decision not to disclose that it…more

Disclosure Requirements, Government Investigations, Regulation S-K, Rule 10b-5, SEC

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Risky Business: OEHHA to Require Prop 65 Data Submissions

The California Office of Environmental Health Hazard Assessment (“OEHHA”) has adopted new regulations that require businesses that make or use chemicals listed under Proposition 65 to provide certain information about the…more

Chemicals, New Regulations, OEHHA, Proposition 65, Toxic Exposure

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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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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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FERC Substantially Modifies Filing Requirements for Market-Based Rate Sellers and Clarifies Rules on Priority Rights Granted to Owners of Certain Interconnection Facilities

On October 16, 2015, the Federal Energy Regulatory Commission (FERC or “Commission”) issued Order No. 816 that revises filing requirements for market-based rate (MBR) sellers of electric energy, capacity, and ancillary services…more

Affiliates, Electric Generation Suppliers, Electricity, Energy Sector, Federal Register

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Don't Make Too Much Of 9th Circ.'s Mayo V. PCC Ruling

The extent of an employer’s duty to provide reasonable accommodations to employees with mental impairments can be difficult to discern, especially where an adverse action is taken in connection with conduct that is caused by or…more

ADA, Disability Discrimination, EEOC, Mental Health, Professional Misconduct

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FTC Warns Advertisers to Check the Fine Print in “Operation Full Disclosure”; Shot Across the Bow Could Signal Law Enforcement Actions to Come

The Federal Trade Commission (FTC) announced this week that it sent warning letters to more than 60 national advertisers regarding the inadequacy of disclosures in their television and print ads. The letters are part of an…more

Advertising, Disclosure Requirements, Enforcement, FTC, Media

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Out-of-State Subsidiary Holding Company Cannot Be Forcibly Included in a Colorado Combined Return

A Denver District Court judge has held that the Colorado Department of Revenue cannot forcibly combine a corporation’s subsidiary, a holding company that derived its income solely from investments in foreign entities, in Agilent…more

Combined Reporting, Department of Revenue, Foreign Entities, Foreign Investment, Internal Revenue Code (IRC)

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Federal Reserve Proposes Revisions to Form FR Y-7Q to Incorporate Capital Adequacy Standard Reporting Requirements for Foreign Banking Organizations with More than $50 Billion in Total Consolidated Assets

On Monday, April 4, 2016, the Board of Governors of the Federal Reserve System (“Federal Reserve”) proposed a revision to Form FR Y-7Q to incorporate the capital adequacy standard reporting requirements for foreign banking…more

FBOs, Federal Reserve, G-SIB, Leverage Ratio, Reporting Requirements

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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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U.S. Supreme Court Closes One Door to Mooting a Plaintiff’s Claims, but Potentially Opens Another

On January 20, 2016, the United States Supreme Court issued its decision in Campbell-Ewald Company v. Gomez, No. 14–857 (Jan. 20, 2016), holding that a defendant cannot moot a plaintiff’s claim under Article III of the U.S…more

Campbell Ewald v Gomez, Class Action, Class Representatives, Genesis Healthcare Corp. v. Symczyk, Mootness

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Bureau Tells Banks to Offer Overdraft-Free Accounts, Sends Warning on Reporting

On February 3, 2016, the Consumer Financial Protection Bureau (CFPB or “Bureau”) announced a series of steps designed to improve consumer access to checking accounts by (a) encouraging banks and credit unions to make available…more

Banking Sector, CFPB, Checking Accounts, Consumer Reporting Agencies, Deposit Accounts

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Socially Aware: The Social Media Law Update Volume 7, Issue 2

Welcome to the newest issue of Socially Aware, our Burton Award winning guide to the law and business of social media. In this edition, we offer tips for a successful—and legal—advertising campaign; we examine a New York State…more

Advertising, B2C, Big Data, Digital Goods, Discovery

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Paris Agreement on Climate Change Boosts Clean Energy Innovation and Finance

On December 12, 2015, 195 countries came together in Paris to adopt a landmark climate change deal. The Paris Agreement creates, for the first time, a long-term global framework that commits nearly every country to reducing…more

Clean Energy, Clean Power Plan, Climate Change, Financing, Greenhouse Gas Emissions

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Financial Services Report, Spring 2016

Why another law firm newsletter? Over ten years ago, Will Stern answered that question in the first Editor’s Note of the first Financial Services Report. Some things have changed since then—we no longer print and mail paper…more

Arbitration, CFPB, Credit Cards, Customer Lists, Cybersecurity

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2014 Insider Trading Annual Review

Overview of Insider Training Law - “Insider trading” is an ambiguous and overinclusive term. Trading by insiders includes both legal and illegal conduct. The legal version occurs when certain corporate insiders – including…more

Enforcement, Enforcement Actions, Illegal Tipping, Insider Trading, Material Misstatements

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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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Certification by Statistics: U.S. Supreme Court Upholds Use of Statistical Sampling in Tyson Foods Employment Class Action

Yesterday, the U.S. Supreme Court issued a 6-2 decision affirming a $2.9 million judgment against Tyson Foods, Inc. in an employment overtime pay case where statistical sampling was used to establish classwide liability and…more

Admissible Evidence, Calculation of Damages, Class Action, Class Certification, Class Members

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Investment Management Legal + Regulatory Update - July 2015

The 2016 compliance dates for new rules included in the SEC’s money market fund reforms are fast approaching. Among other things, the reforms include changes to stress-testing requirements, disclosure requirements, net asset…more

Disclosure Requirements, Liquidity, Money Market Funds, NAV, Regulatory Agenda

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Five Key Lessons for Business Litigators from National Abortion Federation v. Center for Medical Progress

On February 5, 2016, Morrison & Foerster secured a preliminary injunction on behalf of its client, National Abortion Federation (“NAF”), in National Abortion Federation v. Center for Medical Progress. The firm’s work on this…more

Abortion, Anti-SLAPP, Confidentiality Agreements, Corporate Counsel, Credibility

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Socially Aware - Volume 6, Issue 1 - January/February 2015

In This Issue: - Good Rep: Social Media Assets in M&A Transactions - Narrow Vision: Did Anti-Glass Hysteria Contribute to the Demise of Google Glass? - Forced to Cyber-Spy: Court Rules Parents Can Be Held…more

Business Assets, Cloud Computing, Contract Negotiations, Facebook, FTC

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Context, Reasons, Hedges, and Disclaimers: The Supreme Court’s Ruling in Omnicare May Shape Whether and How Companies Express Opinions

The Supreme Court’s decision yesterday in Omnicare Inc. v. The Laborers District Council Construction Industry Pension Fund, No. 13-435 (U.S. March 23, 2015) articulated the standard of liability for statements of opinion. At…more

Omnicare, Omnicare v Laborers District Council, Pharmacies, Registration Statement, SCOTUS

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Reminder: Information Statements Due by February 1, 2016, for 2015 Incentive Stock Option and Employee Stock Purchase Plan Transactions; IRS Filings Also Required

This is a reminder to public and private companies that grant incentive stock options (“ISOs”) or maintain a taxadvantaged employee stock purchase plan (“ESPP”). Under IRS regulations, these companies must provide information…more

Employee Stock Purchase Plans, Filing Requirements, Incentive Stock Options, Information Statements, IRS

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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, Retail Market

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Recent Credit Agreement Restricts Ability of CLOs to Pledge Loans and Ability of Lenders to Sell Participations on the LSTA Form

A broadly-syndicated U.S.-law credit agreement which closed recently includes language limiting the ability of lenders to grant pledges or sell participation interests in their loans. The language appears to be intended to…more

Balance Sheets, Collateralized Loan Obligations, Credit Agreements, Insolvency, Lenders

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ONEOK, Inc. v. Learjet, Inc.: The Supreme Court Holds that Natural Gas Jurisdictional Sellers are Subject to State Antitrust Claims

On April 21, 2015, the Supreme Court issued its much-anticipated decision in ONEOK Inc. v. Learjet, Inc. addressing the extent to which the Natural Gas Act (“NGA”) preempts state antitrust claims brought against jurisdictional…more

Antitrust Litigation, FERC, Natural Gas, Oil & Gas, Oil Prices

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Top Ten International Anti-Corruption Developments for March 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

Anti-Corruption, China, Compliance, Corporate Counsel, DOJ

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No (Tax) Man Is Above the Law: The Tax Court Rejects Final Cost-Sharing Regulations in Altera Corporation and Subsidiaries v. Commissioner, 145 T.C. 3 (July 27, 2015)

Our 26th President Theodore Roosevelt famously contributed to the American canon the following: “No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it.” The notion that no…more

Administrative Procedure Act, Cost-Sharing, IRS, Judicial Review, Stock-Based Compensation

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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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CFPB Publishes No-Action Letter Policy Statement

On February 22, 2016, the Consumer Financial Protection Bureau (“CFPB” or the “Bureau”) published its Final Policy Statement (“Final Policy”) on No-Action Letters (“NALs”). The Final Policy follows a Proposed Policy on No-Action…more

CFPB, Final Action, No-Action Letters, Policies and Procedures

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Narrowing of Licensing Exemption Under California Finance Lenders Law for Consumer Lenders and Brokers

The California Department of Business Oversight (the “CDBO”) has issued a new regulation that will eliminate a statutory licensing exemption under the California Finance Lenders Law (the “CFLL”) for nonbank operating…more

Affiliates, Banks, Brokers, Consumer Lenders, Department of Business Oversight

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Federal Reserve Proposes Revisions to Form FR Y-7Q to Incorporate Capital Adequacy Standard Reporting Requirements for Foreign Banking Organizations with More than $50 Billion in Total Consolidated Assets

On Monday, April 4, 2016, the Board of Governors of the Federal Reserve System (“Federal Reserve”) proposed a revision to Form FR Y-7Q to incorporate the capital adequacy standard reporting requirements for foreign banking…more

FBOs, Federal Reserve, G-SIB, Leverage Ratio, Reporting Requirements

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What is a RAND Licensing Rate? The Ninth Circuit Weighs in.

July has just ended, and SEP and FRAND issues are in the air. On July 8, the Japan Fair Trade Commission (JFTC) sought public comments on its proposed amendments to its Guidelines for the Use of Intellectual Property under the…more

Appeals, Breach of Contract, Damages, FRAND, Good Faith

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IP Newsletter - July 2015

In This Issue: - En Banc Federal Circuit Abandons “Strong” Presumption That a Limitation Is Not Subject to 35 U.S.C. § 112, Paragraph 6 - Supreme Court Rejects Belief of Invalidity Defense for Inducement in Commil v…more

Cisco v CommilUSA, EU, European Patent Convention, European Patent Office, First Amendment

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EPA’s New Draft Hazardous Waste Rules Promote Flexibility, but Devil is in the Details

On August 31, 2015, EPA released two proposed hazardous waste rules under the Resource Conservation and Recovery Act (RCRA) that will be soon be available for public comment after they are published in the Federal Register. One…more

Comment Period, EPA, Hazardous Waste, Healthcare Facilities, Hospitals

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Indiana DOR Finds Economic Nexus, Disregards UPS

The Indiana Department of Revenue recently concluded that a company that earned royalty income from licensing trademarks and trade names to two of its Indiana affiliates, and had no physical presence in the state, nonetheless…more

Corporate Taxes, Department of Revenue, Foreign Entities, License Agreements, Patents

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The Private Placements Withholding Tax Exemption

The Finance Act 2015 introduced an exemption from a borrower’s obligation to withhold tax from interest payments arising on qualifying private placements. It was introduced to stimulate and grow the private placements market in…more

Borrowers, Creditors, Debt Securities, HMRC, Private Placements

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Getting the Deal Done - China, Semiconductors, and CFIUS

Investing in U.S. semiconductor sector companies has become an increasingly challenging task for Chinese investors as the interagency Committee on Foreign Investment in the United States—better known as CFIUS—has increased its…more

Acquisitions, CFIUS, China, Foreign Investment

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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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Proposed IRS Debt-Equity Regulations: Aimed at PostInversion “Earnings Stripping,” But May Also Impact Ordinary Related-Party Debt

On April 4th, the Internal Revenue Service (“IRS”) issued proposed regulations (the “Proposed Regulations”) under Section 385 which could dramatically change how related-party indebtedness is treated for federal income tax…more

Equity Financing, Inversion, IRS, Proposed Regulation, Related Parties

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CEQA Doesn’t Operate in “Reverse” (Usually)

It’s not quite Star Wars, but in the world of land use, this counts as a blockbuster. The California Supreme Court has decided unanimously that the California Environmental Quality Act (CEQA) generally does not require analysis…more

Air Pollution, Bay Area Air Quality Management District, California Building Industry Association (CBIA), CEQA, Housing Developers

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FAA Announces Drone Registration, but Legal Challenges Loom

[Note: In light of the FAA’s announcement of the drone registry, we’ve revisited our recent analysis of its authority to require registration.] On December 14, 2015, the FAA issued the much-anticipated “Registration and…more

Administrative Procedure Act, Airspace, Drones, Federal Aviation Administration (FAA), Interim Rule

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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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California Court of Appeal Affirms Demurrer to Class Allegations Where Mobilehome Park Residents Lack Community of Interest

In Schermer v. Tatum, 245 Cal. App. 4th 912 (2016), the California Court of Appeal affirmed two important principles for class actions in California: (1) to have a community of interest, there must be a wrong that is truly…more

Appeals, Class Action, Class Certification, Community of Interest, Demurrers

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New HSR Filing Thresholds for 2016

On January 21, 2016, 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

FTC, Hart-Scott-Rodino Act, Mergers, Threshold 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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Socially Aware - Volume 5, Issue 5 - August 2014

In This Issue: - Data for the Taking: Using the Computer Fraud and Abuse Act to Combat Web Scraping - Google Glass Into Europe: A Small Step or a Giant Leap? - Drugs and the Internet: FDA Distributes New…more

ABC v Aereo, Accessibility Rules, Computer Fraud and Abuse Act, DMCA, EU

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Structured Thoughts: News for the financial services community, Volume 7, Issue 5

Electronic Structured Product Systems and FINRA’s Robo-Advisor Report - In a prior issue of this publication, we wrote about electronic structured note issuance platforms, and how these might be affected by U.S. securities…more

Broker-Dealer, ESMA, Financial Adviser, FINRA, OCC

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Socially Aware: The Social Media Law Update Volume 7, Issue 2

Welcome to the newest issue of Socially Aware, our Burton Award winning guide to the law and business of social media. In this edition, we offer tips for a successful—and legal—advertising campaign; we examine a New York State…more

Advertising, B2C, Big Data, Digital Goods, Discovery

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May State and Local Governments Control Low-Flying Drones?

Most of the attention paid to drones has focused on issues of aviation and Federal Aviation Administration (FAA) authority. Yet much of the impact of low-flying drones will fall, not on the national air transportation system,…more

Drones, Federal Aviation Act, Local Ordinance, Preemption, Privacy Laws

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Sweett Sentence Provides Guidance for DPAs

After its guilty plea to an offence under the UK Bribery Act, Sweett Group PLC was sentenced on February 19, 2016 at Southwark Crown Court, and ordered to pay a total £2.25 million penalty for the offence. The international…more

Bribery, Construction Contracts, Convictions, Criminal Prosecution, Deferred Prosecution Agreements

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German Court: Google’s Gmail Is a Regulated Telecoms Service

For the past five years, Google and the German telecommunications regulator, the Federal Network Agency (Bundesnetzagentur – BNetzA), have been arguing whether Google’s email service Gmail qualifies as a telecommunications…more

Email, EU, European Commission, Germany, Google

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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, Morrison v National Australia Bank

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CFTC Finalizes Relief from Trade Option Reporting and Recordkeeping Requirements for Commercial End Users

On March 16, 2016, the U.S. Commodity Futures Trading Commission (“CFTC”) approved a final rule that eliminates the reporting and recordkeeping requirements in current CFTC regulations for trade option counterparties that are…more

CEA, CFTC, Dodd-Frank, End-Users, Major Swap Participants

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Structured Thoughts: News for the financial services community, Volume 7, Issue 5

Electronic Structured Product Systems and FINRA’s Robo-Advisor Report - In a prior issue of this publication, we wrote about electronic structured note issuance platforms, and how these might be affected by U.S. securities…more

Broker-Dealer, ESMA, Financial Adviser, FINRA, OCC

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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 Newsletter - April 2015

In This Issue: - Federal Circuit Affirms PTO in First Appeal of an Inter Partes Review Decision - EU Copyright: No Resale of Digital Content Except for Software? - Qualcomm Agrees to $975 Million Fine and…more

Broadest Reasonable Interpretation Standard, China, Copyright, EU, Fraud

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Navigating The Circuit Split On Implied False Certification

The U.S. courts of appeals disagree along two, perhaps three, lines over both the scope and validity of the doctrine of implied false certification under the False Claims Act. These divergences mean that motion practice and the…more

False Claims Act (FCA), False Implied Certification Theory, Government Contractors, Implied Certification, Petition for Writ of Certiorari

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Navigating Iran Sanctions after JCPOA’s Implementation Day

The announcement by the International Atomic Energy Agency on January 16, 2016, that the Government of Iran has satisfied its commitments under the Joint Comprehensive Plan of Action (“JCPOA”), has triggered “Implementation Day”…more

EU, Exports, Implementation Day, International Atomic Energy Agency, Iran Sanctions

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Rejection of the Antitrust Division's Position on the Running of the Statute of Limitations until the Last Payment

The Antitrust Division of the Department of Justice claims the statute of limitations for a criminal antitrust violation does not begin to run until the last payment is collected by a conspirator on a sale that was the subject…more

Antitrust Conspiracies, Antitrust Division, Criminal Antitrust Litigation, DOJ, Fraud

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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

Public Private Partnerships (P3s)

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European M+A News, Fall 2014

In This Issue: - Shareholder Activism in Germany - Reinforced Ukraine-