Ropes & Gray LLP

Game On! Recent Legal Developments and Tax Issues for Collegiate Athletics

This is a period of unprecedented change for collegiate athletics, with potentially surprising tax consequences to the parties involved. Within the past six months, a federal district court held that the antitrust laws prevent…more

Athletes, College Athletes, Colleges, Income Taxes, NCAA

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Bankruptcy Court Holds That Secured Creditors Can Be “Crammed Down” With Below-Market Rate Replacement Notes

On August 26, 2014, in the case In re MPM Silicones, LLC, Case No. 14-22503 (Bankr. S.D.N.Y.) (“Momentive”), the United States Bankruptcy Court for the Southern District of New York held that secured creditors could be “crammed…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Cramdown, Creditors

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New Year, New Potential for UK and European Private Placements

Week two of the New Year marked a significant step in the development of the European Private Placement Market: The Loan Market Association (LMA) launched template documents for use in European private placement transactions…more

Equity Financing, EU, Financing, NAIC, Private Offerings

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The Ropes Recap: Mergers & Acquisitions Law News - January 2015

In this issue: - News from the Courts - Delaware Supreme Court Clarifies Fiduciary Duties in Sale Context and Overturns Judicial Imposition of Auction in Deal with Passive Market Check - Illinois Court…more

Asia, Board of Directors, Business Judgment Rule, Fiduciary Duty, Going-Private Transactions

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Supreme Court's Ruling in Koontz Extends Concept of Unconstitutional Takings to Monetary Exactions

Introduction - At first glance, the Supreme Court’s recent decision in Coy A. Koontz, Jr. v. St. Johns River Water Management District, 570 U.S. ___ (2013), improves the ability of real estate developers to obtain permits…more

Entitlements, Koontz v St John's River Water Management, Land Developers, Mitigation, Nollan v California Coastal Commission

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The Ropes Recap: Mergers & Acquisitions Law News - October 2014

In this issue: - Delaware Legislative Update - Amendments to DGCL Effective August 1, 2014 - News from the Courts - Additional Guidance on Kahn v. M&F Worldwide Corp. - Exculpation…more

Bylaws, CFIUS, Class Action, Delaware General Corporation Law, Dollar General

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PCI SSC Releases Version 3.2 of Data Security Standard

On April 28, 2016, the Payment Card Industry Security Standards Council (the “PCI SSC” or “Council”) released a new version of its Data Security Standard (“PCI DSS”), version 3.2. Significantly, the updated standard requires…more

Data Security, Encryption, PCI-DSS Standard, SSL

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The Ropes Recap: Mergers & Acquisitions Law News - January 2015

In this issue: - News from the Courts - Delaware Supreme Court Clarifies Fiduciary Duties in Sale Context and Overturns Judicial Imposition of Auction in Deal with Passive Market Check - Illinois Court…more

Asia, Board of Directors, Business Judgment Rule, Fiduciary Duty, Going-Private Transactions

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Tenth Circuit Holds that the False Claims Act’s Materiality Requirement Has Teeth in Granting Summary Judgment to Government Contractor Defendant

On April 22, 2016, in a decision issued before the Supreme Court’s Escobar opinion, the Tenth Circuit addressed the question of what a relator must show to meet the materiality requirement in an implied false certification-based…more

Afghanistan, Black and Veatch, False Claims Act (FCA), False Implied Certification Theory, Federal Contractors

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U.S. Administrative Law Judge Suspends Chinese Affiliates of “Big Four” Accounting Firms

In a surprising turn in the long-running and widely reported dispute between the Securities and Exchange Commission (“SEC”) and the Chinese affiliates of the “Big Four” accounting firms, on January 22, 2014, a U.S…more

Accounting, Audits, China, Compliance, Enforcement Actions

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Supreme Court Rules that the “Clear Error” Standard Applies When Factual Determinations Underlying Claim Construction Are Reviewed on Appeal in Teva v. Sandoz

On January 20, 2015, the Supreme Court, in a 7-2 decision, held in Teva Pharms. USA, Inc. v. Sandoz, Inc., that an appellate court must apply a “clear error” standard of review when assessing a trial judge’s resolution of…more

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Non-Performing Loans and Securitisation in Europe

Considerable attention has centered in the recent past on the issue of non-performing loans (NPLs) in the European banking system. The focus has been less on securitisation as a viable alternative resolution model and more on…more

Banking Sector, EU, Italy, Non-Performing Loans (NPL), Securitization

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The Ropes Recap: Mergers & Acquisitions Law News

In this issue: - News from the Courts - Delaware Legislative Update - Notable Deals - News from the SEC - London Update - Asia Update - Deal Stat Snapshot -…more

Blackberry, CFIUS, Change in Control, Class Action, Controlling Stockholders

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Bankruptcy Court Holds That Secured Creditors Can Be “Crammed Down” With Below-Market Rate Replacement Notes

On August 26, 2014, in the case In re MPM Silicones, LLC, Case No. 14-22503 (Bankr. S.D.N.Y.) (“Momentive”), the United States Bankruptcy Court for the Southern District of New York held that secured creditors could be “crammed…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Cramdown, Creditors

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Courts Continue to Dismiss Shareholder Suits Based on FCPA Violations

On March 16, 2015, Judge Paul G. Gardephe of the Southern District of New York dismissed a shareholder derivative suit filed by Sylvia Pritika against the CEO and others of Avon Products Inc. ("Avon") alleging breach of…more

Avon, Breach of Duty, Class Action, Corporate Counsel, Derivative Suit

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China FDA Clarifies Legal Consequences of Clinical Trial Data Inspections

China’s recent drug regulatory reform has emphasized that clinical trial data must be authentic and reliable. However, the legal consequences for breaching data integrity requirements in clinical trials remain ambiguous. On…more

China, China FDA, Clinical Trials, Life Sciences, Pharmaceutical Industry

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FDA Indefinitely Delays Action on Regulating Laboratory Developed Tests

On November 18, 2016, the Food and Drug Administration (FDA) notified industry groups that it no longer plans to finalize its draft guidance on laboratory developed tests (LDTs). FDA stated that it intends to work with the new…more

Clinical Laboratories, Diagnostic Tests, Direct to Consumer Sales, FDA, Laboratory Developed Tests

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Supreme Court Holds “Good-Faith Belief in Invalidity” Is No Defense to Induced Infringement

On May 26, 2015, the Supreme Court held in Commil USA, LLC v. Cisco Systems, Inc. that a defendant’s good-faith belief in the invalidity of the patent-in-suit is not a defense to induced infringement under 35 U.S.C. § 271(b)…more

Cisco v CommilUSA, Good Faith, Induced Infringement, Patent Infringement, Patent Litigation

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Supreme Court Upholds Federal Circuit’s Cuozzo Decision - PTAB IPR Institution Decisions Not Appealable; Broadest Reasonable Interpretation Standard Proper

On June 20, 2016, the Supreme Court issued its opinion in Cuozzo Speed Techs., LLC v. Lee, No. 15-446, affirming the Federal Circuit’s rulings that the U.S. Patent and Trademark Office’s (“PTO”) Patent Trial and Appeal Board’s…more

Administrative Procedure Act, Administrative Proceedings, America Invents Act, Appeals, Broadest Reasonable Interpretation Standard

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Reform of the Audit Market in the EU – Implications For Borrowers and Loan Documentation

A legislative package for the reform of the audit market in the EU has this month been approved by the EU Parliament and adopted by the Council of the European Union. Listed companies will need to change the firms that audit…more

Audits, Deloitte, Ernst & Young, EU, KPMG

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U.S. Supreme Court Preserves 50-Year-Old Rule Barring Post-Patent Royalties

On Monday, June 22, 2015, the U.S. Supreme Court issued a 6-3 decision in Kimble v. Marvel Entertainment, declining to reverse longstanding, yet controversial, precedent holding post-patent term royalties to be unlawful per se…more

Antitrust Provisions, Brulotte, Contract Term, IP License, Kimble v Marvel Enterprises

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SEC Whistleblower Enforcement Actions Related to Severance Agreements

On August 30, 2016, the U.S. Securities and Exchange Commission (“SEC” or the “Commission”) reaffirmed its commitment to its whistleblower program by issuing the second largest award in its five-year history. While admittedly…more

BlueLinx Holdings, Confidentiality Agreements, Corporate Counsel, Health Net, Rule 21F

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Supreme Court Confirms Broad Reach of Insider Trading Liability

Today, the Supreme Court issued its decision in Salman v. United States, clarifying the personal benefit standard of insider trading under the federal securities laws. In resolving what it called a “narrow” issue, the Court…more

Dirks v SEC, Illegal Tipping, Insider Trading, Material Nonpublic Information, Personal Benefit

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The Ropes Recap: Mergers & Acquisitions Law News

In this issue: - News from the Courts - Delaware Legislative Update - Notable Deals - News from the SEC - London Update - Asia Update - Deal Stat Snapshot -…more

Blackberry, CFIUS, Change in Control, Class Action, Controlling Stockholders

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Small-Breach Focus Shows Growing Scope Of HIPAA Probes

Flexing yet more enforcement muscle under the Health Insurance Portability and Accountability Act, on Aug. 18, 2016, the U.S. Department of Health and Human Services Office for Civil Rights announced that it will more widely…more

Corrective Actions, Cybersecurity, Data Breach, Data Protection, Data Security

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U.S. Supreme Court Preserves 50-Year-Old Rule Barring Post-Patent Royalties

On Monday, June 22, 2015, the U.S. Supreme Court issued a 6-3 decision in Kimble v. Marvel Entertainment, declining to reverse longstanding, yet controversial, precedent holding post-patent term royalties to be unlawful per se…more

Antitrust Provisions, Brulotte, Contract Term, IP License, Kimble v Marvel Enterprises

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Trump and the Death Tax

Donald Trump’s tax plan calls for elimination of the “death tax,” which refers to the federal estate and generation-skipping transfer (“GST”) taxes, and may include the federal gift tax. His plan also calls for imposition of a…more

Donald Trump, Estate Planning, Estate Tax, Generation-Skipping Transfer, IRS

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

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SEC Charges Underwriter and Bankers in Connection with Offering by China-based Issuer A Cautionary Tale of How Bad Facts and Weak Due Diligence Can Expose Advisors and Their Deal Teams

On March 27, 2015, the U.S. Securities and Exchange Commission (SEC) announced charges against an investment bank and two of its bankers for failing to adequately review and escalate a due diligence report which contradicted…more

China, Compliance, Due Diligence, Enforcement Actions, Foreign Investment

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D.C. Circuit Creates Split in Authority on Applicability of False Claims Act “First-to-File” Bar

The U.S. Court of Appeals for the D.C. Circuit recently affirmed the dismissal of a False Claims Act (“FCA”) complaint in United States ex rel. Shea v. Cellco Partnership, 2014 WL 1394687 (D.C. Cir. Apr. 11, 2014) for failure to…more

False Claims Act (FCA), First-to-File, Telecommunications, Verizon

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President Obama Signs the Defend Trade Secrets Act into Law

On May 11, 2016, the President signed the Defend Trade Secrets Act of 2016 (DTSA) into law, creating the first federal civil remedy for trade secret misappropriation. Last month, the Senate unanimously passed the bill, S. 1890,…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Ex Parte, Misappropriation, Whistleblower Protection Policies

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D.C. Circuit Issues Ruling in Important CFIUS Case

The D.C. Court of Appeals recently issued a landmark decision in Ralls Corporation v. Committee on Foreign Investment in the United States (CFIUS), No. 13-5315, slip. op. (D.C. Cir. July 15, 2014), that could have far-reaching…more

Appeals, Barack Obama, CFIUS, Defense Production Act, Divestiture

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Federal Trade Commission Chairwoman Ramirez Testifies Before Congress Regarding 17 FTC Reform Bills Pending in Congress

On May 24, 2016, Federal Trade Commission (“FTC” or the “Commission”) Chairwoman Edith Ramirez delivered testimony before the House Energy and Commerce Committee’s Subcommittee on Commerce, Manufacturing, and Trade in a hearing…more

Congressional Investigations & Hearings, FTC, Proposed Legislation, Regulatory Agenda

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SEC Brings First Action Against a Private Equity Fund Adviser for Misallocation of Portfolio Company Expenses

On September 22, 2014, the Securities and Exchange Commission (“SEC”) charged private equity fund adviser Lincolnshire Management, Inc. (“Lincolnshire”) with breaching its fiduciary duty to two of its private equity funds by…more

Enforcement, Enforcement Actions, Investment Adviser, Misallocation of Funds, Private Equity

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New York Court of Appeals Adopts Delaware Law, Affirming Business Judgment Deference for Controlling Stockholder Transactions Structured with Minority Protections

On May 5, 2016, New York’s highest court confirmed that, under New York law, business judgment deference—rather than more searching “entire fairness” review—applies to controlling stockholder transactions that are approved by a…more

Appeals, Business Judgment Rule, Controlling Stockholders, Going-Private Transactions, Kenneth Cole

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One Step Away: European Parliament Approves New Clinical Trials Regulation

On April 2, 2014, the European Parliament approved the new clinical trials regulation (the “Regulation”) for the European Union (“EU”), with 594 votes in favor, 17 opposed and 13 abstentions. The European Parliament approved the…more

Clinical Trials, EU

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Standard Bank PLC: First U.K. Deferred Prosecution Agreement and Settlement with the SEC

On 30 November 2015, Standard Bank PLC (“Standard”) entered into the first ever Deferred Prosecution Agreement (“DPA”) with the Serious Fraud Office (“SFO”) for failing to prevent bribery under the Bribery Act 2010. Standard…more

Deferred Prosecution Agreements, SEC, Serious Fraud Office, Standard Bank PLC, UK

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Eighth Circuit Dismisses Interlocutory FCA Appeal for Lack of Jurisdiction

In this April 2016 decision, the Eighth Circuit held that it lacked jurisdiction to consider the appeal of a two-state agency seeking review of a denial of its motion for summary judgment. Below the two-state agency had argued…more

Appeals, Eleventh Amendment, False Claims Act (FCA), Jurisdiction, Motion for Summary Judgment

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Physician-Owned Distributorships Under Scrutiny at Senate Finance Committee Hearing

On November 17, 2015, the Senate Finance Committee (“SFC”) held a hearing on physician-owned distributors of implantable medical devices (“PODs”). The hearing was the latest bit of increasingly unfavorable federal government…more

Conflicts of Interest, Congressional Investigations & Hearings, Medical Devices, Physicians

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EU Reaches Final Agreement on Conflict Minerals Regulation – An Overview

On November 22, the EU Council, Commission and Parliament reached an informal final agreement on a conflict minerals regulation. Last week’s agreement builds upon the “political agreement” reached during June…more

Conflict Mineral Rules, Corporate Counsel, Due Diligence, EU, Importers

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European Union Negotiations Reach Agreement on New Clinical Trials Regulation

The European Union (“EU”) has cleared the way for adoption of a new clinical trials regulation within the EU. On December 20, 2013, the Committee of Permanent Representatives of the European Union endorsed proposed revisions to…more

Clinical Trials, Data Protection, EU, Informed Consent, Peer Review

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Supreme Court Rules that TTAB Decisions Can Have Preclusive Effect in Federal Court

On March 24, 2015, in a trademark dispute captioned B&B Hardware Inc. v. Hargis Indus., Inc., No. 13-352, the United States Supreme Court determined that “likelihood of confusion for purposes of registration [of a trademark] is…more

Issue Preclusion, Likelihood of Confusion, SCOTUS, Trademark Infringement, Trademark Trial and Appeal Board

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Second Circuit Court of Appeals Creates Circuit Split on Controversial Dodd-Frank Act Whistleblower Anti-Retaliation Provision

On Thursday, September 10, 2015, the United States Court of Appeals for the Second Circuit issued its highly anticipated decision in Berman v. Neo@Ogilvy LLC. The plaintiff-appellant, Daniel Berman, had been the finance director…more

Appeals, Dodd-Frank, Employer Liability Issues, Hiring & Firing, Internal Reporting

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The UK to Ratify the Unified Patent Court Agreement

The UK government announced on November 28, 2016 that it will proceed to ratify the Unified Patent Court Agreement (UPCA). The announcement comes after months of uncertainty over the future of the UPCA following the UK’s vote in…more

EU, Popular, UK, UK Brexit, Unified Patent Court

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Trump and the Death Tax

Donald Trump’s tax plan calls for elimination of the “death tax,” which refers to the federal estate and generation-skipping transfer (“GST”) taxes, and may include the federal gift tax. His plan also calls for imposition of a…more

Donald Trump, Estate Planning, Estate Tax, Generation-Skipping Transfer, IRS

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EU Reaches Final Agreement on Conflict Minerals Regulation – An Overview

On November 22, the EU Council, Commission and Parliament reached an informal final agreement on a conflict minerals regulation. Last week’s agreement builds upon the “political agreement” reached during June…more

Conflict Mineral Rules, Corporate Counsel, Due Diligence, EU, Importers

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One Step Away: European Parliament Approves New Clinical Trials Regulation

On April 2, 2014, the European Parliament approved the new clinical trials regulation (the “Regulation”) for the European Union (“EU”), with 594 votes in favor, 17 opposed and 13 abstentions. The European Parliament approved the…more

Clinical Trials, EU

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English High Court Approves the Use of Predictive Coding

The English High Court decision of Master Matthews (February 16, 2016) approved the use of predictive coding to satisfy the disclosure requirement under the Civil Procedure Rules (CPR) Part 31. See Pyrrho Investments Ltd v. MWB…more

Corporate Counsel, Discovery, Electronically Stored Information, Predictive Coding, Technology-Assisted Review

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Play Nice: Recent eDiscovery Decision Emphasizes Consistent Cooperation

In the weeks since Magistrate Judge Leen denied a late request to use predictive coding in a case before her, the e-discovery world is still abuzz over certain language included in her ruling. In the case in question,…more

Disclosure Requirements, Discovery, Electronically Stored Information

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Recent Decisions Highlight Legal Risks Associated with Product Cybersecurity Vulnerabilities

Last month, plaintiffs in two product cybersecurity class actions were partially successful in surviving motions to dismiss, continuing the recent trend by plaintiffs and regulatory agencies to expand the pool of defendants in…more

Article III, Class Action, Cybersecurity, Data Protection, FTC

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Trump and the Death Tax

Donald Trump’s tax plan calls for elimination of the “death tax,” which refers to the federal estate and generation-skipping transfer (“GST”) taxes, and may include the federal gift tax. His plan also calls for imposition of a…more

Donald Trump, Estate Planning, Estate Tax, Generation-Skipping Transfer, IRS

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U.K. Implements Global Supply Chain Disclosure Requirements

On October 29, 2015, Part 6 of the U.K. Modern Slavery Act 2015 (“MSA 2015”) came into force. The MSA 2015 has been described as a “historic milestone” by the U.K. Home Secretary and is representative of the increased focus on…more

Disclosure Requirements, Manufacturers, Modern Slavery Act, Retailers, Supply Chain

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Tackling Tax Evasion: New UK Strict Liability Corporate Criminal Offences

To engage businesses in the fight against tax evasion and dovetail with ongoing efforts to tackle corruption both nationally and internationally, the UK Government has committed to introduce a corporate offence of failing to…more

Associated Persons, Compliance, Corporate Counsel, Criminal Penalties, Strict Liability

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Game On! Recent Legal Developments and Tax Issues for Collegiate Athletics

This is a period of unprecedented change for collegiate athletics, with potentially surprising tax consequences to the parties involved. Within the past six months, a federal district court held that the antitrust laws prevent…more

Athletes, College Athletes, Colleges, Income Taxes, NCAA

See All Updates »

PCI SSC Releases Version 3.2 of Data Security Standard

On April 28, 2016, the Payment Card Industry Security Standards Council (the “PCI SSC” or “Council”) released a new version of its Data Security Standard (“PCI DSS”), version 3.2. Significantly, the updated standard requires…more

Data Security, Encryption, PCI-DSS Standard, SSL

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Ropes & Gray Advises Pacira Pharmaceuticals in Reaching Landmark Settlement Agreement with FDA

A cross-disciplinary team of Ropes & Gray attorneys advised Pacira Pharmaceuticals on its December 14 settlement agreement with FDA. On behalf of Pacira, Ropes & Gray had filed suit against FDA in September 2015 in the U.S…more

Administrative Procedure Act, FDA, FDA Warning Letters, Fifth Amendment, First Amendment

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The Ropes Recap: Mergers & Acquisitions Law News - October 2014

In this issue: - Delaware Legislative Update - Amendments to DGCL Effective August 1, 2014 - News from the Courts - Additional Guidance on Kahn v. M&F Worldwide Corp. - Exculpation…more

Bylaws, CFIUS, Class Action, Delaware General Corporation Law, Dollar General

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DOJ Issues Guidance on Individual Accountability for Corporate Misconduct

On September 9, 2015, U.S. Deputy Attorney General Sally Quillian Yates issued a memorandum outlining to U.S. Department of Justice (“DOJ”) personnel the importance of individual accountability for corporate wrongdoing (the…more

Cooperation, Criminal Prosecution, Declination, DOJ, False Claims Act (FCA)

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DOJ Issues Guidance on Individual Accountability for Corporate Misconduct

On September 9, 2015, U.S. Deputy Attorney General Sally Quillian Yates issued a memorandum outlining to U.S. Department of Justice (“DOJ”) personnel the importance of individual accountability for corporate wrongdoing (the…more

Cooperation, Criminal Prosecution, Declination, DOJ, False Claims Act (FCA)

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Fifth Circuit Affirms False Claims Act’s Anti-Retaliation Provision Cannot Be Used Against Individuals Who Did Not Employ Plaintiff

On July 1, 2016, the Fifth Circuit affirmed the district Court’s dismissal of Plaintiff’s False Claims Act (“FCA”) retaliation claim against all individual defendants in the case. In Howell v. Town of Ball, 827 F.3d 515, 521…more

Corporate Counsel, False Claims Act (FCA), FEMA, First Amendment, Indictments

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Call for Input on the Post-Implementation Review of the FCA’s Crowdfunding Rules

The Financial Conduct Authority (the “FCA”) published a post-implementation review of its crowdfunding rules on 8 July 2016 (the “Paper”). The Paper is a “call for input” to invite readers to engage with the review, to offer…more

Financial Conduct Authority (FCA), Popular

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IRS Releases Q&A on Elections and Reimbursements in Cafeteria Plans Post-DOMA

On December 16, the IRS released Notice 2014-1, providing additional guidance on administration of employee benefit plans in light of the Supreme Court’s June 26, 2013 decision in United States v. Windsor. Windsor invalidated a…more

Adoption, Benefit Plan Sponsors, Cafeteria Plans, Dependent Care, DOMA

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Non-Performing Loans and Securitisation in Europe

Considerable attention has centered in the recent past on the issue of non-performing loans (NPLs) in the European banking system. The focus has been less on securitisation as a viable alternative resolution model and more on…more

Banking Sector, EU, Italy, Non-Performing Loans (NPL), Securitization

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Anti-Corruption Laws and Other International Risks – What it Means for the Real Estate Industry and How to Protect against Risks

Bribery, money laundering, and sanctions are key international risk areas for any global business, particularly those investing or operating in high-risk jurisdictions and industries. In addition to meaningful enforcement…more

Anti-Corruption, Anti-Money Laundering, Compliance, Economic Sanctions, Enforcement Authority

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

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Novartis Agrees to Settle Bribery Charges Against Chinese Subsidiaries for $25 Million

On March 23, 2015, Swiss-based pharmaceutical company Novartis AG (“Novartis”) reached a civil settlement with the United States Securities and Exchange Commission (“SEC”) for violating the internal controls and books and…more

Enforcement Actions, FCPA, Non-Judicial Settlement Agreements, Novartis, Pharmaceutical Industry

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Recent Ninth Circuit En Banc Decision Makes It Easier for Relators to be an Original Source and the First- to-File

On July 7, 2015, the United States Court of Appeals for the Ninth Circuit issued an en banc decision that potentially makes it easier for relators to prevail on pending False Claim Act qui tam suits and bring new actions in the…more

ALJ, Appeals, Dismissals, En Banc Review, False Claims Act (FCA)

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The AIFMD Third Country Passport – An Update

The European Securities and Markets Authority published on 19 July 2016 its final advice to the European Commission on the extension of the marketing passport under the Alternative Investment Fund Managers Directive to 12…more

AIFMD Passport, EEA, EU, Third Country Entities

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SEC Whistleblower Enforcement Actions Related to Severance Agreements

On August 30, 2016, the U.S. Securities and Exchange Commission (“SEC” or the “Commission”) reaffirmed its commitment to its whistleblower program by issuing the second largest award in its five-year history. While admittedly…more

BlueLinx Holdings, Confidentiality Agreements, Corporate Counsel, Health Net, Rule 21F

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Regulatory Reporting Under AIFMD – an Update and Comparison to SEC’s Form PF

The Alternative Investment Fund Managers Directive (the “AIFMD”) introduces new regulatory reporting requirements for alternative investment fund managers (“AIFMs”) established in the European Economic Area (“EEA”) and non-EEA…more

AIFM, AIFMD, EEA, EU, Form PF

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

See All Updates »

The Ropes Recap: Mergers & Acquisitions Law News - January 2015

In this issue: - News from the Courts - Delaware Supreme Court Clarifies Fiduciary Duties in Sale Context and Overturns Judicial Imposition of Auction in Deal with Passive Market Check - Illinois Court…more

Asia, Board of Directors, Business Judgment Rule, Fiduciary Duty, Going-Private Transactions

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The Disclosure Duties Owed by Banks as Agents to Lenders

The Chancery Division recently handed down its judgment on a hedge fund law suit brought against an agent bank for failing to disclose certain information regarding the borrower’s declining financial health and the occurrence of…more

Agents, Banks, Borrowers, Commercial Real Estate Contracts, Duty to Disclose

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En Banc Federal Circuit Defines The Rule Of Divided Infringement

On August 13, 2015, the Federal Circuit rendered what is now its second en banc ruling in Akamai Techs., Inc. v. Limelight Networks, Inc., expanding on the scope of what constitutes divided infringement under 35 U.S.C. § 271(a)…more

Akamai Technologies, Appeals, Divided Infringement, En Banc Review, Limelight v Akamai

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Recent Decisions Highlight Legal Risks Associated with Product Cybersecurity Vulnerabilities

Last month, plaintiffs in two product cybersecurity class actions were partially successful in surviving motions to dismiss, continuing the recent trend by plaintiffs and regulatory agencies to expand the pool of defendants in…more

Article III, Class Action, Cybersecurity, Data Protection, FTC

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The Ropes Recap: Mergers & Acquisitions Law News - Second Quarter 2015

News from the Courts - Delaware Chancery Court Finds That Dispute Over Accounting Methodology Is Subject to Arbitration Procedures - Post-closing purchase price and working capital adjustments are common in mergers…more

Appraisal, Arbitration, Delaware General Corporation Law, Derivative Suit, Director Compensation

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D.C. Circuit Creates Split in Authority on Applicability of False Claims Act “First-to-File” Bar

The U.S. Court of Appeals for the D.C. Circuit recently affirmed the dismissal of a False Claims Act (“FCA”) complaint in United States ex rel. Shea v. Cellco Partnership, 2014 WL 1394687 (D.C. Cir. Apr. 11, 2014) for failure to…more

False Claims Act (FCA), First-to-File, Telecommunications, Verizon

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Ropes & Gray Advises Pacira Pharmaceuticals in Reaching Landmark Settlement Agreement with FDA

A cross-disciplinary team of Ropes & Gray attorneys advised Pacira Pharmaceuticals on its December 14 settlement agreement with FDA. On behalf of Pacira, Ropes & Gray had filed suit against FDA in September 2015 in the U.S…more

Administrative Procedure Act, FDA, FDA Warning Letters, Fifth Amendment, First Amendment

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Trump and the Death Tax

Donald Trump’s tax plan calls for elimination of the “death tax,” which refers to the federal estate and generation-skipping transfer (“GST”) taxes, and may include the federal gift tax. His plan also calls for imposition of a…more

Donald Trump, Estate Planning, Estate Tax, Generation-Skipping Transfer, IRS

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

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Supreme Court Relaxes Standard For Determining Whether A Case Is Exceptional In Patent Litigation While Raising The Standard Of Review

On April 29, 2014, the Supreme Court issued two decisions relating to the determination of whether a case is exceptional and award of attorneys’ fees in patent litigation. The cases are Octane Fitness, LLC v. Icon Health &…more

Attorney's Fees, Brooks Furniture, Highmark v. Allcare, Octane Fitness v. ICON, Patent Infringement

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New ISDA Protocol Will Limit Buy-Side Remedies in a Financial Institution Failure

The ISDA 2014 Resolution Stay Protocol, published on November 12, 2014, by the International Swaps and Derivatives Association, Inc. (ISDA), represents a significant shift in the terms of the over-the-counter derivatives market…more

Banking Crisis, Bankruptcy Code, Derivatives, Dodd-Frank, Financial Institutions

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New Credit Default Swap Terms to Be Implemented in September 2014

Earlier this year, the International Swaps and Derivatives Association Inc. (ISDA) published the 2014 Credit Derivatives Definitions (the 2014 Definitions). The 2014 Definitions introduce a new government bail-in Credit Event…more

Credit Default Swaps, Foreign Jurisdictions, Swaps

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Anti-Corruption Laws and Other International Risks – What it Means for the Real Estate Industry and How to Protect against Risks

Bribery, money laundering, and sanctions are key international risk areas for any global business, particularly those investing or operating in high-risk jurisdictions and industries. In addition to meaningful enforcement…more

Anti-Corruption, Anti-Money Laundering, Compliance, Economic Sanctions, Enforcement Authority

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Regulatory Reporting Under AIFMD – an Update and Comparison to SEC’s Form PF

The Alternative Investment Fund Managers Directive (the “AIFMD”) introduces new regulatory reporting requirements for alternative investment fund managers (“AIFMs”) established in the European Economic Area (“EEA”) and non-EEA…more

AIFM, AIFMD, EEA, EU, Form PF

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Court Rejects Excessive Fee Claims Following Trial on Mutual Fund “Manager of Managers” Theory

On August 25, a federal court in the District of New Jersey issued a much-anticipated decision, finding after a lengthy trial that shareholder plaintiffs failed to prove claims that AXA entities had charged excessive mutual fund…more

Excessive Fees, Gartenberg Factors, Investment Advisers Act of 1940, Investment Management, Shareholder Litigation

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Landlords Welcome Landmark Decision In Re Game Station

LONDON - The Court of Appeal in the case of Re Game Station has held that rent payable by a tenant that enters administration is a priority expense of the administration while the leasehold premises are being used for the…more

Apportionment, Rent, UK

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Anti-Corruption Laws and Other International Risks – What it Means for the Real Estate Industry and How to Protect against Risks

Bribery, money laundering, and sanctions are key international risk areas for any global business, particularly those investing or operating in high-risk jurisdictions and industries. In addition to meaningful enforcement…more

Anti-Corruption, Anti-Money Laundering, Compliance, Economic Sanctions, Enforcement Authority

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Ropes & Gray Welcomes Supreme Court Decisions in Proposition 8 and Defense of Marriage Act Cases

On June 26 the Supreme Court issued two important rulings in favor of equal human dignity, and Ropes & Gray is proud to have joined with many other organizations to help bring about these landmark decisions. Through its…more

COBRA, DOMA, Due Process, Employee Benefits, Equal Protection

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FTC Continues Aggressive Enforcement of HSR Act, Levies $656,000 Fine Against Investor

Investor Len Blavatnik has agreed to pay $656,000 to resolve allegations that he violated the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) by failing to obtain clearance prior to acquiring voting…more

Acquisitions, Chief Compliance Officers, DOJ, Enforcement Actions, FTC

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Massachusetts Attorney General Releases Charity CEO Compensation Report

On December 19, the Non-Profit Organizations/Public Charities Division of the Massachusetts Office of the Attorney General released the results of a “focused review” of CEO compensation at 25 of the Commonwealth’s largest…more

Attorney Generals, CEOs, Deferred Compensation, Executive Compensation, Reporting Requirements

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The Ropes Recap: Mergers & Acquisitions Law News

In this issue: *News from the Courts - Refinement re “Don’t Ask, Don’t Waive” Standstill Agreements - Proposed Delaware “Medium-Form Merger” To Create an Alternative to Top-Up Options - Court Rejects…more

Assignments, Bad Faith, Bundling Rules, Disparate Impact, DOJ

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Trump and the Death Tax

Donald Trump’s tax plan calls for elimination of the “death tax,” which refers to the federal estate and generation-skipping transfer (“GST”) taxes, and may include the federal gift tax. His plan also calls for imposition of a…more

Donald Trump, Estate Planning, Estate Tax, Generation-Skipping Transfer, IRS

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The Fifth Circuit Weighs in on Vicarious Liability under the Anti-Kickback Act

In a recent case of first impression, the Fifth Circuit broadly interpreted civil liability for government contractors under § 8706(a)(1) of the Anti-Kickback Act (the “AKA”). In United States ex rel. Vavra et al. v. Kellogg…more

Anti-Kickback Statute, General Contractors, Vicarious Liability

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DOJ Announces Bigger Stick, Carrot, in FCPA Enforcement

Yesterday, the Fraud Section of the Department of Justice (“DOJ”) issued its Foreign Corrupt Practices Act (“FCPA”) Enforcement Plan and Guidance (the “Guidance”). The Guidance announces the DOJ’s commitment to intensify even…more

Compliance, DOJ, FCPA Guidance, Federal Sentencing Guidelines, Popular

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

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Supreme Court Unanimously Reverses Federal Circuit’s En Banc Decision In Limelight v. Akamai and Rejects The Application Of Induced Infringement Under § 271(b) To Situations Where There Is No Direct Infringer Under § 271(a)

On June 2, 2014, the Supreme Court in Limelight Networks, Inc. v. Akamai Techs., Inc., No. 12-786, ruled that a party can be liable for induced infringement under § 271(b) only when one party has committed direct infringement…more

Akamai Technologies, Appeals, Certiorari, Divided Infringement, En Banc Review

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The Ropes Recap: Mergers & Acquisitions Law News - Third Quarter 2015

Delaware Court Awards $148 Million in Damages, as Fiduciaries’ Bad Faith Conduct Prevented Stockholders from Obtaining a “Fairer Price” in Take-Private Transaction In a recent post-trial opinion, Vice Chancellor Laster of the…more

Acquisition Agreements, Dell, FASB, Fiduciary Duty, Merger Agreements

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PRC Amends Criminal Law As It Relates to Bribery and Corruption

On August 29, 2015, the Standing Committee of the National People’s Congress enacted the Ninth Amendment to the Criminal Law of the People’s Republic of China (the “Amendment”), following two rounds of public consultation. The…more

Amended Regulation, Bribery, China, Corruption, Criminal Code

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Ropes & Gray Advises Pacira Pharmaceuticals in Reaching Landmark Settlement Agreement with FDA

A cross-disciplinary team of Ropes & Gray attorneys advised Pacira Pharmaceuticals on its December 14 settlement agreement with FDA. On behalf of Pacira, Ropes & Gray had filed suit against FDA in September 2015 in the U.S…more

Administrative Procedure Act, FDA, FDA Warning Letters, Fifth Amendment, First Amendment

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EMIR – European Commission Responds to Draft RTS on IRS Clearing

The European Commission has publicized its decision to endorse draft regulatory technical standards (“RTS”) submitted to it by the European Securities and Markets Authority (“ESMA”) on the clearing of interest rate OTC…more

Derivatives, EMIR, EU, European Commission, European Securities and Markets Authority (ESMA)

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

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Major Reforms for New York Nonprofits Signed Into Law

On December 18, 2013, almost six months after the Non-Profit Revitalization Act of 2013 (the “Act”) passed the New York State Legislature, New York Governor Andrew Cuomo signed the Act into law. The Act amends the patchwork of…more

Andrew Cuomo, Audits, Conflicts of Interest, Corporate Governance, Executive Compensation

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Patent Trial and Appeal Board Rejects Petitions for Covered Business Method Patent Review of Orange Book-Listed Patents Claiming Methods of Controlling Access to Sensitive Drugs

On January 13, 2015, the Patent Trial and Appeal Board (PTAB) denied institution of four Covered Business Method (CBM) patent reviews of Orange Book-listed patents owned by Jazz Pharmaceuticals plc (“Jazz”), holding that the…more

America Invents Act, Covered Business Method Proceedings, Jazz Pharmaceuticals, Patent Trial and Appeal Board, Patents

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Seventh Circuit Emphasizes Limits of Advice-of-Accountants Defense in Affirming Summary Judgment for FCA Defendant

In United States ex rel. Horning v. Sheet Metal Workers Int’l Assoc., 828 F.3d 587 (7th Cir. 2016), the Seventh Circuit declined to grapple with the implied false certification standard announced by the Supreme Court in…more

Construction Industry, Davis-Bacon Act, Defense Strategies, False Claims Act (FCA), False-Certification of Conformance

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The Ropes Recap: Mergers & Acquisitions Law News - January 2015

In this issue: - News from the Courts - Delaware Supreme Court Clarifies Fiduciary Duties in Sale Context and Overturns Judicial Imposition of Auction in Deal with Passive Market Check - Illinois Court…more

Asia, Board of Directors, Business Judgment Rule, Fiduciary Duty, Going-Private Transactions

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U.S. Supreme Court Preserves 50-Year-Old Rule Barring Post-Patent Royalties

On Monday, June 22, 2015, the U.S. Supreme Court issued a 6-3 decision in Kimble v. Marvel Entertainment, declining to reverse longstanding, yet controversial, precedent holding post-patent term royalties to be unlawful per se…more

Antitrust Provisions, Brulotte, Contract Term, IP License, Kimble v Marvel Enterprises

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Volcker Rule Final Regulations: The Effect on Private Fund Sponsors and Investors

In time for the holidays, the long-awaited Volcker Rule final regulations arrived on Tuesday, December 10, 2013. Many of the comments of domestic mutual funds, foreign public funds, insurance companies and foreign banking…more

Benefit Plan Sponsors, Compliance, Covered Entities, Private Funds, Volcker Rule

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The Fifth Circuit Weighs in on Vicarious Liability under the Anti-Kickback Act

In a recent case of first impression, the Fifth Circuit broadly interpreted civil liability for government contractors under § 8706(a)(1) of the Anti-Kickback Act (the “AKA”). In United States ex rel. Vavra et al. v. Kellogg…more

Anti-Kickback Statute, General Contractors, Vicarious Liability

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Fourth Circuit Holds False Claims Act Relators Cannot Use Facts Learned by Their Attorney in a Previous Case to Defeat the FCA’s Public Disclosure Bar

Earlier this year, the Fourth Circuit held in United States ex rel. May v. Purdue Pharma L.P., 811 F.3d 636 (2016) that the a complaint that is “based on” relators’ attorney’s work on a prior dismissed FCA action triggers the…more

False Claims Act (FCA), Marketing, Pharmaceutical Industry, Public Disclosure, Res Judicata

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Federal Trade Commission Holds Medical Laboratory Liable for Allegedly Unfair Data Security Practices

On July 29, the Federal Trade Commission (“FTC” or “Commission”) issued a unanimous Opinion and Final Order reversing the FTC Administrative Law Judge (“ALJ”) Initial Opinion issued November 13, 2015, which had dismissed the…more

ALJ, FTC, FTC Act, HIPAA, LabMD

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Recent Developments and Trends for Exempt Organizations

Recent months have been eventful for exempt organizations and their advisors. While fundamental tax reform remains a possibility, with a number of proposals on the table that would significantly change the rules for exempt…more

501(c)(3), Exempt Organizations, IRS, Legislative Agendas, Tax Extenders

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Fifth Circuit Affirms False Claims Act’s Anti-Retaliation Provision Cannot Be Used Against Individuals Who Did Not Employ Plaintiff

On July 1, 2016, the Fifth Circuit affirmed the district Court’s dismissal of Plaintiff’s False Claims Act (“FCA”) retaliation claim against all individual defendants in the case. In Howell v. Town of Ball, 827 F.3d 515, 521…more

Corporate Counsel, False Claims Act (FCA), FEMA, First Amendment, Indictments

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IRS Releases Q&A on Elections and Reimbursements in Cafeteria Plans Post-DOMA

On December 16, the IRS released Notice 2014-1, providing additional guidance on administration of employee benefit plans in light of the Supreme Court’s June 26, 2013 decision in United States v. Windsor. Windsor invalidated a…more

Adoption, Benefit Plan Sponsors, Cafeteria Plans, Dependent Care, DOMA

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

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IRS Issues New Management Contract Safe Harbors

Almost 20 years ago, the IRS released Rev. Proc. 97-13, outlining multiple safe harbors under which a management contract would not result in private business use of bond-financed proceeds. These safe harbors, while helpful,…more

Bond Financing, IRS, Management Contracts, Popular, Revenue Procedure 2016-44

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Anti-Corruption Laws and Other International Risks – What it Means for the Real Estate Industry and How to Protect against Risks

Bribery, money laundering, and sanctions are key international risk areas for any global business, particularly those investing or operating in high-risk jurisdictions and industries. In addition to meaningful enforcement…more

Anti-Corruption, Anti-Money Laundering, Compliance, Economic Sanctions, Enforcement Authority

See All Updates »

Supreme Court Sets New Test in Lexmark for Whether a Party Has Standing to Bring a False Advertising Claim under the Lanham Act

On March 25, 2014, the Supreme Court in Lexmark International, Inc. v. Static Control Components, Inc., No. 12-873 (Mar. 25, 2014), ruled that a two-part inquiry pairing the zone-of-interests test and a proximate-cause…more

False Advertising, Lanham Act, Lexmark, Lexmark v Static Control Components, SCOTUS

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Reform of the Audit Market in the EU – Implications For Borrowers and Loan Documentation

A legislative package for the reform of the audit market in the EU has this month been approved by the EU Parliament and adopted by the Council of the European Union. Listed companies will need to change the firms that audit…more

Audits, Deloitte, Ernst & Young, EU, KPMG

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Delay to the Application Date of the EU Regulation on Packaged Retail and Insurance-based Investment Products

The European Commission announced on 9 November 2016 an extension to the application date of the Regulation on Key Information Documents for Packaged Retail and Insurance-based Investment Products (“PRIIPs”) to 31 December 2017…more

EU, Packaged Retail And Insurance-Based Investment Products (PRIIPS), Regulation Technical Standards (RTS)

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First Circuit Affirms District Court’s Discretion to Limit the Scope of Discovery in False Claims Act Case

Last month, the United States Court of Appeals for the First Circuit in United States ex rel. Duxbury v. Ortho Biotech Products, L.P., No. 12-2141, 2013 WL 2501930 (1st Cir. June 12, 2013) (“Duxbury II”) affirmed the district…more

Discovery, False Claims Act (FCA), Public Disclosure

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

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Delaware Supreme Court Disclaims Court of Chancery’s Conclusions on Fiduciary Duties of Managers of Delaware LLCs

In an opinion issued on November 7, 2012, the Delaware Supreme Court left open the long-standing question of whether the Delaware Limited Liability Company Act imposes default fiduciary duties on managers of Delaware LLCs in the…more

Fiduciary Duty, Limited Liability Company (LLC), Real Estate Market

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Supreme Court Rules that TTAB Decisions Can Have Preclusive Effect in Federal Court

On March 24, 2015, in a trademark dispute captioned B&B Hardware Inc. v. Hargis Indus., Inc., No. 13-352, the United States Supreme Court determined that “likelihood of confusion for purposes of registration [of a trademark] is…more

Issue Preclusion, Likelihood of Confusion, SCOTUS, Trademark Infringement, Trademark Trial and Appeal Board

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The Ropes Recap: Mergers & Acquisitions Law News - January 2015

In this issue: - News from the Courts - Delaware Supreme Court Clarifies Fiduciary Duties in Sale Context and Overturns Judicial Imposition of Auction in Deal with Passive Market Check - Illinois Court…more

Asia, Board of Directors, Business Judgment Rule, Fiduciary Duty, Going-Private Transactions

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SEC Whistleblower Enforcement Actions Related to Severance Agreements

On August 30, 2016, the U.S. Securities and Exchange Commission (“SEC” or the “Commission”) reaffirmed its commitment to its whistleblower program by issuing the second largest award in its five-year history. While admittedly…more

BlueLinx Holdings, Confidentiality Agreements, Corporate Counsel, Health Net, Rule 21F

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Physician-Owned Distributorships Under Scrutiny at Senate Finance Committee Hearing

On November 17, 2015, the Senate Finance Committee (“SFC”) held a hearing on physician-owned distributors of implantable medical devices (“PODs”). The hearing was the latest bit of increasingly unfavorable federal government…more

Conflicts of Interest, Congressional Investigations & Hearings, Medical Devices, Physicians

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Market Abuse Regulation: Implications for Issuers of Debt Securities

The Market Abuse Regulation (“MAR”) will take effect on 3 July 2016. MAR contains rules on insider dealing, unlawful disclosure of inside information and market manipulation that will apply in the European Economic Area (“EEA”)…more

Disclosure Requirements, EEA, EU, EU Market Abuse Regulation (EU MAR), MiFID

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Supreme Court Decides Nautilus v. BioSig and Unanimously Eliminates Federal Circuit’s “Insolubly Ambiguous” Standard for Indefinitenes

On June 2, 2014, the Supreme Court in Nautilus, Inc. v. BioSig Instruments, Inc., No. 13-369, ruled that “a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the…more

Indefiniteness, Nautilus Inc. v. Biosig Instruments, Patent Infringement, Patent Litigation, Patents

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Federal Circuit Finds Revolutionary Non-Invasive Fetal DNA Test Method Unpatentable Under Mayo

On June 12, 2015, in Ariosa Diagnostics, Inc. et. al. v. Sequenom, Inc. et. al., the Court of Appeals for the Federal Circuit invalidated claims in U.S. Patent 6,258,540 directed to methods for detecting paternally inherited…more

Bilski, CLS Bank v Alice Corp, DNA, Healthcare, Kappos

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Trump and the Death Tax

Donald Trump’s tax plan calls for elimination of the “death tax,” which refers to the federal estate and generation-skipping transfer (“GST”) taxes, and may include the federal gift tax. His plan also calls for imposition of a…more

Donald Trump, Estate Planning, Estate Tax, Generation-Skipping Transfer, IRS

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Supreme Court Upholds Federal Circuit’s Cuozzo Decision - PTAB IPR Institution Decisions Not Appealable; Broadest Reasonable Interpretation Standard Proper

On June 20, 2016, the Supreme Court issued its opinion in Cuozzo Speed Techs., LLC v. Lee, No. 15-446, affirming the Federal Circuit’s rulings that the U.S. Patent and Trademark Office’s (“PTO”) Patent Trial and Appeal Board’s…more

Administrative Procedure Act, Administrative Proceedings, America Invents Act, Appeals, Broadest Reasonable Interpretation Standard

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Supreme Court Rules that TTAB Decisions Can Have Preclusive Effect in Federal Court

On March 24, 2015, in a trademark dispute captioned B&B Hardware Inc. v. Hargis Indus., Inc., No. 13-352, the United States Supreme Court determined that “likelihood of confusion for purposes of registration [of a trademark] is…more

Issue Preclusion, Likelihood of Confusion, SCOTUS, Trademark Infringement, Trademark Trial and Appeal Board

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Non-Performing Loans and Securitisation in Europe

Considerable attention has centered in the recent past on the issue of non-performing loans (NPLs) in the European banking system. The focus has been less on securitisation as a viable alternative resolution model and more on…more

Banking Sector, EU, Italy, Non-Performing Loans (NPL), Securitization

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Supreme Court Holds “Good-Faith Belief in Invalidity” Is No Defense to Induced Infringement

On May 26, 2015, the Supreme Court held in Commil USA, LLC v. Cisco Systems, Inc. that a defendant’s good-faith belief in the invalidity of the patent-in-suit is not a defense to induced infringement under 35 U.S.C. § 271(b)…more

Cisco v CommilUSA, Good Faith, Induced Infringement, Patent Infringement, Patent Litigation

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Recent Decisions Highlight Legal Risks Associated with Product Cybersecurity Vulnerabilities

Last month, plaintiffs in two product cybersecurity class actions were partially successful in surviving motions to dismiss, continuing the recent trend by plaintiffs and regulatory agencies to expand the pool of defendants in…more

Article III, Class Action, Cybersecurity, Data Protection, FTC

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Call for Input on the Post-Implementation Review of the FCA’s Crowdfunding Rules

The Financial Conduct Authority (the “FCA”) published a post-implementation review of its crowdfunding rules on 8 July 2016 (the “Paper”). The Paper is a “call for input” to invite readers to engage with the review, to offer…more

Financial Conduct Authority (FCA), Popular

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The Ropes Recap: Mergers & Acquisitions Law News - First Quarter 2015

In this issue: - News from the Courts - Chancery Court Denies Enforcement of Drag-Along Right in Transaction Where Notice to Minority Stockholders Improperly Provided After Majority Stockholder Approval -…more

Ancestry.com, Appraisal, Arbitration, Bylaws, China

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Ropes & Gray Advises Pacira Pharmaceuticals in Reaching Landmark Settlement Agreement with FDA

A cross-disciplinary team of Ropes & Gray attorneys advised Pacira Pharmaceuticals on its December 14 settlement agreement with FDA. On behalf of Pacira, Ropes & Gray had filed suit against FDA in September 2015 in the U.S…more

Administrative Procedure Act, FDA, FDA Warning Letters, Fifth Amendment, First Amendment

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New York Court of Appeals Adopts Delaware Law, Affirming Business Judgment Deference for Controlling Stockholder Transactions Structured with Minority Protections

On May 5, 2016, New York’s highest court confirmed that, under New York law, business judgment deference—rather than more searching “entire fairness” review—applies to controlling stockholder transactions that are approved by a…more

Appeals, Business Judgment Rule, Controlling Stockholders, Going-Private Transactions, Kenneth Cole

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Recent Developments and Trends for Exempt Organizations

Recent months have been eventful for exempt organizations and their advisors. While fundamental tax reform remains a possibility, with a number of proposals on the table that would significantly change the rules for exempt…more

501(c)(3), Exempt Organizations, IRS, Legislative Agendas, Tax Extenders

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Supreme Court Sets New Test in Lexmark for Whether a Party Has Standing to Bring a False Advertising Claim under the Lanham Act

On March 25, 2014, the Supreme Court in Lexmark International, Inc. v. Static Control Components, Inc., No. 12-873 (Mar. 25, 2014), ruled that a two-part inquiry pairing the zone-of-interests test and a proximate-cause…more

False Advertising, Lanham Act, Lexmark, Lexmark v Static Control Components, SCOTUS

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Supreme Court Relaxes Standard For Determining Whether A Case Is Exceptional In Patent Litigation While Raising The Standard Of Review

On April 29, 2014, the Supreme Court issued two decisions relating to the determination of whether a case is exceptional and award of attorneys’ fees in patent litigation. The cases are Octane Fitness, LLC v. Icon Health &…more

Attorney's Fees, Brooks Furniture, Highmark v. Allcare, Octane Fitness v. ICON, Patent Infringement

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Recent Decisions Highlight Legal Risks Associated with Product Cybersecurity Vulnerabilities

Last month, plaintiffs in two product cybersecurity class actions were partially successful in surviving motions to dismiss, continuing the recent trend by plaintiffs and regulatory agencies to expand the pool of defendants in…more

Article III, Class Action, Cybersecurity, Data Protection, FTC

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U.S. Issues Orders Requiring Identification of All-Cash Buyers of High-End Residential Real Estate

On January 13, 2016, the U.S. Financial Crimes Enforcement Network (“FinCEN”) announced that it will temporarily require U.S. title insurance companies to disclose the identity of the beneficial owners of shell companies making…more

FinCEN, Geographic Targeting Order, Real Estate Investments, Reporting Requirements, Title Insurance

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Federal Jury Acquits Former Warner Chilcott President

On June 17, 2016, a federal jury in the District of Massachusetts acquitted Carl Reichel, the former president of specialty pharmaceutical manufacturer Warner Chilcott, on a single count of conspiracy to violate the federal…more

Acquittals, Anti-Kickback Statute, Corporate Counsel, Criminal Conspiracy, Pharmaceutical Industry

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The Court of Appeal redefines the “but-for” causation test for negligence: Losses caused to a lender by a surveyor’s negligent property valuation on a refinancing were wholly recoverable.

In a landmark judgment with wide implications for the lending, refinancing and valuation industries, in Tiuta International Ltd (In liquidation) v De Villiers Surveyors Ltd [2016] EWCA Civ 661, the Court of Appeal, by a two to…more

But For Causation, Commercial Loans, Liability Insurance, Negligence, Property Valuation

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Landlords Welcome Landmark Decision In Re Game Station

LONDON - The Court of Appeal in the case of Re Game Station has held that rent payable by a tenant that enters administration is a priority expense of the administration while the leasehold premises are being used for the…more

Apportionment, Rent, UK

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Upcoming TIC Form B Filing Deadline

The U.S. Department of Treasury recently amended the Treasury International Capital Form B (“Form B”), which imposes reporting obligations on some investment advisers to private funds. Form B generally requires the reporting of…more

Bank Holding Company, Banks, Federal Reserve, Filing Deadlines, U.S. Treasury

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Tackling Tax Evasion: New UK Strict Liability Corporate Criminal Offences

To engage businesses in the fight against tax evasion and dovetail with ongoing efforts to tackle corruption both nationally and internationally, the UK Government has committed to introduce a corporate offence of failing to…more

Associated Persons, Compliance, Corporate Counsel, Criminal Penalties, Strict Liability

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Federal Circuit Unanimously Declines Invitation to Limit Venue in Patent Infringement Cases in In Re: TC Heartland LLC

On April 29, 2016, the Federal Circuit issued its decision in In re: TC Heartland LLC (No. 2016-105), denying TC Heartland LLC’s petition for a writ of mandamus to direct the United States District Court for the District of…more

Forum Selection, Patent Infringement, Personal Jurisdiction, Transfer of Venue, Writ of Mandamus

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NCA and HMRC to Lead Taskforce to Investigate the Panama Papers

From early 2015, 11.5 million documents belonging to a Panamanian law firm, Mossack Fonseca, were provided to a German newspaper, Süddeutsche Zeitung, who shared them with the International Consortium of Investigative…more

BEPS, Data Breach, DOJ, FATCA, Financial Conduct Authority (FCA)

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First Circuit Affirms Dismissal of FCA Complaint Based on First-to-File Bar

The First Circuit recently affirmed the dismissal of United States ex rel. Wilson v. Bristol-Myers Squibb, Inc. under the False Claims Act’s (“FCA”) “first-to-file” provision, which prohibits any person “other than the…more

Bristol-Myers Squibb, Financial Conduct Authority (FCA), First-to-File, Jurisdiction, Relators

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The Ropes Recap: Mergers & Acquisitions Law News

In this issue: - News from the Courts - Delaware Legislative Update - Notable Deals - News from the SEC - London Update - Asia Update - Deal Stat Snapshot -…more

Blackberry, CFIUS, Change in Control, Class Action, Controlling Stockholders

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PTO Formally Issues First Set of New Changes to PTAB Rules, Including Increased Page Limits for Petitioner Replies and Patent Owner Motions to Amend

The U.S. Patent & Trademark Office (PTO) has issued several rule amendments that it refers to as “ministerial changes” to procedures for post-grant proceedings before the Patent Trial and Appeal Board (PTAB), including Inter…more

Covered Business Method Proceedings, Inter Partes Review (IPR) Proceeding, Patents, Post-Grant Review, USPTO

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Supreme Court Confirms ERISA Fiduciaries’ Duty to Monitor, Leaving Contours to Lower Courts

On May 18, 2015, the Supreme Court of the United States confirmed the existence of an independent duty on the part of ERISA plan fiduciaries to continuously “monitor” retirement plan investments and remove those that are…more

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Eleventh Circuit Clarifies Scope and Effect of the FCA’s Public Disclosure Bar

The Eleventh Circuit has recently issued an opinion clarifying the 2010 amendments to the False Claims Act (“FCA”) and its “public disclosure bar,” which prohibits suits based on information already publicly disclosed. In United…more

Amended Legislation, Anti-Kickback Statute, CMP Law, False Claims Act (FCA), Health Care Providers

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FTC Continues Aggressive Enforcement of HSR Act, Levies $656,000 Fine Against Investor

Investor Len Blavatnik has agreed to pay $656,000 to resolve allegations that he violated the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) by failing to obtain clearance prior to acquiring voting…more

Acquisitions, Chief Compliance Officers, DOJ, Enforcement Actions, FTC

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The Ropes Recap: Mergers & Acquisitions Law News - October 2014

In this issue: - Delaware Legislative Update - Amendments to DGCL Effective August 1, 2014 - News from the Courts - Additional Guidance on Kahn v. M&F Worldwide Corp. - Exculpation…more

Bylaws, CFIUS, Class Action, Delaware General Corporation Law, Dollar General

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The AIFMD Third Country Passport – An Update

The European Securities and Markets Authority published on 19 July 2016 its final advice to the European Commission on the extension of the marketing passport under the Alternative Investment Fund Managers Directive to 12…more

AIFMD Passport, EEA, EU, Third Country Entities

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Supreme Court Unanimously Reverses Federal Circuit’s En Banc Decision In Limelight v. Akamai and Rejects The Application Of Induced Infringement Under § 271(b) To Situations Where There Is No Direct Infringer Under § 271(a)

On June 2, 2014, the Supreme Court in Limelight Networks, Inc. v. Akamai Techs., Inc., No. 12-786, ruled that a party can be liable for induced infringement under § 271(b) only when one party has committed direct infringement…more

Akamai Technologies, Appeals, Certiorari, Divided Infringement, En Banc Review

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U.S. Issues Orders Requiring Identification of All-Cash Buyers of High-End Residential Real Estate

On January 13, 2016, the U.S. Financial Crimes Enforcement Network (“FinCEN”) announced that it will temporarily require U.S. title insurance companies to disclose the identity of the beneficial owners of shell companies making…more

FinCEN, Geographic Targeting Order, Real Estate Investments, Reporting Requirements, Title Insurance

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Second Circuit Court of Appeals Creates Circuit Split on Controversial Dodd-Frank Act Whistleblower Anti-Retaliation Provision

On Thursday, September 10, 2015, the United States Court of Appeals for the Second Circuit issued its highly anticipated decision in Berman v. Neo@Ogilvy LLC. The plaintiff-appellant, Daniel Berman, had been the finance director…more

Appeals, Dodd-Frank, Employer Liability Issues, Hiring & Firing, Internal Reporting

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Market Abuse Regulation: Implications for Issuers of Debt Securities

The Market Abuse Regulation (“MAR”) will take effect on 3 July 2016. MAR contains rules on insider dealing, unlawful disclosure of inside information and market manipulation that will apply in the European Economic Area (“EEA”)…more

Disclosure Requirements, EEA, EU, EU Market Abuse Regulation (EU MAR), MiFID

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The UK to Ratify the Unified Patent Court Agreement

The UK government announced on November 28, 2016 that it will proceed to ratify the Unified Patent Court Agreement (UPCA). The announcement comes after months of uncertainty over the future of the UPCA following the UK’s vote in…more

EU, Popular, UK, UK Brexit, Unified Patent Court

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Fifth Circuit Holds Non-Employee Agent Is Protected by False Claims Act’s Retaliation Provision

On March 9, 2016, the Fifth Circuit issued an important ruling addressing the type of relationship that is required between a relator and a defendant for the relator to have a right to bring a retaliation claim against the…more

Employee Definition, False Claims Act (FCA), Relators, Retaliation

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English High Court Approves the Use of Predictive Coding

The English High Court decision of Master Matthews (February 16, 2016) approved the use of predictive coding to satisfy the disclosure requirement under the Civil Procedure Rules (CPR) Part 31. See Pyrrho Investments Ltd v. MWB…more

Corporate Counsel, Discovery, Electronically Stored Information, Predictive Coding, Technology-Assisted Review

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DOJ Penalty Warns: Do Not Jump the Gun

The Department of Justice’s recent $4.95 million settlement of claims of illegal premerger coordination – also known as "gun jumping" – between two particleboard manufacturers reminds parties to exercise care over pre-closing…more

Antitrust Provisions, DOJ, Hart-Scott-Rodino Act, Manufacturers, Sherman Act

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Massachusetts Attorney General Releases Charity CEO Compensation Report

On December 19, the Non-Profit Organizations/Public Charities Division of the Massachusetts Office of the Attorney General released the results of a “focused review” of CEO compensation at 25 of the Commonwealth’s largest…more

Attorney Generals, CEOs, Deferred Compensation, Executive Compensation, Reporting Requirements

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Massachusetts Health Policy Commission Releases Regulations for Registration of Provider Organizations

On January 8, 2014, the Massachusetts Health Policy Commission (the “HPC”) published a Notice of Hearing and proposed regulations detailing the process that certain provider organizations (as described below) must follow in…more

Health Insurance, Healthcare, Registration

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The Ropes Recap: Mergers & Acquisitions Law News - Third Quarter 2015

Delaware Court Awards $148 Million in Damages, as Fiduciaries’ Bad Faith Conduct Prevented Stockholders from Obtaining a “Fairer Price” in Take-Private Transaction In a recent post-trial opinion, Vice Chancellor Laster of the…more

Acquisition Agreements, Dell, FASB, Fiduciary Duty, Merger Agreements

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Supreme Court Confirms Broad Reach of Insider Trading Liability

Today, the Supreme Court issued its decision in Salman v. United States, clarifying the personal benefit standard of insider trading under the federal securities laws. In resolving what it called a “narrow” issue, the Court…more

Dirks v SEC, Illegal Tipping, Insider Trading, Material Nonpublic Information, Personal Benefit

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Supreme Court Rules that Trademark “Tacking” Is a Question for the Jury

On January 21, 2015, the Supreme Court in Hana Financial, Inc. v. Hana Bank, No. 13-1211, unanimously held that whether different versions of a trademark may be “tacked” for purposes of determining priority is a jury question…more

Hana Financial v Hana Bank, Jury Questions, Likelihood of Confusion, SCOTUS, Tacking

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India Supreme Court Clarifies Standard for Enforcement of Indian Prevention of Corruption Act

Earlier this year, the Supreme Court of India clarified the standard necessary to prove violations of India’s Prevention of Corruption Act, 1988 (“PCA”), in a ruling that may limit enforcement of the PCA and that has potential…more

Anti-Corruption, Compliance, Corporate Counsel, FCPA, India

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IRS Provides Additional Flexibility for Flexible Spending Arrangement Use-or-Lose Rules

On October 31, the Internal Revenue Service (IRS) released Notice 2013-71, which modifies the long-standing “use-it-or-lose-it” rule for health flexible spending account plans (“FSAs”). Under the rule, any unused contributions…more

Carryover Basis, Flexible Spending Accounts, Healthcare, IRS

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Call for Input on the Post-Implementation Review of the FCA’s Crowdfunding Rules

The Financial Conduct Authority (the “FCA”) published a post-implementation review of its crowdfunding rules on 8 July 2016 (the “Paper”). The Paper is a “call for input” to invite readers to engage with the review, to offer…more

Financial Conduct Authority (FCA), Popular

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Update: New IRS Memo on Bad Boy Guarantees

Prior Alert. The March 17 Alert noted that the IRS in a Chief Counsel Advice ("CCA") had discussed the effect that certain “bad boy carve-out guarantees” (that would trigger contingent guarantee obligations if, for example, the…more

Bad Boy Liability, Carve Out Provisions, Guarantors, IRS, Non-Recourse Loans

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The Impact of the European Unified Patent Court on Filing Strategies

Europe is on the verge of implementing its new Patent System (expected May 2017) with a Unitary Patent and Unified Patent Court (UPC), under which the EU would allow for grant of a unitary patent under the rules and procedures…more

EU, European Patent Convention, Member State, Patent Applications, Unitary Patent

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EMIR – European Commission Responds to Draft RTS on IRS Clearing

The European Commission has publicized its decision to endorse draft regulatory technical standards (“RTS”) submitted to it by the European Securities and Markets Authority (“ESMA”) on the clearing of interest rate OTC…more

Derivatives, EMIR, EU, European Commission, European Securities and Markets Authority (ESMA)

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Anti-Corruption Laws and Other International Risks – What it Means for the Real Estate Industry and How to Protect against Risks

Bribery, money laundering, and sanctions are key international risk areas for any global business, particularly those investing or operating in high-risk jurisdictions and industries. In addition to meaningful enforcement…more

Anti-Corruption, Anti-Money Laundering, Compliance, Economic Sanctions, Enforcement Authority

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The Ropes Recap: Mergers & Acquisitions Law News

In this issue: - News from the Courts - Delaware Legislative Update - Notable Deals - News from the SEC - London Update - Asia Update - Deal Stat Snapshot -…more

Blackberry, CFIUS, Change in Control, Class Action, Controlling Stockholders

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Split Federal Circuit Panel Rules that Direct Infringement by Multiple Parties Requires Agency Relationship, Contractual Arrangement, or Joint Enterprise

On May 13, 2015, a three-judge panel of the Federal Circuit issued its long-awaited opinion on remand in Akamai Techs., Inc. v. Limelight Networks, Inc. This decision came in the wake of the Federal Circuit’s en banc decision…more

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FDA Indefinitely Delays Action on Regulating Laboratory Developed Tests

On November 18, 2016, the Food and Drug Administration (FDA) notified industry groups that it no longer plans to finalize its draft guidance on laboratory developed tests (LDTs). FDA stated that it intends to work with the new…more

Clinical Laboratories, Diagnostic Tests, Direct to Consumer Sales, FDA, Laboratory Developed Tests

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Akamai Technologies, Inc. and Nortek, Inc. Receive First Declinations Under the DOJ’s FCPA Pilot Program and Rare NPAs from the SEC with No Fine Imposed

On June 7, 2016, the U.S. Department of Justice (“DOJ”) issued the first public declinations of a criminal enforcement action since implementing its new enforcement plan for the Criminal Division – Fraud Section’s Foreign…more

Akamai Technologies, Declination, DOJ, Enforcement Actions, FCPA

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Eleventh Circuit Upholds the U.S. DOJ’s Expansive Approach to Anti-Corruption Enforcement

On February 9, 2015, the Eleventh Circuit affirmed Jean Rene Duperval’s convictions for money laundering and conspiracy to commit money laundering, approving the U.S. Department of Justice’s (“DOJ”) expansive approach to…more

Bribery, Corporate Counsel, Criminal Conspiracy, DOJ, FCPA

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CFTC Staff Issues Self-Executing Registration Relief for Certain Delegating CPOs

On October 15, 2014, the Commodity Futures Trading Commission (“CFTC”) staff issued Letter 14-126 (the “October Letter”), which provides self-executing registration relief to a commodity pool operator (“CPO”) of a fund that…more

CFTC, Commodities Exchange Act, CPOs, Delegation Clauses, No-Action Letters

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

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Small-Breach Focus Shows Growing Scope Of HIPAA Probes

Flexing yet more enforcement muscle under the Health Insurance Portability and Accountability Act, on Aug. 18, 2016, the U.S. Department of Health and Human Services Office for Civil Rights announced that it will more widely…more

Corrective Actions, Cybersecurity, Data Breach, Data Protection, Data Security

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U.S. Supreme Court Preserves 50-Year-Old Rule Barring Post-Patent Royalties

On Monday, June 22, 2015, the U.S. Supreme Court issued a 6-3 decision in Kimble v. Marvel Entertainment, declining to reverse longstanding, yet controversial, precedent holding post-patent term royalties to be unlawful per se…more

Antitrust Provisions, Brulotte, Contract Term, IP License, Kimble v Marvel Enterprises

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Legal Challenges to Europe’s Unitary Patent System Nearing an End

The European Patent System is in the final stages of a significant change. On November 18, 2014, European Union Advocate General Yves Bot issued a press release affirming his opinion that the European Court of Justice should…more

EU, European Court of Justice (ECJ), Unified Patent Court, Unified Patent System

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EU Reaches Final Agreement on Conflict Minerals Regulation – An Overview

On November 22, the EU Council, Commission and Parliament reached an informal final agreement on a conflict minerals regulation. Last week’s agreement builds upon the “political agreement” reached during June…more

Conflict Mineral Rules, Corporate Counsel, Due Diligence, EU, Importers

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Ropes & Gray Advises Pacira Pharmaceuticals in Reaching Landmark Settlement Agreement with FDA

A cross-disciplinary team of Ropes & Gray attorneys advised Pacira Pharmaceuticals on its December 14 settlement agreement with FDA. On behalf of Pacira, Ropes & Gray had filed suit against FDA in September 2015 in the U.S…more

Administrative Procedure Act, FDA, FDA Warning Letters, Fifth Amendment, First Amendment

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China's Medical Device Market: New Policies, Higher Stakes

The recent introduction of the Regulations on the Supervision and Administration of Medical Devices (also known as State Council Order 650) has created significant impact in the medical device industry in China. The changes…more

China, Healthcare, Manufacturers, Medical Devices, New Regulations

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Regulatory Reporting Under AIFMD – an Update and Comparison to SEC’s Form PF

The Alternative Investment Fund Managers Directive (the “AIFMD”) introduces new regulatory reporting requirements for alternative investment fund managers (“AIFMs”) established in the European Economic Area (“EEA”) and non-EEA…more

AIFM, AIFMD, EEA, EU, Form PF

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Volcker Rule Final Regulations: The Effect on Private Fund Sponsors and Investors

In time for the holidays, the long-awaited Volcker Rule final regulations arrived on Tuesday, December 10, 2013. Many of the comments of domestic mutual funds, foreign public funds, insurance companies and foreign banking…more

Benefit Plan Sponsors, Compliance, Covered Entities, Private Funds, Volcker Rule

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The Ropes Recap: Mergers & Acquisitions Law News - Third Quarter 2015

Delaware Court Awards $148 Million in Damages, as Fiduciaries’ Bad Faith Conduct Prevented Stockholders from Obtaining a “Fairer Price” in Take-Private Transaction In a recent post-trial opinion, Vice Chancellor Laster of the…more

Acquisition Agreements, Dell, FASB, Fiduciary Duty, Merger Agreements

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Dodd-Frank Credit Risk Retention Rules: House Financial Services Committee Passes Bill to Reduce Compliance Burden for Collateral Managers of Qualified CLOs

On March 2, 2016, the House Financial Services Committee approved a bill, H.R. 4166, sponsored by Representatives Andy Barr (KY) and Dave Scott (GA), that would significantly reduce the credit risk retention obligations imposed…more

Collateralized Loan Obligations, Dodd-Frank, Financial Services Committee, proposed, Proposed Legislation

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Patent Trial and Appeal Board Rejects Petitions for Covered Business Method Patent Review of Orange Book-Listed Patents Claiming Methods of Controlling Access to Sensitive Drugs

On January 13, 2015, the Patent Trial and Appeal Board (PTAB) denied institution of four Covered Business Method (CBM) patent reviews of Orange Book-listed patents owned by Jazz Pharmaceuticals plc (“Jazz”), holding that the…more

America Invents Act, Covered Business Method Proceedings, Jazz Pharmaceuticals, Patent Trial and Appeal Board, Patents

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The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

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SEC Announces a Maximum Whistleblower Award to an Employee Who Faced Employment Retaliation as a Consequence of Reporting Dodd-Frank Act Violations to the Commission

In June of last year, Paradigm Capital Management agreed to pay the SEC nearly $2 million to settle allegations that it violated the Dodd-Frank Act’s conflict-of-interest rules and unlawfully retaliated against the whistleblower…more

Conflicts of Interest, Dodd-Frank, Enforcement Actions, Investment Management, Retaliation

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Supreme Court Bankruptcy Decision Strengthens Creditor Leverage in Plan Negotiations

On May 4, 2015, in the case Bullard v. Blue Hills Bank, the United States Supreme Court held that debtors in chapter 13 (and presumably chapter 9 and 11 as well) are not entitled as of right to immediately appeal bankruptcy…more

Appeals, Bullard v Blue Hills Bank, Chapter 11, Chapter 13, Popular

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Landlords Welcome Landmark Decision In Re Game Station

LONDON - The Court of Appeal in the case of Re Game Station has held that rent payable by a tenant that enters administration is a priority expense of the administration while the leasehold premises are being used for the…more

Apportionment, Rent, UK

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Trump and the Death Tax

Donald Trump’s tax plan calls for elimination of the “death tax,” which refers to the federal estate and generation-skipping transfer (“GST”) taxes, and may include the federal gift tax. His plan also calls for imposition of a…more

Donald Trump, Estate Planning, Estate Tax, Generation-Skipping Transfer, IRS

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An Update on Brexit and the Implications for General Data Protection Regulation (GDPR)

Following the “Leave” result of the United Kingdom’s referendum on its membership in the European Union, there has been uncertainty regarding the implementation of the General Data Protection Regulation (GDPR) due to come into…more

General Data Protection Regulation (GDPR), International Data Transfers, UK, UK Brexit

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Eighth Circuit Dismisses Interlocutory FCA Appeal for Lack of Jurisdiction

In this April 2016 decision, the Eighth Circuit held that it lacked jurisdiction to consider the appeal of a two-state agency seeking review of a denial of its motion for summary judgment. Below the two-state agency had argued…more

Appeals, Eleventh Amendment, False Claims Act (FCA), Jurisdiction, Motion for Summary Judgment

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Update: New IRS Memo on Bad Boy Guarantees

Prior Alert. The March 17 Alert noted that the IRS in a Chief Counsel Advice ("CCA") had discussed the effect that certain “bad boy carve-out guarantees” (that would trigger contingent guarantee obligations if, for example, the…more

Bad Boy Liability, Carve Out Provisions, Guarantors, IRS, Non-Recourse Loans

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President Obama Signs the Defend Trade Secrets Act into Law

On May 11, 2016, the President signed the Defend Trade Secrets Act of 2016 (DTSA) into law, creating the first federal civil remedy for trade secret misappropriation. Last month, the Senate unanimously passed the bill, S. 1890,…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Ex Parte, Misappropriation, Whistleblower Protection Policies

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Federal Trade Commission Holds Medical Laboratory Liable for Allegedly Unfair Data Security Practices

On July 29, the Federal Trade Commission (“FTC” or “Commission”) issued a unanimous Opinion and Final Order reversing the FTC Administrative Law Judge (“ALJ”) Initial Opinion issued November 13, 2015, which had dismissed the…more

ALJ, FTC, FTC Act, HIPAA, LabMD

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DOJ Penalty Warns: Do Not Jump the Gun

The Department of Justice’s recent $4.95 million settlement of claims of illegal premerger coordination – also known as "gun jumping" – between two particleboard manufacturers reminds parties to exercise care over pre-closing…more

Antitrust Provisions, DOJ, Hart-Scott-Rodino Act, Manufacturers, Sherman Act

See All Updates »

Dodd-Frank Credit Risk Retention Rules: House Financial Services Committee Passes Bill to Reduce Compliance Burden for Collateral Managers of Qualified CLOs

On March 2, 2016, the House Financial Services Committee approved a bill, H.R. 4166, sponsored by Representatives Andy Barr (KY) and Dave Scott (GA), that would significantly reduce the credit risk retention obligations imposed…more

Collateralized Loan Obligations, Dodd-Frank, Financial Services Committee, proposed, Proposed Legislation

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Supreme Court Confirms Broad Reach of Insider Trading Liability

Today, the Supreme Court issued its decision in Salman v. United States, clarifying the personal benefit standard of insider trading under the federal securities laws. In resolving what it called a “narrow” issue, the Court…more

Dirks v SEC, Illegal Tipping, Insider Trading, Material Nonpublic Information, Personal Benefit

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Federal Trade Commission Holds Medical Laboratory Liable for Allegedly Unfair Data Security Practices

On July 29, the Federal Trade Commission (“FTC” or “Commission”) issued a unanimous Opinion and Final Order reversing the FTC Administrative Law Judge (“ALJ”) Initial Opinion issued November 13, 2015, which had dismissed the…more

ALJ, FTC, FTC Act, HIPAA, LabMD

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Ropes & Gray Advises Pacira Pharmaceuticals in Reaching Landmark Settlement Agreement with FDA

A cross-disciplinary team of Ropes & Gray attorneys advised Pacira Pharmaceuticals on its December 14 settlement agreement with FDA. On behalf of Pacira, Ropes & Gray had filed suit against FDA in September 2015 in the U.S…more

Administrative Procedure Act, FDA, FDA Warning Letters, Fifth Amendment, First Amendment

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Recent Decisions Highlight Legal Risks Associated with Product Cybersecurity Vulnerabilities

Last month, plaintiffs in two product cybersecurity class actions were partially successful in surviving motions to dismiss, continuing the recent trend by plaintiffs and regulatory agencies to expand the pool of defendants in…more

Article III, Class Action, Cybersecurity, Data Protection, FTC

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Update: New IRS Memo on Bad Boy Guarantees

Prior Alert. The March 17 Alert noted that the IRS in a Chief Counsel Advice ("CCA") had discussed the effect that certain “bad boy carve-out guarantees” (that would trigger contingent guarantee obligations if, for example, the…more

Bad Boy Liability, Carve Out Provisions, Guarantors, IRS, Non-Recourse Loans

See All Updates »

The Ropes Recap: Mergers & Acquisitions Law News - Third Quarter 2015

Delaware Court Awards $148 Million in Damages, as Fiduciaries’ Bad Faith Conduct Prevented Stockholders from Obtaining a “Fairer Price” in Take-Private Transaction In a recent post-trial opinion, Vice Chancellor Laster of the…more

Acquisition Agreements, Dell, FASB, Fiduciary Duty, Merger Agreements

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Novartis Agrees to Settle Bribery Charges Against Chinese Subsidiaries for $25 Million

On March 23, 2015, Swiss-based pharmaceutical company Novartis AG (“Novartis”) reached a civil settlement with the United States Securities and Exchange Commission (“SEC”) for violating the internal controls and books and…more

Enforcement Actions, FCPA, Non-Judicial Settlement Agreements, Novartis, Pharmaceutical Industry

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Bankruptcy Court Holds That Secured Creditors Can Be “Crammed Down” With Below-Market Rate Replacement Notes

On August 26, 2014, in the case In re MPM Silicones, LLC, Case No. 14-22503 (Bankr. S.D.N.Y.) (“Momentive”), the United States Bankruptcy Court for the Southern District of New York held that secured creditors could be “crammed…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Cramdown, Creditors

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The Ropes Recap: Mergers & Acquisitions Law News - October 2014

In this issue: - Delaware Legislative Update - Amendments to DGCL Effective August 1, 2014 - News from the Courts - Additional Guidance on Kahn v. M&F Worldwide Corp. - Exculpation…more

Bylaws, CFIUS, Class Action, Delaware General Corporation Law, Dollar General

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Supreme Court Confirms ERISA Fiduciaries’ Duty to Monitor, Leaving Contours to Lower Courts

On May 18, 2015, the Supreme Court of the United States confirmed the existence of an independent duty on the part of ERISA plan fiduciaries to continuously “monitor” retirement plan investments and remove those that are…more

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CFTC Provides Relief from Certain Recordkeeping Requirements Applicable to CPOs and CTAs

Effective December 24, 2015, the Commodity Futures Trading Commission (the “CFTC”) revised its Rule 1.35(a) to provide relief from certain recordkeeping requirements for commodity pool operators (“CPOs”) and commodity trading…more

CFTC, CPOs, CTA, Dodd-Frank, Recordkeeping Requirements

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EMIR – European Commission Responds to Draft RTS on IRS Clearing

The European Commission has publicized its decision to endorse draft regulatory technical standards (“RTS”) submitted to it by the European Securities and Markets Authority (“ESMA”) on the clearing of interest rate OTC…more

Derivatives, EMIR, EU, European Commission, European Securities and Markets Authority (ESMA)

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Delay to the Application Date of the EU Regulation on Packaged Retail and Insurance-based Investment Products

The European Commission announced on 9 November 2016 an extension to the application date of the Regulation on Key Information Documents for Packaged Retail and Insurance-based Investment Products (“PRIIPs”) to 31 December 2017…more

EU, Packaged Retail And Insurance-Based Investment Products (PRIIPS), Regulation Technical Standards (RTS)

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The Court of Appeal redefines the “but-for” causation test for negligence: Losses caused to a lender by a surveyor’s negligent property valuation on a refinancing were wholly recoverable.

In a landmark judgment with wide implications for the lending, refinancing and valuation industries, in Tiuta International Ltd (In liquidation) v De Villiers Surveyors Ltd [2016] EWCA Civ 661, the Court of Appeal, by a two to…more

But For Causation, Commercial Loans, Liability Insurance, Negligence, Property Valuation

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Small-Breach Focus Shows Growing Scope Of HIPAA Probes

Flexing yet more enforcement muscle under the Health Insurance Portability and Accountability Act, on Aug. 18, 2016, the U.S. Department of Health and Human Services Office for Civil Rights announced that it will more widely…more

Corrective Actions, Cybersecurity, Data Breach, Data Protection, Data Security

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Supreme Court Upholds Federal Circuit’s Cuozzo Decision - PTAB IPR Institution Decisions Not Appealable; Broadest Reasonable Interpretation Standard Proper

On June 20, 2016, the Supreme Court issued its opinion in Cuozzo Speed Techs., LLC v. Lee, No. 15-446, affirming the Federal Circuit’s rulings that the U.S. Patent and Trademark Office’s (“PTO”) Patent Trial and Appeal Board’s…more

Administrative Procedure Act, Administrative Proceedings, America Invents Act, Appeals, Broadest Reasonable Interpretation Standard

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U.S. Supreme Court Upholds Fraud on the Market Securities Class Actions and Largely Preserves the Status Quo

On Monday, the United States Supreme Court today resisted the opportunity to put meaningful curbs on proliferating securities class actions, preserving most of the status quo in such cases…more

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

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Federal Agencies Release New Volcker Rule Guidance for Non-U.S. Banking Entities and Fund Sponsors Seeking to Rely on the “SOTUS” Covered Fund Exemption, Clarifying that the U.S. Marketing Restriction Does Not Apply to Third Parties

On February 27, 2015, the Board of Governors of the Federal Reserve System (the “Federal Reserve”), the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Securities and Exchange Commission…more

Bank Holding Company Act, Federal Reserve, Foreign Banks, New Guidance, Volcker Rule

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U.S. Issues Orders Requiring Identification of All-Cash Buyers of High-End Residential Real Estate

On January 13, 2016, the U.S. Financial Crimes Enforcement Network (“FinCEN”) announced that it will temporarily require U.S. title insurance companies to disclose the identity of the beneficial owners of shell companies making…more

FinCEN, Geographic Targeting Order, Real Estate Investments, Reporting Requirements, Title Insurance

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Mexico Enacts a Sweeping New Anti-Corruption Regime, Accompanied by a Public Apology from President Peña Nieto and Increased Attention on Mexico’s Energy Sector by U.S. Regulators

After an aggressive grassroots campaign, Mexican President Enrique Peña Nieto recently announced the enactment of sweeping changes to Mexico’s anti-corruption regime. The new law is a significant step toward transparency in a…more

Anti-Corruption, Conflicts of Interest, Enrique Pena Nieto, Government Contractors, Mexico

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Owning and Controlling a Company in the United Kingdom: The Company Law Reforms

A number of important reforms are being introduced into UK company law that will increase the accountability of companies registered in the UK. Some are already in effect and some are being introduced on a phased basis up to…more

Board of Directors, Commercial Companies Law, Control Person, Corporate Counsel, Shareholders

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DOJ Issues Guidance on Individual Accountability for Corporate Misconduct

On September 9, 2015, U.S. Deputy Attorney General Sally Quillian Yates issued a memorandum outlining to U.S. Department of Justice (“DOJ”) personnel the importance of individual accountability for corporate wrongdoing (the…more

Cooperation, Criminal Prosecution, Declination, DOJ, False Claims Act (FCA)

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Privy Council Rules on the Court’s Equitable Jurisdiction to Set the Financial Terms of Relief against Appropriation

Last week the Board of the Privy Council delivered a critical sequel to its previous judgments in connection with the Cukurova Group’s attempt to recover shares following an appropriation. The Board held that not only can the…more

Appropriation, Equitable Relief, Forfeiture, Jurisdiction, UK

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The DOJ Sends Strong Messages Regarding Corporate Cooperation in Criminal Matters

During prepared remarks in April 2015, Assistant Attorney General Leslie R. Caldwell discussed corporate cooperation in criminal FCPA investigations. AAG Caldwell emphasized that a company’s self-disclosure of issues to the…more

Cooperation, Criminal Prosecution, DOJ, FCPA, Government Investigations

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Federal Agencies Release New Volcker Rule Guidance for Non-U.S. Banking Entities and Fund Sponsors Seeking to Rely on the “SOTUS” Covered Fund Exemption, Clarifying that the U.S. Marketing Restriction Does Not Apply to Third Parties

On February 27, 2015, the Board of Governors of the Federal Reserve System (the “Federal Reserve”), the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Securities and Exchange Commission…more

Bank Holding Company Act, Federal Reserve, Foreign Banks, New Guidance, Volcker Rule

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SEC Charges Corporate Officers with Fraud Arising from Failure to Disclose Internal Controls Issues and Alleged Misrepresentations in SOX Certifications

On July 30, 2014, the Securities and Exchange Commission (“SEC”) advanced a novel theory of fraud against the former CEO (Marc Sherman) and CFO (Edward Cummings) of Quality Services Group, Inc. (“QSGI”), a Florida-based computer…more

Accounting Controls, Audits, Commercial Bankruptcy, Corporate Counsel, Corporate Officers

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SEC Announces a Maximum Whistleblower Award to an Employee Who Faced Employment Retaliation as a Consequence of Reporting Dodd-Frank Act Violations to the Commission

In June of last year, Paradigm Capital Management agreed to pay the SEC nearly $2 million to settle allegations that it violated the Dodd-Frank Act’s conflict-of-interest rules and unlawfully retaliated against the whistleblower…more

Conflicts of Interest, Dodd-Frank, Enforcement Actions, Investment Management, Retaliation

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Massachusetts Attorney General Releases Charity CEO Compensation Report

On December 19, the Non-Profit Organizations/Public Charities Division of the Massachusetts Office of the Attorney General released the results of a “focused review” of CEO compensation at 25 of the Commonwealth’s largest…more

Attorney Generals, CEOs, Deferred Compensation, Executive Compensation, Reporting Requirements

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Supreme Court Unanimously Reverses Ninth Circuit’s Decision in POM Wonderful v. Coca-Cola

Ruling That Competitors May Bring Lanham Act Claims Challenging FDA-Regulated Food and Beverage Labels Could Impact Other Categories of FDA-Regulated Products - On June 12, 2014, the Supreme Court in POM Wonderful LLC v…more

Advertising, Coca Cola, FDA, FDCA, Food Labeling

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Recent Developments and Trends for Exempt Organizations

Recent months have been eventful for exempt organizations and their advisors. While fundamental tax reform remains a possibility, with a number of proposals on the table that would significantly change the rules for exempt…more

501(c)(3), Exempt Organizations, IRS, Legislative Agendas, Tax Extenders

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The Court of Appeal redefines the “but-for” causation test for negligence: Losses caused to a lender by a surveyor’s negligent property valuation on a refinancing were wholly recoverable.

In a landmark judgment with wide implications for the lending, refinancing and valuation industries, in Tiuta International Ltd (In liquidation) v De Villiers Surveyors Ltd [2016] EWCA Civ 661, the Court of Appeal, by a two to…more

But For Causation, Commercial Loans, Liability Insurance, Negligence, Property Valuation

See All Updates »

The Ropes Recap: Mergers & Acquisitions Law News - Fourth Quarter 2015

The Demise of Disclosure-Only Settlements? The Court of Chancery Outlines a New Regime. - In a recent opinion, Chancellor Bouchard of the Delaware Court of Chancery reiterated the Court of Chancery’s belief that settlements…more

Acquisition Agreements, Aiding and Abetting, Confidentiality Agreements, DE Supreme Court, Disclosure-Based Settlements

See All Updates »

SEC Charges U.S. Pharmaceutical Company for FCPA Violations Arising from Alleged Bribery in China

On February 4, 2016, the U.S. Securities and Exchange Commission (“SEC”) announced a settlement with U.S. pharmaceutical company SciClone Pharmaceuticals, Inc. (the “Company”) to resolve FCPA charges arising from its…more

Bribery, Corporate Counsel, Enforcement Actions, FCPA, Pharmaceutical Industry

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European Commission Releases Text of Proposed Privacy Shield Agreement for Transfer of European Union Citizen Data to the United States

On February 29, 2016, the European Commission released the full text of the proposed EU-U.S. Privacy Shield agreement, a data protection self-certification framework for companies transferring EU citizen data to the United…more

Data Processors, EU, EU-US Privacy Shield, FTC, International Data Transfers

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Mexico Enacts a Sweeping New Anti-Corruption Regime, Accompanied by a Public Apology from President Peña Nieto and Increased Attention on Mexico’s Energy Sector by U.S. Regulators

After an aggressive grassroots campaign, Mexican President Enrique Peña Nieto recently announced the enactment of sweeping changes to Mexico’s anti-corruption regime. The new law is a significant step toward transparency in a…more

Anti-Corruption, Conflicts of Interest, Enrique Pena Nieto, Government Contractors, Mexico

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FDA Indefinitely Delays Action on Regulating Laboratory Developed Tests

On November 18, 2016, the Food and Drug Administration (FDA) notified industry groups that it no longer plans to finalize its draft guidance on laboratory developed tests (LDTs). FDA stated that it intends to work with the new…more

Clinical Laboratories, Diagnostic Tests, Direct to Consumer Sales, FDA, Laboratory Developed Tests

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The UK to Ratify the Unified Patent Court Agreement

The UK government announced on November 28, 2016 that it will proceed to ratify the Unified Patent Court Agreement (UPCA). The announcement comes after months of uncertainty over the future of the UPCA following the UK’s vote in…more

EU, Popular, UK, UK Brexit, Unified Patent Court

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SEC Brings First Action Against a Private Equity Fund Adviser for Misallocation of Portfolio Company Expenses

On September 22, 2014, the Securities and Exchange Commission (“SEC”) charged private equity fund adviser Lincolnshire Management, Inc. (“Lincolnshire”) with breaching its fiduciary duty to two of its private equity funds by…more

Enforcement, Enforcement Actions, Investment Adviser, Misallocation of Funds, Private Equity

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Supreme Court to Clarify Standard for Dismissal of Qui Tam Complaints for Violations of the False Claims Act’s Seal Requirement

On May 31, 2016, the Supreme Court of the United States granted certiorari in State Farm Fire and Casualty Co. v. United States ex rel. Rigsby (No. 15-513) to clarify the standard for sanctioning intentional violations of the…more

Certiorari, Collective Knowledge, False Claims Act (FCA), Government Claims, Motion to Dismiss

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Market Abuse Regulation: Implications for Issuers of Debt Securities

The Market Abuse Regulation (“MAR”) will take effect on 3 July 2016. MAR contains rules on insider dealing, unlawful disclosure of inside information and market manipulation that will apply in the European Economic Area (“EEA”)…more

Disclosure Requirements, EEA, EU, EU Market Abuse Regulation (EU MAR), MiFID

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Federal Circuit En Banc Decision in Williamson v. Citrix Overrules Long Line of Precedent Regarding Functional Claiming and § 112, Para. 6

On June 16, 2015, the Federal Circuit issued its decision in Williamson v. Citrix Online, overruling en banc a long line of precedent regarding functional claiming and affirming a District Court decision finding asserted claims…more

America Invents Act, Appeals, Claim Construction, En Banc Review, Indefiniteness

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CFTC Provides Relief from Certain Recordkeeping Requirements Applicable to CPOs and CTAs

Effective December 24, 2015, the Commodity Futures Trading Commission (the “CFTC”) revised its Rule 1.35(a) to provide relief from certain recordkeeping requirements for commodity pool operators (“CPOs”) and commodity trading…more

CFTC, CPOs, CTA, Dodd-Frank, Recordkeeping Requirements

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EU Reaches Final Agreement on Conflict Minerals Regulation – An Overview

On November 22, the EU Council, Commission and Parliament reached an informal final agreement on a conflict minerals regulation. Last week’s agreement builds upon the “political agreement” reached during June…more

Conflict Mineral Rules, Corporate Counsel, Due Diligence, EU, Importers

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The Ropes Recap: Mergers & Acquisitions Law News - October 2014

In this issue: - Delaware Legislative Update - Amendments to DGCL Effective August 1, 2014 - News from the Courts - Additional Guidance on Kahn v. M&F Worldwide Corp. - Exculpation…more

Bylaws, CFIUS, Class Action, Delaware General Corporation Law, Dollar General

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Regulatory Reporting Under AIFMD – an Update and Comparison to SEC’s Form PF

The Alternative Investment Fund Managers Directive (the “AIFMD”) introduces new regulatory reporting requirements for alternative investment fund managers (“AIFMs”) established in the European Economic Area (“EEA”) and non-EEA…more

AIFM, AIFMD, EEA, EU, Form PF

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U.S. Patent Trial and Appeal Board Designates Five New Post-Grant Review Decisions as “precedential” and Thus Binding on the Board

On May 9, 2016, the Patent Trial and Appeal Board (PTAB) designated as “precedential” four Inter Partes Review (IPR) decisions and one Covered Business Method (CBM) Patent Review decision. This almost triples the total number of…more

Covered Business Method Proceedings, Inter Partes Review (IPR)