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Sheppard Mullin Richter & Hampton LLP

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Latest Publications

Sarah Aberg

It Ain't Over 'Till the Fat Lady Sings - Party's Contractual Obligations Continue In Agreement To Negotiate

In IDT Corp. v Tyco Group, S.A.R.L., 2012 NY Slip Op 09190 (1st Dept. Dec. 27, 2012) the Appellate Division held that if you sign a binding agreement that includes an obligation to negotiate, the obligation to negotiate is not…more

Agreement To Negotiate, Breach of Contract, Condition Precedent, Fiber Optic Telecommunications Network, Indefeasible Right To Use

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Robin Achen

United States Supreme Court Decides Question of Corporate Liability Under Alien Tort Statute On Broader Grounds

In Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, 2013 WL 1628935 (U.S. Apr. 17, 2013), the Supreme Court of the United States addressed the circuit split that arose following the 2010 decision of the United States Court of…more

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Mahsa Aliaskari

SEC Freezes Assets and Brings Civil Charges against EB-5 Investor Visa Project

In the first SEC enforcement action of its kind, the SEC announced on February 8, 2013 that it had filed civil charges against, and received an emergency order to freeze assets of, the Intercontinental Regional Center Trust of…more

Due Diligence, EB-5, Foreign Investment, Immigrant Investment Visas, Injunctions

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Travis Anderson

Class Action Waivers Are Enforceable Despite Any State Statutory Right To A Class Action

In Flores v. West Covina Auto Group, --- Cal.Rptr.3d ----, 2013 WL 139200 (Cal.App. 2 Dist. Jan. 11, 2013), the California Court of Appeal extended the U.S. Supreme Court’s landmark decision in AT&T Mobility, Inc. v. Concepcion,…more

Arbitration Agreements, AT&T Mobility, Class Action, Class Action Arbitration Waivers, Consumers Legal Remedies Act

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Rena Andoh

Second Circuit Rules That Putative Auction Rate Securities Class Action Complaints Failed to Adequately Plead Antitrust Conspiracy

In Mayor and City Council of Baltimore v. Citigroup, Inc., No. 10-0722-cv(L) and 10-0867-cv(CON), 2013 WL 791397 (2d Cir. Mar. 5, 2013), the United States Court of Appeals for the Second Circuit upheld the dismissal of two…more

Antitrust Conspiracies, Auction, Auction Rate Securities, Bonds, Class Action

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Brian Arbetter

Mexican Federal Labor Law Reform: What Companies Doing Business in Mexico Need to Know

Mexico’s new Federal Labor Law (FLL) took effect on December 1, 2012. The reform seeks to modernize Mexico’s labor law. The new FLL’s major, employment related amendments include increased regulation of outsourcing jobs,…more

Anti-Harassment Policies, Discrimination, Employer Liability Issues, Foreign Corporations, Hiring & Firing

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Jonathan Aronie

What Does 2013 Have In Store for Government Contractors and Their Lawyers?

Originally published in the San Diego Business Journal on January 21-27. It has been noted, the more things change, the more they stay the same. In the world of Government Contracts Law, however, the more things change, the…more

Anti-Contractor Bias, Bid Protests, Competition, Compliance, Enforcement

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Edwin Astudillo

Technical Change by Broadridge May Impact Retail Voting at Upcoming Annual Meetings

Most public companies use Broadridge for shareholder voting tasks related to their annual meetings. Due to a new interpretive position being taken by the SEC, Broadridge recently informed its clients of a technical change in its…more

Annual Meeting, Broadridge, Proxy Season, Retail Market, SEC

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Tyler E. Baker

Commercial Division Denies Oral Modification and Grants Summary Judgment in Lieu of Complaint

In HCG Mezzanine Dev. Fund, L.P. v. Jreck Holdings, LLC, Index No. 652797/2011 (N.Y. Sup., N.Y. Cnty. Oct. 26, 2012), the New York Supreme Court (Kornreich, J.) granted Plaintiff HCG Mezzanine Development Fund, L.P.’s (HCG)…more

Oral Modification, Promissory Notes, Security Agreements, Summary Judgment

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Daniel Bane

No Relief Under CCP Section 473 For Missed Filing Deadline In CEQA Challenge

Alliance for the Protection of the Auburn Community Environment, et al. v. County of Placer, SCV0028200 (3rd Dist., February 18, 2013). In Alliance for the Protection of the Auburn Community Environment v. County of…more

CEQA, Demurrers, Environmental Impact Report, Filing Deadlines, Statute of Limitations

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Elizabeth Berman Barcohana

Making Meyer Lemonade Out Of Meyer Lemons: Ninth Circuit Affirms Provisional Class Certification and Injunction in TCPA Case

In Meyer v. Portfolio Recovery Associates (Oct. 12, 2012), the Ninth Circuit affirmed the Southern District of California’s decision to provisionally certify a class and grant a preliminary injunction against Portfolio Recovery…more

Class Certification, Debt Collectors, Preliminary Injunctions, TCPA

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John Bonn

New IRS Regulations Regarding Noncompensatory Partnership Options Effective Immediately

On February 4th, the IRS issued final and further proposed regulations regarding noncompensatory partnership options, effective immediately. Overview - A “noncompensatory partnership option” is any contractual right…more

Convertabile Equity, IRS, Non-Compensatory Partnership Options

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Daniel Brown

Subpoena of AOL Senior Executive Under the "Apex Rule" Disallowed Absent Special Knowledge

In Daou v. Huffington, No. 651997/2010 (N.Y. Sup. Ct., N.Y. Cnty. Feb. 14, 2013), the Supreme Court (J. Ramos) granted nonparty Timothy Armstrong’s (“Armstrong”) motion to quash a subpoena served on him by political consultants…more

Apex Rule, Depositions, Huffington Post, Non-Parties, Subpoenas

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Leo Caseria

Challenge To Alleged Restraints On Baseball And Hockey Programming Survive Motion To Dismiss And Advance To The Next Round Of Litigation

Have you ever been away from home when your favorite baseball or hockey team is playing an important game? Ever wished you could watch that game, and just that game, live while you are on the road? If plaintiffs in Laumann v…more

Comcast, DirectTV, NHL, RSNs, Sherman Act

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Alex Chan

Things to Know About the Latest Final Interim Rules to Patent Term Adjustment

On April 1, 2013, the U.S. Patent and Trademark Office (USPTO) published interim final rules revising several patent term adjustment (PTA) provisions in view of the AIA Technical Corrections Act of January 14, 2013. 78 Fed. Reg…more

America Invents Act, Patent Term Adjustment, Patents, USPTO

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Michael Chan

What Employers Need to Know About Healthcare Reform for 2013

As the end of 2012 approaches, we consider what a notable year it has been for the future of healthcare reform, starting with the United States Supreme Court’s decision to uphold key provisions of the Patient Protection and…more

Affordable Care Act, Employer Group Health Plans, Flexible Spending Accounts, Health Insurance, Health Insurance Exchanges

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Wayne Chang

Who Owns Your Online Persona?

Originally published in The Recorder on March 22nd, 2013. Eagle v. Morgan, 2013-11-4303 (E.D. Pa. 2013), represents one of the first trials on the issue of who owns social media accounts: the individual employee who first…more

Damages, Eagle v Edcomm, LinkedIn, Misappropriation, Social Media

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John Chierichella

Teaming Agreements Called Into Question Under Virginia Law

In 1997, the Virginia Supreme Court sent a chill down the spines of many companies operating under teaming agreements with a Virginia choice of law provision. In W.J. Schafer Associates, Inc. v. Cordant, Inc., 493 S.E. 2d 514…more

Enforcement, Subcontracts, Teaming Agreements

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Terese Connolly

Mexican Federal Labor Law Reform: What Companies Doing Business in Mexico Need to Know

Mexico’s new Federal Labor Law (FLL) took effect on December 1, 2012. The reform seeks to modernize Mexico’s labor law. The new FLL’s major, employment related amendments include increased regulation of outsourcing jobs,…more

Anti-Harassment Policies, Discrimination, Employer Liability Issues, Foreign Corporations, Hiring & Firing

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Ryan Connor

California's Revised Uniform Limited Liability Company Act

The California Revised Uniform Limited Liability Company Act (RULLCA) was signed into law by Governor Jerry Brown in September 2012. Intended to come into effect on January 1, 2014, RULLCA replaces the Beverly-Killea Limited…more

Fiduciary Duty, LLC, Operating Agreements, RULLCA

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Robert Copeland

California's Revised Uniform Limited Liability Company Act

The California Revised Uniform Limited Liability Company Act (RULLCA) was signed into law by Governor Jerry Brown in September 2012. Intended to come into effect on January 1, 2014, RULLCA replaces the Beverly-Killea Limited…more

Fiduciary Duty, LLC, Operating Agreements, RULLCA

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Paul Cowie

Cyberattacks a mounting challenge for employers

In a recent panel discussion, one of the speakers was a so-called "ethical hacker" - a hacker-turned-protector of employers' confidential information. As someone at the forefront of cyberattacks, the ethical hacker's opinion was…more

Cyber Attacks, Cybersecurity, Data Protection, Hackers, Notice Requirements

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Tyler Cunningham

California Supreme Court Resolves Split Over Accrual Rules for Unfair Competition Claims

The California Supreme Court has offered hope to plaintiffs facing statute of limitations problems under California’s Unfair Competition Law, holding that special rules for calculating accrual dates for so-called “continuing…more

Cause of Action Accrual, Continuing Wrongs, Continuous Accrual Doctrine, Discovery, Last Element Rule

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Aytan Dahukey

CMS Announces Participants in Bundled Payments for Care Improvement Initiative

The Centers for Medicare & Medicaid Services (CMS) recently announced that over 500 organizations will begin participating in the Bundled Payments for Care Improvement initiative. The large number of participating organizations…more

ACOs, Bundled Payments, CMS, Medicaid, Medicare

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Carrie H. Darling

Public Companies Should Immediately Review Their Peer Groups Used in Executive Compensation Decisions Based on ISS's New Peer Group Selection Guidance and Notify ISS of Any Changes by December 21

Public companies should immediately review their peer group and Global Industry Classification Standard (“GICS”) codes, for purposes of executive compensation in light of the new Institutional Shareholder Services (“ISS”)…more

Executive Compensation, GICS, ISS

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Curtis Dombek

Compliance Issues with the New SEC Reporting and Disclosure Requirements Under the Iran Threat Reduction and Syria Human Rights Act of 2012

Originally published in Securities Regulation & Law Report on December 12, 2012. In August 2012, the Iran Threat Reduction and Syria Human Rights Act of 2012 (‘‘ITRSHRA’’) was passed to expand U.S. sanctions against Iran…more

Disclosure Requirements, Iran Sanctions, Iran Threat Reduction and Syria Human Rights Act, Oil & Gas, Petroleum

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David Douglass

Ninth Circuit Off-Label Marketing Decision Suggests More Prosecutions Will Be Coming

The Ninth Circuit has reopened a door for off-label marketing prosecutions, and it is important to review your compliance and risk management programs in light of this recent decision. Last December, the pharmaceutical and…more

First Amendment, Marketing, Medical Devices, Off-Label Promotion, Pharmaceutical

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Jennifer Driscoll-Chippendale

Comcast v. Behrend Sets a Higher Bar for Class Certification

On March 27, 2013, the U.S. Supreme Court continued its recent trend of imposing more stringent standards for class certification in Comcast Corporation v. Behrend, 569 U.S. ___ (2013). At issue was whether the proponents of…more

Class Action, Class Certification, Comcast v. Behrend, Damages, Rule 23

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Taraneh Fard

United States Supreme Court Declines to Apply the "Discovery Rule" to Extend the Five-Year Statute of Limitations for SEC Punitive Fraud Enforcement Actions

In Gabelli v. Securities & Exchange Commission, No. 11-1274, 2013 WL 691002 (U.S. Feb. 27, 2013), the United States Supreme Court, in a unanimous opinion by Chief Justice Roberts, held that the five-year statute of limitations…more

Discovery Rule, Fraud, Gabelli v SEC, Investment Advisers Act of 1940, SCOTUS

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Alan Feld

Fifth Circuit Expected To Issue Landmark Ruling Concerning Recognition of Foreign Bankruptcy Proceedings Contrary to US Public Policy

In a widely followed dispute, the Fifth Circuit Court of Appeals will soon render a decision on the appeal of a Texas Bankruptcy Court’s refusal to recognize non-debtor third party releases in the Mexican reorganization…more

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Gregg Fisch

Federal Jury Finds Executive Recruiter Guilty Stealing Trade Secrets From Former Employer In Order to Start Competing Business

On April 24, 2013, a federal jury in the Northern District of California found former Korn/Ferry International corporate executive recruiter, David Nosal, guilty on six counts of conspiracy, stealing trade secrets, and…more

CFAA, Jury Trial, Trade Secrets

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Robert S. Friedman

Personal Jurisdiction From E-Contacts Remains An Unpredictable Issue

Originally published in the New York Law Journal on February 25, 2013. Advances in technology continue to have an interesting and quixotic effect on the way in which courts grapple with personal jurisdiction. Commercial…more

Deutsche Bank, Internet, Jurisdiction, Personal Jurisdiction

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David Gallacher

"Buy American" Compliance Tips

1. There is no single “Buy American” requirement – there are numerous statutes with differing requirements. Make sure you know which one applies…more

Buy American Act, Compliance, DOD, Foreign-Made Goods, Free Trade Agreement

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Harris Gao

SIPO's Draft Measures on Service Invention

On November 12, the State Intellectual Property Office (SIPO) released the Draft Measures on Service Invention«????????(?????)»(the “Draft Measures”) for public comments. Generally speaking, the Draft Measures enhance the rights…more

Inventions, Patents, SIPO

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David R. Garcia

Challenge To Alleged Restraints On Baseball And Hockey Programming Survive Motion To Dismiss And Advance To The Next Round Of Litigation

Have you ever been away from home when your favorite baseball or hockey team is playing an important game? Ever wished you could watch that game, and just that game, live while you are on the road? If plaintiffs in Laumann v…more

Comcast, DirectTV, NHL, RSNs, Sherman Act

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Keith Garner

Utility Pole Not A Point Source Under The Clean Water Act

Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with the Clean Water Act…more

Clean Water Act, NPDES, Point Sources, RCRA, Utility Poles

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Keith Gercken

New IRS Regulations Regarding Noncompensatory Partnership Options Effective Immediately

On February 4th, the IRS issued final and further proposed regulations regarding noncompensatory partnership options, effective immediately. Overview - A “noncompensatory partnership option” is any contractual right…more

Convertabile Equity, IRS, Non-Compensatory Partnership Options

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Jason Guyser

Plaintiffs Must Offer "Significant Proof" Of A Common Policy Or Practice To Satisfy Commonality Under Rule 23 Post-Dukes

On January 28, 2013, Hon. George King of the United States District Court for the Central District of California issued an order in Pedroza v. PetSmart, Inc. denying class certification of exempt misclassification claims brought…more

Class Action, Class Certification, Commonality, Exempt-Employees, Misclassification

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Melanie Hamilton

California Supreme Court Holds That Proof That Employer Would Have Made Same Employment Decision Absent Discrimination Precludes Award Of Damages, Backpay, Or Reinstatement

On February 7, 2013, the California Supreme Court held that where a plaintiff proves that unlawful discrimination in violation of the Fair Employment and Housing Act ("FEHA") was a substantial factor motivating her termination,…more

Attorney's Fees, Back Pay, Damages, Declaratory Relief, Discrimination

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Bram Hanono

Ninth Circuit Holds that Federal Securities Laws Preempt California Labor Code's Ban on Forced Patronage at Brokerage Firms

In McDaniel v. Wells Fargo Investments, LLC, Nos. 11-17017, 11-55859, 11-55943, 11-55958, 2013 WL 1405949 (9th Cir. Apr. 9, 2013), the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of four class…more

Broker-Dealer, Brokers, Coerced Patronage, Insider Trading, Preemption

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Michael Hansen

Bill Introduced to Restore Cities' Ability to Require Affordable Housing

On February 22, California State Assembly Member Toni Atkins, D-San Diego, introduced a bill, AB 1229, to restore the ability of California cities and counties to require affordable housing as part of market-rate housing…more

Affordable Housing, Land Developers, Palmer v City of LA, Proposed Legislation

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Kathryn Hines

Path/FTC Settlement - Much More Than A Slap On The Wrist

On February 1, 2012, “smart journal” application provider, Path, Inc. (“Path”) agreed to settle Federal Trade Commission (“FTC”) charges that it deceived consumers and improperly collected personal information in violation of…more

App Developers, COPPA, Data Collection, FTC, Mobile Apps

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Rebecca R. Hirschklau

Reminder: New York State Wage Theft Prevention Act Notice Requirements

The New York State Wage Theft Prevention Act (“WTPA”) is still in effect, which means that the February 1, 2013 deadline to provide written notice to employees is fast approaching. Pursuant to the WTPA, New York employers must…more

Hiring & Firing, Notice Requirements, Wage Theft Prevention Act, Written Notice

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Whitney Hodges

What Will It Cost for California to Save the World? California Conducts its First Greenhouse Gas Cap-and-Trade Auction

The landmark Global Warming Solutions Act of 2006 (“AB 32”) tasked the California Air Resources Board (“ARB”) with reducing greenhouse gas (“GHG”) emissions to 1990 levels by 2020. In adopting a scoping plan assembling a number…more

Cap-and-Trade, CARB, GHG Auction, Greenhouse Gas Emissions

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Rachel Tarko Hudson

California AG to Begin Enforcing Privacy Law Against App Developers - $2500-per-Download Fines

Mobile app developers must now conspicuously post and follow privacy policies just like websites and other commercial online services according to California Attorney General Kamala Harris. On October 30, the Attorney General’s…more

Mobile Apps, Online Privacy Protection Act, Privacy Policy

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John Hynes

Sixth Circuit: FERA False Claims Act Amendment Applies Retroactively to Cases Pending as of June 7, 2008

On November 2, 2012, the Sixth Circuit held that a 2009 amendment Congress made to the liability provisions of the False Claims Act ("FCA") applies retroactively to civil FCA cases pending as of June 7, 2008. U.S. ex rel…more

False Claims Act, FERA, FERA Retroactivity Clause

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Gina Ilardi

FTC Updates To Online Privacy Acts, COPPA And VPPA

The Children's Online Privacy Protection Act (“COPPA”) was enacted to place parents in control over what information is collected, used and disclosed from young children online. COPPA applies to operators of commercial websites…more

Consent, COPPA, Data Collection, Data Protection, FTC

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Mark Jensen

No Knowledge, but Hints of Omissions in the Allianz FCPA Settlement

On December 17, 2012, the Securities and Exchange Commission (“SEC”) announced a settlement under the U.S. Foreign Corrupt Practices Act (“FCPA”) with Allianz SE (“Allianz”), the insurance company based in Germany, resulting in…more

Allianz, Books & Records, Bribery, Compliance, Disgorgement

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Meredith Jones-McKeown

Developers May Require That Construction Defect Disputes Be Resolved Through Arbitration

The California Supreme Court recently ruled that developers – by including an arbitration provision under the Federal Arbitration Act (FAA) in Homeowners’ Association Covenants, Conditions and Restrictions (“CC&R’s”) – may…more

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Thomas R. Kaufman

New Appellate Decision Applies Brinker to Require Certification of Certain Meal and Rest Claims

On Friday afternoon, the Fourth Appellate District, Division 3 (Orange County) decided Faulkinbury v. Boyd & Associates (Faulkinbury II). This was a meal period, rest period, and overtime class certification decision in which…more

Brinker, Class Action, Class Certification, Over-Time, Rest and Meal Break

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Danielle Kennedy

Judge Rules In Favor Of Stockton And Accepts Chapter 9 Petition

Round one of the fight between the City of Stockton, California and its creditors is finally over. On April 1, 2013, Bankruptcy Judge Christopher M. Klein held that Stockton satisfied the eligibility requirements for a Chapter 9…more

Bonds, CalPERS, Chapter 9, City of Stockton, Creditors

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Eugene Kim

Lenders Beware -- Fifth Circuit has lowered the bar for cramdown plan confirmation

In a recent Fifth Circuit decision, Western Real Estate Equities, LLC v. Village at Camp Bowie I, L.P., No. 12-10271 (5th Cir. 2013), the court held that the acceptance vote from a minimally and “artificially impaired” class of…more

Artificial Impairment, Chapter 11, Cramdown, Debtors, Lenders

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Michelle Kim

Supreme Court Hears Arguments on "Pay for Delay" Agreements

On March 25, 2012, the Supreme Court heard oral argument on the legality of “reverse payment” or “pay for delay” agreements between brand-name and generic drug manufacturers…more

FTC, Generic Drugs, Hatch-Waxman, Patents, Pay-For-Delay

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Sean Kirby

New York City Council Passes Act Requiring Mandatory Paid Sick Leave

On May 8, 2013, the New York City Council, by a 45-3 vote, passed the New York City Earned Sick Time Act which will require employers with 20 or more employees to provide paid sick leave to their employees (the “Sick Leave…more

Medical Leave, New Legislation, Notice Requirements, Paid Leave

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Eric Klein

CMS Announces Participants in Bundled Payments for Care Improvement Initiative

The Centers for Medicare & Medicaid Services (CMS) recently announced that over 500 organizations will begin participating in the Bundled Payments for Care Improvement initiative. The large number of participating organizations…more

ACOs, Bundled Payments, CMS, Medicaid, Medicare

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Aaron Kleven

Bankrupt Municipality May Reduce Retiree Benefits

The bankruptcy of the largest U.S. city to file a chapter 9 bankruptcy petition has yielded a decision with serious implications for municipal creditors. Specifically, the United States Bankruptcy Court for the Eastern District…more

Chapter 11, Chapter 9, Contracts Clause, Creditors, Employee Benefits

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Becky Koblitz

MOFCOM Requests Public Comments on Draft Provisions Related to Remedies Imposed in Conditional Approvals

Since the Anti-monopoly Law (“AML”) has come into effect in August 2008, MOFCOM has issued 16 conditional approvals requiring certain structural or behavioral remedies in order to prevent the anticompetitive consequences that,…more

Anti-Monopoly, China, Conditional Approvals, MOFCOM, Sanctions

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Edwin Komen

BONDing With NPE's - The requirement for security for costs or expenses under Section 1030 of the California Code of Civil Procedure

A little used and often overlooked provision of the California Code of Civil Procedure recently played an important role in three recent cases brought by AF Holdings LLC, a foreign entity formed under the laws of the Federation…more

BitTorrent, Bonds, Copyright, Infringement, Non-Practicing Entities

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Steven Kramer

United States Supreme Court Holds that Class Action Securities Fraud Plaintiffs Need Not Prove the Materiality of the Alleged False Statements or Omissions to Support Certification of a Class, Resolving Circuit Split

In Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, No. 11-1085, ___ WL ______ (U.S. Feb. 27, 2013), the United States Supreme Court affirmed the decision of the United States Court of Appeals for the Ninth Circuit…more

Amgen Inc. v Connecticut Retirement Plans, Class Action, Class Certification, Fraud-on-the-Market, SCOTUS

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Anthony C. Kuhlmann

Standards of Review: Implications for Patent Challengers

Originally published in Life Sciences Law & Industry Report on 11/30/2012. The standard of review is frequently cited but often overlooked as being outcome-determinative in patent cases. A recent trio of decisions by the…more

Patents, Standard of Review, USPTO

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Lydia Lake

California Commercial Building Owners Must Comply With New Energy Use Disclosure Rules Commencing July 1, 2013

The long-awaited energy use disclosure requirements, first enacted as AB 1103 (Saldana) in 2007 (codified as California Public Resources Code, §25402.10), are finally effective. Commencing July 1, 2013, owners of commercial,…more

Building Standards, Commercial Property Owners, Disclosure Requirements, Energy Consumption, Energy Use Disclosure Requirements

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John M. Landry

Second Circuit Reverses Class Certification Order, Holding That a Clearing Broker's Alleged Knowledge of Fraud Against Shareholders, Absence Direct Involvement, Is Insufficient to Create a Duty of Disclosure

In Levitt v. J.P. Morgan Securities, Inc., No. 10-4596, 2013 WL 1007678 (2d Cir. Mar. 15, 2013), the United States Court of Appeals for the Second Circuit reversed a district court order certifying a class of shareholder fraud…more

Bear Sterns, Brokers, Class Action, Class Certification, Disclosure Requirements

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Michael Lauter

Claims Trading From The Inside Out: Ninth Circuit BAP Holds That A Non-Insider Claimant's Vote On A Plan Is Not Discounted Merely Because The Claimant Purchased Its Claim From An Insider

In an unpublished decision in In re The Village at Lakeridge, LLC, BAP Nos. NV-12-1456 and NV-12-1474 (B.A.P. 9th Cir. Apr. 5, 2013), the United States Bankruptcy Appellate Panel of the Ninth Circuit held that a vote on a plan…more

Debtors, Non-Insider Claimant, Transfers

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Louis Lehot

Fourth Quarter 2012

We are pleased to make available to you our quarterly update on dealmaking market trends and legal developments for Fourth Quarter 2012…more

Capital Markets, Fundraisers, Nasdaq, NYSE, Private Equity

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Russell Leu

Employers Beware - Newly Issued Judicial Interpretation Resolves Ambiguity Under The Criminal Law For Failure To Pay Wages

Employers in China who intentionally default on making payment to their workers beware. It is no coincidence that China's People's Supreme Court issued a Judicial Interpretation on January 22, 2013, made effective on January 23,…more

China, Criminal Prosecution, Failure To Pay, Wages

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Malika Levarlet

Higher Filing Thresholds for HSR Act Premerger Notifications Effective February 11, 2013

Higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 became effective on February 11, 2013. The filing thresholds are revised annually, based on the change in gross national…more

FTC, Hart-Scott-Rodino Act, Interlocking Directorate, Premerger Notifications, Size of Persons Test

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Danielle Levine

Federal Jury Finds Executive Recruiter Guilty Stealing Trade Secrets From Former Employer In Order to Start Competing Business

On April 24, 2013, a federal jury in the Northern District of California found former Korn/Ferry International corporate executive recruiter, David Nosal, guilty on six counts of conspiracy, stealing trade secrets, and…more

CFAA, Jury Trial, Trade Secrets

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Lauren Lewis

New IRS Regulations Regarding Noncompensatory Partnership Options Effective Immediately

On February 4th, the IRS issued final and further proposed regulations regarding noncompensatory partnership options, effective immediately. Overview - A “noncompensatory partnership option” is any contractual right…more

Convertabile Equity, IRS, Non-Compensatory Partnership Options

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Lisa Lewis

N.Y. Minimum Wage Changes Ahead

On Friday, March 29th, New York State passed the 2013-14 budget. The budget includes, among other things, a significant increase to the state’s minimum wage over the next two years. Pursuant to the budget, on December 31, 2013,…more

Minimum Wage

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Gloria Li

Pilot Development of Cross-border RMB Loans in Qianhai District

The first batch of cross-border RMB loan agreements were signed on January 28, 2013. A total of 15 lenders, including HSBC Holding Plc and Industrial & Commercial Banks of China (Asia) Ltd., will provide about RMB 2 billion…more

China, Cross-Border Transactions, Lenders, RMB Loans

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Yueting Liang

NASDAQ Listed-Issuers Subject to New Rules Relating to Disclosure of Non-compliance with Listing Standards

Certain NASDAQ rules and interpretive material relating to the disclosure requirements surrounding a listed issuer’s non-compliance with the NASDAQ’s listing standards were amended effective December 3, 2012. Under the amended…more

Listing Standards, Nasdaq

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Dawn Lurie

America's Most Complicated Form Is Updated

On Friday March 8, 2013, the U.S. Citizenship and Immigration Services (USCIS) rolled out a brand new version of the Form I-9, Employment Eligibility Verification Form, revamping America’s most complicated one page form into a…more

Eligibility, Hiring & Firing, I-9, USCIS

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Scott Maberry

Streamlining the System: More Baby Steps Toward Reducing Export Compliance Burdens

Since 2011, President Barack Obama’s administration has actively pursued export control reform designed to reduce the regulatory burdens on U.S. companies and enhance U.S. national security (as reported here). On March 7, 2013,…more

Barack Obama, Commerce Control List, Compliance, Executive Orders, Export Administration Regulations

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Robert Magielnicki

Higher Filing Thresholds for HSR Act Premerger Notifications Effective February 11, 2013

Higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 became effective on February 11, 2013. The filing thresholds are revised annually, based on the change in gross national…more

FTC, Hart-Scott-Rodino Act, Interlocking Directorate, Premerger Notifications, Size of Persons Test

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Seth Mailhot

Thoughts on Regulatory Constraints of Business Models

I am often called upon to address the nature of how regulatory controls may apply to the organization of healthcare companies in their ability to create, deliver, and capture value (their ‘business models’). While no summation…more

Business Development, FDA, Healthcare, HIPAA, HITECH

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Gabriel Matus

U.S. Court of Appeals (2nd Circuit) Orders Argentina To Submit Proposal For Alternative Payment Plan To Avoid Debt Default... Again

On March 1, 2013, the U.S. Court of Appeals for the Second Circuit ordered Argentina to submit its proposal for the terms on which it is prepared to make payment on approximately $1.3 billion of unpaid debt obligations stemming…more

Bonds, Default, NML Capital Ltd, Vulture Fund

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Thad McBride

Census Changes Foreign Trade Regulations: New Filing Requirements

On Thursday, March 14, the Census Bureau published a final rule (available here) implementing changes to the Foreign Trade Regulations (FTR), 15 C.F.R. Part 30. The final rule includes long-awaited revisions to the…more

Automated Export System, Census Bureau, Exports, Foreign Trade Regulations, Imports

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Amy McEvoy

Considerations For International Clients Who Intend to Buy A Home In the U.S.

International buyers invested $82.5 billion in U.S. residential real estate (4.8% of total U.S. sales) according to the most recent survey conducted by the National Association of Realtors for the 12 month period ending with…more

Estate Tax, International Investments, Real Estate Market

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James L. McGinnis

Latest LCD Criminal Conviction - Stephen Leung Of AUO Convicted On Retrial

After a 3-week trial and less than 24 hours of deliberation, a federal jury in San Francisco convicted Mr. Stephen Leung of AUO of one felony count of price-fixing in violation of Section 1 of the Sherman Act. He was charged…more

Criminal Prosecution, DOJ, Felonies, Price-Fixing, Sherman Act

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Mark McGrath

Transfer $8 Million Out Of Accounts In New York? That Action Alone Is Not Sufficient To Establish Personal Jurisdiction

In Henkel v. Masiero, Index No. 650425/2012 (N.Y. Sup. Ct., N.Y. Cnty. Mar. 18, 2013) (the “Opinion”), the Supreme Court (J. Bransten) granted the defendants’ motion to dismiss for lack of personal jurisdiction on the grounds…more

HSBC, Money Transfer, Personal Jurisdiction

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Adam McNeile

Student Loans: Nondischargeability Questioned in Seventh Circuit and Beyond

Conventional wisdom says that it is nearly impossible to obtain a discharge of student loan debt in bankruptcy. Indeed, Section 523(a)(8) expressly excepts student loans from discharge, unless the exception of such indebtedness…more

Dischargeable Debts, Loans, Proposed Legislation, Student Loans

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Reed Mercado

Lenders Beware -- California decision may ignite next wave of lender liability litigation

In a recent decision from the California Court of Appeals entitled Jolley v. Chase Home Finance, LLC, the Court severely curtailed lenders’ ability to dispose of lender liability claims on summary judgment, thereby adopting a…more

Borrowers, Default, Lender Liability, Lenders, Loan Modifications

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Alex Merritt

Utility Pole Not A Point Source Under The Clean Water Act

Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with the Clean Water Act…more

Clean Water Act, NPDES, Point Sources, RCRA, Utility Poles

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Lynsey Mitchell

CMS Announces Participants in Bundled Payments for Care Improvement Initiative

The Centers for Medicare & Medicaid Services (CMS) recently announced that over 500 organizations will begin participating in the Bundled Payments for Care Improvement initiative. The large number of participating organizations…more

ACOs, Bundled Payments, CMS, Medicaid, Medicare

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Dorna Moini

Cyberattacks a mounting challenge for employers

In a recent panel discussion, one of the speakers was a so-called "ethical hacker" - a hacker-turned-protector of employers' confidential information. As someone at the forefront of cyberattacks, the ethical hacker's opinion was…more

Cyber Attacks, Cybersecurity, Data Protection, Hackers, Notice Requirements

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Alejandro E. Moreno

California Court of Appeal Recognizes That Wide Discretion Granted to a Board of Directors Under the Business Judgment Rule May Be Tempered By a Corporation's Private Contractual Obligations to Its Shareholders/Members

In Scheenstra v. California Dairies, Inc., No. F062768, ___ Cal. Rptr. 3d ___, 2013 WL 363148 (Cal. App. 5th Dist. Jan. 30, 2013), the California Court of Appeal, Fifth District, affirmed the judgment of the California Superior…more

Board of Directors, Breach of Contract, Business Judgment Rule, Dairy Farmers, Fiduciary Duty

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Anthony Moshirnia

Siemens Whistleblower Complaint Underscores Need for "Top-Down" Anti-Corruption Compliance

In 2008, Siemens AG paid $800 million to settle charges that it had violated the Foreign Corrupt Practices Act, which generally prohibits bribery of foreign officials for the purpose of obtaining or retaining business. That…more

Anti-Corruption, Bribery, Compliance, Due Diligence, FCPA

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Jonathan Moss

Second Circuit Reverses Class Certification Order, Holding That a Clearing Broker's Alleged Knowledge of Fraud Against Shareholders, Absence Direct Involvement, Is Insufficient to Create a Duty of Disclosure

In Levitt v. J.P. Morgan Securities, Inc., No. 10-4596, 2013 WL 1007678 (2d Cir. Mar. 15, 2013), the United States Court of Appeals for the Second Circuit reversed a district court order certifying a class of shareholder fraud…more

Bear Sterns, Brokers, Class Action, Class Certification, Disclosure Requirements

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Amrita Nangiana

Delaware and California Courts Split as to Whether a Reverse Triangular Merger Results In an Assignment By Operation of Law, Creating Potential Pitfalls for Delaware and Other Foreign Corporations Located in California

In Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, C.A. No. 5589-VCP, 2013 WL 911118 (Del. Ch. Feb. 22, 2013, rev. Mar. 8, 2013), the Delaware Court of Chancery held that a reverse triangular merger does not result in an…more

Assignments, Foreign Corporations, Internal Affairs Doctrine, Reverse Triangular Mergers, Third-Party

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Thomas Nevins

California Court of Appeal Allows Injunction Under Unfair Competition Law To Prevent Horizontal Competitor From Diverting Business Through Unlawful Means

For many years, California’s Unfair Competition Law had no traditional standing requirements. But since the passage of Proposition 64 in 2004, standing has been required, and standing continues to be litigated regularly. In Law…more

Unfair Competition

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Eugene Ngai

CMS Announces Participants in Bundled Payments for Care Improvement Initiative

The Centers for Medicare & Medicaid Services (CMS) recently announced that over 500 organizations will begin participating in the Bundled Payments for Care Improvement initiative. The large number of participating organizations…more

ACOs, Bundled Payments, CMS, Medicaid, Medicare

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Cheryl Palmeri

Line in the Sand: Siemens Argentina Case Limits Personal Jurisdiction Under the FCPA

A New York federal district court judge has dismissed a Foreign Corrupt Practices Act (“FCPA”) claim against a former executive of Siemens, S.A. Argentina and Siemens Transportation Systems for lack of personal jurisdiction. …more

DOJ, FCPA, Minimum Contacts, Personal Jurisdiction, SEC

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Shannon Petersen

California Court Holds That Borrowers May Enjoin A Foreclosure If A Lender Fails To Meet Servicing Guidelines

In Pfeiffer v. Countrywide Home Loans, --- Cal.Rptr.3d ----, 2012 WL 6216039 (Dec. 13, 2012), mortgage borrowers filed a damages claim against a trustee for violating the federal Fair Debt Collection Practices Act (“FDCPA”) and…more

Borrowers, FDCPA, Foreclosure, Injunctions, Mortgages

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Kevin Puvalowski

Keep Sticking to the Four Corners - Extrinsic Evidence of Parties' Prior Conduct Cannot Alter the Interpretation of an Unambiguous Contract

In BDCM Fund Advisor, L.L.C. v. Zenni, No. 602116/08 (N.Y. Sup. Ct. Nov. 15, 2012), Judge Eileen Bransten granted a motion for partial summary judgment for the defendants/counterclaim-plaintiffs, James J. Zenni (“Zenni”) and his…more

BDCM Fund Advisor, Black Diamond Capital Holdings, Contract Interpretation, Membership Interest Redemption Agreement

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Mark Rackers

California Homeowner Bill of Rights: A New Mortgage Law For The New Year

The California Homeowner Bill of Rights (“HBR”) goes into effect on January 1, 2013. The HBR revamps California’s non-judicial foreclosure statutes granting borrowers additional rights. It was designed to correct perceived…more

Foreclosure, Homeowner Bill of Rights, Mortgages

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Eric Raphan

Second Circuit Rules that the FLSA Does Not Apply to Claims for Gap-Time Pay

In Lundy v. Catholic Health System of Long Island Inc., No. 12-1453 (2d Cir. Mar. 1, 2013), the Second Circuit Court of Appeals, resolving what had previously been an unsettled issue in the Circuit, held that the Fair Labor…more

FLSA, Gap Time, Minimum Wage, Over-Time, Pleading Standards

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Bora Rawcliffe

Pfizer FCPA Settlement Emphasizes the Importance of Robust Compliance Programs for the Healthcare Industry

The healthcare industry has been under increased SEC and DOJ scrutiny lately for potential FCPA violations. What has been described as an “industry sweep,” has focused primarily on medical device and pharmaceutical companies…more

Compliance, DOJ, Due Diligence, FCPA, Foreign Official

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Jeffrey Rector

Can California Cap and Trade if Brussels Stumbles?

Last week, the European Parliament rejected a proposal to reduce the quantity of greenhouse gas (GHG) emissions allowances in order to fix a supply-demand imbalance in the European Union Emissions Trading System (EU ETS). Some…more

Cap-and-Trade, EU, EU ETS, Greenhouse Gas Emissions

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Jennifer Redmond

Ninth Circuit Holds that Federal Securities Laws Preempt California Labor Code's Ban on Forced Patronage at Brokerage Firms

In McDaniel v. Wells Fargo Investments, LLC, Nos. 11-17017, 11-55859, 11-55943, 11-55958, 2013 WL 1405949 (9th Cir. Apr. 9, 2013), the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of four class…more

Broker-Dealer, Brokers, Coerced Patronage, Insider Trading, Preemption

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Peter Reichertz

FDA Issues Two Proposed Rules That Will Significantly Change Regulatory Requirements For Food Safety

The FDA Food Safety Modernization Act (FSMA), which was signed into law by President Obama on January 4, 2011, proposes the most sweeping reform of U.S. food safety laws in more than 70 years. As part of the changes introduced…more

FDA, Food Manufacturers, Food Safety, FSMA, Safety Precautions

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Matthew Richardson

FTB issues Notice to Retroactively Deny "Qualified Small Business Stock" Tax Benefits. Amended Returns Should be Filed.

A California appellate court recently held as unconstitutional the California statutes extending the benefits of selling “qualified small business stock” (QSBS) to California taxpayers. In Cutler v. Franchise Tax Board (2012)…more

Commerce Clause, Cutler v Franchise Tax Board, Discrimination, Franchise Tax Board, Income Taxes

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Matthew Riemer

Census Changes Foreign Trade Regulations: New Filing Requirements

On Thursday, March 14, the Census Bureau published a final rule (available here) implementing changes to the Foreign Trade Regulations (FTR), 15 C.F.R. Part 30. The final rule includes long-awaited revisions to the…more

Automated Export System, Census Bureau, Exports, Foreign Trade Regulations, Imports

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Kevin Rooney

Fourth Quarter 2012

We are pleased to make available to you our quarterly update on dealmaking market trends and legal developments for Fourth Quarter 2012…more

Capital Markets, Fundraisers, Nasdaq, NYSE, Private Equity

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Robert Rose

District Court Grants Motion to Compel Against SEC, Holding that "Facts" Are Not Work Product In SEC Confidential Witness Interviews

In a recent Securities & Exchange Commission (“SEC”) investigation, the SEC interviewed three persons who had proffer agreements with the SEC and United States Attorney. In a subsequent SEC enforcement action, a defendant served…more

Confidential Witnesses, Motion to Compel, SEC, Work Product Privilege

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James Rusk

Conveyance of Polluted Water Within River Involves No 'Discharge' Under Clean Water Act

The flow of polluted water from a concrete-lined portion of a river into a downstream portion of the same river does not involve a “discharge” for purposes of the Clean Water Act (“CWA”) and thus involves no CWA violation, the…more

Clean Water Act, Discharge of Pollutants, Los Angeles County Flood Control District, NPDES, Permits

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Bridget Russel

Ninth Circuit Applies Securities Litigation Uniform Standards Act to Affirm Dismissal of Section 17200 Class Action Involving Variable Life Insurance Policies

In Freeman Investments, LP v. Pacific Life Insurance Co., No. 09-55513, 2013 WL 11884 (9th Cir. Jan 2, 2013), the United States Court of Appeals for the Ninth Circuit held that the Securities Litigation Uniform Standards Act of…more

Breach of Contract, Class Action, Life Insurance, Misrepresentation, Omissions

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Robert Sahyan

The Ninth Circuit Holds that Bankruptcy Courts Have Authority to Recharacterize Debt as Equity

On April 30, 2013, the United States Court of Appeals for the Ninth Circuit held that the bankruptcy court has authority to recharacterize as equity, rather than debt, advances of funds made purportedly as a loan to the…more

Advances, Debt

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David Sands

Delaware and California Courts Split as to Whether a Reverse Triangular Merger Results In an Assignment By Operation of Law, Creating Potential Pitfalls for Delaware and Other Foreign Corporations Located in California

In Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, C.A. No. 5589-VCP, 2013 WL 911118 (Del. Ch. Feb. 22, 2013, rev. Mar. 8, 2013), the Delaware Court of Chancery held that a reverse triangular merger does not result in an…more

Assignments, Foreign Corporations, Internal Affairs Doctrine, Reverse Triangular Mergers, Third-Party

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Jason Schendel

New IRS Regulations Regarding Noncompensatory Partnership Options Effective Immediately

On February 4th, the IRS issued final and further proposed regulations regarding noncompensatory partnership options, effective immediately. Overview - A “noncompensatory partnership option” is any contractual right…more

Convertabile Equity, IRS, Non-Compensatory Partnership Options

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Gregory C. Schick

Changes in the Wind for Rule 10b5-1 Trading Plans?

On December 28, 2012, the Council of Institutional Investors (CII) submitted a letter to the Securities and Exchange Commission (SEC) requesting that the SEC implement rulemaking to impose new requirements with respect to Rule…more

10b5-1 Plans, CII, Enforcement Actions, Insider Trading, SEC

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Valentina Shenderovich

First Department Upholds Commercial Division Decision Striking Parties' Answer And Entering Default Judgment As A Sanction For Discovery Violations

In Suffolk P.E.T. Mgt., LLC v. Anand, 2013 NY Slip Op 02335 (First Dep’t April 4, 2013), the Appellate Division, First Department affirmed an Order by the Supreme Court, New York County Commercial Division (Bernard J. Fried, J.)…more

Default Judgment, Discovery, Document Requests, Evidence, Sanctions

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W. Bruce Shirk

Health Benefit Exchanges: False Claims Gold Mines?

Overview - The Affordable Care Act enables the establishment of Health Benefit Exchanges of several types, including (i) State-based, (ii) State-Federal partnerships and (iii) Federally Facilitated Exchanges. The purpose of…more

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Carren Shulman

Tribal Corporate Bankruptcy Petition Raises Issues of First Impression for Bankruptcy Court

On March 4, 2013, ‘SA’ NYU WA, Inc., a tribally-chartered corporation wholly owned by the Hualapai Indian Tribe, filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court, District of Arizona. This is a very…more

Chapter 11, Creditors, Debtors, Sovereign Immunity, Tribal Corporations

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Martin Smith

What Employers Need to Know About Healthcare Reform for 2013

As the end of 2012 approaches, we consider what a notable year it has been for the future of healthcare reform, starting with the United States Supreme Court’s decision to uphold key provisions of the Patient Protection and…more

Affordable Care Act, Employer Group Health Plans, Flexible Spending Accounts, Health Insurance, Health Insurance Exchanges

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Jonathan Sokolowsii

Proposed New York City Bill Would Ban Credit Checks from Hiring Process

On April 11, 2013, the New York City Council’s Committee on Civil Rights debated a proposed bill that would ban employers from using credit checks to evaluate prospective employees. The proposed bill, called the Stop Credit…more

Credit Checks, Discrimination, Hiring & Firing, Proposed Legislation

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Mona Solouki

In a Rarely-Seen Joint-Effort in the Competition Arena, the DOJ and the USPTO Unite in Issuing a Policy Statement on Remedies Involving Standard Essential Patents

On January 8, 2013 – less than a week after the Federal Trade Commission ("FTC") entered into a consent order with Google,[1] under which Google is generally banned from seeking injunctions on its F/RAND[2] -encumbered standard…more

DOJ, Exclusion Orders, FRAND, Google, Injunctions

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John Stigi

Ninth Circuit Holds that Federal Securities Laws Preempt California Labor Code's Ban on Forced Patronage at Brokerage Firms

In McDaniel v. Wells Fargo Investments, LLC, Nos. 11-17017, 11-55859, 11-55943, 11-55958, 2013 WL 1405949 (9th Cir. Apr. 9, 2013), the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of four class…more

Broker-Dealer, Brokers, Coerced Patronage, Insider Trading, Preemption

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Robert Surgeon

Knowingly Underbidding For Government Contract May Lead to False Claims Liability

Contractors usually assume that the statutory prohibition on submitting “false claims” refers to inflated invoices, phony change order costs, and the like. However the courts are giving the relevant statutes a broader meaning…more

Bids, False Claims Act, Fraudulent Inducement

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Douglas Svor

FCC Considers Proposal To Lift 25% Cap On Indirect Foreign Investment In Broadcast Licensees

In August 2012, the Coalition for Broadcast Investment (“CBI”), a group comprising national broadcast networks, radio and television station licensees, and community and consumer organizations, filed a letter with the FCC…more

Broadcasting, FCC, Foreign Investment, Licenses, Radio Stations

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Christine Swanick

Tribal Corporate Bankruptcy Petition Raises Issues of First Impression for Bankruptcy Court

On March 4, 2013, ‘SA’ NYU WA, Inc., a tribally-chartered corporation wholly owned by the Hualapai Indian Tribe, filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court, District of Arizona. This is a very…more

Chapter 11, Creditors, Debtors, Sovereign Immunity, Tribal Corporations

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Barbara Taylor

Navigating the Provider Self-Disclosure Protocol

Providers can voluntarily disclose potential fraud with respect to Federal health care programs — Medicare, Medicaid, and potentially private insurers to the extent Federal or state funds are involved — by following the Provider…more

Disclosure Requirements, DOJ, False Claims Act, Fraud, HHS

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Olivier F. Theard

What Will It Cost for California to Save the World? California Conducts its First Greenhouse Gas Cap-and-Trade Auction

The landmark Global Warming Solutions Act of 2006 (“AB 32”) tasked the California Air Resources Board (“ARB”) with reducing greenhouse gas (“GHG”) emissions to 1990 levels by 2020. In adopting a scoping plan assembling a number…more

Cap-and-Trade, CARB, GHG Auction, Greenhouse Gas Emissions

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John Tishler

SEC Freezes Assets and Brings Civil Charges against EB-5 Investor Visa Project

In the first SEC enforcement action of its kind, the SEC announced on February 8, 2013 that it had filed civil charges against, and received an emergency order to freeze assets of, the Intercontinental Regional Center Trust of…more

Due Diligence, EB-5, Foreign Investment, Immigrant Investment Visas, Injunctions

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Mathew Troughton

New Court Decision Clarifies Mechanic's Lien Valuation Statute

The amount of a mechanic’s lien in California is generally the lesser of: 1) the reasonable value of the work; or 2) the price agreed upon in the lien claimant’s contract. But does the same measure apply if a lien defendant was…more

Contract Price, Mechanics Lien, Valuation

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Franklin Turner

Playing Cards With a Government That Stacks the Deck - D.C. District Court Radically Expands The "Christian Doctrine" To Subcontracts

On March 30, 2013, the U.S. District Court for the District of Columbia issued a decision imposing certain socio-economic contract requirements on subcontractors operating hospitals associated with the University of Pittsburgh…more

Affirmative Action, Contract Interpretation, DOL, Healthcare, HMOs

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Robert Uram

Utility Pole Not A Point Source Under The Clean Water Act

Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with the Clean Water Act…more

Clean Water Act, NPDES, Point Sources, RCRA, Utility Poles

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Louis Victorino

What Does 2013 Have In Store for Government Contractors and Their Lawyers?

Originally published in the San Diego Business Journal on January 21-27. It has been noted, the more things change, the more they stay the same. In the world of Government Contracts Law, however, the more things change, the…more

Anti-Contractor Bias, Bid Protests, Competition, Compliance, Enforcement

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Randy Visser

What Will It Cost for California to Save the World? California Conducts its First Greenhouse Gas Cap-and-Trade Auction

The landmark Global Warming Solutions Act of 2006 (“AB 32”) tasked the California Air Resources Board (“ARB”) with reducing greenhouse gas (“GHG”) emissions to 1990 levels by 2020. In adopting a scoping plan assembling a number…more

Cap-and-Trade, CARB, GHG Auction, Greenhouse Gas Emissions

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Wilda Wahpepah

Tribal Corporate Bankruptcy Petition Raises Issues of First Impression for Bankruptcy Court

On March 4, 2013, ‘SA’ NYU WA, Inc., a tribally-chartered corporation wholly owned by the Hualapai Indian Tribe, filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court, District of Arizona. This is a very…more

Chapter 11, Creditors, Debtors, Sovereign Immunity, Tribal Corporations

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Brian Weimer

FCC Considers Proposal To Lift 25% Cap On Indirect Foreign Investment In Broadcast Licensees

In August 2012, the Coalition for Broadcast Investment (“CBI”), a group comprising national broadcast networks, radio and television station licensees, and community and consumer organizations, filed a letter with the FCC…more

Broadcasting, FCC, Foreign Investment, Licenses, Radio Stations

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Pamela Westhoff

California Commercial Building Owners Must Comply With New Energy Use Disclosure Rules Commencing July 1, 2013

The long-awaited energy use disclosure requirements, first enacted as AB 1103 (Saldana) in 2007 (codified as California Public Resources Code, §25402.10), are finally effective. Commencing July 1, 2013, owners of commercial,…more

Building Standards, Commercial Property Owners, Disclosure Requirements, Energy Consumption, Energy Use Disclosure Requirements

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Reid Whitten

$8 Million Penalty for Weak ITAR Compliance: How the Price of Maintenance Beats the Cost of Repair

On April, 30, 2013, Raytheon Company, a major military electronics and weapons manufacturer, agreed with the U.S. Department of State to pay $8 million in civil penalties and remedial expenditures to settle alleged violations of…more

Compliance, DTCC, ITAR, Maintenance, Penalties

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Blanka Wolfe

The Seventh Circuit Expands Scope of Absolute Priority Rule to Protect Creditors

In a recent decision, In re Castleton Plaza, LP, 2013 WL 537269 *1 (Feb. 14, 2013), the Seventh Circuit held that the absolute priority rule – which requires that creditors be paid in full before equity holders receive anything…more

Absolute Priority Rule, Creditors, Debtors, Reorganizations

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Sharon Xu

Supreme People Court's Interpretation on Employment Law Issues

Employers need be aware of a recent interpretation issued by the PRC Supreme Court which clarifies a number of employment issues related to service year, non-competition, amendment to employment contract and employment…more

China, Employee Transfers, Employment Contract, Foreign Workers, Non-Compete Agreements

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Kenneth Yood

CMS Announces Participants in Bundled Payments for Care Improvement Initiative

The Centers for Medicare & Medicaid Services (CMS) recently announced that over 500 organizations will begin participating in the Bundled Payments for Care Improvement initiative. The large number of participating organizations…more

ACOs, Bundled Payments, CMS, Medicaid, Medicare

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Kristy Young

Lenders Beware - Oral Statements may Trump Written Agreements

The California Supreme Court recently held that a borrower may rely upon oral promises to support a fraud claim against its lender even when such oral promises contradict the written agreement…more

Fraud, Integration Clauses, Lenders, Oral Contracts, Parol Evidence

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Aleah Yung

CMS Announces Participants in Bundled Payments for Care Improvement Initiative

The Centers for Medicare & Medicaid Services (CMS) recently announced that over 500 organizations will begin participating in the Bundled Payments for Care Improvement initiative. The large number of participating organizations…more

ACOs, Bundled Payments, CMS, Medicaid, Medicare

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Ling Zhang

"Actually, Someone Knows You are a Dog"-- the Chinese Regulation Efforts on Private Data Protection

Do you have privacy in the era of information? "On the Internet, nobody knows you're a dog." First published in The New Yorker on July 5, 1993, this widely known and recognized saying has been quoted many times to…more

China, Data Collection, Data Protection, Personally Identifiable Information

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