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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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Courts Still Searching for Sweet Spot in “Evaporated Cane Juice” Cases: Confusion Over Applicability of Primary Jurisdiction to ECJ Claims Continues

May 2014 was an active month for evaporated cane juice (“ECJ”) litigation in the U.S. District Court for the Northern District of California. Six courts issued opinions that involved the application of the primary jurisdiction…more

ECJ, FDA, Primary Jurisdiction Doctrine

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Trails-to-Rails-to-?: The Brandt Case and its Potential Impact on the Nation’s Trails

A recent Supreme Court case may have a far-reaching impact on many of the United States’ “rails-to-trails” biking and jogging paths. In March, the Supreme Court held in an 8-1 decision that rights of way granted to railroad…more

Brandt Irrevocable Trust v Us, Easements, Railroads, SCOTUS, Takings

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EB-5 Questions and Answers Series – What is the EB-5 Program?

Also known as “EB-5,” the Immigrant Investor Program was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under the pilot immigration program, first…more

EB-5, Foreign Investment, Green Cards, Immigrants, Investors

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The Times They Are A Changin' (Again): A How-To Guide Regarding Compliance With New FCC Regulations Mandating Prior Express Written Consent

The following fairly unremarkable scenario occurs numerous times every day in countless commercial settings nationwide: a consumer walks up to a cash register to pay for something and, during the course of that exchange, the…more

Compliance, E-SIGN, FCC, TCPA, Telemarketing

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Ninth Circuit Fumbles The Ball In Videogame Likeness Cases

Creating a new rule that gives videogames much more limited protection than other expressive works, the Ninth Circuit has ruled that realistically depicting college athletes in videogames showing them doing what they became…more

Athletes, Electronic Arts, First Amendment, NCAA, Right of Publicity

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New York’s Health Information Highway – SHIN-NY – Get Involved as it Gets Rolling

The Statewide Health Information Network of New York , also referred to as SHIN-NY, is a State-sponsored secure database network that is intended to house patient records, clinical data as well as other critical health care…more

Data Collection, Electronic Medical Records, Health Information Technologies, Medical Records, PHI

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In the wake of the California Supreme Court's Harris Decision, A FEHA Claimant Must Show Discrimination was a "Substantial Motivating Factor" and An Employer Waives its Mixed-Motive Defense by Failing to Assert It in Its Answer

It now should be clear to employers in California that the litigation rules are different as to what must be presented in discrimination lawsuits to succeed. Notably, just last week, in Alamo v. Practice Management Information…more

Adverse Employment Action, Causation, Discrimination, Employer Liability Issues, FEHA

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The Commercial Decision Reviews Arbitrations: Three Recent Decisions Clarify Standards For Actions Brought Pursuant To Article 75 of the CPLR

Several recent decisions by Commercial Division Justices, two of them affirmed by the First Department, have clarified the limitations and standards applied in actions brought pursuant to Article 75 of the CPLR. Article 75…more

Arbitration, CPLR

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Illinois Becomes The Fifth State To Enact So Called “Ban The Box” Law, Prohibiting Private Sector Employers From Asking About Criminal History

This past Monday, July 21, 2014, Illinois joined Hawaii, Massachusetts, Minnesota and Rhode Island as the fifth State to enact a so called “ban the box” law. Signed by the Governor, the law will take effect on January 1, 2015. …more

Ban the Box, Criminal Background Checks, Job Applicants

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Delaware Supreme Court Holds That a Minority Stockholder Has No Common Law Right to a Conflict-Free Board Decision Regarding the Repurchase of Shares

In Blaustein v. Lord Baltimore Capital Corp., No. 272, 2013, 2014 Del. LEXIS 30 (Del. Jan. 21, 2014), the Delaware Supreme Court held that a closely-held corporation’s directors owe no fiduciary duty to decide, free from…more

Covenant of Good Faith and Fair Dealing, Good Faith, Minority Shareholders, Repurchases, Shareholders' Agreements

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Common Sense Prevails Once Again: District Court FCA Ruling Serves As Reminder That Whistleblowers Need to Prove Recklessness Too

While multi-million dollar False Claims Act (FCA) settlements paid by Government contractors get the lion’s share of the press, those with an attentive eye will have noticed a recent steady stream of more “contractor friendly”…more

Contractors, Discovery, False Claims Act, Summary Judgment, Whistleblowers

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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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United States Supreme Court Agrees to Hear Two Cases That Could Potentially Deter Non-Practicing Entities From Filing Frivolous Suits

On October 1, 2013, the United States Supreme Court agreed to review the “exceptional” case standard for awarding attorneys’ fees in two separate patent-infringement cases. Both cases relate to patentees who are non-practicing…more

Attorney's Fees, Certiorari, Frivolous Lawsuits, Infringement, Non-Practicing Entities

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What’s New Out There? Highlights from the April 2014 Federal Register

This month’s Federal Register Updates include four important changes that will impact the day-to-day activities of Government Contractors and Agencies alike. The first, a final DFARS rule on Performance-Based Payments, provides…more

Barack Obama, Conflicts of Interest, DFARS, Equal Pay, Executive Orders

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Second Circuit Holds that Allegations of Direct Fraudulent Representations Are Necessary for Market Manipulation Claims Under Section 10(b) and Rule 10b-5

In Fezzani v. Bear, Stearns & Co., Inc., No. 09-4414-cv, 2013 WL 1876534 (2d Cir. May 7, 2013), a 2-1 majority of a panel of the United States Court of Appeals for the Second Circuit held that plaintiffs’ failure to plead direct…more

Broker-Dealer, Fraud, Liability, Misrepresentation, Respondeat Superior

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Seventh Circuit Affirms Dismissal of Motorola’s LCD Antitrust Claims Based on Foreign Purchases

On March 27, in the latest major development in Motorola Mobility’s lawsuit alleging price-fixing of liquid crystal display modules (LCDs), a three-judge panel of the Seventh Circuit, including renowned antitrust jurist Judge…more

Antitrust Litigation, Motorola, Price-Fixing

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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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The FTC Continues Its Focus on the Mobile Arena

The Federal Trade Commission has recently focused its consumer protection efforts on the mobile arena, and particularly video game companies operating in that arena. Early last year, the FTC issued several staff reports…more

Apple, COPPA, FTC, Gaming, Mobile Apps

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Products or Services That Cannot Be Sold To California Minors Cannot Be Advertised To Them Online, Either

California Governor Jerry Brown recently signed into law S.B. 568, the first bill of its kind in the nation. S.B. 568 enacts two new statutes under the title “Privacy Rights for California Minors in the Digital World.” The…more

Advertising, Children's Products, COPPA, Minors

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OIG Investigations (Without Subpoena Bells and Whistles) Coming to a Program Near You

The Inspector General Act of 1978 aimed to “consolidate existing auditing and investigative resources to more effectively combat fraud, abuse, waste and mismanagement in the programs and operations of [the executive branch].” To…more

Compliance, DOD, Enforcement, Fraud, Investigations

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Passage of Increase in California’s Minimum Wage Could Impact More Than Just Hourly, Minimum Wage Workers

On September 25, 2013, California Governor, Jerry Brown, signed a bill (Assembly Bill No. 10) that will raise the hourly minimum wage up 25% over the next few years. First, the minimum wage will increase in less than one year,…more

Exempt-Employees, Jerry Brown, Minimum Wage, Misclassification, New Legislation

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CMS Care Coordination Payments – A Boon to Doctors and Patients but Patient Participation Will be Essential

As the Affordable Care Act continues to mature, we are seeing new efforts by the Obama administration to incentivize care coordination across a spectrum of services provided to Medicare Fee-for-Service (FFS) patients. A New…more

CMS, Fee-for-Service, Healthcare, Healthcare Reform, Medicare

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Preexisting Management Plan Not a “Mitigation Measure” for Purposes of CEQA Exemption

A preexisting management plan intended to minimize environmental effects of recurring facility operations and events is not a “proposed mitigation measure” for purposes of determining whether an event qualifies for a CEQA…more

CEQA, Environmental Claims, Environmental Liability, Environmental Policies

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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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Are Circuit Courts of Appeals Split as to the Preclusive Impact Accorded to Prior Trademark Trial and Appeal Board Decisions?

Battles between brand owners are frequently fought in the United States in two forums: the Trademark Trial and Appeal Board and federal district court. While the TTAB is limited to determining a party’s right to register its…more

Brand, Registration, Trademark Litigation, Trademark Trial and Appeal Board, Trademarks

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GAO Dismisses Protest Alleging Noncompliance with E-Verify Requirements

In Ashland Sales & Service Co., B-408969 (Nov. 1, 2013), the Government Accountability Office (“GAO”) dismissed a protest by Ashland Sales & Service Co. (“Ashland”) alleging that a contract for lightweight jackets was improperly…more

E-Verify, GAO, USCIS

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So Your Employer Is Being Acquired? Consideration for the management team in a sale to a private equity buyer

Being acquired by a private equity firm is both a stressful and exciting time for the management team of any business. In addition to your traditional duties of actually running a successful company, you will also be called on…more

Acquisitions, Corporate Governance, Private Equity

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Monetary Threshold For Commencing Cases In Manhattan’s Commercial Division Raised to $500,000

New York court officials have approved an amendment to Section 202.70(a) of the Commercial Division Rules, which will increase in the minimum monetary threshold of $150,000 to $500,000 for the commencement of lawsuits to be…more

Business Litigation, Threshhold Requirements

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California Court of Appeal Makes It Easier to Add Business Owners to a Judgment

Individuals form limited partnerships, limited liability companies and corporations to limit their personal liability. These legal structures encourage entrepreneurs to take risks. The California Court of Appeal, Second…more

Alter Ego, Business Ownership, Choice of Entity, Limited Liability Companies, Limited Liability Partnerships

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Preparing for the Affordable Care Act Employer Mandate

As of January 1, 2015, the Patient Protection and Affordable Care Act (ACA--otherwise known as Obamacare) begins to impose certain health coverage requirements on employers who have at least 50 employees. Even though its…more

Affordable Care Act, Corporate Counsel, Delays, Employee Benefits, Employer Mandates

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Was AdChoices Just Flipped the (Twitter) Bird on Behavioral Targeting?

It appears that users won’t be seeing the blue AdChoices triangle icon on Twitter anytime soon. AdChoices and its blue triangle icon are the work of the Digital Advertising Alliance (a consortium of trade groups) to provide…more

AdChoices Icon, Behavioral Advertising, Digital Advertising Alliance, Facebook, Twitter

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Dang v. San Francisco Forty Niners - Consumers can challenge Reebok's exclusive NFL apparel deal based just on a market of garments bearing NFL team logos

On August 2, 2013, District Judge Edward J. Davila denied a motion to dismiss antitrust claims brought by consumers of NFL apparel against Reebok and the NFL in Dang v. San Francisco Forty Niners, Case No. 5:12-CV-5481 (N.D…more

Cartwright Act, Class Action, Fashion Industry, Licensing Rules, Logos

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Attorney-Client Privilege Protection in Internal Investigations Upheld by D.C. Circuit: Good News for Corporate Counsel

In a much-anticipated decision, the D.C. Circuit clarified the general test for the applicability of the attorney-client privilege in internal investigations. In re Kellogg Brown & Root, Inc., 14-5505, 2014 WL 2895939 (D.C. Cir…more

Attorney-Client Privilege, False Claims Act, Internal Investigations, Kellogg Brown & Root, Work-Product Doctrine

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Adopting Thresholds of Significance Under CEQA Not Subject to CEQA Review

In California Building Industry Association v. Bay Area Air Quality Management District (CBIA) (Case No. A135335 (Cal. Ct. App. 1st, August 13, 2013)), the First District Court of Appeal overturned the trial court and held that…more

Air Pollution, CEQA, Environmental Policies, Environmental Review

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Sovereign Litigation in Latin America: Top Five Issues To Think of When Doing Business With a Latin American Country

“We are in the soup” exclaimed, federal judge Thomas Griesa, referring to Argentina allegedly defaulting on its sovereign bonds. And so we are. According to bondholders, on July 30 of 2014, Argentina defaulted on its…more

Bonds, Corporate Counsel, Forum Selection Clause, FSIA, Hedge Funds

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Dry Times: How to Deal with the Impact of California’s Drought on Critical Commercial Agreements

On January 17, 2014, California Governor Jerry Brown declared a “State of Emergency” in California due to the severity of drought conditions across the State. Since then, the California drought continues to be severe and…more

Commercial Contracts, Conservation, Drought, Force Majeure Clause, State of Emergency

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Georgia’s Limited Tax Credits for Interactive Entertainment Producers

On April 15,[1] Georgia passed a law[2] amending its tax code to provide a limited tax credit to qualified interactive entertainment companies. The law provides incentives for mid-size game developers who demonstrate sufficient…more

Corporate Taxes, Income Taxes, Interactive Content, Interactive Gaming, Tax Credits

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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 Reform, Patent Term Adjustment, Patents, USPTO

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First Circuit Finds that a Private Equity Fund Can Be Liable for the Pension Obligations of its Portfolio Company

In Sun Capital Partners III, L.P. et al. v. New England Teamsters & Trucking Industry Pension Fund, No. 12-2312, 2013 WL 3814985 (1st Cir. July 24, 2013), the First Circuit held that a private equity fund could be liable for its…more

Benefit Plan Sponsors, Employee Benefits, ERISA, Investment Portfolios, Pensions

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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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New California Statutes Potentially Increase Owners’ and Developers’ Exposure Under the Prevailing Wage Law

California has enacted several statutes, effective January 1, 2014, which will likely increase the exposure of contractors and subcontractors, and the developers and owners for whom they work, to claims for prevailing wage…more

Construction Contracts, Contractors, Employer Liability Issues, Prevailing Wages, Subcontractors

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DOE Proposes Highly Burdensome Reporting Obligations With Respect To Export Compliance

On September 8, 2008, we posted a commentary on a newly promulgated interim rule relating to “Export-Controlled Items,” that was finalized in 2010 and is now set forth at DFARS Subpart 204.73 and implemented in principal part by…more

Compliance, DFARS, DOE, Export Controls, Exports

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At the Crossroads - Brand integration deals involve copyright, trademark, and insurance considerations

At the crossroads of Hollywood Boulevard and Madison Avenue, a variety of legal and business issues must be considered and addressed in order to set the stage for a successful brand integration deal. In the historical television…more

Brand, Copyright, Television Commercials, Television Programming, Trademarks

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Two UPC Resellers Settle FTC Invitation to Collude Investigation

On July 28, 2014, the Federal Trade Commission accepted, subject to final approval, settlements with InstantUPCCodes.com (“Instant”) and Nationwide Barcode (“Nationwide”), two of the leading barcode resellers, and their…more

Collusion, Electronic Barcoding, FTC, Section 5, Settlement

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DOL Proposes to Amend FMLA Definition of “Spouse” to Include Same-Sex Marriages

The U.S. Department of Labor has proposed amending the regulatory definition of “spouse” under the Family and Medical Leave Act to expressly include individuals in same-sex marriages…more

DOL, Employee Benefits, FMLA, Marriage, Same-Sex Marriage

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Minimum Wage in Mexico

Effective January 1, 2014, Mexico’s wages for geographic Zones “A” and “B” increased by 3.9%. Zone A includes all of Mexico’s major cities and entry ports…more

Mexico, Minimum Wage

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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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Tenth Circuit Looks Past “General Partnership” Labels in Agreements to Determine Whether Certain Investments Constitute “Securities”

In SEC v. Shields, No. 12-1438, 2014 U.S. App. LEXIS 3369 (10th Cir. Feb. 24, 2014), the United States Court of Appeals for the Tenth Circuit reversed the district court’s order granting defendants’ motion to dismiss, holding…more

Joint Venture, Oil & Gas, Partnerships, SEC, Securities

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Potential Challenges Associated With California's Revised Uniform Limited Liability Company Act Scheduled to Take Effect on January 1, 2014

On September 21, 2012, S.B. 323, the California Revised Uniform Limited Liability Company Act (known as the RULLCA), was signed into law by Governor Jerry Brown and is scheduled to take effect on January 1, 2014…more

Fiduciary Duty, Jerry Brown, LLC, New Legislation, RULLCA

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Dodd-Frank’s Intersection with the Bankruptcy Code Could Have Significant Impact for Unsecured Creditors

On February 11th, the three private plaintiff-appellants and eleven State plaintiff-appellants in State National Bank of Big Spring, et al. v. Jacob J. Lew, et al. filed briefs with the U.S. Court of Appeals for the District of…more

Bankruptcy Code, Dodd-Frank, Standing, Unsecured Creditors

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Social Media: Protecting Trade Secrets and Proprietary Information

The ability of employees to steal trade secrets, reveal customer lists, and expose proprietary business information with the press of a button is frightening. In over 85 percent of trade-secret cases, the alleged misappropriator…more

Bring Your Own Device, Confidential Information, Social Media, Trade Secrets

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Common Pitfalls of Appellate Practice

According to Merriam-Webster, a pitfall is a "danger or problem that is hidden or not obvious at first." If you're a lawyer who specializes in appeals, the "hidden problems" in appellate practice we highlight below are obvious,…more

Appeals

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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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CMS Care Coordination Payments – A Boon to Doctors and Patients but Patient Participation Will be Essential

As the Affordable Care Act continues to mature, we are seeing new efforts by the Obama administration to incentivize care coordination across a spectrum of services provided to Medicare Fee-for-Service (FFS) patients. A New…more

CMS, Fee-for-Service, Healthcare, Healthcare Reform, Medicare

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Corporate Internal Investigations: Best Practices

A CEO receives an anonymous call claiming that someone is stealing company trade secrets or that an employee is taking kickbacks from a vendor. A GC gets a call from the HR director who has an employee accusing the company of…more

Corporate Counsel, Human Resources Professionals, Internal Investigations

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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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The Buck Stops Here – Senate Bill Takes Aim at E-retailers

After more than a decade of trying to gain traction on Capitol Hill, brick-and-mortar retailers could be close to leveling the playing field with online merchants if the Marketplace and Internet Tax Fairness Act (“MITFA”) Senate…more

Internet Retailers, Internet Taxation, Retailers

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A Review of CMS' Approach to $125 Million Recoupment of Payments to Providers for Services to Incarcerated / Unlawfully Present Beneficiaries

CMS seeks to recover from providers $125 million in alleged overpayments for services to beneficiaries who are belatedly identified as ineligible (incarcerated/unlawfully present). In this post, Sheppard Mullin examines the…more

Beneficiaries, CMS, Healthcare, Incarcerated Beneficiaries, Medical Expenses

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The Increasing Cost of Doing Business in San Francisco: Board of Supervisors Approves Family Friendly Workplace Ordinance

On October 1, 2013, the San Francisco Board of Supervisors approved an ordinance that will give employees the right to request flexible work arrangements to assist with caregiver responsibilities. San Francisco employers will…more

Caregivers, Flexible Work Arrangements

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SEC Brings Charges Against SEC Registered Investment Adviser for Improperly Allocating Expenses and Other Violations of the Investment Advisers Act of 1940 (the “Advisers Act”)

On February 25, 2014 the Securities and Exchange Commission (the “SEC”) filed public administrative and cease-and-desist proceedings against Arizona-based Clean Energy Capital, LLC (a registered investment adviser, “CEC”) and…more

Cease and Desist, Fraud, Investment Adviser, Investment Advisers Act of 1940, SEC

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Appellate Court Issues Opinion on SEC’s Conflict Minerals Rule

On April 15, the Court of Appeals for the D.C. Circuit issued its opinion in the challenge to the SEC’s Conflict Minerals Rule. We have reviewed the D.C. Court of Appeals decision and find that it leaves much of the SEC’s rule…more

Conflict Mineral Rules, Disclosure Requirements, First Amendment, Legal, SEC

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Lessons From A Cautionary Tale of Electronic Discovery Pitfalls in Health Care Litigation

E-discovery is especially challenging in healthcare related litigation due to the healthcare industry’s reliance on electronically stored information (ESI), the volume of medical records often at issue in health care litigation,…more

Discovery, Electronic Medical Records, Electronically Stored Information, False Claims Act, Halifax Hospital

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What Does the First-Ever Extradition on an Antitrust Charge Mean for the Auto Parts Investigation?

On April 4, 2014, the U.S. Department of Justice, Antitrust Division announced a milestone victory, having successfully litigated its first extradition for an alleged antitrust violation. Romano Pisciotti, an Italian national…more

Antitrust Litigation, Automotive Industry, DOJ, Extradition

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Third Circuit Says Classwide Arbitration a Matter for Courts to Decide

The U.S. Court of Appeals for the Third Circuit ruled last week that courts, not arbitrators, should determine whether an agreement between two parties to arbitrate employment disputes allows for classwide arbitration…more

Appeals, Arbitration, Arbitration Agreements, Class Action, Class Action Arbitration Waivers

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No CEQA Review Required For Initiative Measures, Whether Adopted By City Council Or Voters

The Supreme Court of California has held that CEQA review was not required before the Sonora City Council adopted an initiative measure approving a specific plan for expansion of a Wal-Mart store. The court held that: the…more

CEQA, Environmental Impact Report, Environmental Policies, Urban Planning & Development, Wal-Mart

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Corporate Internal Investigations: Best Practices

A CEO receives an anonymous call claiming that someone is stealing company trade secrets or that an employee is taking kickbacks from a vendor. A GC gets a call from the HR director who has an employee accusing the company of…more

Corporate Counsel, Human Resources Professionals, Internal Investigations

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Ninth Circuit Once Again Affirms That Malicious Actions To Destroy A Competitor Do Not State An Antitrust Claim Unless Accompanied By Injury To Competition

On February 24, 2014, the Ninth Circuit Court of Appeals affirmed the lower court’s grant of summary judgment dismissing DAW Industries’ claims of conspiracy to restrain trade and attempted monopolization, once again affirming…more

Antitrust Litigation, Malicious Prosecution, Monopolization, Unfair Competition

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Innovative Cornfield Arroyo Seco Specific Plan Seeks to Revitalize Neglected Los Angeles Neighborhood

After years of work and input from local community groups, environmentalists, affordable housing advocates, transportation advocates, and the business community, the Cornfield Arroyo Seco Specific Plan (the “CASP”) cleared its…more

Economic Development, Municipalities

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Ninth Circuit Vacates Dismissal and Remands Shareholder Derivative "Say-on-Pay" Suits to California State Court

In Dennis v. Hart, 2013 U.S. App. LEXIS 15648 (9th Cir. July 31, 2013), the United States Court of Appeals for the Ninth Circuit held that plaintiffs’ “say-on-pay” shareholder derivative suits alleging breach of fiduciary duty…more

Derivative Suit, Executive Compensation, Fiduciary Duty, Say-on-Pay, Shareholders

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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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California Court of Appeal Holds That Challenges to Corporate Elections Under Corporations Code Section 709 May be Predicated Upon Breach of Fiduciary Duty and Conflict of Interest Allegations

In Morrical v. Rogers, No. A137011, 2013 Cal. App. LEXIS 811 (Cal. App. Oct. 10, 2013), the California Court of Appeal, First District, held that the summary procedures set forth in California Corporations Code § 709 may be used…more

Board of Directors, Breach of Duty, Compliance, Conflicts of Interest, Corporate Governance

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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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Undocumented Workers May Pursue Claims Under California’s FEHA, So Says The California Supreme Court

On June 26, 2014, in Salas v. Sierra Chemical Co., the California Supreme Court held that undocumented immigrants who fraudulently obtained employment still may pursue retaliation and discrimination claims under the California…more

Discrimination, Employee Rights, Employer Liability Issues, FEHA, Immigrants

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Fifth Circuit Upholds The Validity Of Class-Action Waivers In Arbitration Agreements

Earlier this week, on December 3, 2013, the Fifth Circuit Court of Appeals held that arbitration agreements lawfully can contain class-action waivers. In its ruling in D.R. Horton, Inc. v. National Labor Relations Board, the…more

Arbitration, Arbitration Agreements, Class Action, Class Action Arbitration Waivers, Collective Actions

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DOL Proposes to Amend FMLA Definition of “Spouse” to Include Same-Sex Marriages

The U.S. Department of Labor has proposed amending the regulatory definition of “spouse” under the Family and Medical Leave Act to expressly include individuals in same-sex marriages…more

DOL, Employee Benefits, FMLA, Marriage, Same-Sex Marriage

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EIR Air Quality Analysis Insufficient: Lack of Specificity Regarding Human Health Impacts, Mitigation Measure Enforceability, and Evidence Supporting Measures’ Effectiveness in Substantially Reducing Air Quality Impacts Blamed

Faced with an appeal of the Superior Court of Fresno’s approval of a controversial Environmental Impact Report, the Fifth District Court of Appeal reversed and found that the challenged EIR violated the California Environmental…more

Air Quality Standards, Appeals, CEQA, Environmental Impact Report, Mitigation

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Innovative Cornfield Arroyo Seco Specific Plan Seeks to Revitalize Neglected Los Angeles Neighborhood

After years of work and input from local community groups, environmentalists, affordable housing advocates, transportation advocates, and the business community, the Cornfield Arroyo Seco Specific Plan (the “CASP”) cleared its…more

Economic Development, Municipalities

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TCPA Class Actions Coming To New York

A recent decision by the U.S. Court of Appeals for the Second Circuit may lead to a wave of class action litigation in New York under the Telephone Consumer Protection Act (“TCPA”). See Todd Bank v. Independence Energy Grp…more

Class Action, Mims v Arrow Financial Services, SCOTUS, TCPA

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Free(er?) Trade - US, EU and Canada Quibble Over Market Access and Domestic Preferences

The US is generally pretty keen on international free trade agreements. And why shouldn’t it be? After all, free trade agreements have the ability to open up foreign markets to US goods and services, allowing new and expanding…more

Canada, EU, Foreign Markets, Free Trade Agreement, GATT

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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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Dang v. San Francisco Forty Niners - Consumers can challenge Reebok's exclusive NFL apparel deal based just on a market of garments bearing NFL team logos

On August 2, 2013, District Judge Edward J. Davila denied a motion to dismiss antitrust claims brought by consumers of NFL apparel against Reebok and the NFL in Dang v. San Francisco Forty Niners, Case No. 5:12-CV-5481 (N.D…more

Cartwright Act, Class Action, Fashion Industry, Licensing Rules, Logos

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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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“Get Outta Here!”: The Court Of Appeals Finds that New York Judges May Sua Sponte Dismiss Cases on Forum Non Conveniens Grounds in Limited Circumstances

In Mashreqbank PSC v. Ahmed Hamad Al Gosaibi & Bros. Co., 2014 N.Y. Slip Op. 02381, the New York Court of Appeals ruled that a court may sua sponte decide the issue of forum non conveniens so long as it allows the parties to…more

Banks, Corporate Counsel, Forum, Forum Non Conveniens, Sua Sponte

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Cybersecurity: 36 Questions Every Director Should Ask

Cyber security, data loss, hacking and schemes to steal personal information and assets electronically are all over the news daily. Companies are the primary targets of these actions since they accumulate information, store it…more

Cybersecurity, Data Breach, Data Protection, Hackers

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Of Buckeyes and Batons Rouges: Ohio and Louisiana Adopt Comprehensive Pole Access and Attachment Rules

In recent separate actions, the Public Utility Commission of Ohio (“PUCO”) and the Louisiana Public Service Commission (“LPSC”) adopted comprehensive pole attachment regulatory regimes intended to facilitate the deployment of…more

Broadband, Infrastructure, Mobile Broadband Services, Pole Attachment Order, Regulatory Standards

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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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Top 5 Actions to Consider for the New York Not-for-Profit Law Overhaul Effective on July 1

On July 1, 2014, the New York Nonprofit Revitalization Act (the “Act”) took effect. The Act is the most significant modification of New York’s Not-for-Profit Corporation Law (the “NPCL”) in approximately 40 years. New…more

Corporate Governance, Non-Profits, NPCL

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Conan Doyle Estate’s Quixotic Attempt to Protect Sherlock Holmes

Led by Judge Richard Posner, the Seventh Circuit Court of Appeals recently refused what Posner called a “quixotic” attempt to extend copyright law. While the holding was perhaps to be expected, the opinion introduced a mystery…more

Appeals, Arthur Conan Doyle, Books, Copyright, Public Domain

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North Carolina Court Issues First Decision Controlling Coop Pole Attachment Rates

This is a story of persistence and perseverance, if not patience. The cable industry finally obtained some control over skyrocketing pole attachment rates charged by cooperative utilities in North Carolina when the…more

Cable Television Providers, Rate Dispute, Time Warner, Utilities Sector, Utility Poles

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The $330-Million Dollar Question

The question every false claims defendant must face is whether to pursue litigation or simply concede and settle. While many shy away from litigation, opting for an expensive but certain resolution, for Johnson & Johnson and…more

False Claims Act, FDA, Johnson & Johnson, Misleading Statements, Pharmaceutical

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Second Circuit Overturns District Court’s Rejection of SEC-Citigroup Fraud Settlement

In a closely-watched decision involving judicial review of agency settlements, the Unites States Court of Appeals for the Second Circuit vacated United States District Court Judge Jed Rakoff’s 2011 order rejecting a proposed…more

Appeals, Chevron Deference, Citigroup, Consent Decrees, Enforcement

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FTC v. Actavis: What Does It Mean for Reverse-Payment Settlements?

On June 17, 2013, the United States Supreme Court announced a rule that blurs the lines between antitrust and patent law in the context of Hatch-Waxman litigation…more

Anti-Competitive, Antitrust Litigation, FTC, FTC v Actavis, Hatch-Waxman

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Maryland Legislature Fixes Problems Left Over From 2012 IDOT Legislation

Prior to 2012, the Indemnity Deed of Trust ("IDOT") had long been the preferred structure for borrowers in Maryland looking to finance their property because it would allow deferment of recordation taxes that would otherwise be…more

IDOT, Indemnification

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Groundbreaking Cross-border Airport Terminal Linking Tijuana to San Diego Breaks Ground

Sheppard Mullin client, Otay Tijuana Venture, announced this week that a cross-border pedestrian bridge linking San Diego with Tijuana’s A.L. Rodríguez International airport will be set to open next year. The project, which…more

Airlines, Airports, Cross-Border, Economic Development

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Bright Lights Not a Significant Impact; Lack of Parking May Be

In Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) __ Cal.App.4th __ (Case No. D060999) the Court of Appeal for the 4th District held that the San Diego Unified School District (the…more

Ballot Measures, CEQA, Environmental Impact Report, Parking Lots, School Bond Qualifications

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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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Proceed with Caution: D.C. District Court Says Attorney-Client Privilege and Work Product Doctrine Do Not Survive Internal Fraud Investigation Conducted by Non-Attorneys

On March 6, 2014, the District Court for the District of Columbia issued an opinion in United States ex rel. Barko v. Halliburton Company et al. that should serve as a wake-up call for all companies conducting internal…more

Attorney-Client Privilege, Fraud, Internal Investigations, Work Product Privilege

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New California Statutes Potentially Increase Owners’ and Developers’ Exposure Under the Prevailing Wage Law

California has enacted several statutes, effective January 1, 2014, which will likely increase the exposure of contractors and subcontractors, and the developers and owners for whom they work, to claims for prevailing wage…more

Construction Contracts, Contractors, Employer Liability Issues, Prevailing Wages, Subcontractors

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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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Social Media: Protecting Trade Secrets and Proprietary Information

The ability of employees to steal trade secrets, reveal customer lists, and expose proprietary business information with the press of a button is frightening. In over 85 percent of trade-secret cases, the alleged misappropriator…more

Bring Your Own Device, Confidential Information, Social Media, Trade Secrets

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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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New Laws and New Year Compliance Obligations in New York & New Jersey

Happy New Year! As you move past the holidays and focus on 2014, we would like to take this opportunity to remind you of the new laws taking effect at the beginning of this year and your annual beginning of the year compliance…more

Compliance, Gender-Based Pay Discrimination, Hiring & Firing, Minimum Wage, New Hires

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A Decade In The Making: What Employers Can Expect From A Fully Staffed NLRB

On July 30, 2013, the United States Senate confirmed all five of President Obama’s nominees to the National Labor Relations Board (“NLRB” or the “Board”), marking the first time in 10 years that the NLRB has a full complement of…more

Compliance, Enforcement, NLRA, NLRB

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Crowdfunding 2.0?

On October 24, 2013, the Securities Exchange Commission (the “SEC”) published proposed rules (Release Nos. 33-9470; 34-70741) to permit companies to offer and sell securities through “regulation” crowdfunding as proposed in the…more

Crowdfunding, JOBS Act, Popular, SEC

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DOJ’s FCPA Enforcement Power Gets A Big Boost

In 2011, the Department of Justice (“DOJ”) stated that “[i]t’s not necessarily the wisest move for a company” to challenge the definition of “foreign official” under the Foreign Corrupt Practices Act (“FCPA”), and that…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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A Construction Defect Insurance Carrier Need Only Demonstrate That Another Insurance Carrier's Policy May Potentially Cover The Claim In Order To Recover Equitable Contribution To A Settlement

A California Appellate Court recently clarified the burden of proof for an insurance company seeking contribution from another insurance company in settlement of a construction defect action. When a company involved in…more

Commercial General Liability Policies, Construction Defects, Insurers, Property Damage, Settlement

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The New Normal: The Need for Damages Proof To Certify Consumer Classes Post-Comcast

In consumer class actions, the damages measure tends to remain undisclosed or ill-defined when plaintiffs move for class certification. Revealing as little as possible about damages allows plaintiffs to more flexibly adapt to…more

Burden of Proof, Class Action, Comcast v. Behrend, Evidence, SCOTUS

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Of Characterization and Common Sense: Court Holds That Erroneous Interpretation of Allegations of Complaint Doom Counterclaim to Bottom of Chicken Coop

In In Re Processed Egg Products Antitrust Litigation, No. 2:08-Md.-02002-GP (E.D. Pa., June 10, 2014), the plaintiffs alleged that they purchased eggs from the defendant egg producing cooperatives, and that the plaintiffs had…more

Antitrust Litigation, Farm Animals, Food Labeling, Promissory Estoppel, Sherman Act

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Ninth Circuit Rejects Percentage Method To Determine Attorneys’ Fees In Class Action Settlement

In Collado v. Toyota Motor Sales, U.S.A., Inc., Nos. 11-57013, 11-57023, 11-57030 (9th Cir. Dec. 16, 2013), the Ninth Circuit Court of Appeals reversed a district court’s attorneys’ fees award in a class action settlement…more

Attorney's Fees, Class Action, Settlement, Toyota

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'Do Not Call' Violations Lead to $7.5 Million Civil Penalty

On Thursday, June 27, 2013, the Federal Trade Commission (“FTC”) announced that Mortgage Investors Corporation of Ohio, Inc. (“Mortgage Investors”) will pay a $7.5 million civil penalty for alleged violations of the…more

Do Not Call List, Fraud, FTC, Mortgage Loan Originators, Mortgages

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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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Supreme Court Grants Limited Review of GHG Emissions Regulations

On October 15, 2013, the United States Supreme Court granted certiorari to review six of the nine submitted petitions stemming from an appellate court ruling upholding Environmental Protection Agency (“EPA”) greenhouse gas…more

Carbon Emissions, Environmental Policies, EPA, Greenhouse Gas Emissions, SCOTUS

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California Enacts New Data Privacy Laws

As part of a flurry of new privacy legislation, California Governor Jerry Brown signed two new data privacy bills into law on September 27, 2013: S.B. 46 amending California’s data security breach notification law and A.B. 370…more

Breach Notification Rule, CalOPPA, COPPA, Data Breach, Data Protection

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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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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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Shedding Light on CFIUS: Appeals Court Holds That CFIUS Review Lacks Constitutional Due Process

In a stunning ruling issued on July 15, 2014, the U.S. Court of Appeals for the D.C. Circuit held that review by the Committee on Foreign Investment in the United States (“CFIUS”) and the subsequent unwinding of the investment…more

CFIUS, Due Process, Fifth Amendment, Foreign Investment

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Pennsylvania Appellate Court Finds Uniform Written Obligations Act Inapplicable to Covenants Not to Compete

In a case of first impression, the Pennsylvania Superior Court (one of Pennsylvania’s two state appellate courts) recently issued a ruling in Socko v. Mid-Atlantic Systems of CPA, Inc. (“Socko”), 1223 MDA 2013 (May 13, 2014),…more

Consideration, Employee Rights, Employer Liability Issues, Non-Compete Agreements, Restrictive Covenants

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Principal Architects on Residential Projects Liable for Construction Defects Outside Their Control; Developers and Owners May Pay the Price

On July 3, 2014, the California Supreme Court decided the much watched case Beacon Residential Community Assoc. v. Skidmore, Owings & Merrill, LLP. The court held that the “principal architect” “owes a duty of care to future…more

Architects, Construction Contracts, Construction Defects, Construction Disputes, Design-Build

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California Supreme Court Limits Application of Commissioned Employee Exemption

On July 14, 2014, the California Supreme Court held in Peabody v. Time Warner Cable, Inc. that employees qualify for the California “commissioned employee” exemption in a pay period only if they receive “earnings [that] exceed…more

Exempt-Employees, Minimum Wage, Time Warner, Wage and Hour

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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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Second Circuit Overturns District Court’s Rejection of SEC-Citigroup Fraud Settlement

In a closely-watched decision involving judicial review of agency settlements, the Unites States Court of Appeals for the Second Circuit vacated United States District Court Judge Jed Rakoff’s 2011 order rejecting a proposed…more

Appeals, Chevron Deference, Citigroup, Consent Decrees, Enforcement

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Equityholder's Strategy for Shifting Tax Burdens to Creditors Upheld by Third Circuit

In re Majestic Star Casino, LLC, F.3d 736 (3rd Cir. 2013), the U.S. Court of Appeals for the Third Circuit broke from other courts by holding that S corporation status (or "qualified subchapter S subsidiary" or "QSub" status) is…more

Casinos, Cost-Shifting, Creditors, Debtors, IRS

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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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New York City Amends Its Human Rights Law to Extend Protection to Interns

On April 15, 2014, New York City Mayor Bill De Blasio signed into law an amendment to the New York City Human Rights Law (“NYCHRL”) extending the protections from discrimination and harassment contained in the NYCHRL to both…more

Discrimination, Employee Rights, Harassment, Internships, NYCHRL

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5 Things You Need To Know Now About Mexico’s Energy Reforms

Mexico’s landmark constitutional energy reforms, enacted in December 2013, were lauded as the start of a new era for private investment in Mexico. Nearly five months in, how has the government fared in implementing these…more

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Bundled Payments under the Affordable Care Act Continue to Gain Influence

The Center for Medicare and Medicaid Services (CMS) recently announced that it will add roughly 4,100 providers to the 2,400 existing providers testing the possible use of Medicare bundled payment contracts. Providers must…more

Affordable Care Act, Bundling Rules, CMS, Employee Benefits, Healthcare

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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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Microsoft-Nokia: China’s MOFCOM Quietly Slips Into the Debate about Injunctive Relief for FRAND-encumbered SEPs

This past November and December, the US Federal Trade Commission (“FTC”) and European Commission (“EC”) cleared Microsoft Corporation’s (“Microsoft”) acquisition of the bulk of the devices and services business of Nokia…more

China, European Commission, FRAND, FTC, Microsoft

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Laches, Statutes of Limitations and Raging Bull: The Supreme Court Re-Emphasizes The Pitfalls Of Delay In Copyright Cases

In Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. __ (2014), the United States Supreme Court addressed the role that the equitable defense of laches – i.e., a plaintiff’s unreasonable and prejudicial delay in commencing suit –…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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Federal Circuit Affirms Inequitable Conduct Determination Under Therasense “But For” Exception and Reaffirms Significance of Rohm & Haas

Today, the Federal Circuit upheld the District Court’s inequitable conduct verdict based on the submission of false affidavits to the United States Patent & Trademark Office (“PTO”). Intellect Wireless, Inc. v. HTC Corp.,…more

Declaration, False Statements, Inequitable Conduct, Infringement, Materiality

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U.S. Supreme Court Decision Gives More Latitude to Defeat Securities Fraud Class Action Lawsuits Prior to Class Certification

In Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317, __ S Ct. __, 2014 WL 2807181 (U.S. June 23, 2014), the United States Supreme Court refused to overturn the landmark decision Basic v. Levinson, but ruled that…more

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

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Cloudy Skies Ahead for Providers? CMS’ Release of Medicare Billing Data Combined with Physician Payment Sunshine Act Data May Boost Fraud Litigation

In February 2013, we reported (on our Healthcare Law Blog) that the Centers for Medicare and Medicaid Services (CMS) announced the final rule for the Physician Payments Sunshine Act. In the interest of providing more…more

CMS, Drug Manufacturers, Final Rules, Healthcare, Medicaid

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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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Changes To California Title 24 Energy Use Requirements Effective July 1, 2014

On July 1, 2014, 2013 CALGreen, Part 11, Title 24, of the California Code of Regulations will go into effect. As a result, certain nonresidential additions and alterations will trigger compliance with more stringent…more

Energy, Energy Efficiency, Utilities Sector

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First Circuit Affirms District Court’s Exclusion of Event Study as Unreliable Under Daubert

In Bricklayers & Trowel Trades Int’l Pension Fund v. Credit Suisse Sec. (USA) LLC, No. 12-1750, 2014 U.S. App. LEXIS 8994 (1st Cir. May 14, 2014), the United States Court of Appeals for the First Circuit affirmed a district…more

AOL, Appeals, Credit Suisse First Boston, Estimated Value Disclosures, Shareholder Litigation

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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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New FCC Interpretation Of "Express Consent" To Increase TCPA Class Action Liability

Plaintiffs frequently sue businesses in class actions for violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”). The TCPA generally prohibits calls and text messages to cell phones using…more

Cell Phones, Class Action, Consent, FCC, TCPA

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United States Supreme Court Agrees to Hear Two Cases That Could Potentially Deter Non-Practicing Entities From Filing Frivolous Suits

On October 1, 2013, the United States Supreme Court agreed to review the “exceptional” case standard for awarding attorneys’ fees in two separate patent-infringement cases. Both cases relate to patentees who are non-practicing…more

Attorney's Fees, Certiorari, Frivolous Lawsuits, Infringement, Non-Practicing Entities

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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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Creditors’ Rights Clarified By Interpretation II of the Supreme People’s Court on Several Issues Concerning the Application of the Enterprise Bankruptcy Law of the People’ Republic of China

Understanding your rights as a creditor while navigating under China’s bankruptcy laws is becoming a must these days, especially for foreign creditors. As many foreign companies engage in business with Chinese companies, chances…more

China, Commercial Bankruptcy, Creditors' Rights, Revocation, Set Off

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Higher Filing Thresholds for HSR Act Premerger Notifications Effective February 24, 2014

Higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 will become effective on February 24, 2014. The filing thresholds are revised annually, based on the change in gross national…more

FTC, Hart-Scott-Rodino Act, Pre-Merger Filing Requirements, The Clayton Act

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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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Crowdfunding 2.0?

On October 24, 2013, the Securities Exchange Commission (the “SEC”) published proposed rules (Release Nos. 33-9470; 34-70741) to permit companies to offer and sell securities through “regulation” crowdfunding as proposed in the…more

Crowdfunding, JOBS Act, Popular, SEC

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Proposed New York Law Would Extend State Anti-Discrimination Protections to Unpaid Interns

A new bill introduced in the New York State Senate would extend many of the protections of the New York State Human Rights Law (NYSHRL) to unpaid interns. Among other things, the bill would make it illegal for employers to…more

Anti-Discrimination Policies, Discrimination, Harassment, Internships, NYCHRL

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China Releases Administrative Measures on Foreign Debt Registration

On April 28, 2013, the State Administration of Foreign Exchange (the “SAFE”) promulgated the Administrative Measures of Registration of Foreign Debts (the “Foreign Debt Measures”) together with the detailed Operational…more

China, Debt, Foreign Banks, Foreign Investment, Nonbank Firms

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IRS Issues Guidance Regarding Tax Treatment of Married Same-Sex Couples

The recent United States Supreme Court ruling in United States v. Windsor invalidated Section 3 of the Defense of Marriage Act, which had defined marriage as a union between a man and a woman. The ruling greatly expands the…more

DOMA, IRS, Marriage, Same-Sex Marriage, SCOTUS

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Common Sense Prevails Once Again: District Court FCA Ruling Serves As Reminder That Whistleblowers Need to Prove Recklessness Too

While multi-million dollar False Claims Act (FCA) settlements paid by Government contractors get the lion’s share of the press, those with an attentive eye will have noticed a recent steady stream of more “contractor friendly”…more

Contractors, Discovery, False Claims Act, Summary Judgment, Whistleblowers

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Applying a Legal Bandaid to Defective Acts: Delaware Law Creates New Procedures to Ratify Defective Corporate Acts

On June 30, 2013, the State of Delaware amended the Delaware General Corporations Law (the “DGCL”) to include two new sections, Section 204 and Section 205 (together, the “Ratification Provisions”). Set to take effect on April…more

Articles of Incorporation, Corporate Governance, Defective Corporate Acts, Incorporation

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New “Potentially Feasible” Alternative Does Not Trigger Draft EIR Recirculation Unless Considered “Significant New Information”; No Findings Needed to Reject Alternative As Infeasible

In South County Citizens for Smart Growth v. County of Nevada (3d Dist., 10/8/13 C067764) ____Cal.App.4th _____, 2013, the court of appeal rejected a claim that Nevada County violated CEQA by failing to recirculate an EIR when a…more

CEQA, Environmental Impact Report, Recirculation, Urban Planning & Development

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Shedding Light on CFIUS: Appeals Court Holds That CFIUS Review Lacks Constitutional Due Process

In a stunning ruling issued on July 15, 2014, the U.S. Court of Appeals for the D.C. Circuit held that review by the Committee on Foreign Investment in the United States (“CFIUS”) and the subsequent unwinding of the investment…more

CFIUS, Due Process, Fifth Amendment, Foreign Investment

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Sham Hatch-Waxman Infringement Suits And FDA Citizen Petitions; A Potential For New Liability For Innovators?

Under what is commonly known as “Noerr-Pennington immunity,” persons exercising their First Amendment right to petition the government for redress are generally immune from antitrust liability, even though their actions may harm…more

Hatch-Waxman, Patent Infringement, Patent Litigation, Patents

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HIPAA/HITECH Compliance Strategies for Medical Device Manufacturers

As computing power continues to become cheaper and more powerful, medical devices are increasingly capable of handling larger and larger sets of data. This provides the ability to log ever expanding amounts of information about…more

Biotechnology, Compliance, Covered Entities, FDA, HIPAA

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Federal Register Round Up – June/July 2014

DOD Proposed Rules Seeking Contractor Business System Rule Self Assessments - The Department of Defense issued a proposed rule on July 15th that would revise the DFARS Business Systems Rule by requiring contractors with…more

DFARS, Dodd-Frank, Federal Contractors, Proposed Regulation, Reporting Requirements

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Review – U.S. Patent and Trademark Office Subject Matter Eligibility Guidelines

On March 4, 2014 the USPTO issued new patent subject matter eligibility guidelines in an attempt to provide examiners and patent practitioners with some guidance on which claims improperly encompass laws of nature, natural…more

Patent Applications, Patent-Eligible Subject Matter, Patents, USPTO

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When Goods Are Shipped from Overseas, When Are They Considered “Received by the Debtor” for Purposes of Asserting a Section 503(b)(9) Administrative Claim?

A bankruptcy court in Pennsylvania recently held that trade creditors who supplied goods to a debtor prior to its bankruptcy filing were not entitled to administrative priority status under Bankruptcy Code section 503(b)(9)…more

Commercial Bankruptcy, Debt, Debtors, Section 503(b)(9)

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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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Trending Information: The Connection Between Data Brokers and the Fashion Industry

Consumers frequently reveal personal information about themselves through a variety of daily online and offline activities. For fashion designers and retailers, this consumer information represents a valuable tool to identify,…more

Advertising, Data Brokers, Data Collection, Data Protection, Fashion Design

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Shedding Light on CFIUS: Appeals Court Holds That CFIUS Review Lacks Constitutional Due Process

In a stunning ruling issued on July 15, 2014, the U.S. Court of Appeals for the D.C. Circuit held that review by the Committee on Foreign Investment in the United States (“CFIUS”) and the subsequent unwinding of the investment…more

CFIUS, Due Process, Fifth Amendment, Foreign Investment

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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, Foreign Investment, Real Estate Market

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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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Mandatory Mediation for Every Fifth Case in New York County’s Commercial Division?

The Commercial Division Advisory Council has proposed that the court adopt a pilot program for New York County’s Commercial Division that would send every fifth newly assigned case to mediation unless the parties stipulate…more

Mediation

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Top Five Tips For Minimizing The Risk of Class Action Litigation

Beyond the usual substantive advice—maintaining effective compliance and document management systems, for example—our class action defense team suggests that companies implement the following relatively straightforward…more

Chief Compliance Officers, Class Action, Compliance, Risk Mitigation

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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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What's the One Thing Missing From Your Corporate Compliance Program?

What's the one thing missing from most corporate compliance programs? For a legal perspective, that's the question we put to corporate attorneys writing on JD Supra, asking each to commit to just one essential element…more

Chief Compliance Officers, Compliance, Corporate Culture, Crisis Management, Documentation

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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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SEC Eliminates the Prohibition on General Solicitation for Rule 506 and Rule 144A Offerings

On July 10, 2013, the SEC adopted the amendments required under the JOBS Act to Rule 506 that would permit issuers to use general solicitation and general advertising to offer their securities, subject to certain limitations. In…more

Bad Actors, Dodd-Frank, Felons, General Solicitation, JOBS Act

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Don’t try this at Home or Abroad: Export Controls and Sanctions Violations Lead to $21 Million in Penalties for Dutch Company Fokker Services B.V.

We frequently discuss enforcement actions in this blog, because understanding enforcement is a key aspect of trade compliance. From a fifty-thousand foot view, each enforcement case serves as a cautionary tale about the overall…more

Aerospace, BIS, Burma, EAR, Enforcement

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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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Final Section 336(e) Regulations Allow Step-Up in Asset Tax Basis in Certain Stock Acquisitions

Final regulations were issued last month under IRC Section 336(e). These regulations present beneficial planning opportunities in certain circumstances…more

Final Rules, LLC, S-Corporation, Shareholders, Stocks

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Delaware Court of Chancery Rejects Indemnification Sleight of Hand

In Branin v. Stein Roe Inv. Counsel, LLC, C.A. 8481-VCN, 2014 WL 2961084 (Del. Ch. June 30, 2014), the Delaware Court of Chancery held that a vested right to indemnification may not be rescinded by a subsequent amendment to the…more

Corporate Counsel, Indemnification, Limited Liability Companies, Operating Agreement, Vested Rights Doctrine

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Bundled Payments under the Affordable Care Act Continue to Gain Influence

The Center for Medicare and Medicaid Services (CMS) recently announced that it will add roughly 4,100 providers to the 2,400 existing providers testing the possible use of Medicare bundled payment contracts. Providers must…more

Affordable Care Act, Bundling Rules, CMS, Employee Benefits, Healthcare

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Undocumented Workers May Pursue Claims Under California’s FEHA, So Says The California Supreme Court

On June 26, 2014, in Salas v. Sierra Chemical Co., the California Supreme Court held that undocumented immigrants who fraudulently obtained employment still may pursue retaliation and discrimination claims under the California…more

Discrimination, Employee Rights, Employer Liability Issues, FEHA, Immigrants

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Second Circuit Applies Morrison v. National Australia Bank to Allow Certain Extraterritorial Application of RICO

In European Community v. RJR Nabisco, Inc., Case No. 11-CV-2475 (2d Cir. Apr. 23, 2014), the United States Court of Appeals for the Second Circuit held that the Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18…more

Appeals, EU, European Community v RJR Nabisco, Extraterritoriality Rules, Federal Rule 12(b)(6)

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Sovereign Litigation in Latin America: Top Five Issues To Think of When Doing Business With a Latin American Country

“We are in the soup” exclaimed, federal judge Thomas Griesa, referring to Argentina allegedly defaulting on its sovereign bonds. And so we are. According to bondholders, on July 30 of 2014, Argentina defaulted on its…more

Bonds, Corporate Counsel, Forum Selection Clause, FSIA, Hedge Funds

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False Claims Act Whistleblower Bounties Exceed $345 Million in Fiscal Year 2013

The DOJ has released its Fiscal Year (“FY”) 2013 totals for civil settlements and judgments recovered under the federal False Claims Act (“FCA”). To say that the Department had a successful year in prosecuting fraud against the…more

Affordable Care Act, Dodd-Frank, DOJ, Enforcement Actions, False Claims Act

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U.S. Supreme Court Decision Gives More Latitude to Defeat Securities Fraud Class Action Lawsuits Prior to Class Certification

In Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317, __ S Ct. __, 2014 WL 2807181 (U.S. June 23, 2014), the United States Supreme Court refused to overturn the landmark decision Basic v. Levinson, but ruled that…more

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

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Continuity of Enterprise is Enough for Successor Parties to be Liable

Successor liability is often a concern for the acquirer when purchasing substantially all of a seller’s assets. While this risk is well known, the circumstances under which an acquirer will be found liable under the theory of…more

Asset Purchaser, Continuity of Enterprises, Successor Liability

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Federal Circuit Affirms Inequitable Conduct Determination Under Therasense “But For” Exception and Reaffirms Significance of Rohm & Haas

Today, the Federal Circuit upheld the District Court’s inequitable conduct verdict based on the submission of false affidavits to the United States Patent & Trademark Office (“PTO”). Intellect Wireless, Inc. v. HTC Corp.,…more

Declaration, False Statements, Inequitable Conduct, Infringement, Materiality

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Ninth Circuit Fumbles The Ball In Videogame Likeness Cases

Creating a new rule that gives videogames much more limited protection than other expressive works, the Ninth Circuit has ruled that realistically depicting college athletes in videogames showing them doing what they became…more

Athletes, Electronic Arts, First Amendment, NCAA, Right of Publicity

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Executive Orders and New Employment Requirements for Federal Contractors

As promised in his 2014 State of the Union Address, President Obama has turned to executive action to advance his agenda, which includes increasing the minimum wage and creating improved tools to ensure equal pay for women and…more

DOL, Employee Rights, Executive Orders, Federal Contractors, Minimum Wage

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Second Circuit Imposes Individual Liability on New York Mayoral Candidate for Fair Labor Standards Act Settlement

On July 9, 2013, the United States Court of Appeals for the Second Circuit issued its opinion in Torres et al. v. Gristedes Operating Corp. et al., Case No. 11-4035, affirming the Southern District of New York’s imposition of…more

Employer Liability Issues, FLSA, Labor Disputes, Liability, Political Campaigns

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New EEOC Guidelines Regarding Employers’ Obligations With Respect to Background Checks and Accommodation of Religious Dress and Grooming Practices

The Equal Employment Opportunity Commission (“EEOC”) recently announced new guidelines that may impact the way employers conduct background checks and accommodate religious dress and grooming practices…more

Background Checks, EEOC, Reasonable Accommodation, Religion, Religious Clothing

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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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Of Characterization and Common Sense: Court Holds That Erroneous Interpretation of Allegations of Complaint Doom Counterclaim to Bottom of Chicken Coop

In In Re Processed Egg Products Antitrust Litigation, No. 2:08-Md.-02002-GP (E.D. Pa., June 10, 2014), the plaintiffs alleged that they purchased eggs from the defendant egg producing cooperatives, and that the plaintiffs had…more

Antitrust Litigation, Farm Animals, Food Labeling, Promissory Estoppel, Sherman Act

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Proposed health IT strategy aims to promote innovation

On April 7, 2014, the Food and Drug Administration (FDA), in consultation with the Office of the National Coordinator for Health Information Technology (ONC) and the Federal Communications Commission (FCC) released a draft…more

Data Protection, FCC, FDA, Health Information Technologies, Healthcare

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Is Your Criminal Screening Process Compliant?

An employer’s reluctance in hiring an applicant with a criminal history is understandable and sensible. Employers have an obligation to ensure a safe workplace, can be fined for failing to enact safeguards against workplace…more

Ban the Box, Criminal Background Checks, Discrimination, EEOC, FCRA

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LCD Court Dismisses Motorola’s Multi-Billion Dollar Antitrust Claims Based On Overseas Purchases

On January 23, in a landmark decision that is one of the most important yet to be handed down in the sprawling LCD antitrust litigation pending in various federal courts since 2006, Judge Joan Gottschall of the Northern District…more

Antitrust Litigation, Enforcement Actions, Foreign Jurisdictions, FTAIA, Motorola

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When Goods Are Shipped from Overseas, When Are They Considered “Received by the Debtor” for Purposes of Asserting a Section 503(b)(9) Administrative Claim?

A bankruptcy court in Pennsylvania recently held that trade creditors who supplied goods to a debtor prior to its bankruptcy filing were not entitled to administrative priority status under Bankruptcy Code section 503(b)(9)…more

Commercial Bankruptcy, Debt, Debtors, Section 503(b)(9)

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Comments on Recent Changes to the Trademark Law of the People's Republic of China

A revision to the Trademark Law of the People’s Republic of China (“Trademark Law”) was adopted at the 4th Session of the Standing Committee of the Twelfth National People’s Congress of the People’s Republic of China on August…more

China, New Legislation, Trademarks

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Uganda Be Kiddin’ Me: United States Slaps On Sanctions in Response to Anti-Gay Law

Last month, the United States announced new sanctions against Uganda in response to human rights violations, targeted discrimination, and draconian criminal penalties. Specifically, on June 19, the Obama administration quietly…more

Africa, Discrimination, Gay Rights, Sanctions

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Second Circuit Finds Possible Pretext in Vague Justification for Non-Transfer

On July 14th, the U.S. Court of Appeals for the Second Circuit vacated an award of summary judgment for the defendants in Abrams v. Department of Public Safety, State of Connecticut, et al., Case No. 13-111, holding that…more

Appeals, Corporate Counsel, Discrimination, Employer Liability Issues, Race Discrimination

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Equal Doesn’t Always Mean Fair

On November 13, 2013, GAO reaffirmed its view that normalization of costs is impermissible in acquisitions where offerors’ approaches are not required to be the same. In AXIS Management Group LLC, B-408575 (Nov. 13, 2013), the…more

Compliance, Equal Pay, GAO, Wage and Hour, Wages

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Seventh Circuit Affirms Lodestar Method to Determine Attorneys’ Fees in TCPA Class Action Settlement

In Americana Art China Company, Inc. v. Foxfire Printing & Packaging, Inc., 743 F.3d 243 (7th Cir. Feb. 18, 2014), the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s attorneys’ fees award in a class…more

Attorney's Fees, Class Action, Lodestar Method, TCPA

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Delaware General Corporation Law Amended to Speed Up the Consummation of Two-Step Merger Transactions

The Delaware General Corporation Law, 8 Del. Code (the “DGCL”), has been amended to add a new Section 251(h) providing for, subject to certain conditions, a more expeditious and less costly closing of a two-step transaction…more

Going-Private Transactions, Mergers, New Legislation, Shareholder Votes

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Seventh Circuit Affirms Lodestar Method to Determine Attorneys’ Fees in TCPA Class Action Settlement

In Americana Art China Company, Inc. v. Foxfire Printing & Packaging, Inc., 743 F.3d 243 (7th Cir. Feb. 18, 2014), the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s attorneys’ fees award in a class…more

Attorney's Fees, Class Action, Lodestar Method, TCPA

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Groundbreaking Cross-border Airport Terminal Linking Tijuana to San Diego Breaks Ground

Sheppard Mullin client, Otay Tijuana Venture, announced this week that a cross-border pedestrian bridge linking San Diego with Tijuana’s A.L. Rodríguez International airport will be set to open next year. The project, which…more

Airlines, Airports, Cross-Border, Economic Development

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Sovereign Litigation in Latin America: Top Five Issues To Think of When Doing Business With a Latin American Country

“We are in the soup” exclaimed, federal judge Thomas Griesa, referring to Argentina allegedly defaulting on its sovereign bonds. And so we are. According to bondholders, on July 30 of 2014, Argentina defaulted on its…more

Bonds, Corporate Counsel, Forum Selection Clause, FSIA, Hedge Funds

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Laches, Statutes of Limitations and Raging Bull: The Supreme Court Re-Emphasizes The Pitfalls Of Delay In Copyright Cases

In Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. __ (2014), the United States Supreme Court addressed the role that the equitable defense of laches – i.e., a plaintiff’s unreasonable and prejudicial delay in commencing suit –…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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Bright Line Rule: Collateral Estoppel Precludes Attacks on Quasi-Judicial Permit Decisions (But Stay Tuned: Rehearing Granted on the Court’s Own Motion)

Simply stated: “[a] collateral attack is not a substitute for an appeal” reasoned the Second Appellate District Court in Bowman v. California Coastal Commission (2nd Dist., Div. 6, 03/18/2014, B243015) ___Cal.App.2nd___, 2014). …more

Collateral Estoppel, Environmental Policies, Nollan v California Coastal Commission, Permits

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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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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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Is Your Criminal Screening Process Compliant?

An employer’s reluctance in hiring an applicant with a criminal history is understandable and sensible. Employers have an obligation to ensure a safe workplace, can be fined for failing to enact safeguards against workplace…more

Ban the Box, Criminal Background Checks, Discrimination, EEOC, FCRA

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Are Call Recording Class Actions Doomed?

In the past four years, droves of call recording class actions have been filed in state and federal courts across California. The gist of each is that a company violates the law when its customer service department records…more

Audio Recording, Class Action, Customer Service Calls, Surveillance

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New Jersey Looks to Limit Use of Criminal History in Hiring Decisions

On Monday, December 16th, the New Jersey Assembly Labor Committee advanced the Opportunity to Compete Act, a new bill that would prohibit New Jersey employers from inquiring about criminal history on a job application or…more

Ban the Box, Criminal Background Checks, Hiring & Firing, Job Applicants

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Attorney-Client Privilege Protection in Internal Investigations Upheld by D.C. Circuit: Good News for Corporate Counsel

In a much-anticipated decision, the D.C. Circuit clarified the general test for the applicability of the attorney-client privilege in internal investigations. In re Kellogg Brown & Root, Inc., 14-5505, 2014 WL 2895939 (D.C. Cir…more

Attorney-Client Privilege, False Claims Act, Internal Investigations, Kellogg Brown & Root, Work-Product Doctrine

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EU Targets Cyber Surveillance Exports and U.S. Considers Cyber Weapon Controls

In light of the recent high profile disclosures of cyber surveillance, there is increased political momentum in the U.S. and EU to control the export of particular cyber technology products and services. In the EU, the focus is…more

Cyber Attacks, Cybersecurity, EU, Export Controls, Surveillance

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Ninth Circuit Fumbles The Ball In Videogame Likeness Cases

Creating a new rule that gives videogames much more limited protection than other expressive works, the Ninth Circuit has ruled that realistically depicting college athletes in videogames showing them doing what they became…more

Athletes, Electronic Arts, First Amendment, NCAA, Right of Publicity

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EU Carbon Trading System Wins Parliament's Support

On Wednesday, the European Parliament approved a proposal to delay the issue of 900 million emissions allowances (each representing the right to emit one metric ton of carbon dioxide or greenhouse gas equivalent, or CO2e). The…more

Carbon Capture and Sequestration, Carbon Emissions, Carbon Off-Set Credits, Clean Energy, Climate Change

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California Court of Appeal Enforces Contractor’s Agreement to Arbitrate Misclassification Claims Out of State

On Monday, July 21, 2014, the California Court of Appeal issued its opinion in Galen v. Redfin Corp., A138642. This case is important for two reasons: the court upheld an arbitration agreement between a Seattle-based company…more

Arbitration, Arbitration Agreements, Contractors, Employer Liability Issues, Forum

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FTC Targets Reporting of Licensing of Pharmaceutical Patents With Special Rules for Premerger Notification: What You Need to Know

On November 15, 2013, the Federal Trade Commission (“FTC”) adopted special rules for determining whether “exclusive” licenses of pharmaceutical patents are required to be reported to the FTC and the Antitrust Division of the…more

FTC, Hart-Scott-Rodino Act, Patents, Pharmaceutical, Pharmaceutical Patents

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Is Your Out-of-State LLC “Doing Business” in California?

Individuals and entities, including those from outside California, who invest in or do business through an out-of-state limited liability company (“LLC”) may be surprised to find out that they have filing obligations and tax…more

Corporate Counsel, Filing Requirements, Foreign Entities, Limited Liability Companies, Tax Liability

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Uganda Be Kiddin’ Me: United States Slaps On Sanctions in Response to Anti-Gay Law

Last month, the United States announced new sanctions against Uganda in response to human rights violations, targeted discrimination, and draconian criminal penalties. Specifically, on June 19, the Obama administration quietly…more

Africa, Discrimination, Gay Rights, Sanctions

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IRS, DOL and EBSA Issue Post-DOMA Guidance Regarding Treatment of Same-Sex Spouses

The Internal Revenue Service (“IRS”), the Employee Benefits Security Administration (“EBSA”) and the Department of Labor (“DOL”) have recently provided new guidance with respect to how lawfully married same-sex spouses will be…more

DOL, DOMA, EBSA, Employee Benefits, ERISA

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A Peek Around the Curtain: A False Claims Act Settlement for Avoiding Customs Charges

On November 14, 2013, the U.S. Department of Justice announced a False Claims Act settlement with Basco Manufacturing Company, a maker of shower enclosures, for $1.1 million related to misstatements on U.S. Customs and Border…more

Anti-Dumping Duty, China, Compliance, Countervailing Duties, Customs

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Proposed California Legislation Would Limit and Possibly Punish Non-Disparagement Clauses in Online Consumer Contracts

On Tuesday, April, 22, the California Assembly Judiciary Committee voted 10-0 to approve a so-called “Yelp bill” that would prohibit companies from suppressing negative consumer reviews through the use of “non-disparagement…more

First Amendment, Legislative Agendas, Marketing, Online Reviews, Social Networks

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Contaminated but Remediated Soil and Cortese Listing Does Not Compel Preparation of EIR

As 2013 came to a close, the California court of appeal in Parker Shattuck Neighbors v. Berkeley City Council (1st Dist., Div. 4, 12/30/13, A136873) ___Cal.App.1st___, 2013, upheld the City of Berkeley’s decision not to require…more

CEQA, Contaminated Properties, Contamination, Environmental Impact Report, Environmental Policies

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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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CFPB Has Authority to Bring Actions Against a Non-Depository Institution’s Related Persons; Are Payday Lenders Next?

The Dodd-Frank Wall Street Reform and Consumer Protection Act grants to the U.S. Bureau of Consumer Financial Protection (the “CFPB”) the power to bring actions against “related persons” of non-depository institutions. A…more

CFPB, Corporate Officers, Directors, Dodd-Frank, Financial Companies

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Cybersecurity: 36 Questions Every Director Should Ask

Cyber security, data loss, hacking and schemes to steal personal information and assets electronically are all over the news daily. Companies are the primary targets of these actions since they accumulate information, store it…more

Cybersecurity, Data Breach, Data Protection, Hackers

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Top 5 Actions to Consider for the New York Not-for-Profit Law Overhaul Effective on July 1

On July 1, 2014, the New York Nonprofit Revitalization Act (the “Act”) took effect. The Act is the most significant modification of New York’s Not-for-Profit Corporation Law (the “NPCL”) in approximately 40 years. New…more

Corporate Governance, Non-Profits, NPCL

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Collateral Estoppel Bars Copy-Cat Environmental Plaintiff in New Case After Judgment

Roberson v. City of Rialto (4th Dist., Div. 2, 5/21/2014, E058187) - The Fourth District Court of Appeal affirmed a judgment denying a petition for writ of mandate to invalidate project approvals for the construction of a…more

Collateral Estoppel, Environmental Claims, Environmental Liability, Environmental Policies, Wal-Mart

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OIG Investigations (Without Subpoena Bells and Whistles) Coming to a Program Near You

The Inspector General Act of 1978 aimed to “consolidate existing auditing and investigative resources to more effectively combat fraud, abuse, waste and mismanagement in the programs and operations of [the executive branch].” To…more

Compliance, DOD, Enforcement, Fraud, Investigations

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Preexisting Management Plan Not a “Mitigation Measure” for Purposes of CEQA Exemption

A preexisting management plan intended to minimize environmental effects of recurring facility operations and events is not a “proposed mitigation measure” for purposes of determining whether an event qualifies for a CEQA…more

CEQA, Environmental Claims, Environmental Liability, Environmental Policies

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Fourth Circuit Affirms Dismissal of Securities Fraud Complaint Where Inference of Scienter Was Not Sufficiently Strong

In Yates v. Municipal Mortgage & Equity, LLC, No. 12-2496 (4th Cir. Mar. 7, 2014), the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a securities fraud claim under Section 10(b) of the…more

Class Action, Disclosure, FASB, LIHTC, MuniMae

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Of Buckeyes and Batons Rouges: Ohio and Louisiana Adopt Comprehensive Pole Access and Attachment Rules

In recent separate actions, the Public Utility Commission of Ohio (“PUCO”) and the Louisiana Public Service Commission (“LPSC”) adopted comprehensive pole attachment regulatory regimes intended to facilitate the deployment of…more

Broadband, Infrastructure, Mobile Broadband Services, Pole Attachment Order, Regulatory Standards

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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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Does A Consumer’s Exercise of a Rescission Right Mean that the Loan Is Automatically Rescinded? Perhaps Not, According to One Federal Court, If the Consumer Does Not Also File a Lawsuit for Rescission

In Baker v. Bank of America, N.A., No. 5:13-CV-92-F, 2014 U.S. Dist. LEXIS 9578 (E.D.N.C. Jan. 27, 2014), the United States District Court for the Eastern District of North Carolina held that even if a consumer timely exercises…more

Bank of America, Banks, Fair Lending, Lending, Rescission

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Considerations for 2014 Proxy Season and Beyond

Following are some topics that public companies may want to consider in preparation for the 2014 proxy season. Shareholder Proposals - The 2013 proxy season reflected a continued increase in the number of…more

Board of Directors, CEOs, Conflict Mineral Rules, Corporate Governance, Disclosure Requirements

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Reminder to Perform Annual ISO/ESPP Reporting in January 2014

As discussed in our December 16, 2010 blog article, the IRS issued final regulations in 2009 under Section 6039 of the Internal Revenue Code (the “Code”) that require Employers to annually furnish each employee who exercised…more

Employee Stock Purchase Plans, Incentive Stock Options, Income Taxes, IRS, Reporting Requirements

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"All natural" litigation - California’s litigation boom could be spreading closer to home

The typical suit alleges that consumers are misled because a product labeled as “all natural” in fact contains one or more ingredients that are not natural. A plaintiff who purchased the product can file suit on behalf of…more

FDA, Food Labeling, Labeling

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Potential Challenges Associated With California's Revised Uniform Limited Liability Company Act Scheduled to Take Effect on January 1, 2014

On September 21, 2012, S.B. 323, the California Revised Uniform Limited Liability Company Act (known as the RULLCA), was signed into law by Governor Jerry Brown and is scheduled to take effect on January 1, 2014…more

Fiduciary Duty, Jerry Brown, LLC, New Legislation, RULLCA

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Interactive Gaming Incentives in the United States

There’s been a lot of press about places that are unfriendly to gamers or game developers. Authorities in various jurisdictions have attempted to address issues of violence, sex, and gambling, either resident in or allegedly…more

Gambling, Gaming, Popular

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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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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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Dry Times: How to Deal with the Impact of California’s Drought on Critical Commercial Agreements

On January 17, 2014, California Governor Jerry Brown declared a “State of Emergency” in California due to the severity of drought conditions across the State. Since then, the California drought continues to be severe and…more

Commercial Contracts, Conservation, Drought, Force Majeure Clause, State of Emergency

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Attacking LBO Payouts as State Law Fraudulent Transfers

The United States Bankruptcy Court for the Southern District of New York (the “Court”) in Weisfelner v. Fund 1 (In Re Lyondell Chemical Co.), 2014 WL 118036 (Bankr. S.D.N.Y. Jan. 14, 2014) recently held that the safe harbor…more

Buyouts, Fraudulent Transfers, Leveraged Buyout, Transfers

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Dry Times: How to Deal with the Impact of California’s Drought on Critical Commercial Agreements

On January 17, 2014, California Governor Jerry Brown declared a “State of Emergency” in California due to the severity of drought conditions across the State. Since then, the California drought continues to be severe and…more

Commercial Contracts, Conservation, Drought, Force Majeure Clause, State of Emergency

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Third Circuit Says Classwide Arbitration a Matter for Courts to Decide

The U.S. Court of Appeals for the Third Circuit ruled last week that courts, not arbitrators, should determine whether an agreement between two parties to arbitrate employment disputes allows for classwide arbitration…more

Appeals, Arbitration, Arbitration Agreements, Class Action, Class Action Arbitration Waivers

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First Circuit Finds that a Private Equity Fund Can Be Liable for the Pension Obligations of its Portfolio Company

In Sun Capital Partners III, L.P. et al. v. New England Teamsters & Trucking Industry Pension Fund, No. 12-2312, 2013 WL 3814985 (1st Cir. July 24, 2013), the First Circuit held that a private equity fund could be liable for its…more

Benefit Plan Sponsors, Employee Benefits, ERISA, Investment Portfolios, Pensions

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Second Circuit Finds that Entry-Level Audit Associates at Accounting Firm are Exempt from Federal Overtime Requirements

In Pippins v. KPMG LLP, No. 13-889 (2d Cir. July 22, 2014), the Second Circuit Court of Appeals unanimously held that entry-level audit associates (“Plaintiffs”) at KPMG LLP qualify for the Fair Labor Standards Act’s (“FLSA”)…more

Audits, Employee Rights, FLSA, KPMG, Over-Time

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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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SEC Brings Charges Against SEC Registered Investment Adviser for Improperly Allocating Expenses and Other Violations of the Investment Advisers Act of 1940 (the “Advisers Act”)

On February 25, 2014 the Securities and Exchange Commission (the “SEC”) filed public administrative and cease-and-desist proceedings against Arizona-based Clean Energy Capital, LLC (a registered investment adviser, “CEC”) and…more

Cease and Desist, Fraud, Investment Adviser, Investment Advisers Act of 1940, SEC

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Top Priorities for BigLaw in 2014? Here's the CMO Perspective...

What will be the top priority for law firms in 2014? The answer depends on whom you ask, of course – and, for our Firm Leadership series, we put the question to chief marketing officers at law firms publishing on JD Supra..…more

Big Law, Client Services, Firm Leadership, Legal Perspectives

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California Supreme Court Limits Application of Commissioned Employee Exemption

On July 14, 2014, the California Supreme Court held in Peabody v. Time Warner Cable, Inc. that employees qualify for the California “commissioned employee” exemption in a pay period only if they receive “earnings [that] exceed…more

Exempt-Employees, Minimum Wage, Time Warner, Wage and Hour

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U.S. Supreme Court Decision Gives More Latitude to Defeat Securities Fraud Class Action Lawsuits Prior to Class Certification

In Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317, __ S Ct. __, 2014 WL 2807181 (U.S. June 23, 2014), the United States Supreme Court refused to overturn the landmark decision Basic v. Levinson, but ruled that…more

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

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California Court of Appeal Enforces Contractor’s Agreement to Arbitrate Misclassification Claims Out of State

On Monday, July 21, 2014, the California Court of Appeal issued its opinion in Galen v. Redfin Corp., A138642. This case is important for two reasons: the court upheld an arbitration agreement between a Seattle-based company…more

Arbitration, Arbitration Agreements, Contractors, Employer Liability Issues, Forum

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The DMCA: Seeking Safe Harbor in a Sea of Troubles

Détente can be a beautiful thing. However, as demonstrated by the recent settlement agreement between Mega-media giants Google and Viacom, achieving it can be very expensive. In 2007, Viacom filed suit against YouTube…more

Copyright, Copyright Infringement, DMCA, Google, Safe Harbors

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Dodd-Frank Whistleblower Protection: For America Only

The U.S. District Court for the Southern District of New York has held that the whistleblower protection provisions of the Dodd-Frank Act do not apply outside the United States, even where the employee alleged he was terminated…more

Anti-Retaliation Provisions, Dodd-Frank, Extraterritoriality Rules, FCPA, Whistleblower Protection Policies

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Common Pitfalls of Appellate Practice

According to Merriam-Webster, a pitfall is a "danger or problem that is hidden or not obvious at first." If you're a lawyer who specializes in appeals, the "hidden problems" in appellate practice we highlight below are obvious,…more

Appeals

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New California Statutes Potentially Increase Owners’ and Developers’ Exposure Under the Prevailing Wage Law

California has enacted several statutes, effective January 1, 2014, which will likely increase the exposure of contractors and subcontractors, and the developers and owners for whom they work, to claims for prevailing wage…more

Construction Contracts, Contractors, Employer Liability Issues, Prevailing Wages, Subcontractors

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MOFCOM to Confirm Relaxation of Registered Capital Contribution Requirements for FIEs

On June 17, 2014, the Ministry of Commerce (the “MOFCOM”), the major regulator of foreign investment in China, issued the Notice on Improving Foreign Investment Review Administration (the “MOFCOM Notice”) to make it clear that…more

Capital Contributions, China, Foreign Investment, MOFCOM

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Redbox Collection of ZIP Codes Does Not Violate Song-Beverly Privacy Rights

Redbox Automated Retail, LLC (“Redbox”), provider of the popular self-service kiosks that rent movies and video games in airports and other locations, received confirmation last month from the Ninth Circuit Court of Appeals that…more

Redbox, Retailers, Song-Beverly Credit Card Act, ZIP Codes

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Call Me Maybe?: The New TCPA Position Announced by The Federal Communications Commission in Nigro v. Mercantile Adjustment Bureau

As federal courts continue to grapple with the explosion of litigation brought by plaintiffs under the Telephone Consumer Protection Act (“TCPA”), the Federal Communications Commission (“FCC”) is increasingly being called upon…more

Cell Phones, Debt Collection, FCC, TCPA

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U.S. Supreme Court Decision in Michigan v. Bay Mills Indian Community et al.

The U.S. Supreme Court (“Court”) issued a 5-4 decision Tuesday in a case with implications for Tribal-State relations and the resolution of disputes under the federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq…more

Casinos, Gaming, Indian Gaming Regulation Act, SCOTUS, Tribal Lands

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The Libor Scandal: What's Next?

The London Interbank Offered Rate (Libor) is calculated daily by the British Banking Association (BBA) and published by Thomson Reuters. The rates are calculated by surveying the interbank borrowing costs of a panel of banks and…more

Barclays, Due Diligence, EU, IOSCO, Libor

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Bundled Payments under the Affordable Care Act Continue to Gain Influence

The Center for Medicare and Medicaid Services (CMS) recently announced that it will add roughly 4,100 providers to the 2,400 existing providers testing the possible use of Medicare bundled payment contracts. Providers must…more

Affordable Care Act, Bundling Rules, CMS, Employee Benefits, Healthcare

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Cloudy Skies Ahead for Providers? CMS’ Release of Medicare Billing Data Combined with Physician Payment Sunshine Act Data May Boost Fraud Litigation

In February 2013, we reported (on our Healthcare Law Blog) that the Centers for Medicare and Medicaid Services (CMS) announced the final rule for the Physician Payments Sunshine Act. In the interest of providing more…more

CMS, Drug Manufacturers, Final Rules, Healthcare, Medicaid

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Delaware Court Provides Critical Guidance as to the Commercial Reasonableness of a UCC Article 9 Foreclosure Sale

Secured lenders often resort to non-judicial foreclosure sales of personal property upon a borrower’s default. Article 9, Part 6 of the Uniform Commercial Code requires that every aspect of such a sale must be commercially…more

Auction, Borrowers, Buyers, Default, Foreclosure

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No Private Attorney General Fees for Homeowner

In Donald A. Norberg v. California Coastal Commission (4th Dist., Div. 3, 10/25/13, G047522) ___Cal.App.4th___, 2013, the court of appeal reversed the trial court’s award of private attorney general fees because the homeowner’s…more

Attorney Generals, Attorney's Fees, Public Interest, Writ of Mandamus

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Supreme Court Grants Limited Review of GHG Emissions Regulations

On October 15, 2013, the United States Supreme Court granted certiorari to review six of the nine submitted petitions stemming from an appellate court ruling upholding Environmental Protection Agency (“EPA”) greenhouse gas…more

Carbon Emissions, Environmental Policies, EPA, Greenhouse Gas Emissions, SCOTUS

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Of Buckeyes and Batons Rouges: Ohio and Louisiana Adopt Comprehensive Pole Access and Attachment Rules

In recent separate actions, the Public Utility Commission of Ohio (“PUCO”) and the Louisiana Public Service Commission (“LPSC”) adopted comprehensive pole attachment regulatory regimes intended to facilitate the deployment of…more

Broadband, Infrastructure, Mobile Broadband Services, Pole Attachment Order, Regulatory Standards

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When Goods Are Shipped from Overseas, When Are They Considered “Received by the Debtor” for Purposes of Asserting a Section 503(b)(9) Administrative Claim?

A bankruptcy court in Pennsylvania recently held that trade creditors who supplied goods to a debtor prior to its bankruptcy filing were not entitled to administrative priority status under Bankruptcy Code section 503(b)(9)…more

Commercial Bankruptcy, Debt, Debtors, Section 503(b)(9)

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Update: New Jersey Limits Use of Criminal History in Hiring Decisions

As we reported in December 2013, New Jersey was on the road to joining 6 other states which have recently passed legislation banning or limiting the use of criminal background checks in the hiring process…more

Background Checks, Criminal Background Checks, Employer Liability Issues, Hiring & Firing, Job Applicants

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Considerations for 2014 Proxy Season and Beyond

Following are some topics that public companies may want to consider in preparation for the 2014 proxy season. Shareholder Proposals - The 2013 proxy season reflected a continued increase in the number of…more

Board of Directors, CEOs, Conflict Mineral Rules, Corporate Governance, Disclosure Requirements

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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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New Registration Requirements and Deadline for PRC Domestic PE Funds and Managers

Domestic Chinese private equity managers should take notice of new provisional regulations requiring registration of domestic Chinese private equity managers and filings with the Asset Management Association of China (“AMAC”). …more

China, Managers, Private Equity, Registration, Regulation

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What’s New Out There? Highlights from the March 2014 Federal Register

A. EPA Adopts Final Rule: EPA-Specific Past Performance Regulations (79 Fed. Reg. 15921-24) (3/21/2014) - The EPA is deleting EPA-specific past performance regulations in the EPA Acquisition Regulation (EPAAR) because…more

DOD, Environmental Policies, EPA, Export Controls, NASA

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So Your Employer Is Being Acquired? Consideration for the management team in a sale to a private equity buyer

Being acquired by a private equity firm is both a stressful and exciting time for the management team of any business. In addition to your traditional duties of actually running a successful company, you will also be called on…more

Acquisitions, Corporate Governance, Private Equity

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Threats and Vulnerabilities - What Every Contractor Should Know About The SBA's New "Presumed Loss" and "Deemed Certification" Rules

Nearly three years ago, on September 27, 2010, the President signed into law the Small Business Jobs Act of 2010 (“Jobs Act”), which directed the Small Business Administration (“SBA”) to implement a variety of small business…more

Certifications, Contractors, JOBS Act, Misrepresentation, Proof of Loss

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SEC Eliminates the Prohibition on General Solicitation for Rule 506 and Rule 144A Offerings

On July 10, 2013, the SEC adopted the amendments required under the JOBS Act to Rule 506 that would permit issuers to use general solicitation and general advertising to offer their securities, subject to certain limitations. In…more

Bad Actors, Dodd-Frank, Felons, General Solicitation, JOBS Act

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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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Film Tax Incentives in Latin America

Distribution of audiovisual content is blooming at a very fast pace, and while the consumer is still demanding for more new content, producers are struggling with this new competitive era. While appetite for content is at its…more

Amazon, Cable Television Providers, Funding, Hulu, Latin America

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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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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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Common Pitfalls of Appellate Practice

According to Merriam-Webster, a pitfall is a "danger or problem that is hidden or not obvious at first." If you're a lawyer who specializes in appeals, the "hidden problems" in appellate practice we highlight below are obvious,…more

Appeals

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U.S. Supreme Court Decision in Michigan v. Bay Mills Indian Community et al.

The U.S. Supreme Court (“Court”) issued a 5-4 decision Tuesday in a case with implications for Tribal-State relations and the resolution of disputes under the federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq…more

Casinos, Gaming, Indian Gaming Regulation Act, SCOTUS, Tribal Lands

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Committee's Attack upon Lender's Make-Whole Premium Denied

The United States Bankruptcy Court for the District of Delaware (the “Court”) recently upheld a $23.7 million make-whole payment (the “Make-Whole Payment”) in In re School Specialty (Case No. 13-10125), denying the assertion by…more

Borrowers, Chapter 11, Credit Agreements, Insurers, Lenders

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Everyone Gets To See The Evidence: The California Court Of Appeal Rejects an Attorneys’ Fee Award Based On The Trial Court’s In Camera Review Of Class Counsel’s Billing Records

In Concepcion v. Amscan Holdings, Inc. et al., — Cal.Rptr.3d —-, 2014 WL 595822 (Cal.App. 2 Dist. Feb. 18, 2014) the California Court of Appeal rejected class counsel’s fee award where class counsel’s billing records were…more

Attorney's Fees, Class Action, False Billing, In Camera Review

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Shedding Light on CFIUS: Appeals Court Holds That CFIUS Review Lacks Constitutional Due Process

In a stunning ruling issued on July 15, 2014, the U.S. Court of Appeals for the D.C. Circuit held that review by the Committee on Foreign Investment in the United States (“CFIUS”) and the subsequent unwinding of the investment…more

CFIUS, Due Process, Fifth Amendment, Foreign Investment

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Ninth Circuit Thinks Inside the Bun, Applies Traditional Agency Principles To Dismiss Putative TCPA Class Action Claims Against Taco Bell Corp.

In Thomas v. Taco Bell Corp., No. 12-56458 (9th Cir. July 2, 2014) the Ninth Circuit Court of Appeals recently held that Taco Bell, one defendant in a putative class action lawsuit alleging violations of the Telephone Consumer…more

Advertising, Agency, Dish Network, FCC, Putative Class Actions

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SEC Eliminates the Prohibition on General Solicitation for Rule 506 and Rule 144A Offerings

On July 10, 2013, the SEC adopted the amendments required under the JOBS Act to Rule 506 that would permit issuers to use general solicitation and general advertising to offer their securities, subject to certain limitations. In…more

Bad Actors, Dodd-Frank, Felons, General Solicitation, JOBS Act

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Changes To California Title 24 Energy Use Requirements Effective July 1, 2014

On July 1, 2014, 2013 CALGreen, Part 11, Title 24, of the California Code of Regulations will go into effect. As a result, certain nonresidential additions and alterations will trigger compliance with more stringent…more

Energy, Energy Efficiency, Utilities Sector

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Shelter from the Coming Storm: Anti-Corruption Compliance in European Public Procurement

A red sky at morning is the traditional harbinger of ill weather. From our vantage point in Brussels, we’ve scanned the horizon for signs of the future of anti-bribery enforcement activity in Europe. We’ve identified four…more

Anti-Corruption, Enforcement, EU, European Commission, Transparency

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Shanghai Pilot Free Trade Zone (PFTZ)

The China (Shanghai) Pilot Free Trade Zone (PFTZ) officially launched on September 29th, granting 25 Chinese and overseas companies licenses to register in the PFTZ on its first day. The General Plan for the PFTZ was announced…more

China, Corporate Taxes, Electronic Filing, Foreign Investment, Free Trade Zone

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Here's How Young Associates Actually Impress Law Firm Partners

How might a young associate make a positive impression on partners in their new law firm? What to do to make a meaningful impact and stand out in ways that matter? For a perspective on this oft-asked question, we turned…more

Career Development, Firm Leadership, Young Lawyers

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Cherry Picking Contract Provisions in Bankruptcy: Not so Taboo After All?

One of the quintessential principles of the Bankruptcy Code is that when a debtor assumes an executory contract, it must assume the contract as a whole – a debtor cannot cherry pick the contract provisions it wants to assume…more

Bankruptcy Code, Borrowers, Consumer Bankruptcy, Contract Interpretation, Debtors

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Supreme Court’s Latest Interpretation on Late Payment Interest

The Supreme People’s Court of China recently issued an interpretation on how to calculate the interest accrued on delayed payment – Interpretation of the Supreme People’s Court of Several Issues Concerning the Applicable Law for…more

China, Enforcement Actions, Interest Payments

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Beijing Higher People's Court Clarifies Usage of Consent Letters to Overcome Trademark Rejections in the PRC

While the PRC Trademark Law and Implementing Regulations provide no real guidance on how or whether consent letters can be used to overcome trademark application rejections on relative grounds, in recent years, the TRAB has…more

China, PRC Trademark Law Amendments, SAIC, Trademarks, Written Consent

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USPTO Issues Preliminary Examination Instructions in Light of Alice Corp.

In Alice Corporation Pty. Ltd. v. CLS Bank International, el al., Case No. 13-298 (decided June 19, 2014) (“Alice Corp.”), the Supreme Court unanimously held that the subject patent claims are not patent-eligible under 35…more

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

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Delaware Court of Chancery Rejects Indemnification Sleight of Hand

In Branin v. Stein Roe Inv. Counsel, LLC, C.A. 8481-VCN, 2014 WL 2961084 (Del. Ch. June 30, 2014), the Delaware Court of Chancery held that a vested right to indemnification may not be rescinded by a subsequent amendment to the…more

Corporate Counsel, Indemnification, Limited Liability Companies, Operating Agreement, Vested Rights Doctrine

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$2.3 Million Trial Verdict Against Newegg

On November 25, 2013, the jury in TQP Development, LLC v. 1-800-Flowers.com, et al., U.S.D.C., E.D. Tex., No. 2:11-cv-00248-JRG-RSP, returned a $2.3 million verdict for plaintiff TQP Development, LLC (“TQP”) against Newegg, Inc…more

Jury Verdicts, Newegg, Patent Infringement, Patent Litigation, Patents

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The push for greater transparency in healthcare continues

Recently, CMS released the proposed fiscal year 2015 Inpatient Prospective Payment System (IPPS) rule for inpatient stays in long-term and general acute care hospitals. Included among the regular updates to Medicare payment…more

Affordable Care Act, CMS, Healthcare, Hospitals, IPPS

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Showdown in the Richmond: The City of Richmond Threatens Eminent Domain on Underwater Loans

BREAKING NEWS: In a contentious 4-3 decision and amid more than 300 community members on both sides of the issue, the City Council for the City of Richmond voted to continue pursuing its eminent domain plan in the early morning…more

Eminent Domain, Foreclosure, Loans, Mortgages, Municipalities

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If It’s Not In Writing, It Didn’t Happen: Oral Promises To Modify A Loan Are Not Enforceable

A recent decision issued by the California Court of Appeal will make it more difficult for plaintiffs seeking to avoid foreclosure. In Rossberg v. Bank of America, N.A., 219 Cal.App.4th 1481 (4th Dist. 2013), the California…more

Contract Formation, Contract Interpretation, Loan Modifications, Oral Contracts

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Pioneer ACOs Exit the Program

On July 16, 2013, the Centers for Medicare and Medicaid Services (CMS) announced the first year results from its Pioneer Accountable Care Organization (ACO) program. The program, launched by the CMS Innovation Center, is part of…more

ACOs, Affordable Care Act, CMS, Healthcare, Medicare

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Commingling and Personal Piggy Bank Leads to Summary Judgment on Veil Piercing Claims

In Webmediabrands, Inc. v. Latinvision, Inc., No. 601048/2010, the Supreme Court (J. Friedman) pierced the corporate veil at the summary judgment stage. Under New York law, the factors used to determine whether a court…more

Commingling, Corporate Veil, Fraud, Personal Liability, Summary Judgment

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Proposed health IT strategy aims to promote innovation

On April 7, 2014, the Food and Drug Administration (FDA), in consultation with the Office of the National Coordinator for Health Information Technology (ONC) and the Federal Communications Commission (FCC) released a draft…more

Data Protection, FCC, FDA, Health Information Technologies, Healthcare

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China Cracking Down On Pharmaceutical Corruption

Stricter Blacklist Regime - On December 25, 2013, the National Health and Family Planning Commission of China (“National Health Commission”, former Ministry of Health) issued the amended Provisions Regarding the…more

China, Corruption, Pharmaceutical