Sheppard Mullin Richter & Hampton LLP

Watching the Detectives: The SEC Launches a Dedicated FINRA Oversight Unit

The SEC has launched a dedicated team to oversee FINRA, according to remarks by Marc Wyatt, Director of the SEC’s Office of Compliance Inspections and Examinations (“OCIE”). Congress has vested the SEC with the power to…more

Broker-Dealer, FINRA, FISIO, Investment Adviser, Investment Companies

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Delaware Court of Chancery Dismisses Post-Closing Disclosure Claims for Damages, Cautioning That Such Claims Are Best Pursued Pre-Closing

In Nguyen v. Barrett, C.A. No. 11511-VCG, 2016 WL 5404095 (Del. Ch. Sept. 28, 2016) (Glasscock, V.C.), the Delaware Court of Chancery dismissed an amended complaint seeking damages for alleged disclosure violations in connection…more

Acquisitions, AOL, Disclosure Requirements, Fees, Fiduciary Duty

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Fiduciary Duties in the Context of Dent v. Ramtron Int’l Corp.

The Delaware Court of Chancery recently addressed a number of claims commonly made in the “ubiquitous” stockholder litigation that follows announcement of a public merger or acquisition transaction. In Dent v. Ramtron Int’l…more

Acquisitions, Breach of Duty, Fiduciary Duty, Mergers, Shareholder Litigation

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FTC Proposes Consent Order to Settle Charges Alleging Misrepresentations by Patent Assertion Entity

On November 6, 2014, the Federal Trade Commission proposed a consent order that would settle charges against a patent assertion entity, MPHJ Technology Investments, LLC (“MPHJ”), and a law firm that represented MPHJ…more

Consent Order, FTC, Patent Infringement, Patent Litigation, Patent Trolls

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Brexit, Here We Come (or Go)

The UK people have voted to leave the European Union. Although there is no constitutional duty to leave the Union as a result, politically this is likely going to happen. Change will not be immediate and happen over time…more

Article 50 Treaty of the EU, Attorney-Client Privilege, Competition Authorities, Contract Disputes, Digital Single Market

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Back at it Again (with the Standing Opinions): Seventh Circuit Reiterates Article III Standing in Data Breach Class Actions

On July 20, 2015, the Seventh Circuit issued its opinion in Remijas v. Neiman Marcus Group, 794 F. 3d 688 (7th Circ. 2015), which immediately became the low-water mark for Article III standing in data breach cases. In short,…more

Article III, Causation, Class Action, Class Certification, Data Breach

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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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Terrorism Risk Insurance Act Set to Expire at Year End

The Terrorism Risk Insurance Act (TRIA) now appears set to expire as of December 31, 2014, barring further action from Congress.  The Terrorism Risk Insurance Program Reauthorization Act of 2014[1] would have extended the…more

Legislative Agendas, Terrorism Insurance, TRIA

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Ninth Circuit Rulings on Equitable Mootness in Transwest and Sunnyslope Impact Third Party Investors

The doctrine of equitable mootness provides that Chapter 11 reorganization plans will be deemed moot, and therefore not subject to appellate review, if a plan has been substantially consummated and granting appellate relief…more

Appellate Review, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Creditors

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[Event] Labor & Employment Law Update & Happy Hour - Oct. 22nd, San Diego, CA

Please join us for Sheppard Mullin's bi-annual Labor & Employment Law Update & Happy Hour. There have been significant developments in California labor and employment law this year. We will explain how these new developments…more

Employer Liability Issues, Employment Contract, Events, Hiring & Firing, Independent Contractors

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California Enacts New Law Mandating Paid Sick Leave for Employees

On September 10, 2014, California Governor Jerry Brown signed into law the Healthy Workplaces, Healthy Families Act of 2014. As a result, most employers in California will be required to provide up to 24 hours (3 days) of paid…more

Employee Rights, Employer Liability Issues, New Legislation, Paid Leave, Recordkeeping Requirements

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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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[Event] Labor & Employment Breakfast Briefing - Sept. 10th, Chicago, IL

Sheppard Mullin invites you to the second in a series of breakfast briefings in our Chicago office addressing domestic and global employment law developments, legislation, and trends affecting the workplace. Each briefing…more

ADA, Continuing Legal Education, Employer Liability Issues, Events, FMLA

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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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Price Reductions Are Dead; Long Live Price Reductions

You no doubt have heard by now about GSA’s 23 June effort to “embrace modern technology while moving away from outmoded practices” – specifically, its implementation of the new Transactional Data Reporting Rule (“TDR Rule”) and…more

Federal Contractors, General Services Administration (GSA), Price Reduction Clause, TDR Final Rule

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Patent Trial & Appeal Board Institutes 17 Inter Partes Reviews for TCL Communication Technology Holdings, LTD.

In Fiscal Year 2015, the Patent Trial and Appeal Board (“PTAB”) instituted inter partes reviews (“IPR”) on approximately 68% of petitions filed. Overcoming these odds, the PTAB recently instituted 17 out of 17 IPRs filed by…more

Ericsson, Inter Partes Review (IPR) Proceeding, Order to Stay, Patent Trial and Appeal Board, Telecommunications

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Will The FTC Issue Native Advertising Guidelines in 2015?

As we previously reported last year, native advertisements represent an increasingly popular and effective means of promotion for marketers that also presents a major challenge for the Federal Trade Commission (“FTC”), an…more

Advertising, FTC, Native Advertising, Online Advertisements, Technical Conference

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New N. Calif. Report Suggests High Cost of Giving Birth Linked to Increased Health System Consolidation

Childbirth is the leading indication for hospital admission in California, with roughly 500,000 deliveries in the state each year. This is particularly challenging for health plans serving Northern California, the most expensive…more

Affordable Care Act, Cost-of-Living, Health Care Providers, Health Insurance, Hospitals

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Second Circuit Holds That SIPA Does Not Permit an Inflation or Interest Adjustment to “Net Equity” Claims For Customer Property

In In re Bernard L. Madoff Investment Securities LLC, No. 14-97-bk(L), 2015 WL 727965 (2d Cir. Feb. 20, 2015), the United States Court of Appeals for the Second Circuit held that no adjustment for inflation or interest could be…more

Appeals, Bernie Madoff, Inflation Adjustments, SIPA

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[Webinar] What Happens if You Get Sued? Litigation Basics - Dec. 17th, 12:00pm PST

When your company gets sued, what steps should you take immediately and what do you need to be concerned about in the first 30 days of the case? Although cases take a long time to get to trial (and most never make it that far),…more

Emerging Growth Companies, Entrepreneurs, Litigation Strategies, Startups, Webinars

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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 (EIR), 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, Department of Defense (DOD), Enforcement, Fraud, Investigations

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Embraer’s FCPA Deferred Prosecution Agreement and $205 Million Payment Demonstrate Need for Adequate Internal Controls

Brazilian aircraft manufacturer Embraer SA (“Embraer”) will pay the United States government $205 million to settle allegations that the company violated the Foreign Corrupt Practices Act (“FCPA”) by paying millions in bribes…more

Aircraft Equipment, Anti-Bribery, Brazil, Criminal Conspiracy, Criminal Penalties

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Medicare Makes Changes to the Shared Savings Program to Strengthen Incentives for ACO Care Coordination

On June 6th, the Centers for Medicare & Medicaid Services (CMS) released a final rule shifting how Medicare pays Accountable Care Organizations (ACO) in the Medicare Shared Savings Program. CMS said the final rule aims to help…more

ACOs, CMS, Final Rules, Health Care Providers, Medicare Shared Savings Program

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International Entrepreneurs New Proposed Work Authorization for Founders of Start-Up’s And a Comparison to Other Visa Options

On August 31, 2016 the Department of Homeland Security (DHS) proposed an “International Entrepreneur” (I.E.) rule that would allow qualifying foreign investors to develop and grow their start-up companies in the United States. …more

Angel Investors, Business Development, Business Formation, China, Customs and Border Protection

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Governor Brown Signs Bill Clarifying Wage Statement Requirements for Exempt Employees

On July 22, 2015, Governor Brown signed AB 2535 that clarifies which employees for whom an employer must track hours worked and record those hours on their wage statements. The bill will become effective January 1,…more

Exempt-Employees, Exemptions, Governor Brown, Minimum Wage, New Legislation

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A Stick to Balance the Carrot: ONC Finalizes a New Framework to Address Non-Conformities in Certified Health Information Technology

The Office of the National Coordinator for Health Information Technology (ONC) has released a final rule (Final Rule) introducing a new regulatory framework for certified health information technology (Health IT). The use of…more

Electronic Medical Records, Final Rules, Health Care Providers, Health Information Technologies, Healthcare

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Government Forces Awaken: The Rise of Cyber Regulators in 2016

As the sun sets on 2015, but before it rises again in the New Year, we predict that, in the realm of cyber and data security, 2016 will become known as the “Rise of the Regulators.” Regulators across numerous industries and…more

CFPB, Cybersecurity, Data Protection, Department of Defense (DOD), DOE

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New Jersey Congressman Questions Legality of Daily Fantasy Sports

There is something to be said for keeping a low profile. Apparently, daily fantasy sports companies DraftKings and FanDuel are not fans of the idiom, as viewers that tuned in to week 1 action of the NFL were inundated with…more

Fantasy Sports, Gambling, NFL, Online Gaming, Sports Gambling

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Viability of certain Internet and software patents reconfirmed in DDR Holdings, LLC v. Hotels.com

DDR Holdings, LLC v. Hotels.com, L.P., Appeal No. 2013-1505 (Fed. Cir. Dec. 5, 2014) For those following the law of patent eligibility in the United States, a December 5, 2014 precedential decision by the Court of Appeals…more

Hotels.com, Internet, Patent Litigation, Patent-Eligible Subject Matter, Patents

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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 PAGA Amendments Fail to Substantively Address Employers’ Concerns

Governor Brown recently approved Senate Bill No. 836, which amends the Private Attorneys General Act (“PAGA”) in a few minor technical ways, including new filing and notice requirements. Although employers had hoped for…more

Attorney Generals, Filing Fees, Filing Requirements, Governor Brown, Labor & Workforce Development Agency (LWDA)

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[Event] Breakfast With Your Finance & Bankruptcy Lawyers: The Risks and Rewards of Financings in Europe - May 13, New York, NY

This breakfast session is jointly presented by Sheppard Mullin and Bird & Bird LLP, and will look at the key issues to consider when structuring financings involving European counterparties and examine whether there are real…more

Banking Sector, Banks, Commercial Bankruptcy, Continuing Legal Education, Corporate Taxes

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Supreme Court Update – Hana Financial v. Hana Bank

Sheppard Mullin’s intellectual property group prevailed before the United States Supreme Court in the trademark matter entitled Hana Financial v. Hana Bank.  574 U.S. ___ (2015).  Justice Sotomayor, writing for a unanimous…more

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

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New York State Department of Financial Services Proposes Cybersecurity Regulations for Financial Services Companies

If the New York State Department of Financial Services (“DFS”) has its way, come January 1, 2017, financial services companies that require a form of authorization to operate under the banking, insurance, or financial services…more

Banks, Breach Notification Rule, CISO, Covered Entities, Cybersecurity

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Warren Distribution, Inc. v. Royal Purple, LLC – What’s in a Name?

In this matter, the Trademark Trial and Appeal Board dismissed an opposition without prejudice in this precedential opinion because the party that filed the opposition was different from the party that sought and obtained an…more

Dismissals, Subject Matter Jurisdiction, Trademark Trial and Appeal Board

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GAO Tackles Cybersecurity

In two recent decisions, GAO denied protest grounds challenging the ability of contract awardees to satisfy government requirements related to cybersecurity. This posting analyzes those decisions and their implications for…more

Bid Protests, Cybersecurity, Federal Acquisition Regulations (FAR), Federal Contractors, FISMA

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Federal Circuit Case Law Summary of High Point SARL v. T-Mobile USA, Inc., No. 15-1235 (Fed. Cir. Feb. 16, 2016)

Please find below a case summary of a Federal Circuit decision from this month that has patent exhaustion and licensing context. In High Point SARL v. T-Mobile USA, Inc., No. 15-1235 (Fed. Cir. Feb. 16, 2016), the Federal…more

AT&T, Divestiture, Ericsson, IP License, Joint Venture

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Mergers & Acquisitions Insurance - The growing use of rep and warranty protection in M&A transactions

The good news is that you can insure almost anything! In M&A transactions, buyers and sellers spend a great deal of time allocating risk relating to known and unknown pre-closing liabilities. The buyer’s view of the…more

C-Suite Executives, Contract Drafting, Corporate Sales Transactions, Insurance Industry, Purchase Agreement

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Federal Circuit Affirms Refusal to Register “Churrascos” Based on Genericness, Despite Prior Federal Registration of the Mark

The U.S. Court of Appeals for the Federal Circuit affirmed the Trademark Trial and Appeal Board’s refusal to register the stylized mark CHURRASCOS for bar and restaurant services based on genericness. In re Cordua Restaurants,…more

Generic, Restaurant Industry, Trademark Registration, Trademark Trial and Appeal Board

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Commercial Division Practice Continues to Shift Towards Federal Standards with Four Proposed Rule Changes

The Commercial Division Rules are once again the subject of several proposed amendments, as detailed below. While these proposals are not as far-reaching as some of the rule changes enacted in 2014, they nonetheless raise…more

Business Court Division, Discovery, Eligibility, Federal Rules of Civil Procedure, Proposed Amendments

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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 Company (LLC), Limited Liability Partnerships

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DoD Seeks Public Comments Before Issuing a Proposed Rule on IR&D Costs

The Department of Defense intends to issue a proposed rule to ensure that substantial future independent research and development (“IR&D” or “IRAD”) expenses, which can be used as a means to reduce bid prices in competitive…more

Comment Period, Competitive Bidding, Department of Defense (DOD), Federal Contractors, Federal Register

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New PAGA Amendments Fail to Substantively Address Employers’ Concerns

Governor Brown recently approved Senate Bill No. 836, which amends the Private Attorneys General Act (“PAGA”) in a few minor technical ways, including new filing and notice requirements. Although employers had hoped for…more

Attorney Generals, Filing Fees, Filing Requirements, Governor Brown, Labor & Workforce Development Agency (LWDA)

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Update on Data Breach and Data Privacy Class Actions Post-Spokeo

In May, the U.S. Supreme Court issued its opinion in Spokeo v. Robins, providing guidance on the “injury-in-fact” aspect of the constitutional standing requirement for putative class action plaintiffs. 136 S. Ct. 1540 (2016),…more

Article III, Class Action, Congressional Intent, Corporate Counsel, Credit Monitoring

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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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HHS Recognizes Changing Environment of Research: Still Time to Comment

Late last month the Department of Health and Human Services (HHS) and other Federal Departments and Agencies announced an extension until January 6, 2016 to the comment period for the Federal Policy for the Protection of Human…more

Clinical Trials, HHS, Medical Research, NPRM, Scientific Research

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Maximum Civil Penalties for HSR Violations to Increase to $40,000 per Day

For parties considering a merger or other transaction, the civil penalties for failing to comply with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) are about to increase significantly. On June 29,…more

Civil Monetary Penalty, Compliance, Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Filing Requirements, FTC

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Implied Waiver of Privilege in Internal Investigations: Barko Court Compels Production of Internal Investigation Documents, Again

On November 20, 2014, the District Court for the District of Columbia once again ordered Kellogg, Brown and Root (“KBR”) to produce all documents prepared as part of an internal investigation.  The District Court’s decision…more

Attorney-Client Privilege, Corporate Counsel, Document Productions, False Claims Act (FCA), Internal Investigations

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The Changing Landscape for Services Contractors

Two recent developments have the potential to change the landscape for contractors providing services to the Government. Government contractors and subcontractors are required to comply with a host of regulations governing…more

Employer Liability Issues, Employer Mandates, Executive Orders, Fair Pay and Safe Workplaces, Federal Acquisition Regulations (FAR)

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No Protection for Network Marketing Provider That Had Knowledge and Authority to Control Deceptive Conduct of Affiliates

In Federal Trade Commission v. LeadClick Media, LLC, 2016 U.S. App. LEXIS 17383 (2nd Cir. 2016), the Second Circuit recently held that an affiliate marketing network provider could be subjected to liability under the Federal…more

Affiliates, Communications Decency Act, False Advertising, FTC, FTC Act

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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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The Overpayment Rule and the Implied False Claims Theory: “What You Don’t Know Can Still Hurt You”

In 2010, the Affordable Care Act (“ACA”) enacted new rules governing overpayments made by the Medicare and Medicaid programs. Under these rules, providers have 60 days from the date that the overpayment has been identified to…more

60-Day Rule, Affordable Care Act, CMS, False Claims Act (FCA), False Implied Certification Theory

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Ninth Circuit Retires Fee-Award Standard, Imports Octane Fitness to Trademark Cases

This week, the U.S. Court of Appeals for the Ninth Circuit joined a majority of appellate courts that have rejected rigid tests for attorneys’-fees awards in favor of flexible discretion at the district court level. The Ninth…more

Abuse of Discretion, Appeals, Attorney's Fees, Burden of Proof, Exceptional Case

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A Surge In Populism: Dangers To Transnational Trade In The Americas And Reasons For Hope

The ongoing presidential election in the United States has underscored a move against free trade by both of the main political parties. This article briefly summarizes some of the proven benefits of free trade and juxtaposes…more

Free Trade Agreements, NAFTA, Political Parties, Presidential Elections, Trade Agreements

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Identifying and Mitigating Organizational Conflicts of Interest in Government Contracts Mergers and Acquisitions

An organizational conflict of interest (OCI) arises when the performance of one contract undermines a contractor’s objectivity or creates an unfair competitive advantage with respect to another contract. An agency cannot issue…more

Acquisitions, Competitive Advantage, Conflicts of Interest, Contractors, Mergers

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New Affordable Care Act and Medicaid Regulations Will Require Covered Entities Providing Healthcare Programs and Services to Have Accessible Websites

There has been a proliferation of ADA lawsuits alleging that websites are not accessible to the blind or deaf. Individuals who are blind or have low vision may require assistive devices and specialized software to access the…more

ADA, Affordable Care Act, Anti-Discrimination Policies, Covered Entities, DOJ

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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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New Guidance for HR Professionals Regarding Wage-Fixing and No-Poaching Agreements Highlights New Focus on Criminal Prosecutions and Raises New Concerns for Employer

In October, the Department of Justice (“DOJ”) Antitrust Division and the Federal Trade Commission (“FTC” and collectively the “Antitrust Agencies”) jointly issued new guidance for Human Resource professionals regarding…more

Antitrust Violations, Civil Liability, Criminal Liability, DOJ, FTC

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Second Circuit Holds that FLSA Settlements Require Court or Department of Labor Approval

On August 7, 2015, in Dorain Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), the United States Court of Appeals for the Second Circuit held that the Fair Labor Standards Act (“FLSA”) is an “applicable…more

Appeals, Dismissal With Prejudice, DOL, Filing Requirements, FLSA

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NLRB Allows Student Assistants to Unionize, Signals Commitment to Expanding Its Reach

Last month, the National Labor Relations Board (the “NLRB” or “the Board”) reversed standing precedent and held that student assistants at private universities, including both graduate and undergraduate teaching and research…more

Brown University, Collective Bargaining, Columbia University, Graduate Students, NLRA

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The California Supreme Court Holds Consumer Class Action Waivers In Arbitration Provisions Are Enforceable Under Federal Law

On August 3, 2015, the California Supreme Court issued its long-awaited arbitration decision in Sanchez v. Valencia Holding Co., LLC, No. B228027. The Court held that the arbitration provision found in a standard form auto…more

Appeals, Arbitration, CA Supreme Court, Car Dealerships, Class Action

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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, Limited Liability Company (LLC), New Legislation, RULLCA

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To Share or Not to Share (with the Government)? That is the Question: DHS Announces Interim Guidelines for Sharing Cyber Threat Indicators

On February 16, 2016, Secretary of Homeland Security Jeh Johnson announced interim guidelines and procedures for sharing cyber threat indicators under the Cybersecurity Information Sharing Act of 2015 (“CISA”). Because the…more

Cyber Threats, Cybersecurity Information Sharing Act (CISA), DHS, Information Sharing, Private Sector

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[Event] Labor & Employment Law Update & Happy Hour - Oct. 7, Palo Alto, CA

Please join us for Sheppard Mullin's bi-annual Labor & Employment Law Update & Happy Hour. There have been significant developments in California labor and employment law this year. We will explain how these new developments…more

Employer Liability Issues, Employment Contract, Events, Hiring & Firing, Independent Contractors

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CMS Grants Extension to Apply for 2015 Meaningful Use Hardship Exemption

The Centers for Medicare and Medicaid Services (“CMS”) continues to work to ensure it is responsive to providers who tried to meet meaningful use standards in 2015 but faced hardships in their efforts. Eligible professionals,…more

CMS, Critical Access Hospitals, Electronic Health Record Incentives, Health Care Providers, Hospitals

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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, Discovery, Statute of Limitations, Unfair Competition

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Medicare ACO v.3.0—More Risk, More Money?

The Centers for Medicare and Medicaid (CMS) announced on March 10, 2015 that it is adding a new Accountable Care Organization (ACO) model to its cadre of innovative models. Titled the “Next Generation ACO Model,” CMS’ new ACO…more

ACOs, CMS, Healthcare, Medicare Shared Savings Program, Next Generation ACO (NGACO)

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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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I Swear It’s Not Mine – Artist Sued for Denying He Created Art Piece

Artist Peter Doig, whose pieces regularly sell for $10 million, is currently entangled in a rare and rather odd lawsuit, which involves a work Doig denies he created. While disputes of the authenticity of pieces of artwork are…more

Artists, Authentication, Damages, Fine Art, Paintings Sculptures and Engravings

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CMS Proposes Payment Reform/Cap Adjustments

On April 30, 2015, CMS released its FY 2015 Hospice Wage Index, including long anticipated payment reform and some changes to the hospice cap calculation. Comments are due by June 29. Here is an initial summary and analysis…more

CMS, Healthcare, Hospice

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Thirteen Years of the Same Rules and Now Big Proposed Changes to the Regulation of Medicaid Managed Care Plans

On May 25, 2015, the Centers for Medicare and Medicaid Services (“CMS”) published a newly proposed rule that would change the way the agency regulates Medicaid managed care plans, the first regulation of its kind since 2002. …more

CHIP, CHIPRA, CMS, Health Insurance, Healthcare

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Enactment of Los Angeles and San Diego Minimum Wage and Paid Sick Leave Ordinances Requires Employers to Reassess Their Policies

The cities of Los Angeles and San Diego recently approved minimum wage and sick leave ordinances that will apply to all employees who work within those cities’ geographical limits. Employers with employees who work in these…more

Employer Liability Issues, Local Ordinance, Minimum Wage, Sick Leave, Wage and Hour

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Second Circuit Limits “Tippee” Insider Trading Liability

In United States v. Newman, No. 13-1837 (2d Cir. Dec. 10, 2014), the United States Court of Appeals for the Second Circuit reversed the 2013 convictions of Anthony Chiasson and Todd Newman on charges of conspiracy to commit…more

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

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Brexit, Here We Come (or Go)

The UK people have voted to leave the European Union. Although there is no constitutional duty to leave the Union as a result, politically this is likely going to happen. Change will not be immediate and happen over time…more

Article 50 Treaty of the EU, Attorney-Client Privilege, Competition Authorities, Contract Disputes, Digital Single Market

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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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No Protection for Network Marketing Provider That Had Knowledge and Authority to Control Deceptive Conduct of Affiliates

In Federal Trade Commission v. LeadClick Media, LLC, 2016 U.S. App. LEXIS 17383 (2nd Cir. 2016), the Second Circuit recently held that an affiliate marketing network provider could be subjected to liability under the Federal…more

Affiliates, Communications Decency Act, False Advertising, FTC, FTC Act

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CFPB Prevails On Summary Judgment Against CashCall, Inc.

On August 31, 2016, in a ground breaking decision, the United States District Court in Los Angeles ruled that CashCall, Inc. violated the Consumer Financial Protection Act in connection with efforts to collect on certain loans…more

CashCall, CFPA, CFPB, Consumer Financial Products, Consumer Lenders

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Department of Labor Issues Final Rule Implementing Executive Order Requiring Paid Sick Leave for Employees of Federal Contractors

On September 29, 2016, the Department of Labor (“DOL”) issued regulations (the “final rule”) implementing Executive Order 13706, which requires federal contractors to provide paid sick leave to their employees. According to the…more

Barack Obama, Davis-Bacon Act, DOL, Employer Liability Issues, Executive Orders

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A Surge In Populism: Dangers To Transnational Trade In The Americas And Reasons For Hope

The ongoing presidential election in the United States has underscored a move against free trade by both of the main political parties. This article briefly summarizes some of the proven benefits of free trade and juxtaposes…more

Free Trade Agreements, NAFTA, Political Parties, Presidential Elections, Trade Agreements

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Commercial Lease Guaranties From Foreign Entities: What You Need to Know to Safeguard Your Security

In connection with a commercial lease with an international company, a commercial landlord is often asked to accept U.S.-based subsidiary as the tenant entity. The U.S. subsidiary often does not have independent financials or…more

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Two New Minimum Wage Increases Pass In Northern California

In the wake of a debate over increasing the federal minimum wage, two Northern California cities voted to increase their local minimum wage rates during the recent midterm elections. On Tuesday, November 4, 2014, San Francisco…more

Minimum Wage, Municipalities, New Legislation

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Supreme Court Preserves But Significantly Changes “Implied Certification” Theory of False Claims Act Liability

On June 16, 2016, the Supreme Court issued its opinion (“Op.”) in Universal Health Services v. U.S. ex rel. Escobar (“Escobar”), a case testing the viability and scope of the implied certification theory of False Claims Act…more

Conditions of Payment, Failure To Disclose, False Claims Act (FCA), False Implied Certification Theory, Federal Pleading Requirements

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Supreme Court Holds That “Actual Fraud” Under Section 523(a)(2)(A) of the Bankruptcy Code May Include Fraudulent Transfers That Occur Without False Representations

On May 16, 2016, the United States Supreme Court in Husky International Electronics v. Ritz held that the phrase “actual fraud” under section 523(a)(2)(A) of the Bankruptcy Code may include fraudulent transfer schemes that were…more

Bankruptcy Code, Chapter 7, Commercial Bankruptcy, Dischargeable Debts, Fraudulent Transfers

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What is Retaliation in the Second Circuit Under the FLSA?

On April 20, 2015, the United States Court of Appeals for the Second Circuit reversed a long-standing precedent when it held in Greathouse v. JHS Security Inc., that an internal oral complaint could be sufficient to demonstrate…more

Adverse Employment Action, Appeals, FLSA, Internal Reporting, Protected Activity

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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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FTC Stands Down in Latest Head-to-Head Battle Between Federal and State Oversight of Healthcare Collaborations

In what will undoubtedly be seen by all interested parties as a significant setback in the Federal Trade Commission’s active opposition to potentially anticompetitive healthcare collaborations, the FTC voted unanimously on…more

Affirmative Defenses, Antitrust Litigation, Dismissals, FTC, Hospital Mergers

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The Federal Defend Trade Secrets Act vs. The California Uniform Trade Secrets Act

Although some version of the Uniform Trade Secrets Act (“UTSA”) has widely been adopted by most states, including California, variations among the versions and related judicial interpretation has led to uncertainty—particularly…more

Asset Seizure, Common Law Torts, Defend Trade Secrets Act (DTSA), Former Owners, Immunity

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Back at it Again (with the Standing Opinions): Seventh Circuit Reiterates Article III Standing in Data Breach Class Actions

On July 20, 2015, the Seventh Circuit issued its opinion in Remijas v. Neiman Marcus Group, 794 F. 3d 688 (7th Circ. 2015), which immediately became the low-water mark for Article III standing in data breach cases. In short,…more

Article III, Causation, Class Action, Class Certification, Data Breach

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Changes In Intrastate Crowdfunding Rules: Will They Make A Difference?

On October 26, 2016, the Securities and Exchange Commission amended its existing safe harbor rule for intrastate investing, Rule 147, and added a new intrastate safe harbor, Rule 147A in an effort to reflect the realities of…more

Crowdfunding, General Solicitation, Intrastate Offerings, Principle Place of Business, Rule 147

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Update – City of Los Angeles Releases List of 13,500 Soft First Story Buildings Targeted for Earthquake Retrofitting

The City of Los Angeles Department of Building and Safety (DBS) has released its list of wood frame soft-story buildings that may be required to undergo mandatory retrofitting. The list can be obtained by request to DBS, and…more

City of Los Angeles, Department of Building and Safety (DBS), Earthquakes, Local Ordinance, Property Owners

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Be Alert: Ransomware Attacks on the Rise

Big name companies, government agencies and individuals are all falling victim to “ransomware” attacks in record and still-rising numbers. Recently, Hollywood Presbyterian Hospital’s communications capabilities were disabled for…more

Bitcoin, Cyber Attacks, Malware, Ransomware, Risk Management

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Dissecting New Sick Leave Laws in Illinois, Cook County and the City of Chicago

Last month, Cook County passed an ordinance requiring employers in the County to provide eligible employees with certain paid sick leave benefits. The ordinance largely mirrors a recent amendment to the Chicago Minimum Wage…more

Local Ordinance, Minimum Wage, Paid Leave, Paid Sick Leave Act, Sick Leave

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CFPB Issues Compliance Bulletin On Confidentiality of Supervisory Information

On January 27, 2015, the Consumer Financial Protection Bureau (“CFPB”) issued a compliance bulletin reminding supervised financial institutions (including large depository institutions, credit unions and their affiliates,…more

Banking Sector, Banks, CFPB, Confidential Supervisory Information, Financial Institutions

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Delaware Chancery Court Holds that Creditor Plaintiffs in Derivative Suits May Satisfy Standing Requirement by Showing Corporation’s Insolvency at Time of Suit, Regardless of Later Solvency

In Quadrant Structured Products Co., Ltd. v. Vertin, C.A. No. 6990-VCL, 2015 WL 2062115 (Del. Ch. May 4, 2015), the Delaware Court of Chancery held that a creditor plaintiff needs only establish that a corporation was insolvent…more

Board of Directors, Breach of Duty, Credit Default Swaps, Creditors, Derivative Suit

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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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Home Care Associations Seek Stay by SCOTUS of New Wage-and-Hour Rules, As the Effective Date of DOL Wage-and-Hour Regulations Quickly Approaches

Recently, the D.C. Circuit Court of Appeals ruled in Home Care Association of America, et al. v. Weil, that the Department of Labor’s (“DOL”) regulations about the inapplicability of certain statutory exemptions for third-party…more

DOL, FLSA, Health Care Providers, Home Health Care, Home Healthcare Workers

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DOL Issues Final Rule Amending FMLA Definition of “Spouse” to Include Same-Sex Marriages

The U.S. Department of Labor has issued a final rule amending the regulatory definition of “spouse” under the Family and Medical Leave Act (“FMLA”). We earlier reported on the DOL’s proposed rule to this effect, which is now…more

DOL, DOMA, Employer Mandates, Final Rules, FMLA

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Undisclosed Change in Building Height Requires Supplemental EIR

Ventura Foothill Neighbors v. County of Ventura (12/15/14, 2d Civil No. B254120) - The Court of Appeal for the Second Appellate District of California has ruled that (i) a 20% increase in the actual height of a building…more

Appeals, CEQA, Construction Industry, Construction Project, Environmental Impact Report (EIR)

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[Event] Labor & Employment Law Update & Happy Hour - Sept. 24th, San Francisco, CA

Please join us for Sheppard Mullin's bi-annual Labor & Employment Law Update & Happy Hour. There have been significant developments in California labor and employment law this year. We will explain how these new developments…more

California Family Rights Act (CFRA), Employer Liability Issues, Employment Contract, Events, Forum Selection

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Voters Overwhelmingly Approve ‘Build Better LA’ Initiative Resulting in New Affordable Housing and Local Hiring Requirements For Developers

Voters this week approved Measure JJJ, otherwise known as the Build Better L.A. initiative (the “Initiative”), which establishes new labor and affordable-housing requirements for developers in Los Angeles seeking discretionary…more

Affordable Housing, Ballot Measures, General Elections, Hiring & Firing, Housing Developers

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Commercial Division Rules Revamp Encourages International Arbitration Matters In The New York County Commercial Division

The Commercial Division Advisory Council continued its revamp of the Commercial Division Rules on October 14, 2015, when it implemented amendments to 22 NYCRR § 202.70(b) and (c). As we discussed in this blog when the…more

Arbitration Awards, Declaratory Relief, Equitable Relief, Exemptions, International Arbitration

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Cross Your Heart and Hope to Die – New DFARS Clauses Target Counterfeit Electronic Parts

On August 2, 2016, the Department of Defense (“DOD”) rolled out new requirements for defense contractors that provide electronic parts and assemblies containing electronic parts. The new rules impose significant risks on DOD…more

Counterfeit Parts, Defense Contracts, Department of Defense (DOD), DFARS, Electronics

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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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FTC Stands Down in Latest Head-to-Head Battle Between Federal and State Oversight of Healthcare Collaborations

In what will undoubtedly be seen by all interested parties as a significant setback in the Federal Trade Commission’s active opposition to potentially anticompetitive healthcare collaborations, the FTC voted unanimously on…more

Affirmative Defenses, Antitrust Litigation, Dismissals, FTC, Hospital Mergers

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Potential Revisions to the Definition of “Accredited Investor”

On December 18, 2015, the staff (the “Staff”) of the U.S Securities and Exchange Commission (the “SEC”) released a report on their review of the definition of “accredited investor” under the Securities Act of 1933. This review…more

Accredited Investors, Comment Period, Dodd-Frank, SEC, Securities Act of 1933

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USFWS Proposes (Again) To Issue 30-Year Eagle Act Permits

On May 6, 2016, the U.S. Fish and Wildlife Service (“Service”) published a proposed rule that would amend various aspects of its permitting program under the Bald and Golden Eagle Protection Act (“Eagle Act”). As widely…more

Bald and Golden Eagle Protection Act, Comment Period, Incidental Take Permits, NEPA, Proposed Amendments

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Pay to Play: Appellate Division Upholds Ruling that Payment is Required to Qualify for Champerty Safe Harbor Provision

In Justinian Capital SPC v. WestLB AG, etc. et al., 2015 N.Y. Slip Op. 04381 (1st Dep’t May 21, 2015), the Appellate Division affirmed the February 25, 2014 decision of the New York County Supreme Court, Commercial Division…more

Banking Sector, Banks, Financial Institutions, Investment, Investment Portfolios

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Enactment of Los Angeles and San Diego Minimum Wage and Paid Sick Leave Ordinances Requires Employers to Reassess Their Policies

The cities of Los Angeles and San Diego recently approved minimum wage and sick leave ordinances that will apply to all employees who work within those cities’ geographical limits. Employers with employees who work in these…more

Employer Liability Issues, Local Ordinance, Minimum Wage, Sick Leave, Wage and Hour

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Don’t Lose Your DMCA Safe Harbor Protection!

The U.S. Copyright Office’s new electronic system for copyright-agent registration and maintenance goes into effect on December 1, 2016, and with it comes new rules. Beginning December 1, all online service providers must submit…more

Copyright Infringement, Copyright Office, Copyright Registration, Designated Agent, DMCA

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FCC Issues New Privacy Rules for Internet Service Providers: Safeguarding Consumers or Lulling Them Into A False Sense of Privacy?

Last Thursday, in a vote split along party lines, the Federal Communications Commission (“FCC”) approved a new regulatory regime staking its claim to privacy regulation of both fixed and mobile Internet service providers…more

AT&T Mobility, Broadband, Comcast, Data Breach, Data Collection

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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

IRS

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IRS Denial of Section 501(c)(3) Status for a Commercial ACO

The IRS recently released a ruling, Private Letter Ruling (“PLR”) 201615022, denying Section 501(c)(3) tax-exempt status to a “commercial” accountable care organization (“ACO”). This is the IRS’ first published guidance…more

501(c)(3), ACOs, Affordable Care Act, Health Insurance, IRS

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It’s Time to Review and Update Safety and Compliance Regimens – OSHA Penalties Set to Surge in 2016

For the first time since 1990, the Occupational Safety and Health Administration (OSHA) has been authorized to increase its civil penalties. The provision was inserted into the expansive Bipartisan Budget Act of 2015, which was…more

Bipartisan Budget, Civil Monetary Penalty, Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, OSHA, Safety Violations

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[Event] Labor & Employment Law Update & Happy Hour - Oct. 7, Palo Alto, CA

Please join us for Sheppard Mullin's bi-annual Labor & Employment Law Update & Happy Hour. There have been significant developments in California labor and employment law this year. We will explain how these new developments…more

Employer Liability Issues, Employment Contract, Events, Hiring & Firing, Independent Contractors

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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, Time Warner, Utilities Sector, Utility Poles

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Part I: How We Got Here: President Obama to Obamacare to President-elect Trump

One thing that has become clear since the election of Donald Trump last week is that efforts to repeal or amend the Affordable Care Act (ACA) will be a high priority legislative item for next year’s Congress and the incoming…more

Affordable Care Act, Employer Mandates, Health Insurance, Healthcare, Healthcare Reform

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FCC Issues New Privacy Rules for Internet Service Providers: Safeguarding Consumers or Lulling Them Into A False Sense of Privacy?

Last Thursday, in a vote split along party lines, the Federal Communications Commission (“FCC”) approved a new regulatory regime staking its claim to privacy regulation of both fixed and mobile Internet service providers…more

AT&T Mobility, Broadband, Comcast, Data Breach, Data Collection

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Proposed “Patent Agent Privilege” Promises Protection For Patent Practitioners And Clients

The United States Patent and Trademark Office (“PTO”) recently proposed a patent-agent privilege that would bring needed consistency to the discovery phase of Patent Trial and Appeal Board (“PTAB”) proceedings…more

Attorney-Client Privilege, Discovery, Patent Agent Privilege, Patent Trial and Appeal Board, Popular

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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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Part I: How We Got Here: President Obama to Obamacare to President-elect Trump

One thing that has become clear since the election of Donald Trump last week is that efforts to repeal or amend the Affordable Care Act (ACA) will be a high priority legislative item for next year’s Congress and the incoming…more

Affordable Care Act, Employer Mandates, Health Insurance, Healthcare, Healthcare Reform

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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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State Agency’s Intentional Flooding for Environmental Protection Results in Physical Taking of Private Property – Strict Liability Applies

Pacific Shores Property Owners Association v. Department of Fish and Wildlife (1/20/16, C070201) - On January 20, 2016, the Court of Appeal for the Second Appellate District of California ruled that where a state agency…more

Flooding, Inverse Condemnation, State Department of Fish and Wildlife, Statute of Limitations, Takings

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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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Agencies Publish Strict New Labor Reporting Guidelines for Government Contractors

On August 25, 2016, the United States Department of Labor (“DOL”) and Federal Acquisition Regulatory (“FAR”) Councils published “Guidance for Executive Order 13673, ‘Fair Pay and Safe Workplaces’” (“final rule”). See 81 Fed…more

Arbitration Agreements, Blacklist, Disclosure Requirements, DOL, Executive Orders

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Recent Remarks By Officials Reinforce DOJ’s Focus On Criminal Fraud Investigations And Prosecutions Of Culpable Individuals

In a trio of speeches given at separate events on September 17, 2014, Department of Justice (“DOJ”) officials announced new initiatives and points of emphasis in the Government’s ongoing efforts to hold corporations and…more

Board of Directors, Corporate Officers, Criminal Prosecution, DOJ, False Claims Act (FCA)

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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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Ninth Circuit Invalidates Arbitration Agreement with Class Action Waiver

On August 22, 2016, the Ninth Circuit joined the Seventh Circuit in the split amongst U.S. Circuit Courts of Appeal on the issue of enforceability of employment arbitration agreements precluding class actions. The Ninth…more

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

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[Event] Labor & Employment Law Update & Happy Hour - Oct. 22nd, San Diego, CA

Please join us for Sheppard Mullin's bi-annual Labor & Employment Law Update & Happy Hour. There have been significant developments in California labor and employment law this year. We will explain how these new developments…more

Employer Liability Issues, Employment Contract, Events, Hiring & Firing, Independent Contractors

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International Entrepreneurs New Proposed Work Authorization for Founders of Start-Up’s And a Comparison to Other Visa Options

On August 31, 2016 the Department of Homeland Security (DHS) proposed an “International Entrepreneur” (I.E.) rule that would allow qualifying foreign investors to develop and grow their start-up companies in the United States. …more

Angel Investors, Business Development, Business Formation, China, Customs and Border Protection

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New Year, New Rules For Employers Doing Business in California

This year the California Legislature added over a dozen new employment laws, many of which take effect on January 1, 2016. Some of these laws impose new prohibitions on employers, while others provide positive benefits such as…more

Commercial Truck Drivers, E-Verify, Equal Pay, Independent Contractors, Medical Leave

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Dissecting New Sick Leave Laws in Illinois, Cook County and the City of Chicago

Last month, Cook County passed an ordinance requiring employers in the County to provide eligible employees with certain paid sick leave benefits. The ordinance largely mirrors a recent amendment to the Chicago Minimum Wage…more

Local Ordinance, Minimum Wage, Paid Leave, Paid Sick Leave Act, Sick Leave

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Unpersuasive: Federal Judge Invalidates DOL’s New Persuader Rule

On November 16, 2016, a federal district judge in Texas barred the Department of Labor (“DOL”) from enforcing its new so-called “Persuader Rule.” The rule, which would have imposed broad disclosure requirements on employers…more

Attorney-Client Privilege, Corporate Counsel, Disclosure Requirements, DOL, LMRDA

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Brexit News: UK Judges Throw a Block in the Road of Article 50

Invoking Article 50 of the Treaty of the European Union requires participation of the UK Parliament says Lord Chief Justices Lord Sales and Lord Thomas of the Royal Courts of Justice in London who handed down their judgment…more

Article 50 Treaty of the EU, Notice Requirements, UK Brexit

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NLRB Releases Advice Memorandum Affirming Misclassification Constitutes Unfair Labor Practice

At the end August, the National Labor Relations Board released an advice memorandum, originally drafted in December 2015, concluding that a group of drivers who worked for a drayage company called Pacific 9 Transportation were…more

Drivers, Independent Contractors, Labor Law Violations, Misclassification, New Guidance

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SEC Prevails in Regulation A+ Litigation

Regulation A+, which became effective on March 25, 2015, permits the offering of up to $50,000,000 in securities in any twelve-month period, subject to the certain requirements (a “Tier 2 Offering”). Tier 2 Offerings are not…more

Accredited Investors, Corporate Issuers, Petition for Review, Preemption, Regulation A

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U.S. Targets Private Equity Funds for FCPA Scrutiny

The private equity industry is facing increased scrutiny by the U.S. Government for potential violations of the Foreign Corrupt Practices Act (“FCPA”). The Securities and Exchange Commission (“SEC”) has created a new private…more

Anti-Bribery, Anti-Corruption, Civil Monetary Penalty, Enforcement Actions, FCPA

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Second-Lowest Bidder for Public Contracts May Sue Lowest Bidder Who Paid Less Than Prevailing Wages

Public agencies have little, if any, discretion when awarding public contracts because they are required to award the contract to the lowest bidder, subject to certain minimum qualifications. These limitations are designed to…more

Bid Protests, Competitive Bidding, Contractors, Prevailing Wages, Public Projects

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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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Ramirez v. Dependable Highway Express: The Reasonable Accommodation of an Employee’s Family

In Luis Castro-Ramirez v. Dependable Highway Express, the California Court of Appeal held that California’s Fair Employment and Housing Act (“FEHA”) – which requires employers to reasonably accommodate employees with…more

ADA, Disability Discrimination, Employer Liability Issues, FEHA, Reasonable Accommodation

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UPDATE: SCOTUS Denies Petition For Cert In Iskanian

On June 24, 2014, the California Supreme Court issued a controversial decision in Iskanian v. CLS Transportation Los Angeles, LLC. While the Court in Iskanian confirmed that an express class action waiver in an employment…more

Appeals, Arbitration, Arbitration Agreements, Class Action Arbitration Waivers, Employment Contract

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Refusal to Sell Bulk-Size Packs, Without More, Is Not Price Discrimination – “Size is Not a Service”

Woodman’s Food Market, Inc. v. Clorox Co., No. 15-3001 (7th Cir. August 12, 2016). Clorox Sales Company and Clorox Company produce a range of consumer goods. Clorox sold goods to Plaintiff Woodman’s Food Market, a local…more

Bulk Purchasing, Clorox, Fred Meyer Guides, FTC, Manufacturers

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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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Abuse of Discretion Not Shown By Court’s Failure To “Show Its Arithmetic” in Significantly Reducing Claimed Attorney Fees in CEQA Litigation

In Save Our Uniquely Rural Community Environment v. County of San Bernardino, __ Cal.App.4th ___, 2015 WL 1259781 (4th Dist., Div. 2, 2015) (SOURCE) , the Fourth District Court of Appeal affirmed the trial court’s decision to…more

Abuse of Discretion, Appeals, Attorney's Fees, CEQA, Environmental Impact Report (EIR)

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[Event] Breakfast With Your Labor Lawyer - May 19, San Francisco, CA

Please join us for Sheppard Mullin's annual “Breakfast with Your Labor Lawyer." 2015 presents significant developments in California labor and employment laws. We will explain how these new developments will affect day-to-day…more

Contractors, Discrimination, Earned Sick Time, Email, Events

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Department of Labor Issues Final Rule Implementing Executive Order Requiring Paid Sick Leave for Employees of Federal Contractors

On September 29, 2016, the Department of Labor (“DOL”) issued regulations (the “final rule”) implementing Executive Order 13706, which requires federal contractors to provide paid sick leave to their employees. According to the…more

Barack Obama, Davis-Bacon Act, DOL, Employer Liability Issues, Executive Orders

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Legacy and Grandfathered Agreements are Not Subject to Disclosure Requirements Under the Department of Labor’s New “Persuader” Regulations and Interpretation of the “Advice” Exemption

On March 24, 2016, the U.S. Department of Labor’s (“USDOL”) Office of Labor-Management Standards (“OLMS”) published its highly controversial “persuader” regulation, which requires employers and labor relations consultants,…more

Attorney-Client Privilege, Collective Bargaining, DOL, Final Rules, Grandfathered Obligations

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New OSHA Requirements for Employee Involvement and Employer Recordkeeping Take Effect Over the Next Two Months

Earlier this year, the Occupational Safety and Health Administration (OSHA) issued its final rule to Improve Tracking of Workplace Injuries and Illnesses. The new rule has two components – one relating to employee involvement,…more

Anti-Retaliation Provisions, Drug Testing, Notice Requirements, OSHA, Recordkeeping Requirements

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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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New Affordable Care Act and Medicaid Regulations Will Require Covered Entities Providing Healthcare Programs and Services to Have Accessible Websites

There has been a proliferation of ADA lawsuits alleging that websites are not accessible to the blind or deaf. Individuals who are blind or have low vision may require assistive devices and specialized software to access the…more

ADA, Affordable Care Act, Anti-Discrimination Policies, Covered Entities, DOJ

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Healthcare Systems Offer Shared Medical Visits to Address Physician Shortages and Chronic Illnesses

With the advent of an increasing aging population, physicians and other healthcare providers are seeking alternative approaches in offering patients access to quality health care. Among the innovations in healthcare delivery is…more

Health Care Providers, Innovation, Physicians, Quality of Care Standards

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The Overpayment Rule and the Implied False Claims Theory: “What You Don’t Know Can Still Hurt You”

In 2010, the Affordable Care Act (“ACA”) enacted new rules governing overpayments made by the Medicare and Medicaid programs. Under these rules, providers have 60 days from the date that the overpayment has been identified to…more

60-Day Rule, Affordable Care Act, CMS, False Claims Act (FCA), False Implied Certification Theory

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US Safe Harbor Regime Invalidated by Europe’s Highest Court

The Court of Justice of the European Union ruled this morning that the Safe Harbor regime, which enables transatlantic data transfers from the European Union to the United States, is invalid, thereby giving each national…more

Binding Corporate Rules, Consent, Data Protection Authority, EU, EU Data Protection Laws

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New Year, New Rules For Employers Doing Business in California

This year the California Legislature added over a dozen new employment laws, many of which take effect on January 1, 2016. Some of these laws impose new prohibitions on employers, while others provide positive benefits such as…more

Commercial Truck Drivers, E-Verify, Equal Pay, Independent Contractors, Medical Leave

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[Event] Labor & Employment Law Update & Happy Hour - Oct. 15th, Los Angeles, CA

Please join us for Sheppard Mullin's bi-annual Labor & Employment Law Update & Happy Hour. There have been significant developments in California labor and employment law this year. We will explain how these new developments…more

Employer Liability Issues, Employment Contract, Events, First Amendment, Hiring & Firing

See All Updates »

FCC Issues New Privacy Rules for Internet Service Providers: Safeguarding Consumers or Lulling Them Into A False Sense of Privacy?

Last Thursday, in a vote split along party lines, the Federal Communications Commission (“FCC”) approved a new regulatory regime staking its claim to privacy regulation of both fixed and mobile Internet service providers…more

AT&T Mobility, Broadband, Comcast, Data Breach, Data Collection

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New Guidance for HR Professionals Regarding Wage-Fixing and No-Poaching Agreements Highlights New Focus on Criminal Prosecutions and Raises New Concerns for Employer

In October, the Department of Justice (“DOJ”) Antitrust Division and the Federal Trade Commission (“FTC” and collectively the “Antitrust Agencies”) jointly issued new guidance for Human Resource professionals regarding…more

Antitrust Violations, Civil Liability, Criminal Liability, DOJ, FTC

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A Proposition 65 Violation May Be Lurking in Your Cash Register Receipt

Many consumer-facing businesses have learned to identify high-risk Prop 65 targets: soft, flexible plastics; faux and colored leathers; and any kind of brass or metal that may contain lead or other heavy metals. But businesses…more

Banks, Corporate Counsel, Proposition 65, Retailers, Toxic Chemicals

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Texas Federal Court Blocks New Salary Restrictions for Exempt Employees

On November 22, 2016, a federal court in the Eastern District of Texas issued a preliminary injunction blocking the Department of Labor from enforcing new regulations that would have drastically reduced the number of white…more

Barack Obama, Congressional Intent, DOL, Exempt-Employees, Final Rules

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Unpersuasive: Federal Judge Invalidates DOL’s New Persuader Rule

On November 16, 2016, a federal district judge in Texas barred the Department of Labor (“DOL”) from enforcing its new so-called “Persuader Rule.” The rule, which would have imposed broad disclosure requirements on employers…more

Attorney-Client Privilege, Corporate Counsel, Disclosure Requirements, DOL, LMRDA

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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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New York State Department of Financial Services Proposes Cybersecurity Regulations for Financial Services Companies

If the New York State Department of Financial Services (“DFS”) has its way, come January 1, 2017, financial services companies that require a form of authorization to operate under the banking, insurance, or financial services…more

Banks, Breach Notification Rule, CISO, Covered Entities, Cybersecurity

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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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Update: Sandoz and Celltrion Decline the Invitation to Dance: Biosimilars Challenge the Applicability of the BPCIA’s Exchange Provisions Before Bringing Suit

In our previous blog post of November 11, 2014, we noted that Celltrion had filed a declaratory judgment action against Kennedy Trust for Rheumatology Research for invalidity of certain patents covering methods of treating…more

Biosimilars, BPCIA, Patents, Pharmaceutical Patents, Sandoz

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Federal Circuit Reaffirms Its Longstanding Patent Exhaustion Precedents in Lexmark v. Impression Products (Fed. Cir. Feb. 12, 2016) (en banc)

Under the doctrine of patent exhaustion, otherwise referred to as the “first sale doctrine,” the initial authorized sale of a patented item exhausts a patent owner’s rights to further control the sale, offer for sale, or use of…more

Bowman v Monsanto, First Sale Doctrine, Foreign Sales, Lexmark v Static Control Components, License Agreements

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Seventh Circuit Holds Class Action Waivers are Unlawful and Unenforceable Creating a Circuit Split

On May 26, 2016, in the matter of Lewis v. Epic Systems Corporation, the U.S. Court of Appeals for the Seventh Circuit held that an arbitration agreement, which required employees to submit to individual arbitration for any wage…more

Class Action, Collective Actions, D.R. Horton v NLRB, Federal Arbitration Act, FLSA

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Environmental Litigation and Toxic Torts Update – Mountain/West Coast Case Law Highlights

Ninth Circuit Issues Major Cercla Decision Finding That Arranger Liability Cannot Be Based On Contamination Deposited On A Site By The Wind - Pakootas v. Teck Cominco Metals, No. 15-35228, 2016 U.S. App. LEXIS 13662 (9th…more

Appeals, Arranger Liability, CERCLA, Contaminated Properties, Damages

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“May You Live in Interesting Times” – Some Healthcare Predictions for the Trump Administration’s First Year

The ancient Chinese curse – “May you live in interesting times” – certainly springs to mind these days. What does the election of Donald Trump mean for the healthcare industry, the Affordable Care Act and current healthcare…more

ACOs, Affordable Care Act, CHIP, Donald Trump, Health Insurance

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Federal Circuit Reaffirms Its Longstanding Patent Exhaustion Precedents in Lexmark v. Impression Products (Fed. Cir. Feb. 12, 2016) (en banc)

Under the doctrine of patent exhaustion, otherwise referred to as the “first sale doctrine,” the initial authorized sale of a patented item exhausts a patent owner’s rights to further control the sale, offer for sale, or use of…more

Bowman v Monsanto, First Sale Doctrine, Foreign Sales, Lexmark v Static Control Components, License Agreements

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China’s Anti-Unfair Competition Law Is Poised For An Update

Since 2010, China’s State Administration for Industry and Commerce (SAIC) and the State Council Legislative Affairs Office (SCLAO) have been revising China’s Anti-Unfair Competition Law of 1993 (AUCL). This February the SCLAO…more

Anti-Corruption, Antitrust Provisions, China, SAIC, Trade Secrets

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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 is In Sync with Patent’s Validity Under Section 101

The Federal Circuit overturned a District Court ruling that a patent directed to automated lip synchronization and manipulation of animated characters’ facial expressions was invalid under Section 101 as being an abstract idea…more

Abstract Ideas, Animation, CLS Bank v Alice Corp, Computer-Related Inventions, Enfish v Microsoft

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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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The MACRA Final Rule: The Art of the Transition

On Friday, October 14, 2016, CMS released the much-anticipated final rule (the “Final Rule”) implementing the Quality Payment Program (QPP), mandated by the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). Pursuant…more

ACOs, Alternative Payment Models (APM), CMS, Final Rules, Medicare Access and CHIP Reauthorization (MACRA)

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SAFEs and KISSes Poised to Be the Next Generation of Startup Financing

Overview - In late 2013, startup accelerator Y Combinator unveiled its Simple Agreement for Future Equity (“SAFE”) investment instrument as an alternative to convertible debt. While SAFE templates appeared in different…more

Convertible Debt, Corporate Counsel, Financing, Investors, Popular

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You Again?: Application of the First-to-File Bar Where Subsequent Actions Are Brought By the Same Relator

The Federal False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq., has unique procedural aspects that come into play when a private whistleblower (the “relator”) seeks to sue on behalf of the Government. One of these, the…more

False Claims Act (FCA), Federal Contractors, First-to-File, Qui Tam, Relators

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California’s Equal Pay Law To Become More Stringent Effective January 1, 2016

Earlier this month, California Governor Jerry Brown signed the California Fair Pay Act, a bill making various changes to strengthen the California Equal Pay Act, which addresses gender wage inequality. The bill, S.B. 358,…more

Anti-Retaliation Provisions, Equal Pay, Fair Pay Act, Governor Brown, Pay Secrecy

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Delaware Court of Chancery Rejects Share-Tracing Standing Requirement for Appraisal Petitioners

The Delaware Court of Chancery issued companion opinions clarifying Delaware’s standing requirements for appraisal petitions under 8 Del. C. § 262. In In re Appraisal of Ancestry.com, Inc., C.A. No. 8173-VGC, 2015 WL 66825…more

Ancestry.com, Appraisal, Arbitrage, Business Litigation, Buy-Out Agreements

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Recent Relaxation of State-level Challenges to the Expansion of Telemedicine but Barriers Remain

The use of telemedicine has expanded access to care to patients in rural areas and provided a convenient alternative to battling congested physician offices and emergency department waiting rooms. In repeated studies the…more

Interstate Compacts, Kaiser Permanente, Medical License, Physicians, Rural Areas

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[Event] Labor & Employment Law Update & Happy Hour - Sept. 16th, Costa Mesa, CA

Please join us for Sheppard Mullin's bi-annual Labor & Employment Law Update & Happy Hour. There have been significant developments in California labor and employment law this year. We will explain how these new developments…more

DOL, Events, Hiring & Firing, Independent Contractors, Internships

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Commercial Lease Guaranties From Foreign Entities: What You Need to Know to Safeguard Your Security

In connection with a commercial lease with an international company, a commercial landlord is often asked to accept U.S.-based subsidiary as the tenant entity. The U.S. subsidiary often does not have independent financials or…more

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Delaware Court of Chancery Dismisses Post-Closing Disclosure Claims for Damages, Cautioning That Such Claims Are Best Pursued Pre-Closing

In Nguyen v. Barrett, C.A. No. 11511-VCG, 2016 WL 5404095 (Del. Ch. Sept. 28, 2016) (Glasscock, V.C.), the Delaware Court of Chancery dismissed an amended complaint seeking damages for alleged disclosure violations in connection…more

Acquisitions, AOL, Disclosure Requirements, Fees, Fiduciary Duty

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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, Transfers

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U.S. Supreme Court Holds Agency Interpretations Are Not Subject To Notice-and-Comment Rulemaking Requirement

In 2004, the DOL revamped its regulations regarding the Fair Labor Standards Act (FLSA) administrative exemption. In 2006, the Bush DOL issued an opinion letter finding that mortgage loan officers qualified for the…more

Administrative Exemption, Administrative Procedure Act, Chevron Deference, DOL, Exempt-Employees

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What Physicians Need to Know About the New California End of Life Option Act

On October 5, 2015, the California legislature passed the “End of Life Option Act” (the “Act”), which permits physicians to prescribe an aid-in-dying medication to terminally-ill patients. The Act is set to take effect on June…more

Employment Policies, Health Care Providers, New Legislation, Physician-Assisted Suicide, Physicians

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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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More Transparency- New Enterprise Information Disclosure Rules Take Effect

China has recently passed new laws requiring enterprises to disclose important information which the public can access. On October 1, 2014, new rules came into effect, Provisional Rules on Enterprise Information Disclosure…more

China, Compliance, Disclosure Requirements, Transparency

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Maximum Civil Penalties for HSR Violations to Increase to $40,000 per Day

For parties considering a merger or other transaction, the civil penalties for failing to comply with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) are about to increase significantly. On June 29,…more

Civil Monetary Penalty, Compliance, Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Filing Requirements, FTC

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New York State Department of Labor Proposes Increases to Overtime Exempt Salary Threshold

By now, most employers have heard about the changes to the overtime regulations that will increase the salary threshold for overtime exemptions under the federal Fair Labor Standards Act (“FLSA”) to $913 per week as of December…more

Comment Period, Corporate Counsel, DOL, FLSA, Minimum Salary

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EEOC Proposes New Pay Data Reporting Requirements for Employers

The United States Equal Employment Opportunity Commission (“EEOC”) has published proposed revisions to the requirements associated with the Employer Information Report (EEO-1). The EEO-1 already requires employers with more than…more

Data Collection, EEO-1, EEOC, Equal Pay, Fair Pay Act

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IRS Announces Inflation-Adjusted Amounts for 2016

The IRS recently announced the inflation-adjusted items for 2016, including gift, estate, and generation-skipping transfer tax amounts. The following adjustments should be considered in your estate and gift planning..…more

Generation-Skipping Transfer, Gift-Tax Exemption, IRS

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Work and Resident Permits for Short-Term Working Foreigners

The Ministry of Human Resources and Social Security, the Ministry of Foreign Affairs, the Ministry of Public Security and the Ministry of Culture jointly issued a notice of the Relevant Handling Procedures for Foreigners…more

China, Foreign Nationals, Residency Status, Work Permits

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DC Circuit Ruling Confirms Reasonableness Of Resellers Relying On TAA Certifications From Suppliers

The U.S. Court of Appeals for the District of Columbia Circuit has issued a ruling bringing to an end the long-running False Claims Act (“FCA”) case filed by relator Brady Folliard and providing useful guidance to resellers…more

Appeals, Distributors, False Claims Act (FCA), Federal Contractors, General Services Administration (GSA)

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Arbitrator and Mediator. Member of AAA National Panel of Construction Arbitrators

AAA issued revised Construction Industry Arbitration Rules which took effect July 1, 2015. There are significant changes in the new rules which are intended to make the arbitration process more efficient and cost-effective. …more

American Arbitration Association, Arbitration, Arbitrators, Case Consolidation, Case Management

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Supreme Court Denies Certiorari in Challenge to San Jose’s Inclusionary Housing Ordinance; Justice Thomas Suggests The Issue is Far From Settled

On February 29, 2016, the Supreme Court of the United States denied the California Building Industry’s petition for writ of certiorari seeking review of the decision of the California Supreme Court in California Building…more

Affordable Housing, CA Supreme Court, California Building Industry Association (CBIA), City of San Jose, Construction Industry

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Third Circuit Upholds The Enforceability Of Make-Whole Premiums In Post-Bankruptcy Context

In a recent November 17, 2016 opinion, Delaware Trust Co. v. Energy Future Intermediate Holding Company LLC, Case No. 16-1351, the Third Circuit Court of Appeals reversed two lower court opinions by holding that make-whole…more

Accelerated Payments, Appeals, Commercial Bankruptcy, Creditors, Debtors

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Parent Company Furnishes Cancellation of Subsidiary’s Trademark Registration

Does your company’s wholly-owned subsidiary own trademarks in its own name? Has your company acquired any companies that own trademarks? If so, your company’s use of those trademarks will not prevent cancellation of those…more

Affiliates, IP License, License Agreements, Parent Corporation, Subsidiaries

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The Future of the U.S.-Canada Trade Relationship in Light of the Election

The United States and Canada enjoy a unique bilateral relationship. That relationship reflects a unique friendship, underpinned by shared geography, similar values, common interests, deep connections and powerful, multi-layered…more

Canada, Cross-Border Transactions, Donald Trump, Economic Development, Investment

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California and Delaware Courts Agree: Amendments to Corporate Bylaws Do Not Apply Retroactively to Impair Pursuit Previously Accrued Claims

Two recent decisions, one from the Delaware Court of Chancery and one from the California Court of Appeal, Fourth Appellate District, refused to apply bylaws that impaired a shareholder/member plaintiff’s ability to pursue his…more

Appeals, Bylaws, Corporations Code, Retroactive Application, Shareholder Litigation

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Antitrust Agencies Issue Guidance To HR Professionals Regarding Hiring and Compensation Decisions

The U.S. Antitrust Agencies (the Antitrust Division of the Department of Justice and the Federal Trade Commission) recently issued a document entitled “Antitrust Guidance For Human Resource Professionals” intended to alert HR…more

Antitrust Violations, Civil Liability, Criminal Liability, DOJ, FTC

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Voters Overwhelmingly Approve ‘Build Better LA’ Initiative Resulting in New Affordable Housing and Local Hiring Requirements For Developers

Voters this week approved Measure JJJ, otherwise known as the Build Better L.A. initiative (the “Initiative”), which establishes new labor and affordable-housing requirements for developers in Los Angeles seeking discretionary…more

Affordable Housing, Ballot Measures, General Elections, Hiring & Firing, Housing Developers

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It’s Arrived! FAR Final Rule Addressing “Basic Safeguarding of Contractor Information Systems”

After nearly four years of planning and comments, DoD, GSA, and NASA issued a final rule today amending the Federal Acquisition Regulations (“FAR”) with a new Subpart 4-19 and a new contract clause 52.204-21 addressing the basic…more

Cybersecurity, Department of Defense (DOD), Federal Acquisition Regulations (FAR), Federal Contractors, Final Rules

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FAST Act Speeds-Up Raising Capital

On December 4, 2015, President Obama signed into law the Fixing America’s Surface Transportation Act, or FAST Act. Although primarily a transportation bill, the FAST Act also made changes to the federal securities laws as…more

Capital Raising, Corporate Issuers, Emerging Growth Companies, Financial Statements, Fixing America’s Surface Transportation Act (FAST Act)

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Patent Office Adds Another After Final Option for Applicants – P3

This week, the United States Patent and Trademark Office (USPTO) announced1 the Post-Prosecution Pilot Program (“P3”) for applicants to respond to a final rejection in a utility patent application. Under the P3, an applicant…more

Examiners, Patent Applications, Patents, USPTO, USPTO Pilot Program

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In Wake of Panama Papers Scandal Obama Calls for Stricter Bank Regulations, Tax Rules

In a news conference May 6, President Obama addressed recently announced rules and proposed regulations intended to help the U.S. fight tax evasion and other crimes connected to anonymous offshore companies and accounts. The…more

Banking Sector, Beneficial Owner, Financial Institutions, IRS, Offshore Banks

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Parent Company Furnishes Cancellation of Subsidiary’s Trademark Registration

Does your company’s wholly-owned subsidiary own trademarks in its own name? Has your company acquired any companies that own trademarks? If so, your company’s use of those trademarks will not prevent cancellation of those…more

Affiliates, IP License, License Agreements, Parent Corporation, Subsidiaries

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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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California Relaxes Its “Made in the U.S.A.” Law

To the consternation of many, California law has long imposed a “Made in the U.S.A.” standard that has been more stringent than the federal standard, requiring manufacturers of all types who wanted to make a country of origin…more

Country of Origin, FTC, Labeling, Made in the USA, Manufacturers

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Rah! Rah! Sis Boom Bah! Supreme Court to Decide Whether Copyright Act Protects Cheerleader Uniform Designs

In August 2015, the United States Sixth Circuit Court of Appeals held in Varsity Brands, Inc.. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015), that the stripes, chevrons and other visual elements that appear on a…more

Cheerleaders, SCOTUS, Sports Apparel, Star Athletica v Varsity Brands, The Copyright Act

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The Future of the U.S.-Canada Trade Relationship in Light of the Election

The United States and Canada enjoy a unique bilateral relationship. That relationship reflects a unique friendship, underpinned by shared geography, similar values, common interests, deep connections and powerful, multi-layered…more

Canada, Cross-Border Transactions, Donald Trump, Economic Development, Investment

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GAO Loses Jurisdiction Over Task Order Protests Valued at More Than $10 Million

Government contractors hoping to challenge a civilian agency’s award of a task or delivery order may be out of luck, at least temporarily. Prior to September 30, 2016, the Government Accountability Office (“GAO”) had exclusive…more

Amended Regulation, Bid Protests, Court of Federal Claims, Federal Contractors, GAO

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Will Madden v Midland Disrupt Loan Sales and Platform Lending?

Where do marketplace lenders and secondary loan market participants find themselves on the issue of preemption of state usury laws after the June 27 denial of the petition for a writ of certiorari in Madden v. Midland by the…more

Banking Sector, Choice-of-Law, Credit Cards, Debt Buyers, Federal v State Law Application

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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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Evolving Private Remedies for Competition Infringements in Europe: Class Actions in the U.K.

Winds of change are blowing through Europe’s national courts, beginning with a new antitrust damages Directive requiring changes in national laws to facilitate private enforcement of competition law. This step was a major…more

Class Action, Class Certification, Collective Actions, Competition, Competition Appeal Tribunal

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