Sheppard Mullin Richter & Hampton LLP

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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California Court of Appeal Lowers the Bar on Ascertainability Requirement in Consumer Class Actions

In Aguirre v. Amscan Holdings, Inc., Case No. 073059, 2015 Cal. App. LEXIS 214 (Cal. Ct. App. Feb. 11, 2015), a California Court of Appeal reversed the denial of certification of a putative class alleging violation of Civil Code…more

Appeals, Ascertainable Class, Consumer Financial Products, Putative Class Actions, Song-Beverly Credit Card Act

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

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

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

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

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

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

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Not So Small After All: CallFire Uses Common Carrier Defense to Defeat Rinky Dink TCPA Class Action Case

Last month, in Rinky Dink, Inc. v. Electronic Merchant Systems, et al., No 13-cv-01347, 2015 WL 778065 (W.D. Wash. Feb. 24, 2015), online voice and text provider CallFire became one of the first (if not the first) TCPA…more

Common Carriers, Corporate Counsel, Dismissals, Robocalling, TCPA

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

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

Ban the Box, Criminal Background Checks, Job Applicants

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

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

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

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

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

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

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

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

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

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Versata Software, Inc. v. Callidus Software, Inc.: Guidance on Stays Pending Post-Issuance Proceedings

In a recent decision, Versata Software, Inc. v. Callidus Software, Inc., No. 2014-1468 (Fed. Cir. Nov. 20, 2014), the Federal Circuit ordered the District of Delaware to stay district court litigation pending a covered business…more

America Invents Act, Covered Business Method Proceedings, Motion To Stay, Patent Infringement, Patents

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

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

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

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

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

Antitrust Litigation, Motorola, Price-Fixing

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

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

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

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The FTC Continues Its Focus on the Mobile Arena

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

Apple, COPPA, FTC, Gaming, Mobile Apps

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

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

Advertising, Children's Products, COPPA, Minors

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

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

Compliance, DOD, Enforcement, Fraud, Investigations

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Indiana Wins Federal Approval to Expand Medicaid Coverage Under Obamacare

Republican Indiana Gov. Mike Pence announced on Tuesday that an agreement had been reached on the state’s Medicaid expansion proposal submitted in July. As many as 350,000 people could gain coverage under the federal health law…more

Affordable Care Act, Health Insurance, Healthcare, Healthcare Reform, Legislative Agendas

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USCIS Announces Work Permits for Qualifying Spouses of H-1B Employees

U.S. Citizenship & Immigration Services (USCIS) announced on February 24 that certain qualifying spouses of H-1B workers will be allowed to apply for a work permit beginning on May 26, 2015…more

DHS, Employment Authorization Document, H-1B, H-4 Spouses, Spouses

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

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

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

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Full Speed Ahead for Meaningful Use

On Friday, March 20, 2015, the Centers for Medicare and Medicaid Services (“CMS”) issued a proposed rule which would make significant changes to the federal Medicare and Medicaid Electronic Health Records (“EHR”) Incentive…more

CMS, EHR, Health Care Providers, Healthcare, Proposed Regulation

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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 IRS Regulations Regarding Noncompensatory Partnership Options Effective Immediately

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

Convertabile Equity, IRS, Non-Compensatory Partnership Options

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

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

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

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GAO Dismisses Protest Alleging Noncompliance with E-Verify Requirements

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

E-Verify, GAO, USCIS

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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, Insurers, Purchase Agreement

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

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

Business Litigation, Threshhold Requirements

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

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

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

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Preparing for the Affordable Care Act Employer Mandate

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

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

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

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

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

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

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

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

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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, Internal Investigations

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Adopting Thresholds of Significance Under CEQA Not Subject to CEQA Review

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

Air Pollution, CEQA, Environmental Policies, Environmental Review

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Never Let Them See You Coming—Keys to Setting Up Witnesses Interviews In An Internal Investigation

“So you are the great lawyer I’ve been told about!  But, you are so young!  I was expecting an old lawyer.” With those words, the silver-haired senior-level executive of the customs broker I was investigating for bribery let me…more

Compliance, FCPA, Internal Investigations, Interviews, Mexico

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

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

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

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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, FAR

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Georgia’s Limited Tax Credits for Interactive Entertainment Producers

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

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

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

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

America Invents Act, Patent Reform, Patent Term Adjustment, Patents, USPTO

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

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

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

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Who Owns Your Online Persona?

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

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

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

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

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

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Those NDAs May Not Be Worth the Paper They Are Written On

It is a given that companies strive to protect their intellectual property. Over the years, as an instrument of that protection, companies have made increasing use of non-disclosure agreements to advance that objective. A…more

Business Assets, Corporate Counsel, Court of Federal Claims, Federal Contractors, Government Contractors

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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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An In-Depth Analysis of the NLRB’s Decision to Permit Employees to Use Employer Email Systems for Union Organizing and Other Non-Work Purposes

The rights of employees under Section 7 of the National Labor Relations Act have been given quite the digital treatment over the last few years. In its newest decision issued on December 11, 2014, the National Labor Relations…more

Email, NLRB, Protected Concerted Activity, Purple Communications, Unions

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The Ninth Circuit Holds That Res Judicata Bars State Recovery of Restitution for Members of a CAFA-Compliant Class Action

In California v. Intelligender, LLC, the Ninth Circuit ruled that final judgment in a CAFA-compliant class settlement barred the State of California from seeking restitution on behalf of members of the settlement class for…more

Advertising, CAFA, Class Action, False Advertising, Government Entities

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Major Shakeup at NYC Commission on Human Rights

On November 21, 2014, New York City Mayor Bill de Blasio announced a major shakeup at the NYC Commission on Human Rights, replacing all eight Bloomberg-appointed Commissioners and the Commission Chair…more

NYCHRL, Political Appointments

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Minimum Wage in Mexico

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

Mexico, Minimum Wage

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California's Revised Uniform Limited Liability Company Act

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

Fiduciary Duty, LLC, Operating Agreements, RULLCA

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

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

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

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

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

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

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

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

Bankruptcy Code, Dodd-Frank, Standing, Unsecured Creditors

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Department of Defense Updates Its Instruction for Acquisitions of Software and Weapons Systems

On January 7, 2015, the U.S. Department of Defense (“DoD” or “the Department”) released an update for DoD Instruction 5000.02, on the “Operation of the Defense Acquisition Service.” The new Instruction is designed to assist…more

Cybersecurity, Defense Sector, DOD, Federal Contractors, Software

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“Unlimited” Time Off Policies – Fad or Fun?

Over the past several years the concept of “unlimited” vacation policies have sprung up around the philosophy that it allows companies to treat its employees with respect and empower them to make their own decisions regarding…more

Earned Sick Time, Paid Leave, Paid Sick Leave Act, PTO, Sick Leave

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Common Pitfalls of Appellate Practice

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

Appeals

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

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

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

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

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

Executive Compensation, GICS, ISS

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

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

Internet Retailers, Internet Taxation, Retailers

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

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

Beneficiaries, CMS, Healthcare, Incarcerated Beneficiaries, Medical Expenses

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Task Force of Healthcare Providers and Insurers are Shifting to Incentive Based Contracts

Some of the largest healthcare providers and insurers in the country have joined to form the Healthcare Transformation Task Force in an effort to change healthcare industry payment models. …more

Healthcare Providers, HHS, Incentive Based Contracts, Insurers, Medicare

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

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

Caregivers, Flexible Work Arrangements

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

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

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

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No Proof Necessary: SCOTUS Rules Defendant’s Notice Of Removal Under CAFA Need Not Include Evidence of The Amount In Controversy

On December 15, 2014, the United States Supreme Court resolved a circuit split in holding that a defendant need not supply evidence of the amount in controversy in its notice of removal under the Class Action Fairness Act…more

Amount in Controversy, CAFA, Class Action, Dart Cherokee Basin Operating Co. v. Owens, Diversity Jurisdiction

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Add Importers to Those Facing Expanding Whistleblower Claims under the False Claims Act

On February 12, 2015, the Department of Justice (DOJ) announced that three U.S.-based importers had agreed to pay more than $3 million to resolve a lawsuit brought by the United States under the False Claims Act (FCA) alleging…more

Antidumping Duties, Countervailing Duties, Customs and Border Protection, DOJ, Enforcement Actions

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Another Approaching Benchslap for EEOC?

In a positively delightful “man bites dog” story, a former EEOC investigator just filed suit against the EEOC alleging race discrimination, racially hostile work environment, and retaliation in violation of Title VII and the…more

Civil Rights Act, Discrimination, EEOC, Former Employee, Hostile Environment

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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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New Guidance on Contractor Self-Disclosure

The Health and Human Services (HHS) Office of Inspector General (OIG) provides health care providers an opportunity to disclose potential violations of certain Federal civil and criminal laws in relation to HHS contracts or…more

Disclosure Requirements, Federal Contractors, Healthcare Providers, HHS, OIG

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

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

Antitrust Litigation, Automotive Industry, DOJ, Extradition

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New York Wage Board Recommends $7.50 Hourly Wage for Tipped Workers

Under a proposal recommended by the state’s Wage Board on Friday, January 30, 2015, tipped workers in New York state, including restaurant servers and hospitality workers, would have their minimum hourly wage increased to $7.50…more

Employer Mandates, Hospitality Industry, Minimum Wage, Proposed Regulation, Restaurant Industry

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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

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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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In Highly-Anticipated Decision, Ninth Circuit Affirms That Hospital-Physician Group Merger in St. Luke’s Violated Section 7 And Casts Serious Doubt on Viability of Efficiencies Defense

On February 10, 2015, the Ninth Circuit issued its highly-anticipated decision at the intersection of health care and antitrust, affirming the lower court’s finding that a hospital-physician group merger completed nearly three…more

Antitrust Provisions, Appeals, Divestiture, FTC, Healthcare

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Not So Small After All: CallFire Uses Common Carrier Defense to Defeat Rinky Dink TCPA Class Action Case

Last month, in Rinky Dink, Inc. v. Electronic Merchant Systems, et al., No 13-cv-01347, 2015 WL 778065 (W.D. Wash. Feb. 24, 2015), online voice and text provider CallFire became one of the first (if not the first) TCPA…more

Common Carriers, Corporate Counsel, Dismissals, Robocalling, TCPA

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LA Mayor Proposes Mandatory Earthquake Retrofitting for Commercial and Residential Buildings

Capping a year-long partnership between the City of Los Angeles and Dr. Lucy Jones, a well-known seismologist with the United States Geological Survey, Mayor Eric Garcetti released  “Resilience by Design” last week, a plan that…more

City of Los Angeles, Commercial Property Owners, Property Owners, Proposed Regulation, Seismic Retrofitting

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

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

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

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

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

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

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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 Court of Chancery Rejects Contemporaneous Ownership Requirement For Creditors Asserting Derivative Claims

In Quadrant Structured Products Co. v. Vertin, C.A. No. 6990-VCL, 2014 Del. Ch. LEXIS 193 (Del. Ch. Oct. 1, 2014), the Delaware Court of Chancery held that when creditors of insolvent firms assert derivative claims, they need…more

Breach of Duty, Business Ownership, Commercial Bankruptcy, 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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U.S. Supreme Court Rules that Security Screening Time is Non-Compensable Under Federal Law and The Portal-to-Portal Act

In a decision issued on Tuesday, December 9, 2014, the United States Supreme Court ruled that employees are not entitled to compensation under the federal Fair Labor Standards Act (“FLSA”) for the time they spend waiting to…more

Amazon, FLSA, SCOTUS, Security Checks, Wages

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

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

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

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DOL 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

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Employers Beware! Employees are Permitted to Use Employer’s Email Systems for Non Work Purposes, Including Union Organizing

Overturning existing precedent, the NLRB has ruled that certain employees have a right to use employer email systems for protected communications, unless special circumstances exist. This decision potentially has far-reaching…more

Email, NLRB, Protected Concerted Activity, Purple Communications, Unions

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LA Mayor Proposes Mandatory Earthquake Retrofitting for Commercial and Residential Buildings

Capping a year-long partnership between the City of Los Angeles and Dr. Lucy Jones, a well-known seismologist with the United States Geological Survey, Mayor Eric Garcetti released  “Resilience by Design” last week, a plan that…more

City of Los Angeles, Commercial Property Owners, Property Owners, Proposed Regulation, Seismic Retrofitting

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Keeping Up With The Commercial Division(s)

The past year has been a busy time for anyone keeping up with the Rules for the Commercial Division of the New York State Court System. The Commercial Division Advisory Council, led by Justice Eileen Bransten, has been pushing…more

Business Court Division, Local Rules

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

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

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

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SIPO's Draft Measures on Service Invention

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

Inventions, Patents, SIPO

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In Highly-Anticipated Decision, Ninth Circuit Affirms That Hospital-Physician Group Merger in St. Luke’s Violated Section 7 And Casts Serious Doubt on Viability of Efficiencies Defense

On February 10, 2015, the Ninth Circuit issued its highly-anticipated decision at the intersection of health care and antitrust, affirming the lower court’s finding that a hospital-physician group merger completed nearly three…more

Antitrust Provisions, Appeals, Divestiture, FTC, Healthcare

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Utility Pole Not A Point Source Under The Clean Water Act

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

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

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

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

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

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Cybersecurity: 36 Questions Every Director Should Ask

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

Cybersecurity, Data Breach, Data Protection, Hackers

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If They Could Be All You Wanted: The FCC Gets Serious About Small Cells

Say what you will about inside-the-Beltway leadership vacuums, political gridlock and the indecipherable output from the grey, grinding gears of our government agencies, but once in a while Washington actually gets it right. Or…more

AT&T, Broadband, Comcast, Digital Divide, DirectTV

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New IRS Regulations Regarding Noncompensatory Partnership Options Effective Immediately

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

Convertabile Equity, IRS, Non-Compensatory Partnership Options

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

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

Corporate Governance, Non-Profits, NPCL

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Conan Doyle Estate’s Quixotic Attempt to Protect Sherlock Holmes

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

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

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North Carolina Court Issues First Decision Controlling Coop Pole Attachment Rates

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

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

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Cyberspace Oddity: The FCC Regulates Internet Services as Common Carrier Telecommunications Services, “Protecting and Promoting the Open Internet”

The FCC voted recently 3-2 along party lines to promulgate new rules necessary to protect the “Open Internet.” At the core of the Commission’s action lies its decision to reclassify Internet services as a “telecommunications”…more

Communications Act of 1934, FCC, Internet, Proposed Regulation, Regulatory Agenda

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Round and Round and Round She Goes, and Where She Lands, Nobody Knows: The Future of Obamacare and Why King v. Burwell Matters – A Five-Part Series

Last week, on Wednesday, March 4, the U.S. Supreme Court heard oral argument in the highly publicized case of King. v. Burwell—a lawsuit challenging the Affordable Care Act or “Obamacare” based upon what many would call the most…more

Affordable Care Act, Health Insurance, Health Insurance Exchanges, King v Burwell, Oral Argument

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

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

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

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Maryland Legislature Fixes Problems Left Over From 2012 IDOT Legislation

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

IDOT, Indemnification

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

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

Airlines, Airports, Cross-Border, Economic Development

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County of San Diego’s Adopted Climate Action Plan Violates CEQA: Fails to Include Enforceable GHG Reduction Measures

Sierra Club v. County of San Diego (10/29/14, D064243) - On October 29, 2014, the Fourth District California Court of Appeal unanimously affirmed the trial court’s decision in favor of Sierra Club, agreeing that the…more

Air Pollution, Building Standards, CEQA, Climate Action Plan, Construction Industry

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

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

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

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

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

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

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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

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

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

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

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

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

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

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Social Media: Protecting Trade Secrets and Proprietary Information

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

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

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Bill Introduced to Restore Cities' Ability to Require Affordable Housing

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

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

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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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U.S. Supreme Court Rules that Security Screening Time is Non-Compensable Under Federal Law and The Portal-to-Portal Act

In a decision issued on Tuesday, December 9, 2014, the United States Supreme Court ruled that employees are not entitled to compensation under the federal Fair Labor Standards Act (“FLSA”) for the time they spend waiting to…more

Amazon, FLSA, SCOTUS, Security Checks, Wages

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Toward a Transactional Exemption for Emerging Company Investments

In “Bringing the Individual Accredited Investor Definition into the 21st Century,” which was posted on December 18th of last year, it was suggested that there might be certain common venture capital transactional structures that…more

Accredited Investors, Emerging Growth Companies, Issuer Exemption, Regulation D, SEC

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DOJ’s FCPA Enforcement Power Gets A Big Boost

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

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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

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

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

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

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

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

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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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Revised “Fred Meyer Guides” Leave Treatment of Key Robinson-Patman Act Provisions Unchanged

While hardly ever enforced in modern times by government enforcement agencies, and rarely the subject of antitrust treble damage actions, Sections 2(d) and (e) of the Robinson Patman Act (15 U.S.C. §§ 13(d) and (e)) have had a…more

Advertising, Antitrust Litigation, Antitrust Provisions, Clorox, Costco

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

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

Attorney's Fees, Class Action, Settlement, Toyota

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

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

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

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Reminder: New York State Wage Theft Prevention Act Notice Requirements

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

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

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Tribe’s Gamble That Casino Land Transfer Approval Not Subject to CEQA Pays Off

Picayune Rancheria of Chukchansi Indians v. Brown, C074506 (9/24/2014) - In a recent Third District Court of Appeal published opinion, the court in Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (3rd…more

CEQA, Department of the Interior, Environmental Impact Report, Indian Gaming, Jerry Brown

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The California Supreme Court Holds That Certain Security Guards Must Be Paid to Sleep

On December 31, 2014, the California Supreme Court held in Mendiola v. CPS Security Solutions, Inc. (Case No. S212704) that security guards who work shifts of 24 or more hours under Wage Order 4 must be compensated for their…more

Class Action, Employer Liability Issues, On-Call Employees, Security Guards, Wage and Hour

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California Enacts New Data Privacy Laws

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

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

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

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

False Claims Act, FERA, FERA Retroactivity Clause

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FTC Updates To Online Privacy Acts, COPPA And VPPA

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

Consent, COPPA, Data Collection, Data Protection, FTC

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Beyond the Checklist: Seven Keys to Effective Trade Due Diligence

Anti-corruption due diligence can be vexing even in the best of conditions; it is often made more complicated by time and business pressures that arise in the context of a merger or acquisition or an urgent sales opportunity. …more

Anti-Corruption, DOJ, Due Diligence, FCPA, SEC

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Get Ready! DC’s Protecting Pregnant Workers Fairness Act Currently Expected To Take Effect On March 3, 2015

The District of Columbia recently joined twelve other states that have enacted laws requiring employers to accommodate certain limitations associated with pregnancy. The Protecting Pregnant Workers Fairness Act (the “Act” or…more

Employer Mandates, New Legislation, Pregnancy, Reasonable Accommodation

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

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

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

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Brinker for Dummies

On November 13, 2014, the Second District Court of Appeal, Division One, issued a decision in Walgreen Co. Overtime Cases. The opinion explains the meaning of Brinker Restaurant Corp. v. Superior Court as it applies to the duty…more

Appeals, Employee Rights, Employer Liability Issues, Rest and Meal Break, Retailers

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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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FINRA Issues Guidance Notice on Confidentiality Provisions in Settlement Agreements and the Arbitration Discovery Process

In Regulatory Notice 14-40, FINRA reminds members that it is a violation of FINRA Rule 2010 (Standards of Commercial Honor and Principles of Trade) to incorporate into a settlement agreement a confidentiality provision…more

Confidentiality, FINRA, Non-Judicial Settlement Agreements, SEC, Whistleblowers

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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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California Makes Anti-Bullying Training A Component Of Mandatory Harassment Training

California employers with more than 50 employees must include “abusive conduct” prevention training in their mandatory harassment prevention training. Assembly Bill No. 2053 expanded the scope of training required by Government…more

Abusive Conduct Training, Anti-Harassment Policies, Workplace Bullying

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Supreme Court of New Jersey Adopts Faragher/Ellerth Affirmative Defense

On February 11, 2015, the Supreme Court of New Jersey expressly adopted the test created by the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524…more

Affirmative Defenses, Faragher/Ellerth defense, NJ Supreme Court, Sexual Harassment, Vicarious Liability

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

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

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Full Speed Ahead for Meaningful Use

On Friday, March 20, 2015, the Centers for Medicare and Medicaid Services (“CMS”) issued a proposed rule which would make significant changes to the federal Medicare and Medicaid Electronic Health Records (“EHR”) Incentive…more

CMS, EHR, Health Care Providers, Healthcare, Proposed Regulation

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Bankrupt Municipality May Reduce Retiree Benefits

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

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

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China Primer Series: Anti-Monopoly Law 2015

China’s adoption of the Anti-Monopoly Law (“AML”)is a landmark in the evolution of China's economic transformation. The AML was a carefully thought-out, negotiated, strategic development dictated by the central government, a…more

Anti-Monopoly, China, Legislative History

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

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

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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

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

Declaration, False Statements, Inequitable Conduct, Infringement, Materiality

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

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

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

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SEC Staff To Express No Views On Conflicting Shareholder Proposals Under Rule 14a-8(i)(9)

On January 16, 2015, SEC Chair Mary Jo White issued a directive that the staff of the SEC review its position on Rule 14a-8(i)(9) of the Securities Exchange Act of 1934 (the “Exchange Act”). Concurrent with SEC Chair White’s…more

Mary Jo White, Proxy Access Rule, Proxy Materials, Rule 14a-8, SEC

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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, Federal Contractors, First-to-File, Qui Tam, Relators

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Arbitration Agreement With PAGA Waiver And Opt Out Provision Deemed Unenforceable

Last month, a California Court of Appeal invalidated an arbitration agreement for including a representative action waiver combined with a non-severability clause…more

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Standards of Review: Implications for Patent Challengers

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

Patents, Standard of Review, USPTO

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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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Important Alert for Commercial Owners/Landlords and Brokers/Agents: Changes to California Dual Agency Disclosure Laws Effective January 1, 2015

Effective January 1, 2015, California law requires real estate brokers and agents to provide their clients and prospective clients with specific new disclosures, including an initial disclosure form regarding the nature of…more

Agency Relationship, Commercial Leases, Commercial Property Owners, Disclosure Requirements, Dual Agency Disclosure

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The Second Circuit Holds That Comcast Does Not Require Automatic Denial of Rule 23(b)(3) Class Certification in Cases Presenting Individualized Damages Issues

In Roach v. T.L. Cannon Corp., No. 13-3070-cv, 2015 WL 528125 (2d Cir. Feb. 10, 2015), the Second Circuit Court of Appeals held that Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), does not require district courts to first…more

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

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

Debtors, Non-Insider Claimant, Transfers

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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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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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Nationality of Vessels on Sea Trials Under U.S. Law

In 2013, approximately 1,147 commercial and military vessels were delivered by United States shipyards. This total includes vessels of all types – 8 deep-draft vessels and structures, 219 OSVs, tugs, towboats, passenger and…more

Federal Admiralty Law, Shipping, Shipyard Industry, Vessels

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Fourth Quarter 2012

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

Capital Markets, Fundraisers, Nasdaq, NYSE, Private Equity

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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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Higher Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced

Higher Thresholds For HSR Filings - On January 15, 2015, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing…more

Filing Fees, FTC, GDP, Hart-Scott-Rodino Act, Interlocking Directorate

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

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

CFAA, Jury Trial, Trade Secrets

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Investment Trends in the Gaming Industry

Over the past decade, the gaming industry has evolved into one of the hottest sectors of mobile internet services. VentureBeat recently reported that in the trailing twelve months of Q3 2014, gaming accounted for $18 billion in…more

Amazon, Equity Financing, Financing, Gaming, IPO

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Reminder: New York Interns Are Now Protected Under Both the State and City Human Rights Laws

Following New York City Mayor Bill De Blasio’s endorsement of an amendment to the New York City Human Rights Law (“NYCHRL”) extending the statute’s anti-discrimination and harassment protections to interns earlier this year (as…more

Employer Liability Issues, Internships, New Amendments, NYCHRL, Popular

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NLRB “Quickie Election” Rule Accelerates the Union Organizing Process

In December 2014, the National Labor Relations Board (“NLRB”) announced new rules governing “Representation—Case Procedures.” The new rules—set to take effect in just under a month, on April 14, 2015—have been commonly referred…more

Ambush Election Rules, NLRB, Union Elections, Unions

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China Releases Administrative Measures on Foreign Debt Registration

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

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

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

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

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

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China State Council Approves Adjustment of Special Access Management Measures in Shanghai Pilot Free Trade Zone

Following the big change where registration was replaced by filing for establishment applications of companies excluded in the Negative List, China State Council further approves adjustment of the special access management…more

China, Free Trade Zone, Trade Policy

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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, Federal Contractors, GSA

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NASDAQ Proposes The Adoption Of A New All-Inclusive Annual Listing Fee

On August 26, 2014, The NASDAQ Stock Market LLC (“NASDAQ”) filed with the Securities and Exchange Commission (the “SEC”) certain proposed amendments to the NASDAQ Stock Market Rules (the “Amendments”) to provide for, among other…more

Fees, Filing Fees, Nasdaq, Proposed Amendments, SEC

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

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

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

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OFAC Issues Cuban Asset Control Regulations Focused on the U.S. Financial Sector

On January 15, 2015, the Department of Treasury’s Office of Foreign Assets Control (OFAC) amended the Cuban Assets Control Regulations to implement changes in U.S. policy toward Cuba announced by President Obama on December 17,…more

Amended Legislation, Banking Sector, Barack Obama, CACR, Cuba

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Second Circuit Notes Split with Ninth Circuit Over Whether Failure to Make Adequate Disclosures Under Item 303 of Regulation S-K May Serve as Basis for a Section 10(b) Claim

In Stratte-McClure v. Morgan Stanley, No. 13-0627-cv, 2015 WL 136213 (2d Cir. Jan. 12, 2015), the United States Court of Appeals for the Second Circuit affirmed the dismissal of securities fraud claims against Morgan Stanley…more

Disclosure Requirements, Dismissals, Item 303, Morgan Stanley, Nvidia

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Higher Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced

Higher Thresholds For HSR Filings - On January 15, 2015, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing…more

Filing Fees, FTC, GDP, Hart-Scott-Rodino Act, Interlocking Directorate

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CEQA “Common Sense” Exemption Upheld; Environmental Baseline for Project Following Improvements Pursuant to an Emergency Exemption Clarified

CREED-21 v. City of San Diego (2/18/2015, 4th Civil No. D064186) - The Fourth District Court of Appeal upheld a CEQA exemption related to the City of San Diego’s approval of a project comprising emergency storm drainage…more

CEQA, Emergency Response, Environmental Assessments, Exemptions, Land-Use Permits

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HIPAA/HITECH Compliance Strategies for Medical Device Manufacturers

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

Biotechnology, Compliance, Covered Entities, FDA, HIPAA

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The FCC Takes a Seat at the Cyber-Regulation Table

The FCC recently slid up its chair to the fiscal feast that is cyber security and data breach regulation and took a hefty piece of the pie. In late October the FCC announced that it charged a record $10 million fine against two…more

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

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

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

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

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

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

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

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

Bonds, Default, NML Capital Ltd, Vulture Fund

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

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

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

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DOJ Issues Opinion, Provides (Some) Comfort on Successor Liability

In a recent Opinion Procedure Release (OPR), Number 14-02, the U.S. Department of Justice expressly limited successor liability for a US company purchasing a non-US company that had paid bribes in the past. In so doing, DOJ may…more

DOJ, Due Diligence, Enforcement Guidance, FCPA, FCPA Guidance

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

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

Estate Tax, Foreign Investment, Real Estate Market

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

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

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

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Second Circuit Holds RMBS-issued Certificates Are Exempt from the TIA

On December 23, 2014, the United States Court of Appeals for the Second Circuit issued an opinion on an issue of first impression, namely the scope of § 304(a)(2) of the Trust Indenture Act of 1939, 15 U.S.C. §§ 77aaa-77aaaa…more

Appeals, Bank of New York Mellon, RMBS, Trust Indenture Act

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No Proof Necessary: SCOTUS Rules Defendant’s Notice Of Removal Under CAFA Need Not Include Evidence of The Amount In Controversy

On December 15, 2014, the United States Supreme Court resolved a circuit split in holding that a defendant need not supply evidence of the amount in controversy in its notice of removal under the Class Action Fairness Act…more

Amount in Controversy, CAFA, Class Action, Dart Cherokee Basin Operating Co. v. Owens, Diversity Jurisdiction

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Student Loans: Nondischargeability Questioned in Seventh Circuit and Beyond

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

Dischargeable Debts, Loans, Proposed Legislation, Student Loans

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The California Supreme Court Holds That Certain Security Guards Must Be Paid to Sleep

On December 31, 2014, the California Supreme Court held in Mendiola v. CPS Security Solutions, Inc. (Case No. S212704) that security guards who work shifts of 24 or more hours under Wage Order 4 must be compensated for their…more

Class Action, Employer Liability Issues, On-Call Employees, Security Guards, Wage and Hour

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NASDAQ Proposes The Adoption Of A New All-Inclusive Annual Listing Fee

On August 26, 2014, The NASDAQ Stock Market LLC (“NASDAQ”) filed with the Securities and Exchange Commission (the “SEC”) certain proposed amendments to the NASDAQ Stock Market Rules (the “Amendments”) to provide for, among other…more

Fees, Filing Fees, Nasdaq, Proposed Amendments, SEC

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Nationality of Vessels on Sea Trials Under U.S. Law

In 2013, approximately 1,147 commercial and military vessels were delivered by United States shipyards. This total includes vessels of all types – 8 deep-draft vessels and structures, 219 OSVs, tugs, towboats, passenger and…more

Federal Admiralty Law, Shipping, Shipyard Industry, Vessels

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

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

Borrowers, Default, Lender Liability, Lenders, Loan Modifications

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

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

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

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Havana Hold Your Hand: Reaching Out to Cuban Entrepreneurs

New regulations on Cuba enter into force today, only 29 days after President Obama promised them. The liberalized provisions focus on support for private sector actors in Cuba. As we described here, the President announced on…more

Banking Sector, Barack Obama, Cuba, Entrepreneurs, Exports

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California Supreme Court Announces New Test for CEQA “Unusual Circumstances” Exception

Berkeley Hillside Preservation v. City of Berkeley (2015) ___ Cal.4th ___, Case No. S201116 - This week the California Supreme Court issued its long-awaited decision in the Berkeley Hillside case, which considered whether…more

Berkeley Hillside v City of Berkeley, Categorical Exemptions, CEQA, Environmental Impact Report, Substantial Evidence Standard

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

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

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

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Delaware Court of Chancery Rejects Indemnification Sleight of Hand

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

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

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Medicare Hospital Compliance Reviews are Legal and Sound, According to OIG

The Office of Inspector General for the Department of Health and Human Services (OIG) recently defended its practices pertaining to hospital compliance reviews in a published response to a letter from the American Hospital…more

American Hospital Association, Audits, HHS, Hospitals, Inpatient Billing

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Uber, Lyft Decisions Highlight Difficulty of Classifying Workers in the Modern Economy

“The test the California courts have developed over the 20th Century for classifying workers isn’t very helpful in addressing . . . 21st Century problem[s].” So concluded the court in Cotter v. Lyft, Inc., one of two opinions…more

Drivers, Employer Liability Issues, Lyft, Misclassification, Popular

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

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

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

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

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

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

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

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

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

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

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

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

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Continuity of Enterprise is Enough for Successor Parties to be Liable

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

Asset Purchaser, Continuity of Enterprises, Successor Liability

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

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

Declaration, False Statements, Inequitable Conduct, Infringement, Materiality

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Ninth Circuit Fumbles The Ball In Videogame Likeness Cases

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

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

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Final Anti-Trafficking Rule to Impose New – and Uncertain – Obligations on Contractors

In late January, the FAR Council issued its long-awaited final rule amending the FAR to strengthen the U.S. Government’s policy against human trafficking. As discussed below, the amendments may have far-reaching compliance…more

Due Diligence, FAR, Federal Contractors, Final Rules, Government Contractors

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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, FAR

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

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

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

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

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

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

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

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

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

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

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

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

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California Insurance Commissioner Issues Emergency Regulations Affecting Narrow Provider Networks

On January 5, 2015, Commissioner Dave Jones issued emergency regulations affecting health insurers with respect to access to provider networks in response to consumer complaints that appointments with physicians are hard to…more

Health Care Providers, Health Insurance, Healthcare, Insurance Commissioners, New Regulations

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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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U.S. and China Strike Visa Deal

The United States and China announced an agreement on November 10, 2014 whereby visitors to both countries will now be able to apply for 10-year multiple entry visas. Previously visitors to both countries could only apply for…more

China, Reciprocity Rules, Visas

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

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

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

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

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

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

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Versata Software, Inc. v. Callidus Software, Inc.: Guidance on Stays Pending Post-Issuance Proceedings

In a recent decision, Versata Software, Inc. v. Callidus Software, Inc., No. 2014-1468 (Fed. Cir. Nov. 20, 2014), the Federal Circuit ordered the District of Delaware to stay district court litigation pending a covered business…more

America Invents Act, Covered Business Method Proceedings, Motion To Stay, Patent Infringement, Patents

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

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

China, New Legislation, Trademarks

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OFAC Issues Cuban Asset Control Regulations focused on the U.S. Financial Sector

Today, the Department of Treasury’s Office of Foreign Assets Control (OFAC) amended the Cuban Assets Control Regulations to implement changes in U.S. policy toward Cuba announced by President Obama on December 17, 2014…more

Amended Regulation, Banking Sector, Cuba, OFAC, Sanctions

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Second Circuit Reiterates: Bigger Hurdles For Employers Under Big Apple’s Anti-Discrimination Law

On February 13, 2015, the U.S. Court of Appeals for the Second Circuit reiterated that courts must analyze claims under the New York City Human Rights Law (“NYCHRL”) “separately and independently from any [related] federal and…more

ADEA, Age Discrimination, But For Causation, Hiring & Firing, NYCHRL

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Equal Doesn’t Always Mean Fair

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

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

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

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

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

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

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

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

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

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

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

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Tribe’s Gamble That Casino Land Transfer Approval Not Subject to CEQA Pays Off

Picayune Rancheria of Chukchansi Indians v. Brown, C074506 (9/24/2014) - In a recent Third District Court of Appeal published opinion, the court in Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (3rd…more

CEQA, Department of the Interior, Environmental Impact Report, Indian Gaming, Jerry Brown

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

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

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

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CEQA “Common Sense” Exemption Upheld; Environmental Baseline for Project Following Improvements Pursuant to an Emergency Exemption Clarified

CREED-21 v. City of San Diego (2/18/2015, 4th Civil No. D064186) - The Fourth District Court of Appeal upheld a CEQA exemption related to the City of San Diego’s approval of a project comprising emergency storm drainage…more

CEQA, Emergency Response, Environmental Assessments, Exemptions, Land-Use Permits

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

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

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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

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

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

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

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

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

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

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

Foreclosure, Homeowner Bill of Rights, Mortgages

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Is Your Criminal Screening Process Compliant?

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

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

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Another Blow to Call Recording Class Actions

Back in February, the California Court of Appeal in Hataishi v. First American Home Buyers Protection Corp., 223 Cal. App. 4th 1454 (Feb. 21, 2014), dealt a significant blow to call recording class actions across California. …more

Appeals, Audio Recording, Cell Phones, Class Action, Informed Consent

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

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

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

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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, Internal Investigations

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Add Importers to Those Facing Expanding Whistleblower Claims under the False Claims Act

On February 12, 2015, the Department of Justice (DOJ) announced that three U.S.-based importers had agreed to pay more than $3 million to resolve a lawsuit brought by the United States under the False Claims Act (FCA) alleging…more

Antidumping Duties, Countervailing Duties, Customs and Border Protection, DOJ, Enforcement Actions

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Ninth Circuit Fumbles The Ball In Videogame Likeness Cases

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

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

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EU Carbon Trading System Wins Parliament's Support

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

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

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San Francisco Retail Workers’ Bill of Rights

On November 25, 2014, the San Francisco Board of Supervisors passed two ordinances that are collectively referred to as the San Francisco Retail Workers’ Bill of Rights: the “Hours and Retention Protections for Formula Retail…more

Employee Rights, Human Rights, Local Ordinance, Retailers, San Francisco

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New FDA Draft Guidance on REMS and Bioequivalence Studies: Does New Procedure Secure ANDA Applicants The Right to Obtain Samples?

Applicants seeking approval of Abbreviated New Drug Applications (ANDAs) in most cases must perform bioequivalence studies comparing their proposed generic product to the innovator drug listed in the Orange Book, called the…more

ANDA, FDA, Generic Drugs, New Guidance, Pharmaceutical Manufacturers

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“Change in Ownership” Can Trigger Documentary Transfer Tax

926 North Ardmore Avenue, LLC v. County of Los Angeles, (9/22/14, B248536) - The California Court of Appeals has recently held that, as a general rule, the Documentary Transfer Tax (“DTT”) applies whenever there is a…more

Appeals, Change in Ownership, Local Ordinance, Real Estate Transfers, Transfer Taxes

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New U.S. Restrictions on Russia: OFAC Guidance and Industry-Specific Sanctions

OFAC Expands the 50 Percent Rule - Last month, the Department of Treasury’s Office of Foreign Assets Control (OFAC) released new guidance related to entities owned or controlled by persons designated as a Specially…more

Foreign Policy, OFAC, Russia, Sanctions

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

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

DOL, DOMA, EBSA, Employee Benefits, ERISA

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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, FAR

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

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

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

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

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

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

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Fourth Quarter 2012

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

Capital Markets, Fundraisers, Nasdaq, NYSE, Private Equity

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

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

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

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Cybersecurity: 36 Questions Every Director Should Ask

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

Cybersecurity, Data Breach, Data Protection, Hackers

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

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

Corporate Governance, Non-Profits, NPCL

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City of Los Angeles Delays Issuance of Demolition Permits for Most Structures More Than 45 Years Old

Starting in January 2015, the City will not issue demolition permits for structures more than 45 years old until the applicant has conspicuously posted a demolition notice on the property, sent letters to abutting neighbors and…more

Demolition, Historic Preservation, Notice Requirements, Permits

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FDA Issues Guidance for Mobile Medical Applications: What Will be Subject to FDA Oversight and Enforcement?

On February 09, 2015, the FDA issued final guidelines[1] to outline its regulatory enforcement approach to mobile medical applications (or “apps”). The FDA is taking a risk-based approach, focusing its oversight on apps that…more

FDA, FDCA, Healthcare, Medical Device Accessories, Medical Devices

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