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Sarah Aberg

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

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

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

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Robin Achen

Sweet(ener) Confusion: Court Divide Over Role of Primary Jurisdiction Doctrine in “Evaporated Cane Juice” Cases Grows

In Swearingen v. Santa Cruz Natural, Inc., No. C 13-04291 (N.D. Cal. April 2, 2014), Judge Illston of the U.S. District Court for the Northern District of California granted defendant’s motion to dismiss based on the primary…more

Advertising, Class Action, False Advertising, FDA, Food Labeling

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Andrew Alberg

D.C.’s Less Charitable Approach to Property Tax Exemptions for Non-Profits

Under District of Columbia law, organizations that own buildings in D.C. used for purposes of public charity principally in the District are entitled to property tax exemptions. (D.C. Code § 47-1002(8)). However, in light of…more

IRS, Property Tax, Tax Exemptions

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Mahsa Aliaskari

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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David Almeida

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

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

Compliance, E-SIGN, FCC, TCPA, Telemarketing

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Valerie Alter

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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Travis Anderson

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

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

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

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Rena Andoh

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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Brian Arbetter

China Enacts New Employment Law Affecting Employers Who Do Not Directly Employ Their Workers

China has a new employment law. This new law significantly impacts an employer who does not directly employ its own workers, but instead uses agencies such as FESCO or third party staffing companies, also known as labor…more

China, Employer Liability Issues, Employment Contract, Equal Pay, Labor Dispatch Services

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Matthew Ardoin

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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Jonathan Aronie

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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Edwin Astudillo

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

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

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

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Martin Bader

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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Tyler E. Baker

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

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

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

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Dylan Ballard

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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Daniel Bane

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

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

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

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Gregory Barbee

Sarbanes-Oxley Whistleblower Protections Cover Employees of a Public Company’s Private Contractors

On March 4, 2014, the United States Supreme Court, in a 6-3 decision, expanded the protections offered to whistleblowers under anti-fraud laws, in Lawson v. FMR LLC. In its decision, the Court ruled that a specific protection…more

Contractors, FMR LLC, Lawson v FMR, Sarbanes-Oxley, SCOTUS

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Elizabeth Berman Barcohana

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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Joseph Barton

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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Paul Berkowitz

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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John Bonn

New IRS Regulations Regarding Noncompensatory Partnership Options Effective Immediately

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

Convertabile Equity, IRS, Non-Compensatory Partnership Options

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Paul Bost

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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Townsend Bourne

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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Larry Braun

Joining the Crowd - Investing profitably in equity crowdfunding

Crowdfunding is a word you’ve heard a lot since the passage of the JOBS Act in 2012. But what is crowdfunding, and, more importantly, how you can use it to invest profitably? What Is Crowdfunding? - Crowdfunding is…more

Business Formation, Crowdfunding, JOBS Act, Private Equity Funds, Small Business

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Daniel Brown

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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James Burgess

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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Michael Campbell

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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Craig Cardon

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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Leo Caseria

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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Kyndra Casper

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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Juan Castañeda

6 Ways to do Business Overseas While Reducing the Perils of Future Litigation

As an executive or in-house counsel, your work likely reaches across the globe. 90% of companies in the United States are involved in litigation—much of it international. American companies have increased overseas…more

Career Development, International Litigation

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Joel Cazares

IRS Says Bitcoin Isn’t Money

On March 25, 2014 the IRS issued Notice 2014-21, which describes how the IRS will interpret existing general tax principles to apply to transactions using “virtual currencies” such as Bitcoin. This Notice is the most recent in a…more

Bitcoins, IRS, Virtual Currency

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James Chadwick

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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Alex Chan

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

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

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

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Michael Chan

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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Wayne Chang

Who Owns Your Online Persona?

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

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

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David Chidlaw

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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John Chierichella

DOE Proposes Highly Burdensome Reporting Obligations With Respect To Export Compliance

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

Compliance, DFARS, DOE, Export Controls, Exports

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Bruce Colbath

McSweeny Confirmed to Fill Vacancy at FTC

The Federal Trade Commissions will soon be back to having a full complement of five commissioners. Today, the U.S. Senate, by a vote of 95 to 1, confirmed Terrell McSweeny to fill a vacancy at the agency created by the…more

FTC, Political Appointments

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Christopher Collins

Court Upholds New Jersey’s Ban on Unemployment Discrimination in Job Advertisements

New Jersey’s law prohibiting discrimination against the unemployed in job advertisements – the first of a new crop of similar state and municipal laws – is constitutional, according to a recent New Jersey appeals court decision…more

Discrimination, Job Applicants, Unemployment Discrimination

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Terese Connolly

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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Ryan Connor

California's Revised Uniform Limited Liability Company Act

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

Fiduciary Duty, LLC, Operating Agreements, RULLCA

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Mercedes Cook

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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Robert Copeland

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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Sean Cornerly

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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Paul Cowie

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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Guylyn Cummins

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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Tyler Cunningham

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

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

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

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Aytan Dahukey

CMS Announces Participants in Bundled Payments for Care Improvement Initiative

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

ACOs, Bundled Payments, CMS, Medicaid, Medicare

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Bryan Daly

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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Carrie H. Darling

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

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

Executive Compensation, GICS, ISS

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Robert Darwell

Sports Litigation Alert, Volume 10, Issue 18, October 4, 2013 - Cloning Decision Could Lead to Copycat Litigation in the World of Racing

Owners of elite American Quarter Horses may soon be ponying up to create clones of their champions. On July 31, 2013 a North Texas District Court jury decided that the American Quarter Horse Association’s (“AQHA”) rule…more

Horse Racing, Sports

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Brian Daucher

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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Elia DeLuca

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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Thomas Devaney

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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Curtis Dombek

Appellate Court Issues Opinion on SEC’s Conflict Minerals Rule

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

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

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David Douglass

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

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

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

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Jennifer Driscoll-Chippendale

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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Ryan Duffy

Obama Signals Greater Scrutiny on Workplace Pay with Latest Budget

Employers beware: President Obama’s recent budget proposal may portend a Department of Labor crackdown on workplace pay issues in 2015. As part of the 2015 fiscal year budget which President Obama submitted to Congress…more

DOL, Unpaid Overtime, Wage and Hour

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Melissa Eaves

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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Helen C. Eckert

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

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

Antitrust Litigation, Malicious Prosecution, Monopolization, Unfair Competition

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Tetlo Emmen

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

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

Economic Development, Municipalities

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Whitney Fair

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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Taraneh Fard

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

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

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

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Andrea Feathers

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

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

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

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Alan Feld

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

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

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Gregg Fisch

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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Lindsey Fletcher

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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Shira Forman

Federal Contractors Face New Requirements Regarding Recruitment, Hiring, and Identification of Individuals with Disabilities

Effective March 24, 2014, a new rule from the Office of Federal Contract Compliance Programs will require federal contractors and subcontractors to take additional steps to recruit, hire, and retain individuals with…more

Affirmative Action, Disability, Federal Contractors, Hiring & Firing, OFCCP

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Alfred Fraijo

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

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

Economic Development, Municipalities

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Robert S. Friedman

TCPA Class Actions Coming To New York

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

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

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David Gallacher

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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Harris Gao

SIPO's Draft Measures on Service Invention

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

Inventions, Patents, SIPO

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David R. Garcia

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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Keith Garner

Utility Pole Not A Point Source Under The Clean Water Act

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

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

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Brian Garrett

Additional Price of a Judicial Reaction: Waiver of One's Contractual Right to Arbitration

In Volpe v. Interpublic Group of Companies, Inc., No. 652308/2012, Judge Eileen Bransten denied plaintiff Ray Volpe’s (“Volpe”) motion to compel arbitration and granted defendant The Interpublic Group of Companies, Inc.’s…more

Arbitration, Arbitration Agreements, Contract Interpretation, Employment Contract, Motion to Compel

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David Geneson

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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Keith Gercken

New IRS Regulations Regarding Noncompensatory Partnership Options Effective Immediately

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

Convertabile Equity, IRS, Non-Compensatory Partnership Options

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Stephen Gilson

The $330-Million Dollar Question

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

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

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Bradley Graveline

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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Gregory Grigorian

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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Claudia Gutierrez

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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Jason Guyser

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

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

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

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Christopher Hale

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

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

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

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Hal Hamersmith

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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Melanie Hamilton

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

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

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

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Bram Hanono

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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Michael Hansen

Bill Introduced to Restore Cities' Ability to Require Affordable Housing

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

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

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Lisa Harris

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

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

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

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James Hays

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

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

Compliance, Enforcement, NLRA, NLRB

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John Hempill

Setting The Record Straight On The New General Solicitation Rules

On September 23, 2013, the final rules eliminating the prohibition on general solicitation and advertising for certain offerings under Rule 506 went into effect. While this development was anticipated with much excitement by…more

Advertising, Compliance, Crowdfunding, General Solicitation, JOBS Act

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Scott Hennigh

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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Sascha Henry

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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Don Hibner

De Facto Exclusive Dealing: What a Difference a Day Makes

In Competition Law360, September 4, 2013, we reported on the dismissal of a complaint which alleged, inter alia, exclusive-dealing claims in a market described as the management and distribution of “photographs in rich media…more

Antitrust Litigation, Exclusive Dealing Agreements, Hospitality Industry, Restaurant Industry, Sherman Act

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James Hill

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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Kathryn Hines

'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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Rebecca R. Hirschklau

Reminder: New York State Wage Theft Prevention Act Notice Requirements

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

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

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Whitney Hodges

Supreme Court Grants Limited Review of GHG Emissions Regulations

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

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

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Rachel Tarko Hudson

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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John Hynes

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

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

False Claims Act, FERA, FERA Retroactivity Clause

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Gina Ilardi

FTC Updates To Online Privacy Acts, COPPA And VPPA

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

Consent, COPPA, Data Collection, Data Protection, FTC

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Mark Jensen

Tech Company Shares Tech, Makes Self-Disclosure, Pays Penalty

On February 19, 2014, the U.S. Commerce Department announced that it had reached an agreement with Santa Clara-based Intevac, Inc. to settle allegations that Intevac violated U.S. export regulations governing exports of…more

Export Administration Regulations, Russia, Technology, Transfers, Voluntary Disclosure

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Karin Johnson

Equal Pay Issues Addressed by President Obama on “National Equal Pay Day,” When He Signed An Executive Order and Presidential Memorandum Affecting Federal Contractors

On April 8, 2014, President Obama signed a Presidential Memorandum that will require federal contractors and subcontractors to provide to the U.S. Department of Labor compensation data based on their employees’ sex and race. The…more

Discrimination, DOL, Equal Pay, Executive Orders, Federal Contractors

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Meredith Jones-McKeown

Developers May Require That Construction Defect Disputes Be Resolved Through Arbitration

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

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Thomas R. Kaufman

New Decision Examines the Scope of Constructive Discharge

On December 31, 2013, in Vasquez v. Franklin Management Real Estate Fund, Inc., the California Court of Appeal held that a maintenance technician, who alleged that he was constructively discharged in violation of public policy…more

Amended Complaints, Constructive Discharge, Demurrers, Employer Liability Issues, Mileage Reimbursement

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Danielle Kennedy

Judge Rules In Favor Of Stockton And Accepts Chapter 9 Petition

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

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

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Jeff Kern

Second Circuit Upholds SEC’s Authority to Obtain Disgorgement from Non-Trading Insider Profits Earned by Portfolio Fund from Insider Trading

In SEC v. Contorinis, 2014 U.S. App. LEXIS 2927 (2d Cir. Feb. 18, 2014), the United States Court of Appeals for the Second Circuit upheld the authority of the Securities and Exchange Commission (“SEC”) to obtain “disgorgement”…more

Disgorgement, Insider Trading, Personal Liability, Professional Liability, SEC

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Eugene Kim

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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Michelle Kim

Supreme Court Hears Arguments on "Pay for Delay" Agreements

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

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

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Sean Kirby

United States Supreme Court Holds That Section 806 of the Sarbanes-Oxley Act Extends to Employees of Private Companies Who Are Contractors or Subcontractors for Covered Public Companies

In Lawson v. FMR, LLC, No. 12-3, 2014 WL 813701 (U.S. Mar. 4, 2014), the Supreme Court of the United States, in a 6-3 decision reversing the United States Court of Appeals for the First Circuit, held that the whistleblower…more

Contractors, FMR LLC, Lawson v FMR, Sarbanes-Oxley, SCOTUS

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Alison Kleaver

Mexico To Vote On Historic Amendment To Open Oil Industry To Private Investment

The Mexican Senate has introduced a constitutional amendment that, if approved, would open the country’s oil market to foreign and private investors. Currently, oil production is controlled exclusively by the state-owned…more

Foreign Investment, Investors, Mexico, Oil & Gas, Pemex

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Eric Klein

HHS releases new software for updating (but not replacing) HIPAA security risk assessment toolkits

Last week, the Department of Health and Human Services (HHS) released a new, free, downloadable tool to assist small and medium-size health care provider offices to conduct security risk assessments (SRA)…more

Healthcare Professionals, HHS, HIPAA, Physicians, Security Risk Assessments

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Aaron Kleven

Bankrupt Municipality May Reduce Retiree Benefits

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

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

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Becky Koblitz

Antitrust Investigations in China: Putting Things in Perspective

The current press is buzzing with news about the recent increase in antitrust investigations involving foreign companies with operations in China, and reports of foreign companies being told to expect higher fines if they “put…more

Antitrust Investigations, China, Fines, Foreign Corporations

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Edwin Komen

Intent To Use – It’s Not The Thought That Counts

Bona fide intent, the sine qua non of non-use trademark applications, was given new meaning by the TTAB in a decision released unpublished February 21, 2014 but redesignated as precedent on March 26, 2014, thus placing at risk…more

Intent-to-Use, Madrid Protocol, Trademark Trial and Appeal Board, Trademarks, USPTO

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Stephen Korniczky

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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Steven Kramer

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

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

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

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Anthony C. Kuhlmann

Standards of Review: Implications for Patent Challengers

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

Patents, Standard of Review, USPTO

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Lydia Lake

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

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

Energy, Energy Efficiency, Utilities Sector

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John M. Landry

District Court Cites Recent “Evolution” of Rule 23 Standards to Deny Class Certification Motion in Securities Action Based Upon Allegedly Misleading Registration Statement

In re Kosmos Energy Ltd. Securities Litigation, No. 3:12-CV-373-B, 2014 U.S. Dist. LEXIS 36365 (N.D. Tex. Mar. 19, 2014), the United States District Court for the Northern District of Texas (Boyle, J.) denied lead plaintiff’s…more

Class Action, Class Certification, Federal Rules of Civil Procedure, Misleading Statements, Registration

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Michael Lauter

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

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

Debtors, Non-Insider Claimant, Transfers

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Adrienne Lee

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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Sooho

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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Louis Lehot

Fourth Quarter 2012

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

Capital Markets, Fundraisers, Nasdaq, NYSE, Private Equity

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Russell Leu

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

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

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

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Malika Levarlet

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

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

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

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Danielle Levine

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

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

CFAA, Jury Trial, Trade Secrets

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Lauren Lewis

Mobile Medical App Regulations on the Move – Proposed Bills To Further Alter the Regulatory Landscape of Mobile Medical Applications

Apple’s apps store lists close to a 100,000 health apps. Together with wearable technology, direct-to-consumer testing services, and greater consumer participation in the decision to purchase health insurance, the healthcare…more

Healthcare, Mobile Apps, Telemedicine

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Lisa Lewis

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

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

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

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Gloria Li

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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Lauren Liebes

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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Christopher Loveland

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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Irene Lu

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

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

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

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Ryan Lund

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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Dawn Lurie

FINRA Raises the Bar on Due Diligence by Broker Dealers Involved in EB-5

At the end of August, the Financial Industry Regulatory Authority, Inc. (FINRA) issued an interpretive guidance letter to a registered broker dealer (BD), Trustmont Financial Group, Inc. (Trustmont). Trustmont had sought…more

Broker-Dealer, EB-5, FINRA, Immigrant Investment Visas, Investors

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Scott Maberry

The Gloves are Off: U.S. Sanctions Block Aggressors in Crimea

In response to Russia’s military presence in the Crimean region of Ukraine, President Obama issued an Executive Order (“EO”) on March 6, 2014, authorizing the blocking of property of individuals and entities involved in the…more

Executive Orders, Financial Crimes, Foreign Banks, Russia, Sanctions

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Robert Magielnicki

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

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

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

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Seth Mailhot

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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Alexander Major

Robert Frost and Cybersecurity - Two Roads Diverging

Like Frost’s nameless traveler in “The Road Not Taken,” our Government finds itself confronted with two diverging roads in the cybersecurity realm. The first offers moderation, deliberation, and evolution. The second, speed…more

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Alan Martin

Attacking LBO Payouts as State Law Fraudulent Transfers

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

Buyouts, Fraudulent Transfers, Leveraged Buyout, Transfers

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Gabriel Matus

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

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

Bonds, Default, NML Capital Ltd, Vulture Fund

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Thad McBride

Starving the Bear: The United States Restricts Exports to Russia

The pressure on Russia continues to build. As we previously reported here and here, throughout March, the United States and other Western powers implemented a series of sanctions against individuals and entities deemed to be…more

Russia, Sanctions, Ukraine

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Amy McEvoy

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

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

Estate Tax, Foreign Investment, Real Estate Market

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James L. McGinnis

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

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

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

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Mark McGrath

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

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

Mediation

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Anna McLean

The Contract Is King: The U.S. Supreme Court’s Two Recent FAA Decisions

The U.S. Supreme Court addressed contract terms bearing on the availability of class arbitration in two opinions this term. The first, Oxford Health Plans LLC v. Sutter, confirms a district court’s limited power under the…more

American Express, American Express v Italian Colors Restaurant, Arbitration, Arbitration Agreements, Class Action

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Adam McNeile

Student Loans: Nondischargeability Questioned in Seventh Circuit and Beyond

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

Dischargeable Debts, Loans, Proposed Legislation, Student Loans

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Peter Menard

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

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

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

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Reed Mercado

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

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

Borrowers, Default, Lender Liability, Lenders, Loan Modifications

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James Mercer

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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Fatema Merchant

Spacing Out: BIS Issues Report on Export Controls and the Space Industrial Base

In February 2014, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) published a report (“Report”) detailing the impact of export controls on the U.S. space industry. Titled the “U.S. Space Industry ‘Deep…more

Aerospace, BIS, Export Controls, ITAR

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Alex Merritt

Utility Pole Not A Point Source Under The Clean Water Act

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

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

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Paul Metzger

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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Lynsey Mitchell

HHS releases new software for updating (but not replacing) HIPAA security risk assessment toolkits

Last week, the Department of Health and Human Services (HHS) released a new, free, downloadable tool to assist small and medium-size health care provider offices to conduct security risk assessments (SRA)…more

Healthcare Professionals, HHS, HIPAA, Physicians, Security Risk Assessments

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Dorna Moini

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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Thomas Monahan

Justice Saliann Scarpulla Appointed to New York County Commercial Division

Effective today, Justice Saliann Scarpulla of the New York Supreme Court has been appointed to the New York County Commercial Division. Justice Scarpulla succeeds Justice Barbara Kapnick, who was appointed to the Appellate…more

Judicial Appointments

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Alejandro E. Moreno

Delaware Court of Chancery Grants Summary Judgment Dismissing Breach of Fiduciary Duty Claims In Absence of Evidence of Directors’ “Conscious Disregard” of Fiduciary Duties

In In re Answers Corp. Shareholders Litigation, C.A. No. 6170-VCN, 2014 WL 463163 (Del. Ch. Feb. 3, 2014), the Delaware Court of Chancery (Noble, V.C.) granted summary judgment in favor of defendants in a stockholder class…more

Board of Directors, Breach of Duty, Fiduciary Duty, Mergers, Professional Liability

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Anthony Moshirnia

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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Jonathan Moss

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

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

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

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Matthew Muellar

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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Ben Mulcahy

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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Ryan Munitz

Equal Pay Issues Addressed by President Obama on “National Equal Pay Day,” When He Signed An Executive Order and Presidential Memorandum Affecting Federal Contractors

On April 8, 2014, President Obama signed a Presidential Memorandum that will require federal contractors and subcontractors to provide to the U.S. Department of Labor compensation data based on their employees’ sex and race. The…more

Discrimination, DOL, Equal Pay, Executive Orders, Federal Contractors

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Brian Murphy

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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Amrita Nangiana

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

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

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

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Thomas Nevins

Major League Baseball’s Antitrust “Exemption” Is Immune From Judicial Overrule

The City of San Jose, California, entered into an option contract to lease land to the Oakland A’s, a Major League Baseball (“MLB”) club, for the construction of a new stadium. The land was within the exclusive territory of…more

Antitrust Provisions, Baseball, Exemptions, MLB

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Eugene Ngai

Obama Administration Further Delays Employer Mandate and Releases Final Regulations Regarding Implementation

The Treasury Department and Internal Revenue Service announced on Monday that the Obama Administration would further delay implementation of the “employer mandate” under the Affordable Care Act for certain employers until 2016. …more

Affordable Care Act, Delays, Employee Benefits, Employer Mandates, Healthcare

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Marlene Nicolas

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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Nadezhda Nikonova

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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Todd Padnos

Attacking LBO Payouts as State Law Fraudulent Transfers

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

Buyouts, Fraudulent Transfers, Leveraged Buyout, Transfers

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Scott Palmer

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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Cheryl Palmeri

Starving the Bear: The United States Restricts Exports to Russia

The pressure on Russia continues to build. As we previously reported here and here, throughout March, the United States and other Western powers implemented a series of sanctions against individuals and entities deemed to be…more

Russia, Sanctions, Ukraine

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Adam Pekor

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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Anne Perry

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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Shannon Petersen

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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Joseph Pileri

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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David Poell

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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James Pugh

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

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Kevin Puvalowski

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

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

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

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Mark Rackers

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

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

Foreclosure, Homeowner Bill of Rights, Mortgages

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Tina Rad

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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Jay Ramsey

Are Call Recording Class Actions Doomed?

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

Audio Recording, Class Action, Customer Service Calls, Surveillance

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Eric Raphan

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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Bora Rawcliffe

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

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

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

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Neil Ray

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

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

Cyber Attacks, Cybersecurity, EU, Export Controls, Surveillance

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Kent Raygor

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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Jeffrey Rector

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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Jennifer Redmond

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

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

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

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Peter Reichertz

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

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

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

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Matthew Richardson

Severance Payments are Taxable under FICA

On Tuesday, March 25, 2014, the U.S. Supreme Court ruled in favor of the Internal Revenue Service in a dispute over the payroll tax treatment of certain types of severance compensation…more

FICA Taxes, IRS, Quality Stores, SCOTUS, Severance Agreements

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Matthew Riemer

Tryin’ to Make a Dollar out of Fifteen Cents: The Diebold FCPA Settlement Explains What Officials Did on Their Vacation

Vacation is great, but it can involve a great deal of planning. And, paradoxically, leisure travel can involve more planning than traveling for business. That travel-related work stands out as a centerpiece of the October 22,…more

Bribery, Deferred Prosecution Agreements, Diebold Inc, DOJ, Enforcement Actions

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Catherine Risoleo

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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Ryan Roberts

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

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

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

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Rick Rodriguez

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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Kevin Rooney

Fourth Quarter 2012

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

Capital Markets, Fundraisers, Nasdaq, NYSE, Private Equity

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Sherwin Root

The End Is In Sight? Deutsche Bank Claims Victory In Defense Of A Repurchase Claim Based Upon Statute Of Limitations

A unit of Deutsche Bank won dismissal of a suit brought by mortgage bond investors after a New York state appeals court determined the claims for loan repurchase and indemnity were subject to a six-year statute of limitations…more

Deutsche Bank, Indemnification, Repurchases, Statute of Limitations

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Robert Rose

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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Deborah Rosenthal

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

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Scott Roybal

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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James Rusk

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

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

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

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Bridget Russell

Delaware Court of Chancery Applies Implied Covenant of Good Faith and Fair Dealing to Prohibit An Acquiring Entity From Diverting Revenues to Depress Payouts Under a Contingent Purchase Price Provision

In American Capital Acquisition Partners, LLC v. LPL Holdings, Inc., CA NO. 9490-VCG, 2014 WL 354496 (Del. Ch. Feb. 3, 2014), the Delaware Court of Chancery applied the implied covenant of good faith and fair dealing to a merger…more

Acquisitions, Covenant of Good Faith and Fair Dealing, Mergers

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Robert Sahyan

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

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

Advances, Debt

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David Sands

The End Is In Sight? Deutsche Bank Claims Victory In Defense Of A Repurchase Claim Based Upon Statute Of Limitations

A unit of Deutsche Bank won dismissal of a suit brought by mortgage bond investors after a New York state appeals court determined the claims for loan repurchase and indemnity were subject to a six-year statute of limitations…more

Deutsche Bank, Indemnification, Repurchases, Statute of Limitations

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Jason Schendel

Considerations for 2014 Proxy Season and Beyond

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

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

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Gregory C. Schick

Reminder to Perform Annual ISO/ESPP Reporting in January 2014

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

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

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Nick Schnermann

Davis-Bacon CityCenterDC Case

In a recent decision out of the U.S. District Court for the District of Columbia, Judge Amy Jackson held that the Davis-Bacon Act (“Davis-Bacon”) did not apply to a privately-funded development of privately-maintained buildings…more

Construction Contracts, Davis-Bacon Act, DOL

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Paul Seeley

A (POM) Wonderful Result For Consumer Class Action Defendants

On March 25, 2014, the court in In re: POM Wonderful LLC Marketing and Sales Practices Litigation, Case No. ML 10-02199 DDP (C.D. Cal.), granted a motion by defendant POM Wonderful LLC (“POM”) to decertify a previously certified…more

Class Action, Class Certification, Comcast v. Behrend, POM Wonderful, SCOTUS

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Dina Segal

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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Mukund Sharma

Bitcoins and Liability in the Wake of Recent Silk Road Arrests

Last week’s arrests of Robert Faiella, an alleged seller on online marketplace Silk Road, and Charlie Shrem, the CEO of the startup BitInstant, marked a recent round in a series of law enforcement actions against what the…more

Bitcoins, DOJ, Money Laundering, Silk Road, Virtual Currency

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Valentina Shenderovich

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

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

Default Judgment, Discovery, Document Requests, Evidence, Sanctions

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W. Bruce Shirk

Health Benefit Exchanges: False Claims Gold Mines?

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

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Barbara Shreero

Attacking LBO Payouts as State Law Fraudulent Transfers

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

Buyouts, Fraudulent Transfers, Leveraged Buyout, Transfers

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Carren Shulman

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

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

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

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Kevin Smith

Another Circuit Court Finds President's NLRB Recess Appointments Unconstitutional

Last month, the United States Court of Appeals for the Fourth Circuit raised the stakes on what has become one of the most prominent topics in the labor law community in recent times with its 2-1 decision in National Labor…more

Barack Obama, NLRB, Recess Appointments

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Martin Smith

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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Jonathan Sokolowsi

Employment Non-Discrimination Act Passes its First Test in the Senate

The U.S. Senate recently passed the Employment Non-Discrimination Act (“ENDA”) (S. 815), a bill which would prohibit employers with 15 or more employees from discriminating against individuals on the basis of their sexual…more

Discrimination, ENDA, Gender Identity, Sexual Orientation Discrimination

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Mona Solouki

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

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

DOJ, Exclusion Orders, FRAND, Google, Injunctions

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Jung Son

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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Vickie Spang

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

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

Big Law, Client Services, Firm Leadership, Legal Perspectives

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Anna Stancu

Court of Appeal Affirms Summary Judgment in Favor of Farmers Insurance on Independent Contract Issue

On July 11, 2013, the Second Appellate District in Beaumont-Jacques v. Farmers Group Inc. concluded as a matter of law that a worker’s ability to exercise meaningful discretion in her job-related efforts rendered her an…more

Contractors, Delegation of Discretion, Independent Contractors, Summary Judgment

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John Stigi

District Court Cites Recent “Evolution” of Rule 23 Standards to Deny Class Certification Motion in Securities Action Based Upon Allegedly Misleading Registration Statement

In re Kosmos Energy Ltd. Securities Litigation, No. 3:12-CV-373-B, 2014 U.S. Dist. LEXIS 36365 (N.D. Tex. Mar. 19, 2014), the United States District Court for the Northern District of Texas (Boyle, J.) denied lead plaintiff’s…more

Class Action, Class Certification, Federal Rules of Civil Procedure, Misleading Statements, Registration

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Susan Stith

The DMCA: Seeking Safe Harbor in a Sea of Troubles

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

Copyright, Copyright Infringement, DMCA, Google, Safe Harbors

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Jonathan Stoler

Dodd-Frank Whistleblower Protection: For America Only

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

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

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Robert Stumpf, Jr.

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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Robert Sturgeon

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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Judy Suwatanapongched

Kid Gamers: Safe Harbors for Video Game Providers

As online social gaming becomes more pervasive in the lives of children today, it is vital for video game providers to understand and comply with the Children’s Online Privacy Protection Act Rule (“COPPA Rule”). The COPPA Rule…more

COPPA, Safe Harbors, Video Games

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Douglas Svor

Is Wheeler Gaga for Gigabit? The FCC Liberates 100 MHz of Spectrum for Unlicensed Wi-Fi

On April 1, the FCC took steps to remedy a small but growing annoyance of modern life: poor Wi-Fi connectivity. Removing restrictions that had been in place to protect the mobile satellite service uplinks of Globalstar, and by…more

Broadband, FCC, Mobile Services, Wireless Technology

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Christine Swanick

Interior’s Carcieri Opinion Means More Diligence for Trust Land Development Projects

The Office of the Solicitor of the Department of the Interior has issued a legal opinion (the “Opinion“) to the Secretary of the Interior interpreting the statutory phrase “under federal jurisdiction” in the Indian…more

Department of the Interior, Due Diligence, Land Developers, Trusts

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Evan Sypek

The Libor Scandal: What's Next?

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

Barclays, Due Diligence, EU, IOSCO, Libor

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Lauren Tarantello

Congress Delays Medicare Cuts until 2015

On March 31, the Senate voted to pass yet another “doc fix” bill, which had been approved by the House the week before. This doc fix bill marks the 17th time that Congress has postponed the implementation of the Medicare…more

Healthcare, Medicare, Physician SGR Formula

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Barbara Taylor

Navigating the Provider Self-Disclosure Protocol

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

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

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Raphaela Taylor

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

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

Auction, Borrowers, Buyers, Default, Foreclosure

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Kira Teshima

No Private Attorney General Fees for Homeowner

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

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

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Olivier F. Theard

Supreme Court Grants Limited Review of GHG Emissions Regulations

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

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

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Dave Thomas

Is Wheeler Gaga for Gigabit? The FCC Liberates 100 MHz of Spectrum for Unlicensed Wi-Fi

On April 1, the FCC took steps to remedy a small but growing annoyance of modern life: poor Wi-Fi connectivity. Removing restrictions that had been in place to protect the mobile satellite service uplinks of Globalstar, and by…more

Broadband, FCC, Mobile Services, Wireless Technology

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Edward Tillinghast

Attacking LBO Payouts as State Law Fraudulent Transfers

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

Buyouts, Fraudulent Transfers, Leveraged Buyout, Transfers

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John Tishler

Considerations for 2014 Proxy Season and Beyond

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

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

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Mathew Troughton

New Court Decision Clarifies Mechanic's Lien Valuation Statute

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

Contract Price, Mechanics Lien, Valuation

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Emily Tsai

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

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

China, Managers, Private Equity, Registration, Regulation

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Matthew Turetzky

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

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

DOD, Environmental Policies, EPA, Export Controls, NASA

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Zachary Turke

Joining the Crowd - Investing profitably in equity crowdfunding

Crowdfunding is a word you’ve heard a lot since the passage of the JOBS Act in 2012. But what is crowdfunding, and, more importantly, how you can use it to invest profitably? What Is Crowdfunding? - Crowdfunding is…more

Business Formation, Crowdfunding, JOBS Act, Private Equity Funds, Small Business

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Franklin Turner

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

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

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

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Michael Umansky

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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Robert Uram

Utility Pole Not A Point Source Under The Clean Water Act

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

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

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Marcos Vergara del Carril

Apple is fighting back in Brazilian courts to get its iPhone trademark

In February 2013, the Instituto Nacional Da Propriedade Industrial (the “Brazilian Patent and Trademark Office”), ruled that Gradiente Electronica (“Gradiente”), not Apple, owned the “iPhone” mark in Brazil. The “iPhone” term…more

Apple, Brand, Intellectual Property Litigation, iPhone, Mobile Devices

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Louis Victorino

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

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

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

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Randy Visser

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

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

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

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Karin Dougan Vogel

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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Wilda Wahpepah

Interior’s Carcieri Opinion Means More Diligence for Trust Land Development Projects

The Office of the Solicitor of the Department of the Interior has issued a legal opinion (the “Opinion“) to the Secretary of the Interior interpreting the statutory phrase “under federal jurisdiction” in the Indian…more

Department of the Interior, Due Diligence, Land Developers, Trusts

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Shawn Watts

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

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

Borrowers, Chapter 11, Credit Agreements, Insurers, Lenders

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Isaiah Weedn

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

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

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

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Brian Weimer

Regulatory Reminder: Annual CVAA Compliance Certifications due April 1

Following up on an important FCC Law Blog item from 2013, entities subject to the Twenty-First Century Communications and Video Accessibility Act (“CVAA”) should be aware that the April 1, 2014 deadline to electronically file…more

Broadcasting, Compliance, CVAA, Disability, FCC

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Paul Werner

Twice Bitten But Not Shy, The FCC Is Handed The DC Circuit’s Prescription for Internet Regulation

On Tuesday, January 14, 2014, the United States Court of Appeals for the D.C. Circuit struck down the FCC’s latest effort to mandate “net neutrality”– or promote internet “openness” – under the auspices of implementing the…more

Anti-Discrimination Policies, Communications Act of 1934, FCC, Internet, Telecommunications

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Robert Wernli

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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Pamela Westhoff

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

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

Energy, Energy Efficiency, Utilities Sector

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Reid Whitten

ECR Series Episode VII: Livin’ in a Materials World – Changes to USML Category XIII

If you manufacture or export Auxiliary Military Equipment controlled under Category XIII of the U.S. Munitions List, you may rightly consider the category number unlucky. The current scope of Category XIII controls is broad and…more

Export Controls, Exports, ITAR, US Munitions List

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Don Williams

Shanghai Pilot Free Trade Zone (PFTZ)

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

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

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Robert E. Williams

Here's How Young Associates Actually Impress Law Firm Partners

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

Career Development, Firm Leadership, Young Lawyers

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Blanka Wolfe

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

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

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

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Sharon Xu

China Business Registration Reform

On February 7, 2014, the State Council issued Notice on Reform Plans of Registration Policies of Registered Capital, GuoFa [2014] No. 7 (the “Notice”) providing guidelines on business registration reforms of companies in China. …more

China, Compliance, Financial Regulatory Reform, Registration

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Meng Yan

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

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

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

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Ariel Yehezkel

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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Lai Yip

$2.3 Million Trial Verdict Against Newegg

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

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

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Kenneth Yood

Enforcement of the Two-Midnight Rule Delayed Again

Last week President Obama signed into law a measure to extend Medicare physician pay rates for one year and to extend the enforcement delay of the “Two-Midnight” rule through March 2015. Medicare Recovery Audit Contractors…more

Audits, Healthcare, MACs, Medicare, RACs

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Kristy Young

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

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

Eminent Domain, Foreclosure, Loans, Mortgages, Municipalities

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Lisa Yun

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

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

Contract Formation, Contract Interpretation, Loan Modifications, Oral Contracts

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Aleah Yung

Pioneer ACOs Exit the Program

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

ACOs, Affordable Care Act, CMS, Healthcare, Medicare

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Stephanie Zeppa

Mobile Medical App Regulations on the Move – Proposed Bills To Further Alter the Regulatory Landscape of Mobile Medical Applications

Apple’s apps store lists close to a 100,000 health apps. Together with wearable technology, direct-to-consumer testing services, and greater consumer participation in the decision to purchase health insurance, the healthcare…more

Healthcare, Mobile Apps, Telemedicine

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Ling Zhang

China Cracking Down On Pharmaceutical Corruption

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

China, Corruption, Pharmaceutical

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Michael Zhang

Shanghai Pilot Free Trade Zone (PFTZ)

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

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

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James Zimmerman

China to Relax the Corporate Registered Capital System and Reform the Annual Inspection Process

The government is moving in a direction to make the corporate formation and supervision process more user-friendly. Two key changes are expected to happen in the near future. The first is the abolishment of the registered…more

China, Compliance, Financial Regulatory Reform, Foreign Investment, Inspections

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