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When is the Proper Time To Challenge Standing in Class Actions? New Jersey Says To Wait Until Class Certification.

On Monday, a New Jersey federal judge denied a motion to dismiss for lack of standing in a deceptive marketing class action in which the named plaintiffs had not purchased a number of the named products. This decision…more

Class Action, Class Certification, Standing

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CFPB Criminal Referral

In what he called "a harbinger of an especially potent partnership," Preet Bharara, U.S. Attorney for the Southern District of New York, announced Tuesday the filing of criminal charges against a New York debt settlement firm…more

CFPB, Criminal Prosecution

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OIG Revamps Regulations Concerning CMPs and Exclusion

In a pair of proposed rules published in May, the HHS OIG unveiled changes to the regulations concerning OIG’s authority to impose civil monetary penalties (CMPs) and exclude individuals and entities from participation in…more

Affordable Care Act, Civil Monetary Penalty, Employee Benefits, Enforcement, Exclusions

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Florida Court Allows Plaintiff Extensive Communication with Putative Class Members

A recent decision from the Southern District of Florida denied a motion seeking to limit plaintiffs’ ability to contact putative class members to solicit support and evidence in support of a class certification motion. In A.R…more

Attorney Solicitation, Class Action, Class Certification, Medicaid, Putative Class Actions

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Northwestern Football Players and Academic Medical Centers: The Other Shoe Has Dropped

In a move that has surprised many, but not all, National Labor Relations Board (NLRB)-watchers and collegiate football fans, Chicago-area NLRB regional director Peter Sung Ohr has determined that Northwestern University…more

Athletics Grants-in-Aid, Bargaining Units, College Athletes, Colleges, Football

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United States Supreme Court Strikes Down Illinois Regulatory Framework Requiring Personal Assistants for Medicaid Recipients to Pay Union Dues or Fees

In its much anticipated decision in Harris v. Quinn, 573 U.S. __ (2014), the Supreme Court of the United States in a five to four ruling struck down an Illinois regulatory framework that required personal assistants (PAs) for…more

Collective Bargaining, First Amendment, Harris v Quinn, Healthcare, Medicaid

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CMS Proposes Increased Rewards for Reporting Fraud and Abuse

The Centers for Medicare and Medicaid Services (CMS) recently published a proposed rule modifying certain provisions in their Incentive Reward Program (IRP) to sweeten the incentives for reporting sanctionable conduct. Revisions…more

CMS, False Claims Act, Fraud, HIPAA, Incentives

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Can Employees Really Arm Themselves with Recording Devices as They Go About Their Daily Work?

Over the last months, we have traced the Board’s and Administrative Law Judges’ rulings on the legality of handbook rules and conduct in the workplace. We have learned that an employer will often have a better opportunity of…more

Corporate Counsel, Employee Handbooks, Employer Liability Issues, Employment Policies, NLRB

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Ninth Circuit Says Cellphone Calls Do Not Have To Be Confidential To Violate the California Invasion of Privacy Act

The Ninth Circuit recently issued a divided and unpublished opinion in Young v. Hilton Worldwide Inc. et al, which plaintiffs may attempt to use in class action lawsuits against call centers for violations of the California…more

Cell Phones, CIPA, Class Action, Confidentiality

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Re: New Bad Act Disqualification, Disclosures and Certification for Rule 506 Exempt Offerings under Regulation D

Today, new Rules 506(d) and (e) of Regulation D under the Securities Act and changes to Form D (Bad Act Rules) take effect to make all Rule 506 offerings subject to certain "bad act" disqualification, disclosure and…more

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The FCPA on Steroids: Brazil Ups the Ante in Fighting Corporate Corruption

Recently, in the wake of massive protests throughout Brazil concerning corruption and other issues, Brazilian President Dilma Vana Rousseff dramatically increased anti-corruption prohibitions in Brazil by signing into law the…more

Anti-Bribery, Anti-Corruption, Bribery, Compliance, Enforcement

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Sixth Circuit Denies Government Motion for Rehearing in Quality Stores Employment Tax Challenge

The Sixth Circuit has unanimously and summarily denied a Government request for en banc rehearing of a taxpayer-favorable ruling in United States v. Quality Stores, Inc., 693 F.3d 605 (6th Cir. Sept. 7, 2012)…more

FICA Taxes, IRS, Quality Stores, Refunds, Statute of Limitations

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ACTEC Wealth Advisor App Offers Powerful Planning Tool for Wealth Management Professionals

The American College of Trust and Estate Counsel (ACTEC) is a national association of leading trust and estate attorneys. ACTEC contributes to the field of trusts and estates law through scholarship, teaching, and bar leadership…more

Estate Planning, Mobile Apps, Personal Finances

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Court of Appeals Rules 23-Day Notice Requirement for Third Party Summonses is Mandatory in Tenth Circuit

In Jewell v. U.S., Taxpayer Sam Jewell was the subject of an IRS investigation which resulted in third party summonses being issued to banks located in both the Eastern and Western Districts of Oklahoma. Mr. Jewell challenged…more

Administrative Appeals, Appeals, IRS, Notice Requirements, Summons

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ACTEC Wealth Advisor App Offers Powerful Planning Tool for Wealth Management Professionals

The American College of Trust and Estate Counsel (ACTEC) is a national association of leading trust and estate attorneys. ACTEC contributes to the field of trusts and estates law through scholarship, teaching, and bar leadership…more

Estate Planning, Mobile Apps, Personal Finances

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Ohio Budget Bill Introduced

On February 12, 2013, the text of the Governor's budget proposal for the 2014-2015 biennium, announced on February 4, 2013, was made public as House Bill 59 ("HB 59"). The new HB 59 includes a state income tax deduction for…more

Local Taxes, Pass-Through Entities, Sales & Use Tax, Severance Tax, State Budgets

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Rural Nevada Anti-Fracking Group Seeks to Enjoin Oil and Gas Lease Sale

Reese River Basin Citizens Against Fracking filed a complaint in federal court on June 27, seeking to enjoin the United States Bureau of Land Management (BLM) from holding an oil and gas lease sale. The rural group is comprised…more

Bureau of Land Management, Fracking, Fracking Bans, Mineral Leases, Oil & Gas

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EEOC Approves Strategic Enforcement Plan

On December 18, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) approved its Strategic Enforcement Plan (SEP) highlighting six high-priority target areas. The SEP stresses that the EEOC’s enforcement efforts over…more

Anti-Retaliation Provisions, Discrimination, EEOC, Equal Pay, Hiring & Firing

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iBeacons Usher in New Era of Mobile Advertising in 2014, Raise Old Privacy Concerns

Editor’s Note: This blog post was originally published on February 6, 2014 courtesy of iMedia Connection’s Blog. It is repurposed with permission. Remember that scene from Minority Report? The one where John Anderton…more

Advertising, iBeacon, Mobile Ad Networks, Mobile Devices, Right to Privacy

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BakerHostetler’s Shale Oil and Gas Industry 2013 Year-in-Review and 2014 Look Forward

With Congress and the White House mired in partisan gridlock and preoccupied by issues like the federal debt ceiling, the Affordable Care Act rollout, and the Edward Snowden leak investigation, states again took the lead on…more

Energy, Oil & Gas, Shale Gas

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Employer Shared Responsibility Final Regulations Offer Partial Temporary Enforcement Relief

Enforcement of the employer shared responsibility provisions of the Affordable Care Act (ACA) has been further delayed for employers with between 50 and 99 full-time equivalent employees and temporarily eased for employers with…more

Affordable Care Act, Delays, Enforcement, f, Internal Revenue Code

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Health Care Reform's 90-Day Waiting Period Guidance for Group Health Plans Deserves a Closer Look

One of the many requirements bearing down on group health plans in 2014 is the 90-day waiting period rule found in section 2708 of the Public Health Service Act (PHS Act), as added by the Affordable Care Act (ACA)…more

Affordable Care Act, Eligibility, Employer Group Health Plans, Healthcare, Penalties

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Florida Revised Limited Liability Company Act

On May 3, 2013, the Florida House of Representatives unanimously passed the Florida Revised Limited Liability Act (the "New Florida Act") in the form of amended House Bill 1079. The companion bill, Senate Bill 1300, was…more

Appraisal, LLC, Members, New Legislation, Waivers

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Sixth Circuit Further Defines Requirements of Commonality Under Dukes; Distinguishes Seventh Circuit Case Relaxing Those Requirements

In a recent case, Miller v. Countrywide Bank (In re Countrywide Financial Corp. Mortgage Lending Practices Litigation), — F.3d —, No. 12-5250, 2013 U.S. App. LEXIS 924 (6th Cir. Jan. 15, 2013), the Sixth Circuit provided more…more

Class Action, Class Certification, Commonality, Countrywide, Delegation of Discretion

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Vapor Intrusion Guidance Update

U.S. EPA has extended the deadline for comments on its OSWER Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air and its Guidance for Addressing Petroleum Vapor Intrusion…more

EPA, Vapor Intrusion, Vapor Intrusion Guidance

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Novartis v. Lee: New Math for Calculating Patent Term Adjustment

Recently, in Novartis v. Lee (2013-1160, Fed. Cir., Jan. 15, 2014), the United States Court of Appeals for the Federal Circuit revised the method by which the United States Patent and Trademark Office (USPTO) calculates patent…more

Novartis, Patent Applications, Patent Term Adjustment, Patent Terms, Request for Continued Examination

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Federal Courts Continue To Find Claims Adjusters Exempt

We have previously discussed how, over the past 10+ years, courts have increasingly recognized that insurance claims adjusters are exempt under the Fair Labor Standards Act (FLSA). The recent cases of Estrada v. Maguire Ins…more

Auto Insurance, Claims Adjusters, Exempt-Employees, FLSA, Property Insurance

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San Francisco's Family-Friendly Workplace Ordinance Allows Requests for Flexible Work Arrangements

San Francisco's new Family-Friendly Workplace Ordinance (the "Ordinance") applies to employers with 20 or more employees and to those San Francisco-based employees who have been employed for at least six months and who work at…more

Family-Friendly Workplace Ordinance, Reasonable Accommodation

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Collateral Damage: Medicaid Inspector General Says You're Fired!

The New York Court of Appeals recently ruled that the Office of the Medicaid Inspector General (OMIG) has discretion to exclude a physician from New York's medical assistance program (Medicaid) based solely on a consent order…more

Inspector General, Medicaid, Physicians, Termination

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U.S. Imposes Further Economic Sanctions on Russian Officials and Entities in Connection with the Crisis in Crimea

On April 28, 2014, the Office of Foreign Assets Control (OFAC) imposed a new round of Ukraine-related sanctions on more than two dozen Russian companies and government officials. The latest sanctions, supplementing previous…more

Asset Freeze, Barack Obama, Executive Orders, Foreign Affiliates, OFAC

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Judicial Conference Proposes Proportional Discovery Through Amendments to the FRCP

For the first time in over twenty years, the Judicial Conference’s Committee on Rules of Practice and Procedure have approved for publication proposals to amend the Federal Rules of Civil Procedure. If enacted, these proposals…more

Discoverable, Discovery, Federal Rules of Civil Procedure, Proposed Amendments

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Retaining the Attorney-Client Privilege in a Merger

In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, Chancellor Strine of the Delaware Chancery Court recently reaffirmed that the target company in a Delaware merger is the sole holder of the attorney-client…more

Attorney-Client Privilege, Confidential Communications, Mergers

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Government Contracts Quarterly Update - July 2014

The Government Contracts Quarterly Update is published by BakerHostetler’s Government Contracts Practice team to inform our clients and friends of the latest developments in federal government contracting. Topics will…more

Attorney-Client Privilege, Audits, Chief Compliance Officers, Commercial Contracts, Conflicts of Interest

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Disproportionately Favoring the Named Plaintiffs Kills Settlement, Says Sixth Circuit

The Sixth Circuit recently limited defendants’ ability to craft settlements that disproportionately favor the class representatives. Vassalle v. Midland Funding LLC, — F.3d –, 2013 WL 673517 (6th Cir. Feb. 26, 2013). Though the…more

Class Action, Class Representatives, Debt Collection, Robo-Signing, Settlement

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Protecting Private Wealth: Recent Bankruptcy Cases Involving Tuition Payments and Profit Sharing Plans

Two recent decisions may affect the assets of individuals available to satisfy creditors' claims in bankruptcy. In the first decision, the Bankruptcy Court for the Eastern District of New York determined that married, joint…more

Consumer Bankruptcy, IRA

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$1.1 Billion and Counting – The New Era of OFAC Enforcement

On February 13, 2014, BNP Paribas ("BNP"), France's largest bank, announced in its fourth quarter results that it will soon be joining the growing community of banking institutions that, within the past five years, have been…more

Banking Sector, Enforcement, Foreign Banks, OFAC

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2013 Year-End Securities Litigation and Enforcement Highlights

We are pleased to share with you the 2013 Year-End Highlights Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team, a periodic survey, in addition to our Executive Alerts, which focuses…more

Chief Compliance Officers, Complex Litigation, Compliance, Corporate Counsel, Enforcement

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Creditors Beware: Do the Proof of Claim Right or You Are Out

Recent developments in the bankruptcy arena have placed a greater burden on claimants. Creditors are now required to make additional disclosures in their proof of claim forms, and courts are under no obligation to recognize…more

Commercial Bankruptcy, Creditors, Debtors, Proof of Claims

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The Latest on the Use of Retained Asset Accounts to Pay Life Insurance Benefits

In Merrimon v. Unum Life Insurance Co. of America, 2014 WL 2960024 (1st Cir. July 2, 2014), the U.S. Court of Appeals for the First Circuit became the third circuit court to approve an insurance company’s use of a retained asset…more

Class Action, Corporate Counsel, ERISA, Fiduciary Duty, Insurers

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Individualized Causation and Reliance Defenses Render Class Representative Inadequate in the Northern District of Illinois

Class action defense practitioners routinely face uphill battles on the issue of individualized defenses for class members. However, these arguments should not be overlooked as tools to defeat class certification. Lipton v…more

Class Action, Class Certification, Class Representatives, Consumer Fraud, Predominance Requirement

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2013 Mid-Year Securities Litigation and Enforcement Highlights

Table of Contents - I. Supreme Court Case Review (October 2012 Term) II. Rule 10b-5 Cases III. Investment Adviser and Hedge Fund Cases IV. Settlements V. Commodities and Futures Litigation and…more

Amgen Inc. v Connecticut Retirement Plans, Comcast, Commodities, Enforcement Actions, Gabelli v SEC

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Stark Law Update: All Children’s Settles False Claims Act Allegations

All Children’s Health System (ACHS) will pay the federal government and state of Florida $7 million to settle allegations that it violated the federal and Florida False Claims Act statutes by submitting claims to Medicaid that…more

All Children's Health System, False Claims Act, Medicaid, Stark Law, Whistleblowers

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District Court rejects supervisor liability for state employee’s motor vehicle record data breach

In a recent decision, the Federal District Court of Minnesota found that state agencies were not liable in a data breach class action suit involving a rogue employee’s unauthorized viewing of personal information in drivers…more

Data Breach, DMV, Governmental Liability, Liability, Motor Vehicles

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Senate Confirms CFPB Chairman — Scrutiny of Lenders' Business Practices Go Under the Microscope

Those that anticipated a dramatic Supreme Court confrontation over the legitimacy of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB), and perhaps a nullification of all of the nascent agency's…more

CFPB, Compliance, Harry Reid, Lenders, Recess Appointments

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Supreme Court "SOX" it to Employers by Extending Statute's Whistleblower Provision to Private Contractors of Public Companies

On March 4, 2014, the U.S. Supreme Court issued a decision in Lawson v. FMR LLC expanding the class of persons protected under the anti-retaliatory provisions set forth in the Sarbanes Oxley Act of 2002 ("SOX"). The Court held…more

Anti-Retaliation Provisions, Contractors, FMR LLC, Lawson v FMR, Sarbanes-Oxley

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Ninth Circuit Says Cellphone Calls Do Not Have To Be Confidential To Violate the California Invasion of Privacy Act

The Ninth Circuit recently issued a divided and unpublished opinion in Young v. Hilton Worldwide Inc. et al, which plaintiffs may attempt to use in class action lawsuits against call centers for violations of the California…more

Cell Phones, CIPA, Class Action, Confidentiality

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Air Marshal Whistleblower v. TSA: Supreme Court to Blow Final Whistle

On July 25, 2014, the U.S. Government will submit its opening brief to the Supreme Court in the decade-long battle that began when the Transportation Security Administration (“TSA”) terminated former air marshal-turned federal…more

SCOTUS, Terrorist Threats, Transportation Security Administration, Whistleblowers

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DfE Under Fire: Do Fragrances Pass the Sniff Test?

Logos are powerful in driving consumer preferences. My three-year-old loves the Starbucks logo because he knows it means cookies for him and a chai latte for mommy. The Energy Star logo often plays an important role in consumer…more

Chemicals, Department of Toxic Substances Control, EPA

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BIS Issues Final Rule Setting Deadline for Completing Voluntary Self-Disclosures

The U.S. Bureau of Industry and Security (BIS) recently issued a final rule to revise the Export Administration Regulations (EAR) governing Voluntary Self-Disclosures (VSDs) by imposing a 180-day deadline for submission of the…more

BIS, Deadlines, Export Controls, Exports, Filing Requirements

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Employers Must Abide By GINA Regulations When Providing Health Screenings

Workplace health and wellness programs are becoming increasingly popular throughout the country, and this is not surprising at all, given how beneficial such programs can be for both employers and employees…more

Data Collection, Discrimination, EEOC, Genetic Discrimination, GINA

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SEC Recently Issued a No-Action Letter Exempting Private Company M&A Brokers From Registration With the SEC as Broker-Dealers

The staff of the Division of Trading and Markets of the Securities and Exchange Commission (the "SEC") recently issued a No-Action Letter[1] that should reduce significantly the registration burdens upon certain brokers and…more

Broker-Dealer, No-Action Letters, Registration, SEC

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New Class Action Accuses UPS of Overcharging for Shipping Insurance

A new consumer class action has been filed against shipping giant UPS, alleging that the company overcharges its customers for “declared value coverage” (i.e., shipping insurance) on the packages it delivers. The case was filed…more

Class Action, Shipping, UPS

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Will Camp Tax Plan Impact Charitable Giving and Tax-exempt Organizations?

In late February 2014, House Ways and Means Committee Chairman Dave Camp (R-MI) released a nearly 1,000 page discussion draft addressing tax reform. Chairman Camp’s proposal includes changes to numerous sections of the Internal…more

Charitable Donations, Exempt Organizations, Non-Profits, Tax Reform

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Deconstructing DOMA: The DOL Takes Its First Step Down The Path Toward Extended Rights for Same-Sex Spouses

The United States Department of Labor (DOL) just took the first of "many steps" it plans to take over the coming months to implement the United States Supreme Court's decision in United States v. Windsor, striking down Section 3…more

DOL, DOMA, Employee Benefits, Employee Rights, Marriage

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FTC Amends Its COPPA Rule to Protect Children Online After Technology Advances In Gathering Their Personal Information

Technology advances often help consumers do things quicker or easier. For regulators and law enforcers, such advances often present challenges in keeping laws and regulations up to date…more

COPPA, FTC, Parental Consent, Personally Identifiable Information, Privacy Policy

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New York Court Upholds Local Hydraulic Fracturing and Oil and Gas Development Bans

Last Friday, a four judge panel of a New York appeals court upheld two local zoning laws that prohibit activities related to oil and gas exploration and development, including hydraulic fracturing. The decisions in Norse Energy…more

Energy Exploration, Fracking, Local Ordinance, Oil & Gas

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Back to Google’s Backyard: Forum and Venue Clause Enforced to Dismiss Putative Class Action

For most corporations, standard forum and venue “home court advantage” clauses are par for the course. For companies with an expansive reach like Google’s, they are essential. Google has long included these clauses in its…more

Class Action, Contract Drafting, Contract of Adhesion, Forum, Google

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U.S. Supreme Court Nixes Obama Recess Appointees To NLRB

The United States Supreme Court held yesterday that President Obama’s 2012 appointments to the National Labor Relations Board were not valid recess appointments under the United States Constitution. NLRB v. Noel Canning, U.S…more

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Florida Revised Limited Liability Company Act

On May 3, 2013, the Florida House of Representatives unanimously passed the Florida Revised Limited Liability Act (the "New Florida Act") in the form of amended House Bill 1079. The companion bill, Senate Bill 1300, was…more

Appraisal, LLC, Members, New Legislation, Waivers

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Highlights of the UARG v. EPA Decision

On Monday, the Supreme Court’s decision in Utility Air Regulatory Group v EPA, No. 12–1146 (June 23, 2013) limited EPA’s authority to regulate greenhouse gases (“GHGs”) under the Clean Air Act, reversing in part and affirming in…more

BACT, Clean Air Act, Climate Change, Environmental Policies, EPA

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Patent Trolls, Anti-Trolls, and Antitrust Law Collide in Patent Licensing Dispute

We previously wrote that regulators are considering using antitrust laws to reign in perceived abuses by non-practicing entities or, more familiarly, “patent trolls” – entities that purchase the rights to patents not to practice…more

Anti-Patent Trolls, Antitrust Conspiracies, Antitrust Litigation, Conspiracies, Damages

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CRESCENT HOLDINGS: An Issue of First Impression for Partners with Capital Interests

On December 2, 2013, the United States Tax Court issued an opinion in Crescent Holdings, LLC v. Commissioner, 141 T.C. No. 15. This opinion affects individuals who receive a non-vested capital interest in a partnership. In what…more

Capital Gains, CEOs, Income Taxes, Partnerships, Tax Court

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Ohio Natural Gas Production Reaches Historic Levels

Natural gas production in Ohio nearly doubled last year largely because of a surge in hydraulic fracturing operations in the state. Speaking at a conference earlier this month about oil and gas development in the state, the Ohio…more

Fracking, Natural Gas, Oil & Gas

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Government Contracts Quarterly Update - July 2014

The Government Contracts Quarterly Update is published by BakerHostetler’s Government Contracts Practice team to inform our clients and friends of the latest developments in federal government contracting. Topics will…more

Attorney-Client Privilege, Audits, Chief Compliance Officers, Commercial Contracts, Conflicts of Interest

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California Supreme Court Again Considers the Validity of Class and Representative Action Waivers

Today, in a highly-anticipated decision, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, Inc. (Case No. S204032), resolved several long-standing questions regarding the impact of class and…more

Arbitration, Arbitration Agreements, AT&T Mobility v Concepcion, Class Action Arbitration Waivers, Iskanian

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2013 Mid-Year Securities Litigation and Enforcement Highlights

Table of Contents - I. Supreme Court Case Review (October 2012 Term) II. Rule 10b-5 Cases III. Investment Adviser and Hedge Fund Cases IV. Settlements V. Commodities and Futures Litigation and…more

Amgen Inc. v Connecticut Retirement Plans, Comcast, Commodities, Enforcement Actions, Gabelli v SEC

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EEOC’s Battle Against Employee Releases Heats Up

In February, we commented on the EEOC v. CVS Pharmacy, Inc. case, where the EEOC filed a “pattern or practice” lawsuit against CVS in Illinois federal court, claiming that CVS’ employee releases discourage the filing of EEOC…more

CVS, EEOC, Employer Liability Issues, Pattern or Practice, Release Agreements

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Common and Predominating Damages: Comcast Opinion Extends Wal-Mart v. Dukes' Standards for Class Certification but Leaves the Question of Daubert for Another Day

On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, Case No. 11-864, which provides a valuable tool for the defense in combatting class certification in antitrust cases and other types of class actions…more

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

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Federal Agency Approvals Beyond the Scope of the Migratory Bird Treaty Act

In the last month, two separate federal district courts have declined to extend the scope of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 (MBTA), to federal agency approvals of projects that plaintiffs alleged could…more

BOEM, DOE, Energy, Migratory Bird Treaty Act

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Ohio's Highest Court Holds Unions Are Not Required to Give Public Employers Advance Notice of Informational Picketing

On October 23, 2013, the Ohio Supreme Court ruled, in Mahoning Education Association of Developmental Disabilities v. State Employment Relations Board, that unions are not required to provide public sector employers ten-day…more

Notice Requirements, Right to Picket, Right to Strike, Unfair Labor Practices

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New gTLDs Raise Data Security Concerns

ICANN is well on its way to the launch of new generic top-level domains (gTLDs) with the first ones being approved as early as April 23rd. The handful of TLDs currently in use, such as “.com”, “.org”, and “.edu”, may soon be…more

Data Protection, gTLD, ICANN, PayPal, VeriSign

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United States Supreme Court Strikes Down Illinois Regulatory Framework Requiring Personal Assistants for Medicaid Recipients to Pay Union Dues or Fees

In its much anticipated decision in Harris v. Quinn, 573 U.S. __ (2014), the Supreme Court of the United States in a five to four ruling struck down an Illinois regulatory framework that required personal assistants (PAs) for…more

Collective Bargaining, First Amendment, Harris v Quinn, Healthcare, Medicaid

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AAPL To Issue Revised Form 610-1989 Model Form Operating Agreement To Address Horizontal Wells

The American Association of Professional Landmen is expected to release a revised Form 610-1989 Model Form Operating Agreement within the next few days. It is our understanding that the revised Form will include language making…more

Horizontal Wells, Oil & Gas, Operating Agreements

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Colorado Supreme Court Grants Petition to Consider Use of Lone Pine Orders in Toxic Tort Case Involving Hydraulic Fracturing

On Monday, the Colorado Supreme Court granted a Petition for Writ of Certiorari in Antero Resources, et al. v. Strudley, et al. The Strudley case involves claims relating to alleged injuries from natural gas drilling operations…more

Chemicals, Discharge of Pollutants, Fracking, Toxic Exposure

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Tax Court Deals Another Blow to Conservation Easements

On June 24, 2013, the U.S. Tax Court disallowed a couple’s deduction for the donation of a conservation easement on the façade of a building to the National Architectural Trust, a qualified charitable organization. The court…more

Charitable Donations, Conservation Easements, IRS, Tax Deductions

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Is Tax Law Ever Permanent?

According to dictionary.com, permanent means “existing perpetually; everlasting, especially without significant change.” However, for federal tax law purposes, something is “permanent” only so long as Congress and the President…more

Barack Obama, Estate Tax, Generation-Skipping Transfer, Gift Tax, Transfer Taxes

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Consumer Debt Collectors Join the Federally Supervised Community

For the consumer debt collection industry, the federal regulators have arrived. In February 2013, the Consumer Financial Protection Bureau (CFPB) began supervising roughly 175 large consumer debt collectors, defined as those…more

CFPB, Debt Collection, Dodd-Frank, Electronically Stored Information, Enforcement

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Low-Tech Proof In a High-Tech World: Northern District of California Denies Class Certification In Hulu Data Privacy Case

On June 16, the Northern District of California denied a motion for class certification in In re Hulu Privacy Litigation, No. C 11-03764 LB, ECF No. 111. The plaintiffs in that action alleged that Hulu violated the Video Privacy…more

Class Certification, Due Process, Facebook, Hulu, Personally Identifiable Information

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The Pivot To Asia And The Inevitable Failure Of The Trans-Pacific Partnershps

TPP negotiators have been through more than twenty negotiating rounds since 2010, meeting in ten different countries. We could spend a lot of time on the details. Businesses have lobbied their particular interests, trying to…more

Asia, Canada, China, Free Trade Agreement, Japan

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FTC Testifies to Congress on Proposed Senate Geolocation Data Privacy Bill

Earlier this month, the Federal Trade Commission (FTC) testified to the Senate Judiciary Committee’s Subcommittee for Privacy, Technology and the Law about proposed Senate Bill 2171, “The Location Privacy Protection Act of 2014…more

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New York City Earned Sick Time Act Notice of Employee Rights Has Finally Been Published

As most New York City employers know by now, the New York City Earned Sick Time Act (“Act”) is scheduled to go into effect on April 1, 2014. While the Act was adopted in the summer of 2013, it was subsequently amended after…more

Employee Rights, Paid Leave, Sick Leave

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Are You Ready For the Canadian Spam Legislation?

The majority of the Canadian Spam Legislation (CASL) comes into force today—July 1, 2014. This includes Section 6, which relates to the sending of commercial electronic messages (CEMs). Starting today, businesses must obtain…more

Anti-Spam Legislation, Canada, CASL, Commercial Electronic Messages, Consent

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Insuring Your Company Against Cyber-Attacks

Earlier this month, the Department of Justice announced the indictment of 13 individuals associated with the hacker organization Anonymous for a widespread scheme to disrupt and shut down commercial and government websites…more

Cyber Attacks, Cybersecurity, Distributed Denial of Service, DOJ, Hackers

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IRS Issues Warnings about Email and Telephone Tax Scams

As the 2014 tax filing season progresses the Internal Revenue Service has issued warnings to taxpayers about convincing fraudulent email messages and telephone calls seeking payments or personal information that will enable the…more

Fraud, IRS, Scams

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Seventh Circuit Allows Class Certification Despite Attorney Misconduct

Do you ever wonder how plaintiffs’ class action lawyers find their class representatives? And whether there is any possibility of defeating class certification if their efforts are sleazy or downright unethical?…more

Attorney Misconduct, Class Action, Class Certification, Class Representatives, Reliable Money Order v McKnight Sales

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Antitrust Treble Damages for Patent Infringement? Yes, According to Groundbreaking Decision

The Eastern District of Texas recently held that patent infringement can constitute anticompetitive conduct for monopolization claims under Section 2 of the Sherman Act, in Retractable Technologies Inc. v. Becton Dickinson &…more

Antitrust Litigation, Patent Infringement, Patents, Treble Damages

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Deference and Compromise Reigns over Establishment of Truth: Second Circuit Validates SEC Use of "Neither Admit Nor Deny" Settlements

On June 4, 2014, the Second Circuit Court of Appeals vacated U.S. District Judge Jed Rakoff’s influential and controversial decision to reject a consent injunction between the SEC and Citigroup Global Markets Inc. (Citigroup) in…more

Citigroup, Civil Monetary Penalty, Disgorgement, Judge Rakoff, Neither Admit Nor Deny Settlements

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Broker-Dealers and Investment Advisers Now Targeted by Both Cyber Intruders and SEC Cybersecurity Examiners

Cybersecurity has increasingly become a critical issue for all types of businesses, few more so than broker-dealers, investment advisers and others in the financial sector. The cyber threat is much broader than customer data…more

Audits, Broker-Dealer, CFTC, Cyber Attacks, Cybersecurity

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Ohio Tremors Cause Pennsylvania Department of Environmental Protection to Contemplate New Fracking Regulations

The Pennsylvania Department of Environmental Protection (DEP) is considering regulating drilling near “seismic hazard areas” after geologists linked a series of small earthquakes in Ohio to fracking at a Utica Shale well. The…more

Department of Environmental Protection, Environmental Policies, Fracking, Fracking Bans

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FDA Releases Compounding Policy Documents

The U.S. Food and Drug Administration (FDA) has released five policy documents regarding compounded human drug products in connection with its continued implementation of the compounding provisions of the Drug Quality and…more

DQSA, Drug Compounding, Drug Manufacturers, FDA, FFDCA

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U.S. Imposes Further Economic Sanctions on Russian Officials and Entities in Connection with the Crisis in Crimea

On April 28, 2014, the Office of Foreign Assets Control (OFAC) imposed a new round of Ukraine-related sanctions on more than two dozen Russian companies and government officials. The latest sanctions, supplementing previous…more

Asset Freeze, Barack Obama, Executive Orders, Foreign Affiliates, OFAC

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New CA Privacy Disclosure Requirements Clarified By AG

California has a number of privacy notice requirements for businesses collecting data from California residents, including as of January 1 of this year a requirement that websites, mobile apps and online services make certain…more

Attorney Generals, Behavioral Advertising, Data Collection, Disclosure Requirements, Do Not Track

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More Oil and Gas Patenting Worldwide, Especially in China

Innovation in the oil and gas industries, as measured by the number of patent filings, is increasing worldwide. As reported by Thomson Reuters, from 2012 to 2013 the number of patent applications filed worldwide increased by a…more

China, Energy, Oil & Gas, Patent Applications, Patents

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Basic Is Dying a Slow Death: The Supreme Court Upholds the Fraud-on-the-Market Presumption in Halliburton but Allows Rebuttal

Given the opportunity to overrule its landmark 1988 decision in Basic v. Levinson, in which it created the fraud-on-the-market presumption, the Supreme Court declined. The Court found in its decision this week in Halliburton…more

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

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ONC’s Security Risk Assessment Tool Is Useful but Could Be Improved

The Office of the National Coordinator for Health Information Technology (ONC) released a Security Risk Assessment Tool (SRA Tool) on March 28. According to the User Guide for the SRA Tool, the Tool is designed to help small and…more

Audits, Data Protection, HIPAA, ONC, Risk Assessment

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2013 Year-End Securities Litigation and Enforcement Highlights

We are pleased to share with you the 2013 Year-End Highlights Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team, a periodic survey, in addition to our Executive Alerts, which focuses…more

Chief Compliance Officers, Complex Litigation, Compliance, Corporate Counsel, Enforcement

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Changing Financial Landscape for Medical Debts of the Uninsured

The implementation of the ACA has afforded many with the opportunity to obtain insurance coverage. Despite the opportunity, a large number of individuals have either chosen not to enroll in a health plan or have been unable to…more

Affordable Care Act, Health Insurance Exchanges, Healthcare, HFMA, Medical Expenses

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Increase to Federal Construction Minimum Wage May Mean Little

It has been widely reported that during his State of the Union address the President will announce a plan to issue an executive order requiring construction workers on federal projects be paid a minimum wage of at least $10.10…more

Construction Contracts, Construction Workers, Contractors, Federal Contractors, Minimum Wage

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Past as Prologue: Rebirth of the Merger Trial and the Bazaarvoice Case

For many years after its implementation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 seemed to sound the death knell of post-consummation merger trials. By establishing a file-and-wait system rather than the old…more

Anticompetitive Agreements, Antitrust Conspiracies, Bazaarvoice Inc, Hart-Scott-Rodino Act, Mergers

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CRESCENT HOLDINGS: An Issue of First Impression for Partners with Capital Interests

On December 2, 2013, the United States Tax Court issued an opinion in Crescent Holdings, LLC v. Commissioner, 141 T.C. No. 15. This opinion affects individuals who receive a non-vested capital interest in a partnership. In what…more

Capital Gains, CEOs, Income Taxes, Partnerships, Tax Court

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SEC Issues Guidance on Proxy Voting Responsibilities of Investment Advisers, Their Use of Proxy Advisory Firms, and Application of the Proxy Rules to Proxy Advisory Firms

On June 30, 2014, the Staff of the Securities and Exchange Commission’s Divisions of Investment Management and Corporation Finance issued guidance on the responsibilities of investment advisers in voting proxies and using proxy…more

Exemptions, Final Guidance, Investment Adviser, Proxy Advisors, Proxy Voting Guidelines

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Always Be Prepared: Forecasting a Business Partner's Financial Problems and How to Prepare

As the American economy continues to slog through the ongoing Great Recession, even financially sound companies face challenges due to the continued economic malaise. In particular, a company that works with suppliers, customers…more

Adequate Assurances, Business Development, Client Services, Contract Claims, Creditors

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SEC Recently Issued a No-Action Letter Exempting Private Company M&A Brokers From Registration With the SEC as Broker-Dealers

The staff of the Division of Trading and Markets of the Securities and Exchange Commission (the "SEC") recently issued a No-Action Letter[1] that should reduce significantly the registration burdens upon certain brokers and…more

Broker-Dealer, No-Action Letters, Registration, SEC

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Supreme Court "SOX" it to Employers by Extending Statute's Whistleblower Provision to Private Contractors of Public Companies

On March 4, 2014, the U.S. Supreme Court issued a decision in Lawson v. FMR LLC expanding the class of persons protected under the anti-retaliatory provisions set forth in the Sarbanes Oxley Act of 2002 ("SOX"). The Court held…more

Anti-Retaliation Provisions, Contractors, FMR LLC, Lawson v FMR, Sarbanes-Oxley

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U.S. Supreme Court Refuses to Hear Petition that Proceeding as a Collective Action Under the FLSA is a Non-Waivable Substantive Right

In the last week, we have seen several significant decisions from the U.S. Supreme Court. On Monday, however, the Court made a noteworthy “non-decision” by declining a petition for certiorari that raised the question of whether…more

Arbitration Agreements, Class Action, Class Action Arbitration Waivers, FLSA, SCOTUS

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Unlawful Policy = Unlawful Termination? The NLRB’s Latest Pronouncement

The NLRB recently issued its decision in Flex Frac Logistics, LLC, Case 16-CA-02978, which the NLRB had remanded to the administrative law judge (“ALJ”) for further analysis after finding that the employer maintained an overly…more

Administrative Hearings, Confidential Information, Disclosure, Employer Liability Issues, Employment Policies

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Lanham Act Claims for Misleading Product Description Can Coexist with FDCA Labeling Regulations, Court Find

A unanimous Supreme Court (8-0, Justice Breyer recusing) ruled on June 12, 2014 in POM Wonderful v. Coca-Cola that one competitor may sue another for unfair competition under the Lanham Act for allegedly false or misleading…more

Advertising, Coca Cola, FDA, FDCA, Food Labeling

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The Waiting Game: What to Do (and Not Do) While an Exemption Application is Pending

So, you have thoughtfully and thoroughly prepared the Form 1023 Application for Recognition of Exemption Under Section 501(c)(3) (“Form 1023” or “application”) on behalf of a charity, and filed it with the IRS along with a…more

501(c)(3), Applications, Exemptions, Form 990, IRS

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FTC Testifies to Congress on Proposed Senate Geolocation Data Privacy Bill

Earlier this month, the Federal Trade Commission (FTC) testified to the Senate Judiciary Committee’s Subcommittee for Privacy, Technology and the Law about proposed Senate Bill 2171, “The Location Privacy Protection Act of 2014…more

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Corruption Enforcement Goes Global

As BakerHostetler recently reported in its FCPA Mid-Year Update, the phenomenon of parallel prosecutions is gaining popularity as more countries enact and enforce anti-corruption legislation…more

Anti-Corruption, Brazilian Labor Act, Canada, Compliance, Corruption

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SEC Recently Issued a No-Action Letter Exempting Private Company M&A Brokers From Registration With the SEC as Broker-Dealers

The staff of the Division of Trading and Markets of the Securities and Exchange Commission (the "SEC") recently issued a No-Action Letter[1] that should reduce significantly the registration burdens upon certain brokers and…more

Broker-Dealer, No-Action Letters, Registration, SEC

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The Orphan Drug Wars: HHS’s Rebuttal to Its Recent Loss to PhRMA

On June 18, 2014, the U.S. Department of Health and Human Services (HHS) publicly stated that the recent decision of the U.S. District Court for the District of Columbia to vacate HHS’s regulation covering orphan drugs and the…more

Final Rules, Healthcare, HHS, Orphan Drugs, Pharmaceutical

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United States Supreme Court Strikes Down President Obama's Recess Appointments to the National Labor Relations Board—Hundreds of NLRB Decisions Invalidated

In its much anticipated decision in National Labor Relations Board v. Noel Canning, 573 U.S. __ (2014), the Supreme Court of the United States has unanimously struck down President Obama’s recess appointments of Sharon Block,…more

Barack Obama, Canning v NLRB, NLRB, Recess Appointments, SCOTUS

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Exotic Dancers Continue to Rake in Class Action Dollar Bills

In our continuing coverage of exotic dancer performances on the class action stage, another group of dancers from California recently won approval of a multi-million dollar settlement in a wage and hour class action suit…more

Wage and Hour

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Class Action Waivers And Arbitration Agreements - Justices Divided On Validity Of Effective Vindication Of Rights Analysis In AMEX Oral Argument

The U.S. Supreme Court heard the much anticipated oral argument in American Express Co. v. Italian Colors Restaurant on February 27, 2013. The issue before the Court was whether an arbitration clause which prohibits class…more

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

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FTC Report Seeks Congressional Review of Data Broker Industry

As the advent of “big data” increasingly takes center stage in the data and privacy sphere, data brokers—companies that compile and resell or share consumers’ personal data—have come under increased scrutiny. On May 27, 2014,…more

Big Data, Data Brokers, Data Protection, FCRA, FTC

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AAPL To Issue Revised Form 610-1989 Model Form Operating Agreement To Address Horizontal Wells

The American Association of Professional Landmen is expected to release a revised Form 610-1989 Model Form Operating Agreement within the next few days. It is our understanding that the revised Form will include language making…more

Horizontal Wells, Oil & Gas, Operating Agreements

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Ohio Medicaid Expansion Underway

Last fall, Ohio became the 25th state to file a state plan amendment to extend Medicaid benefits to approximately 275,000 Ohioans who previously were not eligible for the program. In doing so, Ohio also agreed to accept an…more

Healthcare, Medicaid, Medicaid Expansion

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San Francisco's Family-Friendly Workplace Ordinance Allows Requests for Flexible Work Arrangements

San Francisco's new Family-Friendly Workplace Ordinance (the "Ordinance") applies to employers with 20 or more employees and to those San Francisco-based employees who have been employed for at least six months and who work at…more

Family-Friendly Workplace Ordinance, Reasonable Accommodation

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2013 Year-End Securities Litigation and Enforcement Highlights

We are pleased to share with you the 2013 Year-End Highlights Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team, a periodic survey, in addition to our Executive Alerts, which focuses…more

Chief Compliance Officers, Complex Litigation, Compliance, Corporate Counsel, Enforcement

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Healthcare Providers Face Increasing Financial Pressure and Bankruptcy Risk

The health of the healthcare industry can be summarized as follows: as go federal reimbursement rates, so goes the financial viability of healthcare providers, whether hospitals, nursing homes or medical practices. These…more

Affordable Care Act, Bankruptcy Code, Commercial Bankruptcy, Healthcare Costs, Healthcare Facilities

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What’s Old is New Again—Insecure Remote Access

When a merchant is suspected of being the victim of an account data compromise event, they are often required by the card brands to hire a Payment Card Industry Forensic Investigator (PFI). The PFI provides a report on the…more

Credit Cards, Data Breach, Data Protection, Point of Sale Terminals

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EPA Proposes to no Longer Accept 2005 Version of ASTM Standards and Practices for Environmental Site Assessments as Basis for CERCLA Defenses in Favor of 2013 Updated Standard

On June 17, 2014, EPA published a Proposed Rule to no longer acknowledge the 2005 version of ASTM International’s recently updated version of its standard for environmental site assessments – Standard 1527-13 – to meet the…more

ASTM, CERCLA, Contamination, Environmental Site Assessment, EPA

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U.S. Supreme Court To Review Fifth Circuit’s SLUSA Decision in Stanford Ponzi Scheme Case

The Supreme Court recently granted certiorari to examine the “in connection with” requirement of the Securities Litigation Uniform Standards Act (“SLUSA”) in Chadbourne & Parke LLP v. Troice, No. 12-79…more

Chadbourne & Parke LLP v Troice, Class Action, Ponzi Scheme, SCOTUS, SLUSA

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Thou Shall Accommodate: Funeral Leave as a Religious Accommodation Under Title VII

Requests for reasonable accommodations are commonplace for employers of qualified individuals with disabilities under the Americans with Disabilities Act. But a recent case reminds employers that reasonable accommodation of an…more

ADA, Bereavement Leave, Employee Rights, Funerals, Reasonable Accommodation

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Employer Shared Responsibility Final Regulations Offer Partial Temporary Enforcement Relief

Enforcement of the employer shared responsibility provisions of the Affordable Care Act (ACA) has been further delayed for employers with between 50 and 99 full-time equivalent employees and temporarily eased for employers with…more

Affordable Care Act, Delays, Enforcement, f, Internal Revenue Code

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Failure to Reimburse California Employees for Business Expenses, Including Mileage, Resulting in Class-Action Litigation

In California, there has been an increase in class action litigation against employers for the alleged failure to reimburse employees for business expenses, particularly mileage reimbursement…more

Class Action, Employer Liability Issues, Mileage Reimbursement, Out-of-Pocket Expenses, Reimbursements

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AAPL To Issue Revised Form 610-1989 Model Form Operating Agreement To Address Horizontal Wells

The American Association of Professional Landmen is expected to release a revised Form 610-1989 Model Form Operating Agreement within the next few days. It is our understanding that the revised Form will include language making…more

Horizontal Wells, Oil & Gas, Operating Agreements

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Are You Facing the Prospect of a Merger Investigation?

If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else. What…more

Document Review, Internal Investigations, Mergers, Predictive Coding, Software

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Sixth Circuit Reaffirms Certification of Defective Washing Machine Class on Remand From Supreme Court

In a closely watched decision after remand by the Supreme Court, on July 18, 2013, the Sixth Circuit Court of Appeals upheld for a second time the class certification order in In re Whirlpool Front-Loading Washer Prods. Liab…more

Design Defects, Manufacturing Defects, Remand, SCOTUS, Whirlpool

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Seventh Circuit Ruling Reaffirms: The Financial Industry Compliance Crackdown Continues

The need for risk and compliance officers is skyrocketing as lenders and financial market participants remain under strict scrutiny in the wake of the 2008 financial crisis. J. P. Morgan Chase & Co. recently announced plans to…more

Compliance, Enforcement Actions, FINRA, JPMorgan Chase, SEC

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The Latest on the Use of Retained Asset Accounts to Pay Life Insurance Benefits

In Merrimon v. Unum Life Insurance Co. of America, 2014 WL 2960024 (1st Cir. July 2, 2014), the U.S. Court of Appeals for the First Circuit became the third circuit court to approve an insurance company’s use of a retained asset…more

Class Action, Corporate Counsel, ERISA, Fiduciary Duty, Insurers

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Delta's Mobile Application's "Wings Clipped"

A powerful reminder to the business community that it must take mobile application (“App”) privacy seriously was provided by California Attorney General Kamala D. Harris in the form a complaint filed against Delta Airlines, Inc…more

Delta Airlines, Kamala Harris, Mobile Apps, Online Privacy Protection Act, Privacy Policy

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New York High Court Affirms Local Fracking Bans

On Monday, New York’s highest court—the New York Court of Appeals—upheld local bans on shale gas drilling designed to eliminate hydraulic fracturing. The 5-2 decision clears the way for drilling opponents to target fracking at…more

Appeals, Fracking, Fracking Bans, Oil & Gas, Shale Gas

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EPA Adopts Updated Standards And Practices For Environmental Site Assessments; Forthcoming Proposed Rule Will No Longer Accept Prior Standard As Basis For CERCLA Defenses

On December 30, 2013, EPA published a Final Rule providing that a prospective purchaser or tenant of contaminated property may use ASTM International’s recently updated version of its standard for environmental site assessments…more

ASTM, CERCLA, Contaminated Properties, Environmental Assessments, EPA

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San Francisco's Family-Friendly Workplace Ordinance Allows Requests for Flexible Work Arrangements

San Francisco's new Family-Friendly Workplace Ordinance (the "Ordinance") applies to employers with 20 or more employees and to those San Francisco-based employees who have been employed for at least six months and who work at…more

Family-Friendly Workplace Ordinance, Reasonable Accommodation

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Florida Revised Limited Liability Company Act

On May 3, 2013, the Florida House of Representatives unanimously passed the Florida Revised Limited Liability Act (the "New Florida Act") in the form of amended House Bill 1079. The companion bill, Senate Bill 1300, was…more

Appraisal, LLC, Members, New Legislation, Waivers

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Recent Updates on Reimbursing Creditors' Legal Fees Under a Chapter 11 Plan

Unsecured creditors in chapter 11 cases face the prospect of two financial blows: the possibility of not receiving full payment of their claims and the cost of attorney's fees for defending their interests…more

Attorney's Fees, Chapter 11, Creditors, Legal Costs, Reimbursements

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Are You Facing the Prospect of a Merger Investigation?

If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else. What…more

Document Review, Internal Investigations, Mergers, Predictive Coding, Software

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Isn’t E-Discovery Hard Enough Without the Internet of Things?

This week, after a seemingly endless year of construction, my family and I moved into our new, energy-efficient home. As I was in the kitchen unpacking, my daughter cried out, somewhat dramatically, “Mama, come here…. The…more

Corporate Counsel, FTC, Internet, Internet of Things

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Protecting Private Wealth: Recent Bankruptcy Cases Involving Tuition Payments and Profit Sharing Plans

Two recent decisions may affect the assets of individuals available to satisfy creditors' claims in bankruptcy. In the first decision, the Bankruptcy Court for the Eastern District of New York determined that married, joint…more

Consumer Bankruptcy, IRA

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So, You Want to Share Your Technical Cyber Threat Information with Your Neighbors?

Echoing guidance previously given to a nonprofit organization looking to exchange certain cybersecurity information, including exchanging actual real-time cyber threat and attack information, and others planning to exchange…more

Antitrust Provisions, Cybersecurity, DOJ, FTC, Information Sharing

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The Ascertainability Requirement Claims Another Class. A Growing Trend?

A new case, Hernandez v. Chipotle Mexican Grill, Inc., No. CV 12-5543 DSF JCX, 2013 WL 6332002 (C.D. Cal. Dec. 2, 2013), highlights challenges plaintiffs face in certifying classes where membership in the class is difficult or…more

Advertising, Ascertainable Class, Chipotle Grill, Class Action, Class Certification

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Basic Is Dying a Slow Death: The Supreme Court Upholds the Fraud-on-the-Market Presumption in Halliburton but Allows Rebuttal

Given the opportunity to overrule its landmark 1988 decision in Basic v. Levinson, in which it created the fraud-on-the-market presumption, the Supreme Court declined. The Court found in its decision this week in Halliburton…more

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

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Highest Bidder Loses Spoliation Fight in Auction House Data Breach

A recent case out of the Northern District of Ohio is an unsung victory for proportionality in that the Court twice declined to sanction a plaintiff’s “failure” to forensically image computers where computer logs showing the…more

Auction, Bids, Data Breach, Evidence, Software

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Starbucks Coffee, Burned Again

This past Friday, Starbucks received yet another blow in its 12-year long trademark dispute against Wolfe’s Borough Coffee Inc. The Second Circuit affirmed U.S. District Judge Laura Taylor Swain’s decision and found that…more

Brand, Dilution, Injunctions, Starbucks, Trademarks

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Debates Continue on Pennsylvania and Ohio Severance Tax Proposals

Pennsylvania legislators continue to debate a severance tax proposal announced late last year, and previously discussed on this blog. Under that severance tax proposal, the commonwealth’s system of impact fees would be replaced…more

Hiring & Firing, Proposed Legislation, Severance Pay, Severance Tax

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Joint Employment Finding Leads to Unexpected $3 Million Liability in Hospital Malpractice Case

When Washington Hospital obtained an insurance policy in 2003 to cover medical claims arising from acts by its employees, its insurer probably did not consider whether hospital employees included workers supplied by a staffing…more

Corporate Counsel, Employee Definition, Hospitals, Insurers, Liability

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President Obama Signs "Fiscal Cliff" Legislation into Law

As you likely have heard, the President signed the American Taxpayer Relief Act (H.R. 8) (the "Act") on January 2, 2013. The Act, popularly known as the "fiscal cliff" legislation, permanently extends the Bush era tax cuts for…more

3.8% Medicare Tax, Alternative Minimum Tax, American Taxpayer Relief Act, Bush-Era Tax Cuts, Business Taxes

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Bitcoin Investment Vehicles Beware – The SEC is Watching

The Securities and Exchange Commission (SEC) recently charged the co-owner of two Bitcoin-related websites for publicly offering shares in the ventures without registering the securities under the Securities Act of 1933 (the…more

Bitcoins, CFTC, Cryptocurrency, Enforcement, Enforcement Actions

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California Supreme Court Again Considers the Validity of Class and Representative Action Waivers

Today, in a highly-anticipated decision, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, Inc. (Case No. S204032), resolved several long-standing questions regarding the impact of class and…more

Arbitration, Arbitration Agreements, AT&T Mobility v Concepcion, Class Action Arbitration Waivers, Iskanian

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Don’t Pop the Cork Just Yet—Growing Criticism of Massachusetts AG’s Settlement with Partners Healthcare Just Might Send the Parties Back to the Drawing Board

After touting a proposed settlement with Partners HealthCare (Partners) that supposedly would “fundamentally alter [Partners’] negotiating power for 10 years and control health costs across [Partners’] entire network,”…more

Contract Negotiations, Healthcare, Healthcare Provider Corporations, Healthcare Providers, Negotiations

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Supreme Court To Decide CAFA Pleading Standard

On April 7th, the Supreme Court granted certiorari in Dart Cherokee Basin Operating Company, LLC v. Owens, a case originating from the Tenth Circuit. In that case, the Court will resolve a circuit split over the pleading…more

CAFA, Dart Cherokee Basin Operating Co. v. Owens, Federal Jurisdiction, Pleading Standards, Pleadings

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Senate Finance Committee Chairman Releases Tax Reform Staff Discussion Drafts – More Expected

From November 19 through 22, 2013, Senator Max Baucus, Chairman of the Senate Finance Committee (the "Committee"), released three staff discussion drafts that propose sweeping changes to the federal rules regarding international…more

Corporate Taxes, International Tax Issues, Tax Reform

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Who Is Houston’s New “HERO”? Houston City Council Passes Sweeping Equal Rights Ordinance

On May 28, 2014, the Houston City Council passed the controversial Houston Equal Rights Ordinance (“HERO”) by a vote of 11 to 6. HERO expands the “protected classifications” beyond those currently provided by federal or Texas…more

Employer Liability Issues, Gender Identity, Marital Status, New Regulations, Protected Class

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U.S. Surpasses Russia and Saudi Arabia as World’s Leading Producer of Oil

With an output exceeding 11 million barrels per day in the first quarter of 2014, the United States has surpassed Saudi Arabia and Russia to become the largest producer of crude oil and liquids separated from natural gas in the…more

Energy, Exports, Fracking, Oil & Gas

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The Ninth Circuit Puts Up Road Block to Motor Carrier Arguing that California Break Laws are Preempted by the FAAA Act, But Leaves Some Wiggle Room

On Wednesday, the United States Ninth Circuit Court of Appeals rendered a decision that, on its face, involved a technical preemption issue, but one that will have serious repercussions for those in the transportation industry…more

Appeals, Corporate Counsel, Employer Liability Issues, FAAAA, Preemption

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Income Tax Reporting for Decanting

Decanting refers to the distribution of trust property of one trust (the “first trust”) to another trust (the “second trust”). Over the past several years, the number of states specifically authorizing decanting by statute has…more

Decanting, Estate Tax, IRS, New Legislation, Proposed Legislation

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New Iran Sanctions Enacted

Satellite Export Controls Now Eligible to be Returned to Commerce Department Jurisdiction - On January 3, 2013, President Obama signed into law Public Law No. 112-239, the Iran Freedom and Counter-Proliferation Act of 2012…more

Export Controls, Foreign Banks, Human Rights, IFCPA, Iran Sanctions

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Affiliates of Health Insurance Providers May Be Subject to the Affordable Care Act $500,000 Deduction Limit on Executive Compensation Under Recently Issued Proposed Regulations

Most issuers of healthcare insurance likely have heard about the $500,000 limit on deductible compensation that became effective January 1, 2013, but might be surprised to know how much broader the scope of the deduction is…more

Affordable Care Act, Deductions, Executive Compensation, Healthcare, Insurers

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SEC Recently Issued a No-Action Letter Exempting Private Company M&A Brokers From Registration With the SEC as Broker-Dealers

The staff of the Division of Trading and Markets of the Securities and Exchange Commission (the "SEC") recently issued a No-Action Letter[1] that should reduce significantly the registration burdens upon certain brokers and…more

Broker-Dealer, No-Action Letters, Registration, SEC

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EPA Issues New RFS Rule; Expands Advanced Biofuel Pathways

On July 2, EPA published a final rule that amends three separate sets of regulations relating to fuels. These regulations clarify the number of cellulosic biofuel renewable identification numbers (RINs) that may be generated for…more

Biofuel, Clean Air Act, Energy, Environmental Policies, EPA

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New IRS Offshore Disclosure Program Announced

On June 18, 2014, the IRS announced significant changes to its current Offshore Voluntary Disclosure Program (OVDP) and to the current version of the IRS Streamlined Filing Compliance Procedures (SFCP). Under the new directive,…more

DOJ, IRS, OVDP, Reporting Requirements

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Filing Objections to Applications for the Registration of New gTLDs

In June 2011, the Internet Corporation for Assigned Names and Numbers (ICANN), the organization responsible for the global coordination of the use of domain names, IP addresses and the like, announced that it would accept…more

Community Objection, Dispute Resolution Services, gTLD, ICANN, Legal Rights Objection

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Too “Obnoxious” to Enforce: New York Court Refuses to Apply Florida Law in Considering Restrictive Covenants

Florida MapRecently, a New York appellate court concluded that an employer could not rely upon a Florida choice-of-law provision in an employment agreement to enforce restrictive covenants against a former employee, even though…more

Choice-of-Law, Parent Corporation, Restrictive Covenants

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OIG Revamps Regulations Concerning CMPs and Exclusion

In a pair of proposed rules published in May, the HHS OIG unveiled changes to the regulations concerning OIG’s authority to impose civil monetary penalties (CMPs) and exclude individuals and entities from participation in…more

Affordable Care Act, Civil Monetary Penalty, Employee Benefits, Enforcement, Exclusions

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Loveland Voters Reject Two-Year Ban On Fracking

Loveland voters defeated an anti-fracking initiative that would have imposed a two-year moratorium on hydraulic fracturing, or fracking, within the city’s borders. Loveland is located about an hour north of Denver. The…more

Fracking, Fracking Bans, Oil & Gas

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Judge Posner Identifies Some Warning Signs Of An Unfair Class Settlement

On June 2, 2014, the United States Court of Appeals for the Seventh Circuit rejected a class action settlement in Eubank v. Pella Corp., Nos. 13-2091, -2133, 2136, -2162, 2202 (7th Cir., June 2, 2014) that the Court labeled…more

Class Action, Richard Posner, Settlement

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Legislative Watch: Trade Facilitation and Trade Enforcement Reauthorization Act of 2013

A proposed U.S. Senate Bill has the potential to change the way in which intellectual property infringement is reported and enforced. U.S. Senate Bill 662 ("S. 662"), the Trade Facilitation and Trade Enforcement Reauthorization…more

Chamber of Commerce, Enforcement, Trade Policy

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The Latest on the Use of Retained Asset Accounts to Pay Life Insurance Benefits

In Merrimon v. Unum Life Insurance Co. of America, 2014 WL 2960024 (1st Cir. July 2, 2014), the U.S. Court of Appeals for the First Circuit became the third circuit court to approve an insurance company’s use of a retained asset…more

Class Action, Corporate Counsel, ERISA, Fiduciary Duty, Insurers

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Employees Must Prove Retaliation Was “But-For” Cause of Employment Action

Employers are well aware that poorly performing employees may lodge baseless retaliation claims as a smokescreen to interfere with legitimate discipline…more

But For Causation, Discrimination, EEOC, Harassment, Racial Discrimination

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Genzyme First Circuit Decision

In a huge victory for Massachusetts-based biologics manufacturer Genzyme Corporation, the First Circuit Court of Appeals on June 5, 2014 affirmed the District Court’s dismissal of a multi-million dollar shareholder class action…more

Class Action, Drug Manufacturers, FDA, Genzyme, Pharmaceutical

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Hobby Lobby: Likely First of Many Cases Pitting Religion Against ACA

The U.S. Supreme Court on June 30, 2014, ruled 5-4 that a closely held, for-profit corporation can qualify for an exemption from the U.S. Department of Health and Human Services (HHS) requirements mandating contraceptive…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, HHS, Hobby Lobby

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Is Your Hedge Fund a Trader or Investor?

Hedge fund managers should be aware of two recent U.S. Tax Court memorandum decisions that shed further light on when a taxpayer, such as a hedge fund, is considered to be a "trader" or "investor" for tax purposes -- a…more

Hedge Funds, Investors, IRS, Tax Deductions

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Arizona District Court Rejects Joint Employer Arguments in Independent Contractor Case Alleging Misclassification of Truck Drivers

A month ago we discussed the Ninth Circuit’s decision in Ruiz v. Affinity Logistics Corp., Case No. 12-56589 (9th Cir. June 16, 2014), in which the employer treated its delivery drivers as employees in everything but name,…more

Class Action, Delivery Drivers, Employee Definition, Employer Liability Issues, FLSA

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Cullen v. State Farm - The Ohio Supreme Court Returns to Rule 23 Issues

On November 5, 2013, the Supreme Court of Ohio adopted the class certification principles announced in the U.S. Supreme Court's decisions in Wal-Mart Stores, Inc. v. Dukes and Comcast v. Behrend. In Cullen v. State Farm Mutual…more

Class Action, Class Certification, Comcast, Comcast v. Behrend, Dukes v Wal-Mart

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Now for Everything Else: What Employers Still Need To Worry About Between Now And 2015

For the past several months (and, in many cases, years), most large employers have been preparing for the consequences of offering (or not offering) their workforce health coverage and complying with the complexities introduced…more

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

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2013 Year-End Securities Litigation and Enforcement Highlights

We are pleased to share with you the 2013 Year-End Highlights Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team, a periodic survey, in addition to our Executive Alerts, which focuses…more

Chief Compliance Officers, Complex Litigation, Compliance, Corporate Counsel, Enforcement

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District Court rejects supervisor liability for state employee’s motor vehicle record data breach

In a recent decision, the Federal District Court of Minnesota found that state agencies were not liable in a data breach class action suit involving a rogue employee’s unauthorized viewing of personal information in drivers…more

Data Breach, DMV, Governmental Liability, Liability, Motor Vehicles

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Court to Applebee's Servers, Bartenders and Hosts: Washing Dishes and Taking Out the Trash May Be All in a Day's Work

On May 13, 2013, in a decision favorable to the restaurant industry and companies that employ tipped workers, a district court in Indiana carved out a tip credit claim from a proposed wage and hour collective action brought on…more

Applebee's, Collective Actions, DOL, FLSA, Minimum Wage

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U.S. Court of Appeals Strikes Down Reporting Requirement Under the SEC's Conflict Minerals Rules

On April 14, 2014, the U.S. Court of Appeals for the D.C. Circuit issued its decision in National Association of Manufacturers, et al., v. Securities Exchange Commission, a case involving a challenge to the SEC’s conflict…more

Conflict Mineral Rules, Disclosure, First Amendment, National Association of Manufacturers, SEC

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Silence Isn't Always Golden in Government Investigations: Bracing for The Impact of the Supreme Court's Decision in Salinas v Texas

On June 17, 2013, the Supreme Court of the United States issued an opinion with important implications for anybody who wishes to remain silent when interviewed in connection with a criminal investigation whether they know it…more

Congressional Investigations & Hearings, Criminalization, Fifth Amendment, Investigations, Law Enforcement

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Patent Troll Receives Push Back

Over the past eight months, thousands of businesses across the United States received the same five-page letter from "The Licensing Team" of any one of 40 shell companies affiliated with MPHJ Technology Investments, LLC..…more

Consumer Protection Act, Infringement, Licenses, Patent Trolls, Patents

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Bitcoin Investment Vehicles Beware – The SEC is Watching

The Securities and Exchange Commission (SEC) recently charged the co-owner of two Bitcoin-related websites for publicly offering shares in the ventures without registering the securities under the Securities Act of 1933 (the…more

Bitcoins, CFTC, Cryptocurrency, Enforcement, Enforcement Actions

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Background Check Lawsuits: If It’s Not One Thing, It’s Another

As we previously have written, employer use of criminal records and background checks with respect to applicants and employees has been the subject of challenge on the grounds that such checks tend to discriminate against…more

Background Checks, Criminal Background Checks, Discrimination, Employer Liability Issues

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Ohio Adopts New Patient Notification Law for Terminating Physician Employment

Until recently, physicians were required by rules of the State Medical Board of Ohio to notify their patients upon termination of services or retirement from practice. As of March 22, 2013, Ohio law requires healthcare entities…more

Hiring & Firing, Notice Requirements, Patient Notice, Termination

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More Companies Offering Water Recycling Services

As previously reported, oil and gas companies are seeking innovative and economical solutions to decrease their reliance on fresh water in hydraulic fracturing operations. Although obstacles remain, water recycling may prove to…more

Fracking, Oil & Gas, Recycling, Wastewater

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The Joint DOJ and PTO Perspective on Standards-Essential Patents as Compared to that of the FTC

On January 8, the U.S. Department of Justice, Antitrust Division (“DOJ”) and the U.S. Patent & Trademark Office (“PTO”) (collectively, “the Agencies”) issued a joint policy statement regarding remedies for Standards-Essential…more

DOJ, FRAND, Google, Injunctions, License Agreements

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The American Petroleum Institute Pens “Good Neighbor” Standards for Fracking

In a press release Wednesday, the American Petroleum Institute (“API”) published a first-of-its-kind industry standard for community engagement in shale-rich areas where oil and gas can be extracted using horizontal drilling and…more

American Petroleum Institute, Energy, Fracking, Oil & Gas, Shale Gas

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China and U.S. Conclude FATCA IGA In Substance

On June 26, 2014, China and the United States agreed on a Model 1 FATCA IGA. The Treasury did not say whether the agreement would be reciprocal. The IGA comes just in time for the July 1 start of 30 percent withholding on FDAP…more

China, FATCA, FDAP, FFI, Intergovernmental Agreements

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License to Hack? DOJ Seeks Expanded Authority to Use Hacking Techniques

As part of its increased focus on combating cybercrime, the U.S. Department of Justice is pushing to loosen requirements for obtaining search warrants in order to allow them greater freedom to hack into the computers of criminal…more

Cyber Attacks, Cybersecurity, DOJ, Hackers

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Foreign National Physician Sues Former Employer Provider Alleging Forced Labor Violations

A lawsuit brought by a foreign national doctor earning a six-figure income against the physician owner of his former employer alleging violations of a federal forced labor statute is being allowed to go forward, with the recent…more

Foreign Nationals, Human Trafficking, Physicians, Policy Violations, TVPRA

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There is No Such Thing as a “Free” Urine Test

On May 5, 2014, in Ameritox, Ltd. v. Millennium Labs., Inc., [No. 8:11-cv-775-T-24-TBM], 2014 WL 1779267 (M.D. Fla. May 5, 2014), the U.S. District Court for the Middle District of Florida granted in part and denied in part a…more

Anti-Kickback Statute, Healthcare, Physicians, Stark Law, Summary Judgment

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Senate Finance Committee Chairman Proposes Repeal of Like-Kind Exchange Deferral and Other Changes Affecting Real Estate

On November 21, 2013, Senate Finance Committee Chairman Max Baucus released the third package in a series of "Staff Discussion Drafts" containing proposals to reform the tax code. This third set of proposals focuses on reforms…more

Depreciation, Property Tax, Real Estate Market, Realty Transfer Taxes, Tax Deductions

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2013 Mid-Year Securities Litigation and Enforcement Highlights

Table of Contents - I. Supreme Court Case Review (October 2012 Term) II. Rule 10b-5 Cases III. Investment Adviser and Hedge Fund Cases IV. Settlements V. Commodities and Futures Litigation and…more

Amgen Inc. v Connecticut Retirement Plans, Comcast, Commodities, Enforcement Actions, Gabelli v SEC

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Highlights of Recently Released FATCA Regulations

On January 17, the Internal Revenue Service issued long-awaited final regulations (the Final Regulations) for implementing the Foreign Account Tax Compliance Act (FATCA) (the Final Regulations are contained in T.D. 9610). For…more

Due Diligence, FATCA, FFI, Foreign Banks, Foreign Financial Accounts

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SEC Releases Proposed Rules on Regulation A-Plus

In yet another effort to display Congress' commitment to the "democratization of access to capital," the Securities and Exchange Commission (the "SEC") has proposed rule amendments to Regulation A under the Securities Act of…more

JOBS Act, Regulation A, SEC, Securities Act of 1933, Title IV

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U.S. Supreme Court To Review Fifth Circuit’s SLUSA Decision in Stanford Ponzi Scheme Case

The Supreme Court recently granted certiorari to examine the “in connection with” requirement of the Securities Litigation Uniform Standards Act (“SLUSA”) in Chadbourne & Parke LLP v. Troice, No. 12-79…more

Chadbourne & Parke LLP v Troice, Class Action, Ponzi Scheme, SCOTUS, SLUSA

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Federal Trade Commission v. Actavis, Inc. et al. – Supreme Court Holds Reverse Payment Settlement Agreements to be Analyzed under “Rule of Reason” Approach

On June 17, 2013, the Supreme Court of the United States ruled 5-3 in favor of the Federal Trade Commission and issued its long-awaited decision in Federal Trade Commission v. Actavis, Inc. et al. 570 U.S. __ (2013), Slip Op…more

Actavis Inc., ANDA, FTC, FTC v Actavis, Generic Drugs

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ISS Releases Details on Governance QuickScore 2.0

Late last month, Institutional Shareholder Services Inc. (ISS) reported its updates and enhancements to Governance QuickScore, its governance risk assessment tool, which will be used to score public companies during the 2014…more

Corporate Governance, ISS, QuickScore

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Seventh Circuit Holds Attorney is Bound to $3.54m Class Settlement Fee Agreement He Did Not Sign

On February 14, 2014, the Seventh Circuit ruled that a plaintiff’s attorney was bound by the terms of a class action settlement involving alleged malfeasance in the laying of fiber-optic cables by telecommunications companies on…more

Class Action, Settlement, Signatures, Telecommunications

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Make-Whole Premiums Get to "Pass Go" in Bankruptcy Court

A make-whole premium is a lump-sum payment that becomes due under a financing agreement when repayment occurs before the stated maturity date, thereby depriving the lender of all future interest payments bargained for under the…more

Banks, Commercial Bankruptcy, Loans, Lump Sum Offers, Make-Whole Premium

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Is the 5th Time the Charm? – Nationalizing Data Breach Notification

Once the smoke and dust clears from the latest enormous data breach, the fried servers are hauled away and the ritual IT department purge takes place, the focus seems to turn to the lack of any comprehensive national data breach…more

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President Obama Signs "Fiscal Cliff" Legislation into Law

As you likely have heard, the President signed the American Taxpayer Relief Act (H.R. 8) (the "Act") on January 2, 2013. The Act, popularly known as the "fiscal cliff" legislation, permanently extends the Bush era tax cuts for…more

3.8% Medicare Tax, Alternative Minimum Tax, American Taxpayer Relief Act, Bush-Era Tax Cuts, Business Taxes

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FTC Says That Sponsors of Pinterest Contests Should Require Users to Post Pins with Hashtags Warning When Pins are Posted for a Prize

In a March 20, 2014 closing letter sent to fashion company Cole Haan, the FTC warned that use of the hashtag #WanderingSole in conjunction with a recent Pinterest contest did not adequately communicate the “material connection”…more

Contests & Promotions, FTC, Pinterest, Prizes

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Clash of the Circuits: Federal Exchange Subsidies at Risk?

These four words “established by the state,” at first blush do not appear obtuse or particularly vague. But these four words form the basis for the latest challenges to the Affordable Care Act (ACA) and have resulted in two…more

Affordable Care Act, Halbig v Burwell, Health Insurance Exchanges, Healthcare, IRS

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Mobile Apps and Websites Face New COPPA Requirements Starting July 1

In one month, on July 1, 2013, the Federal Trade Commission’s most recent amendments to its Children’s Online Privacy Protection Act Rule (“COPPA Rule”) will go into effect. These changes include a variety of requirements…more

Actual or Constructive Knowledge, Amended Legislation, Consent, COPPA, FTC

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The Latest on the Use of Retained Asset Accounts to Pay Life Insurance Benefits

In Merrimon v. Unum Life Insurance Co. of America, 2014 WL 2960024 (1st Cir. July 2, 2014), the U.S. Court of Appeals for the First Circuit became the third circuit court to approve an insurance company’s use of a retained asset…more

Class Action, Corporate Counsel, ERISA, Fiduciary Duty, Insurers

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Stand and Be Counted: Determining Full-Time Employees Who Must Be Offered Affordable Health Benefit Coverage Under The Employer Mandate

The article "Start Counting," published in the June 3, 2013, edition of the Benefits Broadcast discussed how employers must "count" themselves into compliance with the ACA, and how the number of employees affects whether an…more

Affordable Care Act, Employer Mandates, Full-Time Employees, Health Insurance Exchanges, Healthcare

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EPA Finalizes a Rule Excluding Reusable and Disposable Wipes from Hazardous Waste Regulation

Businesses spend millions of dollars each year disposing of solvent-contaminated rags, towels and other wipes. Much of the high cost stems from the fact that, under existing regulations, wipes contaminated with hazardous…more

EPA, Hazardous Substances, Labeling, Recordkeeping Requirements, Waste Disposal

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Colorado Court Leaves Valuation Question Unanswered When Valuing GRAT Appreciation

On March 20, 2014, the Colorado Court of Appeals, in Malias v. Malias, upheld the trial court’s determination that grantor retained annuity trust (GRAT) remainder interests were “property interests” for property division…more

Appeals, Property Valuation, Trusts, Valuation

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Make-Whole Premiums Get to "Pass Go" in Bankruptcy Court

A make-whole premium is a lump-sum payment that becomes due under a financing agreement when repayment occurs before the stated maturity date, thereby depriving the lender of all future interest payments bargained for under the…more

Banks, Commercial Bankruptcy, Loans, Lump Sum Offers, Make-Whole Premium

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OSHA Proposes Changes to its Recordkeeping Rules that Would Make Injury and Illness Data Available to the Public

The Occupational Safety and Health Administration (OSHA) issued proposed rules that would require certain employers to electronically submit injury and illness information to OSHA on a periodic basis. Encouraged by President…more

Bureau of Labor Statistics, Compliance, OSHA, Recordkeeping Requirements, Workplace Injury

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On Second Thought — The Ohio Supreme Court Reverses Course and Holds that a Merger Does Not Trigger the Beginning of a Noncompetition Period

In October, the Ohio Supreme Court reconsidered and reversed, in part, its May 24, 2012, decision in Acordia of Ohio, L.L.C. v. Fishel, 2012-Ohio-2297 (Acordia I), which sharply restricted the ability of employers to enforce…more

Non-Compete Agreements

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A WARNing to Private Equity Regarding Potential Liability for Employment Decisions by Portfolio Companies

A federal district court in Indiana recently ruled that a plaintiff's class action lawsuit could proceed against both a New York private equity firm and one of its portfolio companies for an alleged violation of the Worker…more

Compliance, Employer Liability Issues, Investment Portfolios, Private Equity, WARN Act

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Basic Is Dying a Slow Death: The Supreme Court Upholds the Fraud-on-the-Market Presumption in Halliburton but Allows Rebuttal

Given the opportunity to overrule its landmark 1988 decision in Basic v. Levinson, in which it created the fraud-on-the-market presumption, the Supreme Court declined. The Court found in its decision this week in Halliburton…more

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

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President Obama Signs "Fiscal Cliff" Legislation into Law

As you likely have heard, the President signed the American Taxpayer Relief Act (H.R. 8) (the "Act") on January 2, 2013. The Act, popularly known as the "fiscal cliff" legislation, permanently extends the Bush era tax cuts for…more

3.8% Medicare Tax, Alternative Minimum Tax, American Taxpayer Relief Act, Bush-Era Tax Cuts, Business Taxes

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FTC Report Seeks Congressional Review of Data Broker Industry

As the advent of “big data” increasingly takes center stage in the data and privacy sphere, data brokers—companies that compile and resell or share consumers’ personal data—have come under increased scrutiny. On May 27, 2014,…more

Big Data, Data Brokers, Data Protection, FCRA, FTC

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Broker-Dealers and Investment Advisers Now Targeted by Both Cyber Intruders and SEC Cybersecurity Examiners

Cybersecurity has increasingly become a critical issue for all types of businesses, few more so than broker-dealers, investment advisers and others in the financial sector. The cyber threat is much broader than customer data…more

Audits, Broker-Dealer, CFTC, Cyber Attacks, Cybersecurity

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The Latest on the Use of Retained Asset Accounts to Pay Life Insurance Benefits

In Merrimon v. Unum Life Insurance Co. of America, 2014 WL 2960024 (1st Cir. July 2, 2014), the U.S. Court of Appeals for the First Circuit became the third circuit court to approve an insurance company’s use of a retained asset…more

Class Action, Corporate Counsel, ERISA, Fiduciary Duty, Insurers

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Insuring Your Company Against Cyber-Attacks

Earlier this month, the Department of Justice announced the indictment of 13 individuals associated with the hacker organization Anonymous for a widespread scheme to disrupt and shut down commercial and government websites…more

Cyber Attacks, Cybersecurity, Distributed Denial of Service, DOJ, Hackers

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FINRA Offers Regulatory Road Map for 2013

On January 11, 2013, the Financial Industry Regulatory Authority (FINRA) issued its annual Regulatory and Examination Priorities Letter (Priorities Letter) to member firms, which highlights its primary areas of focus for the…more

Algorithmic Trading, Cybersecurity, FINRA, High Frequency Trading, Insider Trading

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Normalizing Prenuptial Planning

Prenuptial planning is a common consideration for clients who are getting married. There are several circumstances where a prenuptial agreement is particularly useful, such as second (or perhaps third) marriage situations,…more

Marriage, Prenuptial Agreements

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A Disconcerting Proposal from the Senate: Proposed Repeal of Section 1031

Last November, Senate Finance Committee Chairman, Max Baucus, released the third package in a series of “Staff Discussion Drafts” proposing various changes to reform the Internal Revenue Code. Of course, it is likely that any…more

Deficit Reduction, Internal Revenue Code, Max Baucus, Real Estate Investments, Tax Reform

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The EEOC Amplifies its Focus on Religious Discrimination

The U.S. Equal Employment Opportunity Commission (“EEOC”) received 3,721 charges alleging religious discrimination in fiscal year 2013. In partial response to these charges, earlier this month, the EEOC issued new technical…more

Civil Rights Act, EEOC, Religious Discrimination, Title VII

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Planning for the Distribution of Tangible Personal Property: An Ounce of Planning Is Worth a Pound of Family Harmony

One of the most overlooked elements of an estate plan is the planning for the distribution of a person’s tangible personal property. This property, which many people commonly referred to as “belongings,” encompasses jewelry,…more

Estate Planning, Family Members, Tangible Property

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2013 Year-End Securities Litigation and Enforcement Highlights

We are pleased to share with you the 2013 Year-End Highlights Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team, a periodic survey, in addition to our Executive Alerts, which focuses…more

Chief Compliance Officers, Complex Litigation, Compliance, Corporate Counsel, Enforcement

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May I Pay Your Taxes?: Colorado Enacts a New Grantor Reimbursement Statute

Grantor trusts are a powerful tool in estate planning in part because they facilitate depletion of the grantor’s estate by the grantor’s payment of income taxes attributable to the trust…more

Estate Planning, Grantor Trusts, New Legislation, Reimbursements

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Senate Confirms CFPB Chairman — Scrutiny of Lenders' Business Practices Go Under the Microscope

Those that anticipated a dramatic Supreme Court confrontation over the legitimacy of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB), and perhaps a nullification of all of the nascent agency's…more

CFPB, Compliance, Harry Reid, Lenders, Recess Appointments

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The Orphan Drug Wars: HHS Interpretive Rule Clarifies Orphan Drug Exclusion

On July 21, 2014, the U.S. Department of Health and Human Services (HHS) released an “Interpretive Rule” in response to a recent U.S. District Court decision that vacated the July 23, 2013, orphan drug rule on the grounds that…more

340B, FFDCA, HHS, Orphan Drugs, PHRMA

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Rising up from the Trenches: Ninth Circuit Broadly Interprets Breach of Contract Exclusion in Trademark Infringement Case

On May 23, 2014, the Ninth Circuit upheld a California district court decision that broadly interpreted the breach of contract exclusion in a commercial general liability policy to preclude coverage for all personal and…more

Breach of Contract, Commercial General Liability Policies, Infringement, Trademark Litigation, Trademarks

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The Sedona Conference Hails the Advent of Value-Based Information Governance

Information Governance (IG) is emerging as one of the most important issues confronting organizations today, particularly in this age of Big Data and data breaches. The influential Sedona Conference (Sedona) recently weighed in…more

Data Protection, Information Governance

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Five Health Policy Issues to Watch in 2014

As we head into the mid-term election cycle, the ongoing implementation of the Patient Protection and Affordable Care Act (ACA) continues to consume the nation’s healthcare industry and political leaders in 2014. On the horizon…more

Affordable Care Act, CMS, Healthcare, Medicaid, Medicaid Expansion

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What CLS Bank Taketh, Copyright May Giveth Back

Courts, commentators and clients will be struggling for some time to assess the impact on software patents of Thursday’s Supreme Court decision in Alice v. CLS Bank. Interpreted one way, the decision kills patents directed at…more

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

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Recent OIG Report Underscores Need for Home Health Agencies and Physicians to Comply With Medicare’s Face-to-Face Documentation Requirements

Medicare overpaid the home health industry $2 billion between January 2011 and December 2012, according to a recent report by the U.S. Department of Health and Human Services, Office of Inspector General (OIG). The OIG’s…more

CMS, Healthcare, HHS, Home Health Agencies, Medicare

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BOEM Releases Final Programmatic Environmental Impact Survey For Offshore Atlantic Geological and Geophysical Activity

On February 27th, the Bureau of Ocean Energy Management, in cooperation with NOAA’s National Marine Fisheries Service (NOAA Fisheries), and pursuant to the National Environmental Policy Act (NEPA), released its final…more

BOEM, National Marine Fisheries Service, NOAA, Offshore Drilling, Oil & Gas

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Trends in Social Media and the Workplace: Where Does Social Media Harassment Fit In?

How much do an employer’s obligations to prevent and remedy workplace harassment extend into the virtual world?…more

Cyberbullying, Employer Liability Issues, Harassment, NLRB, Social Media

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Removal Evidence Need Not Be Perfect and Declaratory Relief Alone May Satisfy CAFA Amount-in-Controversy Requirement, says the Eleventh Circuit

Answering a question left undecided in other circuits, the Eleventh Circuit held in South Florida Wellness, Inc. v. Allstate Insurance Co., No. 14-10001 (Feb. 14, 2014) that a complaint seeking only declaratory relief “can be up…more

Amount in Controversy, CAFA, Class Action, Declaratory Relief, Evidence

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Florida Homestead Planning and Irrevocable Trusts

Florida law prohibits the devise of a homestead if the owner is survived by a minor child or children. For purposes of this prohibition, the term “devise” extends to both gifts under a will and transfers by way of a revocable…more

Estate Planning, Homestead Exemption, Intestate Succession, Irrevocable Trusts, Land Titles

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Texas Files Suit to Strike Down EEOC Background Check Guidance

The Equal Employment Opportunity Commission (“EEOC”) usually forces employers who are subject to Title VII to play defense. The State of Texas, however, has upended that approach. On November 4, 2013, Texas filed a federal…more

Background Checks, Criminal Background Checks, Disparate Impact, EEOC, Title VII

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There is No Such Thing as a "Free" Urine Test

On May 5, 2014, in Ameritox, Ltd. v. Millennium Labs., Inc., [No. 8:11-cv-775-T-24-TBM], 2014 WL 1779267 (M.D. Fla. May 5, 2014), the U.S. District Court for the Middle District of Florida granted in part and denied in part a…more

Anti-Kickback Statute, Healthcare, Stark Law

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Senate Finance Committee Chairman Releases Tax Reform Staff Discussion Drafts – More Expected

From November 19 through 22, 2013, Senator Max Baucus, Chairman of the Senate Finance Committee (the "Committee"), released three staff discussion drafts that propose sweeping changes to the federal rules regarding international…more

Corporate Taxes, International Tax Issues, Tax Reform

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Third Circuit Holds Rule 10b-5 Violations May Be Imputed to Investment Management Company on Basis of Apparent Agency

The United States Court of Appeals for the Third Circuit recently issued a decision that highlights the importance of investment management companies using extreme caution when promoting investment products to their clients, as…more

FINRA, Fraud, Hedge Funds, Investment Management, Marketing

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Seventh Circuit Holds Federal Agencies Can Be Sued for Public Nuisance, But Affirms Dismissal of Claim

On July 14, 2014, the Seventh Circuit decided Michigan et al. v. U.S. Army Corps of Engineers et al. (Wood, C.J., writing for a unanimous panel). While the court ultimately affirmed dismissal of the underlying action, the…more

Administrative Procedure Act, Governmental Liability, Liability, Nuisance, Public Nuisance

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U.S. Imposes Further Economic Sanctions on Russian Officials and Entities in Connection with the Crisis in Crimea

On April 28, 2014, the Office of Foreign Assets Control (OFAC) imposed a new round of Ukraine-related sanctions on more than two dozen Russian companies and government officials. The latest sanctions, supplementing previous…more

Asset Freeze, Barack Obama, Executive Orders, Foreign Affiliates, OFAC

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Girl Under Fire: Alicia Keys Sued for Copyright Infringement over Girl on Fire

Songwriter Earl Shuman sued Alicia Keys for allegedly “sampling” parts of the composition “Hey There Lonely Boy” (“Lonely”) that he co-wrote in 1962. According to the complaint, Keys’ recording of “Girl on Fire” (“Fire”), which…more

Alicia Keys, Copyright, Digital Sampling, Earl Shuman, Infringement

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Texas Railroad Commission Chairman Calls Proposed Denton Fracking Ban ‘Extremely Misguided’; Asks City Council to Reject Measure

On July 11th, Texas Railroad Commission Chairman Barry Smitherman sent a letter to the mayor and city council members for Denton, Texas asking that the council reject a proposal to ban hydraulic fracturing in Denton. Chairman…more

Energy, Environmental Policies, Fracking, Fracking Bans, Oil & Gas

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Thirty Years of Law in Thirty-Some Pages: The EEOC’s New Guidance on Pregnancy Discrimination

The Equal Employment Opportunity Commission (EEOC) recently issued its “Enforcement Guidance on Pregnancy Discrimination and Related Issues.” It was no minor undertaking. According to the EEOC’s Questions and Answers about the…more

Best Management Practices, Discrimination, EEOC, Employer Liability Issues, Enforcement Guidance

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Antitrust Lessons in Africa – Part III

This is the account of a week spent teaching antitrust law in a World Bank sponsored program for the Tanzanian Fair Competition Commission and members of their High Court. Before I leave, my seven year old daughter asks “why do…more

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Multiple Employer Welfare Arrangements: New Reporting Requirements, Civil Penalties and Other Regulations

Generally, a multiple employer welfare arrangement (MEWA) is a welfare benefit program that is sponsored by a group of employers that have common business and industry interests, but not common ownership interests. The…more

DOL, Form M-1, MEWAs

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The NLRB Finishes 2012 with a Bang and Shows No Sign of Slowing Down in 2013

The National Labor Relations Board (the "NLRB") released a number of important decisions in late December 2012. The most significant of these decisions, which seemingly signal continued activism by the NLRB, address employee…more

Collective Bargaining, Dues Checkoff, NLRB, Union Dues, Unions

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Sixth Circuit Affirms Certification and Summary Judgment for TCPA Class, Despite State Law Class Action Prohibition

On July 9, 2014, the Sixth Circuit affirmed a district court ruling that a consumer TCPA class action could proceed against Lake City Industrial Products, rejecting Lake City’s argument that Michigan law prohibited TCPA class…more

Class Action, Class Certification, Summary Judgment, TCPA

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Health System Pays $800,000 Fine for Leaving PHI in Doctor’s Driveway

While enforcement activity by the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has focused primarily on a covered entity’s safeguard of electronic protected health information (ePHI),…more

Enforcement, HHS, HIPAA, Medical Records, OCR

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The Ninth Circuit Puts Up Road Block to Motor Carrier Arguing that California Break Laws are Preempted by the FAAA Act, But Leaves Some Wiggle Room

On Wednesday, the United States Ninth Circuit Court of Appeals rendered a decision that, on its face, involved a technical preemption issue, but one that will have serious repercussions for those in the transportation industry…more

Appeals, Corporate Counsel, Employer Liability Issues, FAAAA, Preemption

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Second Circuit Finds That, Once Again, Book Scanning Is Fair Use

The Second Circuit Court of Appeals has delivered a resounding reaffirmation of fair use principles in the latest decision to go against the Authors Guild in its longstanding battle against book digitization. The unanimous…more

Appeals, Authors Guild, Books, Copyright, Copyright Infringement

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Deconstructing DOMA: The DOL Takes Its First Step Down The Path Toward Extended Rights for Same-Sex Spouses

The United States Department of Labor (DOL) just took the first of "many steps" it plans to take over the coming months to implement the United States Supreme Court's decision in United States v. Windsor, striking down Section 3…more

DOL, DOMA, Employee Benefits, Employee Rights, Marriage

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FDA Releases Unique Device Identification Final Rule, Draft Guidance

On September 24, 2013, the Food and Drug Administration (FDA) published a Final Rule, which will, over the next several years, require many medical devices distributed in the U.S. to carry a unique device identifier (UDI)…more

FDA, Medical Devices, Unique Device Identifiers

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Are You Facing the Prospect of a Merger Investigation?

If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else. What…more

Document Review, Internal Investigations, Mergers, Predictive Coding, Software

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The FTC Takes a Closer Look at Alternative Scoring Products

The Federal Trade Commission (“FTC”) hosted a panel discussion, in late March on “Alternative Scoring Products” as part its 2014 Spring Privacy Series, signaling the Commission’s increased attention on this burgeoning industry…more

Compliance, FCRA, FTC

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Creative, But Perhaps Too Creative, Lawyering

U.S. District Judge Rakoff ruled on whether copying legal filings amounts to copyright infringement. His verdict: it does not. Judge Rakoff granted summary judgment to defendants Lexis and Westlaw, dismissing plaintiffs’…more

Copyright, Fair Use, Infringement, Legal Filings

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Illinois Joins Ban-The-Box States; New Jersey May Be Next

Criminal background questions on employment applications will no longer be permitted in Illinois, effective January 1, 2015. On July 19, Governor Quinn signed the Job Opportunities for Qualified Applicants Act, making Illinois…more

Ban the Box, Criminal Background Checks, Job Applicants

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Arbitrators, Not Judges, Must Decide Whether Noncompetes Are Enforceable if There is an Arbitration Clause, Says U.S. Supreme Court

On November 26, 2012, the United States Supreme Court held that the enforceability of a noncompete agreement containing a valid arbitration clause must be determined by an arbitrator in the first instance, not by a federal or…more

Arbitration, Arbitration Agreements, Federal Arbitration Act, Non-Compete Agreements

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What the WTP? The Rise of Merger Simulation in Hospital Transactions

If you are a health system or hospital thinking about a potential transaction and your lawyers haven’t spoken with you about hospital merger simulation, then maybe you should be talking with someone else. What is hospital…more

FTC, Healthcare, Hospital Mergers, Hospitals, MCOs

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Healthcare Providers Face Increasing Financial Pressure and Bankruptcy Risk

The health of the healthcare industry can be summarized as follows: as go federal reimbursement rates, so goes the financial viability of healthcare providers, whether hospitals, nursing homes or medical practices. These…more

Affordable Care Act, Bankruptcy Code, Commercial Bankruptcy, Healthcare Costs, Healthcare Facilities

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Loreto v. The Procter & Gamble Company: Southern District of Ohio Grants Motion to Strike Class Allegations in Consumer False Advertising Case

In a significant decision, the Southern District of Ohio granted, in full, the defendant’s motion to strike class allegations in a consumer false advertising class action before any significant discovery had taken place or the…more

Class Action, False Advertising, False Claims Act, Proctor & Gamble

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SEC Issues Guidance on Proxy Voting Responsibilities of Investment Advisers, Their Use of Proxy Advisory Firms, and Application of the Proxy Rules to Proxy Advisory Firms

On June 30, 2014, the Staff of the Securities and Exchange Commission’s Divisions of Investment Management and Corporation Finance issued guidance on the responsibilities of investment advisers in voting proxies and using proxy…more

Exemptions, Final Guidance, Investment Adviser, Proxy Advisors, Proxy Voting Guidelines

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New York Attorney General Report Shows the Number of Data Breaches is on the Rise and Recommends Steps to Take for Protecting Against Them

On July 15, 2014, the New York Attorney General issued a report examining the growing number and costs of data breaches in the state of New York. The report titled, “Information Exposed: Historical Examination of Data Security…more

Cybersecurity, Data Breach, Information Reports, Risk Assessment, Risk Management

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Is Your Hedge Fund a Trader or Investor?

Hedge fund managers should be aware of two recent U.S. Tax Court memorandum decisions that shed further light on when a taxpayer, such as a hedge fund, is considered to be a "trader" or "investor" for tax purposes -- a…more

Hedge Funds, Investors, IRS, Tax Deductions

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$1.1 Billion and Counting – The New Era of OFAC Enforcement

On February 13, 2014, BNP Paribas ("BNP"), France's largest bank, announced in its fourth quarter results that it will soon be joining the growing community of banking institutions that, within the past five years, have been…more

Banking Sector, Enforcement, Foreign Banks, OFAC

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Deference and Compromise Reigns over Establishment of Truth: Second Circuit Validates SEC Use of "Neither Admit Nor Deny" Settlements

On June 4, 2014, the Second Circuit Court of Appeals vacated U.S. District Judge Jed Rakoff’s influential and controversial decision to reject a consent injunction between the SEC and Citigroup Global Markets Inc. (Citigroup) in…more

Citigroup, Civil Monetary Penalty, Disgorgement, Judge Rakoff, Neither Admit Nor Deny Settlements

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Domino's Pizza Drivers Fail to Deliver Common Circumstances to the Eighth Circuit

Despite their work uniforms and company cars, pizza delivery drivers do not have much in common (at least according to the Eighth Circuit). Recently, in Luiken v. Domino’s Pizza, LLC, No. 12-1216, 2013 WL 399248 (8th Cir…more

Class Action, Class Certification, Commonality, Delivery Drivers, Dominos

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U.S. Court of Appeals Strikes Down Reporting Requirement Under the SEC's Conflict Minerals Rules

On April 14, 2014, the U.S. Court of Appeals for the D.C. Circuit issued its decision in National Association of Manufacturers, et al., v. Securities Exchange Commission, a case involving a challenge to the SEC’s conflict…more

Conflict Mineral Rules, Disclosure, First Amendment, National Association of Manufacturers, SEC

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$1.1 Billion and Counting – The New Era of OFAC Enforcement

On February 13, 2014, BNP Paribas ("BNP"), France's largest bank, announced in its fourth quarter results that it will soon be joining the growing community of banking institutions that, within the past five years, have been…more

Banking Sector, Enforcement, Foreign Banks, OFAC

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Yelp Denied Attempt to Keep Its Online Reviewers’ Identities Anonymous

In 2012, a local rug cleaning company in Virginia, Hadeed Oriental Rug Cleaning (“Hadeed”), filed a defamation action against the authors of seven critical reviews it received on Yelp, indicating that the reviews falsely stated…more

Anonymity, Defamation, Fake Reviews, First Amendment, Free Speech

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2013 Mid-Year Securities Litigation and Enforcement Highlights

Table of Contents - I. Supreme Court Case Review (October 2012 Term) II. Rule 10b-5 Cases III. Investment Adviser and Hedge Fund Cases IV. Settlements V. Commodities and Futures Litigation and…more

Amgen Inc. v Connecticut Retirement Plans, Comcast, Commodities, Enforcement Actions, Gabelli v SEC

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USPTO Issues “Preliminary Examination Instructions in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al.”

On June 25, 2014, the USPTO issued a memorandum to the Examination Corps, entitled “Preliminary Examination Instructions in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al.”…more

CLS Bank v Alice Corp, Memorandum of Guidance, Patent-Eligible Subject Matter, Patents, SCOTUS

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In re MFW Shareholders Litigation: Business Judgment Rule Applicable to Freeze-Out Mergers with Built-in Protections for Minority Shareholders

On May 29, 2013, the landmark decision of In re MFW Shareholders Litigation (MFW), issued by Chancellor Strine of the Delaware Chancery Court, held the business judgment rule standard of review is applicable to freeze-out…more

Board of Directors, Business Judgment Rule, Controlling Stockholders, Freeze-Out Mergers, Minority Shareholders

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Planning for Carried Interests & Avoiding Section 2701

Alternative investments in private equity and hedge funds have gained in popularity over the last two decades and have become a regular allocation of many investment portfolios…more

Alternative Investment Funds, Carried Interest, Hedge Funds, Investors, Portfolio Managers

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BakerHostetler Patent Watch Suprema, Inc. v. Int'l Trade Comm'n

On December 13, 2013, in Suprema, Inc. v. Int'l Trade Comm'n, the U.S. Court of Appeals for the Federal Circuit (Prost, O'Malley,* Reyna) affirmed-in-part, vacated-in-part and remanded-in-part the Commission's cease-and-desist…more

Exclusion Orders, ITC, Patent Infringement, Patent Litigation, Patents

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As if Employers Needed Another Reminder, Here Are 8.4 Million More Reasons to Get the Tip Credit Right

A couple of weeks ago, a Philadelphia based sports bar chain entered into a consent order with the U.S. Department of Labor (DOL) and filed a request with the E.D. Pennsylvania for approval of a separate settlement with…more

DOL, Employee Definition, FLSA, Minimum Wage, Restaurant Industry

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Is It a Violation to Help?

In a May 21, 2014, letter to the President of the American Hospital Association (AHA), U.S. Department of Health and Human Services (HHS) Secretary Kathleen Sebelius confirmed HHS’s position that private, not-for-profit…more

American Hospital Association, Charitable Donations, CMS, Health, Health Insurance Exchanges

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Ohio Budget Bill Introduced

On February 12, 2013, the text of the Governor's budget proposal for the 2014-2015 biennium, announced on February 4, 2013, was made public as House Bill 59 ("HB 59"). The new HB 59 includes a state income tax deduction for…more

Local Taxes, Pass-Through Entities, Sales & Use Tax, Severance Tax, State Budgets

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Senate Finance Committee Chairman Proposes Repeal of Like-Kind Exchange Deferral and Other Changes Affecting Real Estate

On November 21, 2013, Senate Finance Committee Chairman Max Baucus released the third package in a series of "Staff Discussion Drafts" containing proposals to reform the tax code. This third set of proposals focuses on reforms…more

Depreciation, Property Tax, Real Estate Market, Realty Transfer Taxes, Tax Deductions

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No Need To Try the Individual Claim After Class Cert Denial – Ninth Circuit Asserts Jurisdiction over Voluntary Stipulated Dismissal and Upholds Denial of Class Certification

The Ninth Circuit recently affirmed the United States District Court for the Central District of California’s denial of class certification of a Plaintiff’s California consumer law claims based primarily based on the…more

Class Action, Class Certification, Voluntary Dismissals

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Sixth Circuit Denies Government Motion for Rehearing in Quality Stores Employment Tax Challenge

The Sixth Circuit has unanimously and summarily denied a Government request for en banc rehearing of a taxpayer-favorable ruling in United States v. Quality Stores, Inc., 693 F.3d 605 (6th Cir. Sept. 7, 2012)…more

FICA Taxes, IRS, Quality Stores, Refunds, Statute of Limitations

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Thirty Years of Law in Thirty-Some Pages: The EEOC’s New Guidance on Pregnancy Discrimination

The Equal Employment Opportunity Commission (EEOC) recently issued its “Enforcement Guidance on Pregnancy Discrimination and Related Issues.” It was no minor undertaking. According to the EEOC’s Questions and Answers about the…more

Best Management Practices, Discrimination, EEOC, Employer Liability Issues, Enforcement Guidance

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Cullen v. State Farm - The Ohio Supreme Court Returns to Rule 23 Issues

On November 5, 2013, the Supreme Court of Ohio adopted the class certification principles announced in the U.S. Supreme Court's decisions in Wal-Mart Stores, Inc. v. Dukes and Comcast v. Behrend. In Cullen v. State Farm Mutual…more

Class Action, Class Certification, Comcast, Comcast v. Behrend, Dukes v Wal-Mart

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Buyers and Sellers Beware – Disallowance of Purchased Bankruptcy Claims

The Third Circuit recently held that claims purchased from trade creditors by a claims trader will be disallowed under section 502(d) of the Bankruptcy Code when the seller of the claim received, and did not repay, a preference…more

Bankruptcy Code, Debt Buyers

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U.S. Supreme Court Considers Arbitration Clauses and Class Actions Next Year

The Supreme Court recently granted certiorari to consider Oxford Health Plans’ appeal of a ruling compelling class arbitration with its providers over the insurer’s payment practices…more

Arbitration, Arbitration Agreements, Class Action, Oxford Health, Sutter

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IRS “Wealth Squad” – Something to Keep in Mind During Tax Season

The IRS Global High Wealth Industry (“GHWI”) (part of the IRS Large Business & International Division) is auditing individuals with tens of millions of assets or income who utilize complicated financial and estate plan…more

Audits, Compliance, Enforcement Actions, IRS

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Employees Seek To Take Bite From Apple (and Urban Outfitters)

Chances are that if you ask someone what they remember from the cult-classic Paul Verhoeven film Total Recall, they’ll recall (among other things) the sequence where Arnold Schwarzenegger attempts to sneak through security. In…more

Employer Liability Issues, Unpaid Overtime, Urban Outfitters, Wage and Hour

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California Law Requires Certain Business Establishments to Post a Notice Regarding Human Trafficking and Slavery

California's Department of Justice recently posted a model notice on their website with a variety of human trafficking and slavery hotlines. Under California Civil Code §52.6, now that this model notice has been posted, certain…more

Human Rights, Human Trafficking, Notice Requirements, Slavery

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Ohio Supreme Court Holds Statute of Frauds Applies To Defenses, Too

On March 6, 2014, the Supreme Court of Ohio held that the statute of frauds barred a group of guarantors from raising, as a defense to a collection suit, a claim that the bank’s right to enforce the guaranties was barred by an…more

Affirmative Defenses, Statute of Frauds

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"Show Me the Money" or 14 Million Reasons to Upgrade Your Compliance Program

Although delivered 15 years before the Securities and Exchange Commission even established its whistleblower program, Jerry Maguire's iconic lesson "Show Me The Money!" found new meaning last Tuesday. On October 1, 2013, the SEC…more

Compliance, Enforcement Actions, SEC, Whistleblower Awards, Whistleblowers

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U.S. Treasury Awards $3.5 Billion in New Markets Tax Credit Allocations

On April 24, 2013, the U.S. Department of the Treasury's Community Development Financial Institutions Fund (the CDFI Fund) announced the community development entities (CDEs) selected to receive the $3.5 billion in New Markets…more