BakerHostetler

Divided Federal Circuit Panel Creates Patent Agent Privilege

[W]e find that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court’s characterization of their activities as the practice of law, and the current realities of patent…more

Attorney-Client Privilege, Federal Rules of Evidence, Inventors, Patent Agent Privilege, Patent Litigation

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Texas Wastewater Injection Wells Off the Hook for Causing Earthquakes

On September 10, the Texas Railroad Commission absolved a second oil and gas company of causing a series of earthquakes in northern Texas finding that the seismic activity was due to “natural tectonic processes.” The Commission…more

Earthquakes, Energy Sector, Fracking, Oil & Gas, Railroads

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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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Summer Fraud and Abuse Roundup

Now that the kids are back in school and summer vacations are in the rearview mirror, it’s time to catch up on recent fraud and abuse developments. The federal government was busy this summer negotiating a pair of settlements…more

Anti-Kickback Statute, CMS, False Claims Act (FCA), HHS, OIG

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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

Bargaining Units, College Athletes, Colleges, Football, NLRB

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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 (FCA), Fraud, HIPAA, Incentives

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Federal Court Enjoins "Blacklisting" Rule, but Contractors Are Not Out of the Woods Yet

On Oct. 24, 2016, a U.S. District Court issued a preliminary injunction restraining the U.S. Government from implementing the “Fair Pay and Safe Workplaces” Executive Order and the related Final Rule and Guidance (collectively,…more

Arbitration Agreements, Blacklist, Davis-Bacon Act, Disclosure Requirements, Fair Pay and Safe Workplaces

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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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State Oil and Gas Laws v. Local Control: The Struggle Continues in Ohio

On February 17, 2015, the Ohio Supreme Court announced its ruling in The State Ex Rel. Morrison v. Beck Energy Corporation et al. That closely-watched case addressed whether local ordinances that impact drilling operations are…more

Fracking, Oil & Gas, Preemption

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President Signs Freedom of Information Act Reforms

Obtaining government documents through the Freedom of Information Act (FOIA) should become somewhat easier under a law signed by President Obama on June 30, 2016. The law, known as the FOIA Improvement Act of 2016 (S. 337),…more

Document Requests, FOIA, Transparency

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Class Action Disgorgement Case Dismissed Against PG&E as Remedy Sought Would Interfere with Filed Rates

Companies in regulated markets, such as insurance and energy, are increasing litigating issues surrounding the “filed rate doctrine,” or in other words, whether they can be sued in a class action where the remedy sought…more

Class Action, Disgorgement, Dismissals, Filed-Rate Doctrine, PG&E

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Florida: Sun, Fun, and Sand or Back Taxes, Penalties, and Interest?

Do you own residential property in Florida? Do you also own residential property in another state? Some Florida counties have been cracking down on Florida Homestead exemption fraud, and you might be surprised to find you owe…more

Back Taxes, Florida, Homestead Exemption, Lawful Permanent Residents, Primary Residence

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Signed, Sealed, Delivered, But Not Dismissed: the Sixth Circuit Takes on Campbell-Ewald’s Offered vs. Delivered Distinction

Following the Supreme Court’s January decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) that a defendant cannot moot a plaintiff’s individual claim by simply offering to satisfy the plaintiff’s demand before a…more

Auto-Dialed Calls, Campbell Ewald v Gomez, Class Certification, Corporate Counsel, Mootness

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CFPB Warns Mortgage Lenders and Brokers of Possible HMDA Violations

On Oct. 27, 2016, the Consumer Financial Protection Bureau (CFPB) warned 44 unnamed mortgage lenders and brokers that they may be in violation of data reporting requirements of the Home Mortgage Disclosure Act…more

CFPB, Data Collection, Disclosure Requirements, Financial Institutions, HMDA

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Legal Issues to Consider Before Starting Big Data Projects

We read every day about the myriad of purposes for which enterprises are embarking on Big Data projects. Securing C-suite buy in and funding may be a significant endeavor, as is implementing an analytic approach to yield results…more

Big Data, COPPA, Corporate Counsel, Data Collection, Data Protection

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FCPA Chief Touts Record High Enforcement Actions - Links Avoiding a Monitor to Early Remediation of FCPA Issues

Appearing before the annual Securities Docket Conference in Washington, DC on October 13, Kara Novaco Brockmeyer, the Chief of the Securities and Exchange Commission’s FCPA Unit, laid out the Commission’s FCPA enforcement…more

Bribery, Deferred Prosecution Agreements, Enforcement Actions, FCPA, Popular

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Independent Oil and Gas Producers Defeat Federal Hydraulic Fracturing Rule

Wyoming U.S. District Court Declares Bureau of Land Management’s Hydraulic Fracturing Rule Unlawful On June 21, 2016, United States District Judge Scott Skavdahl granted BakerHostetler’s petition for review of final agency…more

Bureau of Land Management, Fracking, Government Land, Oil & Gas, Tribal Lands

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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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Final and Temporary Debt-Equity Regulations Under Section 385 Implement Highly Favorable Changes

On Oct. 13, 2016, the U.S. Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) issued final and temporary regulations under Section 385 governing the treatment of certain instruments as debt or equity…more

Debt, Foreign Corporations, IRS, Proposed Regulation, REIT

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The ABI Commission on Business Bankruptcy Reform: Director and Officer Fiduciary Duties and Lender Liability

Will Congress Finally Act? This is the third in a series of Alerts regarding the proposals made by the American Bankruptcy Institute’s Commission to Reform Chapter 11 Business Bankruptcies. It covers the Commission’s…more

American Bankruptcy Institute, Bankruptcy Code, Bankruptcy Reform, Board of Directors, Chapter 11

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Donors and Charities Benefit Under New Tax Legislation

While most provisions of the Internal Revenue Code (“Code”) do not automatically expire, there are dozens that do. Included among the expiring provisions have been several intended to enhance charitable giving. Each has been…more

Charitable Donations, Conservation Easements, Internal Revenue Code (IRC), IRA Rollovers, Protecting Americans from Tax Hikes (PATH) Act

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German Data Protection Authority Issues Fines for Unlawful Cross-Atlantic Data Transfers

The Data Protection Authority of Hamburg, Germany has made good on its promise to audit cross-Atlantic data transfers in the wake of the October 2015 Safe Harbor decision. On June 6, the Hamburg DPA announced that it had fined…more

Binding Corporate Rules, Data Protection Authority, EU, Germany, International Data Transfers

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Tax Court Rules Corporate Merger of Family-Owned Businesses Results in Substantial Taxable Gift

In September, the Tax Court issued its opinion in Cavallaro v. Commissioner, T.C. Memo 2014-189, holding that a merger of two family-owned businesses resulted in a $29.6 million gift from Mr. and Mrs. Cavallaro to their three…more

Family Businesses, Gift Tax, Mergers, Popular, Tax Court

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CFPB Fines TMX Finance LLC $9 Million for Unfair and Abusive Practices

On September 26, 2016, the Consumer Financial Protection Bureau (CFPB) entered into a consent order with one of the country’s largest auto title lenders, TMX Finance LLC, the parent company of TitleMax. The CFPB took action…more

CFPA, CFPB, Consumer Lenders, Debt Collection, Unfair or Deceptive Trade Practices

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Federal Appellate Court Deems CFPB ‘Unconstitutionally Structured’ and Overturns PHH Penalty

On Oct. 11, the U.S. Court of Appeals for the D.C. Circuit deemed the Consumer Financial Protection Bureau (CFPB) “unconstitutionally structured” and overturned its enforcement action, including a $109 million penalty, against…more

CFPB, Enforcement Actions, Kickbacks, Mortgage Insurance, Mortgage Lenders

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How NLRB's New ‘Quickie Election' Rule Strengthens Unions' Positions

On December 12, 2014, by a 3-2 party-line decision, the National Labor Relations Board (“NLRB” or the “Board”) issued a final rule, which if implemented will drastically truncate union election procedures. Such changes are…more

Ambush Election Rules, Corporate Counsel, Final Rules, NLRB, Union Elections

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Foreign Corrupt Practices Act 2015 Year-End Update

Both the United States Department of Justice (DOJ) and the United States Securities and Exchange Commission (SEC) have continued their focus on anticorruption enforcement in 2015. Although there was a decline in enforcement…more

Corporate Fraud, Corruption, Criminal Prosecution, Deferred Prosecution Agreements, DOJ

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Significant Tax Provisions in the 2016-2017 Ohio Budget Bill Affecting Businesses

On June 30, 2015, Ohio Governor John Kasich signed into law the biennial budget bill, Amended Substitute House Bill No. 64 (“HB 64”). The legislation underwent substantial changes during the legislative process such that the…more

Affiliated-Business Arrangements, Article I, C-Corporation, Click-Through Nexus, Commercial Activity Tax

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Nova Scotia Bans Hydraulic Fracturing

On September 3, Nova Scotia’s government announced that it will indefinitely ban high volume hydraulic fracturing onshore. According to Energy Minister Andrew Younger, “Nova Scotians have overwhelmingly expressed concern about…more

Canada, Fracking, Fracking Bans, Proposed Legislation

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Important Paid Sick Leave Law Developments San Diego, San Francisco, Berkeley

California’s various prescriptions for paid sick leave continue to proliferate and evolve, with recent changes to ordinances in San Diego and San Francisco and the addition of yet another local law, this time in…more

Local Ordinance, Paid Leave, Sick Leave, Wage and Hour

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California OSHA Sets the Bar By Adopting the Strongest Workplace Violence Prevention Standard in the Nation

Oct. 21, 2016, after nearly two years of meetings and work, the California Division of Occupational Safety and Health Administration (Cal/OSHA) adopted a standard intended to reduce workplace violence against healthcare workers…more

Corporate Counsel, Health Care Providers, OSHA, Workplace Safety, Workplace Violence

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NIOSH and OSHA Issue Hazard Alert on Health and Safety Risks in Oil and Gas Extraction

On February 11, 2016, the National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) announced newly identified health and safety risks to workers who manually…more

General Duty Clause, Mineral Extraction, NIOSH, Oil & Gas, OSHA

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2016 Mid-Year Securities Litigation and Enforcement Highlights

Welcome to the 2016 Mid-Year Report From the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. The purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we…more

Bebo v SEC, Corporate Counsel, Dirks v SEC, Enforcement Actions, Exclusive Jurisdiction

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Piece-Rate Employers Face a December 15, 2016 Deadline to Utilize a Safe Harbor or Risk Getting Caught in a Storm

As we have previously reported, in October 2015, Governor Brown signed Assembly Bill 1513. The bill created California Labor Code Section 226.2, which requires employers to pay employees who are compensated on a piece-rate basis…more

Department of Industrial Relations, Governor Brown, Piece-Rate Pay, Wage and Hour

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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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Delaware General Corporation Law Amended Regarding Fee-Shifting and Forum Selection Clauses

On June 24, 2015, the governor of Delaware signed into law legislation that amends the Delaware General Corporation Law (Title 8 of the Delaware Code) (“DGCL”) to effectively prohibit fee-shifting bylaw provisions in the context…more

Bylaws, Fee-Shifting, Forum Selection, Legal Fees, SEC

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2016 Mobile Data Privacy and Security Update and 2015 Review

To say that mobile device usage has reached a tipping point would be an understatement. There are now more mobile devices than people in the world, a staggering 7.9 billion mobile devices for 7.4 billion people on Earth. In the…more

Advertising, COPPA, Corporate Counsel, Data Protection, FTC

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EPA Releases Revised Ozone NAAQS

On October 1, the Environmental Protection Agency issued a prepublication version of a final rule establishing a new National Ambient Air Quality Standard (NAAQS) for ozone. The final rule lowers the primary and secondary…more

Air Quality Standards, Clean Air Act, Compliance, Environmental Policies, EPA

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Supreme Court Clarifies Test for Fee-Shifting in Copyright Cases

The Supreme Court on June 16 issued a unanimous ruling clarifying the test for awarding attorneys’ fees to successful copyright litigants. The decision, in Kirtsaeng v. John Wiley & Sons, Inc., is sure to have lasting impact on…more

Attorney's Fees, Copyright Infringement, Copyright Litigation, Fee Awards, Fee-Shifting

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The Impending Death of the Stretch IRA?

It can, at times, seem like a fool’s errand to focus too closely on specific provisions contained in proposed legislation. As any casual observer of Congress can attest, committee proposals frequently die unenacted or undergo…more

Distribution Rules, Estate Planning, IRA, Qualified Retirement Plans, Retirement Plan

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CMS Doubles Down on Targeting Part D Enrollee Prescription Drug Abuse, But Will Stakeholders Agree?

With the release of its 2017 draft call letter, CMS continues its push to curb opioid dependence, overdose and death among Medicare Part D enrollees. To that end, CMS proposes that Part D plan sponsors edit their benefit designs…more

CMS, Comment Period, Drug & Alcohol Abuse, Medicare Part D, Pharmacies

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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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The 60-Day Rule: Failure to Return Overpayments Caused by Software Glitch Costs Hospital $2.95 Million

A software glitch can be just as risky for a healthcare provider as submitting a false claim. Or so it was declared on August 24, 2016 when the U.S. Attorney for the Southern District of New York announced that Continuum Health…more

60-Day Rule, CMS, False Claims Act (FCA), Health Care Providers, Overpayment

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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, Limited Liability Company (LLC), Members, New Legislation, Waivers

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Supreme Court to Consider Patent Laches in Wake of Copyright Laches Decision

When we last discussed patent laches here, the Federal Circuit had voted to rehear, en banc, SCA Hygiene Products’ patent infringement claim, which invoked a laches defense. At that time, the Supreme Court had recently decided…more

Intellectual Property Litigation, Laches, Patent Infringement, Patent Litigation, Patents

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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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Washington Federal Court Decertifies Class of Insurance Agents Alleging Entitlement to Overtime

Challenging the classification of workers as independent contractors continues to be a growing area of focus for plaintiffs’ attorneys. However, as a recent federal case from Washington demonstrates, the fact-intensive inquiry…more

Class Action, Class Certification, Corporate Counsel, Independent Contractors, Insurance Agents

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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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Latest Data Breach Settlement Illustrates Need for Companies to Prioritize Cybersecurity

On Aug. 5, 2016, the New York attorney general, Eric Schneiderman, announced a $100,000 settlement with an e-retailer following an investigation of a data breach that resulted in the potential exposure of more than 25,000 credit…more

Corporate Counsel, Cybersecurity, Data Breach, Data Security, FTC

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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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New California Law Requires Additional Public Disclosure by Private Funds

On Sept. 14, 2016, the State of California enacted new legislation that requires additional public disclosure by the funds of any California public pension or retirement system, including the University of California (Public…more

Hedge Funds, Investment Funds, New Legislation, Private Equity, Private Funds

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DOJ Guidance on Navigating between a Rock – Export Controls – and a Hard Place – Employment Nondiscrimination

U.S. companies, particularly defense and other high-tech companies, have long faced challenges of how to comply with both the deemed export rule, which may require employment discrimination in very limited circumstances, and…more

BIS, DDTC, Discrimination, DOJ, Employment Discrimination

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Caution: Sealed Package – There Is More At Risk Than Unsealing

Parties litigating in courts across the country routinely file some documents under seal as a matter of course. Sealing filed documents often is a practical necessity – parties need not disclose certain confidential information…more

Confidential Information, Corporate Counsel, Discovery, DOJ, FRCP 26

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New York's Highest Court Reverses Appellate Division, Reaffirms Litigation Requirement for Common-Interest Privilege

In a recent decision reversing the Appellate Division of the Supreme Court of New York, First Judicial Department, the New York Court of Appeals definitively held that the common-interest privilege may be used in New York only…more

Attorney-Client Privilege, Bank of America, Common-Interest Privilege, Confidential Communications, Corporate Counsel

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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 February 2016

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. In This Issue..…more

Bid Protests, Cybersecurity, Department of Defense (DOD), DFARS, False Claims Act (FCA)

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[Event] BakerHostetler 26th Annual Legislative Seminar - June 10, Washington, D.C.

Please join us on Wednesday, June 10, 2015, for the 26th Annual Legislative Seminar in Washington, D.C., a one-day program focused on tax, budget, financial services, banking, healthcare, energy, and technology…more

Events, Federal Budget, Patent Reform, Tax Reform

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What Do Early Investors Really Expect of an Emerging Technology Company?

Emerging technology companies – at their core – will usually have a great scientific or engineering breakthrough or improvement coupled with at least one stellar individual talent. The company will usually have credible proof of…more

Emerging Technology Companies, Inventions, Investment, Investors, Patents

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Customs Bill Strengthens Trade Enforcement

On February 11, 2016, the Senate passed the Trade Facilitation and Trade Enforcement Act of 2015 (H.R. 644) by a 75-20 vote. After passing the House of Representatives in December 2015, Senate action was delayed after a measure…more

Anti-Dumping Duty, Countervailing Duties, Customs and Border Protection, DHS, Imports

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2016 Mid-Year Securities Litigation and Enforcement Highlights

Welcome to the 2016 Mid-Year Report From the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. The purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we…more

Bebo v SEC, Corporate Counsel, Dirks v SEC, Enforcement Actions, Exclusive Jurisdiction

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Seventh Circuit Throws Out TransUnion’s Clickwrap Agreement and Incorporated Class Waiver

In recent years, and in particular since decisions like AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), a powerful defense to consumer class actions has been arbitration agreements that include class waivers. The Supreme…more

Arbitration, Class Action, Class Action Arbitration Waivers, Clickwrap Agreements, Credit Ratings

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Federal Reserve Proposes Rules Aimed at Banks Owning, Trading and Moving Commodities

On Sept. 23, 2016, the Federal Reserve issued proposed rules that could put pressure on investment banks, such as Morgan Stanley and Goldman Sachs, to divest certain energy assets and energy trading activities. Over the…more

Bank of America, Commodities, Deepwater Horizon, Federal Reserve, Gramm-Leach-Blilely Act

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Spoofing, Sports and the Panama Papers: BakerHostetler Offers Mid-Year Review of Cross-Border Government Investigations and Regulatory Enforcement

Halfway through 2016, the international community has seen a staggering variety of cross-border investigations and enforcement actions. Brexit, the release of the Panama Papers, allegations of widespread sports doping and the…more

Broker-Dealer, CFTC, Corporate Counsel, DOJ, EMIR

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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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Supreme Court Grants Cert in Spokeo Case

The Supreme Court yesterday morning granted Spokeo, Inc.’s petition for a writ of certiorari in the closely watched case of Spokeo, Inc. v. Robins, No. 13-1339. The case presents the question as to whether defendants can be held…more

Article III, Certiorari, FCRA, Federal Jurisdiction, Imminent Harm

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FCPA and Jail - Are Corporate Officers Really at Risk?

On Oct. 31, James McClung, a former Louis Berger International Inc. executive, self-surrendered to the Bureau of Prisons to begin his year-and-a-day sentence for violations of the Foreign Corrupt Practices Act (FCPA). McClung,…more

Bribery, DOJ, FCPA, Guilty Pleas, SEC

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New French Anti-Corruption Law: Companies Doing Business in France Must Beware

On November 8, 2016, France modernized its anti-corruption enforcement regime and adopted the Law on Transparency, the Fight against Corruption and Modernization of Economic Life (known in France as “Sapin II,” named after…more

Anti-Corruption, Bribery, Corporate Counsel, Deferred Prosecution Agreements, FCPA

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Post-Tyson Foods, Defendants Should Take the Offensive in Discovery Sampling

Following the Supreme Court’s ruling in Tyson Foods and in light of the greater emphasis on proportionality in the amended Federal Rules of Civil Procedure, defendants can expect to see an increase in the use of sampling in…more

Class Action, Corporate Counsel, Discovery, Evidence, SCOTUS

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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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BIS Issues Final Rule Altering Encryption Controls

On Sept. 20, 2016, the Bureau of Industry and Security (BIS) published a final rule that revises the Export Administration Regulations (EAR) and the Commerce Control List (CCL), primarily to implement changes that were agreed to…more

BIS, Commerce Control List, EAR, ECCNs, Encryption

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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, Insurance Industry

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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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Important Federal Circuit Decision Provides More Clues on Software Eligibility

On Sept. 13, 2016, the Court of Appeals for the Federal Circuit gave applicants and patentees another tool with which to argue for the patent eligibility of their software innovations, finding that McRO’s lip-synchronizing…more

CLS Bank v Alice Corp, Mayo v. Prometheus, Patent-Eligible Subject Matter, Patents, Section 101

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Former Tuomey CEO Settles with DOJ for $1 Million

The U.S. Department of Justice (DOJ) recently reached a $1 million settlement with Ralph J. Cox III, the former CEO for Tuomey Health System, Inc. (Tuomey), in connection with his involvement in the notable Stark Law case. After…more

CEOs, DOJ, Health Care Providers, Settlement, Settlement Agreements

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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, Motor Vehicles, Section 1983

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The Trans-Pacific Partnership Agreement reached: What does it mean for you?

The United States and 11 other Pacific Rim trading partners recently announced that they have come to a provisional agreement on the wide-ranging trade agreement known as the Trans-Pacific Partnership (“TPP”), which, over time,…more

Apple, Automotive Industry, Child Labor, Collective Bargaining, Copyright Infringement

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DOL Joins SEC in Attack on Severance Agreement Clauses

Companies cannot prohibit their former employees from collecting whistleblower awards, says the DOL in a recently released memo. Moreover, even asking employees to disclaim any knowledge of any legal violations by the employer…more

DOL, Protected Activity, SEC, Severance Agreements, Whistleblowers

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The End of Disclosure-Only Settlements in Securities Class Actions?

After nearly a decade of prominence, disclosure-only settlements may be going extinct. These settlements occur in class action cases arising from the announcement of a merger or acquisition. The plaintiff class alleges that the…more

Acquisitions, Class Action, Corporate Counsel, Disclosure Settlement, Fiduciary Duty

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Yaakov v. FCC – Will TCPA Opt-Out Requirements Be Stricken for Permissive Faxes?

By its express terms, the Telephone Consumer Protection Act (TCPA) applies only to unsolicited faxes. 47 U.S.C. § 227(b)(1)(C) & (a)(5). However, in May 2006, the FCC promulgated new rules concerning fax advertisement…more

Faxes, FCC, Opt-Outs, Prior Express Consent, Retroactive Waiver

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Options to Help Oklahoma Alleviate Its Emerging Oilfield Water Crisis

The Oklahoma Corporation Commission has restricted injection well activity over a combined zone of nearly 10,000 square miles—approximately the size of Massachusetts (Exhibit 1). In Central Oklahoma, the OCC seeks to reduce…more

Contamination, Drinking Water, Energy Sector, Fracking, Oil & Gas

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Yes, Attorneys Too Can Blow the Whistle: But When and How Hard?

According to the United States Securities and Exchange Commission (“SEC” or the “Agency”), an attorney – or any individual, for that matter – should not have to first report misconduct to the SEC to fall under the protections of…more

Anti-Retaliation Provisions, Attorney-Client Privilege, Dodd-Frank, Hiring & Firing, SEC

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Washington’s New Provisions on Advance Waivers of Corporate Opportunities: Opening the Road for Investors

On April 17, 2015, Governor Inslee signed a bill into law that effectively encourages venture capital and private equity funds to invest in Washington corporations. Senate Bill 5031 (“SB 5031”) amended the Washington Business…more

Board of Directors, Corporate Officers, Governor Inslee, New Legislation, Private Equity

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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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Navigating Through the Smoke: The Intersection of Marijuana Legalization and Employment Law

Public approval for medical and recreational marijuana is at an all-time high. In November 2016, four states voted to legalize recreational marijuana: California, Nevada, Massachusetts and Maine (although, at the time of this…more

ADA, Decriminalization of Marijuana, Drug Testing, Employer Liability Issues, Employment Policies

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Re-examining the M&A Playbook for Non-consenting Stockholders in Light of Cigna Health

In a case that is likely to impact M&A structuring for certain transactions, the Delaware Court of Chancery held that (1) stockholder release obligations found only in a letter of transmittal and not in the related merger…more

CIGNA, Consideration, Delaware General Corporation Law, Healthcare, Indemnification Clauses

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More Than the Leaves Are Changing: Clinical Trial Research Regulations and Policies Get a Fall Makeover

The Food and Drug Administration (FDA) and National Institutes of Health (NIH) have recently finalized or signaled intent to finalize numerous proposals that promise to change the landscape of clinical trial reporting, clinical…more

Clinical Trials, FDA, HHS, Institutional Review Board (IRB), NIH

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OSHA Announces Significant Increases in Civil Penalties, Marking First Time Maximum Fines for Violations Have Risen Since 1990

On November 2, 2015, President Barack Obama signed the Bipartisan Budget Act of 2015. Obscured within the lengthy bill is a provision that not only mandates a current increase in the penalties for violations of standards…more

Bipartisan Budget, OSHA, Penalties, Workplace Investigations, Workplace Safety

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Resistance Is Futile: CMS Gets Serious About Antibiotic-Resistant Bacteria

Antibiotics and similar drugs, known more broadly as antimicrobial agents, are an instrumental weapon in the healthcare armory, rendering once-lethal infections treatable, and dramatically reducing instances of sepsis and…more

Antibiotic Resistance, Antibiotics, CMS, Critical Access Hospitals, Health Care Providers

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[Webinar] Defend Trade Secrets Act and Ex Parte Seizures: Strategic Considerations - July 20th, 1:00p.m. ET

The Defend Trade Secrets Act recently passed in Congress is designed to expand the toolbox for trade secret protection, and it necessitates changes to agreements and policies with contractors, consultants and employees…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Employment Policies, Inevitable Disclosure Doctrine, Trade Secrets

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The Donor Advised Fund Alternative to a Family Foundation

There are several gifting vehicles that provide donors and their families with the opportunity to participate in their philanthropy on an ongoing basis. Frequently, families will consider creating and funding a private family…more

Charitable Deductions, Charitable Donations, Donor-Advised Funds (DAFs), Internal Revenue Code (IRC)

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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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Does FTC Vacancy Affect Ability to Resolve Issues?

Many have been asking in the last few days what the effect will be of Commissioner Julie Brill’s announced resignation from the Federal Trade Commission (“FTC”). Will it change things as the Supreme Court seems to be changing…more

FTC, FTC Act, Resignation

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D.C. Circuit Further Restricts the Scope of Foreign Sovereign Liability for Acts of State-Owned Companies

Those doing business with foreign governments would be wise to adhere to the dictate of caveat venditor: seller beware. Cross-border “government” contracting often involves doing business not directly with the sovereign itself,…more

Arbitrators, Breach of Contract, Corporate Counsel, International Arbitration, International Litigation

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Recovering Attorney's Fees for Breach of Contract Under Texas Law Recent Cases Say No!

In the energy sector, many contracts contain Texas choice of law provisions, or are performed in Texas, which means that Texas law probably applies. The conventional wisdom in Texas is that a prevailing party can recover its…more

American Rule, Attorney's Fees, Breach of Contract, Prevailing Party

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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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The ABI Commission on Business Bankruptcy Reform: Paying "Critical Vendors" - Will Congress Finally Act?

This is the second in a series of Alerts regarding the proposals made by the American Bankruptcy Institute’s Select Commission to Reform Chapter 11 Business Bankruptcies. It covers the Commission’s recommendations about the…more

American Bankruptcy Institute, Bankruptcy Code, Bankruptcy Reform, Commercial Bankruptcy, Creditors

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Unanimous FTC Finds LabMD’s Data Security Practices Violated Section 5 of the FTC Act

On July 29, 2016, a unanimous Federal Trade Commission (“FTC” or “Commission”) issued its Opinion and Final Order reversing the decision of an administrative law judge (“ALJ”) and holding that LabMD engaged in “unfair” practices…more

ALJ, Data Security, Enforcement Actions, FTC, FTC Act

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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, Limited Liability Company (LLC), Members, New Legislation, Waivers

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EPA Releases Revised Ozone NAAQS

On October 1, the Environmental Protection Agency issued a prepublication version of a final rule establishing a new National Ambient Air Quality Standard (NAAQS) for ozone. The final rule lowers the primary and secondary…more

Air Quality Standards, Clean Air Act, Compliance, Environmental Policies, EPA

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The Seventh Circuit Revisits Standing for Data Breach Class Actions

One obstacle for named plaintiffs in proposed data breach class actions is the extent to which plaintiffs must allege an injury-in-fact to have standing. Disputes often arise about whether proactive efforts to mitigate against…more

Article III, Class Action, Corporate Counsel, Data Breach, Injury-in-Fact

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Foreign Corrupt Practices Act 2015 Year-End Update

Both the United States Department of Justice (DOJ) and the United States Securities and Exchange Commission (SEC) have continued their focus on anticorruption enforcement in 2015. Although there was a decline in enforcement…more

Corporate Fraud, Corruption, Criminal Prosecution, Deferred Prosecution Agreements, DOJ

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ONC Contracting Guide Aims to Restore Balanced Bargaining Between Providers and EHR Vendors

The HHS Office of the National Coordinator for Health Information Technology (ONC) recently published a contracting Guide to assist healthcare providers when entering into electronic health record (EHR) contracts with EHR…more

EHR, Health Care Providers, HHS, HIPAA, ONC

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Is That a Carrot or a Stick in Your Hand? The Third Circuit Examines the Line Between Competition and Coercion in De Facto Exclusive Dealing Agreements

We recently wrote about attempts to force exclusivity onto customers. But firms with large or dominant market shares often must walk a fine line between properly offering customers percentage-based discounts and improperly…more

Discount Pricing, Exclusive Dealing Agreements, Pharmaceutical Industry, Sherman Act, The Clayton Act

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Powerball for H-1B Visas

Lottery mania has been sweeping the nation as Powerball winnings exceeded $1 billion for the first time. For highly skilled foreign nationals and the employers who desire to employ them, a different kind of lottery mania is…more

DOL, H-1B, Popular, USCIS, Work Visas

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FinCEN Imposes Significant Fines In a Warning to Adhere to Due Diligence Requirements

In its recent decision to impose $20 million in sanctions upon Oppenheimer and Co. for the company’s failure to maintain internal controls to promote enforcement of the Bank Secrecy Act (BSA), FinCEN revealed the emphasis it…more

Bank Secrecy Act, Due Diligence, Enforcement Actions, Financial Institutions, FinCEN

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Bitcoin and the Like: Further Tax Developments to Monitor

Virtual currency developments continue to emerge, including state tax guidance, a court decision on deductibility of losses, and the Uniform Fiduciary Access to Digital Assets Act (the “Act”). State Tax Guidance - The New Jersey…more

Capital Losses, Fiduciary Duty, State Taxes, Virtual Currency

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Pennsylvania Governor Proposes Severance Tax

Pennsylvania Governor Tom Wolf has proposed a new state severance tax on natural gas drilling. The measure, which the governor introduced as a means to fund the state’s education system, would impose a 5 percent tax on the value…more

Natural Gas, Oil & Gas, Proposed Legislation, Severance Tax, Well Drilling

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Oil and Gas: Managing Personnel Reductions and Asset Sales Under Increasing Government Audit and Enforcement Scrutiny

As oil enters the ninth month of sub-$50 per barrel prices – and natural gas languishes below $3 per MMBtu – the oil and gas industry confronts a challenging time of transition. Layoffs have already happened (or are imminently…more

Audits, Energy Sector, Natural Gas, Oil & Gas, Recordkeeping Requirements

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Government Contracts Quarterly Update February 2016

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. In This Issue..…more

Bid Protests, Cybersecurity, Department of Defense (DOD), DFARS, False Claims Act (FCA)

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Sixth Circuit Rejects Class Action Settlement With Key Documents Under Seal

All’s not fair in secretive class-action settlements. If class actions are the exception, then class-action settlements are a reflection of that exception. Specifically, the secrecy that might otherwise accompany dispute…more

Class Action,