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Illinois Releases New Draft of Hydraulic Fracturing Rules

Last Friday, the Illinois Department of Natural Resources (IDNR) released its highly anticipated revised hydraulic fracturing rules. The IDNR had taken the past year to “re-tool” its oil and gas regulations, and took into…more

Fracking, New Regulations, Oil & Gas, Public Comment, Well Drilling

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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 Proposed Anti-Kickback Safe Harbors and CMP Regulations: The End of Frustration or Just the Beginning?

On October 3, 2014, the U.S. Department of Health and Human Services Office of Inspector General (OIG) published an unexpected, yet long-awaited, set of proposed rules that would add new anti-kickback law safe harbors, protect…more

Affordable Care Act, Ambulance Providers, Anti-Kickback Statute, CMP Law, Gainsharing

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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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An Update on Recent Oil- and Gas-Related Decisions in Ohio

Due to increased drilling activity in the Utica shale formation, state and federal courts in Ohio and the 6th Circuit have recently issued decisions related to local drilling regulations, drilling permits, leasing, indemnity…more

Arbitration, Commercial Leases, Indemnity Agreements, Local Ordinance, Mineral Leases

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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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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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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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Ninth Circuit Upholds TERO Requirements in Indian Country Mineral Leasing

Conducting commercial operations on tribal lands can pose significant challenges for non-Indian companies. Demonstrating sensitivity to the cultural nuances of Native American society and navigating the complex web of federal…more

Discrimination, EEOC, Employer Liability Issues, Fourteenth Amendment, ICRA

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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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U.S. Treasury Department Takes Action to Slow (But Not Stop) Corporate Inversions: A Summary for Executives

What is an inversion? An inversion is a transaction that results in an existing U.S. company becoming a foreign company or becoming a subsidiary of a foreign parent. Historically, inversions involved U.S. companies…more

AbbVie, Asset Stripping, Burger King, Controlled Foreign Corporations, Corporate Counsel

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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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Oil and Gas Developer Challenges an Extreme Waste Disposal Ordinance Enacted by a Pennsylvania Township

Oil and gas developer Pennsylvania General Energy Company, LLC (“PGE”) recently filed suit against Grant Township in Indiana County, Pennsylvania, alleging that a waste disposal ordinance enacted by the Township violates the…more

Energy, Environmental Policies, Oil & Gas, Waste, Waste Disposal

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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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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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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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All Native Advertising is Not Equal: Why that Matters Under the First Amendment and Why it Should Matter to the FTC – Part V

—PART V— Not all Native Advertising May Be Commercial Speech under the First Amendment - If there is one thing clear from the case law, it is that the commercial speech analysis under the First Amendment is a fact…more

Advertising, Commercial Speech, Content Marketing, First Amendment, FTC

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Ninth Circuit Upholds TERO Requirements in Indian Country Mineral Leasing

Conducting commercial operations on tribal lands can pose significant challenges for non-Indian companies. Demonstrating sensitivity to the cultural nuances of Native American society and navigating the complex web of federal…more

Discrimination, EEOC, Employer Liability Issues, Fourteenth Amendment, ICRA

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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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Another Federal Court Decertifies FLSA Collective Action of Hospital Workers Challenging Auto-Deduct Policy

We have previously discussed that, while medical providers have become a common target of plaintiffs asserting wage and hour claims arising out of so-called “auto-deduct” policies, more and more courts are realizing that the…more

Auto-Deduct Policy, Collective Actions, FLSA, Healthcare Professionals, Hospitals

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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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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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Late Push to Reauthorize CHIP Funding This Session

Approximately eight million children currently covered by the Children’s Health Insurance Program (CHIP) may lose access to their pediatric-specific benefits and provider networks if legislation is not passed to extend federal…more

Affordable Care Act, CHIP, Federal Funding, Healthcare, Legislative Agendas

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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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The SEC Goes Global - With 30 Million Reasons For Whistleblowers To Report Violations As Soon As Possible

On Monday, September 22, 2014, the Securities and Exchange Commission (SEC) announced an award to an anonymous foreign whistleblower of an estimated $30 million-plus payment that more than doubles the largest previous amount…more

Dodd-Frank, SEC, Whistleblower Awards, Whistleblowers

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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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OIG Proposed Anti-Kickback Safe Harbors and CMP Regulations: The End of Frustration or Just the Beginning?

On October 3, 2014, the U.S. Department of Health and Human Services Office of Inspector General (OIG) published an unexpected, yet long-awaited, set of proposed rules that would add new anti-kickback law safe harbors, protect…more

Affordable Care Act, Ambulance Providers, Anti-Kickback Statute, CMP Law, Gainsharing

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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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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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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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OSHA Expands Employers' Reporting Requirements for Work-Related Injuries and Fatalities

On Sept. 11, 2014, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced revisions to its rule that requires employers to notify OSHA when employees suffer a work-related hospitalization…more

Bodily Injury, Compliance, OSHA, Reporting Requirements, Workplace Injury

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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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Uncertainty Prevails as Illinois Delays a Decision on Fracing Regulations

Last week, Illinois’s Joint Committee on Administrative Rules voted to push back its decision about whether to approve proposed rules governing horizontal fracturing operations until November 6. The delay promises to fuel…more

Energy, Energy Policy, Fracking, 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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The California Divide: Federal Courts Refuse to Follow State Supreme Court’s Iskanian Decision

One of the last barriers to full enforcement of arbitration agreements with class action waivers sustained another blow last week. A California federal district court disagreed with the California Supreme Court in holding that…more

Arbitration, AT&T Mobility v Concepcion, Class Action Arbitration Waivers, Employment Contract, 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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Challenging Delegated Top-Level Domains: ICANN’s Trademark Post Delegation Dispute Resolution Procedure

This year, hundreds of new generic top-level domains (gTLDs) are changing the landscape of the Internet. The long-awaited result of ICANN’s new gTLD program, top-level domains such as .NYC, .WINE, and .WTF will now join the…more

Brand, Domain Names, gTLD, ICANN, Internet

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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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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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2014 Mid-Year Report Securities Litigation and Regulatory Enforcement

Welcome to the 2014 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. Its purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we believe…more

Banking Sector, Banks, CFTC, Commodities, Deferred Prosecution Agreements

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California’s Latest Amendments to Its Data Security Breach Notification Law – Much Ado about Nothing?

On September 30, 2014, California Governor, Jerry Brown, signed Assembly Bill 1710 into law, amending California’s existing personal information privacy laws. A.B. 1710 makes several changes to existing laws including..…more

Breach Notification Rule, Corporate Counsel, Data Breach, Data Protection, Electronically Stored Information

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Pennsylvania Public Utilities Commission Appeals Act 13 Ruling to State Supreme Court

The Pennsylvania Public Utilities Commission (PPUC) is asking the state Supreme Court to review a July ruling by the Pennsylvania Commonwealth Court that strips PPUC of its authority to review and approve local drilling…more

Appeals, Local Ordinance, Public Utilities Commission, Utilities Sector, Well Drilling

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California Extends Deadline for Reporting Breaches to the CDPH from 5 to 15 Business Days

On September 18, 2014, California Governor, Jerry Brown, signed Assembly Bill 1755 (“AB1755”) into law, amending breach notification provisions in the California Health and Safety Code applicable to licensed clinics, health…more

Breach Notification Rule, CDPH, Data Breach, Data Protection

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Department of Commerce and OFAC Continue Imposing Hefty Sanctions on Russia, While Russia Retaliates with Own Sanctions

On August 6, the U.S. Department of Commerce (the “Commerce Department”) issued new regulations, implementing additional sanctions against Russia and introducing new restrictions on exports for its energy sector. These new…more

Foreign Policy, OFAC, Russia, Sanctions, U.S. Commerce Department

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California Continues to Regulate Privacy and Advertising to Minors in New Law Regulating School-related Online Services

On September 29, 2014, California Governor Jerry Brown signed SB 1177 into law, effective Jan 1, 2015. The new privacy and advertising regulation goes beyond FERPA, the federal student privacy law, and existing state student…more

Advertising, FERPA, New Legislation, Online Advertisements, Online Education

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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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North Dakota Reminds Negotiators: Be Careful What You Say

Do you think that what you say when negotiating a mineral lease does not matter once the agreement is inked and contains boilerplate language declaring it to “supersede all prior negotiations” and “be the complete agreement…more

Mineral Leases, Mineral Rights, Natural Resources, Negotiations, Oil & Gas

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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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2014 Mid-Year Report Securities Litigation and Regulatory Enforcement

Welcome to the 2014 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. Its purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we believe…more

Banking Sector, Banks, CFTC, Commodities, Deferred Prosecution Agreements

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Medical Information More Valuable to Hackers Than Credit Card Numbers

In light of the recently reported large healthcare data breaches that have resulted in the potential theft of the personal information of millions of patients, the FBI warned healthcare providers yet again of the dangers of…more

Cyber Attacks, Electronic Medical Records, FBI, Hackers, Health Care Providers

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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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The SEC Goes Global - With 30 Million Reasons For Whistleblowers To Report Violations As Soon As Possible

On Monday, September 22, 2014, the Securities and Exchange Commission (SEC) announced an award to an anonymous foreign whistleblower of an estimated $30 million-plus payment that more than doubles the largest previous amount…more

Dodd-Frank, SEC, Whistleblower Awards, Whistleblowers

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Addressing Section 101 Issues Through Reissue

The contraction of patent eligible subject matter under 35 U.S.C. 101 that Alice, Mayo, Bilski, and other recent court cases have triggered has placed a cloud of uncertainty over a large number of patents. Fortunately, though,…more

Patent Infringement, Patent Litigation, Patent-Eligible Subject Matter, Patents, Section 101

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DOL Proposes Rule Requiring Federal Contractors and Subcontractors to Submit Equal Pay Reports

On April 8, 2014, President Obama issued a Memorandum, “Advancing Pay Equality Through Compensation Data Collection,” in which he instructed the U.S. Department of Labor (DOL) to propose a rule within 120 days to collect summary…more

Barack Obama, Data Collection, DOL, Equal Pay, Federal Contractors

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Massachusetts Nurses Association Battles Hospital Over Influenza Vaccine

On September 22, 2014, the Massachusetts Nurses Association (MNA) filed a complaint in Massachusetts Superior Court seeking an injunction against implementation of a new mandatory influenza vaccination policy by Brigham &…more

Adverse Employment Action, Employment Policies, Health Care Providers, Healthcare, Hospitals

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Another Step in the Long March from Campbell v. Acuff-Rose toward Fair Use Free-for-All?

TVEyes is a media-monitoring subscription service that “records the entire content of television and radio broadcasts and creates a searchable database of that content.” This service allows subscribers to search keywords or…more

Authors Guild, Broadcasting, Copyright, Copyright Infringement, Databases

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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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What Companies Can Do to Protect Themselves in the Face of Yet Another Massive Data Breach

Last week it was reported that a small group of Russian computer hackers illegally obtained an unprecedented quantity of internet credentials, including 1.2 billion username and password combinations, and over 500 million unique…more

Cyber Attacks, Cybersecurity, Data Breach, Data Protection, Hackers

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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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Medicaid ACOs: States’ Answer to Escalating Costs?

States increasingly are experimenting with the use of Accountable Care Organizations (ACOs) in their Medicaid programs as a possible avenue to curb the escalating costs of providing care to expanding Medicaid populations…more

ACOs, Health Care Providers, Healthcare, Medicaid, Medicare

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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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Mobilizing on Mobile Apps: The FTC’s Comment to the CFPB Signals its Priorities

In recent months, the Federal Trade Commission (“FTC”) has been steadily ramping up its efforts to monitor, regulate, and provide best practice guidance in the rapidly expanding field of mobile applications. On September 10,…more

CFPB, Consumer Financial Products, Cramming, Data Brokers, Data Protection

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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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2014 Mid-Year Report Securities Litigation and Regulatory Enforcement

Welcome to the 2014 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. Its purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we believe…more

Banking Sector, Banks, CFTC, Commodities, Deferred Prosecution Agreements

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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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Why Worry About a Little Skimmer?

Merchants—rightfully so—are worried about securing their payment card environments so that their name does not appear in a headline discussing how millions of cards were stolen from them. Faced with the challenge of evaluating…more

Corporate Liability, Data Collection, Debit and Credit Card Transactions, Marketing, Mobile Payments

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Texas Supreme Court to Hear Defamation Case Involving Fracking Claims

On August 21, 2014, the Texas Supreme Court agreed to hear oral arguments in an ongoing dispute between a homeowner and Texas-based oil driller Range Resources Corp. The case is not a typical homeowner vs. oil driller lawsuit,…more

Anti-SLAPP, Appeals, Contamination, Defamation, Disparagement

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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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2014 Mid-Year Report Securities Litigation and Regulatory Enforcement

Welcome to the 2014 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. Its purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we believe…more

Banking Sector, Banks, CFTC, Commodities, Deferred Prosecution Agreements

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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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Health Plan Identifiers – November 5, 2014 Deadline

What Is a Health Plan Identifier (HPID)? A health plan identifier is a standardized 10-digit number that is unique to a plan. Who Must Obtain an HPID in the Coming Weeks? Large “controlling health plans”…more

Controlling Health Plan, EAP, Employee Assistance Programs, Flexible Spending Accounts, Health Insurance

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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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Colorado State Court Strikes Down a Second City-Wide Fracking Ban

A Colorado state judge recently struck down a city’s voter-approved moratorium on hydraulic fracturing, or “fracking.” This marks the second time a Colorado judge has quashed a city’s fracking ban within a matter of two weeks…more

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

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Pennsylvania Public Utilities Commission Appeals Act 13 Ruling to State Supreme Court

The Pennsylvania Public Utilities Commission (PPUC) is asking the state Supreme Court to review a July ruling by the Pennsylvania Commonwealth Court that strips PPUC of its authority to review and approve local drilling…more

Appeals, Local Ordinance, Public Utilities Commission, Utilities Sector, Well Drilling

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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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It Is Finally Here-the Sun Shines on a New Era

The Centers for Medicare and Medicaid Services (CMS) publicly launched a database this week detailing the payments doctors and teaching hospitals have received from drug and medical device manufacturers. Under the Physician…more

Affordable Care Act, CMS, Health Care Providers, Hospitals, Manufacturers

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Predictive coding after keyword screening!? Don’t miss the point of Bridgestone Americas

Magistrate Judge Joe B. Brown’s recent order permitting predictive coding in Bridgestone Americas v. International Business Machines Corporation has received a lot of attention because it allowed the use of predictive coding on…more

Discovery, Document Productions, Keyword Search, Predictive Coding

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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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California’s Latest Amendments to Its Data Security Breach Notification Law – Much Ado about Nothing?

On September 30, 2014, California Governor, Jerry Brown, signed Assembly Bill 1710 into law, amending California’s existing personal information privacy laws. A.B. 1710 makes several changes to existing laws including..…more

Breach Notification Rule, Corporate Counsel, Data Breach, Data Protection, Electronically Stored Information

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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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2014 Mid-Year Report Securities Litigation and Regulatory Enforcement

Welcome to the 2014 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. Its purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we believe…more

Banking Sector, Banks, CFTC, Commodities, Deferred Prosecution Agreements

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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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Conservative Kansas Joins the Liberal Ninth Circuit in Rejecting the Independent Contractor Classification of Delivery Drivers

Last month we blogged about two Ninth Circuit opinions that deemed FedEx Ground drivers to be employees rather than independent contractors under California and Oregon law. Last week the Kansas Supreme Court joined them,…more

Corporate Counsel, Delivery Drivers, Employee Definition, Employer Liability Issues, FedEx

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Ninth Circuit Upholds TERO Requirements in Indian Country Mineral Leasing

Conducting commercial operations on tribal lands can pose significant challenges for non-Indian companies. Demonstrating sensitivity to the cultural nuances of Native American society and navigating the complex web of federal…more

Discrimination, EEOC, Employer Liability Issues, Fourteenth Amendment, ICRA

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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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The Empire State Strikes Back: New York Proposes Rules for Virtual Currency

The New York State Department of Financial Services (the “Department”) recently published its proposed rules and regulations (the “Proposed Rules”) for vendors conducting business involving virtual currency. The Proposed Rules…more

Advertising, AML/CFT, Bitcoins, BitLicense, Chief Compliance Officers

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The California Divide: Federal Courts Refuse to Follow State Supreme Court’s Iskanian Decision

One of the last barriers to full enforcement of arbitration agreements with class action waivers sustained another blow last week. A California federal district court disagreed with the California Supreme Court in holding that…more

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

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Provider Competition Matters—Even for “Reference Pricing”

In a recent blog post, three Federal Trade Commission (FTC) economists splashed some cold water on advocates of “reference pricing” that seem to imply that such pricing “will increase competition between providers.” In the FTC…more

Employer Group Health Plans, FTC, Health Insurance, Reference Pricing

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In “Zombie” Class Action, Seventh Circuit Requires Plaintiffs to Present Evidence to Prove Home-State Exception to CAFA Jurisdiction

On Tuesday, the Seventh Circuit decided Myrick v. Wellpoint, Inc., Nos. 12-3882, 13-2230, 2014 WL 4073065 (Aug. 19, 2014), which highlights the necessity held that plaintiffs were required to produce evidence—and not merely…more

CAFA, Class Action, Jurisdiction

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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 California Court of Appeal Finds That an Employee Expense is an Employee Expense is an Employee Expense

On Tuesday, August 12, 2014, the California Court of Appeal (Second Appellate District) published a decision that could impact many employers in California. The threshold question at issue in the case was whether an employer was…more

Appeals, Cell Phones, Employee Rights, Employer Liability Issues, Out-of-Pocket Expenses

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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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CMS Offer Deadline to Settle Hospital Inpatient Claim Appeals Draws Near

In an attempt to clear the backlog of appeals of short inpatient stays, CMS recently announced a settlement offer for hospitals with claims currently pending in the appeals process. In exchange for withdrawal of their appeals,…more

CMS, Deadline, Healthcare, Hospitals, Inpatient Billing

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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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When Acting to Prevent Data Breaches and Comply with Privacy Laws, Remember Overarching Employee Rights

The grocery business may be “fresh and easy,” but drafting a confidentiality and data protection policy that withstands the scrutiny of the current National Labor Relations Board (NLRB) is not. The NLRB, in its recent 2-1 Fresh…more

Confidential Information, Data Protection, Employee Rights, Employer Liability Issues, Employment Policies

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Court Takes Cue from Comcast v. Behrend, Certifies Class as to Liability but not Damages

In what appears to be an increasingly common practice since the Supreme Court decided Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), the Southern District of New York recently certified a class as to liability, but rejected…more

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

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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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California District Court Finds Bankrupt Named Plaintiffs Not Adequate Representatives

Anyone questioning whether the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has had an impact need look no further than the decision in Alakozai v. Chase Investment Services Corp., Case No…more

Class Action, Consumer Bankruptcy, Dukes v Wal-Mart, Employer Liability Issues, Misclassification

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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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Health Plan Identifiers – November 5, 2014 Deadline

What Is a Health Plan Identifier (HPID)? A health plan identifier is a standardized 10-digit number that is unique to a plan. Who Must Obtain an HPID in the Coming Weeks? Large “controlling health plans”…more

Controlling Health Plan, EAP, Employee Assistance Programs, Flexible Spending Accounts, Health Insurance

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2014 Mid-Year Report Securities Litigation and Regulatory Enforcement

Welcome to the 2014 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. Its purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we believe…more

Banking Sector, Banks, CFTC, Commodities, Deferred Prosecution 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, 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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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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NLRB “Unfriends” Employer Over Facebook “Like”

On August 25, the National Labor Relations Board found in Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Sanzone, Case No. 34-CA-012915, and Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Spinella, Case No…more

Employer Liability Issues, NLRA, NLRB, Social Media, Social Media Policy

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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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Health Plan Identifiers – November 5, 2014 Deadline

What Is a Health Plan Identifier (HPID)? A health plan identifier is a standardized 10-digit number that is unique to a plan. Who Must Obtain an HPID in the Coming Weeks? Large “controlling health plans”…more

Controlling Health Plan, EAP, Employee Assistance Programs, Flexible Spending Accounts, Health Insurance

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Environmental Group Calls for Tighter Regulation of Frac Sand

The U.S. shale boom has generated a boom in a related industry: “frac sand.” Sand has become an integral component of hydraulic fracturing. Oil companies use sand as a “proppant”: after shale formations are injected with water…more

Frac Sand, Fracking, Natural Gas, Oil & Gas, OSHA

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New Hampshire Man Pleads Guilty Regarding Accounts in Switzerland, Israel, and Jersey

On October 20, 2014, Menashe Cohen pleaded guilty in New Hampshire federal court to one count of filing a false income tax return for failing to report the existence of his Swiss and Israeli bank accounts on his 2009 tax return…more

Criminal Prosecution, Foreign Banks, Income Taxes, Tax Evasion, Tax Fraud

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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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The Empire State Strikes Back: New York Proposes Rules for Virtual Currency

The New York State Department of Financial Services (the “Department”) recently published its proposed rules and regulations (the “Proposed Rules”) for vendors conducting business involving virtual currency. The Proposed Rules…more

Advertising, AML/CFT, Bitcoins, BitLicense, Chief Compliance Officers

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Environmental Groups Ramp-up the Crude-by-Rail Fight in the Courtroom

Bakken crude producers and midstream transportation companies already experience transportation woes related to inadequate pipeline infrastructure, railroad capacity, tank car supply, rail accidents, and new regulations. But…more

Bakken Shale, DOT, EarthJustice, ForestEthics, Kinder Morgan

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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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Will Using “Apple Pay” Keep the Data Breach Away?

Recently Apple unveiled its latest iPhones and other new products. While the big screens on the new iPhones are making the splashy headlines, perhaps the most interesting reveal, from a data privacy perspective, is not a shiny…more

Apple, Apple Pay, Data Breach, Data Protection, Internet Retailers

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U.S. Treasury Department Takes Action to Slow (But Not Stop) Corporate Inversions: A Summary for Executives

What is an inversion? An inversion is a transaction that results in an existing U.S. company becoming a foreign company or becoming a subsidiary of a foreign parent. Historically, inversions involved U.S. companies…more

AbbVie, Asset Stripping, Burger King, Controlled Foreign Corporations, Corporate Counsel

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All Native Advertising is Not Equal: Why that Matters Under the First Amendment and Why it Should Matter to the FTC – Part V

—PART V— Not all Native Advertising May Be Commercial Speech under the First Amendment - If there is one thing clear from the case law, it is that the commercial speech analysis under the First Amendment is a fact…more

Advertising, Commercial Speech, Content Marketing, First Amendment, FTC

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Hospital’s Failure to Abate Patient and Visitor Violence Against Employees Results in OSHA Penalty

Hospitals, remarkably, are one of the most hazardous places to work. According to the U.S. Bureau of Labor Statistics, hospital workers have an estimated rate of 8.3 assaults per 10,000 workers compared to an estimated 2…more

Assault, Employer Liability Issues, Enforcement Actions, Hospitals, NIOSH

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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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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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2014 Mid-Year Report Securities Litigation and Regulatory Enforcement

Welcome to the 2014 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. Its purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we believe…more

Banking Sector, Banks, CFTC, Commodities, Deferred Prosecution Agreements

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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

See All Updates »

Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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2014 Mid-Year Report Securities Litigation and Regulatory Enforcement

Welcome to the 2014 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. Its purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we believe…more

Banking Sector, Banks, CFTC, Commodities, Deferred Prosecution Agreements

See All Updates »

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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OIG Proposed Anti-Kickback Safe Harbors and CMP Regulations: The End of Frustration or Just the Beginning?

On October 3, 2014, the U.S. Department of Health and Human Services Office of Inspector General (OIG) published an unexpected, yet long-awaited, set of proposed rules that would add new anti-kickback law safe harbors, protect…more

Affordable Care Act, Ambulance Providers, Anti-Kickback Statute, CMP Law, Gainsharing

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It Is Finally Here-the Sun Shines on a New Era

The Centers for Medicare and Medicaid Services (CMS) publicly launched a database this week detailing the payments doctors and teaching hospitals have received from drug and medical device manufacturers. Under the Physician…more

Affordable Care Act, CMS, Health Care Providers, Hospitals, Manufacturers

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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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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

See All Updates »

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

See All Updates »

What Questions CEOs and Board Members Should Be Asking Themselves About Tax Inversions

Partner and Chair of BakerHostetler's Tax Group, Paul Schmidt, discusses tax inversions. What CEOs and Board of Directors should be asking themselves?…more

Board of Directors, Corporate Officers, Corporate Taxes, Inversion, Popular

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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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District of Arizona Rethinks NEPA’s Zone of Interests in Light of Recent Supreme Court Opinion on “Prudential” Standing

On September 30, 2014, the United States District Court for the District of Arizona (Campbell, D.J.) issued an order in Yount v. Salazar, Nos. 11-8171 et al., 2014 WL 4904423 (D. Ariz. Sept. 30, 2014). As part of this order, the…more

Mining, National Parks, NEPA, Zone of Interests

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Department of Commerce and OFAC Continue Imposing Hefty Sanctions on Russia, While Russia Retaliates with Own Sanctions

On August 6, the U.S. Department of Commerce (the “Commerce Department”) issued new regulations, implementing additional sanctions against Russia and introducing new restrictions on exports for its energy sector. These new…more

Foreign Policy, OFAC, Russia, Sanctions, U.S. Commerce Department

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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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Suit by Denton, Texas, Royalty Interest Owners Could be Harbinger of More Suits If Proposed Hydraulic Fracturing Ban Passes

Ahead of the November 4th vote that could make it the first city in Texas to ban hydraulic fracturing, the City of Denton has been sued by a group of royalty interest owners claiming that the city’s current temporary ban…more

Energy Market, Fracking, Fracking Bans, Oil & Gas, Private Property Rights

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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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Foreign Corrupt Practices Act - 2014 Mid-Year Update

The first half of 2014 has seen several important developments in the enforcement of the Foreign Corrupt Practices Act (“FCPA”) as well as other anti-corruption laws worldwide. The FCPA has been in existence for more than 35…more

Compliance, DOJ, Enforcement, Enforcement Actions, FCPA

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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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Are you—or someone you love—a content hoarder?

Hoarding is defined clinically as embodying “a persistent difficulty discarding or parting with possessions because of a perceived need to save them.” That accumulation occurs regardless of the actual value associated with the…more

Electronically Stored Information

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Medical Information More Valuable to Hackers Than Credit Card Numbers

In light of the recently reported large healthcare data breaches that have resulted in the potential theft of the personal information of millions of patients, the FBI warned healthcare providers yet again of the dangers of…more

Cyber Attacks, Electronic Medical Records, FBI, Hackers, Health Care Providers

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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—or someone you love—a content hoarder?

Hoarding is defined clinically as embodying “a persistent difficulty discarding or parting with possessions because of a perceived need to save them.” That accumulation occurs regardless of the actual value associated with the…more

Electronically Stored Information

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National Highway Traffic Safety Administration Considers Privacy Implications for New Vehicle-to-Vehicle Technology

The Department of Transportation’s National Highway Traffic Safety Administration (“NHTSA”) announced in 2014 that it would begin steps toward implementing vehicle-to-vehicle (“V2V”) technology with an aim toward decreasing the…more

Car Accident, DOT, NHTSA, Privacy Concerns, Roads

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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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Background Check Questions: 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

Background Checks, Ban the Box, Criminal Background Checks, Employer Liability Issues, Hiring & Firing

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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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