Davis Wright Tremaine LLP

Screenwriter SLAPPs Down Libel-in-Fiction Claim

In a victory for all authors of fiction, a screenwriter of the film “What Maisie Knew” has successfully defended a lawsuit that sought to hold him liable for defamation based on the portrayal of a character drawn from an 1897…more

Anti-SLAPP, Books, Defamation, Film Industry, First Amendment

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Where’s the (TCPA) Harm in That?

Following the U.S. Supreme Court’s ruling in Spokeo v. Robins that plaintiffs must allege a concrete and particularized injury to meet Article III standing requirements, federal district courts across the country are beginning…more

Article III, Corporate Counsel, Debt Collection, Injury-in-Fact, Robocalling

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Oregon Tiered Minimum Wage Increase Effective, July 1, 2016

Oregon’s new minimum wage law which phases in wage increases over a six-year period starts, July 1, 2016. The minimum wage for medium and high density counties – listed below – rises to $9.75. The minimum wage for low density…more

Employer Liability Issues, Minimum Wage, New Regulations, Wage and Hour

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New California Laws Affecting Outpatient Surgery Settings Go Into Effect January 1, 2016

New Development - California Senate Bill 396 (SB 396), which strengthened requirements for outpatient clinics such as ambulatory surgery centers, was recently signed into law and becomes effective January 1, 2016…more

Credentialing, Healthcare, Inspection Rights, New Legislation, Outpatient Services

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New Lifeline Rules to Become Effective Beginning February 4

Last summer, the FCC adopted new rules for the Lifeline program in its Second Order and NPRM (see our prior analysis of the order), including: the retention of eligibility documentation (such as scans of food stamp cards); an…more

ETCs, FCC, Lifeline Program, NPRM, OMB

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California Beefs Up Encryption & Notice in Data Breach Law

On October 8, 2015, California Governor Jerry Brown signed A.B. 964 and S.B. 570 into law, a pair of bills that amended the Golden State’s data breach notification statute (Ca. Civ. Code § 1798.82)…more

Data Breach, Encryption, New Legislation, Posting Requirements, State Data Breach Notification Statutes

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M.D. Phone Home: New Legislation Expands Telemedicine in Washington

On March 29, 2016, as Governor Inslee signed Senate Bill 6519, Washington became a friendlier state for telemedicine. The new law or “Telemedicine Advancement Law” has a long-winded official title: “Expanding patient access to…more

Health IT, HIPAA, HITECH, New Legislation, Telemedicine

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“Round” At Your Own Risk – Timekeeping “Rounding” Requirements Clarified

The Ninth Circuit in Corbin v. Time Warner Cable held that state of California and federal regulations allowing employers to “round” employees’ clock-in and -out times to the nearest quarter hour do not require all employees to…more

Corporate Counsel, Employer Liability Issues, Time Warner Cable, Timekeeping, Wage and Hour

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Do Securities Laws Apply to the Family Business?

Family-owned businesses, like other privately held businesses, are typically formed as corporations or limited liability companies (LLCs). They issue shares or LLC interests representing equity ownership. These equity…more

Corporate Governance, Family Businesses, Limited Liability Companies

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European Union’s Highest Court Rules Google Must Remove Links Containing Personal Data

In a significant and concerning decision, the European Court of Justice (“ECJ”) has endorsed the so-called “right to be forgotten” and ruled that, in some circumstances, search engines can be compelled to remove search result…more

Data Protection, EU, EU Data Protection Laws, European Court of Justice (ECJ), Google

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[Webinar] Legal Issues and Risks in Wearable Health Technologies - Sept. 24th, 10:00am PDT

The market for wearable health technologies, encompassing innovations such as fitness bands, glucose monitors, and implanted devices, is booming – estimated to surpass $70 billion by 2024. The session will focus on key legal…more

Emerging Growth Companies, Emerging Technology Companies, Fitbit, Mobile Devices, Technology

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U.S. FCPA Guidance Released by DOJ and SEC

On Nov. 14, 2012, the Department of Justice and the Securities and Exchange Commission released a joint 130-page Resource Guide to the U.S. Foreign Corrupt Practices Act (“FCPA”). This long-anticipated guidance lays out the…more

Compliance, DOJ, FCPA, FCPA Resource Guide, SEC

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Sixth Circuit Rules That TripAdvisor’s Ranking of “Dirtiest Hotels” is Protected Opinion

In a helpful decision for online publishers of rankings and ratings, the Sixth Circuit Court of Appeals held that a travel website’s annual top-ten list of the dirtiest hotels in the United States, based on data compiled from…more

First Amendment, Free Speech, Hotels, TripAdvisor

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Excessive Fee Litigation Hits 403(b) Plans: What Nonprofit Fiduciaries Need to Know

The recent well-publicized announcement of lawsuits against 403(b) plans of Duke, Yale, NYU, Vanderbilt, and other universities opens a new chapter in ERISA litigation over excessive plan fees. We have reported on this type of…more

401k, 403(b) Plans, ERISA, Fiduciary Duty, Retirement Plan

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FERC Requires New England Generators to Reveal How Bids Formulated

On August 8, 2016, the Federal Energy Regulatory Commission (FERC) issued its order on remand from the D.C. Circuit on FERC’s approval of ISO New England’s (ISO-NE) 2013-14 winter reliability program, results, and rates…more

Bids, Energy Sector, FERC

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Portland Requires Employers to Provide Paid Sick Leave Starting in 2014 to Employees Who Work in City

The Portland City Council has passed a paid sick leave mandate that requires employers to provide paid leave for employees to use for personal and family member illness as well as certain safety concerns. The new ordinance takes…more

Local Ordinance, Medical Leave, Municipalities, Paid Leave

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Supreme Court Clarifies Test for Accommodating Pregnancy Limitations

The United States Supreme Court recently established a new test to evaluate whether an employer discriminates against a pregnant employee under the Pregnancy Discrimination Act (PDA) when it denies an accommodation or adjustment…more

Disparate Treatment, EEOC, Enforcement Guidance, PDA, Pregnancy Discrimination

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Going Green: What Procedures Should You Consider for 2016 Electronic ERISA Disclosures?

In the ever-increasing push to “go green,” many employers are opting to distribute required notices and disclosures to employees via e-mail or through website postings. Plan sponsors are asking: Can an employer rely on an…more

Disclosure Requirements, Employee Benefits, ERISA, Posting Requirements, Retirement Plan

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U.S. Supreme Court Decision in Montanile Applies Principles of Equity to Reach an Absurdly Inequitable Result Regarding ERISA Plan Reimbursement Claim

“A” gets hit by a drunk driver and incurs $121,044 in medical expenses. The ERISA Plan agrees to pay the expenses if “A” contractually agrees to reimburse the Plan for any recovery obtained as the result of any legal action or…more

Employee Benefits, Equitable Relief, ERISA, Medical Expenses, Medical Liens

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Good News: California Extends Its Medical Data Breach Notification Requirement From 5 to 15 Days

On Sept. 18, 2014, California’s governor approved Assembly Bill 1755, extending California’s stringent breach notification deadline for medical information breaches from five business days to 15 business days for clinics, health…more

Breach Notification Rule, Data Breach, EHR, Healthcare, Personally Identifiable Information

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Delaware Formally Adopts Proposed Statutory Amendments Governing Mergers Following the Completion of a Tender Offer

The governor of Delaware recently signed into law previously proposed amendments to Section 251(h) of the Delaware General Corporation Law (“DGCL”), which make Section 251(h) more accessible to deal parties by..…more

Delaware General Corporation Law, Merger Agreements, New Amendments, Shareholders, Stocks

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Reversing Precedent, NLRB Drops Consent Requirement for Mixed Bargaining Unit of Temporary and Regular Employees

On July 11, the NLRB continued the expansion of joint-employer liability set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015) by eliminating the requirement that a union receive the consent of both the…more

Bargaining Units, Browning-Ferris Industries of California Inc., Collective Bargaining, Joint Employers, NLRB

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Reversing Precedent, NLRB Drops Consent Requirement for Mixed Bargaining Unit of Temporary and Regular Employees

On July 11, the NLRB continued the expansion of joint-employer liability set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015) by eliminating the requirement that a union receive the consent of both the…more

Bargaining Units, Browning-Ferris Industries of California Inc., Collective Bargaining, Joint Employers, NLRB

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Insurers Beware: The Risks of Failing to Comply With OFAC SDN Screening Requirements

Two related enforcement actions by the U.S. Department of Treasury’s Office of Foreign Assets Compliance (OFAC) are stark reminders that health insurance providers (and other insurers) must maintain adequate U.S. trade sanctions…more

Health Insurance, OFAC, Sanctions, SDN List, U.S. Treasury

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EPA Issues Assessment of Bristol Bay and Large-Scale Mining

On January 15, the Environmental Protection Agency (“EPA”) issued its final Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska, concluding that large-scale mining in the region poses risks to…more

Clean Water Act, Critical Habitat, Environmental Assessments, Environmental Policies, EPA

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FDA Extends Menu Labeling Compliance Date

On July 9, 2015, the U.S. Food and Drug Administration (FDA) announced that it is extending the date for compliance with its menu labeling requirements by one year. Under the new timeframe, businesses covered by the menu…more

Affordable Care Act, Compliance, FDA, Final Rules, Food Labeling

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California Poised to Expand State Equal Pay Law

On Sept. 1, California’s legislature sent Senate Bill No. 358 (the “Fair Pay Act”) to Governor Jerry Brown for signature. The Fair Pay Act amends California’s existing Equal Pay Act (Labor Code section 1197.5) in several…more

Anti-Retaliation Provisions, Equal Pay Act, Fair Pay Act, Gender-Based Pay Discrimination, Pending Legislation

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NESC 2017 Edition to Revise Several Rules Pertinent to Joint Use and Pole Attachments

The National Electrical Safety Code (“NESC”), published by the IEEE Standards Association (“IEEE”), is the foremost standard for constructing communications plant using existing utility pole infrastructure. For 100 years, power…more

Building Codes, Construction Project, Construction Workers, IEEE, OSHA

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Hugh Jackman’s Conundrum: Can the Blockchain Revitalize the First Sale Doctrine Under Copyright Law?

Blockchain technology offers new possibilities for owners to sell digital copies of “pre-owned” content on secondary markets, as we’ve discussed in prior posts. But virtual flea markets – where an owner of a collection of…more

Block Chain, Copyright, Copyright Infringement, Digital Downloads, First Sale Doctrine

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FERC Accepts PJM’s Proposal to Limit Imported Capacity

Owners of generation capacity in PJM have often complained of what they perceive as favorable treatment under rules governing PJM’s annual forward capacity auctions when applied to competing resources, namely generation located…more

Energy, FERC, PJM, Power Plants, Utilities Sector

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Estate, Gift, and GST Taxes in 2013: American Taxpayer Relief Act of 2012 and Other News (Oregon)

The American Taxpayer Relief Act of 2012 (the “Act”) was signed into law on Jan. 2, 2013, avoiding dramatic changes to tax exemptions and tax rates on transfers subject to federal estate, gift, and generation-skipping transfer…more

American Taxpayer Relief Act, Charitable Donations, Estate Tax, Fiscal Cliff, Generation-Skipping Transfer

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"Ladies' Night" Promotions Violate California Law

The hospitality industry is no stranger to the rules prohibiting discrimination in accommodations. The average restaurant or hotel operator is aware that the establishment cannot deny service to a patron on the basis of a…more

ADA, Discounts, Discrimination, Hospitality Industry, Protected Class

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Steps to Keep OSHA from Raising the Retaliation Issue

OSHA’s new anti-retaliation provisions go into effect on August 10, 2016. The provisions require employers to: 1) inform employees of their right to report work-related injuries and illnesses without being subjected to…more

Anti-Retaliation Provisions, OSHA, Reporting Requirements, Workplace Injury

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2015: A Year-End Review of Litigation Using California’s Anti-SLAPP Statute

Annually, California’s Courts of Appeal and the Ninth U.S. Circuit Court of Appeals regularly issue several dozen published opinions interpreting California’s anti-SLAPP statute, Civil Procedure Section 425.16 et seq., and 2015…more

Anti-SLAPP, Commercial Speech, Davis v. Electronic Arts, First Amendment, Free Speech

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California Sick Time Law: Beyond the Basics

California’s “Healthy Workplaces, Healthy Families Act of 2014,” otherwise known as California’s Paid Sick Time (or Paid Sick Leave) law, went into effect on Jan. 1, 2015, and will become operative for accrual purposes on July…more

DLSE, Employer Mandates, Healthy Workplace Act, Paid Leave, Sick Leave

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Federal Circuit Holds Foreseeable Equivalents Infringe Under Doctrine of Equivalents

The Court of Appeals for the Federal Circuit held Wednesday that the doctrine of equivalents covers alternatives that were foreseeable at the time of application but not literally claimed. As a result, patent drafters will not…more

Functional Equivalent, Patent Infringement, Patent Litigation, Patents

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China Tightens Regulations on Online Advertisements

On July 4, 2016, China’s State Administration for Industry and Commerce (“SAIC”) issued the Interim Measures for the Administration of Internet Advertising (“the Interim Measures”), which will take effect on Sept. 1, 2016. Upon…more

Advertising, China, E-Commerce, Online Advertisements, SAIC

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Estate, Gift, and GST Taxes in 2013: American Taxpayer Relief Act of 2012 and Other News

The American Taxpayer Relief Act of 2012 (the “Act”) was signed into law on Jan. 2, 2013, avoiding dramatic changes to tax exemptions and tax rates on transfers subject to federal estate, gift, and generation-skipping transfer…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift-Tax Exemption, Retirement Plan

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Alaska Supreme Court Says Exploration is a Transfer of Interest in State Land, Cannot Be Allowed Without Full Public Notice and Comment - Also Sides with Public Interest Litigants on Fee Shifting

The Alaska Supreme Court’s recent decision in Nunamta Alukestai v. Pebble Limited Partnership, No. 7011 (Alaska filed May 29, 2015) significantly alters the permitting process for projects within the jurisdiction of the…more

Department of Natural Resources, Energy Sector, Fee-Shifting, Land-Use Permits, Mining

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D.C. Circuit’s POM Wonderful Decision Calls Into Question The FTC’s Imposition Of A Two-Study Requirement

On Jan. 30, 2015, the U.S. Court of Appeals for the D.C. Circuit affirmed the FTC’s ruling that POM Wonderful made false and misleading advertising claims that its pomegranate juice products were effective in fighting various…more

Administrative Hearings, Advertising, Appeals, Clinical Trials, False Advertising

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Oregon Legislature Passes Sweeping Energy Bill

The Oregon Legislature on Wednesday passed a sweeping and contentious bill that signals significant changes for the state’s energy industry. Senate Bill 1547, the final home for the “Oregon Clean Electricity and Coal Transition…more

Biomass, Coal-Fired Generation, Electricity, Energy Sector, New Legislation

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Beyond FMLA Leave: The Undefined Limits of Leave As a Reasonable Accommodation

Under the Equal Employment Opportunity Commission’s (EEOC) new guidance on employee disability leaves, employers are required to provide disability accommodation leave and reinstatement rights even for disabled employees who…more

ADA, EEOC, FMLA, Medical Leave, Reasonable Accommodation

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NYDFS Issues Regulation Addressing Anti-Money Laundering Transaction Monitoring and Filtering Requirements

On June 30, 2016, the New York Department of Financial Services (NYDFS) issued a final regulation obliging regulated institutions to meet enhanced requirements for transaction monitoring and filtering programs aimed at…more

Anti-Money Laundering, BSA/AML, Final Rules, Financial Institutions, NYDFS

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CFPB Proposes Changes to Mortgage Industry

The Consumer Financial Protection Bureau recently issued a proposed rule regarding integrated disclosure for mortgage transactions and, more recently, published a policy paper regarding loss mitigation programs in housing…more

CFPB, Disclosure Requirements, Mortgages, Popular, Proposed Amendments

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New SEC Guidance Regarding Social Media; Proposed Clarifications to Delaware Law for Mergers Following a Tender Offer; Change in SEC Notice Procedures for Granting Confidential Treatment Requests

Social media is becoming a desirable tool for companies to communicate with their shareholders and potential investors. Over the last few years, the Securities and Exchange Commission (“SEC”) has issued guidance on how SEC…more

Disclosure Requirements, Investors, Public Disclosure, Public Offerings, SEC

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Additional IRS Guidance on Physical Work Test and Facility Transfers for Energy Tax Credits

The IRS has released additional guidance (Notice 2014-46) on the “beginning of construction” requirement for the renewable energy production tax credit under Code Section 45 (PTC) and energy investment tax credit under Code…more

Energy, Energy Policy, Energy Tax Incentives, Investment Tax Credits, IRS

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Race to the Highest Minimum: California Minimum Wage Increase and San Francisco’s New Parental Leave Ordinance

California’s newly increased minimum wages will impact employers in two ways. First, minimum wage employees will have to be paid the higher minimum wage. Second, salaried exempt employees in California must be paid no less than…more

Employer Liability Issues, Minimum Wage, New Legislation, Paid Leave, Parental Leave

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Blurred Lines: Ninth Circuit Applies Same First Amendment Protections to Bloggers as Traditional Media

The Ninth Circuit last week became the first federal court of appeals to find that bloggers are entitled to the same First Amendment protections as traditional print and broadcast media when sued for defamation. Obsidian Fin…more

Blogs, Defamation, First Amendment, Media

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The Fourth European Union Anti-Money Laundering Directive and Its Effects on Financial Institutions Operating in the EU

The Fourth European Union Anti-Money Laundering Directive (Fourth AML Directive), approved by the European Parliament on May 20, 2015, went into effect on June 25, 2015, repealing the 2005 Third AML Directive. Given the evolving…more

Anti-Money Laundering, Banking Sector, Banks, BSA/AML, CDD

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FERC Extends Deadline for Filing Q3 2013 EQRs

Yesterday, on October 10, 2013, FERC issued a long-anticipated order granting public utilities and non-public utilities an extension of time to file their third quarter (Q3) Electric Quarterly Reports (EQRs). FERC will notify…more

Extensions, FERC, Filing Deadlines, Filing Requirements, Reporting Requirements

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$15 Minimum Wage and Increased Sick Pay Benefits Adopted in the City and County of Los Angeles

Effective on July 1, 2016, employers in the City of Los Angeles and the unincorporated parts of Los Angeles County must comply with a new set of minimum wage laws aimed at increasing the minimum wage to $15 per hour by 2020. And…more

Local Ordinance, Minimum Wage, Paid Leave, Sick Leave, Sick Pay

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Consumer Financial Protection Bureau Begins Accepting Consumers’ Money Transfer Complaints

Noting that “[i]t’s pretty incredible that you can quickly send money to almost anywhere in the country or abroad,” the Consumer Financial Protection Bureau (“CFPB”) recently announced it has begun accepting consumer complaints…more

CFPB, Consumer Complaint System, Money Transfer

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California Employers Must Update EEO Policies by April 1, 2016

New regulations under the California Fair Employment and Housing Act (FEHA) require employers of five or more employees to update anti-discrimination, anti-harassment, and complaint-investigation policies; update sexual…more

Anti-Discrimination Policies, Anti-Harassment Policies, EEOC, Employer Liability Issues, FEHA

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Possible Renewable Identification Number Price Spike Due to Proposed EPA Compliance Deadline Causes Biofuel Industry Concern

The Environmental Protection Agency (EPA) sets the annual percentage standards for ethanol, cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuels that apply to all gasoline and diesel produced or…more

Auto Manufacturers, Automotive Industry, Biofuel, Energy Sector, EPA

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Big Brewers Hopping on the Transparency Train

Transparency is a hot topic in the food world these days. The U.S. Food and Drug Administration (FDA) recently finalized an update to the nutrition facts panel for packaged foods. The U.S. Senate last week advanced a bill…more

Breweries, FDA, Labeling, Transparency

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Nationwide EAS Test Now Just One Month Away

As the summer winds down and the weather cools off, action around the Emergency Alert System (“EAS”) is heating up. Hopefully by now, if you are an EAS participant, which includes all cable television systems, radio stations,…more

Emergency Alerts, FCC, FEMA, Filing Requirements

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Top Takeaways from IAPP

The world of privacy grows every day as more data goes through the cloud. The new trends and weekly data breaches make conferences like the Global Privacy Summit all the more relevant. Earlier this month we went to IAPP’s…more

Broadband, Data Breach, FBI, FCC, FERPA

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New York Pay Equity Law Expands Basis for Sex-Based Pay Disparity Claims

Beginning in January, workers in New York will find it much easier to plead and prove claims of wage discrimination. Effective Jan. 19, 2016, New York employers will face greater difficulty in defending against claims of sex…more

Anti-Pay Secrecy, Gender-Based Pay Discrimination, New Legislation, Pay Equity Act (PEA), Sex Discrimination

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Materiality Matters: SCOTUS Rules on FCA Implied Certification

In a unanimous decision issued on June 16, 2016, in Universal Health Inc. v. U.S. et al. ex rel. Escobar et al. the United States Supreme Court resolved a circuit split and held that an “implied certification” theory can provide…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Implied Certification, Medicaid

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Tinker, Take Two

Two legendary figures in the ongoing fight for student free speech rights are asking the Supreme Court to revisit this thorny area of First Amendment jurisprudence. John and Mary Beth Tinker were petitioners forty-six years ago…more

Censorship, First Amendment, Free Speech, Freedom of Expression, Political Speech

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Partisan Gridlock on Open Internet Rules Likely to Continue Until Court Ruling

Uncertainty over whether the U.S. Court of Appeals for the District of Columbia Circuit will overturn the FCC’s Open Internet rules appears to be a major roadblock to any bipartisan resolution of the issue in Congress. James…more

Broadband, FCC, Internet, Internet Service Providers (ISPs), Open Internet Rules

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California Supreme Court to Decide Whether (And When) PAGA Plaintiffs Can Compel Discovery of Other Employees’ Contact Information

The California Supreme Court has granted review of the appellate court decision in Williams v. Superior Court to answer the following question: Is the plaintiff in a representative action under the Private Attorneys General Act…more

CA Supreme Court, Class Action, Discovery, Marshalls, PAGA

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DOI Secretary Jewell Announces Two Utility-Scale Solar Projects in California and Nevada

Secretary Jewell, of the Department of Interior, announced approval of two utility-scale solar projects located on the California-Nevada border. The Stateline Solar Project will be located in the Mojave Desert in San Bernardino…more

Department of the Interior, Public Private Partnerships (P3s), Public Projects, Renewable Energy, Solar Energy

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Final Regulations on Play or Pay Mandate Provide Relief to Certain Employers

This week, the IRS issued final regulations concerning the Affordable Care Act’s “play or pay” (also known as the employer shared responsibility) mandate. This advisory describes highlights of these voluminous regulations,…more

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

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Cybersecurity Response to Recent Wholesale Payment Systems Breaches

In February 2016, hackers stole $81 million from the Bangladesh central bank by sending fraudulent messages through the Society for Worldwide Interbank Financial Telecommunication (SWIFT) messaging system. Three months…more

Cyber Attacks, Cybersecurity, FFIEC, Financial Institutions, Hackers

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Employers Burdened By More New Laws

The Oregon Legislature enacted several laws in 2015 that will significantly affect your workplace. The following laws go into effect Jan. 1, 2016: Paid Sick Leave - As expected, Oregon has enacted a mandatory paid sick leave…more

Background Checks, Ban the Box, Criminal Background Checks, Criminal Records, Discrimination

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OIG Fraud Alert: Physicians in the Cross Hairs

On June 9, 2015, the Department of Health and Human Services Office of Inspector General (OIG) issued a Fraud Alert focused on physician relationships. The Alert cautions physicians who enter into compensation arrangements such…more

Anti-Kickback Statute, Fair Market Value, Fraud Alerts, Healthcare, HHS

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Amendments to the Law on the Protection of the Rights and Interests of Consumers to Take Effect on March 15, 2014

On Oct. 25, 2013, China's Standing Committee of the National People's Congress (the “NPC’s Standing Committee”) promulgated the Amendments to the Law on the Protections of the Rights and Interests of Consumers (the…more

Burden of Proof, China, Disclosure Requirements, Human Rights, Product Recalls

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FFIEC Releases Revised BSA/AML Examination Manual

The Federal Financial Institutions Examination Council (FFIEC) has released its revised Bank Secrecy Act/Anti-Money Laundering (BSA/AML) Examination Manual. The revisions clarify supervisory expectations and incorporate…more

Anti-Money Laundering, Bank Secrecy Act, Banking Examinations, Banking Sector, Banks

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The Alaska Constitution and Alaska Oil and Gas Projects

In the March 29th decision of Sullivan v. Resisting Environmental Destruction on Indigenous Lands (REDOIL), the Supreme Court of Alaska held that the Alaska Constitution requires only one “best interest finding” (that an oil or…more

Leases, Oil & Gas, Permits

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First Circuit Affirms Dismissal of Lawsuit Against Backpage.com, Confirms Broad Scope of Section 230 Immunity

The U.S. Court of Appeals for the First Circuit this week delivered a resounding victory for websites dependent on a federal immunity from claims based on content posted by third parties. Broadly interpreting Section 230 of the…more

Backpage.com, Communications Decency Act, Corporate Counsel, Governmental Immunity, Internet Service Providers (ISPs)

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“Operation Failed Resolution:” FTC Seeks Media Outlets’ Help to Police Deceptive Weight Loss Ads

In the wake of settlements between the FTC and four weight loss product purveyors relating to the companies’ advertising tactics, the FTC has issued updated guidance for media outlets regarding the publication of advertisements…more

Advertising, Endorsements, False Advertising, FTC, Weight-Loss Products

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Essential Employment Policies for Family Businesses, Part II

In this second round of “must-have” employment policies, we focus on rest breaks and meal periods. It can be devastating for any business, but especially a family-run business, to face claims of non-compliance with wage and hour…more

Audits, Best Management Practices, Class Action, Employee Benefits, Employment Policies

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Industry Players Weigh In on Spokeo

A few months ago, we reviewed the U.S. Supreme Court’s decision to grant certiorari in Spokeo, Inc. v. Robins, and the implications that a ruling in the case will have on the landscape of litigation under privacy statutes. Since…more

Article III, Certiorari, Class Action, Putative Class Actions, SCOTUS

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One Step Forward and Two Steps Back: Proposed Changes to the Alcohol and Drug Abuse Treatment Confidentiality Rule

On Feb. 9, 2016, the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA) published in the Federal Register a proposed rule putting forth amendments to the Alcohol and…more

Confidential Documents, Drug & Alcohol Abuse, Health Care Providers, HIPAA, Medical Records

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1st Circuit Limits Secured Lender’s Right to Post-Petition Interest by Applying Flexible Standard

In an important decision for lenders, the 1st Circuit Court of Appeals recently decided In re SW Boston Hotel Venture LLC, holding that a bankruptcy court was right to give a lender a claim for post-petition interest beginning…more

Commercial Bankruptcy, Hotels, Lenders

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Federal Circuit Holds Foreseeable Equivalents Infringe Under Doctrine of Equivalents

The Court of Appeals for the Federal Circuit held Wednesday that the doctrine of equivalents covers alternatives that were foreseeable at the time of application but not literally claimed. As a result, patent drafters will not…more

Functional Equivalent, Patent Infringement, Patent Litigation, Patents

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New Washington Supreme Court Opinion Makes Pre-Decisional Case Records Easier to Seal

In a substantial narrowing of the public’s ability to review court files, the Washington Supreme Court has held there is no constitutional right of access to any case record unless and until the record becomes “relevant to a…more

Discovery, Right of Access, Sealed Records

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California Supreme Court to Decide Whether (And When) PAGA Plaintiffs Can Compel Discovery of Other Employees’ Contact Information

The California Supreme Court has granted review of the appellate court decision in Williams v. Superior Court to answer the following question: Is the plaintiff in a representative action under the Private Attorneys General Act…more

CA Supreme Court, Class Action, Discovery, Marshalls, PAGA

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[Webinar] Effective Negotiation of Health Information Technology (HIT) Contracts - August 11, 10:00 a.m. PDT

Frequently the legal contract is the last hurdle to beginning a new HIT project, and, for many health care organizations, the process can be a source of frustration in acquiring new technologies. This session will focus on best…more

Health Information Technologies, Information Technology, Information Technology Outsourcing, Webinars

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Recent Stark Developments: A Moving Target Where a Miss is as Good as a Mile

The federal physician self-referral ban or Stark law has been a part of the legal landscape for almost 25 years. The breadth of the law’s prohibitions, its strict liability formulation and draconian remedies have made it the…more

BPCI, CMS, False Claims Act (FCA), Healthcare, Hospitals

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Legislative Update: GMO-Labeling Bill Moves to Full Senate

In a hearing this morning in the Senate Agriculture, Nutrition, and Forestry Committee, committee members voted 14-6, including all Republican members and three Democrats (Klobuchar (MN), Heitkamp (ND), and Donnelly (IN)), to…more

Farms, First Amendment, Food Labeling, Food Manufacturers, GMO

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When Food Production Leads to Prosecution

Over the last few weeks, two big stories have made headlines in the food industry. Beginning in early February, news media across Europe began reporting that food products tested in several European countries contained…more

DOJ, EU, FDCA, Food Contamination, Food Manufacturers

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OIG Fraud Alert: Physicians in the Cross Hairs

On June 9, 2015, the Department of Health and Human Services Office of Inspector General (OIG) issued a Fraud Alert focused on physician relationships. The Alert cautions physicians who enter into compensation arrangements such…more

Anti-Kickback Statute, Fair Market Value, Fraud Alerts, Healthcare, HHS

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President Obama’s Proposed Privacy Bill of Rights - Part 6: FTC Enforcement Powers

In this post, we look at the additional powers given to the Federal Trade Commission (FTC) to enforce the Consumer Privacy Bill of Rights (CPBR) and what it may mean for the agency that already enjoys significant authority to…more

Consumer Privacy Bill of Rights, Discussion Draft, Enforcement, FTC, Obama Administration

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Reversing Precedent, NLRB Drops Consent Requirement for Mixed Bargaining Unit of Temporary and Regular Employees

On July 11, the NLRB continued the expansion of joint-employer liability set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015) by eliminating the requirement that a union receive the consent of both the…more

Bargaining Units, Browning-Ferris Industries of California Inc., Collective Bargaining, Joint Employers, NLRB

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The Big Picture: Aereo Held to Violate Public Performance Right

In a 6-3 decision written by Justice Breyer, the Supreme Court today ruled that Aereo’s internet television service infringes broadcasters’ exclusive rights to publicly perform their works. Despite the potentially broad…more

ABC, ABC v Aereo, Aereo, Broadcasting, Cable Television Providers

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D.C. Circuit’s POM Wonderful Decision Calls Into Question The FTC’s Imposition Of A Two-Study Requirement

On Jan. 30, 2015, the U.S. Court of Appeals for the D.C. Circuit affirmed the FTC’s ruling that POM Wonderful made false and misleading advertising claims that its pomegranate juice products were effective in fighting various…more

Administrative Hearings, Advertising, Appeals, Clinical Trials, False Advertising

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Diablo Canyon Settlement May Hinge on Cost Allocation

On June 21, 2016, Pacific Gas and Electric Company (“PG&E”) announced a plan to close down the state’s last remaining nuclear power plant, the 2.3 gigawatt Diablo Canyon plant near San Luis Obispo, by 2026. Diablo Canyon…more

CPUC, Greenhouse Gas Emissions, PG&E, Power Plants

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California Court of Appeal Upholds Provision Delegating Authority to Arbitrator to Resolve Disputes Concerning Enforceability of Arbitration Agreement

On May 15, 2014, the California Court of Appeal provided positive news to employers seeking to maintain and enforce arbitration agreements. In Tiri v. Lucky Chances, Inc., a unanimous First Appellate District panel reversed a…more

Appeals, Arbitration, Arbitrators, Delegation of Discretion, Employment Contract

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Reversing Precedent, NLRB Drops Consent Requirement for Mixed Bargaining Unit of Temporary and Regular Employees

On July 11, the NLRB continued the expansion of joint-employer liability set forth in Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015) by eliminating the requirement that a union receive the consent of both the…more

Bargaining Units, Browning-Ferris Industries of California Inc., Collective Bargaining, Joint Employers, NLRB

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Unpaid Interns May Be Entitled to Wages and EEO Protections

Every summer, eager students beat down company doors, offering to do whatever is needed—for free—so they can include experience and a reference on their resume. But, a recent slew of lawsuits by unpaid interns has caused…more

Best Management Practices, Contract Drafting, DOL, EEOC, Employee Rights

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Enforcing Attendance Standards in the New World of California Sick Leave

When California’s sick leave law went into effect in 2015, many employers—especially national employers—did not change their pre-existing sick leave or paid-time-off (PTO) policies because those policies exceeded the…more

Corporate Counsel, Employee Benefits, Sick Leave, USPTO, Wage and Hour

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Estate, Gift, and GST Taxes in 2013: American Taxpayer Relief Act of 2012 and Other News

The American Taxpayer Relief Act of 2012 (the “Act”) was signed into law on Jan. 2, 2013, avoiding dramatic changes to tax exemptions and tax rates on transfers subject to federal estate, gift, and generation-skipping transfer…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift-Tax Exemption, Retirement Plan

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U.S. FCPA Guidance Released by DOJ and SEC

On Nov. 14, 2012, the Department of Justice and the Securities and Exchange Commission released a joint 130-page Resource Guide to the U.S. Foreign Corrupt Practices Act (“FCPA”). This long-anticipated guidance lays out the…more

Compliance, DOJ, FCPA, FCPA Resource Guide, SEC

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New York’s Shield Law Follows New York Reporters Wherever They May Roam

On Dec. 10, 2013, the New York Court of Appeals resoundingly reaffirmed the important public policy underlying the New York statutory scheme that allows New York journalists to preserve the anonymity of their confidential…more

Journalists, Shield Laws

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Changes to the “Two-Midnight Rule” on the Horizon

On July 1, CMS published proposed changes to the so-called “Two-Midnight Rule,” which currently governs when inpatient hospital admissions are entitled to Medicare Part A payment. The proposed changes were announced in a display…more

CMS, Healthcare, Hospitals, Inpatient Billing, Medicare

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The Supreme Court Confirms Right to Challenge Jurisdictional Determinations

Can a landowner challenge a US Army Corps of Engineers determination that a property contains jurisdictional wetlands? In a unanimous opinion, the Supreme Court answered this question in the affirmative May 31, 2016 in USACE v…more

Administrative Procedure Act, Clean Water Act, EPA, Hawkes Co v United States Army Corps of Engineers, Jurisdictional Determination (JD)

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FCC Proposes Fine for Alleged Violation of E-rate Lowest Corresponding Price Rule

On July 27, the FCC proposed a penalty of $106,425 against AT&T for allegedly violating its “lowest corresponding price” (“LCP”) rule, which requires that E-rate service providers offer their services to participating schools…more

AT&T, E-Rates, FCC, Notice of Apparent Liability (NAL), School Districts

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Supreme Court Invalidates Software Patents Directed to Implementing Abstract Ideas

Yesterday, the U.S. Supreme Court announced its highly anticipated opinion in Alice Corp. Pty. Ltd. v. CLS Services, Inc., No. 13-298. In Alice Corp., the Court upheld an en banc decision of the United States Court of…more

CLS Bank, CLS Bank v Alice Corp, Patent Litigation, Patents, Popular

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FCC Proposes Fines of More Than $1.9M for EAS Violations

On March 3, 2014, the Federal Communications Commission (FCC) issued an omnibus Notice of Apparent Liability (NAL) that proposes substantial fines totaling more than $1.9 million against Viacom, ESPN and NBCUniversal (the…more

Emergency Alerts, ESPN, FCC, NBC, Viacom

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DOL Notice on Tips for Selecting and Monitoring an ERISA Plan Auditor Alarms Recipients – Fear Not!

If you have recently received a notice from the U.S. Department of Labor (DOL), titled “Tips for Selecting and Monitoring a Plan Auditor,” do not be alarmed. It does not mean that you are being audited by the DOL and it does not…more

Audits, Corporate Counsel, DOL, Employee Benefits, ERISA

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Avoiding Class Action Litigation Under Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) is a growing source of class action litigation, due to the high potential penalties that it provides for very technical violations. The statute imposes conditions, among other things, on…more

Attorney's Fees, Background Checks, Class Action, Compliance, Consumer Reports

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PCI DSS 3.0: Business as Usual?

In the past, critics of the Payment Card Industry (PCI) Data Security Standard (DSS) have alleged that the DSS requirements either (1) provide little more than a minimal baseline for security with a “check-the-box” compliance…more

Cloud Computing, Compliance, Credit Cards, Data Protection, DSS

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Tribal Enrollment Inquiry Leads to $2 Million FCC Settlement with Blue Jay Wireless

On July 15, the FCC issued an Order approving a consent decree between Blue Jay Wireless and the FCC’s Enforcement Bureau, ending the Bureau’s investigation into whether Blue Jay’s Tribal Lifeline enrollments in Hawaii from…more

ETCs, FCC, Lifeline Program, Telecommunications, Tribal Lands

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Unpaid Interns May Be Entitled to Wages and EEO Protections

Every summer, eager students beat down company doors, offering to do whatever is needed—for free—so they can include experience and a reference on their resume. But, a recent slew of lawsuits by unpaid interns has caused…more

Best Management Practices, Contract Drafting, DOL, EEOC, Employee Rights

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FERC, NERC and Business Blackout: New CIP Standards and Fictional Cyber Attacks

The Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) July 16, 2015, proposing to approve various Critical Infrastructure Protection (CIP) reliability standards proposed by the North…more

CIP, Compliance, Cyber Attacks, Cyber Crimes, Cybersecurity

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Climate change Regulation Starts to Take Shape in Washington State

In 2015, the Washington Legislature failed to act on Governor Jay Inslee’s cap-and-trade proposal to limit the greenhouse gas emissions that cause climate change. Since then, all branches of Washington State government, as well…more

Carbon Emissions, Carbon Taxes, Clean Power Plan, Climate Change, Energy Sector

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Good News: California Extends Its Medical Data Breach Notification Requirement From 5 to 15 Days

On Sept. 18, 2014, California’s governor approved Assembly Bill 1755, extending California’s stringent breach notification deadline for medical information breaches from five business days to 15 business days for clinics, health…more

Breach Notification Rule, Data Breach, EHR, Healthcare, Personally Identifiable Information

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Opposition Builds to Proposed Federal Clean Water Act Rules

Federal agencies face growing opposition from members of Congress and industry regarding a proposed definition of “waters of the United States” under the Clean Water Act (CWA). The scope of federal jurisdiction under the CWA has…more

Clean Water Act, EPA, Jurisdiction, Nexus, Rapanos v US

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USDOL Announces 2016 FLSA White-Collar Exemption Final Rules

The U.S. Department of Labor (USDOL) announced adoption of 2016 final regulations changing the white-collar exemption requirements. The new regulations are set to take effect on December 1, 2016, giving employers approximately…more

DOL, Final Rules, FLSA, Minimum Salary, Wage and Hour

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State Water Board Cleans Up Its Water Quality Enforcement Policy

On August 4, 2016, the California State Water Resources Board (State Water Board) issued a draft rule amending its 2010 Water Quality Enforcement Policy. The proposed amendments are intended to provide additional clarity, allow…more

Proposed Amendments, State Water Boards, Transparency, Water Quality Control Boards

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The Utility as a Distribution System Platform: NYPSC Issues Order in REV Proceeding to Establish A New Paradigm for Utilities, Customers, and Distributed Energy Resources

In an important order (“Order”) issued on May 21, 2016 in its Reforming the Energy Vision (“REV”) proceeding, the New York Public Service Commission (“NYPSC”) announced the details of a new paradigm to govern the relationship…more

Energy Consumption, Energy Sector, Greenhouse Gas Emissions, Public Service Commissions, Utilities Sector

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FCC Proposes to Make 150 MHz of Spectrum Available for Shared Broadband Through Use of Dynamic Spectrum Access and Sharing Systems

Yesterday, the Federal Communications Commission (FCC) took steps to make 150 megahertz of spectrum available for shared broadband use by unanimously approving a Further Notice of Proposed Rulemaking (FNPRM) setting forth…more

Broadband, FCC, NPRM, Wireless Industry

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Amendment To The FCC’s Effective Competition Rules: Implementation Of Section 111 Of STELAR

On June 2, 2015, the FCC adopted an Order implementing Section 111 of the STELA Reauthorization Act of 2014 (STELAR), which required the FCC to streamline its longstanding effective competition rules for small cable operators…more

Cable Television Providers, Communications Act of 1934, Competition, Competition Authorities, FCC

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Potential Impact of Reclassification on State and Local Tax Obligations

The Order tries to minimize the potential that state or local taxes on broadband Internet access service (BIAS) will increase as a result of reclassifying BIAS as a telecommunications service. BIAS providers, however, have…more

Broadband, Internet, Internet Service Providers (ISPs), Internet Taxation, Telecommunications

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New HSR Filing Thresholds Take Effect Feb. 24, 2014

The Federal Trade Commission (FTC) has announced an increase in the thresholds that determine whether companies are required to notify federal antitrust authorities under the Hart-Scott-Rodino (HSR) Antitrust Improvements Acts…more

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

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California Court of Appeal Holds That a Private Conservator is a Public Official; Finds No Actual Malice Shown in Claim Based on CBS Report About Conservatorships

A conservator appointed by the court to temporarily handle certain affairs of an elderly woman is a “public official” for purposes of defamation law who has to meet the “actual malice” standard to survive an anti-SLAPP motion,…more

Actual Malice, Anti-SLAPP, Conservators, Defamation, Public Officials

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Whither WOTUS?

In June 2015, EPA and the Corps of Engineers released a draft rule to define “waters of the United States,” affectionately referred to as WOTUS. This definition goes to the scope of federal jurisdiction over wetlands and other…more

EPA, Federal Jurisdiction, US Army Corps of Engineers, Waters of the United States, Wetlands

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FCC Votes to Approve New Net Neutrality Rules

On a party-line 3-2 vote, the FCC on February 26, 2015, approved new Open Internet (or Net Neutrality) rules, although it has not released the text of its actual ruling. Based on an FCC press release and a written statement from…more

FCC, Final Rules, Internet, Net Neutrality, Telecommunications Act

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NYC Mayor Signs “Ban the Box” Legislation Prohibiting Criminal Background Inquiries Prior to Offers of Employment

On Oct. 27, 2015, the new NYC Fair Chance Act ( “FCA”), recently signed into law by Mayor Bill de Blasio, takes effect. The FCA prohibits most New York City employers from making inquiries into an applicant’s criminal conviction…more

Background Checks, Ban the Box, Criminal Background Checks, Criminal Records, Department of Corrections

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The Fed’s Goals, Strategies, and Tactics for an Improved U.S. Payment System

The Federal Reserve System recently issued a paper titled Strategies for Improving the U.S. Payment System that provides a roadmap for end-to-end payment system advances over the short and long term…more

Federal Reserve, Information Reports, Payment Systems

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U.S. FCPA Guidance Released by DOJ and SEC

On Nov. 14, 2012, the Department of Justice and the Securities and Exchange Commission released a joint 130-page Resource Guide to the U.S. Foreign Corrupt Practices Act (“FCPA”). This long-anticipated guidance lays out the…more

Compliance, DOJ, FCPA, FCPA Resource Guide, SEC

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What Does the New Defend Trade Secrets Act Mean for California Employers?

The Defend Trade Secrets Act (DTSA) allows companies for the first time to file civil lawsuits for trade secrets theft under federal law if the trade secret is “related to a product or service used in, or intended for use in,…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Economic Espionage Act, Ex Parte, Intellectual Property Protection

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Materiality Matters: SCOTUS Rules on FCA Implied Certification

In a unanimous decision issued on June 16, 2016, in Universal Health Inc. v. U.S. et al. ex rel. Escobar et al. the United States Supreme Court resolved a circuit split and held that an “implied certification” theory can provide…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Implied Certification, Medicaid

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If You Think Your Family Business’s Service Contracts Limit Your Liability In All Situations, Think Again!

Family-owned businesses in the services industry in Washington (and beyond) should be paying attention to a recent Washington Supreme Court case addressing the “Independent Duty Doctrine” (also referred to as the “economic loss…more

Family Businesses, Limitation of Liability Clause, Service Contracts

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U.S. House Approves Law Targeting Sex Trafficking Ads, Threatens to Undermine Section 230 of the Communications Decency Act

On May 20, 2014, the U.S. House of Representatives passed the Stop Advertising Victims of Exploitation Act of 2014 (“SAVE Act”). If enacted, the bill would expose websites and other media to federal criminal penalties for…more

Communications Decency Act, Crime Victims, First Amendment, Free Speech, Internet

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Oregon PUC Outlines Ambitious Schedule for Implementation of Clean Electricity Programs

At an April 21 workshop, the Oregon Public Utility Commission presented its timeline for implementing a variety of programs in the wake of the state’s recently passed and far-ranging energy bill, SB 1547 (the “Oregon Clean…more

Clean Energy, Coal, Electricity, Public Utilities Commission

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Your Estate Plan – Four Documents You Should Be Considering

An estate plan can be a complicated thing. Attorneys, accountants, advisors all may be involved in pulling together a customized plan that conforms to your desires, complies with state and federal law and minimizes your tax…more

Advance Directives, Estate Planning, Power of Attorney, Trusts, Wills

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It’s Not the Olympics, but OCR Sets New HIPAA Settlement Records

Athletes at the Rio Olympics aren’t the only ones setting records this year. Hoping to send a “strong message” about the importance of safeguarding electronic protected health information (PHI) and conducting mandated risk…more

Business Associates, Covered Entities, Data Breach, HHS, HIPAA

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(Un)COOL: How Congress (Unsuccessfully) Made Sausage Labeling Laws

Crises averted in international trade usually make good economics, but unsatisfying politics. They’re a half-loaf of success in which positioning, inertia and self-interest usually win. So it is with the recent repeal of meat…more

COOL Requirements, Food Labeling, Hospitality Industry, Trade Agreements, Transparency

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$15 Minimum Wage and Increased Sick Pay Benefits Adopted in the City and County of Los Angeles

Effective on July 1, 2016, employers in the City of Los Angeles and the unincorporated parts of Los Angeles County must comply with a new set of minimum wage laws aimed at increasing the minimum wage to $15 per hour by 2020. And…more

Local Ordinance, Minimum Wage, Paid Leave, Sick Leave, Sick Pay

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Supreme Court Rejects Maryland Power Plant Subsidies, But Signals Permissible Ways for States to Incentivize New Plants

In recent years, Maryland attempted to subsidize new power plants by guaranteeing prices for generating capacity at wholesale auctions administered by PJM Interconnection L.L.C. (PJM). Tuesday, the Supreme Court unanimously…more

Abusive Acts, Damages, Electricity, Exclusive Jurisdiction, Federal Power Act

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Update: FCC Divides Closed Captioning Compliance Responsibility, Imposes New Obligations Directly on Programmers

UPDATE: The FCC released its Second Report and Order on February 19, 2016. The advisory below has been updated to reflect the details of the order. At its Open Meeting on February 18, 2016, the Federal Communications Commission…more

Closed Captioning, Complaint Procedures, FCC, Multichannel Video Programming, OMB

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Stolen Patient Information on Hospital Computer Not Considered “Medical Information” by California Appellate Court

The California Court of Appeal recently held that the release of an index identifying hospital patients did not constitute the release of medical information under California’s Confidentiality of Medical Information Act (CMIA),…more

Appeals, Data Breach, Healthcare, Hospitals, Medical Records

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FCC Identifies Areas Eligible for Support Under Connect America Fund Phase II Auction

Orange is the new green –well that’s one way to think of the FCC’s latest announcement of areas eligible for support (subsidies) for providers delivering broadband to unserved areas in connection with the upcoming Connect…more

Broadband, Connect America Fund, FCC, Internet Service Providers (ISPs)

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The FAST Act: Buried Transportation Bill Amendments Ease Private Resale Restrictions and Modify the JOBS Act

On Dec. 4, 2015, President Obama signed into law the Fixing America’s Surface Transportation Act (the “FAST Act”). As the name implies, the FAST Act is primarily concerned with transportation and infrastructure spending, but it…more

Capital Raising, Emerging Growth Companies, Fixing America’s Surface Transportation Act (FAST Act), JOBS Act, Resale Exemption

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Long-Awaited 457 Plan Regulations Provide Planning Opportunities for Tax-Exempt and Governmental Employers

On June 22, 2016, the Internal Revenue Service (IRS) and Treasury Department issued proposed regulations under Section 457 of the Internal Revenue Code, fulfilling a nearly decade-old commitment to provide additional guidance…more

Deferred Compensation, Internal Revenue Code (IRC), IRS, Proposed Regulation, Section 409A

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Digital Emotions: The Evidentiary Impact of Emoticons and Emojis

When computer science professor Scott Fahlman posted a sideways smiley face on an electronic message board at Carnegie Mellon University in 1982, he could not possibly have known that combination of dots and dashes would give…more

Copyright Infringement, Elonis v US, Emoji, Evidence, SCOTUS

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Sturgeon v. National Park Service: Supreme Court Sidesteps Federal / State Lands Conflict

A case originating in Alaska may have answered the question for those wondering how the United States Supreme Court will approach weighty questions of law and policy with a vacancy on the Court; it probably won’t…more

ANILCA, Land Preservation, National Park Service, Public Land

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ERISA Plan Sponsors – Are You Monitoring Investments and Fees?

In a unanimous decision, the U.S. Supreme Court vacated the Ninth Circuit’s decision in Tibble v. Edison International and remanded for determination of the scope of an ERISA plan fiduciary’s duty to monitor plan investments…more

401k, Benefit Plan Sponsors, Breach of Duty, ERISA, Fiduciary Duty

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Medicare Shared Savings Program: Final Rule

Last week, the Centers for Medicare & Medicaid Services (CMS) released its Final Rule on the Medicare Shared Savings Program (MSSP). The Final Rule provides additional flexibility to accountable care organizations participating…more

ACOs, CMS, Data-Sharing, Electronic Health Record Incentives, Fee-for-Service

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EU Parliament: EU, U.S. Must Improve Privacy Shield

On May 26, 2016, the European Parliament passed a resolution (2016/2727 (RSP)) calling on the European Commission (EC) to reopen negotiations with the United States to improve perceived “deficiencies” in the EU-U.S. Privacy…more

Article 29 Working Party (WP29), CJEU, EU, EU-US Privacy Shield, European Commission

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New OPT STEM Rule Extends Employment Period for Foreign Students; Imposes New Obligations on Employers

The Department of Homeland Security (DHS) has published a revised rule which allows foreign students with degrees in science, technology, engineering, and math (STEM) to extend their 1-year period of Optional Practical Training…more

DHS, E-Verify, Foreign Students, Hiring & Firing, OPT

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Ninth Circuit Finds First Amendment Protects Against Right Of Publicity Claim Involving Film “The Hurt Locker”

The Ninth Circuit has confirmed that right of publicity claims purporting to arise from expressive works, like films, are content-based restrictions on speech that are presumptively unconstitutional, and generally should not…more

Anti-SLAPP, Breach of Contract, Defamation, False Light, First Amendment

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Seattle’s Criminal Background Check Ordinance and New Rules Take Effect Nov. 1, 2013

Seattle’s new criminal background check ordinance goes into effect Friday, Nov. 1, 2013. In anticipation, the Seattle Office for Civil Rights (“SOCR”) recently issued rules implementing the new law. The ordinance restricts when…more

Criminal Background Checks, Criminal Records

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Tennessee Gives Businesses 45 Days for Data Breach Notice

Recent amendments to the State’s data breach statute give a hard deadline for a business to provide consumer notice, removes encryption safe harbor, exempts entities that are subject to the Health Insurance Portability and…more

Cyber Attacks, Cybersecurity, Data Breach, Encryption, Gramm-Leach-Blilely Act

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Value of Independent Directors for the Family Corporation

In the wake of the financial scandals of the early 2000s, a push was made to increase the number of independent directors on public company boards. Most public companies are required to have a majority of independent directors…more

Audit Committee, Family Businesses, Independent Boards, Privately Held Corporations

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Alaska Passes Initiative to Legalize Recreational Use of Marijuana—What Does that Mean for Employers?

Alaska voted on Nov. 4, 2014, to decriminalize possession, use, display, purchase, and transport of marijuana. Alaska has now joined Colorado, Washington, Oregon, and Washington, D.C. in legalizing recreational marijuana use…more

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

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Materiality Matters: SCOTUS Rules on FCA Implied Certification

In a unanimous decision issued on June 16, 2016, in Universal Health Inc. v. U.S. et al. ex rel. Escobar et al. the United States Supreme Court resolved a circuit split and held that an “implied certification” theory can provide…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Implied Certification, Medicaid

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Amendment To The FCC’s Effective Competition Rules: Implementation Of Section 111 Of STELAR

On June 2, 2015, the FCC adopted an Order implementing Section 111 of the STELA Reauthorization Act of 2014 (STELAR), which required the FCC to streamline its longstanding effective competition rules for small cable operators…more

Cable Television Providers, Communications Act of 1934, Competition, Competition Authorities, FCC

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Avoiding Class Action Litigation Under Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) is a growing source of class action litigation, due to the high potential penalties that it provides for very technical violations. The statute imposes conditions, among other things, on…more

Attorney's Fees, Background Checks, Class Action, Compliance, Consumer Reports

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China Makes Updates to Catalog of Telecommunication Business

On Dec. 28, 2015, the Ministry of Industry and Information Technology of the People’s Republic of China (“MIIT”) issued the Catalog of Telecommunication Business (2015 Edition) (the “2015 Edition”), which will take effect on…more

China, Cloud Computing, E-Commerce, Internet, Mobile Apps

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Annual FCC CPNI Certification Due by March 1, 2016; Upcoming Open Internet Rules Will Soon Expand CPNI-Type Obligations to Broadband

This is to remind our clients that the Federal Communications Commission’s (FCC) rules require every telecommunications and interconnected VoIP service provider (including wireless, cable telephony, and even paging and calling…more

Broadband, Customer Proprietary Network Information (CPNI), Enforcement Guidance, FCC, Open Internet Rules

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EEOC’s Tough Enforcement Stance Against Criminal Background Checks

Earlier this year, the EEOC issued new Enforcement Guidance warning private sector employers that they could face litigation unless they significantly restrict the use of arrest and conviction records in hiring, promotion, and…more

Criminal Background Checks, Criminal Records, EEOC, Enforcement Guidance, Strategic Enforcement Plan

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The Consumer Credit Card Market

Credit cards are central to the financial lives of most American consumers. Credit cards represent a key medium for U.S. consumer spending. In the first six months of 2015 alone, there were some 14.5 billion U.S. general purpose…more

CARD Act, CFPB, Credit Cards, Financial Sector, Interest Rates

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Long-Awaited 457 Plan Regulations Provide Planning Opportunities for Tax-Exempt and Governmental Employers

On June 22, 2016, the Internal Revenue Service (IRS) and Treasury Department issued proposed regulations under Section 457 of the Internal Revenue Code, fulfilling a nearly decade-old commitment to provide additional guidance…more

Deferred Compensation, Internal Revenue Code (IRC), IRS, Proposed Regulation, Section 409A

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Open Internet Rules Become Effective June 12: Impact on Pole Attachments

On Friday, June 12 – barring a judicial stay – many of the FCC’s “Open Internet” rules will become effective. A significant consequence of the reclassification of retail broadband Internet access service (BIAS) as a…more

Broadband, Cable Operators, FCC, Open Internet Rules, Pole Attachment Order

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California Supreme Court Broadens Borrower Fraud Defense to Written Loan Agreements

The California Supreme Court handed down a unanimous decision earlier this week, broadening the scope of the “fraud exception” to the parol evidence rule, to allow a plaintiff challenging the terms of a written agreement to…more

Bank of America, Borrowers, Foreclosure, Fraud Exception, Lenders

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The Dancing Baby Grooves to Mixed Victory in the 9th Circuit: Court Holds that DMCA Takedown Notices Require Consideration of Fair Use

Behind the scenes of the Internet’s current swirl of memes, mashups and other viral content is a massive system of takedown notices and counternotices passing back and forth between content owners, web hosts and users, intended…more

Copyright Infringement, Digital Media, DMCA, Fair Use, Takedown Notices

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State Supreme Court Strikes Down Washington’s Anti-SLAPP Statute

The Washington Supreme Court in May struck down the state’s 2010 anti-SLAPP statute, holding in a unanimous opinion that the law violates the state constitution’s right to a jury trial and is invalid on its face. The decision,…more

Anti-SLAPP, First Amendment, Free Speech, Jury Trial, WA Supreme Court

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Congressional Payments Technology Caucus Formed

Innovation in the payments industry continues to accelerate as both established and emerging companies invest significant resources in the development of new payment systems and technologies. Recognizing the challenge that…more

Emerging Growth Companies, Legislative Agendas, Payment Systems, Technology

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CPUC Takes First Step Towards Developing Integrated Energy Resource Plan

Senate Bill (“SB”) 350, which the California legislature passed in 2015, sets ambitious goals for the state, including a 50% renewables portfolio standard and a doubling of energy efficiency by 2030. To help encourage a…more

CPUC, Energy Efficiency, Energy Sector

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Encouraging Gas Development in China—A Work In Progress

The Chinese government recently issued several reform measures intended to open up its gas industry to foreign oil and gas developers. An inflow of foreign capital and technology, it is hoped, will spur construction of the…more

China, Entergy, Foreign Investment, Infrastructure, Oil & Gas

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Alaska Supreme Court Says Exploration is a Transfer of Interest in State Land, Cannot Be Allowed Without Full Public Notice and Comment - Also Sides with Public Interest Litigants on Fee Shifting

The Alaska Supreme Court’s recent decision in Nunamta Alukestai v. Pebble Limited Partnership, No. 7011 (Alaska filed May 29, 2015) significantly alters the permitting process for projects within the jurisdiction of the…more

Department of Natural Resources, Energy Sector, Fee-Shifting, Land-Use Permits, Mining

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Added Compliance Burdens: New York Nonprofits Have to Implement Workplace Violence Programs

In 2010, New York State enacted its New York Prudent Management of Institutional Funds Act (NYPMIFA); in 2012 Governor Cuomo promulgated Executive Order 38 capping excess compensation at nonprofits receiving government funding;…more

Compliance, DOL, Healthcare, Medicaid, Medicare

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When Food Production Leads to Prosecution

Over the last few weeks, two big stories have made headlines in the food industry. Beginning in early February, news media across Europe began reporting that food products tested in several European countries contained…more

DOJ, EU, FDCA, Food Contamination, Food Manufacturers

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The Latest with the FCC's Open Internet Order

Attorneys Chris Savage, Peter Karanjia, and Dan Reing discuss the history and rationale of the Open Internet Order and the motivation and implications of the D.C. Circuit Court’s decision. The FCC’s assumption affirms that…more

Broadband, FCC, Internet, Internet Service Providers (ISPs), Net Neutrality

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CMS Releases Proposed Rules Allowing Meaningful Use CEHRT Flexibility and Extending Stage 2

CMS recently issued proposed rules that would modify 2014 EHR certification requirements and revise the meaningful use Stage 2 and Stage 3 timeline. In response to industry complaints that many eligible professionals and…more

CEHRT, Certifications, CMS, EHR, Healthcare

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Cloud Computing: Evolving Contracting Practices

The explosion of cloud computing is creating new common standards and changing industry contracting practices for access to these services. Cloud services providers tend to provide standard contractual terms that are largely…more

Cloud Computing, Contract Drafting, Contract Formation, Negotiations, Software

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New California Laws Affecting Outpatient Surgery Settings Go Into Effect January 1, 2016

New Development - California Senate Bill 396 (SB 396), which strengthened requirements for outpatient clinics such as ambulatory surgery centers, was recently signed into law and becomes effective January 1, 2016…more

Credentialing, Healthcare, Inspection Rights, New Legislation, Outpatient Services

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California Employers Must Update EEO Policies by April 1, 2016

New regulations under the California Fair Employment and Housing Act (FEHA) require employers of five or more employees to update anti-discrimination, anti-harassment, and complaint-investigation policies; update sexual…more

Anti-Discrimination Policies, Anti-Harassment Policies, EEOC, Employer Liability Issues, FEHA

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USDOL Announces 2016 FLSA White-Collar Exemption Final Rules

The U.S. Department of Labor (USDOL) announced adoption of 2016 final regulations changing the white-collar exemption requirements. The new regulations are set to take effect on December 1, 2016, giving employers approximately…more

DOL, Final Rules, FLSA, Minimum Salary, Wage and Hour

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Who Runs Your Business and Finances if You Can’t?

You are the senior executive of a successful family business. If you experience a stroke, or a heart attack, or are in a serious accident, such that you are in a coma, for example, or otherwise unable to act on your own behalf,…more

Durable Power of Attorney, Family Businesses, Successors

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Making the Creative Commons Smarter

Two weeks ago at the terrific inaugural RightsTech Summit, a wide range of very knowledgeable people came together to discuss the current state of digital rights management, and more importantly, the direction that new…more

Block Chain, Copyright, Creative Commons License, Digital Assets, Metadata

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Ways to Make Your Family Business More Family Friendly

Family businesses face many hurdles. One of the biggest hurdles for family businesses (as for all businesses) is keeping and retaining talent. Family businesses have to compete for talent against bigger, more established…more

Compensation & Benefits, Family Businesses, Professional Development, Recruitment Incentives

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Added Compliance Burdens: New York Nonprofits Have to Implement Workplace Violence Programs

In 2010, New York State enacted its New York Prudent Management of Institutional Funds Act (NYPMIFA); in 2012 Governor Cuomo promulgated Executive Order 38 capping excess compensation at nonprofits receiving government funding;…more

Compliance, DOL, Healthcare, Medicaid, Medicare

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Ninth Circuit Ices Back-of-House Tip Pools

The Ninth Circuit Court of Appeals has upheld U.S. Department of Labor regulations invalidating tip-pooling arrangements that include kitchen staff and other employees who are not customarily tipped (often referred to as…more

Resorts & Restaurants, Tip-Pooling, Tipped Employees, Tips, Wage and Hour

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Federal Court Nixes City’s Attempt to Use Copyright Law to Curtail Critic’s Speech on YouTube

A California city cannot hold one of its citizens liable for copyright infringement for using clips of city council meetings in his critical YouTube videos, a federal judge has ruled. The August 20, 2015 order in City of…more

City Councils, Copyright, Copyright Infringement, Copyright Litigation, CPRA

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Crowdfunding, Online Payments, and Charitable Fundraising

Nonprofits engaged in fundraising from the general public have been “crowdfunding” for centuries! Now, however, there is a profusion of online crowdfunding platforms of different types, each with its own benefits and attendant…more

501(c)(3), Banks, Capital Raising, Charitable Donations, Crowdfunding

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California Employment Law Update: What’s New for 2016?

The California legislature continued its focus on expanding legal remedies for employees in California. Many of the new laws for 2016, such as the Fair Pay Act and expanded Labor Commissioner powers, make significant changes to…more

Fair Pay Act, FEHA, Labor Commissioners, PAGA, Piece-Rate Pay

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Changing the Changes: 2015 Revisions to the New York Non-Profit Revitalization Act of 2013

The Non-Profit Revitalization Act of 2013 (the “2013 Act”) carried out the first major overhaul of the New York Not-for-Profit Corporation Law (the "NPCL") in four decades. A number of changes to the 2013 Act were enacted in…more

Amended Legislation, Board of Directors, Conflicts of Interest, Governor Cuomo, Non-Profits

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9th Circuit Determines that California Law Restricts a “No-Rehire” Provision in a Settlement Agreement

Under California law, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” (Bus. & Prof. Code §16600) The prohibition pertains even if the…more

Business & Professions Code, Contract Terms, Employer Liability Issues, Hiring & Firing, Settlement Agreements

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Ecology to hold public meetings on updates to human health criteria in Washington’s water quality standards

On September 12 and 16, 2013, Ecology will hold public meetings at its headquarters in Lacey, Washington regarding its rulemaking to update Washington’s surface water quality standards…more

Drinking Water, EPA, Public Safety, Toxic Exposure, Water

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Be Careful with Living Trusts that Own S Corporation Stock

In many states, Living Trusts are a person’s key estate planning document. Living Trusts are created to hold assets during life and then dispose of those assets at death according to the person’s directions (here, we will call…more

Estate Planning, Grantor Trusts, Living Trust, S-Corporation

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Legislation Proposed to Ban Mandatory Arbitration Clauses

On April 29, 2015, Senator Al Franken (D-MN) and Representative Hank Johnson (D-GA) introduced the Arbitration Fairness Act of 2015 (AFA), which would amend the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (FAA), by…more

Arbitration, Federal Arbitration Act, Mandatory Arbitration Clauses, Proposed Amendments

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Life Insurance's Role in Family Business Planning

Family business planning is best served by having a knowledgeable advisory team, and a good team includes an expert on insurance. We found an article discussing the role of life insurance in family business planning in a recent…more

Business Succession, Buy-Sell Agreements, Family Businesses, Insurance Industry, Life Insurance

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New Form Factors in Cobrand and Private-Label Credit Card Program Agreements

Most current cobrand and private-label agreements involve one or, more usually, two parties that are issuing, branding or developing non-traditional form factors alongside or in lieu of plastic cards. Some of these form factors…more

Brand, Credit Cards, Mobile Payments, Servicing Agreements

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Where’s the (TCPA) Harm in That?

Following the U.S. Supreme Court’s ruling in Spokeo v. Robins that plaintiffs must allege a concrete and particularized injury to meet Article III standing requirements, federal district courts across the country are beginning…more

Article III, Corporate Counsel, Debt Collection, Injury-in-Fact, Robocalling

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U.S. Consumer Financial Services Regulation: What to Expect in 2016

At the 2016 Digital Payments Intensive in London, DWT Emerging Payments and Prepaid team leader Andy Lorentz offered attendees insight into some major recent and upcoming developments with respect to regulation of consumer…more

Bank Secrecy Act, CARD Act, CFPB, Cybersecurity, Debt Collection

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Interconnected VoIP Providers Gain Direct Access to Telephone Numbers

On Monday, June 22, 2015, the FCC released a Report and Order establishing a process to authorize interconnected VoIP providers to obtain direct access to telephone numbers. Once the process takes effect (after approval by OMB,…more

FCC, Telecommunications, VoIP, Wireless Industry

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CSBS Emerging Payments Task Force Issues Virtual Currency Policy Framework

The recently formed Emerging Payments Task Force of the Conference of State Bank Supervisors (CSBS) issued a proposed policy on state virtual currency regulation on Dec. 16, 2014 (the “Policy”). The Policy identifies core public…more

Bitcoin, BitLicense, BSA/AML, CSBS, Licensing Rules

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NYPAY: Regulation Prepaid

Last week, DWT Consumer Financial Services team member Tom Scanlon spoke at the June NYPAY panel titled, “Regulating Prepaid: Balance Between Protecting Consumers & Promoting Payments”. NYPAY is a New York-based forum for…more

CFPB, Consumer Financial Products, Disclosure Requirements, Prepaid Payment Products, Regulation Z

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California Court Clarifies Controversial Questions About Medical Staff Peer Review Decisions and the Power of Hospital Boards

Two recent California Court of Appeal opinions decide issues of first impression in the medical staff peer review arena, helping to resolve questions that have long been uncertain and controversial. In the first of the two cases…more

Health Care Providers, Healthcare, Hospitals, Peer Review

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Supreme Court to Revisit the Plaintiff-Friendly “Fraud-on-the-Market” Presumption in Securities Fraud Class Actions

The U.S. Supreme Court is set to decide a case this term that could significantly affect the viability of securities fraud class actions against public companies. The case, Halliburton Co. v. Erica P. John Fund, Inc., will…more

Class Action, Fraud, Fraud-on-the-Market, Halliburton, SCOTUS

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Consumer Financial Protection Bureau Law Enforcement: An Empirical Review

PLA today augments its popular UDAAP Enforcement Action Database page with a link to “Consumer Financial Protection Bureau Law Enforcement: An Empirical Review,” by Professor Christopher L. Peterson. We hope you find it useful…more

CFPB, UDAAP

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EPA’s Audit Policy eDisclosure: Electronic Self-Reporting for Environmental Violations

Reporting uner EPA’s audit policy, which has provided relief from gravity-based penalties to those who self-report, is about to become much easier. This fall, EPA expects to launch a centralized web-based “eDisclosure” portal…more

Disclosure Requirements, eDisclosure, EPA, EPCRA, Penalties

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DoD New Cyber Security Reporting Rules for Contractors

In a move that highlights the changing winds of federal cybersecurity policy, the Department of Defense (“DoD”) has issued an interim Rule (“Rule”) that imposes new security and reporting requirements on federal contractors, and…more

Breach Notification Rule, Cloud Computing, Controlled Unclassified Information, Cybersecurity, Data Protection

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BOLI Issues Long-Awaited Final Regulations for Mandatory Oregon “Sick” Leave

Employers should now finalize policies to comply with Oregon’s 2016 mandatory sick leave law, following publication of the law’s final administrative rules. Although titled “sick” leave, the law protects a broader range of…more

Employee Benefits, Employment Policies, Sick Leave, Wage and Hour

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Oregon Tiered Minimum Wage Increase Effective, July 1, 2016

Oregon’s new minimum wage law which phases in wage increases over a six-year period starts, July 1, 2016. The minimum wage for medium and high density counties – listed below – rises to $9.75. The minimum wage for low density…more

Employer Liability Issues, Minimum Wage, New Regulations, Wage and Hour

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Delaware Bankruptcy Court Denies Motion to Sell Free and Clear of Senior Lien

The Delaware bankruptcy court recently denied a debtors’ motion to sell real estate free and clear of a bank’s senior liens on the properties. The court rejected the debtors’ arguments that the bank could be compelled to take…more

Banks, Commercial Bankruptcy, Debtors, Financial Institutions, Mortgages

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Changing the Changes: 2015 Revisions to the New York Non-Profit Revitalization Act of 2013

The Non-Profit Revitalization Act of 2013 (the “2013 Act”) carried out the first major overhaul of the New York Not-for-Profit Corporation Law (the "NPCL") in four decades. A number of changes to the 2013 Act were enacted in…more

Amended Legislation, Board of Directors, Conflicts of Interest, Governor Cuomo, Non-Profits

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Definition of “PII” Under VPPA Continues to Evolve with 3rd Circuit Ruling

On June 27, 2016, the U.S. Court of Appeals for the Third Circuit became the latest appellate court to weigh how the Video Privacy Protection Act (VPPA or “the Act”) – a 1988 statute meant to protect consumer privacy by…more

COPPA, Corporate Counsel, IP Addresses, Nickelodeon, Personally Identifiable Information

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Vanity Fair Prevails in Libel Suit Brought by Oleg Cassini’s Widow

Oleg Cassini, the designer who created Jacqueline Kennedy’s iconic styles, had been linked or married to the most beautiful women of his day – Grace Kelly, Marilyn Monroe, Anita Ekberg, Gene Tierney, among countless others. But…more

Dismissals, Intentional Infliction of Emotional Distress, Libel, Statute of Limitations

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New OPT STEM Rule Extends Employment Period for Foreign Students; Imposes New Obligations on Employers

The Department of Homeland Security (DHS) has published a revised rule which allows foreign students with degrees in science, technology, engineering, and math (STEM) to extend their 1-year period of Optional Practical Training…more

DHS, E-Verify, Foreign Students, Hiring & Firing, OPT

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IRS Implements New Notice Requirement for Section 501(c)(4) Organizations: Many Organizations Must File by Sept. 6, 2016

Organizations that claim federal tax-exempt status under Section 501(c)(4) must comply with new procedures for notifying the IRS of their intent to operate under Section 501(c)(4), or face potential penalties. The IRS has…more

501(c)(4), Filing Requirements, Form 990, Internal Revenue Code (IRC), IRS

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China’s New Online Information Protection Law

On Dec. 28, 2012, the Standing Committee of China’s National People’s Congress enacted a 12-article Decision on Strengthening Online Information Protection (the “Decision”), without public consultation and after just one…more

China, Data Protection, Internet, Internet Privacy Protection Acts, Internet Service Providers (ISPs)

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Federal Reserve Banks Payment System Improvements Project Moves Forward

Keep your eye on this one. In the fall of 2013, the Federal Reserve Banks launched a study of the US payments system. The study has three targets: first, a faster payment system; second, a more secure payment system; and…more

Banks, Cross-Border, Cross-Border Transactions, Federal Reserve, Payment Systems

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Washington State Producers and Retailers of Mercury-Containing Lights Face New Regulations

The New Year brought with it new obligations for any company that produces or sells mercury-containing lights in (or into) Washington State. As of January 1, 2015, the State’s recycling program and corresponding funding…more

Manufacturers, Mercury, Recycling, Retailers

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FERC Modifies Filing Requirements for Market-Based Rate Sellers and Clarifies Gen-Tie Priority Rights Rules

At its October 2015 meeting, the Federal Energy Regulatory Commission ("FERC" or “Commission”) issued three orders pertaining to its market-based rate regulations. In Order No. 816, the Commission adopted proposals to update its…more

Compliance, Energy Market, Energy Sector, Energy Trading, FERC

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Who Owns the Family Name?

For good reasons family businesses often use a family name in their business names. The use of a family name has a number of benefits, from quickly identifying the familial association with the business to honoring the legacy of…more

Business Ownership, Family Businesses, Ownership Requirements

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Ninth Circuit Ices Back-of-House Tip Pools

The Ninth Circuit Court of Appeals has upheld U.S. Department of Labor regulations invalidating tip-pooling arrangements that include kitchen staff and other employees who are not customarily tipped (often referred to as…more

Resorts & Restaurants, Tip-Pooling, Tipped Employees, Tips, Wage and Hour

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Estate, Gift, and GST Taxes in 2013: American Taxpayer Relief Act of 2012 and Other News

The American Taxpayer Relief Act of 2012 (the “Act”) was signed into law on Jan. 2, 2013, avoiding dramatic changes to tax exemptions and tax rates on transfers subject to federal estate, gift, and generation-skipping transfer…more

American Taxpayer Relief Act, Estate Tax, Generation-Skipping Transfer, Gift-Tax Exemption, Retirement Plan

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Seattle Minimum Wage and Wage Theft Ordinances Take Effect April 1, 2015

Two significant wage-related ordinances take effect on April 1, 2015, impacting all employers with employees who work in Seattle, whether regularly or occasionally. The Seattle Minimum Wage Ordinance: Minimum wages rise for all…more

Local Ordinance, Minimum Wage, Wage and Hour, Wage Theft Prevention Act, Wages

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USDOL Announces 2016 FLSA White-Collar Exemption Final Rules

The U.S. Department of Labor (USDOL) announced adoption of 2016 final regulations changing the white-collar exemption requirements. The new regulations are set to take effect on December 1, 2016, giving employers approximately…more

DOL, Final Rules, FLSA, Minimum Salary, Wage and Hour

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You May Not Be Entitled To Use Your Own Name

Working with several artisan food and alcohol producers as clients, we frequently notice that using one’s own name (first, last, or both) as a brand name in association with one’s goods is very common in these industries…more

Brand, Food Manufacturers, McDonalds, Trademark Trial and Appeal Board, Trademarks

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Mobile Application: Security Best Practices

The industry for mobile applications is growing rapidly. As companies and independent developers look to gain—or strengthen—footholds in this competitive space, the Federal Trade Commission (FTC) asks, “… is security keeping up”…more

Credit Karma, Cybersecurity, Fandango, FTC, Mobile Apps

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Federal Court: Virginia Municipalities Must Treat Telecommunications Providers The Same As All Other Utilities In The Public Right Of Way

On Monday Aug. 8, 2016, the U.S. District Court for the Eastern District of Virginia issued an opinion in Crown Castle v. City of Newport News, holding that Crown Castle proved at trial that the City of Newport News violated…more

Franchise Agreements, Right of Way, Telecommunications, Telecommunications Act

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Seattle Office of Labor Standards Announces “Soft Launch” for Enforcement of Amendments to Labor Standards Ordinances

The Seattle Office of Labor Standards (“OLS”) released guidance on Friday, April 1, 2016, announcing a “soft launch” for enforcing the new amendments to Seattle’s Labor Standards Ordinances (Paid Sick and Safe Time (“PSST”),…more

Labor Standards Enforcement, Local Ordinance, Paid Leave, Posting Requirements, Sick Leave

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California Employment Law Update: What’s New for 2016?

The California legislature continued its focus on expanding legal remedies for employees in California. Many of the new laws for 2016, such as the Fair Pay Act and expanded Labor Commissioner powers, make significant changes to…more

Fair Pay Act, FEHA, Labor Commissioners, PAGA, Piece-Rate Pay

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California Sick Time Law: Beyond the Basics

California’s “Healthy Workplaces, Healthy Families Act of 2014,” otherwise known as California’s Paid Sick Time (or Paid Sick Leave) law, went into effect on Jan. 1, 2015, and will become operative for accrual purposes on July…more

DLSE, Employer Mandates, Healthy Workplace Act, Paid Leave, Sick Leave

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3 Takeaways from the Empire Startups Fintech Conference

On November 10, attorneys from Davis Wright Tremaine LLP attended the Empire Startups Fintech Conference in San Francisco, CA. Partner Wendy Kearns moderated a panel called “Traditional FinServ – Where to Disrupt and When to…more

Bitcoin, Data-Sharing, Financial Institutions, FinTech, Startups

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The Dancing Baby Grooves to Mixed Victory in the Ninth Circuit: Court Holds That DMCA Takedown Notices Require Consideration of Fair Use

Behind the scenes of the Internet’s current swirl of memes, mash-ups, and other viral content is a massive system of takedown notices and counter-notices passing back and forth between content owners, web hosts, and users,…more

Copyright, Copyright Infringement, Copyright Litigation, Corporate Counsel, DMCA

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New 2014 Oregon Employment Laws

Oregon employers are directly affected by several new laws recently passed by the legislature. Most changes went into effect on Jan. 1, 2014, unless otherwise noted. We’ve compiled a summary of the most significant changes for…more

Compliance, Employee Rights, Minimum Wage, Paid Leave, Passwords

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China Tightens Regulation of Online Publications

On Feb. 4, 2016, China’s State Administration of Press, Publication, Radio, Film and Television (“SAPPRFT”) and the Chinese Ministry of Industry and Information Technology jointly released the Administrative Rules on Network…more

China, Digital Media, Foreign Investment, Internet, New Regulations

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Advertising and Issuing Credit Online

DWT’s Payments Team participated in the ABA Consumer Financial Services Committee’s Winter Meeting in Park City, Utah last week. Andrew Owens delivered a presentation on advertising and issuing credit online during the program’s…more

Banking Sector, CARD Act, Disclosure Requirements, E-SIGN, FTC

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Draft of China’s New Foreign Investment Law

On Jan. 19, 2015, the Ministry of Commerce of China (“MOFCOM”) published the draft of the Foreign Investment Law (“draft”) to solicit public comments. The draft, once finalized, will replace the existing Foreign Invested Company…more

China, Foreign Investment, MOFCOM, Proposed Legislation

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The 2015 Amendments to the Federal Rules of Civil Procedure: Changing the Way Civil Litigants Operate in Federal Court

The recent amendments to the Federal Rules of Civil Procedure are the most significant overhaul of the rules governing civil litigation in federal court that we’ve seen in decades, including dramatic changes to the timing and…more

Discovery, Electronically Stored Information, Federal Rules of Civil Procedure, Litigation Strategies, Young Lawyers

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Purchasing D&O Insurance: What Family Owned Businesses Need to Know

One of the insurance policies every business should strongly consider having is directors and officers insurance. Regularly referred to as “D&O insurance”, this is an insurance policy covering directors and officers for claims…more

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FTC, State Regulators, and Apple Weigh in on RadioShack Customer Data Sale

RadioShack filed for Chapter 11 bankruptcy in Delaware bankruptcy court in February, seeking a court-supervised sale of $1.2 billion in assets. Included in the sale is a database of customer information from about 1,700 stores…more

Apple, Business Assets, Chapter 11, Client Data, Commercial Bankruptcy

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Ninth Circuit Recognizes Copyright Interest in Actor’s Performance in Response to Fatwa to Justify Takedown of Video

The Ninth Circuit became the first federal appellate court to hold that an actor has a copyright interest in her performance, holding that a district court abused its discretion in denying a motion for preliminary injunction…more

Actors, Copyright, First Amendment, Free Speech, Google

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Where’s the (TCPA) Harm in That?

Following the U.S. Supreme Court’s ruling in Spokeo v. Robins that plaintiffs must allege a concrete and particularized injury to meet Article III standing requirements, federal district courts across the country are beginning…more

Article III, Corporate Counsel, Debt Collection, Injury-in-Fact, Robocalling

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AP Wins Key Copyright Action: Reselling News Excerpts from Internet Not a Fair Use

On March 21, 2013, the U.S. District Court for the Southern District of New York issued a sweeping decision in favor of DWT’s client, The Associated Press, in its copyright infringement suit against Meltwater News, an online…more

Associated Press, Copyright, Fair Use, Infringement, Meltwater News

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EEOC Issues Proposed Wellness Regulations: Time for Another Check-Up

The Equal Employment Opportunity Commission (EEOC) has finally issued proposed regulations under the Americans with Disabilities Act (ADA) regarding wellness programs. The proposed regulations amend existing regulations and…more

ADA, Affordable Care Act, Corporate Counsel, EEOC, Health Insurance

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Supreme Court to Revisit the Plaintiff-Friendly “Fraud-on-the-Market” Presumption in Securities Fraud Class Actions

The U.S. Supreme Court is set to decide a case this term that could significantly affect the viability of securities fraud class actions against public companies. The case, Halliburton Co. v. Erica P. John Fund, Inc., will…more

Class Action, Fraud, Fraud-on-the-Market, Halliburton, SCOTUS

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California Air Resources Board-Commissioned Report Recommends Ways to Avoid Price Volatility in California’s Cap and Trade Market

Concerned about the potential for price volatility in its cap and trade program, the California Air Resources Board (CARB) commissioned the Market Simulation Group (MSG) at the University of California Energy Institute to look…more

California Air Resources Board, Cap-and-Trade, Carbon Emissions, Environmental Policies, Greenhouse Gas Emissions

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Court Ruling May Subject Hospitals and Health Care Providers to OFCCP Regulation

Hospitals, health care providers, and managers of other businesses across the country may be surprised to learn that under a new federal court ruling, their organizations may now qualify as government contractors or…more

Affirmative Action, Appeals, Compliance, Consent, Healthcare

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Virtual Currency Round-Up: NY Mulls Bitcoin License; FinCEN Issues Opinion Letters on Bitcoin Mining, Software Providers and Bitcoin Investment Activity; Bitcoin is Money, Says WA DFI

New York Department of Financial Services Superintendent Benjamin Lawsky said the agency is considering a “BitLicense” in hearings held Jan. 28-29 in New York City. The Department will develop a virtual currency regulatory…more

Bitcoin, FinCEN, Virtual Currency

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“The War Is Over”: Assemblymember Gatto Introduces Bill to Memorialize CPUC Reform Package

At an August 11th conference organized by the Advanced Energy Economy, Assemblymember Mike Gatto (D-Los Angeles), Chair of the Utilities and Commerce Committee, and California Public Utilities Commission (“CPUC”) President…more

CPUC, Transparency, Utilities Sector

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What Does the New Defend Trade Secrets Act Mean for California Employers?

The Defend Trade Secrets Act (DTSA) allows companies for the first time to file civil lawsuits for trade secrets theft under federal law if the trade secret is “related to a product or service used in, or intended for use in,…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Economic Espionage Act, Ex Parte, Intellectual Property Protection

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FCC Proposes to Eliminate Two Public Inspection File Requirements for Broadcast and Cable

At its Open Meeting on May 25, 2016, the Federal Communications Commission (“FCC”) issued a Notice of Proposed Rulemaking (“NPRM”) proposing to eliminate two public inspection file requirements – one that applies to broadcast…more

Broadcasting, Cable Operators, FCC, NPRM

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Trouble Ahead for One-Day Inpatient Stays: New Pre-Billing Challenges Loom

On Aug. 19, CMS published a final rulemaking that may effectively eliminate DRG Part A payments for most acute care inpatient stays of one day…more

CMS, Healthcare, Hospitals, Medical Expenses, Medicare

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New OPT STEM Rule Extends Employment Period for Foreign Students; Imposes New Obligations on Employers

The Department of Homeland Security (DHS) has published a revised rule which allows foreign students with degrees in science, technology, engineering, and math (STEM) to extend their 1-year period of Optional Practical Training…more

DHS, E-Verify, Foreign Students, Hiring & Firing, OPT

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Alaska Legislature Approves Lower Quorum Requirements for Alaska Native Corporations

The Alaska state legislature recently passed a bill reducing quorum requirements for certain Alaska Native Corporations at their annual shareholder meetings. Under HB 149, which is expected to be signed into law by Alaska…more

Corporate Governance, Native American Issues, New Legislation, Quorum, Shareholder Meetings

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Preserving Your Family Business (or Sale Proceeds) for Generations

As promised, below is a follow-up to my February 29th post. There, I discussed estate tax planning. Below, I want to introduce generation skipping tax planning, using some similar tools. As of 2016, each person has a $5.45…more

Dynasty Trust, Estate Tax, Family Businesses, Generation-Skipping Transfer, Gift-Tax Exemption

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Federal Court: Virginia Municipalities Must Treat Telecommunications Providers The Same As All Other Utilities In The Public Right Of Way

On Monday Aug. 8, 2016, the U.S. District Court for the Eastern District of Virginia issued an opinion in Crown Castle v. City of Newport News, holding that Crown Castle proved at trial that the City of Newport News violated…more

Franchise Agreements, Right of Way, Telecommunications, Telecommunications Act

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New EEOC Procedures Allow Charging Parties Immediate Access to Employer Position Statements

The EEOC has implemented new, nationwide procedures allowing a charging party and/or her representative to request immediate access to the employer’s position statement. More than ever, employers need to carefully consider what…more

Charging Orders, Confidential Information, Discovery, EEOC, Employment Discrimination

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California Updates Existing Utility Pole Rules to Improve Safety and Reliability

The California Public Utilities Commission (“CPUC”) released a unanimous decision amending the rules governing design, construction, and maintenance of outdoor overhead power and communication lines. The 16 amendments are…more

CPUC, Infrastructure, Public Utility, Telecommunications

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SCOTUS Clears District Court Jam Over Test for Standing in False Advertising Cases

Printing has not been this interesting since Dwight Schrute and Jim Halpert bickered over paper sales and Michael Scott told off-color jokes in “The Office.” Last week, the U.S. Supreme Court stepped into the laser…more

Advertising, AT&T, False Advertising, Lanham Act, Lexmark

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CFPB Proposes Changes to Mortgage Industry

The Consumer Financial Protection Bureau recently issued a proposed rule regarding integrated disclosure for mortgage transactions and, more recently, published a policy paper regarding loss mitigation programs in housing…more

CFPB, Disclosure Requirements, Mortgages, Popular, Proposed Amendments

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Materiality Matters: SCOTUS Rules on FCA Implied Certification

In a unanimous decision issued on June 16, 2016, in Universal Health Inc. v. U.S. et al. ex rel. Escobar et al. the United States Supreme Court resolved a circuit split and held that an “implied certification” theory can provide…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Implied Certification, Medicaid

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Berkeley's Measure D: What Distributors, Restaurants and Retailers need to know about the Berkeley "Sugar Tax"

According to its backers, the Berkeley “Sugar Tax” is the future of sugar in America. Berkeley’s Measure “D,” which garnered an overwhelming 75% “yes” vote, imposes a general excise tax of $0.01 per ounce on the distribution of…more

Distributors, Food Manufacturers, Grocery Stores, Local Ordinance, New Legislation

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Internet Service Providers and Oldies Fans Rejoice: Second Circuit Holds the DMCA Safe Harbor Covers Pre-1972 Sound Recordings

The Second Circuit’s decision last week in Capitol Records, LLC v. Vimeo, LLC was a victory for internet service providers who host third-party content. It plugged a major loophole in the DMCA safe harbor for information stored…more

Copyright, Copyright Infringement, DMCA, Internet Service Providers (ISPs), Safe Harbors

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[Webinar] Provider Networks: Avoiding Antitrust Trouble - Oct. 15th, 10:00am PDT

The Affordable Care Act encourages providers to collaborate to improve health care. But the antitrust enforcement agencies have warned providers that “too much” collaboration can run afoul of the antitrust laws. How do providers…more

ACOs, Affordable Care Act, Antitrust Investigations, Antitrust Litigation, Government Investigations

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Marijuana, Banking, and the “10-Foot Pole”

On February 14, 2014, the Financial Crimes Enforcement Network (“FinCEN”) issued guidance aimed at clarifying Bank Secrecy Act expectations for financial institutions interested in providing services to marijuana-related…more

Bank Secrecy Act, DOJ, FinCEN, Marijuana, Medical Marijuana

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Tools to Defend Against Securities Litigation Arising out of Cross-Border M&A Transactions

Litigation following a merger involving publicly traded companies has become so commonplace in recent years that shareholder lawsuits challenging proposed mergers and acquisitions are frequently (and begrudgingly) referred to as…more

Cross-Border Transactions, Defense Strategies, Publicly-Traded Companies, Securities Litigation, Shareholder Litigation

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Beyond FMLA Leave: The Undefined Limits of Leave As a Reasonable Accommodation

Under the Equal Employment Opportunity Commission’s (EEOC) new guidance on employee disability leaves, employers are required to provide disability accommodation leave and reinstatement rights even for disabled employees who…more

ADA, EEOC, FMLA, Medical Leave, Reasonable Accommodation

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Increased Risk for Buyers of Credit Card Loans

Third party debt buyers may face increased threat of state-law class action lawsuits after a recent Second Circuit ruling prohibiting such debt buyers from invoking federal preemption defenses under the National Bank Act to…more

Bank of America, Banking Sector, Banks, Class Action, Credit Cards

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New York State Adopts Paid Family Leave and $15/Hour Minimum Wage

New York state has enacted two new major employment laws that all New York employers need to prepare for: (1) the most comprehensive paid family leave law in the country commencing in 2018; and (2) beginning Dec. 31, 2016,…more

Governor Cuomo, Minimum Wage, Paid Leave, Parental Leave, Wage and Hour

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Ninth Circuit Finds First Amendment Protects Against Right Of Publicity Claim Involving Film “The Hurt Locker”

The Ninth Circuit has confirmed that right of publicity claims purporting to arise from expressive works, like films, are content-based restrictions on speech that are presumptively unconstitutional, and generally should not…more

Anti-SLAPP, Breach of Contract, Defamation, False Light, First Amendment

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New York State Adopts Paid Family Leave and $15/Hour Minimum Wage

New York state has enacted two new major employment laws that all New York employers need to prepare for: (1) the most comprehensive paid family leave law in the country commencing in 2018; and (2) beginning Dec. 31, 2016,…more

Governor Cuomo, Minimum Wage, Paid Leave, Parental Leave, Wage and Hour

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SOX Whistleblower Protections Now Cover Employees of Private Contractors

Until this month, the onerous (for employers) anti-retaliation protection in Section 1514A of the Sarbanes-Oxley Act (SOX) only applied to employees of publicly traded corporations. But, in a widely reported decision, Lawson v…more

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

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“The War Is Over”: Assemblymember Gatto Introduces Bill to Memorialize CPUC Reform Package

At an August 11th conference organized by the Advanced Energy Economy, Assemblymember Mike Gatto (D-Los Angeles), Chair of the Utilities and Commerce Committee, and California Public Utilities Commission (“CPUC”) President…more

CPUC, Transparency, Utilities Sector

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