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Keith Baldwin

Serving as a Non-family Board Member of a Family Business

You have been approached by a long-time friend, the CFO of a family-owned business who is herself a member of the family. She asks if you might be interested in serving on the board of her family’s company. You are honored, of…more

Board of Directors, Family Businesses

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Robert Balin

UK Court of Appeal Holds That, Upon Notice, Google May Be Liable For Defamatory User-Generated Content on Blogging Platform Operated by Google

In a unanimous ruling issued on Thursday, Feb. 14, 2013, the England and Wales Court of Appeal held that Google may be deemed a “publisher” of (and held liable for) defamatory user-generated content appearing in blogs hosted by…more

Blogging Platforms, Defamation, Defamation Act, Google, Internet

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Louisa Barash

New Omnibus Rule Released: HIPAA Puts on More Weight

On Jan. 17, 2013, the Department of Health and Human Services (HHS) released the long-awaited “Omnibus Rule,” which amends the administrative simplification provisions of the Health Insurance Portability and Accountability Act…more

Business Associates, Covered Entities, Data Breach, Data Protection, Enforcement

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Mark N. Bartlett

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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Sam Bayard

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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Jeff Belfiglio

New Health FSA Carryover Rule Poses Tough Choices for Plan Sponsors

The IRS has announced new, long-requested relief from the “use it or lose it” rule that will allow health flexible spending account (FSA) participants to carry over up to $500 of unused contributions to the next plan year if…more

Benefit Plan Sponsors, Carryover Basis, Flexible Spending Accounts, Healthcare, IRS

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Glenn Benson

FERC Provides Important Guidance Regarding Confidentiality Agreements and “Duty to Support” Clauses

Yesterday, I wrote a blog post describing a FERC order that, for the first time ever, would have allowed an interstate oil pipeline to grant preferential rates and capacity rights to shippers making volume commitments through an…more

Confidentiality Agreements, Energy, FERC, Oil & Gas, Pipelines

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Carol Bernick

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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Mark W. Berry

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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Sarah Bhagwandin

Business Associate Agreements: Time to Update

If you sponsor a group health plan that is subject to the HIPAA Privacy and Security Rules, it is time to review and potentially update your business associate agreements…more

Business Associates, Employer Group Health Plans, Health Plan Sponsors, HHS, HIPAA

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Richard Birmingham

New IRS Guidance on Tax Treatment of Employer-Provided Benefits for Same-Sex Spouses

The U.S. Supreme Court’s decision in U.S. v. Windsor changed the tax treatment of benefits provided to legally married same-sex spouses and their dependents. Prior to the Windsor decision, employers were required to treat any…more

Employee Benefits, FICA Taxes, FUTA, IRS, Same-Sex Marriage

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Kristen Blanchette

Sebelius: "Qualified Health Plans Are Not Federal Health Care Programs"

In a letter to Rep. Jim McDermott dated Oct. 30, 2013, Department of Health and Human Services Secretary Kathleen Sebelius clarified that qualified health plans (“QHPs”) available on the health insurance exchanges under the…more

Affordable Care Act, Anti-Kickback Statute, Health Insurance Exchanges, Healthcare, HHS

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Jeffrey Bosley

San Francisco Enacts Ordinance Restricting Employers’ Ability to Ask About and Use Criminal History

Effective Aug. 13, 2014, a new San Francisco ordinance prohibits private employers and city contractors from asking job applicants about their criminal history until after the first interview. The Fair Chance ordinance also…more

Ban the Box, Criminal Background Checks, Criminal Records

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Burt Braverman

FTC, DOJ Issue Antitrust Policy Statement Encouraging Private Sharing of Cybersecurity Information

The Federal Trade Commission and the Department of Justice yesterday issued a joint policy statement on the sharing of cybersecurity information. Declaring that “properly designed cyber threat information sharing is not likely…more

Antitrust Provisions, Barack Obama, Cybersecurity, DOJ, ECPA

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Scott Broadwell

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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Maria T. Browne

IP Video Closed Captioning Reminder: Archival Programming That Airs on TV with Captions Must Be Captioned Online Within 45 Days of TV Distribution Starting March 30, 2014

The next phase of Federal Communications Commission (FCC) requirements implementing the Twenty-First Century Communications and Video Accessibility Act (CVAA) is set to take effect for closed-captioning video programming…more

Closed Captioning, CVAA, FCC, Internet

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Michele Buck-Romero

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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Anna Buono

"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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Larry Burke

West Virginia Chemical Spill Likely to Bring Oil and Chemical Inspections and Perhaps Regulatory Changes for Facilities with Large Above Ground Storage Tanks (“AST’s”)

Last Thursday residents of Kanawha County reported a foul licorice odor in the air. State and local officials traced the smell to a leak from a 35,000-gallon above ground storage tank along the Elk River. The chemical had…more

Chemicals, Contaminated Properties, Contamination, Discharge of Pollutants, Toxic Exposure

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Thomas Burke

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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Benjamin Byer

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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Ron Cai

Amendments to the Company Law of the People's Republic of China

On Dec. 12, 2013, the sixth meeting of the Standing Committee of the 12th Session of the National People’s Congress amended 12 provisions of the Company Law of the People's Republic of China (the “Company Law”). These changes to…more

China, Reporting Requirements, Share Capital, Shareholders

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David Callahan

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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Camille Calman

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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John Cameron

Senator Wyden Urges FERC to Support Regional Flexibility in Order No. 1000 Compliance Filings by Northwestern Utilities

In a letter to FERC Chairman Jon Wellinghoff dated March 5, 2013, Senator Ron Wyden (D-OR), the new Chairman of the Senate Energy and Natural Resources Committee, strongly urged the FERC to support principles of regional…more

FERC, Order No. 1000, Tariffs

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Betsy Carroll

California Employment Law Update: What’s New for 2014

The California Legislature was unusually active this year. Significantly, California increased the state minimum wage, created new “unfair immigration-related practices,” and expanded protections for whistleblowers. All laws…more

Attorney's Fees, Crime Victims, Damages, Data Breach, Data Protection

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Christina Chan

SEC Approves New Corporate Governance Listing Standards for Compensation Committees and Advisers

On Jan. 11, 2013, the Securities and Exchange Commission (the “SEC”) approved amended corporate governance listing standards for the New York Stock Exchange (the “NYSE”) and the Nasdaq Stock Market (the “Nasdaq”). The amended…more

Compensation Committee, Dodd-Frank, Independence Rules, Listing Standards, Nasdaq

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Pamela Charles

Additional IRS Guidance on “Beginning of Construction” for ATRA 2012 Tax Credit Extensions

The IRS has released additional guidance (IRS Notice 2013-60) on satisfying the new “beginning of construction” requirement for the renewable energy production tax credit under Code Section 45 (PTC) and energy investment tax…more

Construction Contracts, Energy Policy, Investment Tax Credits, IRS, ITC

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Jeremy Chase

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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Margaret Claybour

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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Heather Coldwell

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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Jeffrey B. Coopersmith

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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Robert Corn-Revere

Supreme Court Reiterates that New York Times Actual Malice Standard Requires Materially False Statements

On Monday, Jan. 27, 2014, the Supreme Court unanimously reversed a $1.2 million Colorado defamation verdict in the case of Air Wisconsin Airlines Corp. v. Hoeper—a notable decision for a court that rarely accepts libel cases…more

Actual Malice, Air Wisconsin v. Hoeper, ATSA, Defamation, First Amendment

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Allison Davis

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 Projects, Public-Private Partnerships, Renewable Energy, Solar Energy

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Elizabeth Deckman

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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Dennis Diaz

Influential Appeals Court Rejects Attempt by Former In-House Counsel to Use Privileged Information Against Company in Whistleblower Lawsuit

The pool of potential qui tam relators may have just shrunk a little, based on a recent decision by the 2nd Circuit Court of Appeals that has put the ability of in-house lawyers to become qui tam relators into serious question…more

Attorney-Client Privilege, Confidential Information, Corporate Counsel, Legal Ethics, Qui Tam

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Victoria Ding

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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John Dodge

Unsettled Settlements(?): The Effect of an Invalidated Recess Appointment on the CFPB Director’s Authority to Settle Proceedings

The constitutionality of President Obama’s recess appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau (“CFPB”) is being challenged in a lawsuit filed in the U.S. District Court for the District…more

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Lisa Doehl

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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Ambika Kumar Doran

Court of Appeals Rejects Constitutional Challenges to Anti-SLAPP Statute, Affirms Dismissal of Lawsuit Targeting Allegedly Unlawful Boycott and $10,000 Statutory Award for Each Defendant

In one of the first published decisions to interpret Washington’s new anti-SLAPP statute, the Washington Court of Appeals this week affirmed a trial court’s dismissal of a lawsuit that arose from a consumer boycott of Israeli…more

Anti-SLAPP, First Amendment, Olympia Food Co-op

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Robert Driscoll

“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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Mary E. Drobka

FMLA Rights Extended to Same-Sex Spouses Based on Law of State Where Employee Resides

The Department of Labor (DOL) recently updated Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act. For purposes of the Family and Medical Leave Act (FMLA), the term “spouse” includes a same-sex…more

DOL, Employee Benefits, Employee Rights, FMLA, Residency Status

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Elizabeth Drogula

Second Circuit Confirms Town Of Greenburgh Unlawfully Denied Crown Castle DAS Network

On Friday, Jan. 17, 2014, the U.S. Court of Appeals for the Second Circuit affirmed that the Town of Greenburgh, New York, had unlawfully denied Crown Castle’s application to install a 20 node distributed antenna system (DAS) in…more

Cell Towers, Communications Act of 1934, Crown Castle, Municipalities, Shot Clock

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Kathleen Drummy

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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Bradley Duncan

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, Secured Lenders

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Stuart Dunwoody

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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Sarah Duran

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

Bennett, Discovery, Ishikawa, Right of Access, Sealed Records

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Jane Eckels

Health Information Technology Policy Committee Approves MU Stage 3 Recommendations

On March 11, the Health IT Policy Committee (HITPC) voted to approve the meaningful use workgroup’s Stage 3 recommendations. The federal advisory committee’s recommendations will be presented to the Centers for Medicare &…more

CMS, Data Protection, EHR, Healthcare, PHI

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Chip English

California Appellate Court Holds That Federal Law Preempts Unfair Competition Law Claims Tied to Organic Label

In a case of first impression in the state courts, a California appellate court delivered an early Christmas present Dec. 23 to beleaguered food and beverage companies facing an avalanche of lawsuits under California’s Unfair…more

ConAgra, Food Labeling, Labeling, Organic, Preemption

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David Ernst

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

Certificates of Analysis, DOJ, EU, FDCA, Food Contamination

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Sarah S. Fallows

FTC’s 50th Data Security Settlement Sends a Message: Be Careful with Overseas Contractors

The Federal Trade Commission (FTC) sent a message about the importance of imposing appropriate security measures on—and monitoring—vendors with access to confidential consumer information. The FTC issued a 20-year consent order…more

Compliance, Contractors, Data Breach, Data Protection, Due Diligence

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Gwen Fanger

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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Henry Farber

Preparing for the Aug. 29 Restaurant Workers Strike and Beyond

Non-union restaurant workers are being urged to strike nationally on Aug. 29 by unions and others hoping to raise industry wages and promote union representation…more

Employee Rights, Non-Union, Restaurant Industry, Strike, Wage and Hour

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Eric Feder

The Aereo and ReDigi Decisions: Courts Continue to Wrestle With the Application of Copyright Law to the Redistribution of Digital Content

A series of recent decisions in the Second and Ninth Circuits—including Viacom v. YouTube and UMG v. Veoh (both dealing with the distribution of user-posted copyrighted content by video hosting services) and AP v. Meltwater…more

Copyright, Digital Goods, First Sale Doctrine, Music, Redistribution

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Nancy Felsten

Supreme Court Grants Certiorari in POM’s Attack on FDCA/Lanham Act Preemption

On Friday, the Supreme Court granted the certiorari petition of Pom Wonderful in its Lanham Act false advertising case against Coca-Cola. Pom Wonderful LLC v. Coca Cola Co., 679 F.3d 1170 (9th Cir. 2012), cert granted, ___…more

Advertising, Coca Cola, False Advertising, FDA, FDCA

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Peter G. Finch

NLRB Takes Another Run at “Quickie” Election Procedures

The National Labor Relations Board announced Wednesday that it is again proposing changes to its election procedures, ostensibly to “improve the process for all parties, in all cases, whether non-union employees are seeking a…more

Decertify, NLRB, Quickie Election Rules, Union Elections, Unions

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Gregory Fisher

NLRB Regional Director Rules College Scholarship Athletes Are ‘Employees’

The director of Region 13 of the National Labor Relations Board ruled last week that scholarship football players at Northwestern University were “employees” within the meaning of the National Labor Relations Act, and therefore…more

College Athletes, NLRA, NLRB, Unions

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James Flaggert

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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Jean M. Flannery

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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Carolyn Foley

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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Danielle Frappier

New Federal Poverty Guidelines for 2014 Released

The Department of Health and Human Services released its annual update of the federal poverty guidelines (“FPG”) for 2014. This updates the income levels used to qualify applicants for Lifeline-supported service, although most…more

Federal Poverty Line, HHS, Poverty

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Jennifer Frewer

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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Jason Froggatt

Business Associate Agreements: Time to Update

If you sponsor a group health plan that is subject to the HIPAA Privacy and Security Rules, it is time to review and potentially update your business associate agreements…more

Business Associates, Employer Group Health Plans, Health Plan Sponsors, HHS, HIPAA

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Randy Gainer

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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Angela Galloway

Lifeline Database Update: NLAD Operational in All States, FCC Announces Success

The FCC’s National Lifeline Accountability Database (“NLAD”) now is operational in all states and has already had a significant impact in reducing waste, fraud, and abuse. The FCC announced today that, so far, the NLAD has…more

FCC, Fraud, Fraud and Abuse, NLAD, Waste

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Craig Gannett

Is Carbon Capture and Sequestration the Best or Even an Achievable Control Technology To Reduce Carbon Dioxide Emissions from Coal-Fired Power Plants?

EPA’s proposed greenhouse gas emission standards for new power plants rest on the agency’s finding that carbon capture and sequestration (CCS) technologies are “achievable” and the “best system” for the reduction of carbon…more

Carbon Capture and Sequestration, Carbon Emissions, Clean Air Act, Coal-Fired Generation, Coal-Fired Plants

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David Gee

HHS Delays Require Changes to Notice of Privacy Practices for Certain Clinical Laboratories

Last week the Department of Health and Human Services (“HHS”) announced that it has postponed the Sept. 23, 2013, HIPAA Omnibus Rule deadline for many clinical laboratories to revise their notices of privacy practices (“NPPs”)…more

Clinical Laboratories, HHS, HIPAA, HIPAA Omnibus Rule, Notice of Privacy Practices

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Michael Gelardi

Oregon Court Limits Agri-tourism at Farm Stands

A land use decision by the Oregon Court of Appeals could impact farm marketing activities across the state, imposing new permitting requirements and forcing changes to business operations. The case, Greenfield v…more

Farms, Tourists

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Gerald George

Contingent Valuation Returns?

The latest battle in the timber wars provides vividly contrasting views of the impact of last summer’s Rim fire, which burned across over 250,000 acres in the Stanislaus National Forest, Yosemite National Park and on private…more

Environmental Policies, FEMA, Timber, Valuation, Wildfires

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Richard A. Gibbs

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

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Frederick Giroux

FCC Announces Retransmission Consent Reform

Confronted with rapidly increasing retransmission consent costs, the cable and DBS industries have actively sought legislative and regulatory reform for several years without success. The FCC today took two significant steps in…more

Broadcasting, Consent Agreements, FCC, Television Broadcast Stations

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Ryan Gist

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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Jeff Glasser

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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Richard Glick

Square Pegs in Round Holes

The Western states face two reciprocating and overarching problems in water resources policy. First, water is an increasingly scarce resource facing sharply competitive needs. Climate change is projected to put even more strain…more

Appropriation, Clean Water Act, Groundwater, Industrial Discharges, Natural Resources

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Paul Glist

California AG Weighs in on Cybersecurity

Just as NIST completes its version 1.0 national Framework for Improving Critical Infrastructure Cybersecurity, California Attorney General Kamala Harris has made clear she intends a leadership role for California. With a guide…more

Cybersecurity, Cybersecurity Framework, NIST

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John A. Goldmark

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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Kyle Gotchy

Legislature Amends Washington Anti-Rebate Statute

In a thoughtful amendment to Washington’s Anti-Rebate Statute, the Legislature has aligned the parameters of chapter 19.68 RCW with those of the federal Anti-Kickback Statute, granting greater protection for EHR donation…more

Anti-Corruption, Anti-Kickback Statute, Anti-Rebate Statutes, Charitable Donations, EHR

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Clayton Graham

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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Patrick Green

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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Adam H. Greene

OCR Releases Information on What Phase 2 HIPAA Audits Will Look Like

The HHS Office for Civil Rights (OCR) recently presented information about the new look of its Phase 2 audit program. The new audits will look little like the old ones, with OCR conducting the audits itself and focusing on more…more

Audits, Data Protection, EHR, HHS, HIPAA

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Cary Greene

FDA Proposal Seeks to Prevent Food Terrorism

As FDA implements the various sections of the Food Safety Modernization Act (FSMA) through rulemaking, the agency continues to convey a pragmatic approach complicated by regulatory reality. With its latest proposal, FDA attempts…more

FDA, Food Safety, FSMA, Terrorist Threats

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Janet Grumer

California Employment Law Update: What’s New for 2014

The California Legislature was unusually active this year. Significantly, California increased the state minimum wage, created new “unfair immigration-related practices,” and expanded protections for whistleblowers. All laws…more

Attorney's Fees, Crime Victims, Damages, Data Breach, Data Protection

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Brad Guyton

EU High Court Overturns Telecom Data Retention Requirements

The Court of Justice of the European Union, the highest court in the EU, declared the EU’s 2006 Data Retention Directive invalid in a judgment issued on April 8, 2014. The directive, which has been implemented via national…more

Data Retention, Electronic Communications, EU, Internet Privacy, ISPs

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K.C. Halm

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

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Christine Hawkins

FMLA Rights Extended to Same-Sex Spouses Based on Law of State Where Employee Resides

The Department of Labor (DOL) recently updated Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act. For purposes of the Family and Medical Leave Act (FMLA), the term “spouse” includes a same-sex…more

DOL, Employee Benefits, Employee Rights, FMLA, Residency Status

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Lisa Rediger Hayward

Emerging EHR Risks: When Documentation May Not Be Enough (or Too Much)

Today’s Electronic Health Record (EHR) technologies feature many tools that help providers practice more efficiently and allow them to spend more time caring for patients. However, the federal government recently has posted…more

Audits, CMS, EHR, Electronic Records, MACs

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Christopher Helm

DOMA Decision: Same-Sex Couples Can File Marriage-Based Immigration Petitions

Last week, the U.S. Supreme Court in United States v. Windsor, 570 U.S. ___ (2013) ruled that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Shortly after, Janet Napolitano, the Secretary of the Department…more

Civil Unions, DOMA, Domestic Partnership, Immigrants, Immigration Procedures

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Karen Henry

The 9th Circuit Shows Luvdarts No Love

Last week, the 9th Circuit affirmed the district court’s decision in Luvdarts, LLC, et al. v. AT&T Mobility, LLC, et al., dismissing with prejudice the vicarious and contributory infringement claims brought by Luvdarts, LLC and…more

Copyright, Ludvarts v AT&T Mobility, Mobile Devices, Twombly/Iqbal Pleading Standard, Vicarious Infringement

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Joseph P. Hoag

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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Robert G. Homchick

Legislature Amends Washington Anti-Rebate Statute

In a thoughtful amendment to Washington’s Anti-Rebate Statute, the Legislature has aligned the parameters of chapter 19.68 RCW with those of the federal Anti-Kickback Statute, granting greater protection for EHR donation…more

Anti-Corruption, Anti-Kickback Statute, Anti-Rebate Statutes, Charitable Donations, EHR

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Steven Horvitz

FCC Announces Retransmission Consent Reform

Confronted with rapidly increasing retransmission consent costs, the cable and DBS industries have actively sought legislative and regulatory reform for several years without success. The FCC today took two significant steps in…more

Broadcasting, Consent Agreements, FCC, Television Broadcast Stations

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Alan Huang

New Regulatory Measures for Internet Transactions in China

On Jan. 26, 2014, the Chinese State Administration for Industry and Commerce (“SAIC”) promulgated the Regulatory Measures for Internet Transactions (the “New Measures”). The New Measures, which took effect on March 15, 2014,…more

China, Internet, SAIC

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Paul B. Hudson

Annual FCC CPNI Certification Due by March 3, 2014

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

Certifications, FCC, Filing Requirements, Telecommunications, VoIP

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Lawton Humphrey

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

Arrest and Conviction Records, Criminal Background Checks, EEOC, Enforcement Guidance, Strategic Enforcement Plan

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Brian J. Hurh

DC Circuit Durbin Decision Available on PLA

We have added the DC Circuit Court of Appeals “Durbin” decision to our Regulatory and Compliance Resources page. The decision overturned a lower court’s ruling that had largely vacated the “Durbin Amendment,” a set of rules…more

Compliance, Durbin Amendment Rules

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Amy Hwang

Extension of Participant Fee Disclosure Deadline Is Available for 2013 or 2014

The Department of Labor has provided plan administrators with a one-time opportunity to delay annual distribution of investment information to retirement plan participants for up to 6 months in 2013 or 2014…more

Benefit Plan Sponsors, Deadlines, Delays, DOL, ERISA

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James Ireland

U.S. Court of Appeals for the D.C. Circuit Upholds FCC’s April 2011 Pole Attachment Order

In a significant victory for cable and telecommunications providers, today the U.S. Court of Appeals for the District of Columbia Circuit, in a unanimous opinion, upheld the FCC’s April 2011 decision (2011 Pole Order) lowering…more

Cable Television Providers, FCC, ILEC, National Broadband Plan, Pole Attachment Order

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Peter Isola

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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Bruce Johnson

Court of Appeals Rejects Constitutional Challenges to Anti-SLAPP Statute, Affirms Dismissal of Lawsuit Targeting Allegedly Unlawful Boycott and $10,000 Statutory Award for Each Defendant

In one of the first published decisions to interpret Washington’s new anti-SLAPP statute, the Washington Court of Appeals this week affirmed a trial court’s dismissal of a lawsuit that arose from a consumer boycott of Israeli…more

Anti-SLAPP, First Amendment, Olympia Food Co-op

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Barbara Jost

BSEE and Coast Guard Sign Memorandum of Agreement for Regulating Mobile Offshore Drilling Units

On June 4, 2013, the U.S. Department of the Interior’s Bureau of Safety and Environmental Enforcement (“BSEE”) and the U.S. Coast Guard signed a Memorandum of Agreement regarding division of lead agency responsibilities between…more

Bureau of Safety and Envirnonmental Enforcement, Coast Guard, Memorandum of Agreement, MODUs, Offshore Drilling

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Mike Jungreis

Regulatory Issues Cause ConocoPhillips to Join Shell Oil in Suspending its Drilling Program in Arctic Waters off Alaska

Today, ConocoPhillips announced that it is suspending its drilling program in the Chukchi Sea off the northwest coast of Alaska for 2014, due to uncertainty regarding the changing regulatory requirements. …more

Arctic Drilling, ConocoPhillips, Offshore Drilling

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Nicholas Kampars

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

Certificates of Analysis, DOJ, EU, FDCA, Food Contamination

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Amy Kauppila

Health Information Technology Policy Committee Approves MU Stage 3 Recommendations

On March 11, the Health IT Policy Committee (HITPC) voted to approve the meaningful use workgroup’s Stage 3 recommendations. The federal advisory committee’s recommendations will be presented to the Centers for Medicare &…more

CMS, Data Protection, EHR, Healthcare, PHI

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Terri Keville

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

Healthcare, Healthcare Professionals, Hospitals, Peer Review

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Judith Droz Keyes

San Francisco Enacts Ordinance Restricting Employers’ Ability to Ask About and Use Criminal History

Effective Aug. 13, 2014, a new San Francisco ordinance prohibits private employers and city contractors from asking job applicants about their criminal history until after the first interview. The Fair Chance ordinance also…more

Ban the Box, Criminal Background Checks, Criminal Records

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Richard Klobucher

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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Lance Koonce

Part III: Has Congress Spoken and Does It Really Matter? The Wyndham Worldwide Case and the Expanding Power of the FTC to Police Data Security

In the first and second parts of this series, we provided a summary of the District Court of New Jersey’s recent decision in FTC v. Wyndham Worldwide Corp. and then focused on whether the FTC has given “fair notice” to companies…more

Data Protection, FTC, Jurisdiction, Wyndham

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J. Riley Lagesen

Preparing for the Aug. 29 Restaurant Workers Strike and Beyond

Non-union restaurant workers are being urged to strike nationally on Aug. 29 by unions and others hoping to raise industry wages and promote union representation…more

Employee Rights, Non-Union, Restaurant Industry, Strike, Wage and Hour

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David Lawson

IRS Issues New Guidance for Exempt Hospitals: Proposed Procedures for Correcting and Disclosing Violations of Section 501(r)

The IRS has issued new guidance to assist Section 501(c)(3) nonprofit hospital organizations in complying with the requirements of Section 501(r), enacted by the Affordable Care Act…more

501(c)(3), Exempt Organizations, Hospitals, IRS, Non-Profits

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Ame Wellman Lewis

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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Douglas Lloyd

Do You Need a Living Trust?

There is a good chance that someone you know, perhaps a friend, family member, or financial advisor, has told you that you need a “Living Trust” rather than a Will. Are they right? Living Trusts have become increasingly popular…more

Estate Planning, Living Trust

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Jonathan Lloyd

“Responsible Conduct” by Enforcement Targets May Justify Favorable Treatment

Earlier this week, the Consumer Financial Protection Bureau (CFPB) issued CFPB Bulletin 2013-06 (the Bulletin), entitled Responsible Business Conduct: Self-Policing, Self-Reporting, Remediation, and Cooperation…more

CFPB, Enforcement Actions, Remediation, Responsible Business Conduct, Self-Policing

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G. Matthew Loftin

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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Ronald London

FTC Continues Its Pursuit of "Robocalling" Platforms

With its latest settlement, the Federal Trade Commission shows that its prior targeting of prerecorded voice dialing platforms, as opposed to those who use them to place “robocalls,” was no one-off initiative, and that it has…more

Do Not Call List, FTC, Marketing, Robocalling, Settlement

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Andrew Lorentz

DWT Joins RAMP Advisory Board

Davis Wright Tremaine (DWT) has recently joined the advisory board of the RAMP Advanced Commerce and Mobile Retail Services Summit (www.retailramp.com), an organization focused on bringing together retailers, restaurants and…more

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Randall B. Lowe

FCC Creates an Annual $400 Million Healthcare Connect Fund for Broadband Services and Infrastructure

On Dec. 21, the FCC released its long-awaited Report and Order reforming its funding mechanisms for rural health care by creating a Healthcare Connect Fund (HCF) of $400 million annually…more

Broadband, FCC, Healthcare, Healthcare Connect Fund, Rural Health Care Program

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Peter Luce

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

Bitcoins, FinCEN, Virtual Currency

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Abbie Maliniak

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

Healthcare, Healthcare Professionals, Hospitals, Peer Review

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Brendan Mangan

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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James H. Mann

College Debit Cards

PLA today posts the GAO’s report, issued last month, analyzing the market for college debit cards and expressing concern about “students’ access to no-fee ATMs, schools’ influence over students’ banking and payment choices,…more

Colleges, Debit Cards, GAO, Students

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Lynn Manolopoulos

Family Businesses and Environmental Liability

We all know that environmental laws impose heavy liability on businesses that release environmental contaminants into the air, soil or water. The family business is not immune to such liability. In fact, many multi-generational…more

Contaminated Properties, Environmental Assessments, Environmental Liability, Family Businesses, Real Estate Market

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Chrys A. Martin

Oregon Restricts Employers' Access to Private Social Media Accounts

Oregon recently joined numerous states in prohibiting employers from seeking access to employees’ or prospective employees’ private social-media accounts, personal email, and other online content…more

Employee Rights, Passwords, Social Media

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Hugh McCullough

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, Secured Lenders

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Christin McMeley

Part III: Has Congress Spoken and Does It Really Matter? The Wyndham Worldwide Case and the Expanding Power of the FTC to Police Data Security

In the first and second parts of this series, we provided a summary of the District Court of New Jersey’s recent decision in FTC v. Wyndham Worldwide Corp. and then focused on whether the FTC has given “fair notice” to companies…more

Data Protection, FTC, Jurisdiction, Wyndham

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Elizabeth McNamara

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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Marisa Meltebeke

New Rules Allow Members of Oregon Nonprofit Corporations to Participate in Meetings Remotely

As of Jan. 1, 2014, members of Oregon nonprofit corporations may participate in membership meetings by remote communication, provided certain safeguards are in place. Directors of Oregon nonprofit corporations have long been…more

Non-Profits, Public Meetings, Telecommunications, Telecommuting

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Fraser Mendel

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, ISPs

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Craig Miller

Protection Against Discovery of SARs and Related Internal Investigation Documents Given Resounding Endorsement by Washington State Court

The Bank Secrecy Act prohibits financial institutions from producing Suspicious Activity Reports and documents related to internal monitoring and investigations that are intended to “detect fraud and money laundering.” The BSA’s…more

Bank Secrecy Act, Banks, Discovery, Internal Investigations, Suspicious Activity Reports

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James Mitchell

FERC to Review Limitations on Payment of Dividends by Public Utilities from Capital Accounts

The Federal Energy Regulatory Commission recently announced that it intends to review whether to grant blanket relief to certain public utilities from the prohibition in the Federal Power Act against payment of dividends by…more

Dividends, Exelon Generation, Federal Power Act, FERC, Shareholders

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Jenna Mooney

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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Malcolm Moore

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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Leslie Gallagher Moylan

California AG Weighs in on Cybersecurity

Just as NIST completes its version 1.0 national Framework for Improving Critical Infrastructure Cybersecurity, California Attorney General Kamala Harris has made clear she intends a leadership role for California. With a guide…more

Cybersecurity, Cybersecurity Framework, NIST

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Saira Najam

San Francisco Enacts Ordinance Restricting Employers’ Ability to Ask About and Use Criminal History

Effective Aug. 13, 2014, a new San Francisco ordinance prohibits private employers and city contractors from asking job applicants about their criminal history until after the first interview. The Fair Chance ordinance also…more

Ban the Box, Criminal Background Checks, Criminal Records

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Sanjay Nangia

Caution: Your Company's Biggest Privacy Threat is...the FTC

Technology companies—from startups to megacorporations—should not overlook an old privacy foe: the Federal Trade Commission (FTC). Since its inception in 2002, the FTC’s data security program has significantly picked up steam…more

COPPA, Data Protection, FTC

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Carol Noonan

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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Andrew Owens

Federal Reserve Bank of Philadelphia Sponsors Small-Dollar Credit Conference

On July 11-12, 2013, DWT partner Andy Owens attended a conference organized by the Federal Reserve Bank of Philadelphia (Federal Reserve) entitled Small-Dollar Credit: Products, Economics, and Regulation…more

Consumer Lenders, Lenders, Loans, Payday Loans

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Norman Page

A Q&A on Recent Developments Involving China Union Pay

Recently, DWT payments team members Vincent Wang and Norm Page sat down in our Shanghai office to discuss recent developments involving China Union Pay (CUP). Vincent Wang has extensive experience helping U.S. companies and…more

China, Employee Rights, Unions, WTO

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Marcia Paul

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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Collin Peng-Sue

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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Conner Peretti

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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Mark Perlis

Is Carbon Capture and Sequestration the Best or Even an Achievable Control Technology To Reduce Carbon Dioxide Emissions from Coal-Fired Power Plants?

EPA’s proposed greenhouse gas emission standards for new power plants rest on the agency’s finding that carbon capture and sequestration (CCS) technologies are “achievable” and the “best system” for the reduction of carbon…more

Carbon Capture and Sequestration, Carbon Emissions, Clean Air Act, Coal-Fired Generation, Coal-Fired Plants

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Candice Petty

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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Douglas Posey

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

Bitcoins, FinCEN, Virtual Currency

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Vidhya Prabhakaran

Small Solar Generators to Find It Easier to Connect to the Grid

Yesterday, the Federal Energy Regulatory Commission (FERC) unanimously approved a rule that would reduce existing hurdles for small solar generators attempting to connect to the electric grid, an especially helpful move in…more

FERC, Power Grid, Renewable Energy, Solar Energy

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Edwin D. Rauzi

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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Richard Rawson

Demand for New H-1Bs Anticipated to Be High: File April 1, 2013 for Oct. 1, 2013 Start Date

April 1, 2013 will be the first opportunity to file new H-1B petitions for employers wishing to hire new H-1B workers for an Oct. 1, 2013 start date. Because it is likely that the cap on the number of H-1Bs will be quickly…more

H-1B, Visa Caps, Visas

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Dana Reid

Federal Tax Benefits Expanded to Certain Same-Sex Couples by U.S. Supreme Court

With the U.S. Supreme Court’s landmark ruling in United States v. Windsor on June 26, 2013, same–sex couples legally married in a state that recognizes same-sex marriage, and who reside in such a state, are now governed by the…more

Civil Unions, DOMA, Domestic Partnership, Employee Benefits, Estate Tax

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Daniel Reing

No Harm, Still Foul? Florida Court Approves Data-Breach Class Action Settlement

Data-breach class action suits may have just gained significant traction. On Feb. 28, 2014, the U.S. District Court for the Southern District of Florida approved a first of its kind class action data breach settlement that will…more

Class Action, Data Breach, Data Protection, Settlement

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Christopher Robinson

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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Adam Romney

Emerging EHR Risks: When Documentation May Not Be Enough (or Too Much)

Today’s Electronic Health Record (EHR) technologies feature many tools that help providers practice more efficiently and allow them to spend more time caring for patients. However, the federal government recently has posted…more

Audits, CMS, EHR, Electronic Records, MACs

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James Rosenfeld

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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Karen Ross

FFIEC Finalizes and Clarifies Its Social Media Policy

The Federal Financial Institutions Examination Council (FFIEC) recently released its final supervisory guidance on social media use. In January 2013, we wrote about the FFIEC’s proposed guidance in connection with the…more

FFIEC, Social Media, Social Media Policy

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Bernard Russell

Culture Shock: A Retailer’s Initial Lending Program With a Bank

Many retailers and OEMs have engaged banks to provide private-label credit to their individual and small-business customers, or have joined with banks in offering them cobranded general-purpose credit. Many other retailers/OEMs…more

Banks, Lending, OEM, Retailers, Small Business

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Mary Sanden

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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Christopher Savage

FCC Explores Feasibility of More Precise Wireless Caller-Location Capabilities for E911 Calls From Indoor Locations and Strengthening of Existing E911 Rules

Even as privacy advocates become increasingly nervous about the extent to which our communications devices keep tabs on our whereabouts, the FCC is looking to make it easier to monitor our location more precisely, at least when …more

FCC, Geolocation, Mobile Devices, Warrantless Tracking, Wireless Industry

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Alison Schary

Supreme Court Reiterates that New York Times Actual Malice Standard Requires Materially False Statements

On Monday, Jan. 27, 2014, the Supreme Court unanimously reversed a $1.2 million Colorado defamation verdict in the case of Air Wisconsin Airlines Corp. v. Hoeper—a notable decision for a court that rarely accepts libel cases…more

Actual Malice, Air Wisconsin v. Hoeper, ATSA, Defamation, First Amendment

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Harvey Schochet

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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Robert Schuchard

How to Get Your Hospital or Health System “Transaction Ready” in a Challenging Market

Health care providers are competing in a dynamic environment with a host of challenges and opportunities. With the population aging, reimbursement rates declining, and government regulatory efforts expanding, health care…more

Business Development, Healthcare, Hospitals

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Bob Scott

NIST Issues Cybersecurity Framework 1.0 While Congress Increases Attention on Data Security and Cyber Crime

On Feb. 12, 2014, the National Institute for Standards and Technologies (NIST) released its final Cybersecurity Framework, meeting the one year deadline and anniversary of President Obama’s Executive Order and a Presidential…more

Critical Infrastructure Sectors, Cybersecurity, Cybersecurity Framework, NIST

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Jonathan Segal

New California Law Protects Journalist’ Records Held By Third Parties

Journalists in California must now receive advanced notice if their records are being subpoenaed either directly from them or through a subpoena issued to a third party. California’s new law—an amendment to California Civil…more

First Amendment, Journalists, Notice Requirements, Shield Laws, Subpoenas

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John Seiver

Google "Street View" case may be headed for SCOTUS Review

Google held true to its promise to seek SCOTUS review of the Ninth Circuit’s interpretation of the term “radio communications” in the Wiretap Act when it filed its Petition for Certiorari last week. Google had argued in the…more

Google, Wifi, Wiretap Act

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Peter Sergienko

President Obama Unveils Climate Action Plan

President Obama published a formal Climate Action Plan last month, announcing the plan in a speech delivered at Georgetown University. The plan organizes the President’s executive actions under three pillars..…more

Barack Obama, Carbon Capture and Sequestration, Carbon Emissions, Clean Energy, Climate Action Plan

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Evan Shapiro

Visa and MasterCard Endorse HCE

Visa and MasterCard announced in late February plans to support cloud-based mobile payments through a new feature in the Android mobile operating system called Host Card Emulation (HCE). HCE leverages Near Field Communication…more

Credit Cards, Data Protection, MasterCard, Technology, Visa

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Kerry Shea

First Cap & Trade Auction Results

The California Air Resources Board (CARB) released the results from the first California CO2 emissions allowance auction held last week. CARB’s initial assessment is that the auction was a success. It went off without any…more

Cap-and-Trade, CARB

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Adam Shoemaker

New NAL Proposes $3.7 Million in Fines for Alleged Duplicates

Today the FCC released a Notice of Apparent Liability (“NAL”) that has been issued to Budget PrePay and which proposes a fine of $3.7 million for allegedly requesting support for ineligible Lifeline subscribers. This…more

FCC, Fines

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Xiangjun Si

Single Purpose Commercial Prepaid Cards and Their Implementing Practices in Shanghai

In September 2012, the Ministry of Commerce (“MOFCOM”) issued the Administrative Measures on Single Purpose Commercial Prepaid Cards (Tentative) (“Single Purpose Cards Measures”), which took effect on Nov. 1, 2012, and provide…more

China, Hotels, Licenses, Logos, MOFCOM

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David M. Silverman

FCC Restricts Same Market TV Joint Sales Agreements; Begins Quadrennial Review of Broadcast Ownership and Attribution Rules

At its Open Meeting today, the Federal Communications Commission (FCC) voted to issue a Report & Order as well as a Further Notice of Proposed Rule Making (FNPRM) in its required “Quadrennial Review” of its broadcast ownership…more

Broadcasting, FCC, Television Broadcast Stations

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Michael Sloan

FCC Approves Voluntary Experiments Testing Impact of Technology Transitions

On Jan. 30, 2014, the Federal Communications Commission (FCC) voted to approve a Petition AT&T had filed in November 2012, seeking to conduct trials of the transition from TDM technology to all-Internet Protocol (IP) networks…more

AT&T, Cell Phones, FCC, ILEC, Telecommunications

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Devin M. Smith

Court of Appeals Rejects Constitutional Challenges to Anti-SLAPP Statute, Affirms Dismissal of Lawsuit Targeting Allegedly Unlawful Boycott and $10,000 Statutory Award for Each Defendant

In one of the first published decisions to interpret Washington’s new anti-SLAPP statute, the Washington Court of Appeals this week affirmed a trial court’s dismissal of a lawsuit that arose from a consumer boycott of Israeli…more

Anti-SLAPP, First Amendment, Olympia Food Co-op

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James M. Smith

Annual FCC CPNI Certification Due by March 3, 2014

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

Certifications, FCC, Filing Requirements, Telecommunications, VoIP

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Rochelle Spandorf

How to Help Your Franchisees Find Financing

The good news for franchising is the economy is coming back. Hit hard by the 2008 economic recession, franchise indices show an uptick in new franchise concepts and pent up demand for franchises among buyers…more

Business Development, Economic Development, Financing, Franchises, SBA

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Eric Stahl

Washington Supreme Court Limits Public Access to Hospital Privileging, Peer Review Documents

Public hospital districts may not disclose certain records created during closed-door meetings about hospital privileging decisions, the Washington Supreme Court recently held in Cornu-Labat v. Hospital Dist. No. 2 Grant Cnty.,…more

Disclosure Requirements, Healthcare, Hiring & Firing, Hospitals, Peer Review

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Robert Stankey

EU High Court Overturns Telecom Data Retention Requirements

The Court of Justice of the European Union, the highest court in the EU, declared the EU’s 2006 Data Retention Directive invalid in a judgment issued on April 8, 2014. The directive, which has been implemented via national…more

Data Retention, Electronic Communications, EU, Internet Privacy, ISPs

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Andrew Steen

What is Family Business Law?

Family business law is not a substantive specialty like mergers and acquisitions, securities laws, trusts and estates or federal tax. In fact, a good family business lawyer will probably identify first and foremost as a…more

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Linda Steinman

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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Dipa N. Sudra

Do Your Qualified Retirement Plans Recognize Same-Sex Spouses as of June 26, 2013?

The IRS has published Notice 2014-19 and related FAQs regarding the application of the Supreme Court’s decision in United States v. Windsor and Rev. Ruling 2013-17 to qualified retirement plans. All retirement plans should be…more

Compliance, Employee Benefits, IRS, Qualified Retirement Plans, Same-Sex Marriage

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Joanna Summerscales

Supreme Court Grants Certiorari in POM’s Attack on FDCA/Lanham Act Preemption

On Friday, the Supreme Court granted the certiorari petition of Pom Wonderful in its Lanham Act false advertising case against Coca-Cola. Pom Wonderful LLC v. Coca Cola Co., 679 F.3d 1170 (9th Cir. 2012), cert granted, ___…more

Advertising, Coca Cola, False Advertising, FDA, FDCA

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T. Scott Thompson

Second Circuit Confirms Town Of Greenburgh Unlawfully Denied Crown Castle DAS Network

On Friday, Jan. 17, 2014, the U.S. Court of Appeals for the Second Circuit affirmed that the Town of Greenburgh, New York, had unlawfully denied Crown Castle’s application to install a 20 node distributed antenna system (DAS) in…more

Cell Towers, Communications Act of 1934, Crown Castle, Municipalities, Shot Clock

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Kent B. Thurber

Influential Appeals Court Rejects Attempt by Former In-House Counsel to Use Privileged Information Against Company in Whistleblower Lawsuit

The pool of potential qui tam relators may have just shrunk a little, based on a recent decision by the 2nd Circuit Court of Appeals that has put the ability of in-house lawyers to become qui tam relators into serious question…more

Attorney-Client Privilege, Confidential Information, Corporate Counsel, Legal Ethics, Qui Tam

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Suzanne Toller

FCC Explores Feasibility of More Precise Wireless Caller-Location Capabilities for E911 Calls From Indoor Locations and Strengthening of Existing E911 Rules

Even as privacy advocates become increasingly nervous about the extent to which our communications devices keep tabs on our whereabouts, the FCC is looking to make it easier to monitor our location more precisely, at least when …more

FCC, Geolocation, Mobile Devices, Warrantless Tracking, Wireless Industry

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Chao Tong

Labor Dispatch Under the Amended Labor Contract Law of China

Since the Labor Contract Law of China became effective in 2008, many employers have been using labor dispatch to ease the financial and regulatory impacts of the law. On Dec. 28, 2012, the Labor Contract Law of China was…more

China, Chinese Labor Contract Laws

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Christie Totten

Oregon Restricts Employers' Access to Private Social Media Accounts

Oregon recently joined numerous states in prohibiting employers from seeking access to employees’ or prospective employees’ private social-media accounts, personal email, and other online content…more

Employee Rights, Passwords, Social Media

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Katharine Tylee

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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David Ubaldi

Anticipating Washington State’s New Industrial Stormwater General Permit

The Washington Department of Ecology is in the process of renewing the current Industrial Stormwater General Permit (ISGP), which is set to expire on January 1, 2015. Current permit holders will need to reapply for continued…more

Environmental Policies, Industrial Stormwater Rule, Storm Water

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Megan Vogel

H-1B Demand for Fiscal Year 2015 Anticipated to be High: File April 1, 2014 for October Start Date

USCIS will soon post its guidance for filing cap-subject H-1B petitions on April 1, 2014 for an Oct. 1, 2014 start date. It is anticipated that the demand for H-1Bs in fiscal year (FY) 2015 (which starts on Oct. 1, 2014) will be…more

Deadlines, H-1B, Immigrants, USCIS, Visas

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Joseph Wallin

What Does the New Washington Crowdfunding Law Allow?

The Washington State legislature has passed a crowdfunding bill, HB 2023. The Governor has yet to sign the bill, so it is not yet law. But hopefully it will be law soon. If you are wondering what the new law will allow, I…more

Crowdfunding

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Vincent Wang

State of Texas Issues Memorandum on Virtual Currencies

The State of Texas is the most recent state to announce a formal policy with regard to virtual currencies. The Texas Department of Banking (DOB) issued a supervisory memorandum on April 3, 2014, interpreting how virtual…more

Bitcoins, Virtual Currency

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Laura Warf

Public Company Alert: “Fraud-on-the-Market” Presumption Adopted in Oregon Securities Case

With the recent Oregon Supreme Court case State of Oregon v. Marsh & McLennan Companies and Marsh Inc., Oregon is among the first states to recognize the “fraud-on-the-market” theory in securities cases…more

Fraud-on-the-Market, Marsh & McLennan Companies, Securities Fraud, State Securities Claims

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Joseph Weinstein

Partial Ownership Redemption Plans in Family Businesses

The ability of a minority owner in a closely held family business to obtain liquidity for her interest in the company is often very limited. There is not a great market to buy small holdings in such companies. There are also…more

Family Businesses, Right of Redemption

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Jane Whang

California Bill Would Create Cyber Security Commission

In recognition of the increasing threat that cyber-attacks pose to the state's infrastructure and the considerable costs that government and private sectors are estimated to spend on cyber security (more than $70 billion…more

CPUC, Cyber Attacks, Cyber Threats, Cybersecurity, Cybersecurity Framework

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Rochelle Wilcox

Supreme Court Reiterates that New York Times Actual Malice Standard Requires Materially False Statements

On Monday, Jan. 27, 2014, the Supreme Court unanimously reversed a $1.2 million Colorado defamation verdict in the case of Air Wisconsin Airlines Corp. v. Hoeper—a notable decision for a court that rarely accepts libel cases…more

Actual Malice, Air Wisconsin v. Hoeper, ATSA, Defamation, First Amendment

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Marcus J. Williams

Public Company Alert: “Fraud-on-the-Market” Presumption Adopted in Oregon Securities Case

With the recent Oregon Supreme Court case State of Oregon v. Marsh & McLennan Companies and Marsh Inc., Oregon is among the first states to recognize the “fraud-on-the-market” theory in securities cases…more

Fraud-on-the-Market, Marsh & McLennan Companies, Securities Fraud, State Securities Claims

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Rebecca L. Williams

OCR Releases Information on What Phase 2 HIPAA Audits Will Look Like

The HHS Office for Civil Rights (OCR) recently presented information about the new look of its Phase 2 audit program. The new audits will look little like the old ones, with OCR conducting the audits itself and focusing on more…more

Audits, Data Protection, EHR, HHS, HIPAA

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Erica Wilson

Setback for Patent Troll Under “Patent Exhaustion” Doctrine Liberates Mobile Technology

Helferich Patent Licensing’s (HPL) licensing program has been dealt a serious blow by an Illinois federal judge. On August 14, Judge John Darrah ruled that the New York Times and others could not infringe HPL’s patents because…more

Patent Exhaustion, Patent Trolls, Patents

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LaVerne Woods

IRS Issues New Guidance for Exempt Hospitals: Proposed Procedures for Correcting and Disclosing Violations of Section 501(r)

The IRS has issued new guidance to assist Section 501(c)(3) nonprofit hospital organizations in complying with the requirements of Section 501(r), enacted by the Affordable Care Act…more

501(c)(3), Exempt Organizations, Hospitals, IRS, Non-Profits

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Amanda Wu

Chinese Government Issues the Third Amendment to the Trademark Law to Strengthen Trademark Protection

The National People’s Congress passed the Third Amendment to the Chinese Trademark Law (the “Third Amendment”) on Aug. 30, 2013. The amended Trademark Law will take effect on May 1, 2014. The Chinese Trademark Law was…more

China, International Trademark Protection, Trademarks

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Katherine Xu

Chinese Court Rules in Favor of Plaintiff in the First Antitrust Civil Action on Vertical Anti-Competitive Agreements

After judicial proceedings spanning three years, Johnson & Johnson Medical (China) Ltd. and Johnson & Johnson Medical (Shanghai) Ltd. (collectively, “J&J”) lost the antitrust action brought by Beijing Ruibang Yonghe Science and…more

Anti-Competitive, Antitrust Litigation, China, NDRC

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Ryan York

SEC Approves New Corporate Governance Listing Standards for Compensation Committees and Advisers

On Jan. 11, 2013, the Securities and Exchange Commission (the “SEC”) approved amended corporate governance listing standards for the New York Stock Exchange (the “NYSE”) and the Nasdaq Stock Market (the “Nasdaq”). The amended…more

Compensation Committee, Dodd-Frank, Independence Rules, Listing Standards, Nasdaq

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Sherry Zhang

The Upcoming Shanghai Free Trade Zone: An Update on the National Pilot Project

Following the announcement in July of an ambitious plan to develop mainland China’s first free trade zone in Shanghai, there have been several recent developments relating to the forming and unveiling of the zone. …more

China, Customs, Duties, Foreign Investment, Free Trade Agreement

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Lin Zhu

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, ISPs

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