Foley & Lardner LLP

Tell Me How Much My Coworkers Make… Or I’ll Sue You

The Office of Federal Contract Compliance Programs (OFCCP) – an agency of the Department of Labor – has enacted a rule requiring federal contractors and subcontractors to disclose information regarding pay practices and…more

Adverse Employment Action, Anti-Harassment Policies, Anti-Pay Secrecy, Federal Contractors, New Regulations

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Louisiana Telemedicine Practice Rules: What Providers Need to Know

Louisiana’s Board of Medical Examiners (the “Board”) enacted regulations in the fall amending the prior practice standards for telemedicine, the requirements for obtaining a telemedicine permit, and the rules on remote…more

Amended Regulation, Controlled Substances, Disclosure Requirements, Electronic Medical Records, Electronic Prescribing

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New Japanese ECommerce Consumption Tax Commences Effect on October 1, 2015

On October 1, 2015, Japan commences application of its business-to-consumer (“B2C”) ecommerce consumption tax (“JCT”), analogous to the EU electronic services VAT which commenced January 1 of this year. The JCT will require…more

Amazon, Consumption Tax, De Minimus Quantity Exemption, E-Commerce, Electronics

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A Perfect Storm for Automotive Patent Disputes?

As the automotive industry rebounds from its recessionary levels to an all time record level of spending on vehicles and healthy profitability, one of the key drivers of the increased vehicles sales has been increased innovation…more

Auto Manufacturers, Automotive Industry, Connected Cars, Cross-Border, Discovery

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SEC Adopts Final Rules on CEO Pay Ratio Disclosure

On August 5, 2015, the Securities and Exchange Commission (SEC) finalized rules requiring publicly traded companies to disclose the ratio of median compensation of all employees to the compensation of the principal executive…more

CEOs, Disclosure Requirements, Dodd-Frank, Executive Compensation, Final Rules

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Top Legal Issues Facing Automotive Suppliers in 2015

Foley’s Automotive Industry Team has prepared this overview of the major trends we see affecting automotive suppliers this year. While not all legal risk can be anticipated, companies that are aware of litigation, enforcement,…more

ADA, Antitrust Provisions, Auto Manufacturers, Auto Parts, Automobile Recall

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How California’s New LLC Law Will Impact Existing and New California LLCs

On January 1, 2014, California’s Beverly-Killea Limited Liability Company Act (“Old Act”) was superseded by the California Revised Uniform Limited Liability Company Act (“New Act”). California legislators were concerned that the…more

Articles of Incorporation, Limited Liability Companies, LLC, Operating Agreements, RULLCA

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IRS Issues 2015 Limits for Qualified Retirement Plans, Health FSAs, and Transportation Fringe Benefits

You know it’s Fall when the leaves turn color, jack-o-lanterns wink in the twilight, the World Series plays on … and the IRS announces new indexed annual limits for employee benefit plans. Sticking to tradition, the IRS recently…more

COLA, Flexible Spending Accounts, Fringe Benefits, Health Insurance, IRS

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House Bill 569 Changes Florida's Campaign Finance Law

On May 1, 2013, Governor Rick Scott signed into law House Bill 569 (HB569), which enacts sweeping changes to Florida’s campaign finance laws. The changes will affect every elected official as well as any person who makes…more

Campaign Contributions, Campaign Finance Reform, Political Contributions

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When Seemingly Indefinite Leave and Non-Cooperation Makes a Leave of Absence Unreasonable

A recent decision from the Court of Appeals for the District of Columbia provides a result that employers may often think they do not see enough in labor and employment law: a common sense solution to a situation that confronts…more

ADA, Corporate Counsel, Interactive Process, Leave of Absence, Reasonable Accommodation

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FTC Settles Claims Relating to U.S. – EU Safe Harbor Program

The Federal Trade Commission recently announced it has settled claims against 12 companies relating to charges the companies falsely claimed they were abiding by the U.S. – EU Safe Harbor program that enables U.S. companies to…more

Compliance, Data Brokers, Debt Collection, EU, FTC

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New Hampshire Doubles Solar Net Metering Cap

New Hampshire has doubled the caps on energy that both residential and commercial customer-generators of rooftop solar can sell back to the grid, raising the cap from 50 MW to 100 MW. The governor signed H.B. 1116, which was…more

Energy Policy, Governor Hassan, Net Metering, New Legislation, Public Utilities Commission

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DOL’s Increased Salary Test: What Employers Need to Know

For months, employers have been anxiously awaiting the Department of Labor’s (DOL’s) final rule on exemptions from overtime under the Fair Labor Standards Act (FLSA) and wondering whether the DOL would pass the rule as…more

DOL, Final Rules, FLSA, Fluctuating Workweek, Minimum Salary

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What "Reasonably" Could Have Been Raised in an Inter Partes Review?

Since their introduction, inter partes review (“IPR”) proceedings have had a close association with district court litigation. Indeed, litigation defendants are often the petitioners who initiate IPR proceedings. Therefore, the…more

Estoppel, Inter Partes Review Proceedings, ITC, Patent Invalidity, Patent Litigation

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2014 May Be the Last Year for Valuable "Tax Extenders"

Last week, President Obama threatened to veto an agreement between Senate Democrats and House Republicans on a collection of tax breaks known as “tax extenders.” The deal would have been a huge win for manufacturing, because it…more

Barack Obama, Corporate Taxes, Manufacturers, Tax Extenders, Tax Incentives

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Hague Agreement Rules Published by USPTO Creating Strategic Considerations for Applicants

On April 2, 2015, the USPTO published its final rules to implement the Hague Agreement Concerning International Registration of Industrial Designs (Hague Agreement), with an effective date of May 13, 2015. The Hague Agreement…more

Design Patent, Hague Agreement, Patents, USPTO

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2013 Water Technology US Patent Landscape Anual Report

Foley’s Green Energy Technologies (GET) team has released its latest annual analysis of the water technology landscape titled "2013 Water Technology U.S. Patent Landscape Annual Report." The 2013 Report was created by…more

Groundwater, Licenses, Patents, Technology, Water

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Wisconsin Court Confirms Computer-Controlled Medical Devices Are Exempt From Property Tax

In 2008, the Wisconsin Tax Appeals Commission ruled that the following categories of computerized medical equipment are exempt from property tax: - Ultrasound equipment - Magnetic resonance imaging (MRI)…more

Exemptions, Medical Devices, MRI, Property Tax

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The Section 409A Valuation: Do You Really Need One?

Yes. You do. That was easy. But perhaps we have gotten ahead of ourselves and we should start at the beginning of the story. While Section 409A is a tax provision, its genesis was the perceived abuse of deferred compensation…more

Executive Compensation, Golden Parachutes, Safe Harbors, Section 409A, Valuation

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Court of Appeals Rejects Attempted Restriction of “Mortgage Banker” Priority Provision

On February 20, 2014, the Wisconsin Court of Appeals issued an opinion interpreting the meaning of “mortgage banker” under Wis. Stat. § 224.71(3) and finding that a mortgage holder was entitled to the priority afforded under…more

Banks, Construction Contracts, Construction Liens, Mortgages

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EEOC May Obtain Private (And Arguably Unnecessary) Employee Information

Employers served with an Equal Employment Opportunity Commission (EEOC) subpoena requesting private employee information – regardless of its arguable relevance – may nevertheless be compelled to respond, according to a decision…more

EEOC, Employee Privacy Rights, Gender Discrimination, Government Investigations, Pay Discrimination

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Doing Business With the Government With Reduced Risk

Entering into business with the U.S. Government provides companies, including those in the automotive industry, with the opportunity to expand their business base, with tremendous potential. Even with the current budget cuts and…more

Automotive Industry, Federal Budget, Federal Contractors, Sequestration

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New Report on Renewable Energy as an Airport Revenue Source

The Airport Cooperative Research Program (ACRP) has recently published a guidebook on Renewable Energy as an Airport Revenue Source. The link to the guidebook on the ACRP website is here. Foley partner David Bannard is a…more

Airports, Biomass, Geothermal Energy, Guide, Renewable Energy

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4 Simple Tips for Better Supply Agreements

Supply agreements serve as the lifeblood of many manufacturing companies. These agreements outline the terms and conditions controlling the supply of goods and services between various parties. Without this framework, many…more

Corporate Counsel, Manufacturers, Supply Agreements, Supply Chain

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Wisconsin Supreme Court Kicks Open Records Case to the Curb

When Rebecca Bradley was appointed to the Wisconsin Supreme Court in October, the question arose what role she would play in cases argued this term before her appointment. Specifically, if the Court were otherwise split 3-3 on a…more

Disclosure, Drivers, Personally Identifiable Information, Petitions for Review, Public Records

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New IRS Regulations for Mixed-Use Projects Financed With Tax-Exempt Bonds Have Particular Importance for Nonprofit Health Care Organizations

On October 27, 2015 the U.S. Treasury Department and Internal Revenue Service published final regulations concerning the treatment of “mixed-use” projects financed with tax-exempt bonds. These new regulations have particular…more

501(c)(3), Final Rules, Healthcare Facilities, IRS, Mixed-Use Zoning

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Electric Vehicles Continue Gaining Consumer Acceptance

As government mandates like Corporate Average Fuel Economy targets make electric cars more attractive to manufacturers looking to meet these standards, it is worth asking how consumers are responding to these vehicles as they…more

Auto Manufacturers, Automotive Industry, Electric Vehicles, Fuel Standards, Rebates

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Federal Circuit Upholds Patent Office’s First Decision of Unpatentability in an Inter Partes Review

Today in In re Cuozzo Speed Technologies, LLC, No. 14-1301, a majority (Judges Dyk and Clevenger) affirmed the Patent Trial and Appeal Board’s (PTAB) decision to deem certain claims of a speed limit indicator patent unpatentable…more

America Invents Act, Claim Construction, Cuozzo Speed Technologies, Inter Partes Review Proceedings, Mandamus Petitions

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Developing a Business Case for Renewable Energy at Airports

The Airport Cooperative Research Program (ACRP) recently released Report 151: Developing a Business Case for Renewable Energy at Airports (the Report). Foley partner David Bannard is a co-author of the Report, assisting lead…more

Airports, Electricity Costs, Energy Policy, Energy Projects, Financing

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California Senate and Assembly Vote to Extend Property Tax Exclusion for Solar

In furtherance of California’s commitment to renewable solar energy, the California Senate and Assembly recently passed Senate Bill 871 (SB 871) which, if signed, would extend the sunset date on the existing property tax…more

Energy, Exclusions, New Legislation, Property Tax, Solar Energy

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FTC Updates Guidance on Disclosures in Social Media Marketing

Earlier this month, the Federal Trade Commission (FTC) updated its guidelines for disclosures in digital media, “.Com Disclosures: How to Make Effective Disclosures in Digital Advertising” (Guide). The Guide, which updates a…more

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Hybrid Visa Offers Alternative to Limited H-1B Visa

For an ever-increasing number of U.S. employers, the start of another calendar year also means H-1B season has arrived. However, given the competitive nature of the H-1B program, many employers are turning to an alternative and…more

B-1, Consulate, H-1B, Specialty Occupations, US Department of State

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2013 Water Technology US Patent Landscape Anual Report

Foley’s Green Energy Technologies (GET) team has released its latest annual analysis of the water technology landscape titled "2013 Water Technology U.S. Patent Landscape Annual Report." The 2013 Report was created by…more

Groundwater, Licenses, Patents, Technology, Water

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Provider Reimbursement Review Board Issues Alert 9 and Revised Rules

On March 1, 2013, the Provider Reimbursement Review Board (PRRB or the Board) issued Alert 9, which notified interested parties that the PRRB has made revisions to its Rules and updated its Model Forms. Medicare providers that…more

CMS, Medicare, PRRB, Reimbursements

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Amazon Wins Ruling on Results for Searches on Brands It Doesn’t Sell

On October 21, 2015, the Ninth Circuit ruled that online retailer Amazon does not violate the Lanham Act when, in response to a search for a brand it doesn’t sell, it returns a results page that fails to disclose that fact and…more

Amazon, Brand, En Banc Review, Internet Retailers, Keyword Search

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FDA Panel Shows Strong Support for a Remicade Biosimilar

The Food and Drug Administration’s (FDAs) Arthritis Advisory Committee gave a thumbs up to a biosimilar copy of Johnson & Johnson’s Remicade product, an inflammation blocker used in the treatment of rheumatoid arthritis, on…more

Advisory Committee, Amgen, Biologics, Biosimilars, FDA

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Federal Circuit Sanctions PTO’s Authority To Institute IPR On A Claim-By-Claim Basis in Synopsis v. Mentor Graphics

In Synopsys, Inc. v. Mentor Graphics Corp., a split panel of the Federal Circuit found “that there is no statutory requirement that the Board’s final decision address every claim raised in a petition for inter partes review.”…more

Estoppel, Inter Partes Review Proceedings, Patent Invalidity, Patent Litigation, Patent Trial and Appeal Board

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Documenting Your Build-to-Suit Transaction: The Importance of the Request for Proposal

The Request for Proposal (RFP) is a critical document in a build-to-suit (BTS) transaction, but often does not get the attention it deserves. In addition to laying out the project scope, the RFP is the tenant’s opportunity to…more

Build-to-Suit, Commercial Leases, Commercial Property Owners, Commercial Real Estate Market, Commercial Tenants

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Sentinel Decision Prioritizes Protection of Securities and Futures Markets

On March 19, 2014, the U.S. Court of Appeals for the Seventh Circuit decided Grede v. FCStone, LLC, Nos. 13-1232, 13-1278 (7th Cir. Mar. 19, 2014), an opinion that reinforces the importance of the portability of investment…more

CFTC, Commodities, Commodities Exchange Act, Commodity Futures Contracts, Commodity Pool

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Testing the Waters: The U.S. Supreme Court Agrees to Hear U.S. Army Corps’ Clean Water Act Determinations Challenge

On December 11, the U.S. Supreme Court agreed to hear a challenge to the Eighth Circuit’s April 2015 ruling that U.S. Army Corps of Engineers’ (Army Corps) jurisdictional determinations are final agency actions subject to…more

Clean Water Act, EPA, Land Developers, Land Owners, SCOTUS

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Top Legal Issues Facing Suppliers in 2014

We know that you have been considering what business and commercial issues you will face in 2014 (and perhaps beyond) as an Automotive Supplier. But, have you been considering what legal issues you are likely to face? Do you…more

Automotive Industry, Compliance, Data Protection, FCPA, NHTSA

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Spring 2013 Eye on China Newsletter

Legal News: Eye on China Quarterly Newsletter offers companies helpful insight as they successfully navigate China’s complex and ever-changing legal and regulatory environment. In this issue, we focus on the following…more

Anti-Bribery, Anti-Corruption, China, Compliance, Copyright

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Tax Law

In This Chapter: Tax Law: Annual Survey of Wisconsin Law - - Case Law - Statutory Developments - Administrative Developments - Excerpt from Case Law: Individual and Fiduciary Income Tax…more

401k, Corporate Taxes, Department of Revenue, Earned Income Tax, Fiduciary Duty

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Deposition Practice Tips: PTAB Guidance for Dealing With Suspected Witness Coaching

Question: What can you do when you suspect that opposing counsel engaged in inappropriate witness coaching during a PTAB deposition? Answer: Ask the witness about the suspected off-the-record discussions and call the Board from…more

Best Practices, Depositions, Patent Trial and Appeal Board, Witnesses

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General Motors New Terms and Conditions Effective July 15, 2013

General Motors has announced that Effective July 15, 2013, its general terms and conditions for direct material, customer care & aftersales (CCA) and tooling purchases are changing…more

Compliance, General Motors, Terms and Conditions

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The MCDC Initiative and Recent Modifications: Window for Issuers and Obligated Persons Now Closes on December 1, 2014, While Underwriters Window Still Set to Close on September 9, 2014

As highlighted in the SEC’s 2012 Municipal Market Report, the SEC has expressed significant concern that many issuers have not been complying with their obligation to file continuing disclosure documents and that federal…more

Deadlines, Disclosure Requirements, EMMA, Enforcement, MCDC

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NLRB Calls Audible — No Union for Northwestern

Over a year ago, the regional office of the National Labor Relations Board (NLRB) in Chicago concluded that scholarship athletes on the Northwestern University football team were “employees” within the meaning of the National…more

Employees, Football, Jurisdiction, NCAA, NLRB

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Failure to Disclose Known Trends or Uncertainties in Public Filings May Create Liability Under Section 10(b)

On January 12, 2015, the U.S. Court of Appeals for the Second Circuit held in Stratte-McClure v. Morgan Stanley that a failure to make a required disclosure under Item 303 of Regulation S-K in a Quarterly Report on Form 10-Q is…more

Appeals, Collateralized Debt Obligations, Credit Default Swaps, Disclosure Requirements, Form 10-Q

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UDAAP Council Weekly UDAAP Standards Report - 5/6/15

Every week, courts around the United States issue decisions addressing aspects of civil UDAAP claims. In an effort to illuminate the UDAAP standards, below is a sampling of some of this week’s UDAAP decisions on the meaning of…more

Debt Collection, Debt Collectors, False Statements, FDCPA, UDAAP

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Amendments to Article 9 of the Uniform Commerical Code Go Into Effect

A number of amendments to Article 9 of the Uniform Commercial Code (“UCC”) went into effect in many states on July 1, 2013. Similar amendments are pending in a number of other states…more

Article 9, UCC

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Transforming Oncology Care: What’s Working and What Lies Ahead

Oncology providers and payors are undertaking bold initiatives to transform our system of “sick” care into a component of the value-based system of the future. The evolving system focuses on proactively monitoring and…more

Alternative Payment Models (APM), Cancer, CMMI, Medicare, Sustainable Growth Rate (SGR)

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Massachusetts High Court Expands Strict Liability for Building Code Violations

In an April 10, 2014, decision that expressly overruled its own 15-year old precedent, the Massachusetts Supreme Judicial Court has held that the owner of a building used as a place for a large number of people to gather will be…more

Building Codes, Building Standards, Strict Liability

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Roadmap to Prison: Lessons Learned from the Criminal Prosecution of Alpha Ambulance’s Leaders

No one running an ambulance company ever planned to go to prison for doing his or her job. But that is a real possibility if the government knocks on the door, and the owner or manager is dishonest in his or her response to the…more

Ambulance Providers, Audits, CMS, False Statements, FBI

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Wisconsin Supreme Court Reminds That Duty to Defend is Broader Than Duty to Indemnify

A liability insurance policy generally imposes two duties on the insurer: (1) a duty to indemnify the insured against claims that are covered by the policy, up to the policy limits; and (2) a duty to defend the insured against…more

Breach of Duty, Commercial General Liability Policies, Duty to Defend, Indemnification, Insurance Litigation

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A Quick Update on Speedy Election Rules (Hint: The Predictions Have Come True — Somewhat)

The National Labor Relation Board’s new election procedures became effective April 14, 2015. You may recall that the new rules were largely designed to shorten significantly the time between a union’s filing of a petition for…more

Complaint Procedures, Employee Benefits, NLRB, Supervisors, Training

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SEC Steps Up Investigations of Political Intelligence Firms for Insider Trading

In the last few years, Congress, the U.S. Securities and Exchange Commission (SEC), and the courts have significantly increased their efforts to grapple with insider trading in the realm of political intelligence. In 2012,…more

Compliance, Insider Trading, Material Nonpublic Information, Political Intelligence, SEC

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CMS Announces Latest Alternative Payment Model - Comprehensive Primary Care Plus

Continuing in its efforts to promote alternative payment models, on April 11, 2016, CMS announced the Comprehensive Primary Care Plus (CPC+) model. CMS hopes to implement CPC+ in up to 20 regions, accommodating up to 5,000…more

Alternative Payment Models (APM), CMS, Comprehensive Primary Care (CPC+), Health Care Providers, Health Information Technologies

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The Bespoke Solution—Advantages and Challenges in Tailoring Single Investor Funds

The world of private investment funds has been evolving to address the specific goals and expectations of investors, including pension plan sponsors and other investors with specific regulatory and economic needs. As a result,…more

Carried Interest, Clawbacks, Financial Reporting, Investment Management, Investors

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Unlocking the SAFE – An Alternative to Convertible Notes

With the increasing level of investment in emerging companies, entrepreneurs are being presented with a wider range of financing documents. One of the relatively newer financing instruments is the “SAFE” (simple agreement for…more

Conversion, Convertible Debt, Early Stage Companies, Emerging Growth Companies, Equity Financing

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EEOC’s Proposed Retaliation “Guidance” Muddies the Waters for Employers

For the first time in 18 years, the Equal Employment Opportunity Commission (EEOC) has offered proposed revisions to its official guidelines on workplace retaliation. In its proposed revisions, the agency expresses a very broad…more

Adverse Employment Action, Causation, Comment Period, EEOC, Guidance Update

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Governor Vetoes Proposed Changes to California Franchise Law

To the surprise of many, California Governor Jerry Brown has vetoed the proposed changes to California’s franchise laws that were discussed in our Client Alert on August 28, 2014. In his veto message, Governor Brown criticized…more

Franchise Agreements, Franchises, Legislative Vetoes

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Recent Decision Underscores Need for Involvement of Counsel in Internal Investigations

A recent federal court decision raises concerns about the ability of companies to maintain privilege over materials generated in connection with internal investigations. The case, United States ex rel. Barko v. Halliburton…more

Corporate Counsel, Halliburton, Internal Investigations, Investigations, Qui Tam

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Taking Advantage of New Safe Harbor Against Discovery Sanctions

As your company wrestles with how to manage the virtual mountains of electronically stored information (ESI) that are created in today’s workplace, you may continue to wonder what steps to take to preserve information when…more

Duty to Preserve, Electronically Stored Information, Federal Rules of Civil Procedure, FRCP 37(e), Litigation Hold

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Sentinel Decision Prioritizes Protection of Securities and Futures Markets

On March 19, 2014, the U.S. Court of Appeals for the Seventh Circuit decided Grede v. FCStone, LLC, Nos. 13-1232, 13-1278 (7th Cir. Mar. 19, 2014), an opinion that reinforces the importance of the portability of investment…more

CFTC, Commodities, Commodities Exchange Act, Commodity Futures Contracts, Commodity Pool

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CAFC Affirms Finacea Gel Infringement Under Doctrine of Equivalents

In Intendis GmbH v. Glenmark Pharmaceuticals Inc., USA, the Federal Circuit affirmed the district court decision that found infringement under the doctrine of equivalents. This case shows that the doctrine of equivalents still…more

ANDA, CAFC, De Novo Standard of Review, Doctrine of Equivalents, Estoppel

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International Monetary Fund’s Forecast for Global Economy Cools

Even as experts are signaling caution in their outlook for the automotive sector, the International Monetary Fund (IMF) is lowering its forecast of economic growth for this year. In its April 2016 report, the IMF reduced…more

Automotive Industry, China, Commodities, Emerging Markets, EU

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New Hampshire Doubles Solar Net Metering Cap

New Hampshire has doubled the caps on energy that both residential and commercial customer-generators of rooftop solar can sell back to the grid, raising the cap from 50 MW to 100 MW. The governor signed H.B. 1116, which was…more

Energy Policy, Governor Hassan, Net Metering, New Legislation, Public Utilities Commission

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Federal Judge Refuses FTC Request to Block Hershey/Pinnacle Deal; FTC to Appeal

Hospitals and other providers who have been tracking Federal Trade Commission (FTC) and Department of Justice Antitrust Division hospital merger challenges over the last several years will want to take note of the federal…more

Administrative Proceedings, Antitrust Litigation, Appeals, Divestiture, FTC

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United States Completes Deposit for Hague Agreement for Industrial Designs

Today, February 13, 2015, the United States deposited with the World Intellectual Property Organization (WIPO) its instrument of accession to the Hague Agreement Concerning International Registration of Industrial Designs (the…more

Design Patent, Hague Agreement, Industrial Design, Patents, USPTO

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U.S. Supreme Court: Silence Admissible

When faced with questions from a government investigator, a person’s silence can now be used in a criminal trial against the person who was questioned and declined to provide an answer…more

Admissibility, Criminal Prosecution, Evidence, Jury Trial, SCOTUS

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Wisconsin Employers Targeted for Technical Violations of the Fair Credit Reporting Act

Within the past year, one Wisconsin resident has filed several class-action lawsuits against Wisconsin employers. In each case, the resident claimed that the targeted employers were using improper disclosures in employment…more

Background Checks, Class Action, Corporate Counsel, Disclosure Requirements, Employer Liability Issues

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Facilities Siting: The Right Considerations Lead to the Right Choice

According to the research, manufacturers are on the move. The questions and considerations listed below are a great starting point for any company opening or relocating a manufacturing facility…more

Manufacturers, Manufacturing Facilities

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International Cartel Sales to Global Supply Chains Raise U.S. Antitrust Issues

In a widely awaited opinion, the Seventh U.S. Circuit Court of Appeals in Chicago has issued an opinion which affects the scope of government enforcement actions and which purchasers may pursue private civil treble damage…more

Antitrust Provisions, Appeals, Cartels, Enforcement Actions, FTAIA

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Manufacturing and Infrastructure: Not Just About Economics – Our Own Security Depends on It

The call for dramatic improvements in America’s infrastructure as a critical driver in the reestablishment of the nation’s manufacturing supremacy is building momentum. But that’s only part of the story. Lost is the real…more

Critical Infrastructure Sectors, DHS, Infrastructure, Manufacturers, National Security

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Commissioned Employees – Draft an Agreement Now, Avoid a Hassle Later

There is no shortage of claims brought by commissioned employees alleging the employer either did not pay, or underpaid a commission due the employee. More often than not, neither the employer nor the employee can figure out…more

Employee Commissions, Employment Contract, Hiring & Firing, Unpaid Wages, Wage and Hour

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How to Build a Startup, Chicago-Style

Building a startup in Chicago differs from building one in Silicon Valley. Chicago investors, both individuals and committed venture funds, tend to be more reserved and practical, whereas coastal venture investors are more…more

Capital Raising, City of Chicago, Entrepreneurs, Investors, Revenue

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U.S. Patent and Trademark Office Orders Cancellation of "REDSKINS" Trademark Registrations

On June 18, 2014, a divided panel of the U.S. Patent and Trademark Office Trademark Trial and Appeal Board (“TTAB”) ordered cancellation of six of the Washington Redskins’ trademark registrations holding that “Redskins” was a…more

Blackhorse v Pro-Football, Disparagement, Football, Laches, Native American Issues

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The Equity Crowdfunding Rules: What You Need to Know

The SEC’s equity crowdfunding rules finally go into effect this month almost four years after Congress passed the JOBS Act, requiring the relaxing of certain rules on raising funds. So what does equity crowdfunding actually look…more

Accredited Investors, Capital Raising, Crowdfunding, Disclosure Requirements, Filing Requirements

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Employment Law Compliance Is Just the Beginning

Complying with the law is only the starting point when making sound and legally defensible employment decisions, such as discipline, terminations, denying accommodations, and so forth. Have you ever heard of a company that made…more

Compliance, Employer Liability Issues

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Online Targeted Advertisements are Not Sufficient to Establish Personal Jurisdiction in Wisconsin

Almost every business today has a website, which can be accessed by anyone in the world with an Internet connection. If the business provides for targeted advertising on its website, based upon the location of the person who…more

Advertising, Due Process, Foreign Entities, Foreseeability, Long Arm Statute

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A Peek at the 60 Minutes GenePeeks Patents

On October 26, 2014, 60 Minutes aired a story called “Breeding Out Disease” that included a segment about GenePeeks, a company that uses genetic information from prospective parents to make thousands of “digital babies” and…more

CLS Bank v Alice Corp, Genetic Materials, Genetic Services, Patent-Eligible Subject Matter, Patents

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Congress Sends Fast-Track Trade Authority Bill to the President, Invigorating Trans-Pacific Partnership Negotiations

After several weeks of legislative wrangling, congressional leaders will send a bill to President Obama this week to give him fast-track authority to negotiate a trade deal that will potentially govern 40 percent of U.S. imports…more

Barack Obama, Exports, Foreign Trade Regulations, Imports, Obama Administration

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What Does McCutcheon Mean for Wisconsin Campaign Finance Law?

On April 2, the United States Supreme Court released its much-anticipated decision in McCutcheon v. FEC, 572 U.S. __ (2014). The case was closely watched because it presented the Court the opportunity to revisit the framework of…more

Federal Election Commission (FEC), McCutcheon v. FEC, Political Campaigns, Political Contributions, SCOTUS

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IRS Seeks Identities of Americans with Undisclosed Belize Bank Accounts

Americans with secret accounts in Belize should take notice: the government is looking for you. The U.S. Department of Justice on September 15 filed a petition in federal court in Miami seeking permission to issue summonses to…more

Bank of America, Bank Secrecy Act, Citibank, Civil Monetary Penalty, Criminal Penalties

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President Signs E-Warranty Statute Amendment

In a rare display of bipartisanship, the U.S. Congress has passed and, on September 24, 2015, President Obama signed, an amendment of the federal statute regulating warranties on consumer products, the Magnuson-Moss Warranty –…more

Amended Legislation, Barack Obama, eDisclosure, FTC, Magnuson-Moss Act

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Restructuring The Private Club

Private golf clubs are facing a tidal wave of challenges, from the prolonged economic downturn, to an aging population unable to continue playing the game, to a general decline in demand for golf, to financial hardships facing…more

Golf, Golf Courses

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Treasury Department Eases Cuba Sanctions

New Rules Open Opportunities for Exports, Financial Services, and Travel- On January 16, 2014, the U.S. Treasury Department issued new sanctions regulations easing the 54-year old Cuban embargo. Coming in the wake of the…more

Amended Regulation, Banking Sector, Barack Obama, BIS, Cuban Assets Control Regulations (CACR)

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FERC Issues Policy Statement Clarifying Requirements for Capacity Allocation for Merchant Transmission Projects

On January 17, 2013, the Federal Energy Regulatory Commission (FERC) issued its Final Policy Statement regarding the allocation of capacity on new merchant and non-incumbent, cost-based, participant-funded transmission projects…more

Capacity Allocation, Compliance, Discrimination, Electricity, FERC

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Different Standards for Self-Critical Analysis Privilege: What You Need to Know

In a recent March 19, 2015 decision, the Illinois Supreme Court refused to acknowledge the self-critical analysis privilege. This recent discussion underscores the need to understand the different standards for the privilege in…more

Child Protective Services, Federal Jurisdiction, ILL Supreme Court, Jurisdiction, Self-Critical Analysis Privilege

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Winter 2013 Eye on China Newsletter

Legal News: Eye on China Quarterly Newsletter offers companies helpful insight as they successfully navigate China’s complex and ever-changing legal and regulatory environment. In this issue, we focus on the following…more

Arbitration, China, Counterfeiting, Discovery, Enforcement

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PTAB Institutes Trial On Previously Challenged Cabilly Patent

The Cabilly ’415 patent is well known in the bio/pharma space as relating to the artificial synthesis of antibody molecules. The Cabilly ‘415 patent’s notoriety was aided by a previous interference, a merged ex parte…more

Inter Partes Review Proceedings, Patent Litigation, Patent Trial and Appeal Board, Pharmaceutical Patents, Post-Grant Review

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Online Targeted Advertisements are Not Sufficient to Establish Personal Jurisdiction in Wisconsin

Almost every business today has a website, which can be accessed by anyone in the world with an Internet connection. If the business provides for targeted advertising on its website, based upon the location of the person who…more

Advertising, Due Process, Foreign Entities, Foreseeability, Long Arm Statute

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Energy Efficiency Through Innovative Financing

Do your energy costs keep you up at night? Do aging systems keep your utility spend high while other needs draw scarce capital resources? You are not alone. Major HVAC, lighting and other upgrades can be capital intensive with a…more

Clean Energy, Commercial Property Owners, Energy Efficiency, Financing, Manufacturing Facilities

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ONC Releases Updated Guide to Privacy and Security of Electronic Health Information

The Office of the National Coordinator for Health Information Technology (“ONC”) of the U.S. Department of Health and Human Services (“HHS”) recently released Version 2.0 of the Guide to Privacy and Security of Electronic Health…more

EHR, Health Care Providers, HIPAA, HITECH, ONC

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Will New PTAB Rules Impact IPRs Filed By Kyle Bass Hedge Fund?

On August 19th, the USPTO released a new set of proposed rules related to post-grant proceedings before the Patent Trial and Appeal Board (PTAB). Among the many offered rules was the addition of a “Rule 11-type certification”…more

Abuse of Process, America Invents Act, Generic Drugs, Hedge Funds, Inter Partes Review Proceedings

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Privacy Shield – Rejected. GDPR – Accepted: What This Means to Your Organization and What You Should Consider Doing Now

The European Union Article 29 Working Party (Article 29) issued an opinion on the proposed EU-U.S. Privacy Shield framework agreement (Privacy Shield) last week, stating that although the Privacy Shield was a “great step…more

Article 29 Working Party (WP29), Binding Corporate Rules, Consent, Cyber Incident Reporting, Data Breach Plans

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Can Foreign Sales Infringe U.S. Patents?

It is a deceptively simple question with a not so simple answer. A purely foreign transaction is certainly beyond the reach of U.S. patent law, but what if part of the transaction occurs within the United States? For example, if…more

Direct Infringement, FOB Terms, Foreign Sales, Halo v Pulse, Imports

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Seventh Circuit Limits the Use of the Federal Assignment Law under the False Claims Act

It’s common in the healthcare industry for large insurers to negotiate discounts from pharmacies for prescription drugs. The federal government, the granddaddy of all insurers, does this too, when it negotiates discounts on…more

Assignments, False Claims Act (FCA), Health Insurance, Healthcare, Medicaid

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Takeaways From the FTC/DOJ Workshop on Health Care Competition

The Federal Trade Commission and Department of Justice Antitrust Division held their second public workshop on health care competition on February 24-25, 2015. The workshop is part of the FTC and DOJ’s commitment to periodically…more

Antitrust Division, DOJ, FTC, Healthcare, Regulatory Agenda

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Growing Judicial Acceptance of Predictive Coding Highlights the Need for Inside and Outside Counsel to Consider Its Use in Document Intensive Litigation

When predictive coding technology made its way into the public consciousness in or about 2011, the biggest barrier to its widespread use – and probably the second most common question for attorneys following these issues, right…more

Complex Litigation, Document Review, Predictive Coding

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FERC Issues NOPR to Reduce Small Generator Grid Interconnection Time and Cost

On January 17, 2013, FERC issued a Notice of Proposed Rulemaking (NOPR) that would revise the pro forma Small Generator Interconnection Procedures (SGIP) and Small Generator Interconnection Agreement (SGIA) in order to lessen…more

Electricity, Fast Track Process, FERC, SGIA, SGIP

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Dueling Records: Are Statements in Your 510(k) Putting Your Patents at Risk?

Laboratory developed test (LDT) providers, previously exempt from U.S. Food and Drug Administration (FDA) oversight, under a new FDA proposal, must now consider if their LDTs constitute moderate-risk (Class II) or high-risk…more

510(k) RTA, CLIA, Clinical Laboratories, Diagnostic Tests, Due Diligence

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6 Tips for Chicago Startups Seeking Funding Outside Chicago

Chicago startups have more local funding options than ever before. However, many founders remain hungry to obtain funding from elsewhere—especially from the venture-rich east and west coasts. Trouble is, for reasons both…more

Business Valuations, City of Chicago, Emerging Technology Companies, Entrepreneurs, Investors

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Tips for Expanding Your Investor Network from Coast to Coast

With a competitive marketplace, new technology companies may find that they need more capital to accelerate their company’s growth. The question becomes how to effectively approach investors outside the company’s geographical…more

Capital Raising, City of Chicago, Due Diligence, Investors, Revenue

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Public Policy News

The Legislature returns on January 14, 2014 for a flurry of session days before final adjournment on April 3, 2014. With the biennial budget and many other GOP big ticket items passed, the agenda this spring will include no bold…more

Political Campaigns, Political Debates, Public Policy

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New ".SUCKS" TLD Creates Dilemma for Trademark Owners

March 30, 2015, is the opening day of the “sunrise” period for registration of domain names in the .SUCKS top-level domain (TLD). Unlike other recently created TLDs, which are typically oriented toward either particular…more

Domain Names, gTLD, ICANN, Trademark Clearinghouse, Trademarks

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DOL’s Increased Salary Test: What Employers Need to Know

For months, employers have been anxiously awaiting the Department of Labor’s (DOL’s) final rule on exemptions from overtime under the Fair Labor Standards Act (FLSA) and wondering whether the DOL would pass the rule as…more

DOL, Final Rules, FLSA, Fluctuating Workweek, Minimum Salary

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Truth in Lending Act and Consumer Leasing Act Dollar Thresholds Raised: Fewer Transactions Exempt

More consumer credit and leasing transactions will be subject to the Truth in Lending Act (TILA) and Consumer Leasing Act (CLA) in 2015. Effective January 1, 2015, the dollar threshold for exemption of most consumer…more

Dodd-Frank, Exemptions, Regulation M, Regulation Z, Truth in Lending Act (TILA)

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A Compilation of Enforcement and Non-Enforcement Actions - December 31, 2013

Investment Advisers — Are Your “IA Reps” Registered as Required? Why You Should Care - As we approach the end of the calendar year, it is a good time for investment advisers to check if all of its personnel who are…more

Chief Compliance Officers, Compliance, Enforcement, Enforcement Actions, Hedge Funds

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Reinventing Public Company Disclosure: SEC Requests Public Comment on Regulation S-K

On April 13, 2016, the U.S. Securities and Exchange Commission (SEC) issued a concept release discussing and requesting public comment on the business and financial disclosure required by Regulation S-K. The concept release…more

Comment Period, Disclosure Requirements, Investors, JOBS Act, Mary Jo White

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Could a Recent CMS Deregulation Regulation Save Health Care Providers $8 Billion?

As part of President Obama’s regulatory lookback initiative, the Centers for Medicare and Medicaid Services (CMS) issued a final rule last week (the “Rule”) that overhauled numerous staffing regulations affecting hospitals and…more

Affordable Care Act, CMS, Executive Orders, Healthcare, Healthcare Reform

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Expansion of Clinical Services at Assisted Living Sites – The New Paradigm

As payment reforms, such as bundled payments and Accountable Care Organizations (ACOs), drive further provider collaboration to achieve lower costs with enhanced outcomes, post- acute providers, especially assisted living sites,…more

Assisted Living Facility, Bundled Payments, Clinical Integration, Elder Care, Healthcare Facilities

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The SEC and Sustainability Shareholder Proposals

The SEC recently has encouraged “sustainability” shareholder proposals under Rule 14a-8. In their December 2013 INSIGHTS article, Foley attorneys Patrick Daugherty and Daniel Pieringer discuss strategies for manufacturers to…more

Manufacturers, SEC, Shareholder Activism

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D&O Policies: A Possibility for TCPA Coverage?

Business is booming for plaintiffs’ attorneys wielding the Telephone Consumer Protection Act (TCPA). The TCPA restricts unsolicited telemarketing by fax, voice calls and text messages. Violations can trigger liability of at…more

Commercial General Liability Policies, Corporate Counsel, D&O Insurance, Insurance Litigation, Invasion of Privacy

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Shareholder Suit Challenging Groundbreaking Minimum-Support-To-Sue Bylaw Dismissed

In what is believed to be the first case nationwide seeking to strike down a groundbreaking corporate bylaw aimed at combatting frivolous shareholder class actions, Emergent Capital, Inc., has secured the dismissal with…more

Board of Directors, Bylaws, Class Action, Corporate Counsel, Corporate Officers

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Cybersecurity Issues in Focus at Upcoming HNBA Conference

The Hispanic National Bar Association (“HNBA”) will gather for its annual corporate counsel conference on March 17, 2016 in Las Vegas, where presentations and discussion will focus on technology and cybersecurity issues that…more

Automotive Industry, Corporate Counsel, Cyber Insurance, Cybersecurity, Disruptive Technology

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TTAB Cancels Registration Due to Improper Assignment of Intent-to-Use Application

In a precedential decision issued last week, the Trademark Trial and Appeal Board (TTAB) cancelled a registration because it was based on an intent-to-use (ITU) application that had been the subject of an intra-corporate…more

Assignments, Intent-to-Use, Trademarks, USPTO

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The Impact of Justice Scalia’s Passing on Pending Supreme Court Cases

The country was shocked to hear of the recent passing of Supreme Court Justice Antonin Scalia. Legal scholars and political commentators have since written extensively on Justice Scalia’s contributions to the legal world and his…more

Class Action, Class Certification, EEOC, Fair Share Law, FLSA

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Expansion of Clinical Services at Assisted Living Sites – The New Paradigm

As payment reforms, such as bundled payments and Accountable Care Organizations (ACOs), drive further provider collaboration to achieve lower costs with enhanced outcomes, post- acute providers, especially assisted living sites,…more

Assisted Living Facility, Bundled Payments, Clinical Integration, Elder Care, Healthcare Facilities

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A Perfect Storm for Automotive Patent Disputes?

As the automotive industry rebounds from its recessionary levels to an all time record level of spending on vehicles and healthy profitability, one of the key drivers of the increased vehicles sales has been increased innovation…more

Auto Manufacturers, Automotive Industry, Connected Cars, Cross-Border, Discovery

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Notice Regarding Marketplace Coverage Options Due October 1

The October 1, 2013 deadline for providing employees with a notice of their coverage options through the newly established public health insurance exchanges (referred to as the “Marketplace”) is quickly approaching. This news…more

Affordable Care Act, Deadlines, DOL, FLSA, Health Insurance Exchanges

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"Guidance" That Does Not Guide: NLRB General Counsel Issues Interpretations of Common Employee Handbook Policies

We have not exactly been shy in expressing concern regarding many of the National Labor Relations Board’s (NLRB) recent actions, nor hesitant to opine that its actions appear purposefully designed to advantage unions and create…more

Employee Handbooks, Employment Policies, New Guidance, NLRA, NLRB

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Shareholder Suit Challenging Groundbreaking Minimum-Support-To-Sue Bylaw Dismissed

In what is believed to be the first case nationwide seeking to strike down a groundbreaking corporate bylaw aimed at combatting frivolous shareholder class actions, Emergent Capital, Inc., has secured the dismissal with…more

Board of Directors, Bylaws, Class Action, Corporate Counsel, Corporate Officers

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Finley Hospital — Beware the "Dynamic" Status Quo

One of the bedrock and usually easily understood principles underlying the National Labor Relations Act is that once a union gets involved with your employees, your right to make and implement unilateral decisions about wages,…more

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Taking Advantage of New Safe Harbor Against Discovery Sanctions

As your company wrestles with how to manage the virtual mountains of electronically stored information (ESI) that are created in today’s workplace, you may continue to wonder what steps to take to preserve information when…more

Duty to Preserve, Electronically Stored Information, Federal Rules of Civil Procedure, FRCP 37(e), Litigation Hold

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FCA Penalties Slated to Nearly Double This Year

A little known federal agency, the Railroad Retirement Board (“Board”), which administers retirement-survivor and unemployment-sickness benefit programs for railroad workers, published an interim final rule on May 2, 2016…more

Civil Monetary Penalty, Eighth Amendment, Excessive Fines Clause, False Claims Act (FCA), Federal Railroad Administration

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Federal Judge Refuses FTC Request to Block Hershey/Pinnacle Deal; FTC to Appeal

Hospitals and other providers who have been tracking Federal Trade Commission (FTC) and Department of Justice Antitrust Division hospital merger challenges over the last several years will want to take note of the federal…more

Administrative Proceedings, Antitrust Litigation, Appeals, Divestiture, FTC

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El Paso Electric Company Issues 25 MW Solar RFP

The El Paso Electric Company (EPE) has issued a request for proposals (RFP) seeking turnkey proposals for the engineering, procurement and construction of two (2) utility-scale solar energy generating facilities, with a combined…more

Electricity, Energy Projects, EPC Contractor, Request for Proposals, Solar Energy

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Catapult Chicago: Big Progress for the Emerging Company Scene

Foley & Lardner’s Chicago office, home to Catapult Chicago, is proud to see the recent uptick in praise for the uniquely collaborative start-up community located in Chicago’s River North neighborhood, as it has made important…more

Economic Development, Emerging Growth Companies, Job Creation, Startups, Technology

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Iowa Supreme Court Decision Boosts Renewable Energy Development

A recent Iowa Supreme Court decision may give a boost to small-scale renewable energy development in that state. On July 11, the court issued its opinion in SZ Enterprises, LLC vs. Iowa Utilities Board (link to decision),…more

Electricity, Energy, Energy Projects, Power Purchase Agreements, Renewable Energy

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SEC Steps Up Investigations of Political Intelligence Firms for Insider Trading

In the last few years, Congress, the U.S. Securities and Exchange Commission (SEC), and the courts have significantly increased their efforts to grapple with insider trading in the realm of political intelligence. In 2012,…more

Compliance, Insider Trading, Material Nonpublic Information, Political Intelligence, SEC

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Supreme Court Delivers New Life to Pregnancy Discrimination Act Claim

In an eagerly awaited ruling expected to provide greater guidance on an employer’s obligation to accommodate pregnant employees, last week the U.S. Supreme Court established the standard an employee must meet to state a…more

ADA, Disparate Treatment, EEOC, Enforcement Guidance, PDA

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IRS Issues New Notice Extending Beginning of Construction Safe Harbor

On May 5, 2016, the IRS issued Notice 2016-31 (the “Notice”) which revises previous guidance on satisfying the “beginning of construction” test in order to take advantage of the section 45 renewable electricity production tax…more

Begun Construction Test, Energy Projects, Energy Sector, Investment Tax Credits, IRS

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Should a Mediator Ever Make a Settlement Proposal to the Parties?

Mediators are neutrals. A mediator is not a fact-finder, and should not act as a judge to decide the merits of a case. The role of a mediator is to be a facilitator, to assist the parties in finding a mutually acceptable…more

Business Disputes, Dispute Resolution, Mediation, Settlement, Settlement Offer

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Are Drug Prices Really Too High?

Those working in the pharmaceutical space are used to hearing complaints about the high costs of drugs, and patents often are blamed for allowing pharmaceutical companies to charge “too much” for their products. But are drug…more

Drug Pricing, Generic Drugs, Gilead Sciences, Healthcare Costs, Hepatitis C

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Weathering the (Winter) Storm

Extreme winter weather can cause serious problems. For children, winter weather often means snow days and an escape from the confines of the classroom. For manufacturers, heavy snow and ice can mean absent workers, power…more

Force Majeure Clause, Manufacturers, Manufacturing Facilities, Notice Requirements, Safety Precautions

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340B Program Update

The new year has already gotten off to a busy start for health care providers that participate in the 340B Drug Pricing Program (“340B Program”) and government agencies that reimburse these providers. Following on the heels of…more

CMS, Drug Pricing, Federal Budget, Medicaid, Medicare Part B

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