Foley & Lardner LLP

We Thought It Might Be Getting Better … But Class Certification is Still On the Rise

The explosion of wage and hour class action litigation in the last 10 to 15 years or so has shined a spotlight not only on wage and hour practices themselves, but also on the critical question of whether an employer’s practices…more

Arbitration Agreements, Class Certification, Commercial Truck Drivers, Commonality, Employer Liability Issues

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Court Rules: Standard for Evaluating Reimbursement of Skilled Nursing Medicare Claims Was Material Improvement

A False Claims Act (“FCA”) lawsuit in Georgia was dismissed on March 31, 2015, after a federal district judge ruled that the government’s expert witnesses used the wrong standard to determine whether certain skilled therapy…more

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Customer Collaboration and Predictive Analytics Can Lead to Successful Product Manufacturing

Advanced manufacturing companies increasingly implement “Intellectual Property Plus,” an expanded view of IP assets and risks. Through this lens, companies incorporate customer expectations and preferences in new product…more

Manufacturers, Patents, Popular, Technology

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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On January 1, 2014, California’s Beverly-Killea Limited Liability Company Act (“Old Act”) was superseded by the California Revised Uniform Limited Liability Company Act (“New Act”).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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The Long Reach of the National Labor Relations Act

Non-union employers are often under the misimpression that they are not affected by the National Labor Relations Act (NLRA) — the federal statute governing union-related issues in the private sector. A recent court decision…more

Adverse Employment Action, Appeals, Hospitals, NLRA, Non-Union

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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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White House Plan to Further Expand Renewable Energy Use

President Barack Obama announced on August 24, 2015, additional steps taken to increase the adoption of renewable energy. Among other things, the set of executive actions announced on Monday include making $1 billion in…more

Barack Obama, Clean Energy, DOE, Energy Sector, FHA

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Labor Board Hounded by Another Appointment Controversy

For much of the Obama Administration, the National Labor Relations Board (Board) has been operating as, at least from the perspective of some, a rogue agency (and not just because of its willingness to overturn precedent to…more

Canning v NLRB, NLRB, NLRB General Counsel, Obama Administration, Recess Appointments

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Defense to Patent Infringement if Acts Were Performed in a “Quasigovernmental” Capacity Pursuant to a Legal Obligation

A recent Federal Circuit opinion highlights a defense that is available to defendants whose alleged infringement occurred through activities that were undertaken for the United States. In particular, where the United States…more

Airlines, Appeals, Federal Contractors, Japan Airlines, Patent Infringement

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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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Malcolm Gladwell Re-Thinks Automotive Safety in "The New Yorker"

Recent high-profile product liability lawsuits against automotive manufacturers have captured national attention. These cases have led to a renewed and heightened focus on automotive safety and, specifically, the guidelines and…more

Auto Manufacturers, Automobile Recall, Automotive Industry, Crisis Management, Public Relations

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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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A Defendant Can Get Summary Judgment Without Producing Evidence

The Supreme Court explained in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), that a party can obtain for summary judgment when its opponent has no evidence to support an element of the opponent’s case. Justice Brennan’s dissent…more

Discovery, Dram Shop Laws, Evidence, Motion for Summary Judgment, Motion to Dismiss

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IRS Releases Favorable Private Business Use Rules for Facilities Financed With Tax-Exempt Bonds

On October 24, 2014, the IRS released Notice 2014-67, which establishes more favorable safe harbors for types of service contracts and other arrangements using property financed with tax-exempt bonds. The Notice also provides…more

Bonds, IRS, Safe Harbors, Service Contracts, Tax Exemptions

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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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SEC Turns Up the Heat on Issuer Officials

Two recent SEC enforcement actions demonstrate that the Securities and Exchange Commission remains intently focused on the municipal market and, in particular, on officials participating in financings that fail to accurately and…more

Bond Financing, Bonds, Disclosure Requirements, Enforcement Actions, Material Disclosures

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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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New Social Security Card Application Requisites Raise Eyebrows

On August 10, 2015, the Social Security Administration (SSA) adopted a final rule that, as of September 9, 2015, eliminates the requirement that applicants seeking to obtain a new or replacement Social Security number card…more

Federal Register, Final Rules, I-9, Required Documentation, Social Security Adminstration

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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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Win or Lose, Trademark Applicants Must Pay PTO Attorney Fees in Appeals to District Court, Fourth Circuit Says

In a 2-1 decision issued on April 23, 2015, the Fourth Circuit held that a trademark applicant who appeals an adverse ex parte decision of the Trademark Trail and Appeal Board (TTAB) to a U.S. District Court must pay the…more

Attorney's Fees, Popular, Trademark Trial and Appeal Board, Trademarks, USPTO

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FDA’s Proposed Naming Convention for Biologics

On August 27, 2015, the Food and Drug Administration (FDA) released draft guidance on nonproprietary naming of biological products. The agency’s draft guidance proposes that the core nonproprietary name for originator biological…more

Biologics, Biosimilars, Comment Period, Draft Guidance, FDA

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An Invalidity Argument Without a Home? The PTAB's Discretion to Ignore Grounds for Invalidity

By Shaun R. Snader[1] & George C. Beck The post-grant proceedings established by the America Invents Act – inter partes review (IPR), covered business method (CBM) review, and post-grant review (PGR) –promise faster, less…more

America Invents Act, Covered Business Method Proceedings, Estoppel, Inter Partes Review Proceedings, ITC

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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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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, Fiduciaries

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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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Building the Oncology System of the Future: Transforming Patient Care Through Data Transparency and Analytics

Virtually everyone agrees that the time is now to seriously reexamine our fragmented, expensive healthcare system and to innovate sustainable approaches to curing its ills. At the center of this activity is the patient, as the…more

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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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Seventh Circuit Says Violations of Wisconsin’s Theft-by-Contractor Statute Are Not Dischargeable in Bankruptcy

The Bankruptcy Code prevents an individual debtor from discharging certain debts, including, upon request of the creditor, debts for “fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). The Seventh…more

Appeals, Bankruptcy Code, Bankruptcy Court, Chapter 7, Contractors

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Wisconsin Evens the Score by Becoming the Twenty-Fifth Right-to-Work State — So What Happens Now?

Wisconsin’s Legislature passed a “right-to-work” (RTW) law on Friday, March 6, 2015, and Wisconsin Governor (and possible presidential candidate) Scott Walker promptly signed the bill into law today. Wisconsin has now become the…more

CBAs, New Legislation, Right to Work, Taft-Hartley Act, Unions

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Second Circuit Denies Petition to Reconsider Newman Decision

April 3, 2015, the Second Circuit handed a significant victory to prospective defendants in insider trading cases — as well as the two defendants whose convictions had been reversed — by denying U.S. Attorney Preet Bharara’s…more

Appeals, En Banc Review, Fund Managers, Hedge Funds, Illegal Tipping

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Beneficiary Assignment Under the MSSP Final Rule

This is the fourth post in Health Care Law Today’s series on the final rule. This post addresses how CMS assigns beneficiaries to an ACO participating in the MSSP. In the MSSP ACO Final Rule, CMS finalized new regulations…more

ACOs, Beneficiaries, CAH, CMS, Fee-for-Service

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Congress Rallies Against New Union Election Rules

The currently Republican-controlled U.S. Congress has made it clear that pushing back on the National Labor Relations Board’s (NLRB) recent efforts, which appear motivated by a mandate to tip the scales in favor of employees and…more

Ambush Election Rules, NLRB, Proposed Legislation, Unions

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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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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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Amgen and Apotex do the Biosimilar Patent Dance

Amgen has filed a complaint under the Biologics Price Competition and Innovation Act (BPCIA), asserting that a biosimilar application filed by Apotex, Inc. infringes two of its patents. Although several complaints have invoked…more

Amgen, Apotex, Biosimilars, BPCIA, FDA Approval

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Fifth Circuit Upholds Copyright Preemption of Trade Secret-Related Claims

Situations abound in which a defendant has been sued in state court, and wants to get to federal court. In cases in which the plaintiff has not pled a federal claim, and where diversity of citizenship is absent, there may not be…more

Automotive Industry, Copyright, Copyright Litigation, Federal Jurisdiction, Misappropriation

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White House Plan to Further Expand Renewable Energy Use

President Barack Obama announced on August 24, 2015, additional steps taken to increase the adoption of renewable energy. Among other things, the set of executive actions announced on Monday include making $1 billion in…more

Barack Obama, Clean Energy, DOE, Energy Sector, FHA

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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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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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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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Knowingly or Not? When Does an Employee Agree to Arbitrate?

There was a time, not so long ago, when federal courts refused to enforce arbitration agreements in Title VII cases, rendering arbitration agreements in the employment context virtually meaningless. Then, in 1991, Congress…more

Arbitration, Arbitration Agreements, Corporate Counsel, Employee Handbooks, Retaliation

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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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Should Your Startup Become a Public Benefit Corporation?

With the increased attention paid to companies that feature public benefits or social impact as part of their mission or business plan and with the rise of social impact investors, more and more states are enacting public…more

Board of Directors, Bylaws, Corporate Entities, Derivative Suit, Public Benefit Corporation

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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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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, Free Trade Agreement, Imports

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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

FEC, McCutcheon v. FEC, Political Campaigns, Political Contributions, SCOTUS

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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, 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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Diebold Resolves FCPA Charges for $48 Million

On October 22, 2013, the U.S. Department of Justice (“DOJ”) and the Securities & Exchange Commission (“SEC”) announced their agreements with Diebold Inc. (“Diebold”) regarding probes into alleged bribery of foreign bank…more

Compliance, DOJ, Enforcement Actions, SEC, Settlement

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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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Apple v. Samsung: Design Patents Reap Profits

Design patents are an often-overlooked form of intellectual property, lying somewhere at the crossroads of trademark law, utility patent law, and copyright law. After the Federal Circuit's May 18, 2015 decision in Apple v…more

Apple, Apple v Samsung, Damages, Design Patent, Disgorgement

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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, 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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Finding Investors and Investments: What Do You Look For?

Matching investors and investments is a two-way street. Investors and companies alike look for a good fit. Strategic investors are ideal for most growth companies. However, every company seeking capital must ensure that it fits…more

Business Development, Funding, Investors

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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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"Smoking Gun" Comments Serve as an Important Reminder of the ADA’s Protection Against Associational Discrimination

Most employers are well aware that the Americans with Disabilities Act (ADA) protects qualified individuals with disabilities against discrimination on the basis of disability and requires employers to provide reasonable…more

ADA, Associated Persons, Caregivers, Disability Discrimination, Employer Liability Issues

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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, 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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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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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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Third Point LLC V. Ruprecht; Two-Tiered Poison Pill Withstands Judicial Review

In Third Point LLC v. Ruprecht, et al., C.A. No. 9469-VCP (Del.Ch. May 2, 2014), the Delaware Chancery Court denied a preliminary injunction challenging Sotheby’s stockholder rights plan, or so-called “poison pill,” which…more

Hedge Funds, Poison Pill, Shareholder Rights, Sothebys, Third Point

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Made in the USA! Reshoring Children’s Products

For all expecting and new parents, you probably have learned how quickly buying your child’s products adds up! So why would you be willing to pay more for an American-made product when you could purchase a similar product or…more

Children's Clothing, Consumer Product Safety Commission, Customs and Border Protection, Imports

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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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Recent Case Reminds Companies That, Though Much Embattled, Independent Contractor Classifications Can Be Valid

The dividing line between employees and independent contractors has been a hot topic in employment law for several years. In addition to the interest the federal government has taken in possible misclassification of employees,…more

Corporate Counsel, Employee Rights, Employer Liability Issues, FLSA, Independent Contractors

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Health Care Rep and Warranty Insurance: New Solutions for Private Equity Buyers and Sellers

Whether in an auction or proprietary transaction, risk allocation has typically been a function of indemnities tied to reps and warranties and the type of credit supporting the type of supporting credit. Holdbacks, earnouts,…more

Asset Deals, Auction, Buyers, Exit Strategies, Healthcare

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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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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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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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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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Recent Notable Industry Developments

Following SEC Chair Mary Jo White’s recent remarks suggesting a change to the SEC’s long-standing policy of permitting defendants to settle cases “without admitting or denying” the SEC’s allegations of wrongdoing, co-Directors…more

CBOE, Enforcement Actions, FINRA, Mary Jo White, Neither Admit Nor Deny Settlements

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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 Notice 2015-25 Extending Safe Harbor for Continuous Construction in Order to Take Advantage of Renewable Energy Tax Credits

Thursday, the IRS issued Notice 2015-25, which updates the guidance in Notices 2013-29, 2013-60, and 2014-46. These Notices provide that a taxpayer can show that it has “begun construction” of its qualified renewable energy…more

IRS, Production Tax Credit, Renewable Energy

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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, Proposal for Settlement, Settlement

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The Confused USPTO Policy on Certified Copies of Patent Applications

Obtaining certified copies of patent applications can be essential to perfecting a priority claim. But when a U.S. priority application contains a sequence listing, USPTO practices make it difficult to satisfy this requirement…more

Patent Applications, Patents, Required Documentation, USPTO

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Buying Someone Else's Headache – Top Five Supply Chain Pitfalls to Consider When Expanding Through Acquisition

As the economic recovery continues to pick up steam, manufacturers are looking to grow their capacity and expand their markets. Many manufacturers choose to expand their horizons by acquiring smaller companies or merging with a…more

Corporate Counsel, Due Diligence, Manufacturers, Strategic Planning, Supply Agreements

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Omnibus 340B Guidance Raises New Issues for Covered Entities

The Department of Health and Human Services (HHS) released its proposed 340B Drug Pricing Program Omnibus Guidance (Omnibus Guidance) on August 28, 2015. The Omnibus Guidance offers comprehensive – and, in some cases, new –…more

340B, Comment Period, Covered Entities, Draft Guidance, Drug Pricing

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NHTSA Announces Record Setting Civil Penalty in Consent Order With Chrysler

In 2014, NHTSA collected a record setting amount of civil penalties. For 2015, NHTSA may be on pace to exceed last year’s record. On July 26, 2015, NHTSA announced a $105 million civil penalty against FCA US LLC, the former…more

Auto Manufacturers, Automobile Recall, Automotive Industry, Chrysler, Civil Monetary Penalty

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Labor and Employment — The TMZ of Law

We employment lawyer types proudly boast that no one has better legal stories to tell than we do (if only we could tell all of our stories). Some of our best stories were thrust into the media during the first quarter of 2015…more

Employer Liability Issues, Hostile Environment, Kleiner Perkins Caufield, Marchuk v Faruqi, Sex Discrimination

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Recent OIG Audits of Home Health and Hospice Surveys May Signal Increased Scrutiny on Worker Qualifications

Recent audits by the Department of Health and Human Services Office of Inspector General (“OIG”) conclude that state survey agencies in a number of states and a leading national accrediting agency serving the home health and…more

Audits, Certifications, CMS, Department of Health and Human Services, Health Care Workers

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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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Newly Released Proposed Overtime Regulations Estimated to Make 5 Million Workers Eligible for OT

We noted last year that the Obama Administration had directed the United States Department of Labor (DOL) to review and amend the so-called “white collar” exemptions to the overtime requirements of the Fair Labor Standards Act…more

Barack Obama, Classification, DOL, Exempt-Employees, FLSA

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Defensive Publication: An Alternate Way of Maintaining Your Turf in a Competitive Marketplace

It is common knowledge that the bread-and-butter of emerging startups lies in securing exclusive rights to key aspects of their implicated technology. Staking claims to valuable IP assets via direct ownership or exclusive…more

America Invents Act, Patent Prosecution, Patents, Prior Art, Startups

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A Familiar Riff: Gibson's Trade Dress Application Once Again Asks Whether a Guitar Body Shape Can Indicate Source

In the same way that Rock and Roll will never die (according to Neil Young) it would appear that battles over the protection of trade dress embodied in the shape of guitars will likewise never die. In the latest installment of…more

Manufacturers, Music Industry, Trade Dress, Trademark Trial and Appeal Board, Trademarks

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Argentina: Favorable Venue for Manufacturers Licensing Their Technology/Intellectual Property Rights

Argentina, together with Brazil and Mexico, are Latin America’s three largest economies representing more than 80 percent of the region’s manufacturing output. In addition, Argentina has proven to be a favorable venue for…more

Licenses, Manufacturers, Patents, Popular, Technology

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Will China's Currency Devaluation Complicate the Trans-Pacific Partnership?

As trade ministers from 12 Pacific Rim countries continue to negotiate the Trans-Pacific Partnership (TPP) deal, China’s recent currency devaluation has sparked a debate over the inclusion of currency manipulation controls in…more

AFL-CIO, China, Currency Control, Currency Fluctuation, Currency Manipulation

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A Compilation of Enforcement and Non-Enforcement Actions

Non-Enforcement - Form PF — What Purpose? SEC registered investment advisers with at least $150 million of assets under management in private funds are required to periodically file Form PF with the SEC. The…more

AIFMD, Board of Directors, Breach of Duty, CFTC, Chief Compliance Officers

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Iowa Insurance Commissioner Petitions for Liquidation of Iowa/Nebraska CO-OP; How Financially Sound Are Others?

The Iowa Commissioner of Insurance (the “Commissioner”) filed a petition, on January 29, 2015, seeking to liquidate CoOpportunity Health, Inc. (“CoOpportunity”), a Consumer Operated and Oriented Plan (“CO-OP”) established under…more

Affordable Care Act, Co-Op, Health Insurance, Health Insurance Exchanges, Insurance Commissioners

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[Webinar] Food & Beverage Class Action Advertising and Labeling Lawsuits - August 5, 12:00-1:00 Central

Foley invites you to join us on Wednesday, August 5, 2015, to discuss recent class action litigation trends in food and beverage labeling and advertising. The presentation will review recent legal developments and provide…more

Advertising, Class Action, Class Certification, Continuing Legal Education, Expert Witness

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Is It Time to Switch Gears? Enforceability of Automotive Company Employee Confidentiality Restrictions

Given the large workforces and importance of intellectual property and trade secrets in the automotive industry, automotive companies rely heavily on confidentiality provisions in employment agreements and employee handbooks…more

Auto Manufacturers, Automotive Industry, Car Dealerships, Confidentiality Agreements, Employee Handbooks

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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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[Webinar] Food & Beverage Class Action Advertising and Labeling Lawsuits - August 5, 12:00-1:00 Central

Foley invites you to join us on Wednesday, August 5, 2015, to discuss recent class action litigation trends in food and beverage labeling and advertising. The presentation will review recent legal developments and provide…more

Advertising, Class Action, Class Certification, Continuing Legal Education, Expert Witness

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Enforcement Provides Important Update for Auto Industry

For the last several years, the global auto industry has been rocked by unprecedented investigations and prosecution. Numerous international cartels, involving scores of companies and individuals, have engaged in price-fixing…more

Antitrust Investigations, Auto Parts, Automotive Industry, Cartels, Class Action

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Analysis of Amendments to Federal Rules of Civil Procedure 45 and 37

The Supreme Court of the United States has made significant amendments to Federal Rule of Civil Procedure 45, which became effective on December 1, 2013. Rule 45 governs the form, issuance, service, enforcement of, compliance…more

Federal Rules of Civil Procedure, Proposed Amendments, Rule 37, Rule 45, SCOTUS

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What Does President Obama's $215 Million "Precision Medicine Initiative" Mean for Genetic Privacy?

We have all heard about the burgeoning opportunities tied to the development of precision medicine (also called “personalized medicine”), which includes the use of an individual’s genetic information to design targeted…more

Barack Obama, DNA, Federal Budget, Genetic Markers, Healthcare

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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, Fiduciaries

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Second Circuit Denies Petition to Reconsider Newman Decision

April 3, 2015, the Second Circuit handed a significant victory to prospective defendants in insider trading cases — as well as the two defendants whose convictions had been reversed — by denying U.S. Attorney Preet Bharara’s…more

Appeals, En Banc Review, Fund Managers, Hedge Funds, Illegal Tipping

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Clarity Put on Hold as FTAIA Conflict/Confusion Continues

The Foreign Trade Antitrust Improvements Act (FTAIA) was enacted in 1982 to help achieve clarity in the application of U.S antitrust laws to international trade. More than 30 years since that effort, the FTAIA has not achieved…more

Appeals, Cartels, Damages, Exports, Foreign Trade Regulations

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Another Delay for the Two-Midnight Rule

The Centers for Medicare and Medicaid Services (CMS) announced, on August 12, 2015, that it has extended the enforcement delay of the controversial two-midnight rule governing short hospital stays until the end of the year. As…more

CMS, Healthcare, Healthcare Professionals, Medicaid, Medicare

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ICANN Opens Trademark Clearinghouse as Part of Imminent Domain Name Expansion

With the launch of possibly hundreds of new generic top-level domains (gTLDs) on the horizon, the Internet Corporation for Assigned Names and Numbers (ICANN) will open on March 26, 2013 the Trademark Clearinghouse (TMCH), in…more

Brand, gTLD, ICANN, Trademark Clearinghouse, Trademarks

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U.S. Army Loses Battle to Regulate Bathroom Selection of Transgender (Civilian) Employee

On April 1, 2015, the EEOC ordered the Army to pay damages for discriminating against a transgender employee when it prevented her from using the common women’s bathroom and routinely demeaned her by calling her “sir” and other…more

Army, Discrimination, EEOC, Enforcement Actions, Gender Discrimination

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Key In-House Counsel Interview Questions Every Automotive Supplier Needs to Ask

As automotive suppliers continue to add employees to keep up with industry growth, legal departments or top management may desire to hire experienced in-house counsel to support the business. To ensure the right fit, suppliers…more

Auto Manufacturers, Auto Parts, Automotive Industry, Corporate Counsel, Hiring & Firing

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A Compilation of Enforcement and Non-Enforcement Actions

Non-Enforcement - Form PF — What Purpose? SEC registered investment advisers with at least $150 million of assets under management in private funds are required to periodically file Form PF with the SEC. The…more

AIFMD, Board of Directors, Breach of Duty, CFTC, Chief Compliance Officers

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Eleventh Circuit Affirms Dismissal of Relator's Complaint Under Amended Public Disclosure Bar

In United States of America ex rel. Marc Osheroff v. Humana, Inc. et al., No. 13-15278 (11th Cir., Jan. 16, 2015), the Eleventh Circuit affirmed dismissal of a relator’s complaint under the public disclosure bar of the False…more

Affordable Care Act, Dismissals, False Claims Act, Humana, Jurisdiction

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Coming to America: Challenges in Moving Manufacturing to the U.S.

News of manufacturing companies coming to America or choosing to stay in the U.S. is plentiful of late. Why the focus on American manufacturing? And, perhaps more important, what are the legal and cultural issues facing…more

Business Formation, Economic Development, Immigration Procedures, Job Creation, Manufacturers

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AAA Makes Substantial Revisions to Commercial Arbitration Rules

The American Arbitration Association (“AAA”) issued new Arbitration Rules and Mediation Procedures governing commercial disputes for AAA commercial arbitrations initiated on or after October 1, 2013. Arbitration proceedings…more

American Arbitration Association, Arbitration, Commercial Arbitration

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Seventh Circuit Limits Construction Lender’s Use of Title Insurance Policy to Cover Construction Liens Created by Lender’s Cutoff of Funding

In a recent decision written by Judge Sykes, affirming a decision from the Western District of Wisconsin, in an issue governed by Wisconsin law, the Seventh Circuit ruled that a title insurer has no duty to indemnify a…more

Appeals, Commercial Insurance Policies, Construction Liens, Construction Loans, Contractors

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MSSP Final Rule Provides Modification to Shared Savings Financial Arrangement

This is the fifth post in Health Care Law Today’s series on the final rule. The final Medicare Shared Savings Program (“MSSP”) rule released on June 4, 2015, contains a number of modifications to the financial arrangement…more

ACOs, CMS, Final Rules, Medicaid, Medicare

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PARTS Act Could Limit Automotive Design Patent Enforceability to 2.5 Years

On April 23, 2013, H.R. 1663 “Promoting Automotive Repair, Trade, and Sales Act of 2013’’ or the ‘‘PARTS Act’’, was referred to the House Judiciary Committee. Similar bill H.R. 3889 died in committee last year. The proposed bill…more

Automotive Industry, Design Patent, Patents, Proposed Legislation

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Supreme Court Rules Trademark Tacking Is a Question for Juries

The tacking doctrine allows trademark owners to make slight modifications to their marks over time without an attendant loss of rights. Specifically, owners can claim priority in a mark based on the first use date of a…more

Hana Financial v Hana Bank, Jury Questions, Likelihood of Confusion, SCOTUS, Tacking

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Is America Ready for "Made in the U.S.A." Clothing?

While the reshoring tide is undeniably rising, the prospect of clothing and apparel manufacturing returning to the United States remains uncertain. Back in the 1960s, about 95% of clothing worn in the U.S.A. was also made here…more

Fashion Industry, Manufacturers, Supply Chain

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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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Federal Circuit: Lack of Bona Fide Intent to Use at the Time of Filing Fatal to Trademark Application

In a recent ruling the Federal Circuit affirmed the decision of the Trademark Trial and Appeal Board (TTAB) sustaining an opposition against a trademark application on the grounds that the applicant failed to prove that it had a…more

Intent-to-Use, Lanham Act, Trademark Application, Trademark Litigation, Trademark Opposition Proceedings

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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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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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Supreme Court Holds Good Faith Belief of Invalidity Not a Defense to Induced Infringement Claim

The U.S. Supreme Court held yesterday in Commil USA, LLC v. Cisco Sys., Inc. (No. 13-896) that a defendant’s belief regarding patent invalidity is not a defense to a claim of induced infringement. Justice Kennedy authored the…more

Cisco, Cisco v CommilUSA, Frivolous Lawsuits, Good Faith, Honest Belief Defense

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NHTSA Announces Record Setting Civil Penalty in Consent Order With Chrysler

In 2014, NHTSA collected a record setting amount of civil penalties. For 2015, NHTSA may be on pace to exceed last year’s record. On July 26, 2015, NHTSA announced a $105 million civil penalty against FCA US LLC, the former…more

Auto Manufacturers, Automobile Recall, Automotive Industry, Chrysler, Civil Monetary Penalty

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Let’s Get Ready to Rumble

The summer of 2015 should be very interesting for the Big 3 and suppliers alike. The collective bargaining agreements for the Big 3 will expire on September 14, 2015. Initial negotiations with the UAW are scheduled to commence…more

Automotive Industry, Chrysler, Collective Bargaining, Ford Motor, General Motors

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The SEC’s Municipal Advisor Rule Will Prompt New Practices for Market Participants

A new rule will take effect on July 1, 2014 that regulates persons and firms that provide advice to municipal issuers and obligated parties regarding municipal financial products or the issuance of municipal securities. Although…more

Compliance, Dodd-Frank, MSRB, Municipal Advisers, SEC

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Supreme Court on Induced Infringement: Good-Faith Belief of Invalidity Not a Defense and Knowledge of Infringement Required

In a 6-2 decision this week, the United States Supreme Court in Commil USA, LLC v. Cisco Systems, Inc., 575 U.S. ____ (2015) held that an accused infringer’s good-faith belief of patent invalidity is not a defense to a claim of…more

Cisco, Cisco v CommilUSA, Good Faith, Honest Belief Defense, Induced Infringement

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Making the FCPA "Reasonable"— Exceptions and Affirmative Defenses

So, we have covered the Foreign Corrupt Practices Act’s (“FCPA”) scope, but the FCPA anti-bribery provisions also contain certain exceptions and affirmative defenses. These exceptions and affirmative defenses attempt to carve…more

Affirmative Defenses, Chief Compliance Officers, Corporate Counsel, Exceptions, FCPA

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Puerto Rico: A Haven for Manufacturers?

Perhaps not surprisingly to those familiar with the tropical island, manufacturing remains a key driver of economic activity in Puerto Rico. Indeed, manufacturing accounts for 45% of Puerto Rico’s GDP (compared to 11% in the…more

International Labor Laws, International Tax Issues, Manufacturers

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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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Court Allows Price Discrimination Lawsuit Over Bulk Sales to Survive

On February 2, 2015, a federal judge denied a motion to dismiss a claim that Clorox’s proposed policy of providing only large bulk-size packages of products to warehouse clubs, like Sam’s Club and Costco, and not to competing…more

Bulk Purchasing, Clorox, Costco, Grocery Stores, Robinson-Patman Act

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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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The Creeping Union Part II: Why You Should Start Planning Now

In our last post, we summarized the 2011 Specialty Healthcare decision and the potential for the NLRB to recognize an unduly burdensome number of smaller collective bargaining units. So far, cases interpreting Specialty…more

Collective Bargaining, Employer Liability Issues, Macy's, Neiman Marcus, NLRB

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We’re All About Sharing Cyber Information: The National Cybersecurity and Communications Integration Center

Amidst the maelstrom of unceasing cyber attacks and intrusions, the National Cybersecurity and Communications Integration Center (NCCIC or Center) assumes a front-and-center role as the government command and communication…more

Breach Notification Rule, Critical Infrastructure Sectors, Cyber Attacks, Cyber Threats, Cybersecurity

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FDA Takes Steps to Declare Partially Hydrogenated Oils No Longer GRAS and Seeks Comments

On November 7, 2013, the Food and Drug Administration (FDA) announced that it has tentatively determined that partially hydrogenated oils (PHOs) are no longer generally recognized as safe (GRAS) for any use in food. PHOs are the…more

FDA, Food Safety, Trans Fat

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Whistleblowers Must Have Independent Knowledge to Actually Blow the Whistle

To bring a valid qui tam action and overcome the so-called “public disclosure bar” under the False Claims Act (“FCA”), a whistleblower must have direct knowledge of the alleged fraudulent activity, independent of already…more

False Claims Act, Kickbacks, Pharmaceutical Manufacturers, Public Disclosure, Qui Tam

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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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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, Fiduciaries

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Seventh Circuit Takes on Dairy Parlors, Damages, and Dealerships

A recent Seventh Circuit opinion written by Judge Posner addresses both the covenant of good faith and fair dealing and some issues of damages proof in a particularly appropriate Wisconsin context: dairy-equipment…more

Appeals, Business Valuations, Covenant of Good Faith and Fair Dealing, Damages, Dealers

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EU Moves Closer to a "Unitary" Patent Regime for Obtaining and Litigating Patents in Europe

On December 11, 2012, the European Parliament approved a set of three proposals to create (1) a “unitary” patent valid across 25 EU member states, (2) a simplified language regime for EU patents, and (3) a unified patent court…more

EU, Patents, Unified Patent Court, Unitary Patent

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Final Rule Will Give ACOs Participating in MSSP Access to More Data for More Beneficiaries

This is the third post in Health Care Law Today’s series on the final rule. This post addresses changes to sharing of beneficiary identifiable data. In its December 8, 2014 proposed rule revising the Medicare Shared…more

ACOs, CMS, Data-Sharing, Final Rules, Health Care Providers

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Tapping Into the Big Value of Health Care Big Data

In This Issue: - Executive Summary - Improving Care by Tapping Into the Data Goldmine - Big Opportunities Available in Big Data - Government Programs Supporting the Use of Big Data -…more

Big Data, Healthcare, PHI, Popular, Regulatory Standards

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Connected and Autonomous Vehicles - Moving Forward in High Gear

This is my second and final installment in reporting on the Center for Automotive Research (CAR)’s 50th annual “Management Briefing Seminars” conference held earlier this month in Traverse City, Michigan…more

Auto Manufacturers, Automotive Industry, Connected Cars, Cyber Attacks, Cybersecurity

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A Compilation of Enforcement and Non-Enforcement Actions

SEC Proposes Extension of Principal Trade Rule for Registered Advisers/Broker-Dealers - The SEC has proposed extending to December 31, 2016, the sunset date for the expiration of Rule 206(3)-3T (the “Rule”) under the…more

Broker-Dealer, Compliance, Enforcement, Enforcement Actions, Fraud

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Expanded Exemption for Religious Employers Regarding Women's Contraceptive Services

The Patient Protection and Affordable Care Act requires non-grandfathered group health plans to cover preventive services at no cost. For women this includes all FDA-approved contraceptive methods, sterilization procedures, and…more

Affordable Care Act, Contraceptive Coverage Mandate, Exemptions, Religious Institutions, Self-Insured Health Plans

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A Review of Recent Whistleblower Developments

SEC Awards Another Whistleblowing Compliance Officer - On April 22, 2015, the Securities and Exchange Commission (SEC) announced an award between $1.4 and $1.6 million to a compliance officer who provided information that…more

Attorney-Client Privilege, Certificates of Compliance, Chief Compliance Officers, Compliance, Confidentiality Agreements

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Six Tips for Demonstratives in PTAB Hearings

Oral hearings before the PTAB are the time to shine, to convince the judges why your position is right, why your opponent’s position is wrong, and to address questions head-on and reassure the judges regarding any real or…more

Evidence, Patent Litigation, Patent Trial and Appeal Board, Patents, Young Lawyers

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This Is Not Your Father's Oldsmobile: Car Hacking and the SPY Car Act

Not coincidentally, on July 21, 2015, Wired Magazine published an article with groundbreaking evidence of hacking a car wirelessly, and Senators Edward Markey (D-Mass.) and Richard Blumenthal (D-Conn.) introduced legislation…more

Auto Manufacturers, Cloud-Based Services, Cyber Attacks, Cybersecurity, Dashboard

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E-Commerce's Hidden Legal Issues

Less than 25 years ago, e-commerce was something not far removed from the stuff of science fiction. Today, it annually accounts for trillions of dollars in global sales. But, you should know, e-commerce presents legal issues…more

Best Practices, Distributors, E-Commerce, Manufacturers, Young Lawyers

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U.S. Steel Producers File Antidumping and Countervailing Duty Petitions: The Potential Impact

U.S. steel producers Nucor, U.S. Steel, Steel Dynamics, California Steel, AK Steel and Acelor Mittal filed, on June 3, antidumping and countervailing duty petitions against some forms of corrosion resistant steel from China,…more

Anti-Dumping Duty, Countervailing Duties, ITC, U.S. Commerce Department, US Steel

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The Impact of the Supreme Court's Decision in Windsor (DOMA) on Individuals and Businesses

The U.S. Supreme Court’s decision in United States v. Windsor, issued two weeks ago, held that a portion of the Defense of Marriage Act (DOMA) was unconstitutional. This decision will affect individuals, employers, and certain…more

DOMA, Employee Benefits, Employer Mandates, Marriage, Same-Sex Marriage

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Self-Driving Cars - "IP Driving Acquisition"

As Chair of Foley & Lardner’s Electronics Practice Group, I recently published a LinkedIn article about news reports of a group of German auto companies including BMW, Audi and Daimler acquiring HERE Global (Nokia’s map…more

Automotive Industry, BMW, DaimlerChrysler, Driverless Cars, Germany

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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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Know the Risks: Domestic and International Compliance

The penalties for compliance missteps have never been higher — particularly in the international regulatory context. As the record-setting penalties against BNP Paribas (nearly $9 billion in penalties for violations of economic…more

BNP Paribas, Compliance, EAR, Enforcement Actions, FCPA

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Isn’t Consistency Great?

There is probably no more hard and fast rule, or favorite word of human resource professionals, than “consistency.” And we love consistency, right? It allows you to say “no” to an employee who wants something outside of the…more

Best Management Practices, Human Resources Professionals

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Charting Your Way Through Chrysler Group LLC's New Terms and Conditions

Chrysler Group LLC (Chrysler) issued new general terms and conditions (Terms) for production and Mopar purchasing that will apply to all purchase orders issued after December 1, 2014. The new Terms are not retroactive and apply…more

Auto Manufacturers, Auto Parts, Automotive Industry, Chrysler, Manufacturers

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Wisconsin's Supreme Court Creates More Power for the Arbitrator

Most commercial litigators know that a circuit court will enforce an arbitration agreement as long as a given dispute falls within the agreement’s scope. What is or is not within the scope of an agreement, however, has not…more

Arbitration Agreements, Arbitrators, Broker Commissions, Contract Disputes, Real Estate Brokers

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Wisconsin Courts Can Force Lenders to Make Prompt Sales of Foreclosed Properties Which Have Been Abandoned by the Borrowers

In a case that “radically revises the law on mortgage foreclosure,” the Wisconsin Supreme Court recently held in Bank of New York Mellon v. Carson, 2015 WI 15, that Wisconsin circuit courts have the authority to order a sale of…more

Abandoned Property, Foreclosure, Mortgage Lenders

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