Foley Hoag LLP

The First, First Circuit Court to Opine on a Newman Challenge

And the Insider Trading Charges Stick - On May 12, 2015, in United States v. Douglas Parigian, U.S. District Court Judge Denise Casper became the first judge in the First Circuit to opine on a challenge to insider trading…more

American Superconductor, Fiduciary Duty, Illegal Tipping, Insider Trading, Material Nonpublic Information

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Conflict Minerals: European Parliament Endorses New Compliance Requirements

It has been nearly a month since the deadline for companies in the United States to file their second annual conflict minerals reports with the Securities and Exchange Commission. As companies and their stakeholders assess the…more

Compliance, Conflict Mineral Rules, Corporate Counsel, EU, Popular

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Massachusetts SJC Rules that Taxicab Drivers Are Independent Contractors Under the Wage Act

On April 21, 2015, the Massachusetts Supreme Judicial Court (SJC) held in Sebago, et al. v. Boston Cab Dispatch, Inc., et al., that taxicab companies may classify taxicab drivers as independent contractors. The plaintiffs in…more

Employee Definition, Independent Contractors, Taxi Cabs, Wage and Hour

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Bureau of Economic Analysis (BEA) Form BE-10: Industry Concern Voiced and Extension Updates

On June 8, 2015, a joint letter was sent to the U.S. Department of Commerce Secretary Penny Pritzker raising broad concerns with the Form BE-10 survey, including requirements for consolidation, burden of reporting, need for…more

Foreign Investment, Form BE-10, Private Funds, U.S. Commerce Department

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Supreme Court Calls for Greater Deference to District Court Claim Construction

This week, in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court held that the Federal Circuit must apply a deferential “clear error” standard of review to any finding of fact underlying a district court’s claim…more

Claim Construction, Clear Error Standard, De Novo Standard of Review, Federal Rules of Civil Procedure, Patent Litigation

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SEC Radically Revamps Regulation A - Part 2

Contents of Offering Statement - For many years, SEC Regulation A languished as an exemption from registration that nobody really used. Although securities issued in a Regulation A offering are not “restricted securities”…more

EDGAR, Electronic Filing, JOBS Act, Offering Statements, Regulation A

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SEC Proposes Rules for Pay Ratio Disclosure

On September 18, 2013, the Securities and Exchange Commission proposed amendments to Item 402 of Regulation S-K (Item 402) under the Securities Exchange Act of 1934 (Exchange Act) that will require issuers to disclose the ratio…more

CEOs, Disclosure Requirements, Pay Ratio, Regulation S-K, SEC

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No Purchase Necessary: Six Tips for Making Sure Your Online Prize Promotion is not an Illegal Lottery

The Federal Trade Commission’s recent $9.5 million judgment against sweepstakes operator Crystal Ewing is a stark reminder that prize promotions remain fertile ground for regulatory scrutiny both on the state and federal level. …more

Contests & Promotions, FTC, Marketing, Mobile Devices, Sweepstakes

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Second Circuit Issues Landmark Decision Limiting Insider Trading Liability of "Remote Tippees"

On December 10, 2014, the Second Circuit Court of Appeals in New York reversed a set of insider trading convictions and reined in government prosecutions of insider traders who are outside the company in which stock is traded…more

Hedge Funds, Illegal Tipping, Insider Trading, Material Nonpublic Information, Personal Benefit

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Supreme Court Allows Closely Held Corporations to Invoke Religious Objections Against Providing Employee Contraceptive Coverage

In a 5-4 decision, the United State Supreme Court ruled Monday in Burwell v. Hobby Lobby Stores, Inc., that closely held for-profit corporations may invoke religious objections to exclude contraceptive coverage from the health…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Contraceptives, Hobby Lobby

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Massachusetts DOER Releases Draft SREC II Regulations

The Massachusetts Department of Energy Resources (MA DOER) has released draft regulations for its SREC II solar program. The regulations are the latest step toward implementing the Commonwealth’s goal to install a total of 1.6…more

Clean Energy, Energy, Energy Policy, Power Plants, Solar Energy

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Delaware Chancery Court Concludes Indemnification and Other Provisions of a Merger Agreement Are Not Enforceable Against Non-Consenting Stockholders

In November, the Delaware Court of Chancery issued a decision that raises troubling questions about commonly used techniques in private company acquisitions and that, if not modified on appeal or through legislation, could alter…more

CIGNA, Delaware General Corporation Law, Indemnification Clauses, Merger Agreements, Purchase Price

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5 Things You May Not Know About Trademarks in France

Foley Hoag was recently delighted to announce the arrival of two IP attorneys to our Paris office, Catherine Muyl and Alice Berendes. We asked them to tell us a few things we may not know about trademarks in France. Here they…more

Community Trademark, France, Trademark Infringement, Trademark Registration, Trademarks

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DOE Releases Draft Environmental Impact Statement for Northern Pass Project

The U.S. Department of Energy (DOE) recently released a Draft Environmental Impact Statement (DEIS) for Northern Pass Transmission, LLC’s proposed 187-mile transmission line across the United States-Canada border in New…more

DEIS, DOE, Energy Sector, Environmental Impact Report, Presidential Permit

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SEC Radically Revamps Regulation A - Part 3

Reporting and Blue Sky Issues - For many years, SEC Regulation A languished as an exemption from registration that nobody really used. Although securities issued in a Regulation A offering are not “restricted securities”…more

Issuers, JOBS Act, Regulation A, Reporting Requirements, SEC

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Pretzel Logic: Federal Circuit holds that TTAB Failed to Consider Mark as a Whole

An application to register PRETZEL CRISPS as a mark will live another day, thanks to a Federal Circuit opinion reversing a TTAB decision that had canceled the mark on grounds of genericness…more

Generic, Remand, Reversal, Trademark Litigation, Trademark Registration

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Sold-Out RGGI Auction Triggers Cost Containment Reserve (Which Sells Out, Too)

Last week’s auction of CO2 allowances by the Regional Greenhouse Gas Initiative (RGGI) was the 23rd in the program’s history, but the first auction under the new RGGI rules and reduced cap. The new rules undoubtedly explain why…more

Carbon Capture and Sequestration, Carbon Emissions, Cost-Containment, Environmental Policies, Greenhouse Gas Emissions

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MassDEP Releases Its Draft Vapor Intrusion Guidance

MassDEP has recently released for public comment draft Guidance on Vapor Intrusion. The proposed guidance would replace MassDEP’s December 2011 Interim Final Vapor Intrusion Guidance, which saw minor revisions in the spring of…more

Department of Environmental Protection, Environmental Policies, Vapor Intrusion, Vapor Intrusion Guidance

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Venture Perspectives - New England Edition: Fourth Quarter and Year 2013

In This Issue: - Activity Level of 2013 New England Transactions - All Rounds - Activity Level of New England Seed Transactions - Activity Level of New England Series A Transactions - Activity Level of New…more

Equity Transactions, Seed Financing, Series A, Series B, Venture Capital

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Divided Federal Circuit Panel Upholds Patent Office’s “Broadest Reasonable Interpretation” Standard for Construing Claims in Post-Grant Review

In a 2-1 decision in In re Cuozzo Speed Technologies LLC, No. 14-1301 (Fed. Cir. Feb. 4, 2015), the Federal Circuit recently held that the Patent Office may apply the “broadest reasonable interpretation” standard to construe the…more

America Invents Act, Inter Partes Review Proceedings, Patents, Post-Grant Review, USPTO

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SEC Radically Revamps Regulation A - Part 1

Eligibility and Offering Size - For many years, SEC Regulation A languished as an exemption from registration that nobody really used. Although securities issued in a Regulation A offering are not “restricted securities”…more

Accredited Investors, Crowdfunding, JOBS Act, Private Equity, Private Offerings

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DOJ Releases Best Practices for Victim Response and Reporting of Cyber Incidents

Last week, the Cybersecurity Unit of the Department of Justice (DOJ) issued a list of “best practices” for companies concerning preparing for and responding to cyber-attacks. The report details the lessons federal prosecutors…more

Best Practices, Cyber Attacks, Cybersecurity, DOJ, New Guidance

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New Rule Permits CMS to Revoke Medicare Billing Privileges for Providers/Suppliers with “Pattern or Practice” of Denied Claims

On December 5, 2014, the Centers for Medicare & Medicaid Services (CMS) issued a final rule titled “Requirements for Medicare Incentive Reward Program and Provider Enrollment” (“the Rule”). The Rule implemented several provider…more

Billing, Claims Processing Systems, Clinical Laboratories, CMS, Final Rules

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Federal Circuit Holds that A Good-Faith Belief in Patent Invalidity Is a Defense to Claims of Inducing Patent Infringement

This week, the Federal Circuit issued an important decision for device manufacturers, developers, service providers, and any other company that might be targeted as an “indirect” patent infringer based on customers' use of their…more

Contributory Infringement, Good Faith, Infringement, Patents, Validity

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Changes on the Horizon? IRS Announces New Plans to Recharacterize Management Fee Waiver Arrangements

On July 22, 2015, the IRS released proposed regulations that could limit the utility of “management fee waiver” arrangements (the “Proposed Regulations”). Management fees generally are taxable as compensation income. Typically,…more

Capital Gains, Clawbacks, Deferred Compensation, Fee Waivers, Fund Sponsors

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Massachusetts Legislation Proposes Cost Disclosures and Price Caps for Prescription Drugs

The Massachusetts Legislature is currently considering Senate Bill 1048, “An Act to Promote Transparency and Cost Control of Pharmaceutical Drug Prices.” The bill, sponsored by State Senator Mark Montigny, Vice Chair of the…more

Disclosure Requirements, Healthcare, Pending Legislation, Pharmaceutical, Pharmaceutical Manufacturers

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What Did the Court Really Say About Patent Eligibility?

Implications of Alice v. CLS Bank - Late last week, the United States Supreme Court decided Alice Corp. Pty. Ltd. v. CLS Bank Int’l, et al., a case the technology community had hoped would clarify what kinds of software…more

Alice Corporation, CLS Bank, CLS Bank v Alice Corp, Patent Infringement, Patent Litigation

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Seeing Double Trademarks on St. Patrick’s Day? It’s Probably the Guinness

St. Patrick’s Day is upon us, which in Boston means loads of Kelly green, a famously-litigated parade, and a huge spike in the consumption of Guinness. The iconic dark stout travels in equally recognizable containers, each…more

Beer, Brand, Breweries, Trademarks, Wine & Alcohol

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SEC Division of Investment Management Issues Guidance on Personal Trade Reporting of Accounts Over Which Reporting Persons Have No Influence or Control

Under Rule 204A-1 of the Investment Advisers Act of 1940, a registered investment adviser’s written code of ethics must include requirements for reporting of personal securities holdings and trading activity by the adviser’s…more

Corporate Officers, Ethics, Investment Adviser, Investment Advisers Act of 1940, Non-Public Information

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Divided Infringement Steps into the Limelight

Implications of Limelight v. Akamai - The United States Supreme Court ruled Monday that a defendant cannot be liable for inducing infringement unless the induced party directly infringed the patent. This means, under…more

Akamai Technologies, En Banc Review, Induced Infringement, Limelight Networks, Mayo v. Prometheus

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FICA Tax “Holiday” Ends With 2012, and Social Security and Medicare Contributions Increase For Some Employees

On January 1, 2013, Congress approved the American Taxpayer Relief Act of 2012, the bill designed to avert the so-called “fiscal cliff.” The Act, which President Obama signed into law yesterday, extended certain tax relief…more

Affordable Care Act, American Taxpayer Relief Act, FICA Taxes, Fiscal Cliff, Medicare Taxes

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Department of Education Issues Final Regulations on Campus Sex Offense Reporting and Training, While Leaving Some Key Issues Unresolved

On Monday, the Department of Education published final regulations on how colleges and universities should prevent, report, and respond to sexual offenses on campus. These regulations interpret changes recently made by Congress…more

Clery Act, Colleges, Dating Violence, Department of Education, Disclosure Requirements

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The Massachusetts Securities Division Settlement with Citigroup: What Does It Mean?

A recent Massachusetts Securities Division $30 million settlement with Citigroup Global Markets Inc. (“CGMI”) provides a public glimpse into a less-widely known form of non-public information – a research analyst’s preview of…more

Apple, Broker-Dealer, Citigroup, Financial Analysts, Hedge Funds

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U.S. Department of Labor Proposes to Change Rule Regarding Who Is a Same-Sex Spouse under the FMLA

On Friday, June 20, 2014, the U.S. Department of Labor (“DOL”) announced its intention to change the regulatory definition of who is a “spouse” for purposes of the Family Medical Leave Act (“FMLA”). The impetus for the proposed…more

DOL, DOMA, Employer Liability Issues, FMLA, OMB

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Venture Perspectives: Third Quarter 2014

New England Outlook - Quarterly Review of Seed, Series A and Series B/Later Round Financings - Included in this Issue: .. Activity Level of New England Transactions: Q3 2013 -Q3 2014 - All Rounds .. Activity…more

Emerging Growth Companies, Equity Financing, Private Offerings, Public Offerings, Securities

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Massachusetts Nonprofit Annual Reports Due November 1, 2013

As a reminder, nonprofit organizations incorporated or operating in The Commonwealth of Massachusetts have until Friday, November 1, 2013 to file their annual reports with the Secretary of the Commonwealth. Nonprofit annual…more

Annual Reports, Non-Profits, Reporting Requirements

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Be Careful With Pollution Insurance Coverage Disclosures – How Conditions Actually Disclosed Were Deemed Not Disclosed

A Massachusetts company learned the hard way that you need to pay close attention to policy endorsements when you negotiate them. In Market Forge Industries, Inc. v. Indian Harbor Insurance Company, the Appeals Court of…more

Discharge of Pollutants, Disclosure Requirements, Pollution Liability Insurance

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Attorney General Clarifies Safe Harbor Under Earned Sick Time Law

On Wednesday, June 10, 2015, the Office of the Attorney General issued additional guidance clarifying the “safe harbor” to the Massachusetts Earned Sick Time (“EST”) law it announced on May 18, 2015. Specifically, the new…more

Earned Sick Time, Paid Leave, Paid Sick Leave Act, PTO, Safe Harbors

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A Fractured Federal Circuit Panel Interprets The Biosimilars Patent Resolution Procedures

On July 21, the Federal Circuit interpreted the patent litigation procedures and requirements of the Biologics Price Competition and Innovation Act (BPCIA), including whether a company submitting an abbreviated BLA (“k…more

Biosimilars, BPCIA, Drug Manufacturers, FDA, FDA Approval

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Office of the Attorney General Issues Final Regulations on the Massachusetts Earned Sick Time Law

On June 19, 2015, the Office of the Attorney General issued final regulations relating to the Massachusetts Earned Sick Time law, which takes effect on July 1, 2015. The law requires all employers to provide up to 40 hours of…more

Earned Sick Time, Paid Leave, Parental Leave, Sick Leave, Wage and Hour

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USCIS Will Begin Accepting New H-1B Filings on April 1 for Fiscal Year 2015

On April 1, 2014, the U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions for employment commencing on October 1, 2014. New H-1B petitions are subject to an annual limit of 65,000 new…more

Foreign Workers, H-1B, USCIS, Visa Caps, Visas

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Cayman Islands Directors Registration and Licensing Law: CIMA Requires Registration or Licensing of Fund Directors by September 3 (Including Directors Employed by Fund’s Investment Manager)

Under the Cayman Islands Directors Registration and Licensing Law 2014 (the “Law”), beginning June 4, 2014 directors of (a) “mutual funds” regulated under the Cayman Islands Mutual Funds Law (2013 Revision) and (b) companies…more

Board of Directors, CIMA, Directors, Licensing Rules, Registration

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Product Liability Update - July 2015

Massachusetts Supreme Judicial Court Holds Failure-to-Warn Claim Against Drug Manufacturer Not Preempted Because There Was No “Clear Evidence” FDA Would Not Have Approved Plaintiffs’ Suggested Warning; Also Holds Non-Physician’s…more

Admissible Evidence, Asbestos, Asbestos Litigation, Bayh-Dole Act, Biologics

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Massachusetts DOER Releases Draft SREC II Regulations

The Massachusetts Department of Energy Resources (MA DOER) has released draft regulations for its SREC II solar program. The regulations are the latest step toward implementing the Commonwealth’s goal to install a total of 1.6…more

Clean Energy, Energy, Energy Policy, Power Plants, Solar Energy

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Second Circuit Vacates Conviction Against Sales Representative for Off-Label Promotion

The Second Circuit, New York’s federal court of appeals, this week issued its long-awaited decision in United States v. Caronia and vacated the conviction of a pharmaceutical sales representative for off-label promotion. In a…more

Criminal Prosecution, FDCA, Free Speech, Off-Label Use, Pharmaceutical

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Massachusetts Department of Public Utilities Opens Investigation on Electric Vehicles and Electric Vehicle Charging

On December 23rd, the Massachusetts Department of Public Utilities (the Department) issued an Order opening an investigation into electric vehicles and electric vehicle charging . That Order, issued the same day as the…more

Electric Vehicles, Utilities Sector

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Bureau of Economic Analysis (BEA) Form BE-10: Industry Concern Voiced and Extension Updates

On June 8, 2015, a joint letter was sent to the U.S. Department of Commerce Secretary Penny Pritzker raising broad concerns with the Form BE-10 survey, including requirements for consolidation, burden of reporting, need for…more

Foreign Investment, Form BE-10, Private Funds, U.S. Commerce Department

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FDA Issues Draft Guidance on Medical Device Accessories

On January 16, 2015, the Food and Drug Administration (FDA) issued a draft guidance document titled “Medical Device Accessories: Defining Accessories and Classification Pathway for New Accessory Types.” The draft guidance…more

Draft Guidance, FDA, Medical Devices

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Massachusetts DOER Releases Draft SREC II Regulations

The Massachusetts Department of Energy Resources (MA DOER) has released draft regulations for its SREC II solar program. The regulations are the latest step toward implementing the Commonwealth’s goal to install a total of 1.6…more

Clean Energy, Energy, Energy Policy, Power Plants, Solar Energy

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Delaware Chancery Court Concludes Indemnification and Other Provisions of a Merger Agreement Are Not Enforceable Against Non-Consenting Stockholders

In November, the Delaware Court of Chancery issued a decision that raises troubling questions about commonly used techniques in private company acquisitions and that, if not modified on appeal or through legislation, could alter…more

CIGNA, Delaware General Corporation Law, Indemnification Clauses, Merger Agreements, Purchase Price

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SEC Radically Revamps Regulation A - Part 3

Reporting and Blue Sky Issues - For many years, SEC Regulation A languished as an exemption from registration that nobody really used. Although securities issued in a Regulation A offering are not “restricted securities”…more

Issuers, JOBS Act, Regulation A, Reporting Requirements, SEC

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Seventh Circuit Allows Data Breach Class Action to Proceed Against Neiman Marcus, Despite Lack of Current Harm to Credit Card Holders

Data breaches are often followed by class action suits in which the affected individuals seek damages. Corporations defending against such suits have used a 2013 Supreme Court case, Clapper v. Amnesty International, 133 S. Ct…more

Article III, Clapper v. Amnesty International, Credit Cards, Data Breach, Data Security

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Important Deadlines and Reminders for Investment Advisers, Exempt Reporting Advisers, Commodity Trading Advisors and Commodity Pool Operators

Investment Advisers - Annual Compliance Reviews: All investment advisers registered with the Securities and Exchange Commission (“SEC”) are required to review their compliance policies and procedures at least…more

Annual Review, CPOs, CTOs, Filing Requirements, Financial Statements

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Supreme Court Allows Closely Held Corporations to Invoke Religious Objections Against Providing Employee Contraceptive Coverage

In a 5-4 decision, the United State Supreme Court ruled Monday in Burwell v. Hobby Lobby Stores, Inc., that closely held for-profit corporations may invoke religious objections to exclude contraceptive coverage from the health…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Contraceptives, Hobby Lobby

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ATS Case Developments Post-Kiobel: Interpreting the “Touch and Concern” Standard

The past few months have seen a few interesting developments in cases in which Alien Tort Statute (“ATS”) claims factor prominently. This judicial activity, much of which focuses on the significance of the presumption against…more

Alien Tort Statute, Extraterritoriality Rules, Kiobel v. Royal Dutch Petroleum Co., SCOTUS

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SEC No-Action Letter Allows Certain Kinds of “M&A Brokers” to Avoid Broker-Dealer Registration Under the Exchange Act

On January 31, 2014, the SEC’s Division of Trading and Markets issued a significant no-action letter permitting the involvement of “M&A Brokers” in business acquisition transactions involving privately-held companies. The…more

Broker-Dealer, No-Action Letters, SEC, Securities Exchange Act

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SEC Issues Interpretive Advice About Verification Safe Harbors Under Rule 506(c)

The availability of the private placement exemption under SEC Rule 506 depends in large measure upon determinations that purchasers are “accredited investors” under the rules. Where there is no general solicitation, Rule 506(b)…more

Accredited Investors, General Solicitation, JOBS Act, Rule 506 Offerings, Rule 506(c)

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Private or Public? The Developing Circuit Split on Internet TV Retransmission

It appears that a Circuit split is developing on the issue of whether Internet services that transmit network television programs are engaged in a transmission to the public in violation of the networks’ copyrights. The…more

Aereo, Copyright, FilmOn X, Internet, Internet Streaming

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Liability for Commercial Speech: A Guide to False Advertising, Commercial Disparagement, and Related Claims

This volume summarizes related bodies of law – false advertising, commercial disparagement, and defamation – that govern the conduct of business communications. It sets forth elements, damages, and related defenses for each of…more

Advertising, Commercial Speech, Corporate Counsel, Defamation, Disparagement

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The Problem With Using Economic Incentives to Reduce Water Use? People

Earlier this month, I noted that demand side management policies need to take human behavior into account if they are going to be successful. The same is apparently true for policies to reduce water consumption in…more

Drought, Incentives, Rebates, Water, Water Conservation

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Opportunity, Uncertainty for Entities Wishing to Do Business with Iran

Nuclear Deal with Iran Holds Out Possibility of Phased Relaxation of Sanctions - On July 14, 2015, the United States and five other countries (collectively known as the P5+11) reached a Joint Comprehensive Plan of Action…more

Automotive Industry, Banking Sector, Energy Sector, IAEA, Insurance Industry

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INTA.sucks: Brand Prophylaxis or Trademark “Protection” Racket?

I’m back from the International Trademark Association (INTA) Annual Meeting in beautiful (if a bit cloudy and windy) San Diego, which featured the usual array of client meetings, networking with counsel from around the world,…more

Domain Names, gTLD, ICANN, Popular, Professional Conferences

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When Will My Leftover Turkey Power My Electric Car: A Post Thanksgiving Reflection on the Promise and Challenge of Food Waste Bans

Food is a big part of why Thanksgiving is my family’s favorite holiday. Over the years, we have tried to eat sensibly and sustainably, and to waste less food. But on the Monday after Thanksgiving, I suspect we are not alone as…more

Infrastructure, Organic, Popular, Solid Waste, Waste Disposal

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Benefit Corporations: Twelve States and Counting

On December 1, a new benefit corporation statute went into effect in Massachusetts, making the state one of twelve that have enacted legislation allowing for the formation of this new form of corporate entity…more

Benefit Corporations, Corporate Social Responsibility

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U.S. Department of Labor Issues Administrator’s Interpretation on Independent Contractors

As promised earlier this summer, on July 15, 2015, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued an “Administrator’s Interpretation” (AI) regarding when individuals are misclassified as independent…more

Administrative Interpretation, Classification, DOL, Economic Realities Test, Employees

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SEC Proposes Amendments to Regulation D, Form D and Rule 156

On July 10, 2013, the Securities and Exchange Commission adopted final rules amending Rule 506 of Regulation D to permit general solicitation and to disqualify felons and other “bad actors” from participating in certain…more

Accredited Investors, Disqualification, Form D Filing, General Solicitation, Regulation D

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FDA Issues Draft Guidance on Medical Device Accessories

On January 16, 2015, the Food and Drug Administration (FDA) issued a draft guidance document titled “Medical Device Accessories: Defining Accessories and Classification Pathway for New Accessory Types.” The draft guidance…more

Draft Guidance, FDA, Medical Devices

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TTAB Balks at Parody Argument in Yankees Trademark Case

In honor of Foley Hoag’s new New York office, we here at the Boston office reluctantly present a victory by the New York Yankees — albeit not one won on the baseball diamond. In a trademark opposition that has been underway…more

Dilution, Intellectual Property Litigation, Parody, Trademark Litigation, Trademark Trial and Appeal Board

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Harry Potter Lawsuits And Where To Find Them

On July 31, 2015, Harry Potter author J.K. Rowling celebrates her 50th birthday, according to muggle sources. The enormous success of Rowling’s literary creation and its associated multimedia empire has spawned countless…more

Copyright, Copyright Infringement, Copyright Litigation, Fair Use, First Amendment

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European Court Establishes “Right to be Forgotten” Online

Today’s decision by the European Court of Justice (ECJ) that individuals enjoy the right to have truthful yet unflattering information about them “forgotten” from online search results is generating a great deal of controversy…more

EU, Freedom of Expression, Google, Human Rights, Internet

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Attorney General Announces 6-Month “Safe Harbor” Under Earned Sick Time Law

On Monday, May 18, 2015, the Office of the Attorney General announced a “safe harbor” for some employers under the Massachusetts Earned Sick Time Law. Specifically, the Attorney General has determined that for the so-called…more

Earned Sick Time, Paid Leave, PTO, Sick Leave

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Flying High: The Human Rights Implications of Investing In Drones

Civilian application of drone technology has increased dramatically in recent years. The burgeoning civilian opportunities are a potential boon for investors, who view this emerging market as one that will expand long into the…more

Amazon, Commercial Use, Drones, Emerging Markets, Ethics

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Supreme Court Rejects Good-Faith Belief of Invalidity Defense to Claims of Inducement of Patent Infringement

The Decision in Commil USA, LLC v. Cisco Systems, Inc. - On Tuesday, the United States Supreme Court ruled that a party’s good-faith belief in the invalidity of a patent is not a defense to a claim that the party has…more

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

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Land Tenure Risk: Why it Matters for Companies, Investors, and Communities

Two important new reports focus on land tenure conflicts between companies and communities. In September, the Rights and Resources Initiative released a report entitled, “Global Capital, Local Concessions: A Data-Driven…more

Land Titles, Tenure

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Changes on the Horizon? IRS Announces New Plans to Recharacterize Management Fee Waiver Arrangements

On July 22, 2015, the IRS released proposed regulations that could limit the utility of “management fee waiver” arrangements (the “Proposed Regulations”). Management fees generally are taxable as compensation income. Typically,…more

Capital Gains, Clawbacks, Deferred Compensation, Fee Waivers, Fund Sponsors

See All Updates »

SEC Radically Revamps Regulation A - Part 3

Reporting and Blue Sky Issues - For many years, SEC Regulation A languished as an exemption from registration that nobody really used. Although securities issued in a Regulation A offering are not “restricted securities”…more

Issuers, JOBS Act, Regulation A, Reporting Requirements, SEC

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New IRS Rule Affecting Hospitality Employers Takes Effect January 1, 2014

The IRS will begin enforcing a new rule concerning the taxation of automatic gratuities on January 1, 2014. Specifically, employers must start treating automatic gratuities – that is, charges that are compulsory to customers –…more

FLSA, Hospitality Industry, IRS, Service Charges, Tips

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IRS Releases Streamlined Application for Tax-Exempt Status

The Internal Revenue Service (the “IRS”) has significantly streamlined the application process for small nonprofits seeking recognition as tax-exempt 501(c)(3) organizations through the release of a new application form on July…more

501(c)(3), Applications, IRS, Non-Profits, Tax Exempt Entities

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CFTC 4.13(a)(3) Annual Affirmations Due March 2

As a reminder, fund managers relying on the exemption from registration with the US Commodity Futures Trading Commission (the “CFTC”) set forth in Rule 4.13(a)(3), commonly referred to as the “de minimis exemption,” must affirm…more

CFTC, Deadlines, Exemptions, Registration

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Surprise Bills Laws Enacted in California and New York

What Do They Mean for Providers? - Both California and New York have recently enacted so-called “Surprise Bills Laws” that require out-of-network providers to give notice to patients that a particular item or service…more

Billing, Health Insurance, Healthcare, New Legislation, Out of Network Provider

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CFTC Issues Exemptive Relief to Harmonize with JOBS Act Amendments to Regulation D and Rule 144A

The U.S. Commodity Futures Trading Commission (“CFTC”) issued an Exemptive Letter on September 8, 2014 (“Exemptive Letter”) providing that an issuer relying on Rule 506(c) of Regulation D and resellers relying on Rule 144A,…more

CFTC, CPO, Exemptive Orders, General Solicitation, Issuers

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Don’t Mess with Texas Trademarks

As a native Texan, I always feel a bit nostalgic and homesick around early March. Not only is bluebonnet season (read: spring) around the corner (if only that were true here in Boston!), but March 2 marks Texas Independence Day…more

Brand, Trademarks

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SEC Proposes Rules for Hedging Disclosure

On February 9, 2015, the SEC proposed rules that would require domestic public companies to disclose in proxy and information statements whether the company permits any of its directors or employees (including officers) to…more

Dodd-Frank, Hedging, Proxy Statements, Public Disclosure, Publicly-Traded Companies

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Centers for Medicare & Medicaid Services Proposes Changes to Six Protected Class Rule under Medicare Part D

On December 8, 2003, the Medicare Prescription Drug, Improvement, and Modernization Act (the “MMA”) was signed into law by former President George W. Bush1. Prior to the enactment of the MMA, Medicare prescription drug coverage…more

CMS, FDA, Healthcare, Medicaid, Medicare

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Important Changes Relating to Section 125 Plans May Require Immediate Action

Last week, there were two important developments relating to Section 125 cafeteria plans. First, Massachusetts announced that employers will no longer be required to maintain a Section 125 plan. Second, the IRS has modified the…more

Affordable Care Act, Cafeteria Plans, Flexible Spending Accounts, Healthcare, IRS

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SEC Charges KBR, Inc. with Using a Confidentiality Agreement that Could "Chill" Whistleblowing

About six months ago, the Director of the Office of the Whistleblower warned that the SEC was “going to bring a case where somebody has asked an employee or forced an employee to sign a document that in order of substance means…more

Confidentiality Agreements, Enforcement Actions, Internal Investigations, KBR (formerly Kellogg Brown & Root), Popular

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The Baker Administration looks to Hydropower to meet GHG goals

The Baker Administration announced on July 9 that it filed a bill for sourcing long-term hydroelectric power in the Commonwealth. Hydroelectric power currently provides a small portion of electricity consumed in Massachusetts…more

Energy Sector, Global Warming Solutions Act, Governor Baker, Greenhouse Gas Emissions, Hydropower

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Pick Your Passion: State’s Trademark May Be Used To Criticize Its Governor

In Dardenne v. MoveOn.org, the Middle Louisiana Federal District Court faced a conflict between trademark protection, on the one hand, and the First Amendment’s protection of political advocacy, on the other. The Court…more

First Amendment, Likelihood of Confusion, MoveOn.org, Political Expression, Trademarks

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SDNY Applies Kiobel II and Holds Corporations May Be Liable under the Alien Tort Statute

In a mid-April decision in the In re: South African Apartheid Litigation, the Southern District of New York (“SDNY”) has tackled one of the most pressing legal questions left unanswered by the Supreme Court last year in Kiobel…more

Alien Tort Statute, Foreign Jurisdictions, Kiobel v. Royal Dutch Petroleum Co.

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Privacy Issues in Smart Electrical Grids: Another Internet of Things Problem

Smart grids – electrical grids that allow two-way communication between utilities and consumers – represent an exciting frontier in the Internet of Things, with ramifications for energy efficiency, weather resiliency and climate…more

Data Collection, Data Protection, Electricity, Internet of Things, VCC for Smart Grid Customer Data Privacy

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Changes on the Horizon? IRS Announces New Plans to Recharacterize Management Fee Waiver Arrangements

On July 22, 2015, the IRS released proposed regulations that could limit the utility of “management fee waiver” arrangements (the “Proposed Regulations”). Management fees generally are taxable as compensation income. Typically,…more

Capital Gains, Clawbacks, Deferred Compensation, Fee Waivers, Fund Sponsors

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Increased Risk of FCPA Prosecution of Foreign National Executives of U.S. Issuers: Recent Court Decision Allows Open-Ended Statute of Limitations and Bases FCPA Jurisdiction on Email Routed Through US Servers

A recent federal court decision highlights the increasing risk of prosecution for foreign national executives under the Foreign Corrupt Practices Act ("FCPA”). The decision from the federal district court in New York denied a…more

Bribery, DOJ, Email, FCPA, Foreign National Executives

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Lego Mark Wars: Toy Giant Snaps Together Two Favorable 3D Trademark Rulings in Europe

On June 16, 2015, Lego Juris A/S obtained two favorable decisions from the General Court of the European Union which will afford protection to famous Lego “minifigure” as a three-dimensional (3D) trademark; a protection that has…more

EU, LEGO, OHIM, Popular, Proposed Regulation

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Delaware Corporation Law Amended to Eliminate Need for Stockholder Approval of Back-End Merger following Successful Tender Offer

Recent amendments to the Delaware General Corporation Law (DGCL) include a new subsection that will, in many cases, eliminate the need to obtain stockholder approval of a back-end merger following a successful tender offer,…more

Mergers, Short-Form Mergers, Stockholders' Meetings, Tender Offers, Voting Rights

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SEC Issues Staff Legal Bulletin No. 20: Clarifying Disclosure Requirements For Proxy Advisory Firms

Background - On June 30, 2014, the SEC’s Divisions of Investment Management and Corporation Finance released Staff Legal Bulletin No. 20, a set of thirteen Questions and Answers offering guidance on..…more

Disclosure Requirements, Proxy Advisors, Proxy Solicitations, SEC, Securities Exchange Act

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Product Liability Update - July 2015

Massachusetts Supreme Judicial Court Holds Failure-to-Warn Claim Against Drug Manufacturer Not Preempted Because There Was No “Clear Evidence” FDA Would Not Have Approved Plaintiffs’ Suggested Warning; Also Holds Non-Physician’s…more

Admissible Evidence, Asbestos, Asbestos Litigation, Bayh-Dole Act, Biologics

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Naming Your Sales Division “Replica Products” Is Never A Good Idea or How Not To Facilitate Counterfeiters

Here’s some advice for online marketplaces giving sellers a platform to hawk their wares: Do not name any of your sales divisions “Replica Products” or “Replica Retention.” Do not let your employees tell sellers…more

Counterfeit Goods Regulation, Counterfeiting

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Venture Perspectives - March 2013: Quarterly Review of Seed, Series A and Series B/Later Round Financings: Fourth Quarter and Year 2012

In This Issue: - Activity Level of 2012 New England Transactions - All Rounds - Activity Level of New England Seed Transactions - Activity Level of New England Series A Transactions - Activity Level…more

Clean Tech, Life Sciences, Seed Financing, Series A, Series B

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RICO Indictment of NECC Executives for Acts of Second-Degree Murder

An Unprecedented Approach to Regulatory Violations - In December 2014, the United States Attorney for the District of Massachusetts obtained a sweeping indictment that charges business executives of the New England…more

C-Suite Executives, Corporate Counsel, Criminal Prosecution, Drug Compounding, Healthcare

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How Not to Get Snared in Brulotte’s Web

The Supreme Court’s Kimble Decision Reminds Licensors and Licensees to Evaluate Post-Expiration Royalties with Care - On June 22, 2015, the Supreme Court, in Kimble v. Marvel Entertainment, LLC, declined to overrule–on…more

Brulotte, Contract Term, IP License, Kimble v Marvel Enterprises, Patent Royalties

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Molecular Diagnostics Clinical Utility Strategy: A Six-part Framework

Payers and technology assessments currently evaluate diagnostic tests in terms of three categories of information. These are “analytical validity” (the performance features of the test), “clinical validity” (the correlation…more

Clinical Laboratories, Clinical Trials, Technology

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Brazil’s Belo Monte Move: Will National Development Banks Start Taking Human Rights and Environmental Concerns More Seriously?

In late November, the Brazilian national development bank (“BNDES”, by its Portuguese initials) announced its approval of a $10.8 billion loan to finance the construction of the Belo Monte dam, the world’s third largest…more

Brazilian National Development Bank, Corporate Social Responsibility, Human Rights, Infrastructure

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Fifth Circuit Issues Important Ruling on Affirmative Action in Higher Education

Earlier this week, in Fisher v. University of Texas, a divided panel of the U.S. Court of Appeals for the Fifth Circuit upheld the constitutionality of the undergraduate admissions program at the University of Texas at Austin…more

Affirmative Action, Appeals, College Admissions, Colleges, Discrimination

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Equity Crowdfunding Under Federal Law: Issuers

On October 23, 2013, the Securities and Exchange Commission released proposed rules for implementing the crowdfunding exemption from the Securities Act registration requirements that is set forth in the Jumpstart Our Business…more

Crowdfunding, Indiegogo, JOBS Act, Kickstarter, SEC

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Court Dismisses Tarantino’s Copyright Claim Over Hyperlink To Leaked Script; Grants Leave to Amend But Notes That Fair Use Argument Is Strong

We recently reported on director Quentin Tarantino’s copyright lawsuit against Gawker Media over his leaked script for the film The Hateful Eight. The suit alleged that Gawker Media, by encouraging its readers to leak the script…more

Copyright, Copyright Infringement, Fair Use, Leave to Appeal, Quentin Tarantino

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USCIS Will Begin Accepting New H-1B Filings on April 1 for Fiscal Year 2015

On April 1, 2014, the U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions for employment commencing on October 1, 2014. New H-1B petitions are subject to an annual limit of 65,000 new…more

Foreign Workers, H-1B, USCIS, Visa Caps, Visas

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Venture Perspectives: Third Quarter 2014

New England Outlook - Quarterly Review of Seed, Series A and Series B/Later Round Financings - Included in this Issue: .. Activity Level of New England Transactions: Q3 2013 -Q3 2014 - All Rounds .. Activity…more

Emerging Growth Companies, Equity Financing, Private Offerings, Public Offerings, Securities

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Supreme Court Decides Employers Must Make Religious Accommodations Regardless of Knowledge of Need for Accommodation

On June 1, 2015, the U.S. Supreme Court held, in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., that an employer violates federal anti-discrimination law where an applicant’s need for a religious…more

Abercrombie & Fitch, Discrimination, Dress Codes, EEOC, EEOC v Abercrombie

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Delaware Chancery Court Concludes Indemnification and Other Provisions of a Merger Agreement Are Not Enforceable Against Non-Consenting Stockholders

In November, the Delaware Court of Chancery issued a decision that raises troubling questions about commonly used techniques in private company acquisitions and that, if not modified on appeal or through legislation, could alter…more

CIGNA, Delaware General Corporation Law, Indemnification Clauses, Merger Agreements, Purchase Price

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Foley Hoag Climate Update: July 2015

The previous update outlined the progress that the ten days of formal negotiations in Bonn from 1-11 June 2015 were intended to deliver. This latest update reflects on the outcomes from Bonn, and on the challenges and priorities…more

ADP, Carbon Emissions, Climate Change, EU, Greenhouse Gas Emissions

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Celebrity Trademark Watch: Can Taylor Swift Shake Off Accusations of Trademark Greed?

Had enough of Taylor Swift yet? For those of you who hate to love her, you might consider Swiftamine, because she is not going anywhere anytime soon. If anything, her media foot print continues to grow. And while one expects…more

Intent-to-Use, Music, Music Industry, Taylor Swift, Trademarks

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So Now What? Implications of the Supreme Court’s Myriad Ruling

Late last week, the United States Supreme Court issued its long-awaited decision in Association of Molecular Pathology v. Myriad Genetics, Inc. The Court held unanimously that full-length wild-type DNA molecules are not…more

AMP v Myriad, DNA, Human Genes, Myriad, Patent-Eligible Subject Matter

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CERCLA Statute of Limitations Applies To Contribution Claims By A Party to a Private Settlement

Sometimes cases seem to be deciding issues that are so obvious it’s hard to figure out why they get any serious attention from the courts. One such case is ASARCO, LLC v. Celanese Chemical Company recently decided by the Ninth…more

CERCLA, Commercial Bankruptcy, Contribution Claims, Debtors, Dischargeable Debts

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SEC Division of Investment Management Issues Guidance on Personal Trade Reporting of Accounts Over Which Reporting Persons Have No Influence or Control

Under Rule 204A-1 of the Investment Advisers Act of 1940, a registered investment adviser’s written code of ethics must include requirements for reporting of personal securities holdings and trading activity by the adviser’s…more

Corporate Officers, Ethics, Investment Adviser, Investment Advisers Act of 1940, Non-Public Information

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FATCA: Crunch Time (April 25th Deadline is Imminent)

Every foreign entity must take steps immediately to determine whether FATCA will apply to it and, if so, whether FATCA registration will be required by April 25, 2014…more

Deadlines, FATCA

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Settlement in False Advertising Class Action Leaves First Amendment Questions Unanswered

On April 30, 2014, the plaintiffs in Bezdek v. Vibram, a class action in the District of Massachusetts, filed for court approval of a class wide settlement. The case had been brought against Vibram, the Italian manufacturer of…more

Class Action, False Advertising, First Amendment, Settlement, Vibram

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Supreme Court Decides Employers Must Make Religious Accommodations Regardless of Knowledge of Need for Accommodation

On June 1, 2015, the U.S. Supreme Court held, in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., that an employer violates federal anti-discrimination law where an applicant’s need for a religious…more

Abercrombie & Fitch, Discrimination, Dress Codes, EEOC, EEOC v Abercrombie

See All Updates »

Increased Risk of FCPA Prosecution of Foreign National Executives of U.S. Issuers: Recent Court Decision Allows Open-Ended Statute of Limitations and Bases FCPA Jurisdiction on Email Routed Through US Servers

A recent federal court decision highlights the increasing risk of prosecution for foreign national executives under the Foreign Corrupt Practices Act ("FCPA”). The decision from the federal district court in New York denied a…more

Bribery, DOJ, Email, FCPA, Foreign National Executives

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Department of Labor Proposes New Regulations Regarding “White Collar” Exemptions Under the Fair Labor Standards Act

On June 30, 2015, the United States Department of Labor (“DOL”) released a proposed rule which, if implemented, will alter the minimum salary threshold for the so-called “white collar” exemptions to the minimum wage and overtime…more

Barack Obama, Comment Period, DOL, Exempt-Employees, FLSA

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IRS Releases Streamlined Application for Tax-Exempt Status

The Internal Revenue Service (the “IRS”) has significantly streamlined the application process for small nonprofits seeking recognition as tax-exempt 501(c)(3) organizations through the release of a new application form on July…more

501(c)(3), Applications, IRS, Non-Profits, Tax Exempt Entities

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New Executive Order on Federal Sustainability Promotes Responsible Government Procurement Policies

In March, President Obama issued Executive Order 13693, “Planning for Federal Sustainability in the Next Decade.” It replaces and updates a number of Executive Orders and Memorandums, most notably replacing Executive Order 3514,…more

Barack Obama, DOE, EPA, Executive Orders, Federal Procurement Systems

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Patent Troll Watch - States Are Pushing Patent Trolls Away from the Legal Line

Oregon introduces bill to make improper patent license demands a violation of its unlawful trade practices law - In February 2014, Senate Bill 1540 was filed, which would make patent trolling a violation of the Oregon’s…more

Attorney's Fees, Cartwright Act, Corporate Counsel, Demand Letter, Google

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A Tale Of Trade And Trademarks: General Cigar Co., Inc. v. Empresa Cubana Del Tabaco

The United States has taken several recent steps towards normalizing its ties with Cuba and, just yesterday, the two countries re-opened embassies in each other’s capitals for the first time since 1961. Despite these…more

Appeals, CACR, Cuba, Embargo, Exceptions

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Department of Education Issues Final Regulations on Campus Sex Offense Reporting and Training, While Leaving Some Key Issues Unresolved

On Monday, the Department of Education published final regulations on how colleges and universities should prevent, report, and respond to sexual offenses on campus. These regulations interpret changes recently made by Congress…more

Clery Act, Colleges, Dating Violence, Department of Education, Disclosure Requirements

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SEC Division of Investment Management Issues Guidance on Personal Trade Reporting of Accounts Over Which Reporting Persons Have No Influence or Control

Under Rule 204A-1 of the Investment Advisers Act of 1940, a registered investment adviser’s written code of ethics must include requirements for reporting of personal securities holdings and trading activity by the adviser’s…more

Corporate Officers, Ethics, Investment Adviser, Investment Advisers Act of 1940, Non-Public Information

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Top Eight Things You Should Know About the Hague System For International Registration of Designs

U.S. applicants will soon be able to use a streamlined international filing procedure for design patents similar to the Madrid Protocol for trademark registrations. Currently, U.S. applicants seeking to protect designs in…more

Design Patent, Foreign Patent Applications, Hague Agreement, Patent Applications, Patents

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Venture Perspectives - January 2013: Quarterly Review of Seed, Series A and Series B/Later Round Financings: Third Quarter 2012

In This Issue: - Activity Level of New England Seed Transactions - Activity Level of New England Series A Transactions - Activity Level of New England Series B/Later Round Transactions - Size of New England…more

Emerging Growth Companies, Funding, Startups, Venture Capital, Venture Funding

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SREC II Carves Out More Room for Community Solar

The Massachusetts DOER has released its revised regulations amending the State’s RPS to implement the next phase of support for solar in the Commonwealth…more

Energy, Solar Energy, SREC, Utilities Sector

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A Fractured Federal Circuit Panel Interprets The Biosimilars Patent Resolution Procedures

On July 21, the Federal Circuit interpreted the patent litigation procedures and requirements of the Biologics Price Competition and Innovation Act (BPCIA), including whether a company submitting an abbreviated BLA (“k…more

Biosimilars, BPCIA, Drug Manufacturers, FDA, FDA Approval

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Venture Perspectives - January 2013: Quarterly Review of Seed, Series A and Series B/Later Round Financings: Third Quarter 2012

In This Issue: - Activity Level of New England Seed Transactions - Activity Level of New England Series A Transactions - Activity Level of New England Series B/Later Round Transactions - Size of New England…more

Emerging Growth Companies, Funding, Startups, Venture Capital, Venture Funding

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The Madrid Protocol: Passage to India Now Open

We previously reported that India was scheduled to become the 90th member of the Madrid Protocol Concerning the International Registration of Trademarks (the “Protocol”). We noted that this was a gratifying prospect, since…more

Corruption, Madrid Protocol, Registration

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Foley Hoag Climate Update: July 2015

The previous update outlined the progress that the ten days of formal negotiations in Bonn from 1-11 June 2015 were intended to deliver. This latest update reflects on the outcomes from Bonn, and on the challenges and priorities…more

ADP, Carbon Emissions, Climate Change, EU, Greenhouse Gas Emissions

See All Updates »

Data Breach Prevention and Response: Avoiding Potential Pitfalls and Implementing Best Practices to Protect Your Company

In This Presentation: - Overview of data breach landscape - Data breach response ..Technical best practices ..Legal best practices - Data breach prevention ..Technical best practices ..Legal best…more

Best Management Practices, Data Breach, Data Protection, Risk Assessment, Risk Management

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Changes on the Horizon? IRS Announces New Plans to Recharacterize Management Fee Waiver Arrangements

On July 22, 2015, the IRS released proposed regulations that could limit the utility of “management fee waiver” arrangements (the “Proposed Regulations”). Management fees generally are taxable as compensation income. Typically,…more

Capital Gains, Clawbacks, Deferred Compensation, Fee Waivers, Fund Sponsors

See All Updates »

Supreme Court Rejects Good-Faith Belief of Invalidity Defense to Claims of Inducement of Patent Infringement

The Decision in Commil USA, LLC v. Cisco Systems, Inc. - On Tuesday, the United States Supreme Court ruled that a party’s good-faith belief in the invalidity of a patent is not a defense to a claim that the party has…more

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

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Reflections on “Privacy in the Modern Age”

With the heart of the summer vacation season upon us, it seems like a good time for some reflection. Here, it comes in the form of excerpts from an essay by privacy maven, Deborah Hurley. The one time Director of the Harvard…more

Human Rights Code, Privacy Concerns, Privacy Laws, Right to Privacy

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Contact

Seaport West 155 Seaport Boulevard
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Contact: Audra Callanan

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