Foley Hoag LLP

Non-GAAP Financial Disclosures – Redux

Prefaced by public statements of SEC officials about improper use of non-GAAP financial measures, the Staff of the Division of Corporation Finance issued new and revised Compliance & Disclosure Interpretations (“C&DIs”) on May…more

C&DIs, EBITDA, Financial Reporting, GAAP, Non-GAAP Financial Measures

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IPhone Access Gets Attention, 'Stingrays' Fly Under The Radar

While eyes have been peeled on the U.S. Department of Justice's efforts to obtain a court order to hack the iPhone of one of the San Bernardino killers, garnering far less scrutiny is law enforcement’s more routine use of…more

DOJ, iPhone, iPhone Tracking, Law Enforcement, Search Warrant

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Corporate Social Responsibility and Compliance: Building Capacity to Respond to Stakeholder Demands

This is the second in a series of posts reflecting excerpts from a chapter that I authored on corporate social responsibility (“CSR”) for the Corporate Legal Compliance Handbook. CSR is dynamic: it is responsive to…more

Compliance, Corporate Governance, Corporate Social Responsibility

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Massachusetts Enacts New Pay Equity Law

On August 1, 2016, Massachusetts Governor Charlie Baker signed the Pay Equity Act (the “Act”) into law. The Act, which goes into effect on January 1, 2018, is designed to close the wage gap between men and women. Although…more

Gender-Based Pay Discrimination, Governor Baker, Pay Discrimination, Pay Equity Act (PEA), Pay Gap

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SEC Proposes Rule Requiring Investment Advisers to Adopt Business Continuity and Transition Plans

The Securities and Exchange Commission (“SEC”) has recently proposed a new rule that would require SEC-registered investment advisers to adopt and implement written business continuity and transition plans (“BCP”) reasonably…more

Business Continuity Plans, Fiduciary Duty, Investment Adviser, Investment Advisers Act of 1940, SEC

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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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Quarterly Review of Seed, Series A and Series B/Later Round Financings: First Quarter 2015

The Numbers - Venture financing activity in New England decreased modestly in the first quarter of 2015 (-12%) with Seed and B/ Later round activity each decreasing by roughly 20% over Q4 2014. Despite this overall downward…more

Business Valuations, Clean Tech, Emerging Technology Companies, Life Sciences, Seed Financing

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Patenting: A Guidebook For Patenting in a Post-America Invents Act World

Patenting - Patenting generally offers a superior means for legally protecting most inventions, particularly since: • copyright, when available, does not provide a broad scope of protection; and • the ability to…more

America Invents Act, AMP v Myriad, Bayh-Dole Act, Claim Construction, CLS Bank v Alice Corp

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SBIC Advisers Relief Act Expected to be Adopted into Law

On December 4, 2015, President Obama is expected to sign into law The SBIC Advisers Relief Act, which amends several key registration provisions and exemptions of the Investment Advisers Act of 1940 (the “Advisers Act”), that…more

Amended Legislation, Exemptions, Investment Advisers Act of 1940, Preemption, SBIC

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Brainstorm: FTC Continues Enforcement Trend Against Cognitive Function Claims

Continuing its trend of scrutinizing claims touting improved cognitive function, the Federal Trade Commission recently announced a settlement with LearningRx Franchise Corp. (“LFC”), the developer and franchisor of a chain of…more

Enforcement Actions, False Advertising, FTC, Scientific Evidence, Settlement

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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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Summary: PAMA Final Rule

Market Based Payment for Clinical Diagnostic Laboratory Tests - Summary - On June 17, 2016 the Centers of Medicare & Medicaid Services (CMS) issued the long awaited Medicare Clinical Diagnostic Laboratory Tests Payment…more

ADLT, Algorithms, CLFS, Clinical Laboratories, Clinical Laboratory Testing

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ERISA Fiduciaries May Factor Climate Change Issues Into Economic Analysis of Investments

New guidance from the US Department of Labor (“DOL”) clarifies the role of environmental, social and governance issues (referred to as “ESG factors”) in investment decisions by ERISA fiduciaries. ERISA Interpretive Bulletin…more

Climate Change, DOL, ERISA, Fiduciary Duty, Investment Portfolios

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The Future of Data Privacy Regulation in Massachusetts? AG’s Office foreshadows state action on consumer data in first-of-its kind conference

What is the future of data privacy regulation in Massachusetts? - On March 24, 2016, the Massachusetts Attorney General’s Office gave us a glimpse. In collaboration with Harvard’s Berkman Center for Internet and Society,…more

Attorney Generals, Data Collection, Data Privacy, Personal Data, Privacy Concerns

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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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Bastille Day Fireworks and Copyright

Bastille Day is a French national holiday that commemorates the storming of the Bastille on July 14, 1789, an important episode in the French Revolution. Each year, Paris celebrates the day with an elaborate military parade down…more

Copyright, Fireworks, France, Holidays

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Trinity Wall Street v. Wal-Mart Stores, Inc. - “Lawyers, Guns and Money”

On July 6, 2015 the Third Circuit Court of Appeals issued its eagerly awaited opinion in Trinity Wall Street v. Wal-Mart Stores, Inc., addressing the question of what constitutes a company’s ordinary business operations and thus…more

Appeals, Board of Directors, Ordinary Course of Business Defense, Proxy Materials, Shareholder Proposals

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Massachusetts Energy Bill Emerges from Senate Committee on Ways and Means

Last Friday, the Senate Committee on Ways and Means released its version of the energy bill that passed the House earlier this month. Whereas the House bill would require distribution companies to procure 1,200 MW of offshore…more

Clean Energy, Energy Policy, Offshore Wind, Proposed Legislation, Renewable Energy

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Latest Amendments to Delaware Law Revise Appraisal Rights

Effective August 1, 2016, the appraisal rights of dissenting stockholders in mergers and certain other transactions under the Delaware General Corporation Law (DGCL) have been modified in two principal respects..…more

Appraisal Rights, Corporate Counsel, Delaware General Corporation Law, Dissenters Rights, Mergers

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“Gossip Cop” Held To Willfully Infringe Copyrighted Photos

In BWP Media USA v. Gossip Cop Media, a case sure to bring cheer to paparazzi and tabloid publishers everywhere, a judge in the Southern District of New York has found after a bench trial that a gossip website willfully…more

Attorney's Fees, Celebrities, Copyright Infringement, Fair Use, Photographs

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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 and CZM Propose Changes to Chapter 91 Regulations

MassDEP and the Commonwealth’s office of Coastal Zone Management recently proposed draft changes to the Designated Port Area and Facility of Public Accommodation regulations under the Chapter 91 program. Comments are due by…more

MassDEP, Ports, Public Accommodation, Zoning Laws

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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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Supreme Court Upholds University of Texas Affirmative Action Admissions Policy

The Supreme Court has rejected a challenge under the Equal Protection Clause to the University of Texas at Austin’s race-conscious admissions program in Fisher v. University of Texas at Austin (“Fisher II”). This closely-watched…more

Affirmative Action, College Admissions, Diversity, Equal Protection, Fisher v University of Texas

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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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Cybersecurity News & Notes – June 2016 #3

In Case You Missed It: Illinois strengthened its data privacy and security law, with the amendments going into effect in January 2017. The amendments include expanding the definition of “personal information” to include a…more

Data Breach, Data Breach Study, Data Privacy, Data Security, HIPAA

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Summary: Oncology Care Model

Centers for Medicare & Medicaid Services - Overview - On June 29, 2016, the Center for Medicare and Medicaid Innovation (CMMI or the Innovation Center) formally launched the Oncology Care Model (OCM) at the Cancer…more

CMMI, CMS, HHS, Medicaid, Medicare

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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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Cayman Islands FATCA Compliance Deadlines Extended Again

The Cayman Islands announced the further extension of the 2016 registration and reporting deadlines for U.S. FATCA and U.K. FATCA (also known as U.K. CDOT), as follows..…more

British Virgin Islands, Cayman Islands, Deadlines, FATCA, Filing Deadlines

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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 Industry, Prescription Drugs

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Latest Amendments to Delaware Law Revise Appraisal Rights

Effective August 1, 2016, the appraisal rights of dissenting stockholders in mergers and certain other transactions under the Delaware General Corporation Law (DGCL) have been modified in two principal respects..…more

Appraisal Rights, Corporate Counsel, Delaware General Corporation Law, Dissenters Rights, Mergers

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Supreme Court Upholds University of Texas Affirmative Action Admissions Policy

The Supreme Court has rejected a challenge under the Equal Protection Clause to the University of Texas at Austin’s race-conscious admissions program in Fisher v. University of Texas at Austin (“Fisher II”). This closely-watched…more

Affirmative Action, College Admissions, Diversity, Equal Protection, Fisher v University of Texas

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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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DHS Issues New Rules Governing Sharing of Cyberthreat Data

Last week, the Department of Homeland Security (“DHS”) released its Final Rules for private-sector information-sharing under the Cybersecurity Information Sharing Act of 2015 (“CISA”). CISA permits private companies to share…more

Cyber Threats, Cybersecurity, Cybersecurity Information Sharing Act (CISA), DHS, Final Rules

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New Credit Card Security Doesn’t Go Far Enough

Hardly a week goes by without a news report of a new cyberattack. As any consumer affected by fraud knows, the harm is real. The impact on businesses, government, and other targets is also real, and includes monetary harm and…more

Banking Sector, Credit Cards, Cyber Attacks, Cyber Crimes, Cybersecurity

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SEC Increases Performance Fee Thresholds

As noted in a previous alert, the Securities and Exchange Commission has now issued an Order, effective as of August 15, 2016 (the "Effective Date"), which amends SEC Rule 205-3 (the “Performance Fee Rule”) under the Investment…more

Advisory Contracts, High Net-Worth, Investment Adviser, Investment Advisers Act of 1940, Performance Fee Rule

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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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Product Liability Update: April 2016

United States Supreme Court Permits Class Certification And Proof of Liability Through Statistical Evidence Based on Class Sampling Where Class Was Sufficiently Uniform That Evidence Would Have Been Admissible in Any Class…more

Class Certification, Discovery, Failure To Warn, FDA, Investment Trust Companies

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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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Quarterly Review of Seed, Series A and Series B/Later Round Financings: First Quarter 2015

The Numbers - Venture financing activity in New England decreased modestly in the first quarter of 2015 (-12%) with Seed and B/ Later round activity each decreasing by roughly 20% over Q4 2014. Despite this overall downward…more

Business Valuations, Clean Tech, Emerging Technology Companies, Life Sciences, Seed Financing

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Federal Circuit Denies TC Heartland’s Petition to Change the Venue Standard, Renewing Interest in Congressional Venue Reform

Last week, a Federal Circuit panel rejected TC Heartland’s Petition for Mandamus to direct the United States District Court for the District of Delaware to either dismiss or transfer the patent infringement suit filed against it…more

Forum Shopping, Kraft, Mandamus Petitions, Patent Infringement, Patents

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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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Massachusetts Enacts New Pay Equity Law

On August 1, 2016, Massachusetts Governor Charlie Baker signed the Pay Equity Act (the “Act”) into law. The Act, which goes into effect on January 1, 2018, is designed to close the wage gap between men and women. Although…more

Gender-Based Pay Discrimination, Governor Baker, Pay Discrimination, Pay Equity Act (PEA), Pay Gap

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Federal Circuit Offers Path Through Section 101 Thicket for Biotech Method Patents

In its July 5, 2016 decision in Rapid Litigation Management Ltd and In Vitro, Inc. v. CellzDirect, Inc. and Invitrogen Corp., the Federal Circuit held that patent claims directed to an improved method of cryopreserving certain…more

Ariosa, Biotechnology, CLS Bank v Alice Corp, Examiners, Life Sciences

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EEOC Issues Final Rules on Employer Wellness Programs

On May 16, 2016, the Equal Employment Opportunity Commission (EEOC) issued two final rules describing how employer wellness programs must comply with Title I of the Americans with Disabilities Act (ADA) and Title II of the…more

ADA, Affordable Care Act, EEOC, Employer Group Health Plans, GINA

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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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Late Fee for NFA Forms PQR and PR Filings Effective Starting September 30, 2016

The National Futures Association recently amended NFA Compliance Rule 2-46 in order to impose late fees for its commodity pool operator (CPO) and commodity trading adviser (CTA) members that do not make quarterly filings on…more

Commodity Pool, CTA, Filing Deadlines, Late Fees, National Futures Association

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Product Liability Update: April 2016

United States Supreme Court Permits Class Certification And Proof of Liability Through Statistical Evidence Based on Class Sampling Where Class Was Sufficiently Uniform That Evidence Would Have Been Admissible in Any Class…more

Class Certification, Discovery, Failure To Warn, FDA, Investment Trust Companies

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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 Industry

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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 August 31, 2015 Deadline Approaching

For those clients that received extensions on the filing deadline for their BE-10 surveys, they are reminded that the August 31, 2015 deadline is approaching. The BE-10 is the five year benchmark survey of United States direct…more

Benchmarks, Bureau of Economic Analysis, Filing Deadlines, Foreign Direct Investment, Form BE-10

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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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Latest Amendments to Delaware Law Revise Appraisal Rights

Effective August 1, 2016, the appraisal rights of dissenting stockholders in mergers and certain other transactions under the Delaware General Corporation Law (DGCL) have been modified in two principal respects..…more

Appraisal Rights, Corporate Counsel, Delaware General Corporation Law, Dissenters Rights, Mergers

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Cybersecurity News & Notes – August 2016 #2

In Case You Missed It: In a sign of the growing importance of cyber operations in warfare, the Obama administration plans to elevate the status of the Pentagon’s Cyber Command. The U.S. Cyber Command, or USCYBERCOM, was…more

Cyber Attacks, Cybersecurity, Data Breach, Data Privacy, Data Security

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Important Dates 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”) or The Commonwealth of Massachusetts are required to review their compliance…more

AIFMD, CFTC, Commodities, Confidentiality Agreements, CPOs

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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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Potential Legal Implications Arising from "Brexit"

On June 23, 2016, the United Kingdom (UK) voted by way of an advisory referendum to leave the European Union. While the result will not take immediate legal effect, incoming Prime Minister Theresa May has indicated that “Brexit…more

Article 50 Treaty of the EU, Bilateral Agreements, Bilateral Investment Treaties, Copyright, Cross-Border Transactions

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Potential Legal Implications Arising from "Brexit"

On June 23, 2016, the United Kingdom (UK) voted by way of an advisory referendum to leave the European Union. While the result will not take immediate legal effect, incoming Prime Minister Theresa May has indicated that “Brexit…more

Article 50 Treaty of the EU, Bilateral Agreements, Bilateral Investment Treaties, Copyright, Cross-Border Transactions

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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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How the Amended Federal Rules Will Change Patent Litigation

Significant amendments to the Federal Rules of Civil Procedure became effective on December 1, 2015 and include an important change to patent infringement pleading practice and the most notable revisions to the civil discovery…more

Discovery, Electronically Stored Information, Federal Rules of Civil Procedure, Patent Infringement, Patent Litigation

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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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Copyright Strategies for Start-Up Companies

As a leader of a start-up company, you are probably aware of the importance of protecting your company’s innovative products, services and technologies through patent filings. If you are savvy, you are also aware of the…more

Copyright, Copyright Infringement, Copyright Registration, Corporate Branding, Fair Use

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The Arbitrary and Capricious Standard Remains Deferential: The Corps’ Nationwide Permit 21 Survives Review

Late last week, the 11th Circuit Court of Appeals rejected challenges to the Army Corps’ Nationwide Permit 21, which allows small surface mining projects to proceed without individual permits under § 404…more

Agency Deference, Arbitrary and Capricious, Mining, Permits, Section 404

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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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Cybersecurity News & Notes – July 2016 #3

In Case You Missed It: Court certifies class in suit against Apple. On July 15, 2016, U.S. District Judge Jon S. Tigar certified a class of users of the mobile app Path, who allege that Apple facilitated the app’s access their…more

Apple, Class Action, Class Certification, Cybersecurity, Data Breach

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Trademark Red Tape: Post-Registration Proof Pilot To Go Permanent

USPTO Red TapeRegular readers of the Trademark and Copyright Law Blog and our Trademark Red Tape™ column may recall our previous report on a pilot study by the United States Patent & Trademark Office (PTO) about…more

Non-Use of Trademarks, NPRM, Trademark Registration, Trademarks, Use in Commerce

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Federal Circuit Offers Path Through Section 101 Thicket for Biotech Method Patents

In its July 5, 2016 decision in Rapid Litigation Management Ltd and In Vitro, Inc. v. CellzDirect, Inc. and Invitrogen Corp., the Federal Circuit held that patent claims directed to an improved method of cryopreserving certain…more

Ariosa, Biotechnology, CLS Bank v Alice Corp, Examiners, Life Sciences

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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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Massachusetts Enacts New Pay Equity Law

On August 1, 2016, Massachusetts Governor Charlie Baker signed the Pay Equity Act (the “Act”) into law. The Act, which goes into effect on January 1, 2018, is designed to close the wage gap between men and women. Although…more

Gender-Based Pay Discrimination, Governor Baker, Pay Discrimination, Pay Equity Act (PEA), Pay Gap

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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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SBIC Advisers Relief Act Expected to be Adopted into Law

On December 4, 2015, President Obama is expected to sign into law The SBIC Advisers Relief Act, which amends several key registration provisions and exemptions of the Investment Advisers Act of 1940 (the “Advisers Act”), that…more

Amended Legislation, Exemptions, Investment Advisers Act of 1940, Preemption, SBIC

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The Federal Trademark Statute Assumes Hillary Can’t Win

Today’s example of unintentional sexism comes to us from Section 2(c) of the Lanham Act. On its face, the language of the statute assumes that someone other than Hillary will win the 2016 presidential election – and it won’t be…more

Hillary Clinton, Lanham Act, Presidential Elections, Sex Discrimination, Trademarks

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The London Omnibus And its Impact on U.S. Trademark Law

If you are traveling to London in August (as I am right now), you don’t have to go far before you start soaking in this great city’s contribution to trademark law. In fact, the very first thing many tourists encounter when they…more

Trademarks, UK, Young Lawyers

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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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Supreme Judicial Court Reinstates Jury Verdict for Former Employee on FMLA Retaliation Claim

Last week’s Massachusetts Supreme Judicial Court (SJC) decision in Esler v. Sylvia-Reardon serves as an important reminder of the potential scope of employees’ rights under the federal Family and Medical Leave Act (FMLA). This…more

Back Pay, Corporate Counsel, FMLA, Front Pay, Hiring & Firing

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FDA Issues Final Guidance on Proprietary Names for Drugs and Biological Products

The Food and Drug Administration (FDA) has finalized guidance for industry describing the agency’s evaluation process for proposed proprietary names for drug and biological products. The guidance applies to all prescription and…more

FDA, New Guidance, Pharmaceutical Industry, Prescription Drugs, Trademarks

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World Exchanges Encouraged to Report Indicators of Long-Term Sustainability

On November 4th, the World Federation of Exchanges (WFE) released a set of 34 sustainability measures that include environmental, social and governance indicators. WFE recommends that its member exchanges implement these…more

Corporate Governance, Corporate Social Responsibility, Disclosure Requirements, Popular, Securities Exchanges

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Congress Passes Sweeping New Legislation To Protect Trade Secrets

Last week, in a departure from the partisan gridlock that has gripped Washington, the House of Representatives joined the Senate in passing a sweeping new statute to protect trade secrets. The legislation, which President Obama…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Employment Contract, Ex Parte, Misappropriation

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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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FBAR: 2015 Reports Due by June 30, 2016

Every U.S. person (including both individuals and entities, as discussed below) that had a financial interest in, or signature or other authority over, one or more foreign financial accounts during 2015 must electronically file…more

E-Filing, FBAR, Filing Deadlines, FinCEN, Foreign Financial Accounts

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SEC Proposes Rule Requiring Investment Advisers to Adopt Business Continuity and Transition Plans

The Securities and Exchange Commission (“SEC”) has recently proposed a new rule that would require SEC-registered investment advisers to adopt and implement written business continuity and transition plans (“BCP”) reasonably…more

Business Continuity Plans, Fiduciary Duty, Investment Adviser, Investment Advisers Act of 1940, 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 February 29

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, Fund Managers, National Futures Association

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Wyeth v. Levine’s ‘Clear Evidence' Language: Clearly Misunderstood

In 2009, the United States Supreme Court in Wyeth v. Levine affirmed a judgment rejecting a prescription drug manufacturer’s contention that plaintiff’s claim that the manufacturer should have strengthened its U.S. Food and Drug…more

Burden of Proof, Clear and Convincing Evidence, Failure To Warn, FDA, FDCA

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SEC to Recommend Additional Compliance Rules for Investment Advisers

David W. Grim, Director of the SEC’s Division of Investment Management (the “Division”), recently noted in testimony before a U.S. House of Representatives subcommittee that the Division is developing new rule recommendations to…more

Compliance, Derivatives, Dodd-Frank, Registered Investment Advisors, SEC

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Objective Reasonableness Can Be Central to Fee-Shifting Analysis in Copyright Cases

In Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court clarified the test for awarding attorney’s fees when applying the Copyright Act’s discretionary fee-shifting provision, 17 U.S.C. § 505. The Court held that the…more

Attorney's Fees, Copyright, Copyright Infringement, Fee-Shifting, First Sale Doctrine

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Changes to the New York City Retirement Systems’ Proxy Guidelines

The New York City Retirement Systems (NYRS) recently published a major overhaul of their proxy voting policies, the first in 30 years. Released in April 2016, the “Corporate Governance Principles and Proxy Voting Guidelines”…more

Board of Directors, Executive Compensation, Human Rights, Investor Advisory Committee, New Guidance

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NLRB Ruling Makes It Easier to Organize Temporary Workers

On July 11, 2016, the National Labor Relations Board in Miller & Anderson, in another pro-union decision, overruled its own precedent and ruled that unions do not need employer consent before organizing bargaining units that…more

Browning-Ferris Industries of California Inc., Community of Interest, Joint Employers, NLRB, Staffing Agencies

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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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ERISA Fiduciaries May Factor Climate Change Issues Into Economic Analysis of Investments

New guidance from the US Department of Labor (“DOL”) clarifies the role of environmental, social and governance issues (referred to as “ESG factors”) in investment decisions by ERISA fiduciaries. ERISA Interpretive Bulletin…more

Climate Change, DOL, ERISA, Fiduciary Duty, Investment Portfolios

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The SEC Charges Investment Adviser with Violating Regulation S-P by Failing to Adopt Cybersecurity Policies and Procedures

In recent years, the SEC has been focused on cybersecurity. It has issued risk alerts, conducted examinations and provided guidance about what the agency sees as widespread weaknesses in many policies and procedures to protect…more

Broker-Dealer, Cease and Desist Orders, Civil Monetary Penalty, Cyber Attacks, Cyber Incident Reporting

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Quarterly Review of Seed, Series A and Series B/Later Round Financings: First Quarter 2015

The Numbers - Venture financing activity in New England decreased modestly in the first quarter of 2015 (-12%) with Seed and B/ Later round activity each decreasing by roughly 20% over Q4 2014. Despite this overall downward…more

Business Valuations, Clean Tech, Emerging Technology Companies, Life Sciences, Seed Financing

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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, 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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Exxon Sues Massachusetts AG to Block Civil Investigative Demand

On June 15, 2016, Exxon sued Massachusetts AG Maura Healey in federal court in Texas, seeking to bar the enforcement of AG Healey’s April 19, 2016 civil investigative demand, issued pursuant to M.G.L. c. 93A, the Commonwealth’s…more

Exxon, Exxon Mobil, Oil & Gas, Unfair or Deceptive Trade Practices

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A "PATH" to Substantial Tax Savings: Qualified Small Business Stock

In the early 1990s, Congress enacted the qualified small business stock (“QSBS”) rules to incentivize equity investments in certain corporations. The QSBS rules reduce the effective federal income tax rate on the gain realized…more

C-Corporation, Capital Gains, Corporate Conversions, Equity Investors, Income Taxes

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Summary: Oncology Care Model

Centers for Medicare & Medicaid Services - Overview - On June 29, 2016, the Center for Medicare and Medicaid Innovation (CMMI or the Innovation Center) formally launched the Oncology Care Model (OCM) at the Cancer…more

CMMI, CMS, HHS, Medicaid, Medicare

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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, Government Officials

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Potential Legal Implications Arising from "Brexit"

On June 23, 2016, the United Kingdom (UK) voted by way of an advisory referendum to leave the European Union. While the result will not take immediate legal effect, incoming Prime Minister Theresa May has indicated that “Brexit…more

Article 50 Treaty of the EU, Bilateral Agreements, Bilateral Investment Treaties, Copyright, Cross-Border Transactions

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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

See All Updates »

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

See All Updates »

Kamala Harris Puts Exxon Under Her Microscope: California AG Reportedly Has Launched Review of Oil Giant’s Statements On Climate Change

Students of history know that fighting a two front war is a hazard to be avoided. According to the L.A. Times, however, that is precisely the dilemma that now faces Exxon Mobil: dual investigations from attorneys general on…more

Attorney Generals, Climate Change, Disclosure, Exxon, Fraud

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Halo’s Aura: How the Supreme Court’s Halo Decision Will Impact Patent Damages and Influence Pre-Litigation Conduct

Patent infringers take note: clever defenses by ingenious litigation counsel may come too late to save you from an award of exemplary damages. On Monday, June 13, in Halo Electronics v. Pulse Electronics and Stryker Corp. v…more

35 U.S.C. § 284, Abuse of Discretion, Enhanced Damages, Halo v Pulse, Highmark

See All Updates »

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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Eat Your Art Out: Intellectual Property Protection for Food

Let’s face it, we live in a food-crazed world. Our current preoccupation with food has less to do with eating it; we also are fascinated with looking at it. Posting photos of food on Instagram is now a universal pastime. Food…more

Art, Copyright, Food Marketing, Infringement, Intellectual Property Protection

See All Updates »

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

Corporate Social Responsibility, Human Rights, Infrastructure

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Supreme Court Upholds University of Texas Affirmative Action Admissions Policy

The Supreme Court has rejected a challenge under the Equal Protection Clause to the University of Texas at Austin’s race-conscious admissions program in Fisher v. University of Texas at Austin (“Fisher II”). This closely-watched…more

Affirmative Action, College Admissions, Diversity, Equal Protection, Fisher v University of Texas

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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

See All Updates »

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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Quarterly Review of Seed, Series A and Series B/Later Round Financings: First Quarter 2015

The Numbers - Venture financing activity in New England decreased modestly in the first quarter of 2015 (-12%) with Seed and B/ Later round activity each decreasing by roughly 20% over Q4 2014. Despite this overall downward…more

Business Valuations, Clean Tech, Emerging Technology Companies, Life Sciences, Seed Financing

See All Updates »

Federal Court Halts the Enforcement of the Department of Labor’s “Persuader Rule”

On June 27, 2016, the U.S. District Court for the Northern District of Texas issued a nationwide preliminary injunction barring enforcement of the U.S. Department of Labor’s (“DOL”) new “persuader rule,” which as of July 1 would…more

Disclosure Requirements, DOL, LMRDA, Persuader Rules, Reporting Requirements

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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: February 2016

The Paris Outcome - After two weeks of intense negotiations at the Paris climate conference, 195 countries finally adopted the Paris Agreement and a Decision to limit “the increase in the global average temperature to well…more

Clean Power Plan, Climate Change, Emissions Trading System, EPA, Greenhouse Gas Emissions

See All Updates »

Celebrity Trademark Watch: Beyoncé Sues Feyoncé and Fame is the Name of the Game

Beyoncé Giselle Knowles-Carter, known to most as simply Beyoncé, and as “Bey” to those who like to pretend they know her, is about as famous as one can be. She transitioned from the acclaimed group “Destiny’s Child” to become…more

Celebrities, Dilution, Trademark Infringement

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Federal Circuit Expands Scope of Liability for Divided Infringement

The Federal Circuit, sitting en banc in Akamai Technologies, Inc. v. Limelight Networks, Inc., this week adopted a new standard governing divided infringement under 35 U.S.C. § 271(a). The new standard is likely to enhance the…more

Covered Business Method Patents, Direct Infringement, Divided Infringement, En Banc Review, Induced Infringement

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While The Outcome In the Lower Fox River Case Continues to Change, The Legal Standard For Apportionment Is The Same

In 1832, Abraham Lincoln said that ” it is better to be only sometimes right, than at all times wrong, so soon as I discover my opinions to be erroneous, I shall be ready to renounce them.” Judge Greisbach of Eastern District…more

Apportionment, Burlington Northern, Contamination, Environmental Litigation, Hazardous Waste

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SEC Increases Performance Fee Thresholds

As noted in a previous alert, the Securities and Exchange Commission has now issued an Order, effective as of August 15, 2016 (the "Effective Date"), which amends SEC Rule 205-3 (the “Performance Fee Rule”) under the Investment…more

Advisory Contracts, High Net-Worth, Investment Adviser, Investment Advisers Act of 1940, Performance Fee Rule

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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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Non-GAAP Financial Disclosures – Redux

Prefaced by public statements of SEC officials about improper use of non-GAAP financial measures, the Staff of the Division of Corporation Finance issued new and revised Compliance & Disclosure Interpretations (“C&DIs”) on May…more

C&DIs, EBITDA, Financial Reporting, GAAP, Non-GAAP Financial Measures

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Cybersecurity News & Notes – July 2016 #4

In Case You Missed It: U.S. Major party platforms address cybersecurity. The two major parties have released their 2016 election platforms, both of which include cybersecurity planks. The Republican platform’s perspective of…more

Corporate Counsel, Cyber Attacks, Cyber Insurance, Cybersecurity, Cybersecurity Information Sharing Act (CISA)

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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

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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, Government Officials

See All Updates »

First Circuit Clarifies Remedies for Retaliation Under the Wage Act

On Tuesday, December 15, 2015, the United States Court of Appeals for the First Circuit issued a decision that addresses the potential remedies available under the Massachusetts Wage Act. In addition to requiring the timely…more

Employer Liability Issues, Retaliation, Treble Damages, Wage Act, Wrongful Termination

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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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SEC Extractive Industry Transparency Requirements Move Forward

On December 11, 2015, the Securities and Exchange Commission (“SEC”) issued a new proposed rule to implement a key provision of the Dodd-Frank Act that targets corruption and increases transparency requirements for payments made…more

Dodd-Frank, EU, Form SD, Oil & Gas, Public Comment

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Halo’s Aura: How the Supreme Court’s Halo Decision Will Impact Patent Damages and Influence Pre-Litigation Conduct

Patent infringers take note: clever defenses by ingenious litigation counsel may come too late to save you from an award of exemplary damages. On Monday, June 13, in Halo Electronics v. Pulse Electronics and Stryker Corp. v…more

35 U.S.C. § 284, Abuse of Discretion, Enhanced Damages, Halo v Pulse, Highmark

See All Updates »

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

Oregon enacts statute to make improper patent license demands a violation of its unlawful trade practices law - In March 2013, Senate Bill 1540 was signed into law by the governor of Oregon. The law makes patent trolling…more

Bad Faith, Corporate Counsel, IP License, New Legislation, Patent Infringement

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Can I get a C-O-P-Y-R-I-G-H-T? Sixth Circuit Holds Cheerleading Uniform Designs Copyrightable

When are clothing designs sufficiently severable from the utilitarian aspects of the clothing so that the designs can be protected by copyright? That is a question courts have wrestled with for years, and the Sixth Circuit Court…more

Cheerleaders, Copyright, Copyright Infringement, Copyright Litigation, Copyright Office

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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 Waives Custody Rule Requirements for Certain Affiliated Sub-Advisers

Under the SEC Rule 206(4)-2, the “custody rule,” registered investment advisers with custody of client funds or securities are required to take a number of steps designed to safeguard those client assets. One such step is that…more

Custody Rule, Investment Adviser, Investor Protection, No-Action Letters, PCAOB

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Patent Strategies For Start-Up Companies

Patents can be vitally important for protecting the innovations of a start-up company, just as it is important for start-ups to be mindful of trademark, copyright, and domain name strategies (see our other guides for start-ups,…more

IP Assignment Agreements, Patent Applications, Patent-Eligible Subject Matter, Popular, Provisional Applications

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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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Massachusetts Legislature Enacts Significant Energy Bill in Support of Offshore Wind and Hydro Procurement, Storage and Transmission

Late last night, the Massachusetts legislature enacted House Bill 4568, an act to promote energy diversity (the “Act”). Overall, the Act marks a compromise between the House’s original procurement-only legislation and the…more

Energy Sector, Energy Storage, Hydro Issues, Offshore Wind, Omnibus Guidance

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En Banc Federal Circuit Clarifies Application of On-Sale Bar to Contract Manufacturing

On July 11, 2016, the Federal Circuit, sitting en banc in The Medicines Company v. Hospira, held that a contract manufacturer’s sale of manufacturing services to an inventor did not constitute a sale of the patented invention…more

Hospira, On-Sale Bar, Patent Litigation, Patents

See All Updates »

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

See All Updates »

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: February 2016

The Paris Outcome - After two weeks of intense negotiations at the Paris climate conference, 195 countries finally adopted the Paris Agreement and a Decision to limit “the increase in the global average temperature to well…more

Clean Power Plan, Climate Change, Emissions Trading System, EPA, 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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Objective Reasonableness Can Be Central to Fee-Shifting Analysis in Copyright Cases

In Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court clarified the test for awarding attorney’s fees when applying the Copyright Act’s discretionary fee-shifting provision, 17 U.S.C. § 505. The Court held that the…more

Attorney's Fees, Copyright, Copyright Infringement, Fee-Shifting, First Sale Doctrine

See All Updates »

FBAR: 2015 Reports Due by June 30, 2016

Every U.S. person (including both individuals and entities, as discussed below) that had a financial interest in, or signature or other authority over, one or more foreign financial accounts during 2015 must electronically file…more

E-Filing, FBAR, Filing Deadlines, FinCEN, Foreign Financial Accounts

See All Updates »

SBIC Advisers Relief Act Expected to be Adopted into Law

On December 4, 2015, President Obama is expected to sign into law The SBIC Advisers Relief Act, which amends several key registration provisions and exemptions of the Investment Advisers Act of 1940 (the “Advisers Act”), that…more

Amended Legislation, Exemptions, Investment Advisers Act of 1940, Preemption, SBIC

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En Banc Federal Circuit Clarifies Application of On-Sale Bar to Contract Manufacturing

On July 11, 2016, the Federal Circuit, sitting en banc in The Medicines Company v. Hospira, held that a contract manufacturer’s sale of manufacturing services to an inventor did not constitute a sale of the patented invention…more

Hospira, On-Sale Bar, Patent Litigation, Patents

See All Updates »

Supreme Court Upholds University of Texas Affirmative Action Admissions Policy

The Supreme Court has rejected a challenge under the Equal Protection Clause to the University of Texas at Austin’s race-conscious admissions program in Fisher v. University of Texas at Austin (“Fisher II”). This closely-watched…more

Affirmative Action, College Admissions, Diversity, Equal Protection, Fisher v University of Texas

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Bad News for HIPAA Business Associates: HHS OCR Announces $650,000 Settlement for BA Breach

Catholic Health Care Services of the Archdiocese of Philadelphia (“CHCS”), a HIPAA business associate, has agreed to pay the Department of Health and Human Services Office of Civil Rights (“OCR”) $650,000 in connection with a…more

Data Breach, Data Protection, HHS, HIPAA, Mobile Devices

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Contact

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Contact: Audra Callanan

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