Foley Hoag LLP

Seaport West 155 Seaport Boulevard
Boston, MA 02210, United States

Contact: Jasmine Trillos-Decarie

  • 617-832-1000
  • 617-832-7000

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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Canada Announces Revised Corporate Social Responsibility Strategy for the Extractive Sector

Map of Canada in Canadian flag colorsIn November, the Government of Canada announced a revised Corporate Social Responsibility (“CSR”) strategy for the extractive sector. Building on Canada’s plan for Responsible Resource…more

Canada, Corporate Social Responsibility

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Supreme Court Decides No Pay Owed for Amazon Warehouse Security Checks

On December 9, 2014, the U.S. Supreme Court unanimously held in Integrity Staffing Solutions, Inc. v. Busk, that Amazon warehouse employees were not entitled to pay for the time spent waiting to go through security checks at the…more

Amazon, FLSA, Security Checks, Wage and Hour, Wages

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Massachusetts Conducting Cybersecurity Practices Survey of Massachusetts-Registered Investment Advisers

On June 3, 2014, the Massachusetts Securities Division released a survey to assess cybersecurity readiness and practices of Massachusetts-registered investment advisers…more

Cybersecurity, Investment Adviser, Privacy Concerns, Risk Assessment

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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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Dispatch from NYC: Annual National Advertising Division (NAD) Conference is in Full Swing

The National Advertising Division is holding its annual conference this week in New York, and Foley Hoag is in attendance for what many consider to be the leading conference of its kind. Day One saw an impressive line-up of…more

Advertising, Celebrity Endorsements, Class Action, False Advertising, Food Labeling

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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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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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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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Divided TTAB Panel Once Again Finds REDSKINS Trademarks Disparaging

In a ruling sure to generate heated discussion in the sports world, the trademark community and elsewhere, a divided panel of the Trademark Trial and Appeal Board (TTAB) has ruled that six registered marks including the term…more

Redskins, Trademark Litigation, Trademark Trial and Appeal Board, Trademarks

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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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Supreme Court Decision Invites More Challenges to Patent Claims as Indefinite

On Monday, in Nautilus Inc. v. Biosig Instruments, the United States Supreme Court unanimously set aside the Federal Circuit’s indefiniteness standard, potentially easing the way for defendants to invalidate ambiguous patent…more

America Invents Act, Claim Construction, Indefiniteness, Nautilus Inc. v. Biosig Instruments, Patent Infringement

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Five Tips to Help Companies Protect Themselves from Data Breaches

With every swipe of a credit card this holiday season, consumers put their faith in the companies that process and store their information. Yet, it is no secret that data breaches are on the rise, hitting companies large and…more

Corporate Counsel, Data Breach, Data Breach Plans, Data Protection, Home Depot

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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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FATCA Compliance Deadlines for December 2014

What Managers of U.S. and Non-U.S. Investment Funds Should Do Today - FATCA went into effect on July 1, 2014 and will be phased in through January 1, 2017. During that period, varying compliance deadlines apply to…more

FATCA, FATCA Timeline, Foreign Investment Fund, Fund Managers, Investment Funds

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Massachusetts Enacts New Biosimilars Substitution Law

On June 23, 2014, Governor Deval Patrick signed into law House Bill 3734, “An Act Relative to the Substitution of Interchangeable Biosimilars” (now Chapter 143 of the Acts of 2014). The new Act authorizes pharmacists to…more

Biosimilars, Biotechnology, Pharmaceutical, Prescription Drugs

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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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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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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 - 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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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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National Labor Relations Board Issues Final Rule on So-Called “Quickie Elections”

On December 15, 2014, the National Labor Relations Board (“NLRB”) published a final rule regarding its handling of union representation petitions and the timing of elections. The new procedures, dubbed the “quickie election”…more

Ambush Election Rules, Final Rules, NLRB, Union Elections, Unions

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Federal Circuit’s Sandoz v. Amgen Decision Forecloses Early Declaratory Judgment Suits by Biosimilars Applicants

On December 5, in the closely watched Sandoz v. Amgen case, the Federal Circuit held that a biosimilars applicant cannot use the Declaratory Judgment Act to challenge a reference product sponsor's patent prior to filing a…more

Amgen, Biologics, Biologics Price Competition and Innovation Act of 2009, Biosimilars, Declaratory Judgments

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National Labor Relations Board Issues Final Rule on So-Called “Quickie Elections”

On December 15, 2014, the National Labor Relations Board (“NLRB”) published a final rule regarding its handling of union representation petitions and the timing of elections. The new procedures, dubbed the “quickie election”…more

Ambush Election Rules, Final Rules, NLRB, Union Elections, Unions

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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 - October 2014

In this Issue: - Massachusetts Appeals Court Holds Trial Court Properly Instructed Jury on Absolute “Unreasonable Use” Warranty Defense Where Plaintiff Ignored Warning Label and Safety Manual and Had Been Drinking, and…more

Comparative Negligence, Negligence, Safety Manuals, Warning Labels, Warranties

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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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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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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 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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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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Reminder: Renewal and Notice Filing Fees for Investment Advisers Due by December 12

As a reminder, investment advisers who are subject to any state registration, renewal or notice filing fees must fund their IARD accounts by December 12 in order to cover such fees. This deadline applies to the following…more

Filing Deadlines, Filing Fees, Investment Adviser

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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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Opportunities for Trademark and Copyright Lawyers To Volunteer During Pro Bono Month

October is Pro Bono Month in many states, including Massachusetts, New York, Michigan, New Hampshire, Maine, Rhode Island, Indiana, Tennessee, and Alabama. The ABA has created an annual weeklong National Pro Bono Celebration,…more

Law Firm Associates, Law Firm Partners, Pro Bono, Young Lawyers

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CCRs Dodge a Hazardous Waste Bullet: EPA Regulates under RCRA Subtitle D

On Friday, EPA finally released its final rule regulating coal combustion residuals. Facility owners breathed a sigh of relief, as EPA chose to regulate under Subtitle D of RCRA, rather than under the cradle-to-grave provisions…more

Coal, Coal Ash, EPA, Final Rules, Hazardous Waste

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The Haunted History of the Hallowine Trademark

Brewers, distillers, and vintners are no strangers to themed seasonal offerings, so it’s not surprising that Halloween brings out some decidedly decrepit monikers. From PUMPKINHEAD (think reaping) to NOSFERATU, WITCH’S WIT to…more

Trademark Litigation, Trademarks, Wine & Alcohol

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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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D.C. Circuit Rules Recess Appointments of NLRB Members Unconstitutional, Calling Into Question Hundreds of NLRB Decisions

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia ruled in Noel Canning v. National Labor Relations Board that President Obama’s use of recess appointments to fill three vacancies on the National Labor…more

Barack Obama, Canning v NLRB, George W. Bush, NLRB, Pro Forma Sessions

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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 Unveils Anticipated Draft Guidance for the Regulation of Laboratory-Developed Tests

On July 31, 2014, the Food and Drug Administration (FDA) provided Congress notice of its intent to issue draft guidance providing a risk-based framework for the regulation of laboratory developed tests (LDTs) under the agency’s…more

Clinical Laboratories, Draft Guidance, Enforcement Guidance, FDA, Medical Devices

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This Porridge is Just Right: Supreme Court Adopts “Zones of Interest” Standing in False Advertising Cases

When we last posted about Lexmark v. Static Control, we expected that the Supreme Court would endorse one of the circuit court tests to determine whether Static Control, the maker of a chip that facilitates printer cartridge…more

False Advertising, Lexmark v Static Control Components, SCOTUS

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A Trap For Santa: The First Santa Claus IP Fight

At this time of year, you may be wondering about the first intellectual property case involving Santa Claus. And even if you are not, we are going to tell you…more

Intellectual Property Litigation, Licenses, Popular

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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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NLRB Rules that Employees Have a Right to Use Employers’ Email Systems for Non-Business Purposes

In a 3-2 decision issued on December 11, 2014, the National Labor Relations Board (NLRB) held in Purple Communications Inc. that, in most circumstances, employees have a right to use employer email systems for non-business…more

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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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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 Filing Deadline Approaching

Reports Due by the End of June - Every U.S. person that had a financial interest in, or signature or other authority over, a foreign financial account during 2013 must electronically file with the U.S. Treasury Department…more

FBAR, Filing Deadlines, FinCEN, Foreign Investment, Offshore Funds

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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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Republican State Parties Challenge SEC’s Pay-to-Play Rule

On August 7, 2014, the New York Republican State Committee and Tennessee Republican Party (the “Plaintiffs”) filed a civil suit against the Securities and Exchange Commission (the “SEC”) seeking to overturn Rule 206(4)-5 under…more

Investment Advisers Act of 1940, Pay-To-Play, SEC

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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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Turkey Purveyors Try to Gobble Up Trademark Rights

Last year, in the spirit of Thanksgiving, we told you about Horace W. Longacre’s unsuccessful attempt to register BAKED TAM as a trademark for its “turkey ham” product in the early 1980s. This year we bring you a related tale,…more

Food Manufacturers, Food Marketing, Trademarks

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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 Continues Its “Strict Liability” Enforcement Campaigns, Focusing on Filing Failures and Rule 105 Violations

Nearly five years ago, the SEC launched an extensive "crackdown" on violations of Rule 105 of Regulation M, which prohibits short selling securities and then participating in secondary offerings of the same securities within…more

Compliance, Disgorgement, Enforcement, Enforcement Actions, Regulation M

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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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Medical Billing Provider and its Former CEO Settle FTC Charges That They Misled Consumers About Collection of Personal Health Data

In an age when many of us briskly scroll through website terms and conditions and check, “I agree” without thinking, how should businesses design their websites to obtain proper authorization to access users’ sensitive…more

Billing, FTC, Health Care Providers, PHI, Settlement

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New Proposals to Tax Carried Interest as Ordinary Income Garner Bipartisan Support

On March 4, 2014, President Obama issued his Administration’s Fiscal Year 2015 Budget, which includes a proposal to tax carried interests (also known as “performance allocations” or “incentive allocations”) in investment…more

Corporate Taxes, Hedge Funds, Incentives, Income Taxes, Performance Incentives

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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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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 - October 2014

In this Issue: - Massachusetts Appeals Court Holds Trial Court Properly Instructed Jury on Absolute “Unreasonable Use” Warranty Defense Where Plaintiff Ignored Warning Label and Safety Manual and Had Been Drinking, and…more

Comparative Negligence, Negligence, Safety Manuals, Warning Labels, Warranties

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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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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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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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NLRB Drops Its Pursuit of Notice-Posting Rule

The National Labor Relations Board recently announced that it would not seek U.S. Supreme Court review of two U.S. Court of Appeals decisions that struck down its proposed union poster rule. The rule, originally announced by the…more

Employee Rights, NLRA, NLRB, Notice Requirements, SCOTUS

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Appearances Aside, “Something More” Still Needed for Trademark Infringement Liability in Keyword Advertising Cases

Search engine optimization is a vital issue for brand owners. When a potential customer searches online for Company A, a well-known brand, Company A naturally wants its own website to be as high in the search results as…more

Advertising, Google, Keyword Advertising, Popular, Trademark Litigation

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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 Cost Recovery v. Contribution Again: It’s Still Unfair

Parties in CERCLA cases continue to deal with the consequences of the Supreme Court decisions in Aviall and Atlantic Research which essentially created two classes of PRPs: (1) PRPs who entered into CERCLA settlements with the…more

CERCLA, Contaminated Properties, Contribution Claims, Environmental Liability, PRP

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Reminder: Renewal and Notice Filing Fees for Investment Advisers Due by December 12

As a reminder, investment advisers who are subject to any state registration, renewal or notice filing fees must fund their IARD accounts by December 12 in order to cover such fees. This deadline applies to the following…more

Filing Deadlines, Filing Fees, Investment Adviser

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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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Massachusetts Enacts Domestic Violence Leave for Employees

On August 8, 2014, Governor Deval Patrick signed into law a bill relating to domestic violence. Among other provisions, the law creates a new category of job-protected leave for employees. Massachusetts employers with 50 or more…more

Corporate Counsel, Crime Victims, Domestic Violence, Employee Rights, Unpaid Leave

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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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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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International Migrants Day and Operating with Respect for the Rights of Migrant Workers

December 18 is International Migrants Day. Companies in a wide variety of industry sectors must address the human rights-related risks specific to employing migrant workers. These workers are especially vulnerable to human…more

Employer Liability Issues, Human Rights, Migrant Workers

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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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Wizard of Oz Celebrates 75th Anniversary & Victory in Copyright and Trademark Dispute Over Film Characters

This August will mark the 75th anniversary of the release of the classic film The Wizard of Oz. As Warner Bros. celebrates the iconic status acquired by the film and its characters during the past seven-plus decades, the studio…more

Copyright, Entertainment Industry, IP, IP Litigation, License Agreements

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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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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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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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Federal Circuit’s Sandoz v. Amgen Decision Forecloses Early Declaratory Judgment Suits by Biosimilars Applicants

On December 5, in the closely watched Sandoz v. Amgen case, the Federal Circuit held that a biosimilars applicant cannot use the Declaratory Judgment Act to challenge a reference product sponsor's patent prior to filing a…more

Amgen, Biologics, Biologics Price Competition and Innovation Act of 2009, Biosimilars, Declaratory Judgments

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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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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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FBAR Filing Deadline Approaching

Reports Due by the End of June - Every U.S. person that had a financial interest in, or signature or other authority over, a foreign financial account during 2013 must electronically file with the U.S. Treasury Department…more

FBAR, Filing Deadlines, FinCEN, Foreign Investment, Offshore Funds

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Both Sides Now: Cloud Security and Privacy Enter the Modern Era with ISO 27018

Until recently, many cloud users felt like Joni Mitchell in her classic song, “Both Sides Now.” No matter how you looked at clouds, you never really understood them, how they worked, or what happened inside them. Cloud storage…more

Cloud Computing, Cloud-Based Services, Data Protection, Data Storage Providers

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