Foley Hoag LLP

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Michele Adelman

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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Sarah A. Altschuller

D.C. Circuit Largely Upholds SEC’s Conflict Minerals Rule But Supports First Amendment Challenge

On April 14, the D.C. Circuit Court of Appeals issued an opinion in National Association of Manufacturers v. SEC, a case that sought to challenge the conflict minerals rule released by the Securities and Exchange Commission…more

Conflict Mineral Rules, First Amendment, Manufacturers, SEC

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Allison Anderson

Private Company Employees Who Blow the Whistle on Public Company Fraud Are Protected from Retaliation

When it passed the Sarbanes-Oxley Act of 2002 (“SOX”), Congress established protections against retaliation for “employees” who report fraud at public companies. Since then, however, courts and commentators have disagreed about…more

Contractors, DOJ, FMR LLC, Retaliation, Sarbanes-Oxley

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Catherine Anderson

Policy Statement Released Concerning the Custody Rule for Massachusetts-Registered Investment Advisers

In light of custody-related deficiencies identified by the Massachusetts Securities Division in recent examinations of Massachusetts-registered investment advisers, the Division released a Policy Statement on November 14, 2013…more

Compliance, Custody Rule, Investment Adviser, Verification Requirements

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Jennifer Audeh

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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Neil Austin

Dot Com Disclosures 2.0: FTC Updates Online Disclosure Guidelines to Address Changes in Digital Advertising

Nearly thirteen years after issuing guidelines governing online advertising, the Federal Trade Commission (“FTC”) recently updated its so-called Dot Com Disclosures to take account of the many changes to the online world that…more

Advertising, Disclosure Requirements, Dot Com Disclosure Guide, FTC, Internet

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Matthew Baltay

Delaware Court Issues Important Trados Decision Delineating Director Duties in Sale of Venture-Backed Company

The Delaware Chancery Court issued its long-awaited post-trial decision last month in In re Trados Incorporated Shareholder Litigation. In the decision, the court affirmed that directors designated by the venture capital…more

Business Judgment Rule, Conflicts of Interest, Directors, Fiduciary Duty, Investors

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Thomas Barker

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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Mark Barnett

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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Gabrielle Bernstein

Policy Statement Released Concerning the Custody Rule for Massachusetts-Registered Investment Advisers

In light of custody-related deficiencies identified by the Massachusetts Securities Division in recent examinations of Massachusetts-registered investment advisers, the Division released a Policy Statement on November 14, 2013…more

Compliance, Custody Rule, Investment Adviser, Verification Requirements

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Paul Bork

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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Michael P. Boudett

Hotel Dispute Gets An Extended Stay in Puerto Rico: First Circuit Case Illustrates the Limits of an Incontestable Registration

In the U.S., a senior user of a trademark can block a junior user within the geographic area of prior use, even if the junior user is the party with an incontestable U.S. federal registration. This is perfectly illustrated in a…more

Hotels, Registration, Seniority, Trademark Holders, Trademarks

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Amy Boyd

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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Kathleen Brill

MassDEP Proposes Amendments to CO2 Budget Trading Regs to Implement RGGI Program Changes

On Friday, MassDEP released for public review and comment draft amendments to the CO2 Budget Trading Program regulations. These amendments are designed to implement the changes to the Regional Greenhouse Gas Initiative (RGGI)…more

Cap-and-Trade, Department of Environmental Protection, Greenhouse Gas Emissions, State Budgets

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Von Bryant

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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Stephen Bychowski

Commercial Disparagement An Increasing Concern In The Age Of Social Media

Companies are turning to social media with increasing frequency to directly communicate with customers and potential customers. T-Mobile USA is no exception. Not only did the company release an astonishingly snarky press…more

Corporate Counsel, Disparagement, First Amendment, Free Speech, Social Media

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Brian Carey

Summary of Clinical Laboratory Fee Schedule Reform Provisions in the Protecting Access to Medicare Act of 2014

On April 1, the Protecting Access to Medicare Act of 2014 was enacted into law (Pub. L. 113-93). Section 216, entitled Improving Medicare Policies for Clinical Diagnostic Laboratory Tests, modernizes the Medicare payment system…more

CLFS, Clinical Laboratories, GAO, Medicare, OIG

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Brian Carroll

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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Christopher Cawley

FATCA: Initial Registration Deadline Extended

On April 2, 2014, the IRS announced that foreign entities that must be FATCA-compliant by July 1, 2014 now have until June 3, 2014 to register with the IRS (as opposed to the previous April 25, 2014 registration deadline)…more

FATCA Timeline, Foreign Entities, Intergovernmental Agreements, IRS, Tax Evasion

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Pat A. Cerundolo

The Physician Payment Sunshine Act Final Rule A Summary Of Key Provisions

On February 1, 2013, Centers for Medicare and Medicaid Services (CMS) published the long-awaited Physician Payment Sunshine Act (Sunshine Act) Final Rule, implementing Section 1128G of the Social Security Act. The Sunshine…more

Affordable Care Act, CMS, Drug Manufacturers, Medicaid, Medical Devices

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Jeffrey D. Collins

SEC Issues No-Action Letter on the Definition of Knowledgeable Employee

On February 7, 2014 the staff of the Division of Investment Management of the Securities and Exchange Commission (the “SEC”) issued a no-action letter to the Managed Funds Association (the “No-Action Letter”), providing guidance…more

Actual or Constructive Knowledge, Investment Company Act of 1940, No-Action Letters, SEC

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Kristyn Bunce DeFilipp

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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Catherine Deneke

The U.S. Department of Justice and Department of Education Release New Information About Using Race in Higher Education

On September 27, 2013, the U.S. Department of Justice and Department of Education released a document entitled “Questions and Answers About Fisher v. University of Texas at Austin.” This is the first guidance released by either…more

Affirmative Action, College Admissions, Colleges, Department of Education, DOJ

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Caroline Donovan

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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Jennifer Duke

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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Matthew Eckert

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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Adrienne Ellman

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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Christopher Feudo

Supreme Court Decision Clarifies Approach to Donning-and-Doffing Cases Under the FLSA

On January 27, 2014, the U.S. Supreme Court held in Sandifer v. United States Steel Corp. that the Fair Labor Standards Act did not require an employer to pay workers for time spent donning and doffing protective gear. The Court…more

Collective Bargaining, FLSA, Sandifer v U.S. Steel Corp, SCOTUS, Unions

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Barbara Fiacco

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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Robert A. Fisher

Supreme Court Finds that Severance Pay is Wages for Purposes of Payroll Taxes

On March 25, 2014, the Supreme Court held in United States v. Quality Stores, Inc. that severance payments are taxable wages for FICA purposes. This decision confirms employers’ responsibility to treat severance pay as taxable…more

FICA Taxes, Payroll Taxes, Quality Stores, SCOTUS, Severance Pay

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Kevin Fitzgerald

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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Tiffany Ford

CFTC 4.13(a)(3) Annual Affirmations Due March 3, 2014

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, De Minimus Quantity Exemption, Filing Deadlines

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David Geiger

Product Liability Update - April 2014

Included in this Issue: ..United States Supreme Court Holds Due Process Forbids California’s Exercise of General Jurisdiction Over German Manufacturer in Suit by Argentinian Plaintiffs Involving Argentinian Subsidiary…more

Foreign Corporations, Jurisdiction, Manufacturers, Subsidiaries

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Mary Beth Gentleman

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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Ara Beth Gershengorn

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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Zachary Gerson

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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Igor Gorlach

FDA Publishes New Guidance on Letters from Manufacturers to Health Care Providers

The Food and Drug Administration (FDA) issued a new guidance document on Dear Health Care Provider (DHCP) letters, titled “Dear Health Care Provider Letters: Improving Communication of Important Safety Information.” DHCP letters…more

Biologics, Drug Manufacturers, FDA, Healthcare, Prescription Drugs

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Mark Haddad

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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Dean Hanley

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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Meredith Haviland

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”) are required to review their compliance policies and procedures at least…more

Commodities, CPO, Deadlines, Financial Adviser, Form 13F

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Tad Heuer

The Physician Payment Sunshine Act Final Rule A Summary Of Key Provisions

On February 1, 2013, Centers for Medicare and Medicaid Services (CMS) published the long-awaited Physician Payment Sunshine Act (Sunshine Act) Final Rule, implementing Section 1128G of the Social Security Act. The Sunshine…more

Affordable Care Act, CMS, Drug Manufacturers, Medicaid, Medical Devices

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Elizabeth Holland

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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Steven Hollingsworth

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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Sam Hudson

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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Julia Huston

Brand Wars: Will the Real Ronald McDonald Please Stand Up (and Eat a Taco Bell Taco on Camera)?

Last week, Taco Bell released a TV commercial featuring real men named Ronald McDonald enjoying Taco Bell’s new breakfast items. This is very creative advertising, but is not for the faint of heart. Using a competitor’s…more

Brand, Copyright, Trademarks

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Seth Jaffe

D.C. Circuit Affirms EPA’s Utility Air Toxics Rule: An “Appropriate” Rule Need Not Be Justified By Cost-Benefit Analysis

Yesterday, the D.C. Circuit Court of Appeals affirmed EPA’s rule setting limits for emissions of mercury and other air toxics from fossil-fuel-fired electric steam generating units. The focus of the decision – and the issue on…more

Air Pollution, EPA, National Emissions Standards, Trucking Industry

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Joshua Jarvis

5 Steps To Protect Your Brands in the New gTLD Regime

The time is upon us. After years of anticipation, lobbying for delays and more robust trademark protections, and otherwise steeling themselves against the oncoming tide of new, generic top-level domain names (gTLDs), brand…more

Brand, Domain Names, gTLD, ICANN, Registration

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Noah J. Kaufman

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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Jonathan Keselenko

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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Alex Khalarian

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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Paul Kim

FDA Publishes New Guidance on Letters from Manufacturers to Health Care Providers

The Food and Drug Administration (FDA) issued a new guidance document on Dear Health Care Provider (DHCP) letters, titled “Dear Health Care Provider Letters: Improving Communication of Important Safety Information.” DHCP letters…more

Biologics, Drug Manufacturers, FDA, Healthcare, Prescription Drugs

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Nicole Kinsley

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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David Kluft

Taxation Of Copyright Sales: Ordinary Income Or Capital Gain?

Tax day presents several interesting questions for copyright holders, not the least of which is how the Internal Revenue Service (IRS) will treat income from the sale or exclusive license of a copyright. If a copyright is a…more

Capital Gains, Corporate Taxes, Income Taxes, IRS

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Vivek Krishnamurthy

Mandatory Social and Financial Reporting: Coming Soon to the European Union

Corporate social responsibility (“CSR”) may have its roots in voluntary efforts by businesses to address their broader impacts on society, but the trend towards CSR becoming mandatory advanced significantly this week under a…more

Corporate Social Responsibility, EU, Reporting Requirements

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Lyndsey Kruzer

Supreme Court Finds that Severance Pay is Wages for Purposes of Payroll Taxes

On March 25, 2014, the Supreme Court held in United States v. Quality Stores, Inc. that severance payments are taxable wages for FICA purposes. This decision confirms employers’ responsibility to treat severance pay as taxable…more

FICA Taxes, Payroll Taxes, Quality Stores, SCOTUS, Severance Pay

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Claire Laporte

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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Amy Lehr

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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Nicola Lemay

FATCA: Initial Registration Deadline Extended

On April 2, 2014, the IRS announced that foreign entities that must be FATCA-compliant by July 1, 2014 now have until June 3, 2014 to register with the IRS (as opposed to the previous April 25, 2014 registration deadline)…more

FATCA Timeline, Foreign Entities, Intergovernmental Agreements, IRS, Tax Evasion

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Jeffrey Lerer

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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Sharon C. Lincoln

SJC Case Could Result in Loss of Property Tax Exemptions for Certain Conservation Land

A property tax dispute involving a $172 property tax on conservation land owned by The New England Forestry Foundation (the “Foundation”) in the Town of Hawley could impact land conservation organizations throughout the…more

Conservation, Exemptions, Property Tax

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Diana W. Lo

CFTC 4.13(a)(3) Annual Affirmations Due March 3, 2014

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, De Minimus Quantity Exemption, Filing Deadlines

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Jennifer Macarchuk

SEC Issues No-Action Letter on the Definition of Knowledgeable Employee

On February 7, 2014 the staff of the Division of Investment Management of the Securities and Exchange Commission (the “SEC”) issued a no-action letter to the Managed Funds Association (the “No-Action Letter”), providing guidance…more

Actual or Constructive Knowledge, Investment Company Act of 1940, No-Action Letters, SEC

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Jenevieve Maerker

Liability Insurer May Have to Cover Knockoff Jewelry Site for Allegedly Violating Reese Witherspoon’s Right of Publicity

Have you always wanted to own “The One Ring to Rule Them All” of Lord of the Rings fame? Do you dream of an engagement ring just like Kate Middleton’s? Your dreams can come true with a visit to Emitations.com, a website that…more

Copyright, Knockoffs, Liability Insurance, Right of Publicity

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Ross Margulies

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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Teresa Martland

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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Daniel Marx

SEC Enforcement of Rule 105: The Hits Just Keep on Comin’

Last week, in In the Matter of Worldwide Capital, Inc. and Jeffrey W. Lynn, AP File No. 3-15772 (Mar. 5, 2014), the SEC announced the latest—and largest ever—settlement of an administrative enforcement action concerning…more

Civil Monetary Penalty, Disgorgement, Enforcement, Enforcement Actions, SEC

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Daniel McFadden

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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Alexandra Meise Bay

ATS of the North? Canadian Court Allows Suit to Continue for Human Rights Abuses Committed Abroad

The Superior Court of Justice of Ontario’s recent ruling in the matters of Choc v. Hudbay Minerals Inc., Caal Caal v. Hudbay Minerals Inc., and German Chub Choc v. Hudbay Minerals has signaled a willingness by Canadian courts to…more

Canada, Employer Liability Issues, Human Rights, Liability, OECD

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Earl Mellott

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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Anthony D. Mirenda

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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Joel Needleman

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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Creighton Page

Product Liability Update - April 2014

Included in this Issue: ..United States Supreme Court Holds Due Process Forbids California’s Exercise of General Jurisdiction Over German Manufacturer in Suit by Argentinian Plaintiffs Involving Argentinian Subsidiary…more

Foreign Corporations, Jurisdiction, Manufacturers, Subsidiaries

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Charlotte Marie Petilla

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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David Pierson

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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Marco Quina

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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Bruce Quinn

The FDASIA Health IT Report

On April 7, 2014, the Food and Drug Administration (FDA) released a report entitled “FDASIA Health IT Report: Proposed Strategy and Recommendations for a Risk-Based Framework” (the “Report”). The Report was mandated by section…more

Data Protection, FCC, FDA, FDASIA, Technology

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Nicholas M. Renzler

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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Nell Richmond

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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Madeleine Rodriguez

Kraft Still the Big Cheese: Seventh Circuit Affirms Injunction in Trademark Dispute over Cracker Barrel

Cracker Barrel Old Country Stores are easy to spot off the highway, but you won’t be noticing the company’s products in grocery store aisles any time soon…more

Cracker Barrel, Food Manufacturers, Kraft, Trademark Litigation, Trademarks

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Punam Rogers

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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Michael L. Rosen

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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Anthony Rufo

Hey, These Japanese Mushrooms Aren’t Organic: The Ninth Circuit Addresses the Material Difference Standard in Relation to Produce as Parallel Imports

The Ninth Circuit recently issued a decision upholding the lower court’s finding at summary judgment that a U.S. importer of branded, gray market mushrooms infringed upon the rights of the U.S. trademark owner. Gray-market…more

Brand, Food Labeling, Gray Market Goods, Infringement, Parallel Imports

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Hathaway Russell

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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Robert S. Sanoff

CERCLA Principles in Child Pornography Cases

Although one might not ordinarily think to associate child pornography and pollution, the two were linked at an oral argument yesterday before the United States Supreme Court. Specifically, in a child pornography case, the…more

CERCLA, Child Abuse, Child Pornography

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Robert Sawyer

SEC Issues No-Action Letter on the Definition of Knowledgeable Employee

On February 7, 2014 the staff of the Division of Investment Management of the Securities and Exchange Commission (the “SEC”) issued a no-action letter to the Managed Funds Association (the “No-Action Letter”), providing guidance…more

Actual or Constructive Knowledge, Investment Company Act of 1940, No-Action Letters, SEC

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Richard Schaul-Yoder

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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Rebecca Sivitz

Supreme Court Finds that Severance Pay is Wages for Purposes of Payroll Taxes

On March 25, 2014, the Supreme Court held in United States v. Quality Stores, Inc. that severance payments are taxable wages for FICA purposes. This decision confirms employers’ responsibility to treat severance pay as taxable…more

FICA Taxes, Payroll Taxes, Quality Stores, SCOTUS, Severance Pay

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Gare Smith

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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Jason Steinman

Venture Perspectives - New England Outlook: Third Quarter 2013

Quarterly Review of Seed, Series A and Series B/Later Round Financings Included in this Issue: ..Activity Level of New England Transactions: Q3 2012 -Q3 2013 - All Rounds ..Activity Level of New England Seed …more

Funding, Series A, Series B, Venture Capital

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Philip Swain

Closely Watched Appeals Court Ruling Provides Limited Guidance on Future of Computer and Software Patents

Earlier this month, the Federal Circuit Court of Appeals issued its en banc decision in CLS Bank v. Alice Corp. (CLS), which was expected to clarify the standard for patent eligibility of computer-implemented inventions…more

CLS Bank, CLS Bank v Alice Corp, Computer-Related Inventions, Patent-Eligible Subject Matter, Patents

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Shrutih Tewarie

Social Media Fan Accounts: Honoring a Celebrity’s Brand or a Trademark Violation?

Social media has become a powerful marketing tool, allowing celebrities to develop their brands and images with the help of Facebook updates or Tweets that can reach millions of fans at the same time. Given the importance of…more

Brand, Celebrities, Social Media, Trademark Holders, Trademarks

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Robert Toone

The U.S. Department of Justice and Department of Education Release New Information About Using Race in Higher Education

On September 27, 2013, the U.S. Department of Justice and Department of Education released a document entitled “Questions and Answers About Fisher v. University of Texas at Austin.” This is the first guidance released by either…more

Affirmative Action, College Admissions, Colleges, Department of Education, DOJ

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Amanda Vendig

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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Adam Wade

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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Robert Warren

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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Charles Weinstein

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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Michele Whitham

Supreme Court Makes it Harder for Employees to Bring Suits Under Title VII

The Potential Implications for Educational Institutions - Last month, at the close of its October 2012 term, the Supreme Court issued two important rulings in Title VII employment discrimination cases that make it…more

Civil Rights Act, Discrimination, EEOC, Harassment, Hostile Environment

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Colin J. Zick

FDA Releases Final Guidance on the Regulation of Mobile Medical Applications

On September 23, 2013, the Food and Drug Administration (FDA) published the final guidance on its regulation of “mobile medical applications (or apps).” The guidance finalizes FDA’s 2011 draft guidance, adding numerous examples…more

FDA, FDCA, Healthcare, Medical Devices, Mobile Apps

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