Morgan Lewis

New Opinion and Advisory Program for Pre-Approved 403(b) Plans

The IRS releases new procedures and sample plan language to assist 403(b) plan sponsors in obtaining pre-approval of 403(b) plan documents and to ensure documentary compliance with 403(b) requirements…more

403(b) Plans, Advisory Opinions, IRS, Pre-approval, Required Documentation

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Practical Implications from Amarin

Amarin is an important US district court opinion affirming the importance of the Second Circuit’s Caronia decision and finding that pharmaceutical and medical device companies have a constitutionally protected right to provide…more

Amarin, Caronia, FDA, FDA Approval, FDCA

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IRS Publishes Guidance for RICs that Receive Foreign Tax Credit Refunds

IRS announces the issuance of new regulations that will provide relief for certain regulated investment companies that receive foreign tax refunds by either netting the refund against foreign taxes paid in the year of the…more

EU, European Court of Justice (ECJ), Foreign Tax, IRS, Popular

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Court Upholds Validity of ERISA Fiduciary Indemnification

Ruling rejects DOL challenge of an agreement by a 100% ESOP-owned company to advance defense costs and indemnify a trustee…more

DOL, ERISA, ESOP, Indemnification, Legal Costs

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EU-US Privacy Shield to Replace Safe Harbor

A new personal data transfer agreement was announced on February 3, 2016 between EU and US authorities: the EU-US Privacy Shield will replace the invalidated Safe Harbor programme. Since the landmark decision of the…more

Data Protection Authority, EU, EU-US Privacy Shield, European Commission, European Court of Justice (ECJ)

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US Supreme Court Holds FERC Has Jurisdiction Over Demand Response

Decision brings more clarity to jurisdictional boundaries between state public utility regulatory commissions and FERC set forth by the Federal Power Act. On January 25, the US Supreme Court, in a 6-2 decision, ruled in…more

Demand Response, Energy Consumption, Energy Market, Federal Power Act, FERC

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Nuclear Agreement Lacks Details on Relaxing Sanctions Against Iran

Although the provisions that limit Iran's nuclear program are spelled out in some detail, those related to relaxing economic sanctions against Iran are quite vague…more

Iran Sanctions, Negotiations, Nuclear Weapons, P5+1 Nations, United Nations

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Fifth Circuit Holds Deferred Compensation Plan Is Governed by ERISA

The decision details important implications for employers that use deferred compensation arrangements…more

Corporate Counsel, Deferred Compensation, Employee Benefits, ERISA

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Bank of Russia Adopts Basel III Regulation

Any subordinated debt, including Eurobonds, issued after 1 March 2013 must comply with the new rules in order to qualify as regulatory capital…more

Bank of Russia, Basel III, Bonds, Debt, Russia

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New Guidance from the SEC on Gifts to Adviser Personnel

SEC Staff from the Division of Investment Management has issued guidance on receipt of gifts by investment adviser personnel who manage registered funds…more

Gifts, Investment Adviser, Investment Funds, New Guidance, SEC

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Brazil Enacts Anti-Corruption Law

Companies doing business in the country should evaluate their compliance programs to avoid the law's sanctions on violators. On August 2, Brazilian President Dilma Rousseff signed Law No. 12,846/2013—unofficially called…more

Anti-Bribery, Anti-Corruption, Bribery, Compliance, FCPA

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Kazakhstan’s New Rehabilitation and Bankruptcy Law

The new law extends the grounds for shareholders’ liability and invalidation of transactions. On 26 March 2014, the new Rehabilitation and Bankruptcy Law (the New Law) took effect in Kazakhstan. The New Law supersedes the…more

Bankruptcy Reform, Commercial Bankruptcy, Shareholders

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Eastern District of Texas Adopts Limits on Asserted Patent Claims and Prior Art

Eastern District’s order aims to focus patent cases in an attempt to reduce costs. On October 29, Chief District Judge Leonard Davis of the U.S. District Court for the Eastern District of Texas signed a general order…more

Claim Construction, Discovery, Patents, Prior Art

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FTC Issues Updated Guidance on Endorsements Compliance

Companies should revisit their policies for influencer programs for compliance with the updated guidance. Online advertising and promotion first attracted the attention of the Federal Trademark Commission (FTC) in 2009. In…more

Advertising, Endorsements, FTC, Online Advertisements, Sales Promotions

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Group Health Plan Action Items and Reminders for the New Year

While plan sponsors of group health plans breathed a little easier this year-end, there are still important action items and reminders to consider as we look to 2016…more

Affordable Care Act, Cadillac Tax, Employer Group Health Plans, Filing Deadlines, Form 1095

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New Developments Surrounding Lactation Discrimination

New case law and statutory changes increase litigation and liability risk for employers that fail to comply with both federal and state lactation break laws…more

Affordable Care Act, Breastfeeding, Discrimination, EEOC, FLSA

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First Circuit Overturns SEC Ruling in Flannery v. SEC

The First Circuit’s decision underscores the limits of court deference to Commission decisions, gives teeth to the “substantial evidence” standard of review, and provides a valuable roadmap for evaluating and defending…more

Abuse of Discretion, Corporate Counsel, Material Misstatements, Misleading Statements, Scienter

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US Government Contractors Face Another Reporting Obligation under Proposed Rule for Payment of Subcontractors

If adopted as proposed, the costs to government contractors to implement changes necessary to meet the reporting obligations could be substantial. On January 20, the Department of Defense, General Services Administration,…more

Comment Period, Corporate Counsel, Department of Defense (DOD), Federal Acquisition Regulations (FAR), Federal Contractors

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New Developments in UK Employment Law

The changes affect the areas of antenatal appointments, equal pay audits, national minimum wage, Reserve Forces membership, whistleblowing, and shared parental leave…more

Employer Liability Issues, Equal Pay, Maternity Leave, Minimum Wage, New Legislation

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Changes to UK’s TUPE Regulations

New TUPE Regulations come into force on 31 January, with the Department for Business, Innovation and Skills issuing updated accompanying guidance. On 31 January 2014, the regulations that will amend the UK’s Transfer of…more

Employee Rights, TUPE, UK

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Congress Lifts Oil Export Ban

Oil exports permitted for the first time in 40 years. On December 18, the US Congress passed H.R. 2029, ominbus appropriations legislation that provides discretionary funding for the federal government for the current…more

Bipartisan Budget, Crude Oil, Energy Policy, Exports, Repeal

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New Legislation Extends and Modifies Renewable Energy Industry Tax Incentives

The five-year tax credit extension for wind and solar power facilities is a welcome development for the renewable energy industry in light of recent indications by Congress of a push to end tax credit benefits for wind and solar…more

Protecting Americans from Tax Hikes (PATH) Act, Renewable Energy, Solar Energy, Tax Credits, Wind Power

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US Supreme Court to Decide Fate of FCA’s Implied Certification Theory

Supreme Court grants certiorari in qui tam case to consider viability and scope of the “implied certification” theory of liability under the False Claims Act. On December 4, the US Supreme Court granted certiorari in…more

Certiorari, False Claims Act (FCA), Federal Contractors, Implied Certification, Qui Tam

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Recent Trends in Class Action and Aggregate Litigation in the Life Sciences Industry

Introduction - For the last several years, the life sciences industry has been fertile ground for class action and aggregate litigation. Developments in this area have driven several trends, including state consumer…more

Aggregation Rules, Antitrust Litigation, Class Action, Fraud, Life Sciences

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SEC Approves Rule to Regulate Debt Research Reports and Debt Research Analysts

Background - Eight years in the making, the US Securities and Exchange Commission (SEC) has finally approved the Financial Industry Regulatory Authority’s (FINRA's) proposed Rule 2242 (the Rule or Rule 2242), which will…more

Carve Out Provisions, Conflicts of Interest, Debt Securities, Disclosure Requirements, Due Diligence

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Potential Upstream Investment Under the New Iranian Petroleum Contract

The signing of the JCPOA regarding Iran nuclear sanctions may usher in a new era of major international investment in the Iranian oil and gas industry…more

Cost Recovery, Crude Oil, Energy Sector, Foreign Investment, IAEA

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IRS Publishes Final Regulations for Equivalency Determinations

Take note of these practical concerns for private foundations making grants to foreign organizations. On September 25, the Internal Revenue Service (IRS) published final regulations for private foundations making good faith…more

Affidavits, Equivalency Determinations, Final Rules, Foreign Charities, Good Faith

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Change to Civil and Commercial Proceedings | Procédure civile et commerciale

A new obligation requires parties to seek amicable resolution to a dispute before referring it to the court. A New Obligation Entered into Force on 1 April 2015 - Since 1 April 2015, parties to a civil or…more

Dispute Resolution, France

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CFPB Issues First Appellate Ruling

In affirming its own decision, the Consumer Financial Protection Bureau (CFPB) leaves few protections for targets in its administrative enforcement proceedings. If you are subject to a CFPB administrative proceeding, or…more

ALJ, Captive Insurance Company, CFPB, Enforcement, Enforcement Actions

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New Kazakhstan Law on Trade Unions and Amendments to the Labour Code

Under the new law, trade unions are limited and monitored. New Law No. 211-V of the Republic of Kazakhstan on Trade Unions, dated 27 June 2014, (the Law) has been adopted in Kazakhstan. The Law came into force on 11 July…more

New Regulations, Union Membership, Unions

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Publication of New Jersey Gender Equity Notice Triggers Obligations

On January 6, New Jersey employers must begin complying with new posting and notice requirements under the New Jersey Equal Pay Act. On December 11, the New Jersey Department of Labor and Workforce Development (NJDOL)…more

Compliance, DOL, Equal Pay, Gender Equity, Notice Requirements

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SEC Staff Issues Guidance on Mutual Fund Distribution Arrangements

Recently issued SEC staff guidance reminds mutual fund directors of their obligations to evaluate fund payments to financial intermediaries and emphasizes investment advisers’ and other service providers’ obligation to provide…more

Board of Directors, Guidance Update, Intermediaries, Investment Adviser, Investment Company Act of 1940

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DOL Clarifies FMLA Leave Entitlement for Same-Sex Spouses

In the wake of the Supreme Court's Windsor decision, employers should review and, if necessary, revise their FMLA policies and procedures to ensure compliance. The U.S. Department of Labor (DOL) recently clarified that…more

DOL, DOMA, FMLA, Marriage, Same-Sex Marriage

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"California Fair Pay Act" Becomes Law

The new law expands the equal pay requirement for men and women to "substantially similar work" regardless of location, modifies employers’ business justification defense, and increases employers’ recordkeeping obligations to…more

Anti-Retaliation Provisions, Appropriate Equitable Relief, Business Justification, Employee Handbooks, Equal Pay

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Felony Conviction Bars Whistleblower from Pursuing Qui Tam Case

A relator convicted of criminal conduct is precluded from sharing in related FCA recoveries, irrespective of degree of culpability. On July 16, a US Court of Appeals for the Ninth Circuit panel upheld the dismissal from a…more

Convictions, Criminal Investigations, DOE, False Claims Act (FCA), First Impression

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Select Broker-Dealer Enforcement Cases and Developments: 2014 Year in Review

This Outline highlights key U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) and Financial Industry Regulatory Authority (“FINRA”) enforcement developments and cases regarding broker dealers.* The SEC…more

Broker-Dealer, Enforcement, Enforcement Actions, Municipal Securities Issuers, SEC

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Year-End Legislation Important for Employers

The 2015 Cromnibus and the Tax Increase Prevention Act of 2014 solve some problems and raise others. On December 16, 2014, U.S. President Barack Obama signed the Consolidated and Further Continuing Appropriations Act of…more

Affordable Care Act, Appropriations Bill, ERISA, Expatriates, Health Insurance

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Treasury and IRS Release Notice 2015-54: Potential Impact on Domestic and Foreign Partnerships

The principal effect of the rules would be to turn virtually any contribution of appreciated property by a US person to a section 721(c) partnership into a taxable gain recognition event. On August 6, the US Treasury and…more

Controlled Foreign Corporations, Corporate Taxes, Foreign Entities, IRS, Partnerships

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New York City Earned Sick Time Act Expanded Before Taking Effect

The Act was recently amended to cover more New York City employers and to impose even greater compliance obligations than the original law passed in 2013…more

Employee Rights, Paid Leave, Sick Leave

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Checklist for Employers to Comply with New California Laws

Employers should take action to ensure compliance with new employment laws that take effect January 1, 2015. In September 2014, California Governor Jerry Brown signed more than 300 new laws, many of which may require…more

Employer Mandates, Employment Policies, New Legislation, Wage and Hour, Year-End Planning

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2015 Autumn Statement and Spending Review Released

The statement is tax light, but there is continued focus on carried interest. On 25 November, the UK Chancellor of the Exchequer George Osborne made a number of tax-related announcements in the 2015 Autumn Statement and…more

Autumn Statement, Common Reporting Standard (CRS), Employee Share Schemes, EU, FATCA

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FDA Ups the Ante on Inspections with New Administrative Detention Authority

New authority allows FDA inspectors to quickly detain products during inspections if they believe the products are misbranded or adulterated…more

FDA, Misbranding, Pharmaceutical Industry, Prescription Drugs

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Select Broker-Dealer, Investment Adviser, and Investment Company Enforcement Cases and Developments: 2013 Year in Review

Table of Contents: Executive Summary; U.S. Securities and Exchange Commission; and Financial Industry Regulatory Authority. Executive Summary - This Outline highlights key U.S. Securities and Exchange…more

Broker-Dealer, Enforcement Actions, FINRA, Investment Adviser, SEC

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SEC Proposes Requirements for Funds’ Use of Derivatives and Other Financial Transactions

If adopted, the proposed requirements would significantly alter funds’ ability to enter into derivatives and other financial transactions, present new operational challenges, expand reporting requirements, and impose new and…more

Board of Directors, Derivatives, Investment Companies, Proposed Regulation, Reporting Requirements

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Automotive News, 3/2014

This is the first issue of “Automotive News”, a regular update on current developments in the automotive industry, with a particular focus on Germany, published by Morgan Lewis’ automotive practice for clients and interested…more

Antitrust Provisions, Auto Manufacturers, Auto Parts, Automotive Industry, Joint Venture

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DOL Sends Fiduciary Rule to OMB for Review

DOL has indicated that the final rule will be released in the first half of the year. The US Department of Labor (DOL) sent its final Conflict of Interest Rule—Investment Advice (with related exemptions and amendments to…more

Broker-Dealer, Conflicts of Interest, DOL, ERISA, Fiduciary Duty

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FDA Draft Guidance Proposes Change to Combination Product Exclusivity Policy

New market exclusivity opportunities emerge for pharmaceutical companies. In draft guidance released by the Food and Drug Administration (FDA or the Agency) on February 24, 2014, the Agency proposed changes to its…more

Exclusive Dealing Agreements, FDA, Pharmaceutical Industry, Prescription Drugs

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Select Broker-Dealer Enforcement Cases and Developments: 2014 Year in Review

This Outline highlights key U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) and Financial Industry Regulatory Authority (“FINRA”) enforcement developments and cases regarding broker dealers.* The SEC…more

Broker-Dealer, Enforcement, Enforcement Actions, Municipal Securities Issuers, SEC

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