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Orrick, Herrington & Sutcliffe LLP

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Patricia Alberts

Discoverability of Social Networking

Two recent employment discrimination cases, though differing in their outcomes, make it clear to litigants that information posted on social networking sites (“SNS”) is fair game. …more

Discoverable, Discrimination, Facebook

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Stephanie Albrecht

EEOC Releases Its Strategic Enforcement Plan

On December 17, 2012, the EEOC released its Strategic Enforcement Plan. As previously reported, the EEOC released the draft SEP for public comment on September 4, 2012, with a plan to vote on and implement it by October 1…more

Anti-Retaliation Provisions, Discrimination, EEOC, Equal Pay, Hiring & Firing

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William Alderman

Say Hello To My Imaginary Friend! Judge Posner, Seventh Circuit Issue Stern Warning To Plaintiffs’ Firms For Again Citing Bogus Confidential Witnesses

Plaintiffs’ counsel beware: to avoid Rule 11 sanctions you might actually have to talk to “confidential witnesses” yourself and corroborate their statements before citing them in a securities fraud complaint…more

Confidential Witnesses, Discovery, Pleadings, Rule 11, Securities Fraud

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Mona Amer

Internal Investigation Fees Awarded To Goldman Sachs

On Monday, February 25, Goldman Sachs won its bid to force former director Rajat K. Gupta to pay legal fees it incurred while investigating Gupta’s insider trading activities. In October 2012, Gupta was sentenced to two years in…more

Attorney's Fees, Goldman Sachs, Internal Investigations, Mandatory Victim's Restitution Act, Morgan Stanley

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Melissa J. Anderson

Where There’s Smoke, There’s FIRREA

Few can ignite a legal firestorm like U.S. District Judge Jed Rakoff of the Southern District of New York. Last week, in a mortgage fraud suit against Bank of America and Countrywide, Judge Rakoff refused to dismiss a novel…more

Bank of America, Countrywide, Fannie Mae, FIRREA, Freddie Mac

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Daniela Andreatta

Le Sezioni Unite Indirizzano I Giudici Sul Concordato Preventivo

Il concordato preventivo è stato oggetto di molte riforme dal 2005 ad oggi e con l’ultima in ordine cronologico (D.L. 22 giugno 2012 n.83) ha subìto uno slancio inaspettato grazie al nuovo istituto del cosiddetto “concordato con…more

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Michael Aparicio

OFCCP Rescinds Prior Guidance on Compensation Discrimination Analysis In Favor of a Case-by-Case Approach

Effective February 28, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) rescinded two 2006 guidance documents concerning how the OFCCP and federal contractors analyze potential pay discrimination. This change…more

Audits, Contractors, Discrimination, OFCCP, Wages

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Joy Araman

New Trade Secret Legislation in France? Mais oui bien sûr!

If your trade secrets get stolen in France, what protections would you have? Most U.S. trade secret lawyers don’t have occasion to consider trade secret laws outside the United States, but there’s a whole world beyond the…more

Misappropriation, Trade Secrets

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Kevin Askew

News Of The (Shareholder Derivative) World: Record-High $139 Million Settlement In News Corp. Phone Hacking Suit

Putting an end to shareholder derivative litigation arising from News Corp.’s phone-hacking scandal, the company’s directors agreed last week to a record-breaking $139 million cash settlement. According to the plaintiffs’…more

Derivative Suit, News Corp, Phone-Hacking Scandal, Settlement

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Justin Bagdady

Making A Statement: The Two Faces Of Janus In The SDNY

Almost two years after the Supreme Court issued its momentous decision in Janus Capital Group, Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011), lower courts continue to reach significantly different conclusions…more

Investment Adviser, Rule 10b-5, SEC

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Melanie Ball

The Extra-territorial Reach of the Broker-Dealer Registration Requirements Under the U.S. Securities Exchange Act of 1934; the Staff of the Securities and Exchange Commission Addresses Frequently Asked Questions Regarding Rule 15a-6 and Foreign Broker-Dealers

Background. Rule 15a-6 under the Securities Exchange Act of 1934 (“Rule 15a-6”) provides conditional exemptions from broker-dealer registration for “foreign broker-dealers” that engage in certain specified activities involving…more

Broker-Dealer, Foreign Broker-Dealers, Investors, Rule 15a-6, SEC

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Kristen Bartlett

Delaware Supreme Court Says No To Botox And No To Multi-Forum Litigation: Court Dismisses Derivative Suit Against Botox-Maker Allergan, Inc.

In a recent decision, the Delaware Supreme Court reversed the Court of Chancery in Pyott, et al. v. Louisiana Mun. Police Emp. Ret. Sys., et al., holding that a derivative suit against Botox-maker Allergan, Inc. should be…more

Botox, Class Action, Collateral Estoppel, Derivative Suit, Multidistrict Litigation

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Lily Becker

Delaware Supreme Court Says No To Botox And No To Multi-Forum Litigation: Court Dismisses Derivative Suit Against Botox-Maker Allergan, Inc.

In a recent decision, the Delaware Supreme Court reversed the Court of Chancery in Pyott, et al. v. Louisiana Mun. Police Emp. Ret. Sys., et al., holding that a derivative suit against Botox-maker Allergan, Inc. should be…more

Botox, Class Action, Collateral Estoppel, Derivative Suit, Multidistrict Litigation

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Robert Benson

The Global Impact of Recent Developments in the U.S. Law of Patent Exhaustion Since Quanta, Particularly on Japanese Corporations

Patent Exhaustion or “First Sale Doctrine” Under U.S. law, once an unrestricted, authorized sale of a patented article occurs, a patent holder cannot assert a claim for patent infringement based on the subsequent use or sale of…more

Authorized Sales, Conditioned Sales, First Sale Doctrine, Incomplete Articles, Patents

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Penelope Graboys Blair

Record SEC Settlement In S.A.C. Capital Investigation. Well….Kind Of

On April 16, 2013, Judge Victor Marrero conditionally approved a $600 million consent judgment between the SEC and CR Intrinsic Investors LLC (“CR”) where CR “neither admitted nor denied” the allegations brought against it. The…more

CR Intrinsic Investors, Insider Trading, SAC Capitol Advisors, SEC, Settlement

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Devin Brennan

Water and Wastewater Projects: Financing with Tax-Exempt Bonds

Introduction - Managers of water and wastewater utilities face complex financial challenges. The purpose of this guidebook is to provide an overview of issues relating to the financing of water and wastewater projects in…more

Arbitrage, Capital Expenditures, Debt, Financial Adviser, Financing

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Andrea Brown

“Picking Off” Plaintiffs in FLSA Collective Actions: Genesis HealthCare Corp. v. Symczyk

Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that hold…more

Collective Actions, FLSA, Genesis HealthCare, Genesis Healthcare Corp. v. Symczyk, Mootness

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Chris Brown

Party Foul! NLRB Orders Reinstatement and Back Pay for Party Bus Guide After Finding Facebook Postings Amount To Protected Union Organizing Activity

Providing yet another example of how online social networking can amount to protected conduct under the National Labor Relations Act, the NLRB ruled earlier this month in New York Party Shuttle, LLC and Fred Pflantzer, CN:…more

Back Pay, Facebook, NLRA, NLRB, Protected Concerted Activity

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Victoria V. Bryxa

Doing business, or thinking about investing, in Russia? Recent changes to the Russian Civil Code

In This Presentation: 1. Why were changes needed? 2. How are things changing? 3. The process of change 4. Amendments in place now 5. What is still to change? - 2nd Draft Amendment - 3rd Draft…more

Covenant of Good Faith and Fair Dealing, Creditors, Debtors, Dmitry Medvedev, Escrow Acconts

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James W. Burke

Best Buy Bankruptcy Ahead?

In November 2008, Circuit City filed for bankruptcy protection. Circuit City had the same business model as Best Buy: selling electronic equipment in large retail stores. Other retailers with that business model are finding…more

Best Buy, Circuit City, Debtor-Creditor, Electronics, Insolvency

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Jim Burns Jr.

SEC And FBI Try To Ketchup To Heinz Insider Traders

In the latest development in an SEC lawsuit filed Friday, February 15, U.S. District Judge Rakoff extended a freeze on a Swiss Goldman Sachs account linked to possible insider trading in H.J. Heinz Company call options. The…more

Acquisitions, Aiding and Abetting, Board of Directors, Derivative Suit, FBI

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Giovanni Carotenuto

The Extra-territorial Reach of the Broker-Dealer Registration Requirements Under the U.S. Securities Exchange Act of 1934; the Staff of the Securities and Exchange Commission Addresses Frequently Asked Questions Regarding Rule 15a-6 and Foreign Broker-Dealers

Background. Rule 15a-6 under the Securities Exchange Act of 1934 (“Rule 15a-6”) provides conditional exemptions from broker-dealer registration for “foreign broker-dealers” that engage in certain specified activities involving…more

Broker-Dealer, Foreign Broker-Dealers, Investors, Rule 15a-6, SEC

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Steve Chariyasatit

California Court of Appeal Overturns $1.3 Million in Damages and Attorneys’ Fees against Lucasfilm for Failure to Give Instruction on Business Judgment

On December 10, 2012, in Veronese v. Lucasfilm Ltd., a California Court of Appeal overturned a Marin County jury’s verdict against Lucasfilm based on its finding that several errors in jury instructions prejudicially affected…more

Appeals, Business Judgment Rule, Discrimination, Failure To Hire, FEHA

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I. Neel Chatterjee

FTC-Google Consent Decree Provides Important Lessons Regarding Standards-Essential Patents

On January 3, 2013, the Federal Trade Commission (FTC) entered into a Consent Decree with Google Inc. (“Google”) and its wholly owned subsidiary Motorola Mobility LLC (“Motorola”). The decree settles allegations that Google and…more

Competition, FRAND, FTC, Google, Licenses

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Gino Cheng

Therasense Revisited: In re Rosuvastatin Calcium Patent Litigation

In the United States, patent applicants and their counsel owe a duty of candor and good faith to the Patent Office. This duty is breached when the applicant or its counsel knowingly fails to disclose material prior art…more

Deceptive Intent, Disclosure Requirements, Failure to Report, Patent Litigation, Patents

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Seung Chong

China 20/20 Legal Regulatory Developments - February 2013

In This Issue: - The Decision of the Standing Committee of the National People's Congress on Revising the Labor Contract Law of the People's Republic of China Released - MOFCOM Solicits for Public Comments on the…more

China, Foreign Jurisdictions, Foreign-Related Civil Relationships, Investment Funds, Law On Application Of Laws

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Julian Chung

In Fontainebleau Appeal, Eleventh Circuit Confirms That Term Lenders Lack Standing To Enforce Revolving Lenders’ Commitments

Last week, the Eleventh Circuit Court of Appeals held that lenders in syndicated credit facilities do not have standing to enforce the funding commitment that other lenders owe to the borrower in the absence of specific…more

Appeals, Article III, Borrowers, credit, Injury-in-Fact

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Harry Clark

International Trade & Compliance - April 2013

The U.S. State and Commerce Departments have published amendments to the International Traffic in Arms Regulations (“ITAR”) and Export Administration Regulations (“EAR”) as a major step in implementing changes to export controls…more

Barack Obama, Export Administration Regulations, Export Controls, Exports, ITAR

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Sarah Armstrong Coats

2013 Updates to the FEHA California Pregnancy Regulations

Amendments to California’s pregnancy regulations became effective on December 30, 2012, creating many new responsibilities for employers. While employers should take note of all of the amended regulations, some of the most…more

CFRA, Disability, Discrimination, FEHA, Medical Leave

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Rachel Coe

SEC Releases First Full-Year Report on the Dodd-Frank Whistleblower Program: No Speedy Recoveries for Whistleblowers

On November 15, 2012, the Securities and Exchange Commission released its Fiscal Year 2012 Annual Report on the Dodd-Frank Whistleblower Program (the “Report”), the first full-year report issued since the enactment of…more

Dodd-Frank, SEC, Whistleblowers

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Robert Cohen

SEC v. Hackers: More Cybersecurity Enforcement On The Horizon?

Cybersecurity may be the SEC’s newest area for enforcement actions. While the SEC first released Disclosure Guidance concerning cybersecurity in 2011, the recent media attention surrounding significant cybersecurity breaches at…more

Class Action, Cybersecurity, Data Protection, Disclosure Requirements, SEC

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Elizabeth Cole

China 20/20 Legal Regulatory Developments - February 2013

In This Issue: - The Decision of the Standing Committee of the National People's Congress on Revising the Labor Contract Law of the People's Republic of China Released - MOFCOM Solicits for Public Comments on the…more

China, Foreign Jurisdictions, Foreign-Related Civil Relationships, Investment Funds, Law On Application Of Laws

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Monte Cooper

CLS Bank: A Deeply Divided En Banc Federal Circuit Fails to Rule When Computer Claims are Invalid Under 35 U.S.C. § 101

On May 10, 2013, the en banc Federal Circuit issued its highly anticipated decision in CLS Bank Int’l v. Alice Corp. Pty. Ltd., No. 2011-1301, concerning whether computer-implemented method and system claims are patent eligible…more

Computer-Related Inventions, Infringement, Patent-Eligible Subject Matter, Patents

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Daniel Corbett

Texas Insiders Say Businesses Champing At The Bit For New Trade Secrets Law To Take Effect

For decades, Texas was the wild west of trade secrets law, governed by the state’s outdated common law with no trade secrets statute on the books…more

New Legislation, Trade Secrets, Uniform Trade Secrets Acts

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Matthew Craner

Delaware Supreme Court Says No To Botox And No To Multi-Forum Litigation: Court Dismisses Derivative Suit Against Botox-Maker Allergan, Inc.

In a recent decision, the Delaware Supreme Court reversed the Court of Chancery in Pyott, et al. v. Louisiana Mun. Police Emp. Ret. Sys., et al., holding that a derivative suit against Botox-maker Allergan, Inc. should be…more

Botox, Class Action, Collateral Estoppel, Derivative Suit, Multidistrict Litigation

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Kelly Cullen

Supreme Court Eliminates Jurisdictional Escape Hatch To The Class Action Fairness Act

The U.S. Supreme Court’s decision in Standard Fire Insurance Co. v. Knowles confirms that a plaintiff cannot avoid federal jurisdiction under the Class Action Fairness Act (“CAFA”) by stipulating that the class will seek less…more

Amount in Controversy, CAFA, Class Action, Class Certification, Damages

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Lauri A. Damrell

Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children

The ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims; it also broadened the scope of FMLA leave that employees may take to care for their adult children. On January 14, 2013, the…more

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Don Daybell

USPTO Inter Partes Review Update: Scope of Discovery

In Garmin Int’l Inc. v. Cuozzo Speed Technologies, LLC, Case No. IPR2012-00001 (PTAB March 5, 2013), the USPTO recently issued its first-ever substantive ruling on a motion for additional discovery in an Inter Partes review…more

Discovery, Inter Partes Review Proceedings, Patents, USPTO

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Alessandro De Nicola

D.Lgs. 231/2001 - Aggiornamento Normativo E Giurisprudenziale

Si riporta di seguito una breve rassegna dei provvedimenti maggiormente significativi in materia di responsabilità amministrativa degli enti ex D.Lsg. 231/2001. ENTI STRANIERI - TRIBUNALE DI MILANO – Sent. n. 13976/12…more

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Josh Deitz

SEC Considering More Stringent Requirements For Cybersecurity Disclosures In The Wake Of Stock Manipulating Hacking Case

Following up on clues earlier this year that the SEC may increase its scrutiny of cybersecurity disclosures, SEC Chairman Mary Jo White has asked the Commission to evaluate current guidance for cybersecurity disclosures and to…more

Cybersecurity, Disclosure Requirements, Hackers, Mary Jo White, SEC

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Mike Delikat

Orrick World: A Quarterly Report of Global Employment Law Issues for Multinationals - February 2013

In This Issue: - Asia Employment Law Update - France Employment Law Update - UK Employment Law Update - United States Employment Law Update…more

China, Chinese Labor Contract Laws, Data Protection, Discrimination, EEOC

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Anne Diedrich

Germany: Have Rejected Job Applicants the Right to Know the Reasons for Not Getting the Job

Recently, the German Federal Labor Court (Bundesarbeitsgericht “BAG”) rendered a decision which had been awaited with interest by German employers (BAG, April 25, 2013 – 8 AZR 287/08) with regard to information rights of…more

Discrimination, EU, European Court of Justice, Job Applicants

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Sara Dionne

Supreme Court Eliminates Jurisdictional Escape Hatch To The Class Action Fairness Act

The U.S. Supreme Court’s decision in Standard Fire Insurance Co. v. Knowles confirms that a plaintiff cannot avoid federal jurisdiction under the Class Action Fairness Act (“CAFA”) by stipulating that the class will seek less…more

Amount in Controversy, CAFA, Class Action, Class Certification, Damages

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Ihsan Dogramaci

The Revolving Door Spins Again

On January 24, President Obama announced his nominee for Chairman of the Securities Exchange Commission – Mary Jo White, a former United States Attorney for the Southern District of New York…more

Barack Obama, Mary Jo White, SEC

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James Drury-Smith

Privacy, Data Security and Internet Safety Alert: Tough New EU Data Protection Proposals Edge Closer

On Jan. 10, 2013, Jan Philipp Albrecht, the European Parliament’s Rapporteur, presented his report on the European Commission’s proposals for a new General Data Protection Regulation (GDPR). With his recommendations, data…more

Data Collection, Data Protection, EU, EU Data Protection Laws, Internet

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Edward Eisert

The New CFTC Regulatory Regime For Private Fund Managers; First Quarter 2013 Update

The enactment of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and its implementation by the Commodity Futures Trading Commission (“CFTC”) has ushered in a new era of…more

CFTC, Commodities Exchange Act, Dodd-Frank, Exempt Organizations, Major Swap Participants

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Robert Feyer

The SEC Says Cities (And City Officials!) Must Obey Securities Laws, Too

Yesterday the SEC filed an Order Instituting Cease and Desist Proceedings against the City of Harrisburg, Pennsylvania for violations of Rule 10b-5. The City consented to entry of a Cease and Desist Order…more

Disclosure Requirements, Municipalities, Public Disclosure, Public Employees, Rule 10b-5

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Joseph Frank

In Fontainebleau Appeal, Eleventh Circuit Confirms That Term Lenders Lack Standing To Enforce Revolving Lenders’ Commitments

Last week, the Eleventh Circuit Court of Appeals held that lenders in syndicated credit facilities do not have standing to enforce the funding commitment that other lenders owe to the borrower in the absence of specific…more

Appeals, Article III, Borrowers, credit, Injury-in-Fact

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James Freedman

The Ninth Circuit Clarifies Safe Harbor Rules in Veoh Victory

Last week, the Ninth Circuit further clarified the scope of the Digital Millennium Copyright Act’s (“DMCA”) safe harbor provision for online content providers. See UMG Recordings, Inc. v. Shelter Capital Partners LLC, No…more

Copyright, DCMA, Infringement, Safe Harbors, Veoh

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Arno Frings

Germany: Have Rejected Job Applicants the Right to Know the Reasons for Not Getting the Job

Recently, the German Federal Labor Court (Bundesarbeitsgericht “BAG”) rendered a decision which had been awaited with interest by German employers (BAG, April 25, 2013 – 8 AZR 287/08) with regard to information rights of…more

Discrimination, EU, European Court of Justice, Job Applicants

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Rick Gallagher

What’s The Right Way To Respond To A Shareholder Books And Records Request?

Delaware law gives shareholders the right to request corporate books and records in order to investigate issues that are of interest to them…more

Corporate Records, Shareholder Rights

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William George

Employee Shareholder Status – An Innovative Solution for Innovative Employers?

After twice rejecting the Government’s proposals, the House of Lords has just finally voted to accept the much argued Clause 27 of the Growth and Infrastructure Bill, thereby paving the way for new legislation that will create a…more

Employee Shareholders, EU, Shareholders

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Allison Riechert Giese

Three More States Hop on the Social Media Legislation Bandwagon

Act 1480, signed by Governor Mike Beebe on April 22, 2013, prohibits an Arkansas employer from requiring or requesting a current or prospective employee to (1) disclose his or her username or password for a personal social media…more

Hiring & Firing, Job Applicants, Passwords, Social Media

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Pat Gillette

Required Extension of Statutory Pregnancy Leave as a Reasonable Accommodation

In a case of first impression, the Second Appellate District in California, recently took an expansive view of pregnancy leave rights for employees. Under California’s Pregnancy Disability Leave Law (“PDLL”), employees disabled…more

ADA, CFRA, Disability, FEHA, Pregnancy

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Beth Goldman

New Trademark Clearinghouse an Important Tool for Trademark Owners as New Generic Top-Level Domains Prepare to Launch

Starting on March 26, 2013, there will be an important new tool available to help trademark owners combat unauthorized uses of their trademarks in domain names as more than 1,000 new generic top-level domains (“gTLDs”) prepare…more

Brand, gTLD, Trademark Clearinghouse, Trademarks

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Valerie Goo

I Thought We Broke Up Years Ago! Why You Should “Throw Out” Trade Secrets As Soon As A Business Relationship Ends

The Fifth Circuit’s affirmance last week of a $44.4 million trade secrets award in the Wellogix v. Accenture case is a weighty reminder of the power of circumstantial evidence in trade secrets cases, and the importance of…more

Accenture, Confidential Information, Established Business Relationship, Trade Secrets

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Rachel Gould

Orrick's Global Real Estate Roundup - February 2013

As we look back on a busy fourth quarter 2012 that saw a flurry of deal closings in the final weeks of the year for core and value-added commercial properties in the US, an active transaction pipeline is already ramping up for…more

CMBS, Commercial Real Estate Market, Foreign Investment, Fund Formation, REIT

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Evelyn Grant

The New CFTC Regulatory Regime For Private Fund Managers; First Quarter 2013 Update

The enactment of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and its implementation by the Commodity Futures Trading Commission (“CFTC”) has ushered in a new era of…more

CFTC, Commodities Exchange Act, Dodd-Frank, Exempt Organizations, Major Swap Participants

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George E. Greer

In The SDNY, Hindsight Is No Substitute For Red Flags When Alleging Scienter

On April 8, 2013, Judge Shira A. Scheindlin of the Southern District of New York granted auditor Deloitte Touche Tohmatsu CPA’s (“DTTC”) motion to dismiss a shareholder class action, finding that plaintiffs failed to…more

Auditors, Class Action, Material Misstatements, Rule 10b-5, Scienter

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James Grohsgal

News Of The (Shareholder Derivative) World: Record-High $139 Million Settlement In News Corp. Phone Hacking Suit

Putting an end to shareholder derivative litigation arising from News Corp.’s phone-hacking scandal, the company’s directors agreed last week to a record-breaking $139 million cash settlement. According to the plaintiffs’…more

Derivative Suit, News Corp, Phone-Hacking Scandal, Settlement

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Dmitry Gubarev

Doing business, or thinking about investing, in Russia? Recent changes to the Russian Civil Code

In This Presentation: 1. Why were changes needed? 2. How are things changing? 3. The process of change 4. Amendments in place now 5. What is still to change? - 2nd Draft Amendment - 3rd Draft…more

Covenant of Good Faith and Fair Dealing, Creditors, Debtors, Dmitry Medvedev, Escrow Acconts

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Christine Guillot-Bouhours

Orrick World: A Quarterly Report of Global Employment Law Issues for Multinationals - February 2013

In This Issue: - Asia Employment Law Update - France Employment Law Update - UK Employment Law Update - United States Employment Law Update…more

China, Chinese Labor Contract Laws, Data Protection, Discrimination, EEOC

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Jonathan P. Guy

Best Buy Bankruptcy Ahead?

In November 2008, Circuit City filed for bankruptcy protection. Circuit City had the same business model as Best Buy: selling electronic equipment in large retail stores. Other retailers with that business model are finding…more

Best Buy, Circuit City, Debtor-Creditor, Electronics, Insolvency

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Charles Ha

Texas Court Rules that Regardless of Fault, CEOs and CFOs Will Have to Pay Up Under Sarbanes-Oxley Section 304

A Texas federal judge denied defendants ArthoCare CEO Michael A. Baker and CFO Michael T. Gluk’s motion to dismiss the SEC’s claim against them under Sarbanes-Oxley (“SOX”) Section 304’s clawback provision. Section 304 requires…more

Clawback Agreements, Sarbanes-Oxley, SEC, Section 304

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Nancy Harris

Policy Observer - January 2013

It has been nearly three months since Superstorm Sandy battered the East Coast of the United States. With several hundred thousand residents still without homes and many businesses still operating out of temporary facilities, it…more

Agents, Amended Complaints, Brokers, Chinese Drywall, Deductibles

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Lynne Hermle

“Picking Off” Plaintiffs in FLSA Collective Actions: Genesis HealthCare Corp. v. Symczyk

Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that hold…more

Collective Actions, FLSA, Genesis HealthCare, Genesis Healthcare Corp. v. Symczyk, Mootness

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Ken Herzinger

Texas Court Rules that Regardless of Fault, CEOs and CFOs Will Have to Pay Up Under Sarbanes-Oxley Section 304

A Texas federal judge denied defendants ArthoCare CEO Michael A. Baker and CFO Michael T. Gluk’s motion to dismiss the SEC’s claim against them under Sarbanes-Oxley (“SOX”) Section 304’s clawback provision. Section 304 requires…more

Clawback Agreements, Sarbanes-Oxley, SEC, Section 304

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Christopher Higgins

District Court Judge Enjoins Standards-Essential Patent Owner From Enforcing ITC Exclusion Order

In a growing body of legal authority regarding standards-essential patents (SEPs), Northern District of California Judge Ronald Whyte ruled Monday that an owner of SEPs violated its licensing commitments by initiating a U.S…more

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Trish Higgins

OFCCP Rescinds Prior Guidance on Compensation Discrimination Analysis In Favor of a Case-by-Case Approach

Effective February 28, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) rescinded two 2006 guidance documents concerning how the OFCCP and federal contractors analyze potential pay discrimination. This change…more

Audits, Contractors, Discrimination, OFCCP, Wages

See All Updates »

Christin Hill

Say Hello To My Imaginary Friend! Judge Posner, Seventh Circuit Issue Stern Warning To Plaintiffs’ Firms For Again Citing Bogus Confidential Witnesses

Plaintiffs’ counsel beware: to avoid Rule 11 sanctions you might actually have to talk to “confidential witnesses” yourself and corroborate their statements before citing them in a securities fraud complaint…more

Confidential Witnesses, Discovery, Pleadings, Rule 11, Securities Fraud

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Brad Hillson

Employers Beware: Post-termination Whistleblowing

In the recent case of Onyango v. Berkeley Solicitors, the UK Employment Appeal Tribunal ruled that an employee was allowed to bring a ‘whistleblowing’ claim relating to a protected disclosure that was made after the termination…more

Adverse Employment Action, Hiring & Firing, Termination, Whistleblowers

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Lutz Hoheisel

Germany: Have Rejected Job Applicants the Right to Know the Reasons for Not Getting the Job

Recently, the German Federal Labor Court (Bundesarbeitsgericht “BAG”) rendered a decision which had been awaited with interest by German employers (BAG, April 25, 2013 – 8 AZR 287/08) with regard to information rights of…more

Discrimination, EU, European Court of Justice, Job Applicants

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Aubry Holland

Required Extension of Statutory Pregnancy Leave as a Reasonable Accommodation

In a case of first impression, the Second Appellate District in California, recently took an expansive view of pregnancy leave rights for employees. Under California’s Pregnancy Disability Leave Law (“PDLL”), employees disabled…more

ADA, CFRA, Disability, FEHA, Pregnancy

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Steven Hong

Inside Out: NASDAQ Proposes Rule To Require Internal Auditing

The NASDAQ Stock Market recently submitted a proposed rule change that would require all companies listed on the NASDAQ to maintain an internal audit function. The function would “provide management and the audit committee with…more

Audits, Internal Audit Functions, Nasdaq, Risk Management

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Maurice Hoo

Further Guidance on Pre-IPO Investments from the Hong Kong Stock Exchange

Introduction - It is common for financial investors such as private equity funds and hedge funds to invest in unlisted securities of private companies (e.g., through the subscription of convertible debt instruments,…more

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Elizabeth Howard

It’s Not Just Boilerplate! Best practices for drafting collaboration agreements to protect your IP

In This Presentation: - 1. The collaboration conundrum - 2. The Tekmira case: a cautionary tale Outline - 3. Best practices for drafting specific provisions Please see full presentation below for more…more

Boilerplate Language, Confidentiality Agreements, License Agreements, Non-Disclosure Agreement, Patents

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Robert Isackson

CLS Bank: A Deeply Divided En Banc Federal Circuit Fails to Rule When Computer Claims are Invalid Under 35 U.S.C. § 101

On May 10, 2013, the en banc Federal Circuit issued its highly anticipated decision in CLS Bank Int’l v. Alice Corp. Pty. Ltd., No. 2011-1301, concerning whether computer-implemented method and system claims are patent eligible…more

Computer-Related Inventions, Infringement, Patent-Eligible Subject Matter, Patents

See All Updates »

Kristen Jacoby

Prisoner 24601 May Report For Duty, Says the EEOC

Can the EEOC require employers to hire convicted criminals? Last April, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a policy guideline that calls into question the extent to which employers can incorporate a…more

Criminal Background Checks, Criminal Records, EEOC, Employer Liability Issues, Hiring & Firing

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Alexander Janes

Doing business, or thinking about investing, in Russia? Recent changes to the Russian Civil Code

In This Presentation: 1. Why were changes needed? 2. How are things changing? 3. The process of change 4. Amendments in place now 5. What is still to change? - 2nd Draft Amendment - 3rd Draft…more

Covenant of Good Faith and Fair Dealing, Creditors, Debtors, Dmitry Medvedev, Escrow Acconts

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Jay Jurata

District Court Judge Enjoins Standards-Essential Patent Owner From Enforcing ITC Exclusion Order

In a growing body of legal authority regarding standards-essential patents (SEPs), Northern District of California Judge Ronald Whyte ruled Monday that an owner of SEPs violated its licensing commitments by initiating a U.S…more

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Tony Katz

The Extra-territorial Reach of the Broker-Dealer Registration Requirements Under the U.S. Securities Exchange Act of 1934; the Staff of the Securities and Exchange Commission Addresses Frequently Asked Questions Regarding Rule 15a-6 and Foreign Broker-Dealers

Background. Rule 15a-6 under the Securities Exchange Act of 1934 (“Rule 15a-6”) provides conditional exemptions from broker-dealer registration for “foreign broker-dealers” that engage in certain specified activities involving…more

Broker-Dealer, Foreign Broker-Dealers, Investors, Rule 15a-6, SEC

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David Keenan

Inside Out: NASDAQ Proposes Rule To Require Internal Auditing

The NASDAQ Stock Market recently submitted a proposed rule change that would require all companies listed on the NASDAQ to maintain an internal audit function. The function would “provide management and the audit committee with…more

Audits, Internal Audit Functions, Nasdaq, Risk Management

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Antony Kim

FTC Assesses $800,000 Fine Against Mobile App Operator and Issues Mobile Privacy and Security Guidance

The Federal Trade Commission has emphasized in the past that general privacy protections in the website space apply equally to mobile services, but a new FTC Staff Report released on Friday hones in on some privacy…more

Address Book, App Developers, COPPA, Data Collection, Data Protection

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Susanne Klaric

The Final Geithner Tally: TARP Bailout Pays Big Dividends For Taxpayers

As U.S. Secretary of Treasury Timothy Geithner steps down, Treasury released a January 18, 2012 update on the Troubled Asset Relief Program (“TARP”). This most recent update highlights an often misunderstood reality — Geithner’s…more

AIG, Bailout, TARP, U.S. Treasury

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Stephen Knaster

SEC Considering More Stringent Requirements For Cybersecurity Disclosures In The Wake Of Stock Manipulating Hacking Case

Following up on clues earlier this year that the SEC may increase its scrutiny of cybersecurity disclosures, SEC Chairman Mary Jo White has asked the Commission to evaluate current guidance for cybersecurity disclosures and to…more

Cybersecurity, Disclosure Requirements, Hackers, Mary Jo White, SEC

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Jim Kramer

What Makes A Director “Independent”?

What makes a director “independent”? That question is important, not only to investors who want to ensure that boards of directors exercise objective judgment on corporate affairs, but also to companies, who need assurance that…more

Directors, Nasdaq, NYSE, Shareholders

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Catherine Morris Krow

Nanotechnology And Asbestos: Informing Industry’s Approach To Carbon Nanotubes, Nanoscale Titanium Dioxide, And Nanosilver

With greater knowledge comes greater responsibility, and greater liability. When it comes to nanotechnology, our ability to understand the potential risks is unprecedented, thanks in part to the asbestos mass tort experience. If…more

Asbestos, Nanotechnology, Risk Mitigation

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Judy Kwan

The Revolving Door Spins Again

On January 24, President Obama announced his nominee for Chairman of the Securities Exchange Commission – Mary Jo White, a former United States Attorney for the Southern District of New York…more

Barack Obama, Mary Jo White, SEC

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Douglas Lahnborg

Private Actions in Competition Law: The UK Government announces "opt-out" class actions for private competition damages claims

On 20 March 2013, George Osborne delivered his Budget to Parliament. The Government announced that in summer 2013 it will proceed with several of the competition reforms outlined in its recent response to the Department for…more

Class Action, Competition Appeal Tribunal, EU, Opt-Outs, Private Competition Damages

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Frederic Lalance

New Trade Secret Legislation in France? Mais oui bien sûr!

If your trade secrets get stolen in France, what protections would you have? Most U.S. trade secret lawyers don’t have occasion to consider trade secret laws outside the United States, but there’s a whole world beyond the…more

Misappropriation, Trade Secrets

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Marine Lallemond

New Trade Secret Legislation in France? Mais oui bien sûr!

If your trade secrets get stolen in France, what protections would you have? Most U.S. trade secret lawyers don’t have occasion to consider trade secret laws outside the United States, but there’s a whole world beyond the…more

Misappropriation, Trade Secrets

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Emily Lamond

EPA Clarifies "Innocent Tenant" Liability Under CERCLA

Recent EPA guidance imposes new environmental due diligence and compliance requirements on prospective commercial and industrial tenants. The guidance purports to clarify an exemption from liability, but actually confirms that…more

CERCLA, Commercial Leases, Compliance, Due Diligence, EPA

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A. Cory Lankford

FERC Proposes Reforms to Facilitate Small Generator Interconnections

On January 17, 2013, the Federal Energy Regulatory Commission (FERC) issued a notice of proposed rulemaking (NOPR) proposing reforms to the pro forma Small Generator Interconnection Procedures (SGIP) and the Small Generator…more

FERC, Interconnections, NOPR, SGIA, SGIP

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Alex Lathrop

Policy Observer - January 2013

It has been nearly three months since Superstorm Sandy battered the East Coast of the United States. With several hundred thousand residents still without homes and many businesses still operating out of temporary facilities, it…more

Agents, Amended Complaints, Brokers, Chinese Drywall, Deductibles

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Byron Lau

Put up your Dukes! Supreme Court Clarifies that Damages Must be Capable of Class Wide Resolution in Rule 23(b)(3) Class Actions the United States Supreme Court’s Recent Ruling in Comcast Corp. v. Behrend

The United States Supreme Court’s recent ruling in Comcast Corp. v. Behrend, Case No. 11-864 (March 27, 2013) reinforces class certification requirements as spelled out in Wal-Mart v. Dukes. However, the closely divided court…more

Class Action, Class Certification, Comcast, Comcast v. Behrend, Damages

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Robert Lawrence

EPA Clarifies "Innocent Tenant" Liability Under CERCLA

Recent EPA guidance imposes new environmental due diligence and compliance requirements on prospective commercial and industrial tenants. The guidance purports to clarify an exemption from liability, but actually confirms that…more

CERCLA, Commercial Leases, Compliance, Due Diligence, EPA

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Matthew Lawson

Private Actions in Competition Law: The UK Government announces "opt-out" class actions for private competition damages claims

On 20 March 2013, George Osborne delivered his Budget to Parliament. The Government announced that in summer 2013 it will proceed with several of the competition reforms outlined in its recent response to the Department for…more

Class Action, Competition Appeal Tribunal, EU, Opt-Outs, Private Competition Damages

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Sally Lee

Time For The White House To Step In? Patchwork State Fracking Regulations Will Spawn FOIA And Trade Secrets Lawsuits

With a growing number of states demanding disclosure of its fracking recipes, the oil and gas industry is fighting to plug what it views as government-mandated leaks in its trade secrets pipeline…more

Disclosure, FOIA, Fracking, Trade Secrets

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Giovanni Leoni

Il Fisco Britannico Mette In Rete La Lista Degli Evasori Fiscali

Qualche giorno fa la Agenzia delle Entrate inglese, ovvero la Her Majesty’s Revenue & Customs, ha postato sul proprio sito l’elenco dei tax defaulters accertati alla data del 21 febbraio 2013. La notizia ha suscitato un…more

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Joe Liburt

2013 Updates to the FEHA California Pregnancy Regulations

Amendments to California’s pregnancy regulations became effective on December 30, 2012, creating many new responsibilities for employers. While employers should take note of all of the amended regulations, some of the most…more

CFRA, Disability, Discrimination, FEHA, Medical Leave

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Justin Lichterman

In The Wake Of Gabelli, SEC Voluntarily Dismisses Follow-On Cert. Petition

Today, the Solicitor General filed a motion asking the Supreme Court to dismiss the Securities and Exchange Commission’s petition for a writ of certiorari in SEC v. Bartek. As noted in a previous blog post, the Bartek petition…more

Gabelli v SEC, SEC, Statute of Limitations

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Scott Lindlaw

Texas Insiders Say Businesses Champing At The Bit For New Trade Secrets Law To Take Effect

For decades, Texas was the wild west of trade secrets law, governed by the state’s outdated common law with no trade secrets statute on the books…more

New Legislation, Trade Secrets, Uniform Trade Secrets Acts

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Robin A. Linsenmayer

Second Circuit Holds that Criminal Penalties for Pharmaceutical Sales Representative’s Off-Label Promotion Violate the First Amendment

On December 3, 2012, the United States Court of Appeals for the Second Circuit issued an opinion that stands to transform the regulatory landscape in which pharmaceutical and medical device companies operate. In recent years,…more

Commercial Speech, FDA, FDCA, Free Speech, Marketing

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Jennifer Liu

SEC And FBI Try To Ketchup To Heinz Insider Traders

In the latest development in an SEC lawsuit filed Friday, February 15, U.S. District Judge Rakoff extended a freeze on a Swiss Goldman Sachs account linked to possible insider trading in H.J. Heinz Company call options. The…more

Acquisitions, Aiding and Abetting, Board of Directors, Derivative Suit, FBI

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Andrew Livingston

Ninth Circuit Holds Employees Are Not Required To Allege a Request for “Suitable Seats” For Their Claims to Proceed

Last week in Green v. Bank of America Corp., No. 11.56365 (9th Cir. Feb. 13, 2012), the Ninth Circuit held that “suitable seats” lawsuits cannot be dismissed at the pleading stage based on an employee’s failure to allege that he…more

Failure To Request, IWC, Pleadings, Suitable Seats Lawsuits, Wage Orders

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Veronica Lockyer

New Developments in Data Privacy in China

China is taking notice of the growing focus on data privacy and protection issues by taking two significant steps toward clarifying the country’s approach to protecting personal information. Most recently, China issued the…more

China, Data Collection, Data Protection, Personally Identifiable Information

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Bob Loeb

Recent Development on Corporate Liability in U.S. Courts for Conduct Outside the United States

This week the U.S. Supreme Court issued its much-awaited decision in Kiobel v. Royal Dutch Petroleum Co., which addressed the question of whether a federal court may recognize a cause of action under the Alien Tort Statute…more

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

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Scott Lonardo

New Trademark Clearinghouse an Important Tool for Trademark Owners as New Generic Top-Level Domains Prepare to Launch

Starting on March 26, 2013, there will be an important new tool available to help trademark owners combat unauthorized uses of their trademarks in domain names as more than 1,000 new generic top-level domains (“gTLDs”) prepare…more

Brand, gTLD, Trademark Clearinghouse, Trademarks

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Tim Long

Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children

The ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims; it also broadened the scope of FMLA leave that employees may take to care for their adult children. On January 14, 2013, the…more

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Christine Louie

In The SDNY, Hindsight Is No Substitute For Red Flags When Alleging Scienter

On April 8, 2013, Judge Shira A. Scheindlin of the Southern District of New York granted auditor Deloitte Touche Tohmatsu CPA’s (“DTTC”) motion to dismiss a shareholder class action, finding that plaintiffs failed to…more

Auditors, Class Action, Material Misstatements, Rule 10b-5, Scienter

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Katherine Lubin

SEC Considering More Stringent Requirements For Cybersecurity Disclosures In The Wake Of Stock Manipulating Hacking Case

Following up on clues earlier this year that the SEC may increase its scrutiny of cybersecurity disclosures, SEC Chairman Mary Jo White has asked the Commission to evaluate current guidance for cybersecurity disclosures and to…more

Cybersecurity, Disclosure Requirements, Hackers, Mary Jo White, SEC

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Lisa Lupion

New York City Passes Bill Treating the Unemployed as a Protected Class

New York City has amended its Administrative Code to create a new protected class of workers. Beginning in June 2013, the New York City Administrative Code will prohibit discrimination based on an individual’s unemployment…more

Discrimination, Hiring & Firing, Job Applicants, Local Ordinance, Municipalities

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Katherine Maco

Basic Gets Complicated: Vivendi Rebuts Fraud-On-The-Market Presumption

In what Judge Shira A. Scheindlin of the Southern District of New York called an “extraordinary case,” French multimedia company Vivendi, S.A. has scored an unusual victory based on a successful rebuttal of the…more

Fraud-on-the-Market, Gamco Investors v Vivendi, Investors

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Alessandro Mainardi

Il Fisco Britannico Mette In Rete La Lista Degli Evasori Fiscali

Qualche giorno fa la Agenzia delle Entrate inglese, ovvero la Her Majesty’s Revenue & Customs, ha postato sul proprio sito l’elenco dei tax defaulters accertati alla data del 21 febbraio 2013. La notizia ha suscitato un…more

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Ashley Mangus

Fifth Circuit to Consider In Re D.R. Horton in Light of Recent Court of Appeals Decision Striking Down Recess Appointments to NLRB

A recent D.C. Circuit Court of Appeals decision striking down several recess appointments to the National Labor Relations Board has cast doubt over one of the NLRB’s most controversial decisions from 2012…more

Barack Obama, Canning v NLRB, D.R. Horton, NLRB, Pro Forma Sessions

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Richard A. Martin

Making A Statement: The Two Faces Of Janus In The SDNY

Almost two years after the Supreme Court issued its momentous decision in Janus Capital Group, Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011), lower courts continue to reach significantly different conclusions…more

Investment Adviser, Rule 10b-5, SEC

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Nik Mathews

The New CFTC Regulatory Regime For Private Fund Managers; First Quarter 2013 Update

The enactment of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and its implementation by the Commodity Futures Trading Commission (“CFTC”) has ushered in a new era of…more

CFTC, Commodities Exchange Act, Dodd-Frank, Exempt Organizations, Major Swap Participants

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Christine McCarthy

Annual Reporting Requirements for Incentive Stock Options and Employee Stock Purchase Plans

Annual Information Statements and IRS Returns - Requirement to Report - For any exercise of an incentive stock option (ISO) or transfer of a share previously purchased pursuant to a tax-qualified employee stock…more

Employee Stock Purchase Plans, IRS, Reporting Requirements, Stock Options

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W. Clark McFadden III

International Trade & Compliance - April 2013

The U.S. State and Commerce Departments have published amendments to the International Traffic in Arms Regulations (“ITAR”) and Export Administration Regulations (“EAR”) as a major step in implementing changes to export controls…more

Barack Obama, Export Administration Regulations, Export Controls, Exports, ITAR

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Rachel McKenzie

Supreme Court Unanimously Limits SEC’s Ability To Bring Civil Penalty Claims For Conduct Older Than Five Years

In Gabelli v. SEC, a unanimous Supreme Court held that the statute of limitations for “penalty” claims in governmental enforcement actions begins to run from the date of the underlying violation of the law, not when the…more

Discovery Rule, Discovery Schedule, Enforcement Actions, Equitable Tolling, Fraud

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Jim McQuade

California Supreme Court Allows See’s Candy Time Rounding Decision to Stand

Earlier last month, the California Supreme Court denied petitions to review and depublish the California Court of Appeal for the Fourth District’s decision in See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889…more

See's Candy Shops, Timekeeping, Wage and Hour

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Mark Mermelstein

Internal Investigation Fees Awarded To Goldman Sachs

On Monday, February 25, Goldman Sachs won its bid to force former director Rajat K. Gupta to pay legal fees it incurred while investigating Gupta’s insider trading activities. In October 2012, Gupta was sentenced to two years in…more

Attorney's Fees, Goldman Sachs, Internal Investigations, Mandatory Victim's Restitution Act, Morgan Stanley

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Jim Meyers

PCAOB Issues Its First Cooperation Policy Statement

On April 24, 2013, the Public Company Accounting Oversight Board issued its inaugural “Policy Statement Regarding Credit for Extraordinary Cooperation in Connection with Board Investigations.” The Policy Statement reiterates…more

Audits, Cooperation Initiative, Disclosure Requirements, Enforcement, PCAOB

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Rachel Muoio

Rule 23(b) or Not to Be: Wang v. Chinese News the Ninth Circuit’s Latest Decision to Reevaluate Certification after Wal-Mart

The Ninth Circuit’s recent decision in Wang v. Chinese Daily News is the latest to affirm that Wal-Mart v. Dukes is controlling in wage-and-hour class action cases. …more

Class Action, Dukes v Wal-Mart, FLSA, Over-Time, Rest and Meal Break

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Jeffrey Nisbet

FTC Dot Com Disclosure Update: What's New for 2013

In March, the Federal Trade Commission issued updated advertising guidelines to take into account the challenges created by the rapid growth of mobile and online advertising platforms, particularly small screen size and other…more

Advertising, Disclosure Requirements, Dot Com Disclosure Guide, FTC, Mobile Devices

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Jonathan M. Ocker

ISS 2013 Policy Updates

On November 16, 2012, Institutional Shareholder Services (“ISS”) released its policy updates to its voting guidelines for the 2013 proxy season. The 2013 updates include a revised methodology for the selection of the ISS peer…more

ISS

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Yumiko Ohta

Orrick World: A Quarterly Report of Global Employment Law Issues for Multinationals - February 2013

In This Issue: - Asia Employment Law Update - France Employment Law Update - UK Employment Law Update - United States Employment Law Update…more

China, Chinese Labor Contract Laws, Data Protection, Discrimination, EEOC

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Blake Osborn

Stop! In The Name Of ... 28 U.S.C. §2462

On January 8, 2013, the U.S. Supreme Court heard arguments in Gabelli v. Securities and Exchange Commission, No. 11-1274, concerning when the clock begins to run on the five-year statute of limitations for civil penalty claims…more

Civil Monetary Penalty, Enforcement Actions, Gabelli v SEC, Penalties, SCOTUS

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Robert Pe

Burma/Myanmar Legal Update: Accession to the New York Convention

Introduction - On 16 April 2013 the Republic of the Union of Myanmar (also known as Burma) acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) by…more

Foreign Investment, New York Convention, United Nations

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T. Vann Pearce, Jr.

District Court Judge Enjoins Standards-Essential Patent Owner From Enforcing ITC Exclusion Order

In a growing body of legal authority regarding standards-essential patents (SEPs), Northern District of California Judge Ronald Whyte ruled Monday that an owner of SEPs violated its licensing commitments by initiating a U.S…more

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Lindsay Pennington

President Barack Obama’s Win Also a Win for the SEC and the CFTC

The U.S. Securities and Exchange Commission (“SEC”) and the Commodity Futures Trading Commission (“CFTC”) can breathe a little easier after President Barak Obama’s re-election on Tuesday, November 6, 2012, according to legal…more

Barack Obama, CFTC, Dodd-Frank, SEC

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Jessica Perry

Three More States Hop on the Social Media Legislation Bandwagon

Act 1480, signed by Governor Mike Beebe on April 22, 2013, prohibits an Arkansas employer from requiring or requesting a current or prospective employee to (1) disclose his or her username or password for a personal social media…more

Hiring & Firing, Job Applicants, Passwords, Social Media

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Mandy Perry

Employee Shareholder Status – An Innovative Solution for Innovative Employers?

After twice rejecting the Government’s proposals, the House of Lords has just finally voted to accept the much argued Clause 27 of the Growth and Infrastructure Bill, thereby paving the way for new legislation that will create a…more

Employee Shareholders, EU, Shareholders

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Randolph Perry

Orrick's Global Real Estate Roundup - February 2013

As we look back on a busy fourth quarter 2012 that saw a flurry of deal closings in the final weeks of the year for core and value-added commercial properties in the US, an active transaction pipeline is already ramping up for…more

CMBS, Commercial Real Estate Market, Foreign Investment, Fund Formation, REIT

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Lori Lynn Phillips

Where There’s Smoke, There’s FIRREA

Few can ignite a legal firestorm like U.S. District Judge Jed Rakoff of the Southern District of New York. Last week, in a mortgage fraud suit against Bank of America and Countrywide, Judge Rakoff refused to dismiss a novel…more

Bank of America, Countrywide, Fannie Mae, FIRREA, Freddie Mac

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Jinnifer Pitcher

Ringing in the New Year: New California Laws Taking Effect in 2013

As the new year rounds the corner, it is important to stay abreast of the ever-changing legal landscape in California. We’ve previously posted about some recent amendments to the California Labor Code here but here are a couple…more

Social Media

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Wolfram Pohl

Energy-Related Tax Provisions of the American Taxpayer Relief Act of 2012

On January 1, 2013, Congress passed the American Taxpayer Relief Act of 2012 (the “Act”). President Obama signed the Act into law on January 2, 2013. The Act contains multiple business tax provisions. The following is a…more

American Taxpayer Relief Act, Biofuel, Fiscal Cliff, Income Taxes, Investment Tax Credits

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Matthew Poppe

District Court Judge Enjoins Standards-Essential Patent Owner From Enforcing ITC Exclusion Order

In a growing body of legal authority regarding standards-essential patents (SEPs), Northern District of California Judge Ronald Whyte ruled Monday that an owner of SEPs violated its licensing commitments by initiating a U.S…more

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David Prahl

Ninth Circuit Holds Employees Are Not Required To Allege a Request for “Suitable Seats” For Their Claims to Proceed

Last week in Green v. Bank of America Corp., No. 11.56365 (9th Cir. Feb. 13, 2012), the Ninth Circuit held that “suitable seats” lawsuits cannot be dismissed at the pleading stage based on an employee’s failure to allege that he…more

Failure To Request, IWC, Pleadings, Suitable Seats Lawsuits, Wage Orders

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Suzette Pringle

Another Securities Case For The Supreme Court. Next Up: Ponzi Scheme Cases

Agreeing to take up yet another securities case, the Supreme Court granted cert on January 18 in three related appeals arising out of the alleged multi-billion dollar Ponzi scheme involving R. Allen Stanford’s Stanford…more

Class Action, Ponzi Scheme, Private Securities Litigation Reform Act of 1995, SCOTUS, SLUSA

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Liana Rabinovitch

2013 Updates to the FEHA California Pregnancy Regulations

Amendments to California’s pregnancy regulations became effective on December 30, 2012, creating many new responsibilities for employers. While employers should take note of all of the amended regulations, some of the most…more

CFRA, Disability, Discrimination, FEHA, Medical Leave

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Greg Riddle

Energy-Related Tax Provisions of the American Taxpayer Relief Act of 2012

On January 1, 2013, Congress passed the American Taxpayer Relief Act of 2012 (the “Act”). President Obama signed the Act into law on January 2, 2013. The Act contains multiple business tax provisions. The following is a…more

American Taxpayer Relief Act, Biofuel, Fiscal Cliff, Income Taxes, Investment Tax Credits

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Philippe Rincazaux

Antimonopoly Law Considerations and Risk Management in Connection with M&A Transactions - Assessing Competition Risks in Acquisitions

Introduction: Allocation of antitrust risk is an issue that frequently arises between parties in mergers or acquisitions that raise potential antitrust concerns. • Motivations of the buyer and the seller are the…more

Acquisitions, Ancillary Agreements, Antimonopoly, Cartels, Competition

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Jonas Robison

The New CFTC Regulatory Regime For Private Fund Managers; First Quarter 2013 Update

The enactment of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and its implementation by the Commodity Futures Trading Commission (“CFTC”) has ushered in a new era of…more

CFTC, Commodities Exchange Act, Dodd-Frank, Exempt Organizations, Major Swap Participants

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Jill Rosenberg

Fifth Circuit to Consider In Re D.R. Horton in Light of Recent Court of Appeals Decision Striking Down Recess Appointments to NLRB

A recent D.C. Circuit Court of Appeals decision striking down several recess appointments to the National Labor Relations Board has cast doubt over one of the NLRB’s most controversial decisions from 2012…more

Barack Obama, Canning v NLRB, D.R. Horton, NLRB, Pro Forma Sessions

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Ivan Rotunno

D.Lgs. 231/2001 - Aggiornamento Normativo E Giurisprudenziale

Si riporta di seguito una breve rassegna dei provvedimenti maggiormente significativi in materia di responsabilità amministrativa degli enti ex D.Lsg. 231/2001. ENTI STRANIERI - TRIBUNALE DI MILANO – Sent. n. 13976/12…more

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Paul Rugani

Purchase Timing A Wall To Facebook Derivative Litigation Despite Unenforceability Of Forum Selection Clause

Four derivative lawsuits against Facebook’s directors relating to alleged disclosure issues surrounding the company’s initial public offering have a new status: Dismissed. Last month, Judge Robert Sweet of the Southern District…more

Derivative Suit, Disclosure Requirements, Facebook, Forum Selection Clause, IPO

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Lena Ryan

California Supreme Court Eliminates Damages in FEHA Discrimination Cases Where Employer Proves Mixed Motive Defense

Earlier this month, the California Supreme Court issued a ruling clarifying details of the “mixed-motive” defense applicable to discrimination claims under the California Fair Employment and Housing Act (“FEHA”). Harris v. City…more

Appeals, Discrimination, FEHA, Harris v City of Santa Monica, Mixed Motive Cases

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Frank Scaduto

Where There’s Smoke, There’s FIRREA

Few can ignite a legal firestorm like U.S. District Judge Jed Rakoff of the Southern District of New York. Last week, in a mortgage fraud suit against Bank of America and Countrywide, Judge Rakoff refused to dismiss a novel…more

Bank of America, Countrywide, Fannie Mae, FIRREA, Freddie Mac

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Tracy Scheidtmann

2013 Updates to the FEHA California Pregnancy Regulations

Amendments to California’s pregnancy regulations became effective on December 30, 2012, creating many new responsibilities for employers. While employers should take note of all of the amended regulations, some of the most…more

CFRA, Disability, Discrimination, FEHA, Medical Leave

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Brian Schmidt

Basic Gets Complicated: Vivendi Rebuts Fraud-On-The-Market Presumption

In what Judge Shira A. Scheindlin of the Southern District of New York called an “extraordinary case,” French multimedia company Vivendi, S.A. has scored an unusual victory based on a successful rebuttal of the…more

Fraud-on-the-Market, Gamco Investors v Vivendi, Investors

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M. Todd Scott

What’s The Right Way To Respond To A Shareholder Books And Records Request?

Delaware law gives shareholders the right to request corporate books and records in order to investigate issues that are of interest to them…more

Corporate Records, Shareholder Rights

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Shannon Seekao

Seventh Circuit Holds That FLSA and Rule 23 Certification Standards Are the Same and Affirms Denial of Certification Based on Lack of Trial Plan

A recent opinion by the Seventh Circuit holds that the standard for certifying a collective action under the FLSA is the same as the standard applied to a class action under Rule 23…more

Class Action, Class Certification, Decertify, FLSA, Opt-In

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Stephanie Sharron

California Introduces “Right to Know” Privacy Law, Seeking to Increase Transparency

California Assembly Member Bonnie Lowenthal recently introduced the “Right to Know Act of 2013” (AB1291) in the California State Assembly. If passed, this legislation would allow U.S. consumers unprecedented access to…more

Disclosure Requirements, Personally Identifiable Information, Proposed Legislation, Right To Know, Sensitive Business Information

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Anushila Shaw

Record SEC Settlement In S.A.C. Capital Investigation. Well….Kind Of

On April 16, 2013, Judge Victor Marrero conditionally approved a $600 million consent judgment between the SEC and CR Intrinsic Investors LLC (“CR”) where CR “neither admitted nor denied” the allegations brought against it. The…more

CR Intrinsic Investors, Insider Trading, SAC Capitol Advisors, SEC, Settlement

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Rob Shwarts

Rule 23(b) or Not to Be: Wang v. Chinese News the Ninth Circuit’s Latest Decision to Reevaluate Certification after Wal-Mart

The Ninth Circuit’s recent decision in Wang v. Chinese Daily News is the latest to affirm that Wal-Mart v. Dukes is controlling in wage-and-hour class action cases. …more

Class Action, Dukes v Wal-Mart, FLSA, Over-Time, Rest and Meal Break

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Gary Siniscalco

Prisoner 24601 May Report For Duty, Says the EEOC

Can the EEOC require employers to hire convicted criminals? Last April, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a policy guideline that calls into question the extent to which employers can incorporate a…more

Criminal Background Checks, Criminal Records, EEOC, Employer Liability Issues, Hiring & Firing

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Devin Slack

Three More States Hop on the Social Media Legislation Bandwagon

Act 1480, signed by Governor Mike Beebe on April 22, 2013, prohibits an Arkansas employer from requiring or requesting a current or prospective employee to (1) disclose his or her username or password for a personal social media…more

Hiring & Firing, Job Applicants, Passwords, Social Media

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David Smith

Landmark Court Opinion Provides Guidance in Determining RAND Royalties for Standard-Essential Patents

On April 25, 2013, U.S. District Judge James Robart (W.D. Wash.) issued a much-anticipated opinion in a dispute between Microsoft Corporation (“Microsoft”) and Motorola, Inc., Motorola Mobility, Inc., and General Instrument…more

FRAND, Georgia Pacific, Microsoft, Motorola, Patent Pools

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Michael Spillner

Mother’s Day Post: Mother And Son Accused Of Trade Secret Theft

In honor of Mother’s Day, we note a case in which mother and son were both accused of misappropriating trade secrets…more

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Stephen Spitz

Water and Wastewater Projects: Financing with Tax-Exempt Bonds

Introduction - Managers of water and wastewater utilities face complex financial challenges. The purpose of this guidebook is to provide an overview of issues relating to the financing of water and wastewater projects in…more

Arbitrage, Capital Expenditures, Debt, Financial Adviser, Financing

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Alexandra Stathopoulos

Party Foul! NLRB Orders Reinstatement and Back Pay for Party Bus Guide After Finding Facebook Postings Amount To Protected Union Organizing Activity

Providing yet another example of how online social networking can amount to protected conduct under the National Labor Relations Act, the NLRB ruled earlier this month in New York Party Shuttle, LLC and Fred Pflantzer, CN:…more

Back Pay, Facebook, NLRA, NLRB, Protected Concerted Activity

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James Stengel

Recent Development on Corporate Liability in U.S. Courts for Conduct Outside the United States

This week the U.S. Supreme Court issued its much-awaited decision in Kiobel v. Royal Dutch Petroleum Co., which addressed the question of whether a federal court may recognize a cause of action under the Alien Tort Statute…more

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

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Kolvin Stone

Privacy, Data Security and Internet Safety Alert: Tough New EU Data Protection Proposals Edge Closer

On Jan. 10, 2013, Jan Philipp Albrecht, the European Parliament’s Rapporteur, presented his report on the European Commission’s proposals for a new General Data Protection Regulation (GDPR). With his recommendations, data…more

Data Collection, Data Protection, EU, EU Data Protection Laws, Internet

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Katie Lieberg Stowe

SEC And FBI Try To Ketchup To Heinz Insider Traders

In the latest development in an SEC lawsuit filed Friday, February 15, U.S. District Judge Rakoff extended a freeze on a Swiss Goldman Sachs account linked to possible insider trading in H.J. Heinz Company call options. The…more

Acquisitions, Aiding and Abetting, Board of Directors, Derivative Suit, FBI

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Laurie Strauch Weiss

Recent Development on Corporate Liability in U.S. Courts for Conduct Outside the United States

This week the U.S. Supreme Court issued its much-awaited decision in Kiobel v. Royal Dutch Petroleum Co., which addressed the question of whether a federal court may recognize a cause of action under the Alien Tort Statute…more

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

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Emily Tabatabai

FTC Dot Com Disclosure Update: What's New for 2013

In March, the Federal Trade Commission issued updated advertising guidelines to take into account the challenges created by the rapid growth of mobile and online advertising platforms, particularly small screen size and other…more

Advertising, Disclosure Requirements, Dot Com Disclosure Guide, FTC, Mobile Devices

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William Benjamin Tabler

CLS Bank: A Deeply Divided En Banc Federal Circuit Fails to Rule When Computer Claims are Invalid Under 35 U.S.C. § 101

On May 10, 2013, the en banc Federal Circuit issued its highly anticipated decision in CLS Bank Int’l v. Alice Corp. Pty. Ltd., No. 2011-1301, concerning whether computer-implemented method and system claims are patent eligible…more

Computer-Related Inventions, Infringement, Patent-Eligible Subject Matter, Patents

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Alex Talarides

What’s The Right Way To Respond To A Shareholder Books And Records Request?

Delaware law gives shareholders the right to request corporate books and records in order to investigate issues that are of interest to them…more

Corporate Records, Shareholder Rights

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James Thompson

Record SEC Settlement In S.A.C. Capital Investigation. Well….Kind Of

On April 16, 2013, Judge Victor Marrero conditionally approved a $600 million consent judgment between the SEC and CR Intrinsic Investors LLC (“CR”) where CR “neither admitted nor denied” the allegations brought against it. The…more

CR Intrinsic Investors, Insider Trading, SAC Capitol Advisors, SEC, Settlement

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Mark R. Thompson

“Picking Off” Plaintiffs in FLSA Collective Actions: Genesis HealthCare Corp. v. Symczyk

Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that hold…more

Collective Actions, FLSA, Genesis HealthCare, Genesis Healthcare Corp. v. Symczyk, Mootness

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Matthew Tolve

Say Hello To My Imaginary Friend! Judge Posner, Seventh Circuit Issue Stern Warning To Plaintiffs’ Firms For Again Citing Bogus Confidential Witnesses

Plaintiffs’ counsel beware: to avoid Rule 11 sanctions you might actually have to talk to “confidential witnesses” yourself and corroborate their statements before citing them in a securities fraud complaint…more

Confidential Witnesses, Discovery, Pleadings, Rule 11, Securities Fraud

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Julie Totten

Seventh Circuit Holds That FLSA and Rule 23 Certification Standards Are the Same and Affirms Denial of Certification Based on Lack of Trial Plan

A recent opinion by the Seventh Circuit holds that the standard for certifying a collective action under the FLSA is the same as the standard applied to a class action under Rule 23…more

Class Action, Class Certification, Decertify, FLSA, Opt-In

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Michael Tu

Stop! In The Name Of ... 28 U.S.C. §2462

On January 8, 2013, the U.S. Supreme Court heard arguments in Gabelli v. Securities and Exchange Commission, No. 11-1274, concerning when the clock begins to run on the five-year statute of limitations for civil penalty claims…more

Civil Monetary Penalty, Enforcement Actions, Gabelli v SEC, Penalties, SCOTUS

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Sonia Elizabeth Valdez

IP Alert: White House Launches Effort to Curb Trade Secret Misappropriation

On February 20, 2013, the White House issued a report outlining a new plan to combat trade secret theft from U.S. businesses. Faced with the escalating theft of U.S. trade secrets and noting “the crucial role of trade secrets…more

Cyber Espionage, Cybersecurity, Cybersecurity Breaches, Economic Espionage Act, Exports

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Danielle Van Wert

In The SDNY, Hindsight Is No Substitute For Red Flags When Alleging Scienter

On April 8, 2013, Judge Shira A. Scheindlin of the Southern District of New York granted auditor Deloitte Touche Tohmatsu CPA’s (“DTTC”) motion to dismiss a shareholder class action, finding that plaintiffs failed to…more

Auditors, Class Action, Material Misstatements, Rule 10b-5, Scienter

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Robert Varian

News Of The (Shareholder Derivative) World: Record-High $139 Million Settlement In News Corp. Phone Hacking Suit

Putting an end to shareholder derivative litigation arising from News Corp.’s phone-hacking scandal, the company’s directors agreed last week to a record-breaking $139 million cash settlement. According to the plaintiffs’…more

Derivative Suit, News Corp, Phone-Hacking Scandal, Settlement

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Joshua Vaughn

New York City Passes Bill Treating the Unemployed as a Protected Class

New York City has amended its Administrative Code to create a new protected class of workers. Beginning in June 2013, the New York City Administrative Code will prohibit discrimination based on an individual’s unemployment…more

Discrimination, Hiring & Firing, Job Applicants, Local Ordinance, Municipalities

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Siddhartha Venkatasen

Time For The White House To Step In? Patchwork State Fracking Regulations Will Spawn FOIA And Trade Secrets Lawsuits

With a growing number of states demanding disclosure of its fracking recipes, the oil and gas industry is fighting to plug what it views as government-mandated leaks in its trade secrets pipeline…more

Disclosure, FOIA, Fracking, Trade Secrets

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Ulrich Wahlers

New Developments Regarding Temporary Workers in Germany

German companies rely heavily on temporary workers. Due to fundamental legislative reforms in the mid-2000s, it is possible to pay temporary workers a salary which is below the salary of comparable permanent staff. Therefore,…more

EU, Hiring & Firing, Temporary Employees, Termination, Wages

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L. Mark Weeks

Antimonopoly Law Considerations and Risk Management in connection with M&A Transactions

In This Presentation: - General Indemnity: (1) Background and structure (2) Main provisions (3) Conduct of claims - Antitrust Indemnity: (1) Background (2) Main provisions (3) Conduct of…more

Acquisition Agreements, Acquisitions, Anti-Monopoly, Antitrust Investigations, Breach of Contract

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Michael Weil

Party Foul! NLRB Orders Reinstatement and Back Pay for Party Bus Guide After Finding Facebook Postings Amount To Protected Union Organizing Activity

Providing yet another example of how online social networking can amount to protected conduct under the National Labor Relations Act, the NLRB ruled earlier this month in New York Party Shuttle, LLC and Fred Pflantzer, CN:…more

Back Pay, Facebook, NLRA, NLRB, Protected Concerted Activity

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Adam Wenner

FERC Proposes Reforms to Facilitate Small Generator Interconnections

On January 17, 2013, the Federal Energy Regulatory Commission (FERC) issued a notice of proposed rulemaking (NOPR) proposing reforms to the pro forma Small Generator Interconnection Procedures (SGIP) and the Small Generator…more

FERC, Interconnections, NOPR, SGIA, SGIP

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Jason White

Did an obscure remark in a recent regulatory publication signal a new interpretation of the anti-tying rules?

As discussed in this Orrick alert, federal bank regulators recently issued guidance to financial institutions concerning leveraged lending practices (the “Lending Guidance”). In most respects the Lending Guidance was…more

Anti-Tying, Bank Holding Company Act, Federal Reserve, Leveraged Loans

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Nicola Whiteley

Employee Shareholder Status – An Innovative Solution for Innovative Employers?

After twice rejecting the Government’s proposals, the House of Lords has just finally voted to accept the much argued Clause 27 of the Growth and Infrastructure Bill, thereby paving the way for new legislation that will create a…more

Employee Shareholders, EU, Shareholders

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Craig Wickersham

California Supreme Court Allows See’s Candy Time Rounding Decision to Stand

Earlier last month, the California Supreme Court denied petitions to review and depublish the California Court of Appeal for the Fourth District’s decision in See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889…more

See's Candy Shops, Timekeeping, Wage and Hour

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Mark Wine

USPTO Inter Partes Review Update: Scope of Discovery

In Garmin Int’l Inc. v. Cuozzo Speed Technologies, LLC, Case No. IPR2012-00001 (PTAB March 5, 2013), the USPTO recently issued its first-ever substantive ruling on a motion for additional discovery in an Inter Partes review…more

Discovery, Inter Partes Review Proceedings, Patents, USPTO

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Joe Wright

Recent Privacy Developments: California AG Continues to Lead on Mobile with New Recommendations and FTC Amends COPPA

Nearly all businesses today are involved in some way in the development or distribution of mobile applications. The first part of this Client Alert highlights recent activities of the California State Attorney General to…more

Advertising, App Platform Providers, Attorney Generals, COPPA, Data Collection

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Michael Yang

Annual Reporting Requirements for Incentive Stock Options and Employee Stock Purchase Plans

Annual Information Statements and IRS Returns - Requirement to Report - For any exercise of an incentive stock option (ISO) or transfer of a share previously purchased pursuant to a tax-qualified employee stock…more

Employee Stock Purchase Plans, IRS, Reporting Requirements, Stock Options

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Alexis Yee-Garcia

Tracing Meets Twombly: Ninth Circuit Sets Section 11 Pleading Standards For Aftermarket Purchasers

In a precedent setting decision, the Ninth Circuit affirmed dismissal of a putative class action in In re Century Aluminum Co. Securities Litigation, significantly raising the pleading bar in Section 11 cases. Plaintiffs alleged…more

Aftermarket Purchases, Section 11, Shareholders, Twombly/Iqbal Pleading Standard

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Daniel Yost

FTC Dot Com Disclosure Update: What's New for 2013

In March, the Federal Trade Commission issued updated advertising guidelines to take into account the challenges created by the rapid growth of mobile and online advertising platforms, particularly small screen size and other…more

Advertising, Disclosure Requirements, Dot Com Disclosure Guide, FTC, Mobile Devices

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Patricia Zeigler

Federal Trade Commission Announces New Hart-Scott-Rodino Thresholds

The Federal Trade Commission has announced the following new Hart-Scott-Rodino (HSR) filing thresholds, which will be effective for transactions closing on or after Feb. 11, 2013…more

DOJ, FTC, Hart-Scott-Rodino Act, Threshhold Requirements

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Yan Zeng

China 20/20 Legal Regulatory Developments - February 2013

In This Issue: - The Decision of the Standing Committee of the National People's Congress on Revising the Labor Contract Law of the People's Republic of China Released - MOFCOM Solicits for Public Comments on the…more

China, Foreign Jurisdictions, Foreign-Related Civil Relationships, Investment Funds, Law On Application Of Laws

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