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Matthew H. Adler

Supreme Court Holds That Courts Must Defer To Arbitrators In First Case Addressing International Investment Treaty Arbitration

On March 5, 2014, the United States Supreme Court decided BG Group, PLC v. Republic of Argentina, the first case in which the Court addressed an international investment treaty arbitration (a case between a private investor and…more

BG Group v Republic of Argentina, Bilateral Investment Treaties, Foreign Arbitration Clauses, International Arbitration, SCOTUS

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Gary Apfel

Will New U.S. Court Of Appeals Decision On ‘Recess Appointments’ Stay Dodd-Frank Powers Granted To CFPB And Vacate Certain Actions?

Holding that recess appointments authorized by the Recess Appointments Clause of the U.S. Constitution are limited to “intersession recesses” – “the period between sessions of the Senate when the Senate is by definition not in…more

Barack Obama, Canning v NLRB, CFPB, De Facto Officer Doctrine, Dodd-Frank

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Joan C. Arnold

FATCA – It’s Here, It’s Not Going To Be Delayed And Action May Be Needed By April 25, 2014. Is Your Fund Ready?

FATCA is the new form of 30% U.S. withholding tax that is applied to U.S. source income, such as interest and dividends paid by U.S. companies, starting as early as July 1, 2014 for payments made to non-U.S. entities that are…more

FATCA, Foreign Financial Accounts, Foreign Investment, GIIN, IRS

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Hedya Aryani

Violence Against Women Act Of 2013 Creates New Clery Act Compliance Obligations

On March 7, 2013, President Obama signed into law the reauthorized Violence Against Women Act (VAWA) of 2013. The bill includes several important amendments to the Clery Act, which will require institutions of higher education…more

Clery Act, Colleges, Compliance, Crime Statistics, Reporting Requirements

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Randy Awdish

Subtenants Should Carefully Consider Legal Issues of Sublease Arrangements

Depending on the situation, sometimes leasing space from another tenant is a good business decision in terms of price, location and size. While a sublease arrangement makes sense from a business perspective, a subtenant should…more

Landlords, Leases, SNDAs, Subletting, Tenants

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Kristina Ayers

Medical Identity Theft: New Recommendations By The California Attorney General To Health Care Organizations For Keeping Medical Records Healthy And Thriving

Unlike financial identity theft, which targets a victim’s financial health, medical identity theft threatens a victim’s very existence. The unauthorized access of a victim’s medical record not only grants the thief access to the…more

Affordable Care Act, Fraud, Identity Theft, Personally Identifiable Information, PHI

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Lauren Balsamo

Understanding Philadelphia Zoning Law

Moving a project through the Philadelphia zoning process can seem like a daunting task – even after Philadelphia entirely revamped its zoning code…more

Exclusive Economic Zone, Local Ordinance

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Albert Llosas Barrueco

Three Requirements For New York Employers In The New Year

This is a friendly reminder to clients employing workers in New York that they need to comply with the annual pay notice requirement of the state’s Wage Theft Prevention Act (WTPA) by February 1, 2014. As with previous years,…more

Compliance, Employee Rights, FLSA, Pregnancy, Pregnancy Discrimination

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Barak Bassman

Class Actions: A Tougher Row To Hoe

On March 27, the United States Supreme Court, in a 5-4 opinion, further heightened plaintiffs’ burden in seeking class certification. The Court held that, under Rule 23, plaintiffs must “‘tie each theory of antitrust impact’ to…more

Cable Television Providers, Class Action, Class Certification, Comcast, Comcast v. Behrend

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Michael Baughman

Violence Against Women Act Of 2013 Creates New Clery Act Compliance Obligations

On March 7, 2013, President Obama signed into law the reauthorized Violence Against Women Act (VAWA) of 2013. The bill includes several important amendments to the Clery Act, which will require institutions of higher education…more

Clery Act, Colleges, Compliance, Crime Statistics, Reporting Requirements

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Yuliya Benina

‘Heightened Standards’ For Large Banks: OCC Proposed Guidelines

On January 16, 2014, the Office of the Comptroller of the Currency (OCC) released a proposal seeking comment on guidelines that would establish minimum standards of governance, risk management and board independence for certain…more

Banking Crisis, Banking Examinations, Banking Sector, Financial Regulatory Reform, OCC

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Brian A. Berkley

Supreme Court Holds That Courts Must Defer To Arbitrator’s Decision To Authorize Class Arbitration

On June 10, 2013, the United States Supreme Court unanimously held in Oxford Health Plans, LLC v. Sutter that an arbitrator’s decision to authorize class arbitration will not be disturbed under Section 10(a)(4) of the Federal…more

Arbitration, Arbitration Agreements, Class Action, Contract Interpretation, Federal Arbitration Act

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Daniel Boland

Just How Much Integration Is Enough: FTC Advisory Opinion Finally Provides Guidance For Competitors Seeking To Collaborate Or Jointly Negotiate

The Federal Trade Commission (FTC) recently issued its first advisory opinion addressing clinical integration programs since the enactment of the Affordable Care Act (ACA). Without a doubt the advisory opinion is useful for the…more

Affordable Care Act, Blue Cross, Blue Shield, Clinical Integration, Competition

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Alexander Bomstein

Drug Company Patent Settlements Subject To Rule Of Reason Antitrust Scrutiny

This week, the Supreme Court announced that “reverse payment” settlements of patent litigation between branded and generic pharmaceutical companies are, when challenged in a subsequent antitrust case, to be judged under the rule…more

Actavis Inc., ANDA, FTC, FTC v Actavis, Generic Drugs

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Steven Bortnick

Proposed Carried Interest Legislation Takes A Different Approach

On February 26, 2014, U.S. Rep. David Camp (R-MI), chairman of the House Ways and Means Committee, released a draft of the Tax Reform Act of 2014 (TRA 2014), which would provide for the most significant tax reform since the Tax…more

Business Taxes, Capital Gains, Corporate Taxes, Income Taxes, Tax Credits

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Stefanie L. Brennan

Getting The Most Bang For Your Buck – Considering Usable vs. Rentable Square Footage

In commercial leases the leased premises is usually defined in terms of rentable square feet. Tenants often focus their negotiations on the rental rate for those square feet…more

Contract Drafting, Negotiations, Rent, Square Footage, Tenants

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Christine Waldmann Carmody

Summary Of HUD’s LEAN 232 Program E-Mail Blast: Office Of Residential Care Facilities (ORCF), February 27, 2014

In an effort to summarize the highlights of the U.S. Department of Housing and Urban Development (HUD) LEAN E-mail Blasts that we receive, and rarely have time to review in a timely fashion, we at Pepper are providing this quick…more

Delinquent Borrowers, HUD, HUDD, Interest Rates, LEAN Program

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Jeffrey Carr

Supreme Court Of New Jersey Establishes Standard To Determine Whether A Party Implicitly Waived Its Right To Arbitrate

Mandatory arbitration provisions are not always enforced…more

Arbitration, Enforcement, Mandatory Arbitration Clauses, Waivers

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John Carroll

Breathing New Life Into Pennsylvania’s Environmental Rights Amendment

On Dec. 19, 2013, the Pennsylvania Supreme Court issued a controversial decision in Robinson Township v. Commonwealth of Pennsylvania addressing the injunction entered by the Commonwealth Court enjoining the enforcement of a…more

Environmental Policies, Oil & Gas

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Frank Cerza

Navigating Commercial Lease Assignment Provisions: Tenants Beware

Landlords use lease assignment provisions to maintain control over the quality, composition, and financial capability of their tenants. However, assignment provisions can have a chilling effect on a corporate tenant’s business…more

Assignments, Change in Control, Commercial Leases, Contract Drafting, Landlords

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Annika Chin

Challenges To Deducting Settlement Payments Under The False Claims Act: Fresenius Sheds Light On The Burden

Whether a business may deduct litigation settlement payments can have a substantial real dollar impact on the business. In the midst of combating potential litigation, companies rarely first focus on the potential tax impact of…more

Deductions, False Claims Act, Fresenius, IRS, Settlement

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Min Choi

Supreme Court Holds That Courts Must Defer To Arbitrators In First Case Addressing International Investment Treaty Arbitration

On March 5, 2014, the United States Supreme Court decided BG Group, PLC v. Republic of Argentina, the first case in which the Court addressed an international investment treaty arbitration (a case between a private investor and…more

BG Group v Republic of Argentina, Bilateral Investment Treaties, Foreign Arbitration Clauses, International Arbitration, SCOTUS

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Catherine Christopher

Pre-formation Investments: Thinking Ahead

Investors in private equity funds (Funds) typically invest in blind pools, under which passive investors commit to invest a designated amount of cash in a Fund over an investment period while relying solely upon the Fund’s…more

Funding, Investors, Private Equity, Startups

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Christopher Chuff

Delaware Supreme Court Confirms That Appropriate Procedural Safeguards Will Result In Business Judgment Review Of Going-Private Transactions

In a 2013 decision, the Delaware Court of Chancery ruled that the business judgment standard of review should apply to a going-private transaction where certain procedural safeguards were implemented to protect minority…more

Business Judgment Rule, Minority Shareholders, Shareholder Litigation, Shareholders, Summary Judgment

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Jonathan Clark

ACA: Employers, Non-Discrimination Rules And The ‘Cadillac Tax’

For most employers, the substantive provisions of the Patient Protection and Affordable Care Act (the PPACA) have been implemented. Almost all plans cover an employee’s child until that child reaches the age of 26, fully cover…more

Affordable Care Act, Cadillac Tax, Healthcare, Healthcare Reform, Human Resources Professionals

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Joanna Cline

Class Arbitration Contractual Waivers Are Valid And Enforceable Even When Plaintiff’s Recovery Is Outweighed By Individual Arbitration Costs

On June 20, 2013, the United States Supreme Court, in a 5-3 opinion in American Express Co. v. Italian Colors Restaurant, 2013 U.S. LEXIS 4700 (June 20, 2013), dealt yet another blow to antitrust plaintiffs’ ability to seek…more

American Express, American Express v Italian Colors Restaurant, Arbitration, Arbitration Agreements, Class Action

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Hope Comisky

Supreme Court: University Admissions Case Remanded To Fifth Circuit For Review Of University Of Texas Means To Achieve Student Body Diversity

The Supreme Court yesterday did not provide the bang many expected out of its Fisher v. Texas ruling, but it may have more far-reaching implications for universities…more

Affirmative Action, College Admissions, Diversity, Fisher v University of Texas, SCOTUS

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Julia Corelli

Observation 1.3 On The Volcker Rule: What Fund Managers Need To Know About The Volcker Rule Impact On Client Bank Investors

On April 1, 2014, the final regulations implementing the “Volcker Rule” became effective. The regulations were jointly adopted on December 10, 2013 by the Board of Governors of the Federal Reserve System (FRB), the Office of the…more

CFTC, Federal Reserve, Fund Managers, Investment Funds, Proprietary Trading

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Michael J. Crumbock

First Circuit Holds Private Equity Fund May Be Liable For Portfolio Company’s Pension Liability

On July 24, the U.S. Court of Appeals for the First Circuit held that two private equity funds managed by Sun Capital could be liable for their portfolio company’s withdrawal liability from a multiemployer pension plan (Sun…more

Employee Benefits, Investment Portfolios, Liability, Multiemployer Plan, Pensions

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Edward Dartley

New Manager Forum Panel III – Post-launch Matters

Launching a new hedge fund or private equity fund can be one of the most exciting and rewarding ventures a person will ever undertake-and it can also be the most challenging, given today's competitive and demanding investing…more

Fund Managers, Hedge Funds, Managers, Private Equity

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Evan Davis

Class Arbitration Contractual Waivers Are Valid And Enforceable Even When Plaintiff’s Recovery Is Outweighed By Individual Arbitration Costs

On June 20, 2013, the United States Supreme Court, in a 5-3 opinion in American Express Co. v. Italian Colors Restaurant, 2013 U.S. LEXIS 4700 (June 20, 2013), dealt yet another blow to antitrust plaintiffs’ ability to seek…more

American Express, American Express v Italian Colors Restaurant, Arbitration, Arbitration Agreements, Class Action

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Matthew V. DelDuca

Game Changer: NLRB Approves Unionization Of Northwestern University Football Players

On Wednesday, March 26, 2014, the National Labor Relations Board (NLRB) issued a ruling that could potentially change the landscape of college football and other collegiate sports when the Regional Director of the Chicago…more

College Athletes, NLRA, NLRB, Unions

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Valérie Demont

Cross-Border Update on Investing and Doing Business in the United States

In this Issue: - Indian FDI into the United States - Indian Imports into the United States - Formation of US Subsidiaries - Ownership - Liability of Equity Holders - Management…more

Cross-Border, Exports, Foreign Investment, Imports, India

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Tracey Diamond

Are You Ready For Your Next Audit?

By now, federal contractors should have taken a hard look at their current Affirmative Action Plan (AAP) policies, procedures and documentation to ensure compliance with the new requirements. Under the Office of Federal Contract…more

Affirmative Action, Audits, Federal Contractors, Hiring & Firing, OFCCP

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Jay A. Dubow

Securities And Exchange Commission Creates New Private Fund Unit Dedicated To Examination Of Private Equity And Hedge Funds

On April 7, 2014, it was announced that the United States Securities and Exchange Commission (SEC) has created a new private fund unit dedicated to the examination of private equity and hedge funds…more

Enforcement, Hedge Funds, Private Equity, Private Funds, SEC

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Paul Dunn

Relationship Between New Rule 506(c), Regulation S And AIFMD

Beyond the general aspects of the U.S. Securities and Exchange Commission (SEC)’s new JOBS Act rules previously discussed in this series of articles, issuers who rely on new Rule 506(c) for an onshore offering and Regulation S…more

AIFMD, EEA, EU, JOBS Act, New Legislation

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Thomas Dwyer

JOBS Act Rules – Limited Grandfathering For Current Investors; Certain Other Form D Developments

Issuers taking advantage of the general solicitation allowance provided by Rule 506(c) must take “reasonable steps” to verify the accredited investor status of investors in the offering…more

Accredited Investors, Advertising, General Solicitation, Grandfathering Rules, Investors

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Richard Eckman

Federal Court Agrees With Magistrate That Whether A Tribal Lender Is A For-Profit Corporation Is A Triable Issue Of Fact

On March 7, 2014, the United States District Court for the District of Nevada in Federal Trade Commission (the FTC) v. AMG Services, Inc., et al. granted a partial victory to Indian tribal payday lenders in their ongoing fight…more

EFTA, FTC, Payday Loans, Predatory Lending, TILA

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Benjamin Eichel

Promotion Of Arbitration In The 21st Century

While pundits complain about the United States Supreme Court’s diminishing docket, one area of law seems to have increased in popularity with the justices: arbitration law, and in particular the Federal Arbitration Act (FAA)…more

Arbitration, Federal Arbitration Act, SCOTUS

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Thomas Engellenner

The Curious Case Of Human Gene Patents

The U.S. Supreme Court heard oral arguments last month in the matter of Association for Molecular Pathology v. Myriad Genetics, a curious case that does not bode well for America’s biotechnology industry and could overturn 30…more

ACLU, AMP v Myriad, DNA, Free Trade Agreement, Human Genes

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Henry Fader

Negotiation Tactics To Consider As Dispute Over Control Of EHR Brews In Milwaukee

A contractual dispute between an electronic health records (EHR) vendor and a federally qualified community health center based in Milwaukee over access to, possession of, control over electronic patient medical records…more

EHR, Vendors

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John P. Falco

CFTC Adopts Final Harmonization Rules For Registered Investment Companies Dually Registered As Commodity Pool Operators

Eighteen months after amending CFTC Regulation 4.5 to narrow the registered investment company (RIC) exclusion from the definition of commodity pool operator (CPO) and issuing a companion release proposing to amend certain…more

CFTC, CPO, NFA, Registration, RICs

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Maria Feeley

Third Circuit Reconciles Split Over The Standard For Deciding Motions To Compel Arbitration And Clarifies When Discovery Is Allowed On The Arbitrability Issue

In Guidotti v. Legal Helpers Debt Resolution, LLC, the United States Court of Appeals for the Third Circuit reconciled a split on which standards apply to motions to compel arbitration, concluding that the Rule 12(b)(6)…more

Arbitration, Discovery, Motion to Dismiss, Split of Authority

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Ralph Finizio

Five Document Management Strategies That Reduce Burdens Of E-Discovery In Construction Claims

Litigants in all industries, including construction, have to deal with electronic documents. Collecting, processing, reviewing and producing these documents involves substantial expenditures of time, manpower and money, often…more

Construction Disputes, Data Retention, Document Retention Policies, Electronically Stored Information, Litigation Hold

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John M. Ford

CFTC Adopts Final Harmonization Rules For Registered Investment Companies Dually Registered As Commodity Pool Operators

Eighteen months after amending CFTC Regulation 4.5 to narrow the registered investment company (RIC) exclusion from the definition of commodity pool operator (CPO) and issuing a companion release proposing to amend certain…more

CFTC, CPO, NFA, Registration, RICs

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Todd Fracassi

Fourth Circuit Brownfields Decision Stops Short Of Worst-Case Outcome

In a closely watched Superfund case decided April 4, 2013, the Fourth Circuit Court of Appeals interpreted the scope of landowner liability protections Congress put in place in 2002 to "promote the cleanup and reuse of…more

Bona Fide Purchaser, Brownfield Properties, CERCLA, Liability, Superfund

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Jeremy D. Frey

Long Time Coming: United States Wins First Extradition On Antitrust Charge

On April 4, 2014, the U.S. Department of Justice (DOJ) announced its first-ever successfully litigated extradition of a foreign citizen to the United States in a federal criminal antitrust case. This was an inevitable next step…more

Antitrust Litigation, DOJ, Extradition

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Robert Friedel

Private Placements Under New Rule 506(c) – Interplay With Other Exemptions And State Law Implications

A fundamental precept of the federal securities laws is that any purchase or sale of a security must either be registered under the Securities Act of 1933 (the Securities Act) or qualify for an exemption from registration…more

General Solicitation, Investors, JOBS Act, Private Placements, Registration

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Robert Gallagher

Five Document Management Strategies That Reduce Burdens Of E-Discovery In Construction Claims

Litigants in all industries, including construction, have to deal with electronic documents. Collecting, processing, reviewing and producing these documents involves substantial expenditures of time, manpower and money, often…more

Construction Disputes, Data Retention, Document Retention Policies, Electronically Stored Information, Litigation Hold

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Clayton Garrett

Tax Developments Affecting Health Care Organizations (Presentation)

In this Issue: •Income recognition issues associated with bundled payment arrangements •Income recognition related to electronic health records •Developments involving the nonaccrual experience method of accounting…more

Bundled Payments, Data Protection, EHR, Healthcare, PHI

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William Gibson

Long Time Coming: United States Wins First Extradition On Antitrust Charge

On April 4, 2014, the U.S. Department of Justice (DOJ) announced its first-ever successfully litigated extradition of a foreign citizen to the United States in a federal criminal antitrust case. This was an inevitable next step…more

Antitrust Litigation, DOJ, Extradition

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Howard Goldberg

New Regulations Provide Advantageous Acquisition Structures

New regulations issued by Treasury under Section 336(e) permit certain stock acquisitions to be treated as asset purchases, allowing buyers access to stepped-up asset basis and corresponding depreciation and amortization…more

Acquisitions, Amortization, Asset Purchaser, Depreciation, Mergers

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Michael Golden

Five Cost/Price Evaluation Lessons From Recent Bid Protest Decisions

Introduction - In this era of sequestration and decreased defense spending, paying close attention to cost and price issues is of paramount importance to contractors submitting proposals to the federal government. Nine…more

COFC, Contractors, Defense Contracts, GAO, Sequestration

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Jeffrey M. Goldman

Newly Enacted State Laws Will Affect Companies Operating In California

With the New Year comes a slew of California employment regulations that every company conducting business in the Golden State must follow. Unless otherwise stated, the following Assembly bills (ABs) go into effect…more

Breastfeeding, Discrimination, FEHA, Over-Time, Passwords

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Leslie Gomez

Title IX: Responding To Sexual Harassment And Violence Incidents

Confronting these emotionally laden, incendiary events requires an even-handed and fearless approach - A senior administrator recently described the issues related to sexual misconduct as a dormant volcano that lies…more

Corporate Counsel, Harassment, Sexual Harassment, Title IX, Workplace Violence

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Alexander Gonzalez

Don’t Short Before The Deal, SEC Reminds Hedge Funds And Buyside Firms

On September 17, 2013, the Securities and Exchange Commission (SEC) announced enforcement actions against 23 investment firms for violations of Rule 105 of SEC Regulation M. Rule 105 generally prohibits short selling securities…more

Enforcement Actions, Hedge Funds, Public Offerings, Regulation M, SEC

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M. Duncan Grant

Third Circuit: Securities Fraud Liability May Be Imputed To Employer Whose Employee Ran Ponzi Scheme On The Side

On February 22, 2013, in the precedential opinion in Belmont v. MB Inv. Partners, Inc., a unanimous panel of the U.S. Court of Appeals for the Third Circuit (Judges Anthony J. Scirica, D. Michael Fisher and Kent A. Jordan)…more

Negligent Supervision, Ponzi Scheme, Securities Fraud, Vicarious Liability

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Matthew Greenberg

Delaware Supreme Court Confirms That Appropriate Procedural Safeguards Will Result In Business Judgment Review Of Going-Private Transactions

In a 2013 decision, the Delaware Court of Chancery ruled that the business judgment standard of review should apply to a going-private transaction where certain procedural safeguards were implemented to protect minority…more

Business Judgment Rule, Minority Shareholders, Shareholder Litigation, Shareholders, Summary Judgment

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Frank H. Griffin

Supreme Court Holds That Courts Must Defer To Arbitrators In First Case Addressing International Investment Treaty Arbitration

On March 5, 2014, the United States Supreme Court decided BG Group, PLC v. Republic of Argentina, the first case in which the Court addressed an international investment treaty arbitration (a case between a private investor and…more

BG Group v Republic of Argentina, Bilateral Investment Treaties, Foreign Arbitration Clauses, International Arbitration, SCOTUS

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Joyce Hackenbrach

Smart Contracting For Green Design And Construction

Originally published in Green Building News, February 20, 2013. Successful green building requires more planning and, preferably, a greater degree of integration in overall project delivery, than building without green…more

AIA Construction Forms, Construction Contracts, Design-Bid-Build, ENERGY STAR Program, Green Buildings

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Vicki Harding

Right Or Wrong, Dewsnup Is Law

A Chapter 13 debtor sought to void a federal tax lien under Section 506(d) of the Bankruptcy Code to the extent that it exceeded the value of his assets. The Seventh Circuit joined the Tenth Circuit in holding that the U.S…more

Chapter 13, Chapter 7, Consumer Bankruptcy, Tax Liens

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Ruth Harlow

Bill Baer Announces First Major Policy Shift And Provides 2013 Antitrust Division Update

Bill Baer assumed his post as leader of the U.S. Department of Justice (DOJ) Antitrust Division in January of this year and is starting to make his mark…more

Antitrust Investigations, Antitrust Litigation, DOJ, Enforcement, Political Appointments

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Alexander Harris

FTC Finalizes Amendments To HSR Rules Regarding Transfer Of Exclusive Patent Rights In The Pharmaceutical Industry

The Federal Trade Commission (FTC) has finalized certain amendments to the Hart-Scott-Rodino (HSR) premerger notification regulations clarifying the scope of reportable transactions involving transfers of patent rights in the…more

FTC, Hart-Scott-Rodino Act, Licenses, Manufacturers, Patents

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Melissa Hatch

State Action Doctrine At The Supreme Court: Take Two

The Supreme Court has a renewed interest in the state action doctrine. After declining to clarify what types of state action are exempt from federal antitrust scrutiny for years, the Supreme Court agreed to hear its second case…more

Antitrust Litigation, FTC, FTC v. Phoebe Putney Health System, SCOTUS, State Action Doctrine

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Andrea Hayden

Greenhouse Gas Emissions From Power Plants: What’s In Store For New And Existing Plants?

Among the various Clean Air Act programs, it has been suggested that the New Source Performance Standards program provides the best vehicle for a manageable and effective reduction in greenhouse gas emissions. On June 25…more

Carbon Emissions, Energy, Environmental Policies, EPA, Greenhouse Gas Emissions

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Robert Hertzberg

U.S. Supreme Court Agrees To Hear Government’s Appeal Of Sixth Circuit’s Ruling In U.S. v. Quality Stores That SUB Payments Are Not ‘Wages’ Subject To FICA Taxation

On October 1, 2013, the U.S. Supreme Court agreed to hear the federal government’s appeal of the Sixth Circuit’s decision in United States v. Quality Stores, Inc. (In re Quality Stores, Inc.), 693 F.3d 605 (6th Cir. 2012),…more

FICA Taxes, Quality Stores, SCOTUS, SUB Payments, Wages

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Paul Hespel

Debt Markets: Taper Your Enthusiasm – An Update

The debt markets have outperformed themselves during 2013, harkening back to the boom years of 2005 through 2007. That is, if you measure performance by the amount of liquidity in the market. In the context of an overall…more

Debt, EBITDA, Federal Reserve, Hedge Funds, Interest Rates

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Robert L. Hickok

U.S. Supreme Court To Decide Whether Companies And Directors Can Be Held Liable For False Opinions Or Beliefs In Registration Statements Without Knowledge Of Falsity

On March 3, 2014, the United States Supreme Court granted certiorari to review the Sixth Circuit’s decision in Indiana State District Council of Laborers v. Omnicare, 719 F.3d 498 (6th Cir. 2013), to determine whether an issuer…more

Board of Directors, Directors, Personal Liability, Professional Liability, SCOTUS

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Michael Hordell

Progress Report On DOD’s Adoption Of Renewable Energy Sources Shows Positive Signs

The Pew Charitable Trusts issued a report this month on the progress of the Department of Defense (DoD) in meeting its renewable energy goals – goals set over a period of years through various means, including legislation. The…more

DOD, Energy Efficiency, Energy Policy, Renewable Energy

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Chris Howard

Club Deals: Analysis Of Legal Risks And Potential Consequences

This article analyzes the legal risks and potential consequences of private equity firms collaborating with one another to create consortiums or so-called "clubs" to jointly bid for acquisition of a publicly listed target…more

Acquisitions, DOJ, Investigations, Private Equity, Risk Assessment

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Christina Hud

Securities And Exchange Commission Creates New Private Fund Unit Dedicated To Examination Of Private Equity And Hedge Funds

On April 7, 2014, it was announced that the United States Securities and Exchange Commission (SEC) has created a new private fund unit dedicated to the examination of private equity and hedge funds…more

Enforcement, Hedge Funds, Private Equity, Private Funds, SEC

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Lance Jacobs

Purely Public Charity In Pennsylvania? Retirement Home Fails Tests In Dunwoody

The Pennsylvania Commonwealth Court recently upheld a decision that denied a property tax exemption to a continuing care retirement community in Dunwoody Village, Inc., 52 A. 3d 408 (Pa. Commw. Ct. 2012)…more

Charitable Organizations, Continuing Care Retirement Communities, Exempt Organizations, Retirement, Tax Exemptions

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Henry Jaffe

Update on Section 363 of the Bankruptcy Code and Delaware Bankruptcy Court’s Decision in the Fisker Automotive Holdings Inc. Bankruptcy Case

Section 363 of the Bankruptcy code has been a topic of discussion in legal circles lately. We are joined by Henry Jaffe, a partner in Pepper’s Corporate Restructuring and Bankruptcy Practice Group, to discuss Section 363 and…more

363 Sales, Commercial Bankruptcy, Fisker

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Matthew Janssen

FINRA’s 2014 Regulatory And Examination Priorities Address Existing And Emerging Investor Protection And Market Integrity Issues

On January 2, the Financial Industry Regulatory Authority (FINRA) published its annual regulatory and examination priorities letter. The letter identifies and sets forth how FINRA intends to address significant risks and issues…more

Algorithmic Trading, Broker-Dealer, Cybersecurity, Financial Reporting, FINRA

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Kevin M. Johnson

As Foreign Banks May Disclose U.S. Depositors, Foreign Account Holders Should Consider IRS OVDI Program

In December, Bank Leumi le-Israel BM issued a letter notifying its U.S. account holders about the IRS Offshore Voluntary Disclosure Initiative (the OVDI). The IRS OVDI is a type of amnesty program under which U.S. citizens and…more

Bank Leumi, FBAR, Foreign Banks, IRS, OVDP

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John Jones, Jr.

Great Investment For Doctors: Joint Venture Pharmacies

With reimbursement levels declining, health care organizations, including pharmacies and physicians, continue to look for ways to diversify their businesses. A very attractive vehicle for increasing revenues has been ancillary…more

Healthcare, Joint Venture, Pharmacies, Physicians, Reimbursements

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Kenneth Joseph

2014 Brings Changes In Pennsylvania Realty Transfer Tax

Act 52 of 2013 amended many provisions of Pennsylvania state taxes, including some relatively minor changes to the realty transfer tax that took effect on January 1, 2014. The most significant change to the realty transfer tax…more

Property Tax, Real Estate Market, Real Estate Transfers, Transfer Taxes

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Michael Kadlec

IRS Announces All Same-Sex Marriages Recognized For Federal Tax Purposes

Yesterday the U.S. Department of Treasury and the Internal Revenue Service (IRS) announced that, as a result of the holding in U.S. v. Windsor that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, the…more

DOMA, Federal Taxes, IRS, Retirement Plan, Same-Sex Marriage

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Mark Kadzielski

Tax Developments Affecting Health Care Organizations (Presentation)

In this Issue: •Income recognition issues associated with bundled payment arrangements •Income recognition related to electronic health records •Developments involving the nonaccrual experience method of accounting…more

Bundled Payments, Data Protection, EHR, Healthcare, PHI

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Odia Kagan

Practice ‘Bring Your Own Device’? Here’s How to Avoid Legal Trouble

The "Bring Your Own Device" (BYOD) trend has risen dramatically in the last year, but with its increased use comes risks that employers and employees are not equipped to manage. Employers should practice the following in order…more

Bring Your Own Device, Employer Liability Issues

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David Kaplan

NYSE And NASDAQ Compensation Committee And Compensation Advisers Listing Standards

Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Act) provides standards and disclosure requirements related to the independence of compensation committees and their retained advisors. To…more

Compensation Committee, Dodd-Frank, Listing Standards, Nasdaq, NYSE

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Brian Katz

Practical Considerations For A Rule 506(c) General Solicitation

So you want to jump into the fray and take advantage of the new opportunities created by the JOBS Act’s elimination of the ban on general advertising of private placements?…more

Advertising, Dodd-Frank, General Solicitation, JOBS Act, Private Placements

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Colleen Kelly

Misbranded Drugs: A Danger To Physicians And Patients

Mail-order businesses, including pharmacies, bombard doctors by fax, phone, and Internet offering an assortment of name-brand medications and treatments at bargain prices. These new options tempt physicians with the promise of…more

Counterfeit Drugs, Criminal Prosecution, FDA, FDCA, Healthcare

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Jee-Young Kim

Telemedicine Expansion—Navigating Potential Pitfalls

The fervent debate on health care underscores the need to deliver and make accessible quality health care to patients throughout the United States in an efficient and cost-effective manner. Amidst technological advancements, the…more

EHR, Healthcare, PHI, Telemedicine

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Sharon Klein

New Jersey Federal Court Upholds The FTC’s Authority To Regulate Data Security

On April 7, a highly anticipated opinion was issued by New Jersey District Court Judge Esther Salas in a case that will likely have broad implications in the realms of privacy and data security. The case in question is FTC v…more

Data Protection, FTC, Jurisdiction, Wyndham

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Ivan Knauer

Securities And Exchange Commission Creates New Private Fund Unit Dedicated To Examination Of Private Equity And Hedge Funds

On April 7, 2014, it was announced that the United States Securities and Exchange Commission (SEC) has created a new private fund unit dedicated to the examination of private equity and hedge funds…more

Enforcement, Hedge Funds, Private Equity, Private Funds, SEC

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Brian Korn

No Easy A: SEC Proposes Rules For Regulation A+

In the last of its major rulemaking proposals under the JOBS Act, on December 18, 2013, the U.S. Securities and Exchange Commission (SEC) voted to publish proposed rules to modify and develop Regulation A, the so-called (and…more

Crowdfunding, Investors, JOBS Act, Preemption, Public Offerings

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Deborah Kovsky-Apap

Village At Camp Bowie: The Fifth Circuit Weighs In On Artificial Impairment

A key tenet of reorganization under Chapter 11 is that if the debtor’s plan impairs creditors, at least some of those creditors must agree to the plan. More specifically, “if a class of claims is impaired under the plan, at…more

Artificial Impairment, Chapter 11, Creditors, Debtors, Reorganizations

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Andrew Kupchik

Social Media Use By Public Companies – The SEC Weighs In

The increasing presence of social media has created new avenues for companies to market to and connect with consumers, customers and investors. Many heads of industry maintain very public profiles, appearing regularly on…more

Facebook, Investors, Netflix, Public Disclosure, Reed Hastings

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Francis Lane

The Louisiana Supreme Court's Decision In Caldwell v. Janssen And The Broader Implications

On January 28, 2014, the Supreme Court of Louisiana set aside a judgment of $257 million in civil penalties that a lower court had entered in favor of the state against Janssen under the Louisiana Medicaid false claims act,…more

Civil Monetary Penalty, False Claims Act, Fraud, Healthcare, Healthcare Fraud

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P. Thao Le

Private Equity Co-Investments

Interest in co-investment opportunities has increased over the years due to investor demands for lower-cost investments and the need of fund sponsors to differentiate themselves from other private equity firms. As institutional…more

Co-Investment Rights, Fundraisers, Investors, Private Equity, Private Funds

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Robert Leahy

Progress Report On DOD’s Adoption Of Renewable Energy Sources Shows Positive Signs

The Pew Charitable Trusts issued a report this month on the progress of the Department of Defense (DoD) in meeting its renewable energy goals – goals set over a period of years through various means, including legislation. The…more

DOD, Energy Efficiency, Energy Policy, Renewable Energy

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Charles Leasure, III

Claims: Government Investigations, Enforcement and Triggering Insurance Coverage Under D and O Insurance

Recently, Pepper attorneys Frank A. Mayer, III and Charles E. Leasure, III gave a presentation on when an examination of a regulated institution triggers a claim and benefits under an insurance policy. They discussed the latest…more

Board of Directors, D&O Insurance, Investigations, Professional Liability

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Paul Legaard

Federal Circuit Clarifies Patent Term Adjustment Provisions

On January 15, 2014, the Federal Circuit issued in Novartis v. Lee its anticipated opinion regarding the proper interpretation of 35 U.S.C. § 154, the statute that determines how patent term adjustment (PTA) is calculated. The…more

Patent Litigation, Patent Reform, Patent Term Adjustment, Patent Terms, Patents

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Timothy Leska

Proposed Section 752 Regulations Would Prohibit Bottom Guarantees And Impose Net Worth Requirements In UPREIT Transactions

The IRS has recently proposed regulations under Section 752 of the Code which, if finalized in current form, would radically change the use of guarantees in partnership transactions. Under these regulations, bottom guarantees…more

Business Taxes, Corporate Taxes, Income Taxes, IRS, Partnerships

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Susan Lessack

President Obama Takes Two Executive Actions Aimed At Promoting Equal Pay For Employees Of Federal Contractors

The White House announced on April 8 that President Obama took two executive actions “to help combat pay discrimination and strengthen enforcement of equal pay laws.” By limiting these actions to federal government contractors,…more

Equal Pay, Executive Orders, Federal Contractors

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Thomas Letizia

NJ Law Grants Tenants Implied Right To Attorney’s Fees Under Residential Leases

New Jersey’s residential landlord/tenant statute has long been considered “tenant-friendly.” This trend continues with the recent enactment of Assembly Bill 3851signed into law by Gov. Chris Christie on January 17, 2014. Under…more

Attorney's Fees, Landlords, Leases, Residential Leases, Tenants

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Jonathan Levin

Mortgage Banking Takes Center Stage At OCC

On February 7, 2014, the Office of the Comptroller of the Currency (OCC) published a 232-page Mortgage Banking component to the Comptroller’s Handbook, its primary source of guidance for national banks and federal savings…more

Banks, CFPB, Mortgages, OCC, Qualified Mortgage Rule

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Jan Levine

State Action Doctrine At The Supreme Court: Take Two

The Supreme Court has a renewed interest in the state action doctrine. After declining to clarify what types of state action are exempt from federal antitrust scrutiny for years, the Supreme Court agreed to hear its second case…more

Antitrust Litigation, FTC, FTC v. Phoebe Putney Health System, SCOTUS, State Action Doctrine

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Lindsay Levine

Superior Court Of Pennsylvania Sets Forth Standard For Evaluating Whether An Insured Must Honor Consent To Settlement Clauses

In The Babcock & Wilcox Co. v. Am. Nuclear Insurers, No. 525 WDA 2012, 2013 Pa. Super. LEXIS 1630 (Pa. Super. Ct. July 10, 2013), the Superior Court of Pennsylvania addressed the circumstances under which an insured, who does…more

Consent, Insureds, Insurers, Settlement

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William Liess

Anti-Corruption Law And The Oil And Gas Industry: Evolutions In Both Demand Vigilance

Businesses in the oil and gas industry are cautioned to pay careful attention to evolutions in anti-corruption law in the jurisdictions where they operate. The U.S. government has successfully enforced the Foreign Corrupt…more

Anti-Corruption, Canada, CFPOA, Corruption, Dodd-Frank

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Steven London

The Pepper 5: On 2014 Venture Capital Funding Outlook

This is a podcast series where we ask Pepper attorneys five key questions on topics that are top of mind for our clients. Today we are focusing on venture funding and our guest is Pepper partner Steven R. London from our Boston…more

Venture Capital

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Robert C. Ludolph

Are You Ready For Your Next Audit?

By now, federal contractors should have taken a hard look at their current Affirmative Action Plan (AAP) policies, procedures and documentation to ensure compliance with the new requirements. Under the Office of Federal Contract…more

Affirmative Action, Audits, Federal Contractors, Hiring & Firing, OFCCP

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Thomas Madigan

Supreme Court Clarifies Jurisdiction Over Claims Arising Under Procurement Code

The Pennsylvania Supreme Court recently confirmed the absolute right of Commonwealth agencies to withdraw solicitations for contracts, as well as the exclusive jurisdiction of the Board of Claims to hear disputes with the…more

Bids, Contract Solicitation, Jurisdiction, Sovereign Immunity

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Matthew J. Maguire

What’s The Big Idea? Protecting Employer-Owned Intellectual Property

Originally published in the December 2012 issue of The HR Specialist. With the year-end holidays fast approaching, many businesses are in the midst of assessing their 2012 performance and planning for 2013. If those plans…more

Bratz, Call of Duty, Copyright, Employer-Owned Intellectual Property, Employment Contract

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Bipul Mainali

Club Deals: Analysis Of Legal Risks And Potential Consequences

This article analyzes the legal risks and potential consequences of private equity firms collaborating with one another to create consortiums or so-called "clubs" to jointly bid for acquisition of a publicly listed target…more

Acquisitions, DOJ, Investigations, Private Equity, Risk Assessment

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Andrew R. Mavraganis

Federal Court Agrees With Magistrate That Whether A Tribal Lender Is A For-Profit Corporation Is A Triable Issue Of Fact

On March 7, 2014, the United States District Court for the District of Nevada in Federal Trade Commission (the FTC) v. AMG Services, Inc., et al. granted a partial victory to Indian tribal payday lenders in their ongoing fight…more

EFTA, FTC, Payday Loans, Predatory Lending, TILA

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Frank A. Mayer, III

Mortgage Banking Takes Center Stage At OCC

On February 7, 2014, the Office of the Comptroller of the Currency (OCC) published a 232-page Mortgage Banking component to the Comptroller’s Handbook, its primary source of guidance for national banks and federal savings…more

Banks, CFPB, Mortgages, OCC, Qualified Mortgage Rule

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Amy McAndrew

New Jersey Enacts Law Providing Increased Protection To Pregnant Employees

Earlier this week, New Jersey Gov. Chris Christie signed into law a bill that expressly bans pregnancy discrimination in the workplace and requires employers to provide reasonable accommodations for workers on the basis of…more

Employee Rights, Pregnancy, Pregnancy Discrimination

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Ellen McElroy

Tax Developments Affecting Health Care Organizations (Presentation)

In this Issue: •Income recognition issues associated with bundled payment arrangements •Income recognition related to electronic health records •Developments involving the nonaccrual experience method of accounting…more

Bundled Payments, Data Protection, EHR, Healthcare, PHI

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Deirdre McInerney

Just How Much Integration Is Enough: FTC Advisory Opinion Finally Provides Guidance For Competitors Seeking To Collaborate Or Jointly Negotiate

The Federal Trade Commission (FTC) recently issued its first advisory opinion addressing clinical integration programs since the enactment of the Affordable Care Act (ACA). Without a doubt the advisory opinion is useful for the…more

Affordable Care Act, Blue Cross, Blue Shield, Clinical Integration, Competition

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Yvonne McKenzie

Consumer Protection Laws And Prescription Meds: A Poor Fit

Purchasers of prescription medications often file class actions in large, multidistrict litigation alleging that they were defrauded by manufacturers. In these actions, patients, many of whom disclaim any physical injury, become…more

Drug Manufacturers, Fraud, Multidistrict Litigation, Prescription Drugs

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Timothy R. McTaggart

The CFPB Issues Proposed International Money Transfer Larger Participant Rule

Proposed rule would subject international money transmitters with at least one million aggregate annual transfers to the CFPB’s supervision and examination of compliance with federal consumer financial laws. Originally…more

Banks, CFPB, Larger Participant, Money Transfer

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Benjamin Mittman

Observation 1.3 On The Volcker Rule: What Fund Managers Need To Know About The Volcker Rule Impact On Client Bank Investors

On April 1, 2014, the final regulations implementing the “Volcker Rule” became effective. The regulations were jointly adopted on December 10, 2013 by the Board of Governors of the Federal Reserve System (FRB), the Office of the…more

CFTC, Federal Reserve, Fund Managers, Investment Funds, Proprietary Trading

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Reza Mollaaghababa

Top Ten Reasons To File Your Patent Applications Before March 16, 2013

The recently enacted America Invents Act (AIA) introduces major changes to the U.S. patent laws, with some significant provisions taking effect on March 16, 2013. These provisions provide several compelling reasons to file…more

America Invents Act, Filing Deadlines, First-to-File, First-to-Invent, Patent Applications

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Rebekah Monson

The Omnibus Final HIPAA Rule Is Here

On January 17, 2013, the Office of Civil Rights of the U.S. Department of Health and Human Services (HHS) announced the omnibus final rulemaking (Omnibus Rule). According to HHS, this Omnibus Rule is needed to strengthen privacy…more

Business Associates, Data Protection, Electronic Medical Records, HHS, HIPAA

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Christopher Moran

Tips For Telecommuting After Telebright

In a case appealed from the tax court, the New Jersey Superior Court, Appellate Division, recently affirmed that an out-of-state employer was subject to the New Jersey corporation business tax because it allowed one of its…more

Business Taxes, Corporate Taxes, Telebright v Division of Taxation, Telecommuting

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Jeffrey Mullen

ConstructLaw - January 2014

U.S. Supreme Court Holds Forum-Selection Clauses Are Presumptively Enforceable - Atl. Marine Constr. Co. v. United States Dist. Court 2013 U.S. LEXIS 8775 (U.S. 2013) - This action arose out of a forum-selection…more

Architects, Atlantic Marine Construction Company, Construction Contracts, Construction Disputes, Forum

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Daniel Murray

CFPB Issues Final Mortgage Servicing Rules

On January 17, 2013, the Consumer Financial Protection Bureau (CFPB) issued two final servicing rules that amend and add new provisions to the Truth in Lending Act and the Real Estate Settlement Procedures Act (Rules), as…more

Adjustable-Rate Mortgage, CFPB, Delinquent Borrowers, Dodd-Frank, Loss Mitigation

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Gregory Narsh

OSHA Seeks Comments On New Proposed Standards For Control Of Workplace Exposure To Crystalline Silica

On August 23, 2013, the federal Occupational Safety and Health Administration (OSHA) announced a proposed rule regarding workplace exposure to crystalline silica. In fact, two separate rulemakings are anticipated: one that will…more

Chemicals, Employer Liability Issues, OSHA, Toxic Exposure, Workplace Hazards

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Anne Davies Newman

Beyond Privacy Policies: Practical Privacy For Web Sites And Mobile Apps

In this environment of growing attention to the risks of data security breaches, and in the midst of an explosion of mobile applications that make data storage an increasingly far-flung proposition, many organizations assume…more

Data Breach, Data Protection, FTC, Mobile Privacy, Privacy Policy

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Dayna Nicholson

When Is An iPad More Than An iPad? When It Is An FDA Regulated Medical Device

In the late 1980s, the Food and Drug Administration (FDA) began publicly suggesting that electronic medical records were within its jurisdiction. A lot has changed in 20+ years. The proliferation of mobile computing platforms…more

FDA, Medical Devices, mHealth, Technology

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Gregory Nowak

New Manager Forum Panel III – Post-launch Matters

Launching a new hedge fund or private equity fund can be one of the most exciting and rewarding ventures a person will ever undertake-and it can also be the most challenging, given today's competitive and demanding investing…more

Fund Managers, Hedge Funds, Managers, Private Equity

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Melissa Louise Nuñez

California Replaces Its Limited Liability Company Act

On January 1, 2014, the California Revised Uniform Limited Liability Company Act (the New Act) replaced California’s Beverly-Killea Limited Liability Company Act (Beverly-Killea), which was adopted in 1994. The New Act is…more

Compliance, Fiduciary Duty, LLC, Operating Agreements

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Gregory Paw

New Brazilian Legislation Addresses Bribery By Corporate Entities

Bill Provides Important Incentives for Corporate Compliance Programs - The millions of Brazilians protesting in recent weeks in cities and towns across Brazil have brought important and far-reaching corruption reform to…more

Anti-Corruption, Bribery, Compliance, Corruption, Employer Liability Issues

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Ryan E. Peters

Promotion Of Arbitration In The 21st Century

While pundits complain about the United States Supreme Court’s diminishing docket, one area of law seems to have increased in popularity with the justices: arbitration law, and in particular the Federal Arbitration Act (FAA)…more

Arbitration, Federal Arbitration Act, SCOTUS

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Lisa B. Petkun

Congress Re-Introduces Independent Contractor Misclassification Law

Sen. Bob Casey (D-PA) announced on November 12, 2013 that he had introduced a bill called the Payroll Fraud Prevention Act of 2013 at a hearing of the Senate Subcommittee on Employment and Workplace Safety. The bill is yet…more

Compliance, Employer Liability Issues, Fraud, Independent Contractors, Misclassification

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James Pfeifer

Breathing New Life Into Pennsylvania’s Environmental Rights Amendment

On Dec. 19, 2013, the Pennsylvania Supreme Court issued a controversial decision in Robinson Township v. Commonwealth of Pennsylvania addressing the injunction entered by the Commonwealth Court enjoining the enforcement of a…more

Environmental Policies, Oil & Gas

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Sarah Sandok Rabinovici

State Action Doctrine At The Supreme Court: Take Two

The Supreme Court has a renewed interest in the state action doctrine. After declining to clarify what types of state action are exempt from federal antitrust scrutiny for years, the Supreme Court agreed to hear its second case…more

Antitrust Litigation, FTC, FTC v. Phoebe Putney Health System, SCOTUS, State Action Doctrine

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Gay Parks Rainville

U.S. Supreme Court To Decide Whether Companies And Directors Can Be Held Liable For False Opinions Or Beliefs In Registration Statements Without Knowledge Of Falsity

On March 3, 2014, the United States Supreme Court granted certiorari to review the Sixth Circuit’s decision in Indiana State District Council of Laborers v. Omnicare, 719 F.3d 498 (6th Cir. 2013), to determine whether an issuer…more

Board of Directors, Directors, Personal Liability, Professional Liability, SCOTUS

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Michael Reed

U.S. Supreme Court Agrees To Hear Government’s Appeal Of Sixth Circuit’s Ruling In U.S. v. Quality Stores That SUB Payments Are Not ‘Wages’ Subject To FICA Taxation

On October 1, 2013, the U.S. Supreme Court agreed to hear the federal government’s appeal of the Sixth Circuit’s decision in United States v. Quality Stores, Inc. (In re Quality Stores, Inc.), 693 F.3d 605 (6th Cir. 2012),…more

FICA Taxes, Quality Stores, SCOTUS, SUB Payments, Wages

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Richard J. Reibstein

Three Requirements For New York Employers In The New Year

This is a friendly reminder to clients employing workers in New York that they need to comply with the annual pay notice requirement of the state’s Wage Theft Prevention Act (WTPA) by February 1, 2014. As with previous years,…more

Compliance, Employee Rights, FLSA, Pregnancy, Pregnancy Discrimination

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Todd Reinstein

Rev. Proc. 2014-24 Provides Taxpayers Relief When Missing Form 1122 On Joining A Consolidated Group

On March 10, the IRS released Revenue Procedure 2014-24, establishing the rules for when the IRS will automatically determine that a subsidiary corporation that had failed to file a properly and timely executed Form 1122,…more

Consolidated Tax Returns, Corporate Taxes, IRS

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Jessica Rickabaugh

Defeating Economic Loss Claims In Pharma Class Actions

Where product liability actions or government investigators have targeted a prescription drug, class actions follow alleging that patients are entitled to a refund of what they paid for the medicine. The theory of these…more

Class Action, Economic Loss Doctrine, Pharmaceutical

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Joan Roll

Proposed Section 752 Regulations Would Prohibit Bottom Guarantees And Impose Net Worth Requirements In UPREIT Transactions

The IRS has recently proposed regulations under Section 752 of the Code which, if finalized in current form, would radically change the use of guarantees in partnership transactions. Under these regulations, bottom guarantees…more

Business Taxes, Corporate Taxes, Income Taxes, IRS, Partnerships

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James Rosener

Cross-Border Update on Investing and Doing Business in the United States

In this Issue: - Indian FDI into the United States - Indian Imports into the United States - Formation of US Subsidiaries - Ownership - Liability of Equity Holders - Management…more

Cross-Border, Exports, Foreign Investment, Imports, India

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Christopher Rossi

Broker In Disguise?

In this month’s challenge, Pepper Hamilton partners Christopher Rossi and Gregory Nowak explain when a firm may need to consider registering as a brokerdealer with the SEC. Originally Published in PEI's Private Equity…more

Broker-Dealer, JOBS Act, New Regulations, Regulation D, SEC

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Jamie Rotteveel

Unpaid And Underpaid Internships May Cost Employers

Over the past year, unpaid internships have garnered increasing attention. Ross Perlin, the author of “Intern Nation,” estimated in 2011 that more than a million people participate in internships each year in the United States,…more

Employer Liability Issues, Internships, Misclassification, Unpaid Interns

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Andrew J. Rudolph

Congress Re-Introduces Independent Contractor Misclassification Law

Sen. Bob Casey (D-PA) announced on November 12, 2013 that he had introduced a bill called the Payroll Fraud Prevention Act of 2013 at a hearing of the Senate Subcommittee on Employment and Workplace Safety. The bill is yet…more

Compliance, Employer Liability Issues, Fraud, Independent Contractors, Misclassification

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David Russo

Business Forum: Overseas Firms Look To U.S. For IPOs

When China's e-commerce giant Alibaba -- with a valuation that may make it the world's third-largest Internet company behind only Google and Amazon -- made the decision to go public, listing in Hong Kong was its natural first…more

China, FINRA, Foreign Corporations, Foreign Investment, IPO

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AnnMarie Sanford

DTSC Announces Initial Proposed Priority Products List Under The Safer Consumer Products Program – The First Green Chemistry Shoe Drops

Today, March 13, 2014, the California Department of Toxic Substances Control (DTSC) issued its Initial Proposed Priority Products list under the Safer Consumer Products (SCP) Program. The products are: paint and varnish…more

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Stephanie Savino

Third Circuit Reconciles Split Over The Standard For Deciding Motions To Compel Arbitration And Clarifies When Discovery Is Allowed On The Arbitrability Issue

In Guidotti v. Legal Helpers Debt Resolution, LLC, the United States Court of Appeals for the Third Circuit reconciled a split on which standards apply to motions to compel arbitration, concluding that the Rule 12(b)(6)…more

Arbitration, Discovery, Motion to Dismiss, Split of Authority

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John Henry Schanne, II

In Confirming Indianapolis Downs Chapter 11 Plan, Delaware Bankruptcy Court Provides Guidance On Permissibility Of Binding Plan Support Agreements

On January 31, 2013, the United States Bankruptcy Court for the District of Delaware (the court) upheld a post-petition “lock-up” agreement in approving confirmation of the proposed plan in In re Indianapolis Downs, LLC, 2013…more

Chapter 11, Creditors, Debtors, Lock-Up Agreement, Reorganizations

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Blair L. Schiff

Summary Of HUD’s LEAN 232 Program E-Mail Blast: Office Of Residential Care Facilities (ORCF), February 27, 2014

In an effort to summarize the highlights of the U.S. Department of Housing and Urban Development (HUD) LEAN E-mail Blasts that we receive, and rarely have time to review in a timely fashion, we at Pepper are providing this quick…more

Delinquent Borrowers, HUD, HUDD, Interest Rates, LEAN Program

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Craig Schwartz

Five Cost/Price Evaluation Lessons From Recent Bid Protest Decisions

Introduction - In this era of sequestration and decreased defense spending, paying close attention to cost and price issues is of paramount importance to contractors submitting proposals to the federal government. Nine…more

COFC, Contractors, Defense Contracts, GAO, Sequestration

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Daniel Scolnick

Federal Circuit Clarifies Patent Term Adjustment Provisions

On January 15, 2014, the Federal Circuit issued in Novartis v. Lee its anticipated opinion regarding the proper interpretation of 35 U.S.C. § 154, the statute that determines how patent term adjustment (PTA) is calculated. The…more

Patent Litigation, Patent Reform, Patent Term Adjustment, Patent Terms, Patents

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Barbara Sicalides

FTC Finalizes Amendments To HSR Rules Regarding Transfer Of Exclusive Patent Rights In The Pharmaceutical Industry

The Federal Trade Commission (FTC) has finalized certain amendments to the Hart-Scott-Rodino (HSR) premerger notification regulations clarifying the scope of reportable transactions involving transfers of patent rights in the…more

FTC, Hart-Scott-Rodino Act, Licenses, Manufacturers, Patents

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Matthew R. Silver

New Congressional Bill Would Exempt Business Brokers From Full SEC/FINRA Broker Registration

On November 4, 2013, the U.S. House of Representatives Committee on Financial Services, by a 57-0 vote, ordered H.R. 2274 to be reported for further consideration. The bill, named the “Small Business Mergers, Acquisitions,…more

Broker-Dealer, Brokers, Exemptions, FINRA, Proposed Legislation

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Cynthia De Lisi Smith

NJ Law Grants Tenants Implied Right To Attorney’s Fees Under Residential Leases

New Jersey’s residential landlord/tenant statute has long been considered “tenant-friendly.” This trend continues with the recent enactment of Assembly Bill 3851signed into law by Gov. Chris Christie on January 17, 2014. Under…more

Attorney's Fees, Landlords, Leases, Residential Leases, Tenants

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Gina Maisto Smith

Title IX: Responding To Sexual Harassment And Violence Incidents

Confronting these emotionally laden, incendiary events requires an even-handed and fearless approach - A senior administrator recently described the issues related to sexual misconduct as a dormant volcano that lies…more

Corporate Counsel, Harassment, Sexual Harassment, Title IX, Workplace Violence

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John Snodgrass

Public Officials, Financial Disclosure And A New Era Of Liability

The Securities and Exchange Commission is making it clear: Government leaders who issue misleading financial information are putting themselves at risk. Several recent actions by the Securities and Exchange Commission…more

Disclosure Requirements, Governmental Liability, Investors, Misleading Statements, Municipal Bonds

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Christopher Soper

Supreme Court Of New Jersey Establishes Standard To Determine Whether A Party Implicitly Waived Its Right To Arbitrate

Mandatory arbitration provisions are not always enforced…more

Arbitration, Enforcement, Mandatory Arbitration Clauses, Waivers

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Stanley Soya

Prosecution Of Frauds And Crimes In The C-Suite: What Can We Learn From These Cases And Trends?

The press, members of Congress, and judges have become increasingly vocal in condemning what they perceive to be inadequate criminal prosecution of executives responsible for corporate crimes. In response, U.S. Department of…more

C-Suite Executives, Compliance, Criminal Prosecution, Deferred Prosecution Agreements, DOJ

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Frank P. Spada, Jr.

Unionized Employers Take Note Of The Recent Supreme Court Ruling Under The FLSA

On January 27, 2014, a unanimous U.S. Supreme Court interpreted the meaning of the term “changing clothes” found in the Fair Labor Standards Act (FLSA or Act), specifically at 29 U.S.C. § 203(o). This case is significant for…more

FLSA, Protective Gear, Sandifer v U.S. Steel Corp, SCOTUS, Unions

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Michael Staebler

Description Of The Small Business Investment Company Program Participation By Funds Using Debentures

A Small Business Investment Company (SBIC) is a privately owned and operated company that makes long-term investments in American small businesses and is licensed by the United States Small Business Administration (SBA)…more

Business Development, Funding, Investors, SBA, Small Business

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Ryan Stewart

Five Document Management Strategies That Reduce Burdens Of E-Discovery In Construction Claims

Litigants in all industries, including construction, have to deal with electronic documents. Collecting, processing, reviewing and producing these documents involves substantial expenditures of time, manpower and money, often…more

Construction Disputes, Data Retention, Document Retention Policies, Electronically Stored Information, Litigation Hold

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Angelo Stio III

Ethical Issues That Arise From Social Media Use In Courtrooms

With the rampant expansion of social media and online technologies over the past decade, it is no surprise that Facebook, MySpace, Twitter, Instagram, YouTube and blogs have made their way into the courtroom, pervaded the jury…more

Ethics, Jury Selection, Legal Ethics, Social Media

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Joseph Sullivan

Civil Gideon And Access To Justice

As the United States celebrates the 50th anniversary of the landmark U.S. Supreme Court ruling in Gideon vs. Wainwright, recognizing a constitutional right to counsel to those charged with crimes who cannot afford…more

Gideon v Wainwright, Legal History, SCOTUS

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Robin Sumner

Federal Court Finds Actavis Applies Only To Settlements Involving Monetary Payments

A United States district court judge sitting in the District of New Jersey has held that only patent litigation settlements involving monetary payments from branded to generic pharmaceutical manufacturers are subject to the rule…more

Antitrust Litigation, Drug Manufacturers, FTC, FTC v Actavis, Pharmaceutical

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Bryan Tham

No Easy A: SEC Proposes Rules For Regulation A+

In the last of its major rulemaking proposals under the JOBS Act, on December 18, 2013, the U.S. Securities and Exchange Commission (SEC) voted to publish proposed rules to modify and develop Regulation A, the so-called (and…more

Crowdfunding, Investors, JOBS Act, Preemption, Public Offerings

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James Thompson, Jr.

Beverage, Pharma Producers Should Note Recent Settlement Of Pesticide Violations Under FIFRA

Beverage and pharma producers beware: The U.S. Environmental Protection Agency (EPA) recently has shown an interest in enforcing the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), a law traditionally associated…more

EPA, FIFRA, Food Safety, Hazardous Substances, Pesticides

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M. Kelly Tillery

Patently Lincoln

Some may know that Abraham Lincoln is the only president to apply for and be granted a U.S. Patent (No. 6,469 – “A Device for Buoying Vessels Over Shoals”), but few are aware that he was also an active patent litigator and a…more

Abraham Lincoln, Infringement, Patent Applications, Patents, USPTO

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Ryan Tooley

CFPB Issues Final Mortgage Servicing Rules

On January 17, 2013, the Consumer Financial Protection Bureau (CFPB) issued two final servicing rules that amend and add new provisions to the Truth in Lending Act and the Real Estate Settlement Procedures Act (Rules), as…more

Adjustable-Rate Mortgage, CFPB, Delinquent Borrowers, Dodd-Frank, Loss Mitigation

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David Tshudy

2013 Spring Land Use Seminar - Presentation

In This Presentation: - Purchasing/Financing Partially Approved Land Development Projects ..Information Gathering/Due Diligence ..Determining the Status of the Approval Process ..Expiration of Approvals,…more

Land Use Courts

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Jeffrey Vagle

New Jersey Federal Court Upholds The FTC’s Authority To Regulate Data Security

On April 7, a highly anticipated opinion was issued by New Jersey District Court Judge Esther Salas in a case that will likely have broad implications in the realms of privacy and data security. The case in question is FTC v…more

Data Protection, FTC, Jurisdiction, Wyndham

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Anthony Vale

The Louisiana Supreme Court's Decision In Caldwell v. Janssen And The Broader Implications

On January 28, 2014, the Supreme Court of Louisiana set aside a judgment of $257 million in civil penalties that a lower court had entered in favor of the state against Janssen under the Louisiana Medicaid false claims act,…more

Civil Monetary Penalty, False Claims Act, Fraud, Healthcare, Healthcare Fraud

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Gabriel Vidoni

Consumer Protection Laws And Prescription Meds: A Poor Fit

Purchasers of prescription medications often file class actions in large, multidistrict litigation alleging that they were defrauded by manufacturers. In these actions, patients, many of whom disclaim any physical injury, become…more

Drug Manufacturers, Fraud, Multidistrict Litigation, Prescription Drugs

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Bradley Voss

Delaware Supreme Court Confirms That Appropriate Procedural Safeguards Will Result In Business Judgment Review Of Going-Private Transactions

In a 2013 decision, the Delaware Court of Chancery ruled that the business judgment standard of review should apply to a going-private transaction where certain procedural safeguards were implemented to protect minority…more

Business Judgment Rule, Minority Shareholders, Shareholder Litigation, Shareholders, Summary Judgment

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William J. Walsh

DTSC Announces Initial Proposed Priority Products List Under The Safer Consumer Products Program – The First Green Chemistry Shoe Drops

Today, March 13, 2014, the California Department of Toxic Substances Control (DTSC) issued its Initial Proposed Priority Products list under the Safer Consumer Products (SCP) Program. The products are: paint and varnish…more

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Kali Wellington-James

Game Changer: NLRB Approves Unionization Of Northwestern University Football Players

On Wednesday, March 26, 2014, the National Labor Relations Board (NLRB) issued a ruling that could potentially change the landscape of college football and other collegiate sports when the Regional Director of the Chicago…more

College Athletes, NLRA, NLRB, Unions

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Lesley Welwarth

Village At Camp Bowie: The Fifth Circuit Weighs In On Artificial Impairment

A key tenet of reorganization under Chapter 11 is that if the debtor’s plan impairs creditors, at least some of those creditors must agree to the plan. More specifically, “if a class of claims is impaired under the plan, at…more

Artificial Impairment, Chapter 11, Creditors, Debtors, Reorganizations

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Gregory Williams

Top Ten Reasons To File Your Patent Applications Before March 16, 2013

The recently enacted America Invents Act (AIA) introduces major changes to the U.S. patent laws, with some significant provisions taking effect on March 16, 2013. These provisions provide several compelling reasons to file…more

America Invents Act, Filing Deadlines, First-to-File, First-to-Invent, Patent Applications

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Audrey Wisotsky

CFPB Issues Final Mortgage Servicing Rules

On January 17, 2013, the Consumer Financial Protection Bureau (CFPB) issued two final servicing rules that amend and add new provisions to the Truth in Lending Act and the Real Estate Settlement Procedures Act (Rules), as…more

Adjustable-Rate Mortgage, CFPB, Delinquent Borrowers, Dodd-Frank, Loss Mitigation

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Adam Wolfe

Be Careful What You Ask For: Michigan Limits Employer Access To Personal Social Media

Michigan’s Internet Privacy Protection Act (IPPA) prohibits employers from gaining access to applicant and employee personal Internet accounts. When the IPPA became effective on December 28, 2012, Michigan joined Maryland, whose…more

Data Collection, Electronic Devices, Internet Privacy Protection Acts, Passwords, Social Media

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Richard Zack

FIRREA: The New Weapon of Choice for Federal Prosecutors

In 2013, the Department of Justice Civil Division has brought several actions claiming violations of The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). Pepper Hamilton recently hosted a webinar…more

Financial Crimes, FIRREA, White Collar Crimes

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Michele Zarychta

Supreme Court Rules In Favor Of Plaintiffs In Amgen Securities Class Action

Continuing its recent trend of handing down plaintiff-friendly decisions in private securities class actions brought under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and SEC Rule 10b-5 (Rule 10b-5…more

Amgen Inc. v Connecticut Retirement Plans, Class Action, Class Certification, Fraud, Fraud-on-the-Market

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Brian Zurich

Ethical Issues That Arise From Social Media Use In Courtrooms

With the rampant expansion of social media and online technologies over the past decade, it is no surprise that Facebook, MySpace, Twitter, Instagram, YouTube and blogs have made their way into the courtroom, pervaded the jury…more

Ethics, Jury Selection, Legal Ethics, Social Media

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