Pepper Hamilton LLP

Crowdfunding Regulations

On October 30, 2015, the Securities and Exchange Commission (SEC) adopted final crowdfunding rules. More than two years after the publication of the proposed crowdfunding rules, the SEC approved regulations that permit companies…more

Blue Sky Laws, Broker-Dealer, Capital Raising, Compliance, Crowdfunding

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Recent Changes to the India-Mauritius Tax Treaty: What Does This Mean for American Investors?

The amendments may cause some uncertainty and anxiety for U.S. investors as they consider how these changes will impact business, income, profitability and the benefits or drawbacks of investing in India through Mauritius…more

Acquisitions, Capital Gains, Double Taxation, Foreign Direct Investment, India

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Is This the End of Arbitration for Consumer Financial Disputes?

The proposed rule has broad implications for the financial industry, which has relied on class action waivers in consumer agreements to ensure that arbitration is a cost-effective way of resolving disputes with customers…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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Tax Developments in 2016: Federal Tax (Part I) - Sections 355, 382, and 385; and new rules on partnership audits dominate landscape

Section 385 Proposed Regulations — Impact on Related-Party Financing - Section 385 has been in the Internal Revenue Code since 1969. It was enacted to provide guidance for whether to classify an interest in a corporation as…more

Audits, Bifurcation, Change of Ownership, Debt, Debt Instruments

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SEC Applies Advisers Act Provisions to Nonadvisor Fund Service Providers

The SEC continues to expand the scope of responsibilities and standards applicable to gatekeepers. In an application of the Investment Advisers Act of 1940 (Advisers Act) to the actions of a nonadviser fund service provider…more

Cease and Desist Orders, Dodd-Frank, Fiduciary Duty, Fraud, Investment Advisers Act of 1940

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Federal Court in Pennsylvania Strikes at the Heart of the Residential Mortgage System; Can Commercial Syndicated Loans and Mortgage Securitizations Survive Unscathed?

On June 30, 2014, the United States District Court for the Eastern District of Pennsylvania issued an important decision on Pennsylvania’s recording statutes in the case of Montgomery County, Pennsylvania, Recorder of Deeds, on…more

Loans, Mortgages, Real Estate Market

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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, Dodd-Frank, Pro Forma Sessions

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Top 5 Things You Should Know About Online Direct (P2P) Lending Law And Regulations — Before You Do Anything Else!

Few people following the crowdfunding space have been able to ignore the recent meteoric rise of online direct lending, often called “peer-to-peer” (P2P) lending. What started out as a simple one-to-multiple consumer lending…more

Broker-Dealer, Crowdfunding, FINRA, Investment Adviser, Investment Opportunities

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Tax Developments in 2016: Federal Tax (Part I) - Sections 355, 382, and 385; and new rules on partnership audits dominate landscape

Section 385 Proposed Regulations — Impact on Related-Party Financing - Section 385 has been in the Internal Revenue Code since 1969. It was enacted to provide guidance for whether to classify an interest in a corporation as…more

Audits, Bifurcation, Change of Ownership, Debt, Debt Instruments

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Student and Alumni Litigation

In This Issue: - Unionization of Students ..The New Meaning of “Student Union” ..Overview of Labor Laws and Organized Labor ..Unionization of Graduate Students ..The Northwestern University Case …more

College Athletes, Colleges, Employee Rights, Employer Liability Issues, Internships

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Music and the Blockchain

The promise of blockchain technology for the music industry is its ability to solve the problem of “shared facts” and to provide transparency in real time or near-real time. Advancing digital technology has created new…more

Blockchain, Digital Currency, Digital Media, Encryption, Music

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Pennsylvania Accepts Applications for Medical Marijuana Growers, Processors and Dispensaries

The Pennsylvania Department of Health will accept permit applications for medical marijuana grower/processors and dispensaries from February 20, 2017 until March 20, 2017, pursuant to its authority under the Medical Marijuana…more

Applications, Business Development, Decriminalization of Marijuana, Dispensaries, Marijuana

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Inside or Outside? How to Best Perform Your Company’s Social Media Background Check

No employer wants its employee’s bad behavior at work to become the next viral video. So it is not surprising that more employers have started using social media in the hiring process to screen out candidates who post…more

Background Checks, Discrimination, NLRA, NLRB, Popular

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Your Own Agreements Can Be Your Worst Enemy in IC Misclassification Cases

Companies that use independent contractors (ICs) typically require ICs to sign a contractor agreement prepared by the company. But, if it is drafted like the one reviewed in late September by the U.S. Court of Appeals for the…more

Contract Drafting, Corporate Counsel, Franchise Agreements, Franchisee, Franchisors

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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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Student and Alumni Litigation

In This Issue: - Unionization of Students ..The New Meaning of “Student Union” ..Overview of Labor Laws and Organized Labor ..Unionization of Graduate Students ..The Northwestern University Case …more

College Athletes, Colleges, Employee Rights, Employer Liability Issues, Internships

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Consumer Financial Regulation: Pennsylvania

A Q&A guide to consumer finance regulation in Pennsylvania. This Q&A addresses state-specific laws governing the offering and sale of consumer financial products and services, including credit cards, residential mortgages,…more

Consumer Financial Products, Consumer Lenders, Credit Cards, Debt Collection, Financial Services Industry

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A Possible Game-Changer for 'Silent' Arbitration Clauses

Companies and other business entities use arbitration clauses to protect themselves from class action liability. While they often use class action waivers that state the parties agree not to pursue class claims in arbitration,…more

Arbitration, Class Action Arbitration Waivers

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Federal Court in Pennsylvania Analyzes Which Types of Damage are Barred by Contractual Waiver of Consequential Damages

Jay Jala, LLC v. DDG Construction, Inc., No. 15-3948, 2016 US Dist. LEXIS 150969 (E.D. Pa. Nov. 1, 2016) - Jay Jala, LLC was the owner of a motel construction project in Allentown, Pennsylvania. DDG Construction, Inc. was…more

Consequential Damages, Construction Industry, Construction Litigation, Construction Project, Contract Terms

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What Your TV Wouldn’t Tell You and Your Fridge Didn’t Know: FTC Best Practices for Consumer-Facing IoT Devices

On January 27, the Federal Trade Commission (FTC) issued an FTC staff report titled “Internet of Things: Privacy & Security in a Connected World” (Report). The Report summarizes the FTC’s November 2013 workshop on the privacy…more

Best Practices, Corporate Counsel, FTC, Information Reports, Internet of Things

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1099ers Exposing Startups, Private Equity Firms to Costly Liability

A recent online edition of New York Magazine’s “Daily Intelligencer” includes a comprehensive article on how Silicon Valley startup tech companies using “the 1099 model” may be exposed to employment, tax and benefit law…more

1099s, Employer Liability Issues, Independent Contractors, Popular, Private Equity

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Top 5 Things You Should Know About Online Direct (P2P) Lending Law And Regulations — Before You Do Anything Else!

Few people following the crowdfunding space have been able to ignore the recent meteoric rise of online direct lending, often called “peer-to-peer” (P2P) lending. What started out as a simple one-to-multiple consumer lending…more

Broker-Dealer, Crowdfunding, FINRA, Investment Adviser, Investment Opportunities

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Lessons Learned from the FCPA Pilot Program's First Six Months

The guidance issued by the DOJ in connection with the Pilot Program and recent declinations state that disclosure, remediation and cooperation are essential to any favorable resolution with the government. Six months ago,…more

Akamai Technologies, Bribery, Compliance, Cooperation, Corporate Counsel

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Software as a Medical Device: FDA Releases Draft Guidance

Companies that develop software that functions as a medical device should be aware that the Food and Drug Administration (FDA) has issued draft guidance that, once finalized, will classify the endless variety of Software as a…more

Comment Period, Draft Guidance, FDA, Healthcare, Medical Devices

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When Is Evidence of a Foreign Cartel Proof of a U.S. Price-Fixing Conspiracy?

The Third Circuit held that in antitrust cases involving concentrated markets, courts must carefully consider the nature of the industry and whether the actions of defendants can be equally attributed to independent conduct as…more

Antitrust Conspiracies, Antitrust Litigation, Cartels, Corporate Counsel, Food Manufacturers

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Proposed Loss of Interest Deduction Would Boost Cost of PE Deals

Where asset acquisitions or deemed asset acquisitions are not available, the loss of the interest deduction would likely result in an increased focus on pure equity-funded transactions. Originally published on the Middle…more

Acquisitions, Financial Markets, Financial Sector, Private Equity, Tax Deductions

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Post-Grant Challenges in Life Sciences: 2015 in Review

The prevalence of inter partes reviews (and post-grant reviews to come) forces practitioners to consider the strong likelihood that patents covering commercial products will face post-grant challenges. Originally published…more

Inter Partes Review (IPR) Proceeding, Life Sciences, Orange Book, Patents, Post-Grant Review

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Second Circuit Holds American Express Can Stop Merchants From Steering Customers to Lower-Fee Cards, Competition News Volume 2016, Issue 1

The opinion could provide useful guidance for participants in two-sided markets, like the credit card industry and the health care industry, where separate interests of insurers and patients are often implicated by the same…more

American Express, Anti-Steering Rules, Antitrust Investigations, Antitrust Violations, Credit Cards

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Assignment 101: Considerations for Landlords and Tenants in Negotiating Assignment Clauses

Assignment clauses are lease provisions that are often not given appropriate consideration by tenants in lease negotiations. Likewise, landlords’ standard anti-assignment clauses may not cover some transfer scenarios that could…more

Commercial Leases, Landlords, Profit Sharing, Subletting

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SEC Further Enhances the IPO On-Ramp

The SEC’s rule changes further streamline the pathway for many companies to conduct their initial public offerings and reduce the burdens associated with their subsequent SEC periodic reporting obligations. On January 13,…more

Emerging Growth Companies, Financial Statements, Fixing America’s Surface Transportation Act (FAST Act), Form S-1, IPO

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The Risks and Implications of Failing to Comply with U.S. Government Cyber and IT Requirements

This article summarizes some of the many risks and implications that are associated with failing to comply with U.S. government-unique cyber and information technology requirements. We are often asked by small and medium-sized…more

Breach of Contract, Confidential Information, Cyber Attacks, Cybersecurity, Data Breach

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[Webinar] Acquiring a Company with Government Contracts: A Checklist of Unique Issues and Considerations - June 15th, 8:30am EDT

Pepper Hamilton invites you to attend a webinar discussing the unique issues to be considered when acquiring a company that does business with the federal government…more

Acquisition Agreements, Acquisitions, Government Contractors, Webinars

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Summary of HUD's Lean 232 Program Email Blast Office of Residential Care Facilities (ORCF) April 2016

In an effort to summarize the highlights of the LEAN Email Blasts that we receive, and rarely have time to review in a timely fashion, we at Pepper Hamilton are providing this quick synopsis of the latest LEAN update. Our aim is…more

Appraisal, Healthcare Facilities, HUD, LEAN Program, ORCF

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Public Comment Period on PA Department of Environmental Protection’s Oil and Gas Rulemaking Closes May 19

The Pennsylvania Department of Environmental Protection’s (DEP’s) rulemaking regarding surface activities for oil and gas wells, Environmental Protection Performance Standards at Oil and Gas Well Sites (Chapters 78 and 78a), has…more

Drilling Waste Disposal, Horizontal Wells, Inland Waterways, Oil & Gas, Rulemaking Process

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1099ers Exposing Startups, Private Equity Firms to Costly Liability

A recent online edition of New York Magazine’s “Daily Intelligencer” includes a comprehensive article on how Silicon Valley startup tech companies using “the 1099 model” may be exposed to employment, tax and benefit law…more

1099s, Employer Liability Issues, Independent Contractors, Popular, Private Equity

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Is the FTC’s Authority Over Consumer Privacy About to Be Limited?

Historically, the Federal Trade Commission (FTC) has been the most active federal regulator of data privacy and security. Since its creation, it has pursued hundreds of cases against companies that violated privacy statutes or…more

Cybersecurity, Data Breach, Data Protection, FTC, FTC v Wyndham

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2015 Amendments to Delaware Alternative Entity Acts

New amendments affect Delaware general partnerships, limited liability partnerships, limited partnerships and limited liability companies. On July 24, Delaware Governor Jack Markell signed into law several amendments to the…more

Delaware Limited Liability Company Act, General Partnerships, Limited Liability Company (LLC), Limited Liability Partnerships, Limited Partnerships

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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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Delaware Supreme Court Preserves Benefit of Exculpatory Provisions for Independent Directors at Motion to Dismiss Stage

A recent decision by the Delaware Supreme Court provides independent directors, such as special committee members, with the ability to escape protracted fiduciary duty litigation during its initial stages. The court’s decision…more

Bad Faith, Controlling Stockholders, Exculpatory Clauses, Fiduciary Duty, Independent Director

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Beyond the Label: FDA Addresses Permissible Scope of Communications With Payors and Physicians

The draft guidances create a grey area between “on-label” and “off-label” communications that will require careful navigation as manufacturers develop HCEI analyses and promotional communications…more

Comment Period, Draft Guidance, FDA, First Amendment, HCEI

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Going Mobile: The Risks and Rewards of a BYOD Program

Employees are increasingly using their personal electronic devices, such as laptops, smartphones, and tablets, for work purposes. The trend, dubbed “Bring Your Own Device” or “BYOD,” has redefined what it means to “be at…more

Bring Your Own Device, Employer Liability Issues, Over-Time, Policies and Procedures, Popular

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Confession of Judgment in Commercial Leasing: Impact of Pennsylvania's New Power of Attorney Law

In the wake of the new law, leases containing a confession of judgment provision will need to be reviewed, and standard clauses for new leases and amendments will need to be revised to comply with the new requirements. New…more

Commercial Leases, Commercial Tenants, Landlords, Power of Attorney

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An Update on Pennsylvania's Oil and Gas Law - Act 13 - After Supreme Court Decisions

While many key provisions of Act 13 have now been struck down by the Supreme Court’s two Robinson decisions, much of the Act remains. Act 13 of 2012 represented a major overhaul of Pennsylvania’s oil and gas law and…more

Department of Environmental Protection, Eminent Domain, Energy Projects, Energy Sector, Energy Storage

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US Supreme Court False Claims Act Decision in Escobar Has Significant Implications for Contractors

On June 16, 2016, the U.S. Supreme Court ruled in the matter of Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), changing the legal landscape for False Claims Act qui tam claims…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Federal Contractors, Health Care Providers

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Going the Distance: The Expanding Lifecycles of Private Equity Funds

The lifecycles of private equity (PE) funds are lengthening as managers continue to seek longer fundraising periods. This is due to a number of factors, including increases in due diligence and holding periods for investments as…more

Financial Sector, Fund Managers, Investment, Investment Funds, Private Equity

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Ninth Circuit Again Clarifies that Arbitration Is Creature of Contract: Employee's Agreement to Abide by Company Manual Is Sufficient to Send Title VII Claims to Arbitrator

The court’s opinion instructs that employee agreements to arbitrate may be obtained through written acknowledgments referencing company manuals. Arbitration remains a preferred forum for many employers, yet courts are often…more

Arbitration Agreements, Employee Rights, Federal Arbitration Act, Harassment, Title VII

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OIG Issues HHS Fiscal Year 2016 Work Plan

The Work Plan describes more than 100 initiatives, including 43 new initiatives for the upcoming year. On November 2, the Department of Health and Human Services (HHS) Office of the Inspector General (OIG) issued its annual…more

Healthcare, Medicaid, Medical Devices, Medicare, Section 340B

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Department of Labor Issues Long-Awaited Fiduciary Rule

The new standard requires broker-dealers providing advice with respect to IRAs to put their client’s interests ahead of their own. The U.S. Department of Labor released new rules on April 6 that materially enlarge the…more

401k, Best Interest Contract Exemptions, Best Interest Standard, Broker-Dealer, Business Advice

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Texas Court of Appeals Holds That the Effect of a Failure to Meet a Specific Contractual Deadline for Arbitration is a Procedural Question for the Arbitrator, Not the Trial Court

Tilson Home Corp. v. Zepeda, No. 14-16-00075-CV, 2016 Tex. App. LEXIS 12022 (Tex. App. Nov. 8, 2016) - The Court of Appeals of Texas has held that an arbitrator—not a trial court—must determine whether a prerequisite to the…more

Appeals, Arbitration, Arbitration Agreements, Arbitrators, Construction Industry

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Delaware Bankruptcy Court: Debtors Can Offset Administrative Claims Before General Unsecured Claims

While section 503(b)(9) claims deserve priority payment over general unsecured claims, they do not provide a basis for stripping a debtor’s defenses in determining the allowed amount of a section 503(b)(9) claim…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Section 503(b)(9)

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For Our Eyes Only: Understanding the Attorney-Client Privilege and Its Application to Banks

The attorney-client privilege is a rule of evidence that prevents the adverse party in a lawsuit from obtaining access to certain communications. If properly understood and wellmanaged, this privilege offers a useful tool for…more

Attorney Communications, Attorney-Client Privilege, Banking Sector, Banks, CFPB

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New Jersey Joins the 'Ban the Box' Movement

On August 11, 2014, New Jersey Governor Chris Christie signed into law the Opportunity to Compete Act (Act) which prohibits private and public employers that employ 15 or more employees from inquiring about an applicant’s…more

Ban the Box, Criminal Background Checks, Employee Rights, Job Applicants

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Modi's Demonetization Policy: Is the Cure Worse than the Disease? U.S.-India Newsletter Volume 2017, Issue 1

In the short term, demonetization has completely dampened the Indian economy. On November 8, 2016, Indian Prime Minister Narendra Modi declared that the two highest denomination currency notes, INR 500 notes (USD 7.3) and…more

Anti-Corruption, Banking Sector, Banks, Counterfeiting, Currency Control

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OIG Targets Fraud in Physician Compensation Arrangements

Health care organizations and physicians must be cautious in structuring physician compensation arrangements so that they do not violate the Anti-Kickback Statute. The U.S. Department of Health and Human Services Office of…more

Anti-Kickback Statute, Fraud Alerts, Healthcare, HHS, OIG

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Philadelphia Employers May Not Ask Wage History Questions Under New Ordinance

On January 23, 2017, Mayor Kenney signed into law an amendment to the Philadelphia Fair Practices Ordinance making it unlawful for an employer or employment agency to inquire about a prospective employee’s wage history or to…more

Employer Liability Issues, Employment Discrimination, Hiring & Firing, Job Applicants, Local Ordinance

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Extension Period Expires for Pennsylvania Development Permits, Approvals

Now that the extension period has ended, it is imperative for those involved in real estate development to review and understand the approvals and permits that affect their properties and properly calculate and verify the…more

Building Permits, Construction Industry, Construction Permits, Construction Project, Land Developers

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Five Ways to Bring Your Firm's Culture Into the Recruiting Process

As the pool of top associate talent has decreased over the past several years due to reduced numbers of experienced midlevel associates, increased opportunities for in-house positions, and declining law school enrollment, the…more

Corporate Culture, Hiring & Firing, Interviews, Law Firm Associates, Law Firm Partners

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Recent Developments Affecting UCC Filings in New Jersey

New laws and regulations affect the information that must be listed on a financing statement and require electronic filing of all financing statements. There have been two recent developments affecting Uniform Commercial…more

Financing, UCC Financing Statements, Uniform Commercial Code (UCC)

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The Risks and Implications of Failing to Comply with U.S. Government Cyber and IT Requirements

This article summarizes some of the many risks and implications that are associated with failing to comply with U.S. government-unique cyber and information technology requirements. We are often asked by small and medium-sized…more

Breach of Contract, Confidential Information, Cyber Attacks, Cybersecurity, Data Breach

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The Spring Meeting Confronts the Yates Memo: Execs in the Front Lines of Corporate Criminal Responsibility; Presentation of the Business Law Section's Director and Officer Liability Committee

The Business Law Section’s Director and Officer Liability Committee conducted a program at the Section’s Spring Meeting in Montréal. The program focused on the recent Yates memorandum of the U.S. Department of Justice (DOJ), and…more

Commercial Insurance Policies, Cooperation, Corporate Crimes, Corporate Executives, Corporate Officers

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Top 5 Things You Should Know About Online Direct (P2P) Lending Law And Regulations — Before You Do Anything Else!

Few people following the crowdfunding space have been able to ignore the recent meteoric rise of online direct lending, often called “peer-to-peer” (P2P) lending. What started out as a simple one-to-multiple consumer lending…more

Broker-Dealer, Crowdfunding, FINRA, Investment Adviser, Investment Opportunities

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On the Grid: Blockchain May Create New Possibilities for Grid Enhancements and Energy IoT Applications

Just as blockchain technology has allowed for the tracking and authentication of Bitcoin and other cryptocurrency transactions, it could similarly mediate transactions in energy units. Blockchain technology — once known…more

Bitcoin, Blockchain, Connected Items, Cryptocurrency, Digital Currency

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[Webinar] Health Care Construction Projects: Avoiding Claims Through Better Coordination - September 21st, 12:00pm EDT | 9:00am PDT

In January of this year, following frantic talks and a public fight over who was to blame for delays costing close to $100,000 a day in lost revenue, Santa Clara County was finally able to reach an agreement and settle its…more

Construction Contracts, Construction Project, Continuing Legal Education, Healthcare Facilities, Hospitals

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OCC Establishes New Third-Party Risk Management Expectations, Including for Bank Relationships With Marketplace Lenders

The bulletin requires relationships between banks and marketplace lenders to be treated with the same rigor of due diligence and ongoing oversight as other relationships with third parties. On January 24, the Office of the…more

Banking Sector, Banks, Consumer Lenders, Due Diligence, FDIC

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An Update on Pennsylvania's Oil and Gas Law - Act 13 - After Supreme Court Decisions

While many key provisions of Act 13 have now been struck down by the Supreme Court’s two Robinson decisions, much of the Act remains. Act 13 of 2012 represented a major overhaul of Pennsylvania’s oil and gas law and…more

Department of Environmental Protection, Eminent Domain, Energy Projects, Energy Sector, Energy Storage

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Leveraging Proportionality to Set Reasonable Limits on Discovery at the Outset

Plaintiffs should not be permitted to insist on an extensive discovery wish list but rather must make some showing that their requests are proportional to the needs of the case. A district court in California recently…more

Discovery, e-Discovery, Electronically Stored Information, Evidence, Federal Rules of Civil Procedure

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Antitrust Division Threatens Criminal Prosecution for Employment Practices: Antitrust Agencies Issue Joint Guidance on Employment Restrictions, Competition News Volume 2016, Issue 1

Even in the absence of an agreement to fix compensation, simply exchanging competitively sensitive information could serve as evidence of an implicit illegal agreement. On October 20, the Department of Justice (DOJ) and…more

DOJ, Employer Liability Issues, Employment Contract, FTC, Hiring & Firing

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Not So Sweet: The Debate Over Evaporated Cane Juice

FDA’s final guidance expresses its view that the phrase “evaporated cane juice” is false and misleading. “Evaporated cane juice” has become a popular ingredient in everything from yogurt to cookies, attracting consumers who…more

Class Action, Evaporated Cane Juice, False Advertising, FDA, Food Labeling

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Bass’s First IPR Decision Rendered – Victory for Patent Owner, Shire Lpc

If Kyle Bass’s Coalition for Affordable Drugs Series II hedge fund was hoping to reap a windfall from short positions in Shire Plc’s stock this week, it was dealt a major setback by a Patent Trial and Appeal Board (PTAB)…more

Inter Partes Review (IPR) Proceeding, Patent Infringement, Patent Litigation, Patent Trial and Appeal Board, Patents

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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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Beyond the Label: FDA Addresses Permissible Scope of Communications With Payors and Physicians

The draft guidances create a grey area between “on-label” and “off-label” communications that will require careful navigation as manufacturers develop HCEI analyses and promotional communications…more

Comment Period, Draft Guidance, FDA, First Amendment, HCEI

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U.S. District Court Upholds CLO Risk Retention Rule

Investment managers that wish to manage newly formed CLOs will need to have sufficient capital to retain the risk they are required to retain under the Rule. On December 22, 2016, the U.S. District Court for the District of…more

Collateralized Loan Obligations, Dodd-Frank, Federal Reserve, Financial Markets, Financial Sector

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Lessons Learned from the FCPA Pilot Program's First Six Months

The guidance issued by the DOJ in connection with the Pilot Program and recent declinations state that disclosure, remediation and cooperation are essential to any favorable resolution with the government. Six months ago,…more

Akamai Technologies, Bribery, Compliance, Cooperation, Corporate Counsel

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Pennsylvania Supreme Court Affirms Superior Court Decision Protecting Attorney-Expert Communications From Discovery

On April 29, an evenly divided Pennsylvania Supreme Court resolved an issue of paramount importance to Pennsylvania litigants: whether communications between an attorney and a testifying expert are protected from discovery by…more

Discovery, Expert Witness, Work Product Privilege, Work-Product Doctrine

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Proposed Loss of Interest Deduction Would Boost Cost of PE Deals

Where asset acquisitions or deemed asset acquisitions are not available, the loss of the interest deduction would likely result in an increased focus on pure equity-funded transactions. Originally published on the Middle…more

Acquisitions, Financial Markets, Financial Sector, Private Equity, Tax Deductions

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What Every Contractor Needs To Know About Mediation

A generation ago, mediation of construction disputes was unusual. Today, it is rare that a construction claim goes to trial without some effort at mediation first. Indeed, a substantial percentage of construction contracts…more

Arbitration, Construction Industry, Mediation

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Preventing Limitation of Liability End-Runs

Owners who are dissatisfied with their contractors’ performance increasingly assert fraud-based claims in addition to breach of contract claims because fraud-based claims are not typically barred by contractual waivers and…more

Arbitration, Construction Contracts, Construction Disputes, Construction Industry, Construction Project

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Rebalancing Your IP Portfolio

Financial advisors often advise their clients to maintain a balanced investment portfolio. Occasionally these advisors recommend rebalancing the investments within a portfolio to account for changes in market…more

America Invents Act, CLS Bank v Alice Corp, Damages, Federal Rules of Civil Procedure, IP Portfolio

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Second Circuit Holds Class Can Be Decertified After Jury Verdict

A class certification ruling is always subject to challenge if the class representative does not prove the necessary elements of class certification. On July 15, the U.S. Court of Appeals for the Second Circuit held that…more

Class Action, Class Certification, Corporate Counsel, Late Fees, Mortgage Servicers

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Review Of Arbitration Awards: Lessons for the Construction Industry from the Tom Brady Case

NFL Mgmt. Council v. NFL Players Ass’n, 2015 U.S. Dist. LEXIS 117662 (S.D.N.Y. Sept. 3, 2015) - “Arbitration has been proven to be an effective way to resolve disputes fairly, privately, promptly and economically.” So…more

Arbitration, Arbitration Awards, Collective Bargaining Agreements (CBA), Construction Industry, Construction Litigation

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SEC Applies Advisers Act Provisions to Nonadvisor Fund Service Providers

The SEC continues to expand the scope of responsibilities and standards applicable to gatekeepers. In an application of the Investment Advisers Act of 1940 (Advisers Act) to the actions of a nonadviser fund service provider…more

Cease and Desist Orders, Dodd-Frank, Fiduciary Duty, Fraud, Investment Advisers Act of 1940

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Drilling Deeper: The Intersection of Producer Bankruptcies and Gathering Agreements

The issue of whether gathering agreements are subject to rejection in bankruptcy as executory contracts and whether certain provisions of those agreements run with the land and survive rejection will impact ongoing bankruptcy…more

Bankruptcy Code, Business Judgment Rule, Commercial Bankruptcy, Covenants that Run With the Land, Energy Sector

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Expect Increased Environmental Regulatory Scrutiny in the Wake of the Flint Water Crisis

The regulated community should plan for an increased level of agency oversight, inspection and enforcement and increased public involvement. Although there has been much finger pointing as to which party or parties may be…more

Contamination, Drinking Water, Enforcement Actions, Environmental Liability, Environmental Site Assessment

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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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SEC Further Enhances the IPO On-Ramp

The SEC’s rule changes further streamline the pathway for many companies to conduct their initial public offerings and reduce the burdens associated with their subsequent SEC periodic reporting obligations. On January 13,…more

Emerging Growth Companies, Financial Statements, Fixing America’s Surface Transportation Act (FAST Act), Form S-1, IPO

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Counsel to the Company: A Framework for Corporate Governance

As a threshold matter, counsel must identify, and remain clear as to, the identity of its client, which may be the company or a subsidiary, the Board or Board committee, or one or more executives. The identity of the client will…more

Attorney-Client Privilege, Board of Directors, Chief Compliance Officers, Compliance, Corporate Counsel

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The IRS's Stricter(?) Stance on Regulated Investment Company Investments in Commodities - Tax Update Volume 2017, Issue 1

While the IRS's Proposed Regulations Are Not Yet Effective, RICs Should Carefully Consider Whether Their Portfolios or Policies Run Afoul of the New Rules. In order for a corporation to qualify as a regulated investment…more

Commodities, Controlled Foreign Corporations, Derivatives, Distribution Rules, Foreign Corporations

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Texas Court of Appeals Holds That Owner’s Change to Contractor’s Means and Methods Resulted in a “Breach,” Instead of a “Change” Subject to the Changes Clause

Port of Houston Auth. of Harris Cnty. v. Zachry Constr. Corp., 2016 Tex. App. LEXIS 13306 (Tex. App. Houston 14th Dist. Dec. 15, 2016) - This contract dispute dates back to 2004, when the Port of Houston Authority…more

Appeals, Bids, Breach of Contract, Change Orders, Construction Contracts

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Materiality Is the New Condition of Payment: The Implied False Certification Theory After Escobar

The Supreme Court has made it clear that, even at the pleadings stage, relators (or the government) must plead facts to support materiality with plausibility and particularity. For False Claims Act (FCA) defendants who were…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Federal Contractors, Fraud

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The 100-Day Program at the ITC

In light of Audio Processing Hardware, it is now clear that, with respect to appeals of ITC 100-day program determinations, Commission determinations against a complainant are immediately appealable, while determinations in…more

28 U.S.C. § 1295(a)(6), ALJ, Article III, Federal Pilot Programs, ITC

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Kentucky Appellate Court Holds That a Contractor May Pursue Claim of Negligent Misrepresentation Against Architect Despite Lack of Contract, the Economic Loss Rule, and Project Waivers

D.W. Wilburn, Inc. v. K. Norman Berry Assocs., No. 2015-CA-001254-MR, 2016 Ky. App. Lexis 206 (Ky. Ct. App. Dec. 22, 2016) - This case arose out of a construction project in which the Oldham County Board of Education (the…more

Appeals, Architects, Construction Disputes, Construction Industry, Construction Litigation

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Pennsylvania Legislature Seeks to Limit Access to Police Video Recordings

The bill establishes a more restrictive process for obtaining video than the courts have provided for under the Right to Know Law. The Pennsylvania Senate passed a bill on October 19 that would prohibit police body camera…more

Body Worn Cameras, Law Enforcement, Pending Legislation, Police, Police Brutality

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State Universities Rejoice: PTAB Recognizes Sovereign Immunity Defense

In Covidien LP v. University of Florida Research Foundation Inc., the Patent Trial and Appeal Board (the “Board”) upheld a defense of sovereign immunity asserted by the University of Florida Research Foundation (the…more

Eleventh Amendment, Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Patent Infringement, Patent Litigation

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Reforms to the Foreign Investment in Real Property Tax Act and REIT Taxation - Tax Update Volume 2016, Issue 1

The reforms generally encourage foreign investment in U.S. real estate. The enacted Protecting Americans from Tax Hikes Act of 2015 (the Act) contains numerous reforms to the Foreign Investment in Real Property Tax Act of…more

FIRPTA, Foreign Investment, Pension Funds, Protecting Americans from Tax Hikes (PATH) Act, Real Estate Investments

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[Webinar] Could My Company's Website Violate the Americans with Disabilities Act? - June 14th, 12:00pm EDT

Under the Americans with Disabilities Act (ADA), places of public accommodation must ensure equal access to the goods and services they offer to disabled individuals. Is a company website subject to the ADA? The answer to that…more

ADA, Continuing Legal Education, Disability Discrimination, Equal Access, Public Accommodation

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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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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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Non-Party Document Discovery in Arbitration: Does It Exist?

Limited discovery (and the associated cost savings) is often touted as one of the benefits of arbitration over traditional litigation. Parties are generally confident that even the scaled-back discovery devices available in…more

Arbitration, Arbitration Agreements, Discovery, Evidence, Federal Arbitration Act

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Big News from the Supreme Court in the Madden v. Midland Funding Case

While far from certain, this development shows that the Supreme Court is interested in the case and will likely give weight to the Solicitor General’s recommendation as to whether the Second Circuit’s ruling should be reviewed…more

Consumer Lenders, Financial Services Industry, Madden v Midland Funding, Online Marketplace Lending, SCOTUS

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2015 Amendments to Delaware Alternative Entity Acts

New amendments affect Delaware general partnerships, limited liability partnerships, limited partnerships and limited liability companies. On July 24, Delaware Governor Jack Markell signed into law several amendments to the…more

Delaware Limited Liability Company Act, General Partnerships, Limited Liability Company (LLC), Limited Liability Partnerships, Limited Partnerships

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Is This the End of Arbitration for Consumer Financial Disputes?

The proposed rule has broad implications for the financial industry, which has relied on class action waivers in consumer agreements to ensure that arbitration is a cost-effective way of resolving disputes with customers…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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Noncompliance with the California Contractor’s License Law Brings Severe Consequences

Pacific Caisson & Shoring, Inc. v. Bernards Brothers Inc., 236 Cal. App. 4th 1246 (Cal. Ct. App. 2015) - In California, a contractor must be licensed by the Contractors State License Board (Board) in order to lawfully…more

Construction Industry, Contractor's License, Contractor's State License Board, Contractors, Disgorgement

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On the Grid: Blockchain May Create New Possibilities for Grid Enhancements and Energy IoT Applications

Just as blockchain technology has allowed for the tracking and authentication of Bitcoin and other cryptocurrency transactions, it could similarly mediate transactions in energy units. Blockchain technology — once known…more

Bitcoin, Blockchain, Connected Items, Cryptocurrency, Digital Currency

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Pennsylvania Legislature Seeks to Limit Access to Police Video Recordings

The bill establishes a more restrictive process for obtaining video than the courts have provided for under the Right to Know Law. The Pennsylvania Senate passed a bill on October 19 that would prohibit police body camera…more

Body Worn Cameras, Law Enforcement, Pending Legislation, Police, Police Brutality

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[Webinar] Health Care Construction Projects: Avoiding Claims Through Better Coordination - September 21st, 12:00pm EDT | 9:00am PDT

In January of this year, following frantic talks and a public fight over who was to blame for delays costing close to $100,000 a day in lost revenue, Santa Clara County was finally able to reach an agreement and settle its…more

Construction Contracts, Construction Project, Continuing Legal Education, Healthcare Facilities, Hospitals

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Leveraging Proportionality to Set Reasonable Limits on Discovery at the Outset

Plaintiffs should not be permitted to insist on an extensive discovery wish list but rather must make some showing that their requests are proportional to the needs of the case. A district court in California recently…more

Discovery, e-Discovery, Electronically Stored Information, Evidence, Federal Rules of Civil Procedure

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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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FTC Issues First Formal Policy on Section 5's Unfair Competition Authority

Although the brief FTC statement is beneficial, the sweeping language contained in the policy statement gives little practical guidance to the business community. On August 13, the Federal Trade Commission (FTC) issued its…more

FTC, SCOTUS, Section 5, Sherman Act, The Clayton Act

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Status Quo At The PTAB For Now: Supreme Court Makes No Changes to IPR Practice

Recently, the Supreme Court declined to make any changes to IPR procedure in its opinion in Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. ___ (2016). Relying primarily on statutory language and concepts of agency rulemaking…more

Appeals, Broadest Reasonable Interpretation Standard, Claim Construction, Cuozzo Speed Technologies v Lee, Inter Partes Review (IPR) Proceeding

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Investment Management and Hedge Funds – What’s Happening Now?

In This Presentation: - Trademarks – not just for consumer companies - Strength of a Trademark: Categories - Choosing a Trademark - Obtaining Protection – Common Law Rights - Obtaining…more

Hedge Funds, Investment Management, Likelihood of Confusion, Trademark Infringement, Trademarks

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[Webinar] How to Navigate the Antitrust Cartel Labyrinth - October 27th, 12:00p.m. EDT

Antitrust class action price-fixing claims are among the most costly corporate litigation your company or client can face. In many cases, plaintiffs seek to plead and prove the alleged cartel through alleged indirect evidence,…more

ACPERA, Antitrust Litigation, Antitrust Violations, Cartels, Class Action

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Third Circuit Focuses on Relevant Product Market and Lack of Anticompetitive Conduct in Doryx Product-Hopping Case

To prevail in a product-hopping case, a plaintiff must be prepared to establish both monopoly power and anticompetitive effects. On September 28, a unanimous panel of the U.S. Court of Appeals for the Third Circuit affirmed…more

Anti-Competitive, Appeals, Generic Drugs, Hatch-Waxman, Mylan Pharmaceuticals

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Court Grounds the Use of Unbargained-for Warranty Disclaimers

The Pennsylvania Superior Court’s decision in Allen-Myland, Inc. will likely increase liability exposure for manufacturers. In a case of first impression, the Pennsylvania Superior Court recently rejected the…more

Aviation Industry, Contract Drafting, Contract Terms, Corporate Counsel, Disclaimers

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Six Things the Private Sector Should Know About EPA's Final Vapor Intrusion Guidance

The cumulative impact of the EPA guidance is to require the generation of more data, which means more sampling and analysis, more frequent and stringent remediation, and potentially higher remediation costs. At long last,…more

Compliance, Department of Defense (DOD), EPA, Final Guidance, Groundwater

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Materiality Is the New Condition of Payment: The Implied False Certification Theory After Escobar

The Supreme Court has made it clear that, even at the pleadings stage, relators (or the government) must plead facts to support materiality with plausibility and particularity. For False Claims Act (FCA) defendants who were…more

Conditions of Payment, False Claims Act (FCA), False Implied Certification Theory, Federal Contractors, Fraud

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Breaking News: Supreme Court Rules on Affordable Care Act Contraception Mandate

In Burwell v. Hobby Lobby, the U.S. Supreme Court ruled 5-4 that certain closely held corporations with religious objections cannot be required to provide health insurance coverage that includes certain types of contraception…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Contraceptives, Hobby Lobby

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FTC Issues First Formal Policy on Section 5's Unfair Competition Authority

Although the brief FTC statement is beneficial, the sweeping language contained in the policy statement gives little practical guidance to the business community. On August 13, the Federal Trade Commission (FTC) issued its…more

FTC, SCOTUS, Section 5, Sherman Act, The Clayton Act

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Do No-Damage-for-Delay Clauses Bar Acceleration Claims?

Time is money in construction, and project delays can cause contractors to incur substantial additional costs. To avoid responsibility for paying these costs, project owners often include a no-damage-for-delay (NDFD) clause in…more

Acceleration, Construction Contracts, Construction Industry, Construction Project, Contractors

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Highlights of the Defend Trade Secrets Act of 2016

The DTSA permits federal civil actions to be brought for the misappropriation of trade secrets if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce…more

Asset Seizure, Defend Trade Secrets Act (DTSA), Ex Parte, Intellectual Property Protection, Misappropriation

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It Is Not All Bad News from the Supreme Court in Campbell-Ewald v. Gomez

In a recent clash between contract principles and the mootness doctrine, contract principles won. Relying on traditional contract principles, the U.S. Supreme Court issued a 6–3 decision on January 20, holding that an unaccepted…more

Campbell Ewald v Gomez, Class Action, Class Representatives, Corporate Counsel, Mootness

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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, Wages

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Mid-Market Trends - Leveraged Lending and the Current Regulatory Environment

Financial institutions, institutional investors and liquidity providers to the leveraged loan markets are finding themselves increasingly subject to new regulation in the United States and abroad. Both global and U.S. regulators…more

Capital Markets, Comptroller, FDIC, Federal Reserve, Financial Institutions

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In Omnicare, Supreme Court Draws Distinction Between Factual Misstatements and Factual Omissions in Setting Standards for Determining Section 11 Opinion Statement Liability

On March 24, the U.S. Supreme Court handed down its landmark decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund. The Court vacated the U.S. Court of Appeals for the Sixth Circuit’s ruling…more

Material Misstatements, Omnicare, Omnicare v Laborers District Council, Registration Statement, SCOTUS

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The OCC Launches Its New FinTech Charter Initiative

Whether the long and arduous chartering process, ongoing examination and supervision requirements, substantial capital requirements and limitations on initial rapid growth will outweigh the benefits of the bank partnership model…more

Banking Sector, Comment Period, Federal Reserve, FinTech, OCC

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Statute of Limitations

The Doctrine of Nullum Tempus, and Its Impact on Statutes of Limitation and Statutes of Repose - The common law doctrine of nullum tempus occurrit regi — generally translated to mean “time does not run against the king” —…more

Construction Industry, Construction Litigation, Statute of Limitations, Statute of Repose

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Is This the End of Arbitration for Consumer Financial Disputes?

The proposed rule has broad implications for the financial industry, which has relied on class action waivers in consumer agreements to ensure that arbitration is a cost-effective way of resolving disputes with customers…more

Arbitration, Arbitration Agreements, CFPB, Class Action, Class Action Arbitration Waivers

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Hail to . . . The Contracting Officer in Chief? - Donald Trump, Lockheed Martin and the Art of the Government Deal

The art of the deal in government contracts is much more complex than in the private sector because public policies and principles attach to the use of public funds. President Donald Trump has made his federal procurement…more

Acquisitions, Boeing, Defense Contracts, Defense Sector, Department of Defense (DOD)

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Executives Beware: The DOJ and SEC Have Set Their Sights on Individual Wrongdoing

The DOJ’s Yates Memo makes individual prosecutions a higher priority and makes a company’s own identification of potentially culpable individuals an explicit factor in assessing cooperation credit…more

Corporate Fines, Corporate Governance, Deferred Prosecution Agreements, DOJ, DPA

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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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Pennsylvania Supreme Court Affirms Superior Court Decision Protecting Attorney-Expert Communications From Discovery

On April 29, an evenly divided Pennsylvania Supreme Court resolved an issue of paramount importance to Pennsylvania litigants: whether communications between an attorney and a testifying expert are protected from discovery by…more

Discovery, Expert Witness, Work Product Privilege, Work-Product Doctrine

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Going the Distance: The Expanding Lifecycles of Private Equity Funds

The lifecycles of private equity (PE) funds are lengthening as managers continue to seek longer fundraising periods. This is due to a number of factors, including increases in due diligence and holding periods for investments as…more

Financial Sector, Fund Managers, Investment, Investment Funds, Private Equity

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SEC Applies Advisers Act Provisions to Nonadvisor Fund Service Providers

The SEC continues to expand the scope of responsibilities and standards applicable to gatekeepers. In an application of the Investment Advisers Act of 1940 (Advisers Act) to the actions of a nonadviser fund service provider…more

Cease and Desist Orders, Dodd-Frank, Fiduciary Duty, Fraud, Investment Advisers Act of 1940

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Washington State Court Affirms $155M Jury Award Against Contractor and Surety Stemming from Claim of Default Due to Delayed Performance, Sustaining Denial of Contractor’s Differing Site Condition Defense

King County v. Vinci Construction Grands Projects/Parsons RCI/Frontier-Kemper, JV, 2015 Wash. App. LEXIS 2735 (Nov. 9, 2015) - The Court of Appeals of Washington recently decided King County v. Vinci Construction Grands…more

Appeals, Construction Industry, Construction Litigation, Site Condition Claim, Waste Treatment Facilities

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Digitally Delivered Products Now Subject to Sales Tax in Pennsylvania - Tax Update Volume 2016, Issue 3

The implementation of sales tax on the thousands of services that are delivered digitally can prove vexing. Have you downloaded a book recently or sent an e-card? Is your billing address in Pennsylvania? If so, as of August 1,…more

Digital Downloads, Digital Media, e-Books, Hulu, iTunes

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Does Federal Bankruptcy Law Preempt State Law Fraudulent Transfer Claims Assigned to a Bankruptcy Estate Representative?

The U.S. Bankruptcy Court for the District of Delaware recently issued an opinion that addresses, among other issues, the question of whether section 546(e) of the Bankruptcy Code preempts certain fraudulent transfer avoidance…more

Bankruptcy Code, Commercial Bankruptcy, Fraudulent Transfers, Leveraged Buyout, Preemption

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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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The European Commission Formally Adopts the Privacy Shield

The Privacy Shield heightens the level of scrutiny and the burden on organizations that voluntarily self-certify. On October 6, 2015, the Court of Justice of the European Union invalidated the European Commission’s (the…more

Article 29 Working Party (WP29), Data Protection Authority, Department of Transportation (DOT), EU, EU-US Privacy Shield

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IRS Restructuring LB&I Division and Audit Process Again - Tax Update Vol. 2015, Issue 4

The changes include a move toward more issue-focused and efficient audits, which should benefit both the IRS and its taxpayers. It seems like the Internal Revenue Service (IRS) reorganizes its Large Business and…more

Audits, Corporate Taxes, IRS

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The "Lien-Ability" of Field Change Directives Under Typical Construction Lien Laws?

Consider this scenario taken from an actual project dispute: The contractor has entered into an agreement with the owner for a project of any size. During the course of the project, the owner directs the contractor to perform…more

Change Orders, Construction Contracts, Construction Industry, Construction Liens, Construction Project

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A Case to Watch: Highway Contractor Appeals $663M False Claims Act Judgment

On August 31, 2015, highway contractors Trinity Industries, Inc. and Trinity Highway Products, LLC (collectively, Trinity) appealed to the U.S. Court of Appeals for the Fifth Circuit a $663,360,750 final judgment entered against…more

Appeals, Attorney's Fees, Civil Monetary Penalty, Construction Industry, Corporate Counsel

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Intellectual Property Issues for Health Care Providers - November 2014

In This Presentation: - Introduction - Intellectual Property (IP) Basics - IP Strategy - IP Encountered by Health Care Providers - Securing Ownership of IP Assets - Managing/Registering…more

Business Assets, Copyright, Health Care Providers, Patents, Trade Secrets

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Blockchain and Public Securities: Shedding Light on 'Going Dark'

The application of blockchain technology to the securities market could prove to be a game changer by adding transparency, reducing costs and speeding up settlements. Initially known as the technology underlying the…more

Bitcoin, Blockchain, Cryptocurrency, Digital Currency, Distributed Ledger

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OIG Targets Fraud in Physician Compensation Arrangements

Health care organizations and physicians must be cautious in structuring physician compensation arrangements so that they do not violate the Anti-Kickback Statute. The U.S. Department of Health and Human Services Office of…more

Anti-Kickback Statute, Fraud Alerts, Healthcare, HHS, OIG

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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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Going the Distance: The Expanding Lifecycles of Private Equity Funds

The lifecycles of private equity (PE) funds are lengthening as managers continue to seek longer fundraising periods. This is due to a number of factors, including increases in due diligence and holding periods for investments as…more

Financial Sector, Fund Managers, Investment, Investment Funds, Private Equity

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Breaking News: Supreme Court Rules on Affordable Care Act Contraception Mandate

In Burwell v. Hobby Lobby, the U.S. Supreme Court ruled 5-4 that certain closely held corporations with religious objections cannot be required to provide health insurance coverage that includes certain types of contraception…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Contraceptives, Hobby Lobby

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[Webinar] Health Care Construction Projects: Avoiding Claims Through Better Coordination - September 21st, 12:00pm EDT | 9:00am PDT

In January of this year, following frantic talks and a public fight over who was to blame for delays costing close to $100,000 a day in lost revenue, Santa Clara County was finally able to reach an agreement and settle its…more

Construction Contracts, Construction Project, Continuing Legal Education, Healthcare Facilities, Hospitals

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Challenging Weight of the Evidence Methodology

Use of a WOE methodology may be appropriate for government regulation, but it should not establish legal liability. Originally published in In-House Defense Quarterly, a publication of DRI - Winter 2017…more

Evidence, Expert Testimony, Litigation Strategies, Risk Assessment

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Nasdaq and NYSE Provide Clarity for Equity Plan Amendments Increasing Share Withholding

Both Nasdaq and the NYSE have issued guidance clarifying that no stockholder approval is required for equity plan amendments permitting increased share withholding. Earlier this year, the Financial Accounting Standards Board…more

Equity Plans, Executive Compensation, FASB, Nasdaq, NYSE

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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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State Safe Harbor Doctrines: A Life Preserver from False Advertising Claims Facing Alcohol Manufacturers?

Food and beverage companies, beset by lawsuits about their product labels, struggle to find consistent application of consumer protection laws across the country. The experience of one distiller and its use of one word on its…more

Advertising, Beverage Manufacturers, FAAAA, False Advertising, FDA

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[Webinar] Registration of 'Disparaging' Trademarks After 'The Slants' - January 27, 12:00-1:00pm, EST

The Federal Circuit Court of Appeals has ruled that Section 2(a) of the Lanham Act, which bars registration of marks that “disparage” a group of people, is an unconstitutional infringement of First Amendment free speech rights…more

Continuing Legal Education, Disparagement, First Amendment, Free Speech, Lanham Act

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Telemedicine: Many Opportunities, Many Legal Issues, Many Risks

Telemedicine touches on multiple practice areas for health care lawyers, such as payment and reimbursement, fraud and abuse, credentialing and privileging, peer review, privacy, consent, licensing, and regulatory compliance…more

CMS, Healthcare, Technology, Telemedicine

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Mark Your Calendars: NY Cybersecurity Regulations to Go into Effect

A covered entity will need to arrange for someone to perform the CISO function, dedicate resources to conduct periodic risk assessments, develop and implement policies and procedures, and retain appropriate personnel and conduct…more

Banking Sector, CISO, Covered Entities, Cybersecurity, Cybersecurity Framework

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The IRS's Stricter(?) Stance on Regulated Investment Company Investments in Commodities - Tax Update Volume 2017, Issue 1

While the IRS's Proposed Regulations Are Not Yet Effective, RICs Should Carefully Consider Whether Their Portfolios or Policies Run Afoul of the New Rules. In order for a corporation to qualify as a regulated investment…more

Commodities, Controlled Foreign Corporations, Derivatives, Distribution Rules, Foreign Corporations

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Underwriters, Universities and Government Debt Issuers Face a Critical Deadline

Join Pepper Hamilton in a special webinar examining the latest developments in the U.S. Securities and Exchange Commission’s Municipalities Continuing Disclosure Cooperation Initiative (MCDC Initiative), including what…more

Deadlines, Debt, Debtors, Disclosure Requirements, MCDC

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[Webinar] Acquiring a Company with Government Contracts: A Checklist of Unique Issues and Considerations - June 15th, 8:30am EDT

Pepper Hamilton invites you to attend a webinar discussing the unique issues to be considered when acquiring a company that does business with the federal government…more

Acquisition Agreements, Acquisitions, Government Contractors, Webinars

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PBV Selection Issues: Previous Competition and PHA-Owned Units

Two of the most troublesome aspects of selecting project-based voucher proposals have been selection based on previous competition and selection of public housing agency-owned units. Originally published in the Pennsylvania…more

Affordable Housing, Construction Industry, Financial Assistance Policy, Housing Developers, HUD

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Update: Prudential Regulators Delay Compliance Deadline for New Swap Margin Rules

If you have been following our alerts on the pending deadlines (and the delays of these deadlines by certain regulators) of the new swap variation margin rules (New Swap Margin Rules) that were due to go into effect on March 1,…more

Banks, CFTC, Cross-Border Transactions, Deadlines, Depository Institutions

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EPA'S Hazardous Waste Pharmaceuticals Rules May Impose Significant Burdens on Health Care Facilities - Comment Period Runs Until December 24, 2015

The Environmental Protection Agency (EPA) has promulgated its proposed regulation of “hazardous waste pharmaceuticals,” i.e., pharmaceutical residues discarded from health care facilities which also meet EPA’s long-standing…more

Compliance, Continuing Care Retirement Communities, Controlled Substances, Controlled Substances Act, Dental Practice

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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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Can Amended Federal Rule of Civil Procedure 37(E) Rewrite Plaintiffs' Spoliation Playbook?

The application of Rule 37(e) may limit spoliation litigation to issues relevant to underlying claims and defenses. A key component in plaintiffs’ playbook when facing a corporate defendant is to attempt to try cases not…more

Adverse Inference Instructions, Corporate Counsel, Discovery, Duty to Preserve, Electronically Stored Information

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Trends for Early-Stage Investing in Emerging Managers

The current environment for early-stage investing with emerging managers reflects an increasing number and variety of early-stage investments firms, an increasing pool of talented emerging managers, and a growing number and…more

Asset Management, Filing Requirements, Form ADV, Hedge Funds, Investment

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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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Third Circuit Focuses on Relevant Product Market and Lack of Anticompetitive Conduct in Doryx Product-Hopping Case

To prevail in a product-hopping case, a plaintiff must be prepared to establish both monopoly power and anticompetitive effects. On September 28, a unanimous panel of the U.S. Court of Appeals for the Third Circuit affirmed…more

Anti-Competitive, Appeals, Generic Drugs, Hatch-Waxman, Mylan Pharmaceuticals

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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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New Jersey Federal District Court Holds That Arbitration Clause In AIA A201-1997 Does Not Apply To Post Construction Disputes

Blackman & Co., Inc., v. GE Bus. Fin. Servs., Inc., 2016 U.S. Dist. LEXIS 87904 (D.N.J. July 7, 2016) - Grove Street Realty Urban Renewal, LLC (“Grove Street”) contracted with Blackman & Co., Inc. (“Blackman”) to manage a…more

American Arbitration Association, Arbitration, Breach of Contract, Construction Contracts, Construction Defects

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Federal Circuit Highlights Claim Construction in Patent Eligibility Analysis

The case demonstrates that the eligibility analysis is highly fact-specific and dependent on properly construed claims. In McRO, Inc. v. Bandai Namco Games America Inc., a panel of the U.S. Court of Appeals for the Federal…more

Abstract Ideas, Animation, Claim Construction, CLS Bank v Alice Corp, Computer-Related Inventions

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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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Seasonal Affective Disorder - It Can Be More Than the Winter Blues

As the weather continues to get colder and the days get darker, some people may notice that they feel more tired, experience weight gain, or struggle to get out of bed in the morning. For most, these symptoms begin in the fall,…more

ADA, Disability, Disability Discrimination, Employer Liability Issues, FMLA

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Unique New Jersey: Legal Pitfalls in Real Estate Transactions

Real property transactions in New Jersey can trigger several tax consequences that must be addressed at the time of closing. In New Jersey, real estate deals are subject to a variety of unique requirements that can…more

Bulk Sales Act, Capital Gains, Mortgages, Notification Requirements, Real Estate Market

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Pennsylvania’s Mechanics’ Lien Law Of 1963 – The Owner’s Perspective After The Amendments Of 2006 - 2014

When a property owner undertakes a construction project, chances are that he looks forward to enjoying his new (or improved) property. Drawings in hand, he anticipates the day when his project will be complete and ready for…more

Construction Industry, Liens, Mechanics Lien

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2015 Amendments to Delaware Alternative Entity Acts

New amendments affect Delaware general partnerships, limited liability partnerships, limited partnerships and limited liability companies. On July 24, Delaware Governor Jack Markell signed into law several amendments to the…more

Delaware Limited Liability Company Act, General Partnerships, Limited Liability Company (LLC), Limited Liability Partnerships, Limited Partnerships

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Supreme Court's Spokeo Ruling Could Broadly Impact Consumer Class Actions

The Court’s discussion of concrete injuries likely applies to other statutory consumer class actions based solely on technical violations. On May 16, the U.S. Supreme Court issued its much-anticipated decision in Spokeo,…more

Article III, Class Action, FCRA, Injury-in-Fact, SCOTUS

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Status Quo At The PTAB For Now: Supreme Court Makes No Changes to IPR Practice

Recently, the Supreme Court declined to make any changes to IPR procedure in its opinion in Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. ___ (2016). Relying primarily on statutory language and concepts of agency rulemaking…more

Appeals, Broadest Reasonable Interpretation Standard, Claim Construction, Cuozzo Speed Technologies v Lee, Inter Partes Review (IPR) Proceeding

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[Webinar] Acquiring a Company with Government Contracts: A Checklist of Unique Issues and Considerations - June 15th, 8:30am EDT

Pepper Hamilton invites you to attend a webinar discussing the unique issues to be considered when acquiring a company that does business with the federal government…more

Acquisition Agreements, Acquisitions, Government Contractors, Webinars

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A Cautionary Tale on Gun-Jumping: The Antitrust Division Expands its Use of Disgorgement in Enforcement of Civil Antitrust

The success of a merger or acquisition often largely depends on pre-closing planning and the rapid integration of the merged entities or acquired assets. In any transaction, the need for planning and speed create certain…more

Antitrust Litigation, Antitrust Provisions, Corporate Counsel, Disgorgement, Enforcement

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Software as a Medical Device: FDA Releases Draft Guidance

Companies that develop software that functions as a medical device should be aware that the Food and Drug Administration (FDA) has issued draft guidance that, once finalized, will classify the endless variety of Software as a…more

Comment Period, Draft Guidance, FDA, Healthcare, Medical Devices

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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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Big Changes Coming to Pennsylvania's Alcoholic Beverage Market

On June 8, Pennsylvania Governor Tom Wolf signed into law the first major overhaul of the Commonwealth’s Liquor Code since the end of Prohibition. Wolf heralded the measure as enhancing customer convenience while providing…more

Beer, Business Licenses, Casinos, Hotels, Licensing Rules

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Risks of BIM

When building information modeling (BIM) technology first gained widespread use, commentators warned of new legal risks posed by the information sharing and collaboration essential to the process. Contractors and designers…more

Architects, Building Information Modeling (BIM), Collaboration, Construction Contracts, Construction Industry

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Guidance for Employers on Addressing the NLRB's Joint Employer Decision

Prudent employers should evaluate their contingent employee relationships in light of the NLRB’s recent decision. To say that the National Labor Relations Board’s (NLRB’s or Board’s) recent decision in Browning-Ferris…more

Browning-Ferris Industries of California Inc., Collective Bargaining, DOL, Joint Employers, NLRA

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[Webinar] Could My Company's Website Violate the Americans with Disabilities Act? - June 14th, 12:00pm EDT

Under the Americans with Disabilities Act (ADA), places of public accommodation must ensure equal access to the goods and services they offer to disabled individuals. Is a company website subject to the ADA? The answer to that…more

ADA, Continuing Legal Education, Disability Discrimination, Equal Access, Public Accommodation

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Hail to . . . The Contracting Officer in Chief? - Donald Trump, Lockheed Martin and the Art of the Government Deal

The art of the deal in government contracts is much more complex than in the private sector because public policies and principles attach to the use of public funds. President Donald Trump has made his federal procurement…more

Acquisitions, Boeing, Defense Contracts, Defense Sector, Department of Defense (DOD)

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Pennsylvania Accepts Applications for Medical Marijuana Growers, Processors and Dispensaries

The Pennsylvania Department of Health will accept permit applications for medical marijuana grower/processors and dispensaries from February 20, 2017 until March 20, 2017, pursuant to its authority under the Medical Marijuana…more

Applications, Business Development, Decriminalization of Marijuana, Dispensaries, Marijuana

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Zika Concerns Highlight Need for Employer Planning

As temperatures in the Northeast cool, and the mosquito population disappears until spring, the Zika virus may no longer be on the minds of those who live and work in Pennsylvania. Given that cases of Zika continue to be…more

ADA, CDC, Employer Liability Issues, Infectious Diseases, Pregnancy

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What To Do When One of Your Employees Is Arrested

It’s a question more employers find themselves asking: “What should I do if one of my employees gets arrested?” Originally published in The HR Specialist - March 2016 issue…more

Arrest, Convictions, Employee Rights, Employment Policies

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Going the Distance: The Expanding Lifecycles of Private Equity Funds

The lifecycles of private equity (PE) funds are lengthening as managers continue to seek longer fundraising periods. This is due to a number of factors, including increases in due diligence and holding periods for investments as…more

Financial Sector, Fund Managers, Investment, Investment Funds, Private Equity

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A Step in the Right Direction: FDA Says It Will Refine Regulations on 'Healthy' Claims for Food

FDA recently announced that it will take a second look at its “healthy” regulations, and it is soliciting public comments on a dozen or so topics. Walk down any aisle at the grocery store and you will find foods advertised…more

Advertising, False Advertising, FDA, Food Labeling, Food Manufacturers

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Getting the Benefit of Your 'Exclusive Use' Bargain

Make sure your retail tenant’s “exclusive use” applies to all shopping center parcels. An “exclusive use” provision in a lease is a retail tenant’s best friend — it prohibits the landlord from allowing other space in a…more

Commercial Leases, Exclusive Use, Retail Market, Retailers, Shopping Centers

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New Economic Opportunities with Cuba Present Financial Rewards Along with Associated Compliance Challenges

The opening of Cuba to greater commercial and financial activity offers many possibilities for U.S. financial institutions but, with those possibilities, comes a responsibility to meet the complex compliance challenges that…more

Banking Sector, Cuba, Cuban Assets Control Regulations (CACR), Debit and Credit Card Transactions, Economic Development

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Delaware Bankruptcy Court: Debtors Can Offset Administrative Claims Before General Unsecured Claims

While section 503(b)(9) claims deserve priority payment over general unsecured claims, they do not provide a basis for stripping a debtor’s defenses in determining the allowed amount of a section 503(b)(9) claim…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Section 503(b)(9)

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FDA Is Evolving on Qualifications for 'New Chemical Entity'

The prior approval of a drug containing an active ingredient of the innovator drug is not necessarily a death knell for NCE exclusivity. Originally published in the Intellectual Property and Life Sciences sections of Law360…more

Amarin, ANDA, FDA, FDCA, Generic Drugs

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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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Federal Circuit Requires Standing To Appeal An IPR Decision

In the case of Phygenix, Inc. v. ImmunoGen, Inc., the Court of Appeals for the Federal Circuit (CAFC) held that the petitioner (Phygenix) that had unsuccessfully challenged certain claims of ImmunoGen’s U.S. Patent No. 8,337,856…more

America Invents Act, Appeals, Article III, Injury-in-Fact, Inter Partes Review (IPR) Proceeding

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FLSA Overtime Rule Blocked, Court Grants Nationwide Preliminary Injunction

On November 22, just eight days before the much-discussed amendments to the overtime provisions of the Fair Labor Standards Act (FLSA) (Final Rule) were scheduled to take effect, a federal district court judge for the Eastern…more

DOL, Exempt-Employees, Final Rules, FLSA, Minimum Salary

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Annual HSR Merger Notification Threshold Adjustments Announced

On January 19, the Federal Trade Commission (FTC) announced the annual changes to the thresholds of the Hart-Scott-Rodino Antitrust Improvements Act (the HSR Act). These thresholds are adjusted annually based on changes in the…more

FTC, Hart-Scott-Rodino Act, Mergers, Premerger Notifications, Securities

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Federal Court in Hawaii Holds that an Unlicensed Subcontractor May Pursue Contract Claims Against Contractor Notwithstanding Statute Precluding Unlicensed Contractors from Recovering in a Civil Action

U.S. Pipelining LLC v. Johnson Controls, Inc., No. 16-00132 HG-RLP, 2016 U.S. Dist. LEXIS 150767 (D. Haw. Oct. 31, 2016) - This action arose out of the renovation of a condominium complex on Maui (Project). Johnson…more

Building Permits, Condominiums, Construction Contracts, Construction Industry, Construction Project

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Lessons Learned from the Staples/Office Depot Merger Challenge

Companies contemplating mergers should review the effect of the transaction on each customer type, application and product, not just on the broad customer base. The U.S. District Court for the District of Columbia…more

Competition, Corporate Counsel, FTC, Merger Agreements, Office Depot

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Federal Appeals Court Finds CFPB's Structure Unconstitutional

While certainly a big blow to the Bureau, the court’s remedy did not go as far as some CFPB opponents would have liked. In a blockbuster ruling on October 11, the U.S. Court of Appeals for the District of Columbia Circuit…more

Administrative Proceedings, Article II, Banking Sector, CFPB, Constitutional Challenges

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Pennsylvania Legislature Seeks to Limit Access to Police Video Recordings

The bill establishes a more restrictive process for obtaining video than the courts have provided for under the Right to Know Law. The Pennsylvania Senate passed a bill on October 19 that would prohibit police body camera…more

Body Worn Cameras, Law Enforcement, Pending Legislation, Police, Police Brutality

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OSHA Rulemaking Increases Reporting Obligations

Beginning in 2017, employers will be required to affirmatively submit to OSHA whatever injury/illness information and forms they were already required to compile…more

Deadlines, Drug Testing, Electronic Filing, Employer Mandates, Final Rules

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FDA Is Evolving on Qualifications for 'New Chemical Entity'

The prior approval of a drug containing an active ingredient of the innovator drug is not necessarily a death knell for NCE exclusivity. Originally published in the Intellectual Property and Life Sciences sections of Law360…more

Amarin, ANDA, FDA, FDCA, Generic Drugs

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[Webinar] Beam It Up Safely: Navigating Data Privacy and Security in Telemedicine's Uncharted Territory - Sept. 17, 12:00pm EDT

Science fiction programs once imagined a future where a doctor on a spaceship could treat a patient on a distant planet using groundbreaking technology. The health care industry may not yet have made this giant leap, but doctors…more

Data Privacy, Data Protection, Data Security, Electronic Medical Records, Medical Records

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California Attorney General 'Crowdsources' Reporting of Privacy Policy Violations

This initiative by the Attorney General is effective immediately and is just the latest example of California’s effort to increase enforcement of laws aimed at protecting the privacy and data security of individual consumers…more

Attorney Generals, CalOPPA, Data Security, Internet of Things, Mobile Apps

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Update: Prudential Regulators Delay Compliance Deadline for New Swap Margin Rules

If you have been following our alerts on the pending deadlines (and the delays of these deadlines by certain regulators) of the new swap variation margin rules (New Swap Margin Rules) that were due to go into effect on March 1,…more

Banks, CFTC, Cross-Border Transactions, Deadlines, Depository Institutions

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NIST Cybersecurity Framework

Businesses today have their work cut out for them. Small or large, no organization is immune from cybersecurity threats. Added pressures arise from stepped up government regulatory oversight and enforcement that targets an…more

Cybersecurity, Cybersecurity Framework, Data Protection, Data Security, FTC

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OIG Issues HHS Fiscal Year 2016 Work Plan

The Work Plan describes more than 100 initiatives, including 43 new initiatives for the upcoming year. On November 2, the Department of Health and Human Services (HHS) Office of the Inspector General (OIG) issued its annual…more

Healthcare, Medicaid, Medical Devices, Medicare, Section 340B

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New Temporary and Proposed Regulations Regarding Debt Allocations for Partnerships - 'Oh My' - Tax Update Volume 2017, Issue 1

Although There Are Aspects of the Regulations that Practitioners and Taxpayers Still Disagree With, There Are Others that Are an Improvement on What Was Proposed Earlier. From 2013 through 2014, the IRS and the U.S…more

Anti-Abuse Rule, Debt, Disregarded Entities, IRS, Partnerships

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When Can Common Sense be Relied Upon to Find an Invention Obvious?

All patent practitioners recognize that a single prior art reference can be used to reject claims in an obviousness rejection. However, the issue is whether the Patent Office must provide additional evidence, above and beyond…more

Apple, Computer-Related Inventions, Google, Inter Partes Review (IPR) Proceeding, Inventions

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Executives Beware: The DOJ and SEC Have Set Their Sights on Individual Wrongdoing

The DOJ’s Yates Memo makes individual prosecutions a higher priority and makes a company’s own identification of potentially culpable individuals an explicit factor in assessing cooperation credit…more

Corporate Fines, Corporate Governance, Deferred Prosecution Agreements, DOJ, DPA

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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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Hail to . . . The Contracting Officer in Chief? - Donald Trump, Lockheed Martin and the Art of the Government Deal

The art of the deal in government contracts is much more complex than in the private sector because public policies and principles attach to the use of public funds. President Donald Trump has made his federal procurement…more

Acquisitions, Boeing, Defense Contracts, Defense Sector, Department of Defense (DOD)

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When It Absolutely, Positively Has to Be Indicted Overnight: How to Prevent Future Debacles Like the FedEx Prosecution

Against the backdrop of years of unprecedented monetary penalties imposed through DOJ civil settlements and deferred prosecution agreements with financial institutions embroiled in the 2008 financial meltdown, the DOJ came under…more

Controlled Substances, Criminal Investigations, Criminal Prosecution, Delivery Drivers, DOJ

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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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The IRS and Courts Weigh in on the Deductibility of Fines and Penalties - Tax Update, Volume 2016, Issue 3

Taxpayers who make payments in conjunction with a forfeiture action should attempt to understand the characterization of a payment to see if the specific payment can avoid being treated as a fine or penalty. Originally…more

Disgorgement, Fines, FINRA, IRS, Penalties

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Applying the Look-Through Rules in Determining 'Investment Partnership' Status Under Section 721(b) - Tax Update Volume 2017, Issue 1

Careful Evaluation and Planning Should Be Undertaken When the Partnership Is Formed and When Assets Are Contributed to Evaluate the Potential Impact of Section 721(b). Many taxpayers choose partnership structures (including…more

Business Formation, Investment Partnerships, Limited Liability Company (LLC), Partnerships, Securities

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Going the Distance: The Expanding Lifecycles of Private Equity Funds

The lifecycles of private equity (PE) funds are lengthening as managers continue to seek longer fundraising periods. This is due to a number of factors, including increases in due diligence and holding periods for investments as…more

Financial Sector, Fund Managers, Investment, Investment Funds, Private Equity

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EEOC Takes Sexual Orientation Discrimination to Federal Court

Employers should consider implementing anti-discrimination and anti-harassment policies in the workplace that include protections for employees based on their sexual orientation and gender identity and expression. On March…more

Civil Rights Act, EEOC, ENDA, Gender Discrimination, Gender Identity

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The Changing Landscape of Housing Admissions for Landlords: Life in the Wake of the April 4, 2016 OGC Guidance

The message from HUD is certainly confusing: don't discriminate, but use your discretion. It is enough to strike fear into the heart (and liability insurer) of even a seasoned property owner and manager. The common advice to…more

Admissions, Affordable Housing, Best Practices, Criminal Background Checks, Criminal Records

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The "Lien-Ability" of Field Change Directives Under Typical Construction Lien Laws?

Consider this scenario taken from an actual project dispute: The contractor has entered into an agreement with the owner for a project of any size. During the course of the project, the owner directs the contractor to perform…more

Change Orders, Construction Contracts, Construction Industry, Construction Liens, Construction Project

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Franchisor to Be Considered Statutory Employer? PA Supreme Court to Decide

The far-reaching implications of this decision could change the existing franchise business model. Is a franchisor a statutory employer of its franchisee’s employees? The Workers’ Compensation Appeals Board thinks so, and…more

Appeals, At-Will Employment, DOL, Franchisee, Franchises

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In Omnicare, Supreme Court Draws Distinction Between Factual Misstatements and Factual Omissions in Setting Standards for Determining Section 11 Opinion Statement Liability

On March 24, the U.S. Supreme Court handed down its landmark decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund. The Court vacated the U.S. Court of Appeals for the Sixth Circuit’s ruling…more

Material Misstatements, Omnicare, Omnicare v Laborers District Council, Registration Statement, SCOTUS

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Pennsylvania Court Rules That Arbitrators Should Decide Whether An Arbitration Agreement Has Been Revoked

By strictly construing a court’s role to the questions of whether a valid agreement exists and whether a dispute falls within the terms of an arbitration agreement, the Pennsylvania Commonwealth Court’s decision makes clear that…more

Arbitration, Arbitration Agreements, Discovery, State Farm, Trains

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Supreme Court’s Denial of Certiorari Strengthens Intellectual Property Licensees’ Protections in Cross-Border Insolvency Cases

Chapter 15 of the Bankruptcy Code provides mechanisms for dealing with cases of cross-border insolvency. On Oct. 6, 2014, the U.S. Supreme Court, in Jaffé v. Samsung Electronics Co., Ltd., denied review of a decision of the U.S…more

Chapter 15, Commercial Bankruptcy, Cross-Border, Insolvency, Patents

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Challenging Weight of the Evidence Methodology

Use of a WOE methodology may be appropriate for government regulation, but it should not establish legal liability. Originally published in In-House Defense Quarterly, a publication of DRI - Winter 2017…more

Evidence, Expert Testimony, Litigation Strategies, Risk Assessment

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Lessons Learned from the FCPA Pilot Program's First Six Months

The guidance issued by the DOJ in connection with the Pilot Program and recent declinations state that disclosure, remediation and cooperation are essential to any favorable resolution with the government. Six months ago,…more

Akamai Technologies, Bribery, Compliance, Cooperation, Corporate Counsel

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Update on Madden v. Midland: Cert. Decision Expected Soon

The certiorari petition asks the court to address whether the National Bank Act continues to have preemptive effect after the national bank has sold or otherwise assigned a loan to another entity. In a petition for a writ…more

Assignees, Financial Services Industry, Madden v Midland Funding, National Bank Act, Non-Bank Lenders

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January 2017 Independent Contractor Misclassification and Compliance News Update

January was a busy month for independent contractor misclassification – and IC compliance. In addition to Lowe’s $2.85 million settlement with installers whom it classified as ICs, Lufthansa agreed to pay $1.1 million in…more

Aircraft, Airlines, Arbitration, Arbitration Agreements, Aviation Industry

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Recent Developments in PA and NJ Regarding Scope of Privilege for Health Care Facilities Engaged in Peer Reviews and Self-Critical Analysis

Three recent cases offer guidance to health care entities in Pennsylvania and New Jersey regarding the discovery of documents created in connection with peer reviews, quality of care reviews and adverse event investigations…more

Health Care Providers, Healthcare, HMOs, Hospitals, Patient Safety

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Tax Developments in 2016: Federal Tax (Part I) - Sections 355, 382, and 385; and new rules on partnership audits dominate landscape

Section 385 Proposed Regulations — Impact on Related-Party Financing - Section 385 has been in the Internal Revenue Code since 1969. It was enacted to provide guidance for whether to classify an interest in a corporation as…more

Audits, Bifurcation, Change of Ownership, Debt, Debt Instruments

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Gist of the Action Doctrine May Not Bar Tort Claims Arising from Negligent Performance of Contractual Duties

On December 15, 2014, the Pennsylvania Supreme Court broke its long silence on the gist of the action doctrine when it issued its decision in Bruno v. Erie Insurance Co. The gist of the action doctrine precludes a plaintiff from…more

Contract Disputes, Homeowner's Insurance, Insurance Litigation, Negligence, Property Damage

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Beyond the Label: FDA Addresses Permissible Scope of Communications With Payors and Physicians

The draft guidances create a grey area between “on-label” and “off-label” communications that will require careful navigation as manufacturers develop HCEI analyses and promotional communications…more

Comment Period, Draft Guidance, FDA, First Amendment, HCEI

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Family Office Direct Investing in Private Equity Deals

For most family offices, engaging in direct investment PE deals really means finding the right partner, and the diligence required to find the right PE partner for direct deals is much more involved, and probably less of a…more

Buyouts, Capital Raising, Family Businesses, Fund Managers, Investment

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CFIUS: The Past, Present and Tomorrow

Congress crafted the Exon-Florio Amendment in 1988 to fill gaps that it perceived in federal antitrust, environmental and securities laws, as well as in the general power of the president to declare a national emergency, and to…more

CFIUS, China, Covered Transactions, Exon-Florio, Foreign Investment

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SBA Delays Rule on SBIC Passive Business Financing

On January 26, the U.S. Small Business Administration (SBA) published a Notice, delaying the effective date of a recent Final Rule that was set to modify SBA’s regulations on the ability of a small business investment company…more

Debentures, Investment, Passive Business Rule, Regulatory Freeze, SBA

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New York Employers Take Note: Federal Court Injunction Blocking the Federal Overtime Regulations Means Little in New York

Proposed New York regulations will nearly approach the now-enjoined federal salary thresholds — and then leapfrog those amounts in subsequent years. Originally published in Daily Labor Report - November 30, 2016…more

Comment Period, DOL, Exempt-Employees, Final Rules, FLSA

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Calif. Asks Innovator Drug Brands to Do the Impossible

Eight years ago, in Conte v. Wyeth, the California Court of Appeals shocked brand prescription drug manufacturers when it held that they could be liable for injuries caused by generic versions of their medications — an approach…more

CA Supreme Court, Generic Drugs, Innovator Liability, Labeling, Manufacturers

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Hostile Work Environment: Playing Defense to Offensive Workplace Conduct

A hostile environment can result from the unwelcome conduct of supervisors, co-workers, customers, contractors or anyone else with whom the victim interacts on the job when the unwelcome conduct renders the workplace atmosphere…more

Appeals, Discrimination, DOL, Employment Policies, Harassment

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[Webinar] Should Your Fintech Company Apply for an OCC Charter? - January 24th, 12:00pm EST

During this webinar, panelists will address whether a fintech company should apply, and what is involved in obtaining the proposed fintech OCC charter…more

Banking Sector, Capital Requirements, CFPB, Financial Sector, FinTech

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Nasdaq and NYSE Provide Clarity for Equity Plan Amendments Increasing Share Withholding

Both Nasdaq and the NYSE have issued guidance clarifying that no stockholder approval is required for equity plan amendments permitting increased share withholding. Earlier this year, the Financial Accounting Standards Board…more

Equity Plans, Executive Compensation, FASB, Nasdaq, NYSE

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Top 5 Things You Should Know About Online Direct (P2P) Lending Law And Regulations — Before You Do Anything Else!

Few people following the crowdfunding space have been able to ignore the recent meteoric rise of online direct lending, often called “peer-to-peer” (P2P) lending. What started out as a simple one-to-multiple consumer lending…more

Broker-Dealer, Crowdfunding, FINRA, Investment Adviser, Investment Opportunities

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EPA Publishes New TSCA Framework Rules

The revised Toxic Substances Control Act (TSCA) was enacted in June 2016. TSCA requires the U.S. Environmental Protection Agency (EPA) to finalize several “framework” rules by June 2017. Recently, EPA published three of these…more

Chemicals, Environmental Policies, EPA, Manufacturers, Risk Management

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U.S. Supreme Court Clarifies Bankruptcy Court Jurisdiction but Leaves Some Questions Unanswered in Executive Benefits Insurance Agency v. Arkison

The Supreme Court issued its decision in the closely followed case of Executive Benefits Insurance Agency v. Arkison, Chapter 7 Trustee of Estate of Bellingham Insurance Agency, Inc., 573 U.S. ___ (2014) (Bellingham) this…more

Article III, Chapter 7, Commercial Bankruptcy, EBIA v Arkison, Executive Benefits Insurance Agency

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Summary of HUD's Lean 232 Program Email Blast Office of Residential Care Facilities (ORCF) April 2016

In an effort to summarize the highlights of the LEAN Email Blasts that we receive, and rarely have time to review in a timely fashion, we at Pepper Hamilton are providing this quick synopsis of the latest LEAN update. Our aim is…more

Appraisal, Healthcare Facilities, HUD, LEAN Program, ORCF

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Agreements to Arbitrate Are Simple, Right?

The construction industry has been a leader in the use of arbitration to resolve disputes. In the past 30 years, it is fair to say that arbitration has outpaced litigation as the dominant method of dispute resolution. The…more

Arbitration, Arbitration Awards, Attorney's Fees, Construction Disputes, Construction Industry

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A Radical Overhaul? The Third Circuit Analyzes the Federal False Claims Act's Public Disclosure Bar after the Patient Protection and Affordable Care Act

To dismiss a case based on the public disclosure bar, the defense will have to establish that the allegations of fraud already were exposed in the news media or certain federal sources of information. Pharmaceutical, health…more

Affordable Care Act, False Claims Act (FCA), FOIA, FRCP 9(b), Health Care Providers

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Gist of the Action Doctrine May Not Bar Tort Claims Arising from Negligent Performance of Contractual Duties

On December 15, 2014, the Pennsylvania Supreme Court broke its long silence on the gist of the action doctrine when it issued its decision in Bruno v. Erie Insurance Co. The gist of the action doctrine precludes a plaintiff from…more

Contract Disputes, Homeowner's Insurance, Insurance Litigation, Negligence, Property Damage

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More Biotech and Diagnostic Patents At Risk After Federal Circuit Decision

On December 17, 2014, the Federal Circuit Court of Appeals found that certain claims relating to Myriad’s BRCA1 genetic test for breast and ovarian cancer were invalid under 35 U.S.C. § 101 as being ineligible for patent…more

AMP v Myriad, Biotechnology, CLS Bank v Alice Corp, DNA, Mayo v. Prometheus

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Second Circuit Rules PATRIOT Act Does Not Authorize Government's Bulk Telephone Metadata Collection Program

In yet another reminder of the importance of maintaining the privacy of personal information, the Second Circuit Court of Appeals, in ACLU v. Clapper, issued a unanimous decision striking down the National Security Agency’s bulk…more

ACLU, ACLU v Clapper, Appeals, Edward Snowden, Ex Parte

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U.S.-India Newsletter - Vol. 2016, Issue 3

Summer 2016 was a season of change. In Europe, we saw the "Brexit," with the United Kingdom voting to withdraw from the European Union. The June referendum sent shockwaves through the business and finance communities and brought…more

Acquisitions, ALJ, Appraisal, Capital Gains, Double Taxation

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The 100-Day Program at the ITC

In light of Audio Processing Hardware, it is now clear that, with respect to appeals of ITC 100-day program determinations, Commission determinations against a complainant are immediately appealable, while determinations in…more

28 U.S.C. § 1295(a)(6), ALJ, Article III, Federal Pilot Programs, ITC

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Third Circuit Clarifies the Ascertainability Standard in Class Certification Proceedings

In a precedential opinion issued on April 16, 2015, the Third Circuit sought to clarify its requirement that a proposed class be sufficiently ascertainable in order to be certified under Fed. R. Civ. P. 23(b)(3). Expressing…more

Appeals, Ascertainable Class, Class Action, Class Certification, Federal Rules of Civil Procedure

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Annual HSR Merger Notification Threshold Adjustments Announced

On January 19, the Federal Trade Commission (FTC) announced the annual changes to the thresholds of the Hart-Scott-Rodino Antitrust Improvements Act (the HSR Act). These thresholds are adjusted annually based on changes in the…more

FTC, Hart-Scott-Rodino Act, Mergers, Premerger Notifications, Securities

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Extended SEC MCDC Initiative Deadline Does Little to Lessen Urgency

The Securities and Exchange Commission (SEC) has recently modified its Enforcement Division’s Municipalities Continuing Disclosure Cooperation (MCDC) Initiative in order to encourage as much participation in the program as…more

Deadlines, Enforcement, Enforcement Actions, MCDC, SEC

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On the Grid: Blockchain May Create New Possibilities for Grid Enhancements and Energy IoT Applications

Just as blockchain technology has allowed for the tracking and authentication of Bitcoin and other cryptocurrency transactions, it could similarly mediate transactions in energy units. Blockchain technology — once known…more

Bitcoin, Blockchain, Connected Items, Cryptocurrency, Digital Currency

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Pennsylvania Independent Regulatory Review Commission Approves Oil and Gas Rulemaking

The purpose of the rulemaking is to modify and update existing requirements related to surface activities associated with the development of conventional and unconventional oil and gas wells…more

Department of Environmental Protection, Oil & Gas, Rulemaking Process, Surface Water, Underground Injection Wells

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Unique New Jersey: Legal Pitfalls in Real Estate Transactions

Real property transactions in New Jersey can trigger several tax consequences that must be addressed at the time of closing. In New Jersey, real estate deals are subject to a variety of unique requirements that can…more

Bulk Sales Act, Capital Gains, Mortgages, Notification Requirements, Real Estate Market

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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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Mark Your Calendars: NY Cybersecurity Regulations to Go into Effect

A covered entity will need to arrange for someone to perform the CISO function, dedicate resources to conduct periodic risk assessments, develop and implement policies and procedures, and retain appropriate personnel and conduct…more

Banking Sector, CISO, Covered Entities, Cybersecurity, Cybersecurity Framework

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Court of Appeals of Michigan Holds Contractor Cannot Recover Eichleay Damages from Supplier Absent Contractual Right and Proof that Delay in Delivery Caused an Actual Loss

ITT Water & Wastewater USA, Inc. v. L. D’Agostini & Sons, Inc., 2016 Mich. App. LEXIS 579 (March 17, 2016) - This action arises out of a contract dispute between plaintiff, ITT Water & Wastewater USA, Inc. (“ITT”), and…more

Construction Contracts, Construction Industry, Construction Project, Contract Disputes, Damages

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Description of the Small Business Investment Company Debenture Program

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

Community Reinvestment Act, Debentures, Investment, Leveraged Lending, SBA

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FDA Is Evolving on Qualifications for 'New Chemical Entity'

The prior approval of a drug containing an active ingredient of the innovator drug is not necessarily a death knell for NCE exclusivity. Originally published in the Intellectual Property and Life Sciences sections of Law360…more

Amarin, ANDA, FDA, FDCA, Generic Drugs

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A Radical Overhaul? The Third Circuit Analyzes the Federal False Claims Act's Public Disclosure Bar after the Patient Protection and Affordable Care Act

To dismiss a case based on the public disclosure bar, the defense will have to establish that the allegations of fraud already were exposed in the news media or certain federal sources of information. Pharmaceutical, health…more

Affordable Care Act, False Claims Act (FCA), FOIA, FRCP 9(b), Health Care Providers

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Mark Your Calendars: NY Cybersecurity Regulations to Go into Effect

A covered entity will need to arrange for someone to perform the CISO function, dedicate resources to conduct periodic risk assessments, develop and implement policies and procedures, and retain appropriate personnel and conduct…more

Banking Sector, CISO, Covered Entities, Cybersecurity, Cybersecurity Framework

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Delaware Bankruptcy Court: Debtors Can Offset Administrative Claims Before General Unsecured Claims

While section 503(b)(9) claims deserve priority payment over general unsecured claims, they do not provide a basis for stripping a debtor’s defenses in determining the allowed amount of a section 503(b)(9) claim…more

Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Section 503(b)(9)

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A Response to: 'Forcing Lawyers to Perform Pro Bono Services'

In his article in Verdict (July 18, 2016), Prof. Ronald Rotunda, responding to comments on pro bono delivered by Supreme Court Justice Sonia Sotomayor at a national conference of the American Law Institute, rightly states that…more

Client Services, Law Practice Management, Model Rules, Pro Bono, Young Lawyers

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Second Circuit Holds Class Can Be Decertified After Jury Verdict

A class certification ruling is always subject to challenge if the class representative does not prove the necessary elements of class certification. On July 15, the U.S. Court of Appeals for the Second Circuit held that…more

Class Action, Class Certification, Corporate Counsel, Late Fees, Mortgage Servicers

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Third Circuit Focuses on Relevant Product Market and Lack of Anticompetitive Conduct in Doryx Product-Hopping Case

To prevail in a product-hopping case, a plaintiff must be prepared to establish both monopoly power and anticompetitive effects. On September 28, a unanimous panel of the U.S. Court of Appeals for the Third Circuit affirmed…more

Anti-Competitive, Appeals, Generic Drugs, Hatch-Waxman, Mylan Pharmaceuticals

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Getting the Benefit of Your 'Exclusive Use' Bargain

Make sure your retail tenant’s “exclusive use” applies to all shopping center parcels. An “exclusive use” provision in a lease is a retail tenant’s best friend — it prohibits the landlord from allowing other space in a…more

Commercial Leases, Exclusive Use, Retail Market, Retailers, Shopping Centers

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FLSA Overtime Rule Blocked, Court Grants Nationwide Preliminary Injunction

On November 22, just eight days before the much-discussed amendments to the overtime provisions of the Fair Labor Standards Act (FLSA) (Final Rule) were scheduled to take effect, a federal district court judge for the Eastern…more

DOL, Exempt-Employees, Final Rules, FLSA, Minimum Salary

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Federal Circuit Highlights Claim Construction in Patent Eligibility Analysis

The case demonstrates that the eligibility analysis is highly fact-specific and dependent on properly construed claims. In McRO, Inc. v. Bandai Namco Games America Inc., a panel of the U.S. Court of Appeals for the Federal…more

Abstract Ideas, Animation, Claim Construction, CLS Bank v Alice Corp, Computer-Related Inventions

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EU Court of Justice: Safe Harbor Decision Permitting EU-U.S. Personal Data Transfers Is Invalid

Ruling affects approximately 5,000 U.S. companies that have relied on the Safe Harbor to transfer personal data from the EU to the United States. Key Points - - The approach of the U.S. government to personal…more

Cybersecurity, Data Protection, Data Security, Data Transfers, European Court of Justice (ECJ)

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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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[Webinar] Registration of 'Disparaging' Trademarks After 'The Slants' - January 27, 12:00-1:00pm, EST

The Federal Circuit Court of Appeals has ruled that Section 2(a) of the Lanham Act, which bars registration of marks that “disparage” a group of people, is an unconstitutional infringement of First Amendment free speech rights…more

Continuing Legal Education, Disparagement, First Amendment, Free Speech, Lanham Act

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Extension Period Expires for Pennsylvania Development Permits, Approvals

Now that the extension period has ended, it is imperative for those involved in real estate development to review and understand the approvals and permits that affect their properties and properly calculate and verify the…more

Building Permits, Construction Industry, Construction Permits, Construction Project, Land Developers

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Supreme Court Narrows Interpretation Of Federal Corruption Statute

On June 27, the U.S. Supreme Court vacated the conviction of former Virginia Governor Robert McDonnell, narrowing the definition of an “official act” in federal corruption cases. McDonnell v. United States, No. 15-474 (2016)…more

Bribery, Corruption, Criminal Prosecution, Extortion, Governor McDonnell

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The 'Palmetto Put-Down' Endangers Drug Cos. Nationwide

On Feb. 25, 2015, nearly two years after argument, the South Carolina Supreme Court directed entry of a $136 million judgment against Janssen Pharmaceuticals Inc. These civil penalties stemmed from a suit brought by the state's…more

Civil Monetary Penalty, Deceptive Intent, FDA, Janssen Pharmaceuticals, Labeling

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Reporting a Future Violation of Law Is Not Protected by Michigan's Whistleblower Protection Act

In Pace v. Edel-Harrelson, No. 151374 (Mich. S. Ct. Feb. 1, 2016), the Michigan Supreme Court held that Michigan’s Whistleblower Protection Act (WPA) does not provide recourse to an employee who reports another’s intent to…more

MI Supreme Court, Policy Violations, Whistleblower Protection Policies, Whistleblowers

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The Risk Retention Rules: A Victory for Securitizations Involving Residential Mortgage-Backed Securities?

When Congress passed the Dodd-Frank Act, it mandated the creation of risk retention rules in an effort to align the incentives of sponsors of asset-backed securities (ABS) with the interests of investors and to improve the…more

Asset-Backed Securities, Dodd-Frank, Risk Retention, RMBS

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[Webinar] Making Them Pay: Winning Attorney Fees in Patent Litigation - Oct. 8th, 12:00pm EDT

In most litigation, each party pays its own attorney fees and costs, regardless of the outcome of the case. The Patent Act of 1952, however, allowed for an award of fees to the prevailing party in patent litigation in…more

Attorney's Fees, Exceptional Case, Fee-Shifting, Intellectual Property Litigation, Octane Fitness v. ICON

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A New Tool for Health App Developers to Navigate a Crowded Regulatory Field

As regulators seek to define their authority and the scope of their enforcement power, more health apps will continue to flood the marketplace and transform how patients are treated. As mobile health applications become…more

App Developers, Covered Entities, FDA, FTC, Health Care Providers

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Intellectual Property Issues for Health Care Providers - November 2014

In This Presentation: - Introduction - Intellectual Property (IP) Basics - IP Strategy - IP Encountered by Health Care Providers - Securing Ownership of IP Assets - Managing/Registering…more

Business Assets, Copyright, Health Care Providers, Patents, Trade Secrets

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When May a Previously Approved Site Closure Not Provide Closure - Reopening Vapor Intrusion Sites

We can expect the trend seen in Massachusetts and some other states of reevaluating and reopening previously closed sites to address the vapor intrusion pathway to grow. Massachusetts is the latest state to reevaluate the…more

Contaminated Properties, Department of Environmental Protection, EPA, Toxic Exposure, Vapor Intrusion

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Gist of the Action Doctrine May Not Bar Tort Claims Arising from Negligent Performance of Contractual Duties

On December 15, 2014, the Pennsylvania Supreme Court broke its long silence on the gist of the action doctrine when it issued its decision in Bruno v. Erie Insurance Co. The gist of the action doctrine precludes a plaintiff from…more

Contract Disputes, Homeowner's Insurance, Insurance Litigation, Negligence, Property Damage

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IPR Estoppel Provisions May Not Be That Scary After All

IPR petitioners wary of the statutory estoppel under 35 U.S.C. § 315(e)(2) may have reason to be cautiously optimistic. Judge Sue Robinson of the Federal District Court of Delaware recently held that Toshiba is not estopped…more

Apotex, Estoppel, Intellectual Property Litigation, Intellectual Property Protection, Inter Partes Review (IPR) Proceeding

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An Update on Pennsylvania's Oil and Gas Law - Act 13 - After Supreme Court Decisions

While many key provisions of Act 13 have now been struck down by the Supreme Court’s two Robinson decisions, much of the Act remains. Act 13 of 2012 represented a major overhaul of Pennsylvania’s oil and gas law and…more

Department of Environmental Protection, Eminent Domain, Energy Projects, Energy Sector, Energy Storage

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