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Perkins Coie

Attorney

Latest Publications

Eric Aaserud

New FAR Rules Likely For "Critical Infrastructure" Contractors

On February 12, 2013, President Obama signed an Executive Order (the Order) intended to enhance the cybersecurity of the country's critical infrastructure. According to the Order, "[t]he cyber threat to critical infrastructure…more

Barack Obama, Critical Infrastructure Sectors, Cyber Threats, Cybersecurity, Data Breach

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Shylah R. Alfonso

U.S. Supreme Court Throws Into Question Proof Of Damages Requirements For Class Certification

On March 27, 2013, the U.S. Supreme Court issued its decision in Comcast Corp. v. Behrend, 569 U.S. ___, No. 11-864, 2013 WL 1222646 (Mar. 27, 2013). In a 5-4 decision, the Court reemphasized its recent precedent in Wal-Mart…more

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

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Anastasia (Ana) K. Anderson

U.S. Supreme Court Holds Equitable Tolling Doctrine Does Not Apply To Administrative Appeal Deadline

On January 22, 2013, the U.S. Supreme Court issued a unanimous decision in Sebelius v. Auburn Regional Medical Center, 568 U.S. _____ (2013), holding that hospitals cannot appeal Medicare inpatient reimbursement determinations…more

Administrative Appeals, Equitable Tolling, Kathleen Sebelius, Medicare, Physician Medicare Reimbursements

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Pamela Anderson

D.C. Circuit Rules That CFTC – Not FERC – Has Authority To Regulate Futures Trades

On March 15, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that the Commodity Futures Trading Commission (CFTC) has exclusive jurisdiction over natural gas futures contracts and that the Federal…more

CFTC, Commodity Futures Contracts, Exclusive Jurisdiction, FERC, Natural Gas

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Elizabeth Banzhoff

Perils Of The Global Supply Chain Series, Part 3: Groundbreaking ‘Honey Laundering’ Sting Signals New Era In Supply Chain Enforcement

Supply chain compliance is on the government’s enforcement radar like never before. If the recent Executive Order on Trafficking in Government Contracts and final SEC Conflict Minerals Rules were not notice enough, the…more

Antidumping Duties, China, Compliance, Deferred Prosecution Agreements, DOJ

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Gregg D. Barton

No Oregon Income Tax Nexus For Company Owning Intangibles Used In State

A federal bankruptcy court judge has held that Washington Mutual, Inc. (WMI), a parent holding company that owned bank subsidiaries conducting business in Oregon, did not have nexus in Oregon by virtue of its ownership of the…more

Chapter 11, Commerce Clause, Due Process, Excise Tax, Nexus

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Amanda Beane

Retailers Beware: Massachusetts Court Restricts Ability To Collect ZIP Codes At Point Of Sale

The Supreme Judicial Court of Massachusetts recently held that collecting a consumer's ZIP code at the point of sale may violate Massachusetts General Laws Chapter 93, Section 105(a) (Section 105(a)), which restricts the ability…more

Credit Cards, Data Collection, Personally Identifiable Information, Retailers, ZIP Codes

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Thomas (Tom) C. Bell

Retailers Beware: Massachusetts Court Restricts Ability To Collect ZIP Codes At Point Of Sale

The Supreme Judicial Court of Massachusetts recently held that collecting a consumer's ZIP code at the point of sale may violate Massachusetts General Laws Chapter 93, Section 105(a) (Section 105(a)), which restricts the ability…more

Credit Cards, Data Collection, Personally Identifiable Information, Retailers, ZIP Codes

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Danielle Benderly

What’s New in Executive Compensation for the Upcoming Proxy Season: Compensation Committee and Adviser Independence, ISS Guidelines and Shareholder Litigation

Public companies preparing for the upcoming 2013 proxy season will need to keep in mind a number of new developments related to executive compensation, including: - New Securities and Exchange Commission rules that require…more

Compensation Committee, Executive Compensation, ISS, Listing Standards, Nasdaq

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Glenn Benson

D.C. Circuit Rules That CFTC – Not FERC – Has Authority To Regulate Futures Trades

On March 15, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that the Commodity Futures Trading Commission (CFTC) has exclusive jurisdiction over natural gas futures contracts and that the Federal…more

CFTC, Commodity Futures Contracts, Exclusive Jurisdiction, FERC, Natural Gas

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Debra R. Bernard

FCC Rules That Confirmatory Opt-Out Text Messages Don't Violate the TCPA Under Certain Circumstances

In a ruling that will impact certain aspects of how companies handle their SMS/text message promotional programs, on November 29, 2012, the Federal Communications Commission (FCC) released a Declaratory Ruling regarding the…more

FCC, TCPA, Texting

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Mark Birnbaum

Illinois Supreme Court Issues New Rules Affecting Mortgage Foreclosures

The Illinois Supreme Court has issued new court rules that become effective on May 1, 2013, modifying the evidentiary requirements for obtaining foreclosure judgments, among other things. The rules are the result of the work of…more

Affidavits, Foreclosure, Loss Mitigation, Mortgages, Required Documentation

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Elizabeth Breakstone

Perils Of The Global Supply Chain Series, Part 3: Groundbreaking ‘Honey Laundering’ Sting Signals New Era In Supply Chain Enforcement

Supply chain compliance is on the government’s enforcement radar like never before. If the recent Executive Order on Trafficking in Government Contracts and final SEC Conflict Minerals Rules were not notice enough, the…more

Antidumping Duties, China, Compliance, Deferred Prosecution Agreements, DOJ

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Joseph Bringman

Supreme Court Holds Securities Fraud Class Certification Does Not Require Showing Of Materiality, With Strong Dissents Questioning The Fraud-On-The-Market Theory

In its long-awaited decision in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, No. 11-1085 (U.S. Feb. 27, 2013), the U.S. Supreme Court held that plaintiffs in a securities-fraud class action do not need to establish…more

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

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Marc Bruner

California Cities And Counties Can “Just Say No” To Medical Marijuana Dispensaries

The California Supreme Court has unanimously upheld a local ban on medical marijuana dispensaries, holding that the ban was not preempted by state statutes governing medical marijuana. The decision does not come as a surprise,…more

Dispensaries, Local Ordinance, Medical Marijuana, Municipalities, Preemption

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Jean-Jacques Cabou

Perils Of The Global Supply Chain Series, Part 3: Groundbreaking ‘Honey Laundering’ Sting Signals New Era In Supply Chain Enforcement

Supply chain compliance is on the government’s enforcement radar like never before. If the recent Executive Order on Trafficking in Government Contracts and final SEC Conflict Minerals Rules were not notice enough, the…more

Antidumping Duties, China, Compliance, Deferred Prosecution Agreements, DOJ

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Tony Caliendo

Arizona Supreme Court Follows Central Bank: No Implied Private Right Of Action For Aiding And Abetting Securities Fraud Under The Arizona Securities Act

Earlier today, in a case titled Sell v. Sewell, et al. (No. CV-12-0211-PR), the Arizona Supreme Court ruled that there is no implied private right of action for aiding and abetting securities fraud under the Arizona Securities…more

Aiding and Abetting, Private Right of Action, Securities Fraud

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Schuyler Carroll

No Clear Disclosure? No Third-Party Release In Ch. 11

Originally published in Law360 on January 28, 2013. A recent appellate decision requires strict adherence to disclosure requirements before third-party releases contained in a Chapter 11 plan may be approved…more

Disclosure Requirements, Indenture Trustee, Settlement, Third-Party Release Agrements

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Patrick Casey

Quarterly Investment Update – 4th Quarter 2012 Trust & Investment Services

In This Issue: - Economic Review & Outlook - Bond Market Review - Bond Market Outlook - Stock Market Review - Stock Market Outlook - Overview Of Washington Supreme Court Decision - Estate Tax Impact Of…more

Bonds, Fiscal Cliff, Investors, Stocks

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H. Vicky Chen

The Affordable Care Act’s “Play Or Pay” Mandate: How It Works

The Affordable Care Act added the so-called “Play or Pay” mandate or “Employer Shared Responsibility” provisions to the Internal Revenue Code (the Code). Starting in 2014, certain employers may be subject to a penalty tax, or…more

Affordable Care Act, Federal Poverty Line, Full-Time Employees, Healthcare, HHS

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Vivek Chopra

Don't Let a Data Breach Diminish Your Retail Profits This Holiday Season

For the first time, online retail sales exceeded $1 billion on Black Friday and reached nearly $1.5 billion on Cyber Monday this year. Analysts expect this increase in e-commerce to continue, and Forrester Research estimates…more

Data Breach, E-Commerce

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Richard Clifford

Fourth Circuit Expands False Claims Act Statute-Of-Limitations Period

For the first time in the more than 50-year history of the statute, a federal appeals court has applied the Wartime Suspension of Limitations Act (WSLA), 18 U.S.C. § 3287, to a civil False Claims Act (FCA) case. A World War…more

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Michael Clyde

Arizona Supreme Court Follows Central Bank: No Implied Private Right Of Action For Aiding And Abetting Securities Fraud Under The Arizona Securities Act

Earlier today, in a case titled Sell v. Sewell, et al. (No. CV-12-0211-PR), the Arizona Supreme Court ruled that there is no implied private right of action for aiding and abetting securities fraud under the Arizona Securities…more

Aiding and Abetting, Private Right of Action, Securities Fraud

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Sarah Crooks

Supreme Court Rules FLSA Collective Action Is Moot When The Individual Plaintiff's Claims Are Resolved Before Certification

On April 16, 2013, the U.S. Supreme Court concluded, in a 5-4 decision, that when the individual plaintiff in a "collective action" under the Fair Labor Standards Act (FLSA) resolves her own claims before certification, the case…more

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

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Bruce Michael Cross

Supreme Court Rules FLSA Collective Action Is Moot When The Individual Plaintiff's Claims Are Resolved Before Certification

On April 16, 2013, the U.S. Supreme Court concluded, in a 5-4 decision, that when the individual plaintiff in a "collective action" under the Fair Labor Standards Act (FLSA) resolves her own claims before certification, the case…more

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

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Joseph Cutler

New FinCEN Guidance Changes Regulatory Landscape For Virtual Currencies And Some Prepaid Programs

To address a perceived gap in regulatory treatment of increasingly popular virtual currencies, including Bitcoin, the U.S. Department of the Treasury Financial Crimes Enforcement Network (FinCEN) released new guidance on March…more

Bank Secrecy Act, Bitcoins, FinCEN, Money Services Business, Virtual Currency

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Kirsten Day

California Energy Commission Amends Nonresidential Building Energy Disclosure Regulations

The California Legislature adopted Section 25402.10 of the California Public Resources Code in 2007. The Code requires each nonresidential building owner throughout the state to document and disclose a building’s energy use…more

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Madeline Engel

Hospitals Provided Temporary Relief In Medicare Rebilling Policy

The Centers for Medicare & Medicaid Services (CMS) released a ruling and an interim rule that, effective immediately, will allow hospitals to rebill certain inpatient hospital services as outpatient services for one year after…more

American Hospital Association, Audits, Billing, CMS, Hospitals

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Miriam Farhi

Retailers Beware: Massachusetts Court Restricts Ability To Collect ZIP Codes At Point Of Sale

The Supreme Judicial Court of Massachusetts recently held that collecting a consumer's ZIP code at the point of sale may violate Massachusetts General Laws Chapter 93, Section 105(a) (Section 105(a)), which restricts the ability…more

Credit Cards, Data Collection, Personally Identifiable Information, Retailers, ZIP Codes

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Susan E. Foster

In re LIBOR-Based Financial Instruments Antitrust Litigation: A Long Road Ahead

In a self-described “unexpected” ruling for the defendants in the consolidated LIBOR proceedings, Judge Naomi Reice Buchwald has dismissed the private plaintiffs’ antitrust and Racketeer Influenced and Corrupt Organizations Act…more

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T. Markus Funk

Planning For When Things Go Wrong: Are You Ready To Investigate Allegations Of Board Member Misconduct?

Let us start our discussion with an area of broad consensus: A company’s board of directors has a duty of care to respond to and investigate allegations of wrongdoing by officers and/or employees of the company. But what happens…more

Board of Directors, Confidentiality, Independent Counsel, Internal Investigations, Investigations

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Jordan Galassie

No Clear Disclosure? No Third-Party Release In Ch. 11

Originally published in Law360 on January 28, 2013. A recent appellate decision requires strict adherence to disclosure requirements before third-party releases contained in a Chapter 11 plan may be approved…more

Disclosure Requirements, Indenture Trustee, Settlement, Third-Party Release Agrements

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Alexander Garcia

ICANN's Trademark Clearinghouse For Expanded gTLDs To Launch March 26: Are You Ready?

The Internet Corporation for Assigned Names and Numbers (ICANN), which is charged with enabling and securing the Internet, has been hard at work on a significant expansion project. This expansion includes changes to the…more

gTLD, ICANN, Trademark Clearinghouse, Trademarks

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Javier F. Garcia

NLRB’s Union Poster Rule Struck Down By D.C. Circuit

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit vacated the rule adopted by the National Labor Relations Board (the Board) that required most private sector employers to display on their properties…more

NLRB, Notice Requirements, Posting Requirements

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Amelia Gerlicher

Data Breach Class Actions Can't Survive Certification Without Expert Testimony On Classwide Damages

This is the latest opinion in the ongoing litigation arising out of a massive data breach suffered by Hannaford Bros. grocery stores. In re Hannaford Bros. Privacy Litigation, __F. Supp. 2d __, Case No. 2:08-MD-1954-DBH, 2013 WL…more

Class Action, Class Certification, Data Breach, Expert Testimony, Hannaford Brothers Company

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Albert Gidari, Jr.

Are You Recording Your Customers’ Calls? Better Listen

Federal law and most states only require one party to a phone call to consent to recording it, which means the person recording the call doesn’t need anyone else’s permission; however, a minority of states, including California,…more

All-Party Consent, Audio Recording, Commerce Clause, Nexus, One-Party Consent

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David Gold

Illinois Supreme Court Issues New Rules Affecting Mortgage Foreclosures

The Illinois Supreme Court has issued new court rules that become effective on May 1, 2013, modifying the evidentiary requirements for obtaining foreclosure judgments, among other things. The rules are the result of the work of…more

Affidavits, Foreclosure, Loss Mitigation, Mortgages, Required Documentation

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Andrew Grant

Software Developer Accused Of Aiding And Abetting Illegal Gambling

On January 8, 2013, the Supreme Court of the State of New York conducted a hearing in a criminal case that may cause concern among software developers whose software could be used for illegal activities…more

Aiding and Abetting, Internet Gambling, Licenses, Online Sportsbooks, Software

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Jordan Green

Software Developer Accused Of Aiding And Abetting Illegal Gambling

On January 8, 2013, the Supreme Court of the State of New York conducted a hearing in a criminal case that may cause concern among software developers whose software could be used for illegal activities…more

Aiding and Abetting, Internet Gambling, Licenses, Online Sportsbooks, Software

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Tyler Hagenbuch

While Hamstrung By DOMA, Federal Election Commission Still Opens Door To Joint Political Contributions From Same-Sex Couples

The Federal Election Commission (FEC) this week became the latest government agency to grapple with the impact of the Defense of Marriage Act (DOMA) on the federal rights of legally married same-sex couples. At issue was…more

DOMA, Federal Election Commission, Political Contributions, Same-Sex Marriage

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Kevin J. Hamilton

Supreme Court to Hear Another Case on Class Arbitration Waivers

On November 9, 2012, the U.S. Supreme Court agreed to consider the enforceability of a class action waiver clause in agreements between American Express and merchants that accepted its cards. The merchants filed a proposed class…more

Arbitration, Arbitration Agreements, Class Action Arbitration Waivers

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J. Dax Hansen

New FinCEN Guidance Changes Regulatory Landscape For Virtual Currencies And Some Prepaid Programs

To address a perceived gap in regulatory treatment of increasingly popular virtual currencies, including Bitcoin, the U.S. Department of the Treasury Financial Crimes Enforcement Network (FinCEN) released new guidance on March…more

Bank Secrecy Act, Bitcoins, FinCEN, Money Services Business, Virtual Currency

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Julianne Henley

The Madrid System Is Expanding: Is Your Trademark Portfolio Covered?

As more countries join the Madrid Protocol System for the International Registration of Marks (Madrid System), trademark owners should be sure to take full advantage of this trademark registration option. There are now 89…more

First-to-File, International Trademark Protection, Madrid Protocol, Trademarks

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Todd M. Hinnen

Don't Let a Data Breach Diminish Your Retail Profits This Holiday Season

For the first time, online retail sales exceeded $1 billion on Black Friday and reached nearly $1.5 billion on Cyber Monday this year. Analysts expect this increase in e-commerce to continue, and Forrester Research estimates…more

Data Breach, E-Commerce

See All Updates »

Jeffrey Hollingsworth

Ninth Circuit Holds Dukes v. Wal-Mart Certification Requirements Apply To Small Class Actions And In The Wage And Hour Context

On Tuesday, on remand from the U.S. Supreme Court, the Ninth Circuit held that the certification requirements set forth by the U.S. Supreme Court for a multimillion plaintiff gender discrimination class action in Dukes v…more

Class Action, Class Certification, Dukes v Wal-Mart, Wage and Hour, Wang v Chinese Daily News

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Sarah Hopkins

New Laws Increase Criminal Liability For Disclosure Of Trade Secrets: Are You Protected?

Two new criminal laws underscore the value of trade secrets as a critical asset to a corporation. These new laws, the Trade Secrets Clarification Act (TSCA) and the Foreign and Economic Espionage Penalty Enhancement Act…more

Criminal Sanctions, Economic Espionage Act, Trade Secrets, TSCA

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Kathleen Howard

Getting Ready For The Physician Payment ‘Sunshine’ Rule

Originally Published in BNA Bloomberg, Medical Devices Law & Industry Report on March 20, 2013. On February 1, 2013, the Centers for Medicare and Medicaid Services (CMS) published the long-awaited final regulations for…more

Affordable Care Act, CMS, Disclosure Requirements, Healthcare, Manufacturers

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Lauren T. Howard

California Law Soon To Require Written Contracts For Employees Paid On Commission (AB 1396; Cal. Labor Code § 2751)

On January 1, 2013, all employers with employees in California who are paid by commission will be required to have written contracts with those employees. This law is a significant departure from the previous law, which only…more

PAGA, Sales Commissions, Unfair Competition, Written Agreements

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Renee M. Howard

Hospitals Provided Temporary Relief In Medicare Rebilling Policy

The Centers for Medicare & Medicaid Services (CMS) released a ruling and an interim rule that, effective immediately, will allow hospitals to rebill certain inpatient hospital services as outpatient services for one year after…more

American Hospital Association, Audits, Billing, CMS, Hospitals

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Neal A. Hudders

Investment Window For Capital Gains Tax Exclusion For Certain New Investments In Small Businesses Extended To December 31, 2013

On January 2, 2013, President Obama signed into law the American Taxpayer Relief Act of 2012 (the Act). Among other provisions, the Act provides that the 100% exclusion from gross income of certain capital gains from sales of…more

American Taxpayer Relief Act, Capital Gains, Fiscal Cliff, Gain Exclusion, Income Taxes

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Teresa Jacobs

California Energy Commission Amends Nonresidential Building Energy Disclosure Regulations

The California Legislature adopted Section 25402.10 of the California Public Resources Code in 2007. The Code requires each nonresidential building owner throughout the state to document and disclose a building’s energy use…more

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Julie Jones

CEQA Reform: The Cure May Be Worse Than The Disease

According to the author’s April 23, 2013 press release, the amended version of Senate Bill 731 is a “comprehensive reform” of CEQA, “modernizing the law to aid California’s economic growth.” But a close review shows that the…more

Amended Legislation, CEQA, CEQA Reform, Notice Requirements, Public Transit

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Sandra Jones

Quarterly Investment Update – 4th Quarter 2012 Trust & Investment Services

In This Issue: - Economic Review & Outlook - Bond Market Review - Bond Market Outlook - Stock Market Review - Stock Market Outlook - Overview Of Washington Supreme Court Decision - Estate Tax Impact Of…more

Bonds, Fiscal Cliff, Investors, Stocks

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Zachary P. Jones

Supreme Court to Hear Another Case on Class Arbitration Waivers

On November 9, 2012, the U.S. Supreme Court agreed to consider the enforceability of a class action waiver clause in agreements between American Express and merchants that accepted its cards. The merchants filed a proposed class…more

Arbitration, Arbitration Agreements, Class Action Arbitration Waivers

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Calvin (Cal) Keith

Portland Adopts Mandatory Sick Leave Law

Portland has become just the fourth U.S. city to require that employers provide sick leave. The Portland ordinance goes into effect January 1, 2014. Following is a brief summary of the ordinance. As the effective date…more

Local Ordinance, Medical Leave, Municipalities, Notice Requirements, Paid Leave

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Todd Kerr

Supreme Court Holds Securities Fraud Class Certification Does Not Require Showing Of Materiality, With Strong Dissents Questioning The Fraud-On-The-Market Theory

In its long-awaited decision in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, No. 11-1085 (U.S. Feb. 27, 2013), the U.S. Supreme Court held that plaintiffs in a securities-fraud class action do not need to establish…more

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

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Christine J. Kim

New Rules Will Be “Taxing” On Medical Device Manufacturers

The U.S. Department of the Treasury and the Internal Revenue Service (IRS) recently issued much-anticipated final regulations under Section 4191 of the Internal Revenue Code (Code), which imposes a 2.3% tax on sales of any…more

Excise Tax, IRS, Manufacturers, Medical Devices, Sales & Use Tax

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Karl Klassen

Let The Race Begin: U.S. Joins The World In Rewarding The First Inventor To File

On March 16, 2013, the America Invents Act (AIA) changes U.S. patent law from a first-to-invent system to a first-inventor-to-file system, which moves U.S. patent law into closer harmony with most industrialized nations…more

America Invents Act, Derivation Proceeding, First-to-File, First-to-Invent, Grace Period

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Stephen Kostka

New Significance Standard For Greenhouse Gas Emissions Is Not New Information Triggering Supplemental CEQA Review

In an opinion published on March 28, 2013, a California court of appeal answered three questions under the California Environmental Quality Act that the published decisions have not yet addressed..…more

CEQA, CEQA Reform, Environmental Impact Report, Greenhouse Gas Emissions

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Betsy Kristoferson

Hart-Scott-Rodino Reporting Thresholds To Increase, Clayton Act Section 8 Interlocking Directorates Thresholds Increased

The Federal Trade Commission (FTC) recently announced that the reporting thresholds under Section 7A of the Clayton Act, known as the Hart-Scott-Rodino (H-S-R) Antitrust Improvements Act of 1976 (the Act), will be increased. …more

Filing Fees, FTC, Hart-Scott-Rodino Act, Interlocking Directorate, Premerger Notifications

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Amy Kunkel-Patterson

Check Your Arbitration Agreements After New Washington Supreme Court Case

A recent Washington Supreme Court case, Gandee v. LDL Freedom Enterprises, Inc., No. 87674-6 (Feb. 7, 2013), provides important insights into how Washington courts approach the enforceability of arbitration agreements in the…more

Arbitration Agreements, AT&T Mobility v Concepcion, Choice-of-Law, Federal Arbitration Act, Preemption

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Regina LaMonica

SEC Speaks: Agency Takes Back-To-Basics Approach In Face Of Changing Leadership, Congressional Mandates And New Technologies

The annual “SEC Speaks” conference, in which Securities and Exchange Commission (SEC) representatives review the agency’s efforts over the past year and preview the year to come, was held on February 22-23, 2013. A…more

CFTC, Citigroup, Crowdfunding, Dodd-Frank, Emerging Trading Technologies

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Bates McIntyre Larson

Illinois Supreme Court Issues New Rules Affecting Mortgage Foreclosures

The Illinois Supreme Court has issued new court rules that become effective on May 1, 2013, modifying the evidentiary requirements for obtaining foreclosure judgments, among other things. The rules are the result of the work of…more

Affidavits, Foreclosure, Loss Mitigation, Mortgages, Required Documentation

See All Updates »

Joel R. Levin

Getting Ready For The Physician Payment ‘Sunshine’ Rule

Originally Published in BNA Bloomberg, Medical Devices Law & Industry Report on March 20, 2013. On February 1, 2013, the Centers for Medicare and Medicaid Services (CMS) published the long-awaited final regulations for…more

Affordable Care Act, CMS, Disclosure Requirements, Healthcare, Manufacturers

See All Updates »

Selena J. Linde

Don't Let a Data Breach Diminish Your Retail Profits This Holiday Season

For the first time, online retail sales exceeded $1 billion on Black Friday and reached nearly $1.5 billion on Cyber Monday this year. Analysts expect this increase in e-commerce to continue, and Forrester Research estimates…more

Data Breach, E-Commerce

See All Updates »

Richard London

Fifth Circuit Decisions Concerning Confirmation Of Plans Of Reorganization

The U.S. Court of Appeals for the Fifth Circuit recently issued two decisions that affect a borrower’s ability to confirm a bankruptcy plan, Western Real Estate Equities, L.L.C. v. Village at Camp Bowie I, L.P. (In re Village at…more

Artificial Impairment, Bankruptcy Plans, Borrowers, Cramdown, Lenders

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Jose Lopez

SEC Speaks: Agency Takes Back-To-Basics Approach In Face Of Changing Leadership, Congressional Mandates And New Technologies

The annual “SEC Speaks” conference, in which Securities and Exchange Commission (SEC) representatives review the agency’s efforts over the past year and preview the year to come, was held on February 22-23, 2013. A…more

CFTC, Citigroup, Crowdfunding, Dodd-Frank, Emerging Trading Technologies

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Sarah E. Lysons

New HIPAA Omnibus Rule Implementing Provisions Of The HITECH Act: An Overview Of Changes

Final implementing regulations for many provisions of the HITECH Act (Health Insurance Technology for Economic and Clinical Health Act) were issued by the Department of Health and Human Services (HHS) recently, and appeared in…more

Business Associates, Compliance, Covered Entities, Data Breach, Enforcement

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Robert (Bob) L. Mahon

No Oregon Income Tax Nexus For Company Owning Intangibles Used In State

A federal bankruptcy court judge has held that Washington Mutual, Inc. (WMI), a parent holding company that owned bank subsidiaries conducting business in Oregon, did not have nexus in Oregon by virtue of its ownership of the…more

Chapter 11, Commerce Clause, Due Process, Excise Tax, Nexus

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Jenica D. Mariani

Ninth Circuit Holds Dukes v. Wal-Mart Certification Requirements Apply To Small Class Actions And In The Wage And Hour Context

On Tuesday, on remand from the U.S. Supreme Court, the Ninth Circuit held that the certification requirements set forth by the U.S. Supreme Court for a multimillion plaintiff gender discrimination class action in Dukes v…more

Class Action, Class Certification, Dukes v Wal-Mart, Wage and Hour, Wang v Chinese Daily News

See All Updates »

Winfield (Win) Martin

$8 Million Trade Dress Infringement Verdict: Is Your Trade Dress Protected?

A recent $8.1 million verdict in a trademark and trade dress infringement action is an emphatic reminder that businesses of all sizes should protect their trade dress as well as their trademarks. Although smaller or startup…more

Infringement, Startups, Trade Dress, Trademarks

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Robert Maynard

U.S. Supreme Court: NPDES Permits Are Not Required For Logging Road Stormwater Runoff

The U.S. Supreme Court has reversed a 2010 Ninth Circuit Court of Appeals decision and reaffirmed that a federal Clean Water Act National Pollutant Discharge Elimination System (NPDES) point source discharge permit is not…more

Clean Water Act, Discharge of Pollutants, EPA, Logging, NPDES

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James McCullagh

Data Breach Class Actions Can't Survive Certification Without Expert Testimony On Classwide Damages

This is the latest opinion in the ongoing litigation arising out of a massive data breach suffered by Hannaford Bros. grocery stores. In re Hannaford Bros. Privacy Litigation, __F. Supp. 2d __, Case No. 2:08-MD-1954-DBH, 2013 WL…more

Class Action, Class Certification, Data Breach, Expert Testimony, Hannaford Brothers Company

See All Updates »

Jeffrey Miller

CMS Issues Final Physician Payment Sunshine Act Regulations

On February 1, 2013, the Centers for Medicare and Medicaid Services (CMS) published the long-awaited final regulations implementing the Physician Payment Sunshine Act (Act or Sunshine Act). The Sunshine Act requires drug,…more

Biologics, CHIP, CMS, Common Ownership, Covered Recipients

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Keith Miller

SEC Speaks: Agency Takes Back-To-Basics Approach In Face Of Changing Leadership, Congressional Mandates And New Technologies

The annual “SEC Speaks” conference, in which Securities and Exchange Commission (SEC) representatives review the agency’s efforts over the past year and preview the year to come, was held on February 22-23, 2013. A…more

CFTC, Citigroup, Crowdfunding, Dodd-Frank, Emerging Trading Technologies

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Cori Gordon Moore

Supreme Court Limits State Action Immunity In Federal Trade Commission v. Phoebe Putney Health Systems

In a closely watched decision, a unanimous U.S. Supreme Court has reversed an 11th Circuit decision that invoked the state action doctrine to prevent the Federal Trade Commission (FTC) from challenging a state hospital…more

Competition, FTC, Governmental Immunity, SCOTUS, State Action Doctrine

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J. Sue Morgan

What’s New in Executive Compensation for the Upcoming Proxy Season: Compensation Committee and Adviser Independence, ISS Guidelines and Shareholder Litigation

Public companies preparing for the upcoming 2013 proxy season will need to keep in mind a number of new developments related to executive compensation, including: - New Securities and Exchange Commission rules that require…more

Compensation Committee, Executive Compensation, ISS, Listing Standards, Nasdaq

See All Updates »

Andrew Moriarty

Check Your Arbitration Agreements After New Washington Supreme Court Case

A recent Washington Supreme Court case, Gandee v. LDL Freedom Enterprises, Inc., No. 87674-6 (Feb. 7, 2013), provides important insights into how Washington courts approach the enforceability of arbitration agreements in the…more

Arbitration Agreements, AT&T Mobility v Concepcion, Choice-of-Law, Federal Arbitration Act, Preemption

See All Updates »

Tina Moss

No Clear Disclosure? No Third-Party Release In Ch. 11

Originally published in Law360 on January 28, 2013. A recent appellate decision requires strict adherence to disclosure requirements before third-party releases contained in a Chapter 11 plan may be approved…more

Disclosure Requirements, Indenture Trustee, Settlement, Third-Party Release Agrements

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Charles Mulaney

Getting Ready For The Physician Payment ‘Sunshine’ Rule

Originally Published in BNA Bloomberg, Medical Devices Law & Industry Report on March 20, 2013. On February 1, 2013, the Centers for Medicare and Medicaid Services (CMS) published the long-awaited final regulations for…more

Affordable Care Act, CMS, Disclosure Requirements, Healthcare, Manufacturers

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Alan Murphy

California Cities And Counties Can “Just Say No” To Medical Marijuana Dispensaries

The California Supreme Court has unanimously upheld a local ban on medical marijuana dispensaries, holding that the ban was not preempted by state statutes governing medical marijuana. The decision does not come as a surprise,…more

Dispensaries, Local Ordinance, Medical Marijuana, Municipalities, Preemption

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Lisa Oratz

FTC Expands Scope Of Children's Privacy Law To Keep Pace With New Technologies

On December 19, 2012, the Federal Trade Commission (FTC) finalized amendments to the Children's Online Privacy Protection Rule (the Rule), which applies to operators of commercial websites or online services that (1) are…more

Behavioral Advertising, COPPA, Data Collection, Data Protection, FTC

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Jerica L. Peters

Getting Ready For The Physician Payment ‘Sunshine’ Rule

Originally Published in BNA Bloomberg, Medical Devices Law & Industry Report on March 20, 2013. On February 1, 2013, the Centers for Medicare and Medicaid Services (CMS) published the long-awaited final regulations for…more

Affordable Care Act, CMS, Disclosure Requirements, Healthcare, Manufacturers

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Chelsea Dwyer Petersen

U.S. Supreme Court Rejects Attempt To Manipulate Federal Jurisdictional Threshold Under Class Action Fairness Act

The U.S. Supreme Court unanimously ruled in Standard Fire Insurance Co. v. Knowles, 568 U.S. __, No. 11-1450, 2013 WL 1104735 (Mar. 19, 2013), that plaintiffs attempting to bring a class action lawsuit cannot escape federal…more

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

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Richard (Rich) E. Peterson

New Rules Will Be “Taxing” On Medical Device Manufacturers

The U.S. Department of the Treasury and the Internal Revenue Service (IRS) recently issued much-anticipated final regulations under Section 4191 of the Internal Revenue Code (Code), which imposes a 2.3% tax on sales of any…more

Excise Tax, IRS, Manufacturers, Medical Devices, Sales & Use Tax

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Tobias Piering

U.S. Supreme Court Rejects Attempt To Manipulate Federal Jurisdictional Threshold Under Class Action Fairness Act

The U.S. Supreme Court unanimously ruled in Standard Fire Insurance Co. v. Knowles, 568 U.S. __, No. 11-1450, 2013 WL 1104735 (Mar. 19, 2013), that plaintiffs attempting to bring a class action lawsuit cannot escape federal…more

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

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Nicholas (Nick) Price

Is Your Company's Mobile App Violating CalOPPA?

On December 6, 2012, the California attorney general filed suit against Delta Airlines for failing to provide mobile application users with adequate notice of its privacy practices. According to the complaint, the "Fly Delta"…more

Compliance, Delta Airlines, Kamala Harris, Mobile Apps, Online Privacy Protection Act

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Pravin Rao

DOJ Fraud Official Offers An Insider’s View Of The FCPA Resource Guide

Charles Duross, deputy chief of the Department of Justice’s (DOJ) Criminal Division, Fraud Section, offered white collar crime practitioners rare insight into the DOJ’s and the Security and Exchange Commission’s (SEC) recently…more

Declination, DOJ, FCPA, FCPA Resource Guide, Morgan Stanley

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Anne Redman

New HIPAA Omnibus Rule Implementing Provisions Of The HITECH Act: An Overview Of Changes

Final implementing regulations for many provisions of the HITECH Act (Health Insurance Technology for Economic and Clinical Health Act) were issued by the Department of Health and Human Services (HHS) recently, and appeared in…more

Business Associates, Compliance, Covered Entities, Data Breach, Enforcement

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Lawrence Reichman

FDA Issues Proposed Rules And Explanatory Fact Sheets For FSMA

On January 4, 2013, the Food and Drug Administration (FDA) issued two long-awaited proposed rules implementing important aspects of the 2011 Food Safety Modernization Act (FSMA). These rules are intended to help prevent…more

FDA, Food Safety, FSMA, Manufacturers

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Barry Reingold

Hart-Scott-Rodino Reporting Thresholds To Increase, Clayton Act Section 8 Interlocking Directorates Thresholds Increased

The Federal Trade Commission (FTC) recently announced that the reporting thresholds under Section 7A of the Clayton Act, known as the Hart-Scott-Rodino (H-S-R) Antitrust Improvements Act of 1976 (the Act), will be increased. …more

Filing Fees, FTC, Hart-Scott-Rodino Act, Interlocking Directorate, Premerger Notifications

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Joshua Reiten

California Supreme Court Decision Signals Victory For Online Retailers

The California Supreme Court recently issued a landmark ruling in Apple Inc. v. Superior Court (formerly Krescent v. Apple Inc. in trial court proceedings), a case with wide-reaching implications for consumer privacy in…more

Apple, Credit Cards, E-Commerce, Internet Retailers, Personally Identifiable Information

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Carla L. Reyes

New FinCEN Guidance Changes Regulatory Landscape For Virtual Currencies And Some Prepaid Programs

To address a perceived gap in regulatory treatment of increasingly popular virtual currencies, including Bitcoin, the U.S. Department of the Treasury Financial Crimes Enforcement Network (FinCEN) released new guidance on March…more

Bank Secrecy Act, Bitcoins, FinCEN, Money Services Business, Virtual Currency

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Brander Richmond

Quarterly Investment Update – 4th Quarter 2012 Trust & Investment Services

In This Issue: - Economic Review & Outlook - Bond Market Review - Bond Market Outlook - Stock Market Review - Stock Market Outlook - Overview Of Washington Supreme Court Decision - Estate Tax Impact Of…more

Bonds, Fiscal Cliff, Investors, Stocks

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David B. Robbins

Hospitals Provided Temporary Relief In Medicare Rebilling Policy

The Centers for Medicare & Medicaid Services (CMS) released a ruling and an interim rule that, effective immediately, will allow hospitals to rebill certain inpatient hospital services as outpatient services for one year after…more

American Hospital Association, Audits, Billing, CMS, Hospitals

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Geoffrey Robinson

CEQA Year In Review 2012

In This Issue: - Project Approvals Triggering CEQA ..Chung v City of Monterey Park (2012) 210 CA4th 394 ..Tuolumne Jobs and Small Business Alliance v Superior Court) 210 CA4th 1006 (petition for review pending, Supreme…more

Ballot Measures, CEQA, Environmental Impact Report, Exemptions, Greenhouse Gas Emissions

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John Roche

Are You Recording Your Customers’ Calls? Better Listen

Federal law and most states only require one party to a phone call to consent to recording it, which means the person recording the call doesn’t need anyone else’s permission; however, a minority of states, including California,…more

All-Party Consent, Audio Recording, Commerce Clause, Nexus, One-Party Consent

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Luke Rona

Check Your Arbitration Agreements After New Washington Supreme Court Case

A recent Washington Supreme Court case, Gandee v. LDL Freedom Enterprises, Inc., No. 87674-6 (Feb. 7, 2013), provides important insights into how Washington courts approach the enforceability of arbitration agreements in the…more

Arbitration Agreements, AT&T Mobility v Concepcion, Choice-of-Law, Federal Arbitration Act, Preemption

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Heidi Sachs

New Laws Increase Criminal Liability For Disclosure Of Trade Secrets: Are You Protected?

Two new criminal laws underscore the value of trade secrets as a critical asset to a corporation. These new laws, the Trade Secrets Clarification Act (TSCA) and the Foreign and Economic Espionage Penalty Enhancement Act…more

Criminal Sanctions, Economic Espionage Act, Trade Secrets, TSCA

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Rajiv Sarathy

CLS Bank International v. Alice Corp.: Still No Definitive Guidance On Patent-Eligibility Under Section 101

On May 10, 2013, the U.S. Court of Appeals for the Federal Circuit released its much-awaited en banc decision in CLS Bank International v. Alice Corp. A majority of the court affirmed a district court's holding that Alice's…more

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

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Barbara Schussman

CEQA Reform: The Cure May Be Worse Than The Disease

According to the author’s April 23, 2013 press release, the amended version of Senate Bill 731 is a “comprehensive reform” of CEQA, “modernizing the law to aid California’s economic growth.” But a close review shows that the…more

Amended Legislation, CEQA, CEQA Reform, Notice Requirements, Public Transit

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Michael Sink

Perils Of The Global Supply Chain Series, Part 3: Groundbreaking ‘Honey Laundering’ Sting Signals New Era In Supply Chain Enforcement

Supply chain compliance is on the government’s enforcement radar like never before. If the recent Executive Order on Trafficking in Government Contracts and final SEC Conflict Minerals Rules were not notice enough, the…more

Antidumping Duties, China, Compliance, Deferred Prosecution Agreements, DOJ

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Bryan Smith

Investment Window For Capital Gains Tax Exclusion For Certain New Investments In Small Businesses Extended To December 31, 2013

On January 2, 2013, President Obama signed into law the American Taxpayer Relief Act of 2012 (the Act). Among other provisions, the Act provides that the 100% exclusion from gross income of certain capital gains from sales of…more

American Taxpayer Relief Act, Capital Gains, Fiscal Cliff, Gain Exclusion, Income Taxes

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Paul B. Smyth

Bureau Of Safety And Environmental Enforcement Announces New Rule For Safety And Environmental Management Systems

In an effort to reduce the occurrence of accidents, injuries and spills during oil and gas activities on the Outer Continental Shelf (OCS), the Bureau of Safety and Environmental Enforcement (BSEE) of the U.S. Department of the…more

Bureau of Safety and Envirnonmental Enforcement, Environmental Management Systems, Oil & Gas

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Kirk Soderquist

Software Developer Accused Of Aiding And Abetting Illegal Gambling

On January 8, 2013, the Supreme Court of the State of New York conducted a hearing in a criminal case that may cause concern among software developers whose software could be used for illegal activities…more

Aiding and Abetting, Internet Gambling, Licenses, Online Sportsbooks, Software

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William Stafford

Supreme Court Rules FLSA Collective Action Is Moot When The Individual Plaintiff's Claims Are Resolved Before Certification

On April 16, 2013, the U.S. Supreme Court concluded, in a 5-4 decision, that when the individual plaintiff in a "collective action" under the Fair Labor Standards Act (FLSA) resolves her own claims before certification, the case…more

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

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Grace Han Stanton

ICANN's Trademark Clearinghouse For Expanded gTLDs To Launch March 26: Are You Ready?

The Internet Corporation for Assigned Names and Numbers (ICANN), which is charged with enabling and securing the Internet, has been hard at work on a significant expansion project. This expansion includes changes to the…more

gTLD, ICANN, Trademark Clearinghouse, Trademarks

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Lee Stein

DOJ Fraud Official Offers An Insider’s View Of The FCPA Resource Guide

Charles Duross, deputy chief of the Department of Justice’s (DOJ) Criminal Division, Fraud Section, offered white collar crime practitioners rare insight into the DOJ’s and the Security and Exchange Commission’s (SEC) recently…more

Declination, DOJ, FCPA, FCPA Resource Guide, Morgan Stanley

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Michael Sussmann

Don't Let a Data Breach Diminish Your Retail Profits This Holiday Season

For the first time, online retail sales exceeded $1 billion on Black Friday and reached nearly $1.5 billion on Cyber Monday this year. Analysts expect this increase in e-commerce to continue, and Forrester Research estimates…more

Data Breach, E-Commerce

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Brian Svoboda

Political Giving, Like Charitable Giving, Raises Special Year-End Issues

Just as the end of the year can be a good time to make charitable donations, it can also be a good time to make political contributions for those who give frequently in federal elections…more

Charitable Donations, FEC, Individual Biennial Aggregate Limit, PACs, Political Contributions

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Nidhi Thakar

D.C. Circuit Rules That CFTC – Not FERC – Has Authority To Regulate Futures Trades

On March 15, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that the Commodity Futures Trading Commission (CFTC) has exclusive jurisdiction over natural gas futures contracts and that the Federal…more

CFTC, Commodity Futures Contracts, Exclusive Jurisdiction, FERC, Natural Gas

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Robert (Bob) P. Thibault

Bureau Of Safety And Environmental Enforcement Announces New Rule For Safety And Environmental Management Systems

In an effort to reduce the occurrence of accidents, injuries and spills during oil and gas activities on the Outer Continental Shelf (OCS), the Bureau of Safety and Environmental Enforcement (BSEE) of the U.S. Department of the…more

Bureau of Safety and Envirnonmental Enforcement, Environmental Management Systems, Oil & Gas

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Caryn Lara Trombino

DOJ Fraud Official Offers An Insider’s View Of The FCPA Resource Guide

Charles Duross, deputy chief of the Department of Justice’s (DOJ) Criminal Division, Fraud Section, offered white collar crime practitioners rare insight into the DOJ’s and the Security and Exchange Commission’s (SEC) recently…more

Declination, DOJ, FCPA, FCPA Resource Guide, Morgan Stanley

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Margret Warrick Truax

The Affordable Care Act’s “Play-Or-Pay” Mandate: Who Is A Full-Time Employee For Purposes Of The Employer Shared Responsibility Payment?

Recently, we published a Client Update explaining how the Play-or-Pay mandate, or Employer Shared Responsibility provision, under the Affordable Care Act (ACA) generally works. To summarize, we described how an employer counts…more

Affordable Care Act, Full-Time Employees, Healthcare, Minimum Essential Coverage, Pay or Play

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Linda Walton

New HIPAA Omnibus Rule Implementing Provisions Of The HITECH Act: An Overview Of Changes

Final implementing regulations for many provisions of the HITECH Act (Health Insurance Technology for Economic and Clinical Health Act) were issued by the Department of Health and Human Services (HHS) recently, and appeared in…more

Business Associates, Compliance, Covered Entities, Data Breach, Enforcement

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Edgar Washburn

D.C. Appeals Court Says EPA May Revoke Fill Permit After It Has Been Issued

In addressing an important legal issue of first impression, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the U.S. Environmental Protection Agency’s “veto” authority under Section 404(c) of the…more

Clean Water Act, Coal Mines, EPA, Permits, US Army Corps of Engineers

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Tyler Welti

CBD v. Salazar And The Way Forward For Fracking In Federal Minerals

On March 31, 2013, a magistrate judge with the U.S. District Court for the Northern District of California ruled that the U.S. Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) in issuing…more

Environmental Assessments, Fracking, Government Land, Leases, Minerals

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Mel Wheaton

Preparing for the 3.8% Medicare Surtax on Net Investment Income

The Patient Protection and Affordable Care Act of 2010 (Affordable Care Act) institutes a new 3.8 percent Medicare surtax on net investment income effective January 1, 2013. In addition, absent congressional action to extend the…more

3.8% Medicare Tax, Affordable Care Act, Medicare

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Christine Williams

New HIPAA Omnibus Rule Implementing Provisions Of The HITECH Act: An Overview Of Changes

Final implementing regulations for many provisions of the HITECH Act (Health Insurance Technology for Economic and Clinical Health Act) were issued by the Department of Health and Human Services (HHS) recently, and appeared in…more

Business Associates, Compliance, Covered Entities, Data Breach, Enforcement

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Bobbie Wilson

California Supreme Court Decision Signals Victory For Online Retailers

The California Supreme Court recently issued a landmark ruling in Apple Inc. v. Superior Court (formerly Krescent v. Apple Inc. in trial court proceedings), a case with wide-reaching implications for consumer privacy in…more

Apple, Credit Cards, E-Commerce, Internet Retailers, Personally Identifiable Information

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Kevin Ylvisaker

Quarterly Investment Update – 4th Quarter 2012 Trust & Investment Services

In This Issue: - Economic Review & Outlook - Bond Market Review - Bond Market Outlook - Stock Market Review - Stock Market Outlook - Overview Of Washington Supreme Court Decision - Estate Tax Impact Of…more

Bonds, Fiscal Cliff, Investors, Stocks

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Jacqueline Young

U.S. Supreme Court Throws Into Question Proof Of Damages Requirements For Class Certification

On March 27, 2013, the U.S. Supreme Court issued its decision in Comcast Corp. v. Behrend, 569 U.S. ___, No. 11-864, 2013 WL 1222646 (Mar. 27, 2013). In a 5-4 decision, the Court reemphasized its recent precedent in Wal-Mart…more

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

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Michael Young

Ninth Circuit Holds Dukes v. Wal-Mart Certification Requirements Apply To Small Class Actions And In The Wage And Hour Context

On Tuesday, on remand from the U.S. Supreme Court, the Ninth Circuit held that the certification requirements set forth by the U.S. Supreme Court for a multimillion plaintiff gender discrimination class action in Dukes v…more

Class Action, Class Certification, Dukes v Wal-Mart, Wage and Hour, Wang v Chinese Daily News

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