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'Tis the Season for Government Contracts: Five Key Compliance Issues for Retailers Selling to the Government

As retailers move closer to the end of the government fiscal year in September, ’tis the season for receiving government contracts. Federal agency budget authority for discretionary spending generally mandates that agencies…more

Compliance, EEO, EEOC, Employee Rights, Federal Contractors

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Turmoil In Ukraine (Part II): U.S. Halts Export Licenses For Dual-Use And Defense Items To Russia; Congress Acts To Codify And Expand Russia Sanctions

U.S. government agencies announced this week that they have suspended issuing export licenses to companies sending or releasing sensitive goods, services and technology to Russia. This development will prevent companies from…more

Exports, Foreign Policy, Russia, Sanctions, Ukraine

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Immunizing Patent Portfolios Against “Infectious” Estoppel

Parties challenging patents under the post-issuance review proceedings authorized by the America Invents Act have long worried about estoppel in later district court cases if they lose before the Patent Trial and Appeal Board…more

Estoppel, Patent Infringement, Patent Litigation, Patent Trial and Appeal Board, Patents

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USPTO Patent Trial And Appeal Board Completes The First Patent Invalidity Trial Under The America Invents Act

In its first “final” decision under the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO)’s Patent Trial and Appeal Board (PTAB) has invalidated and cancelled all five challenged claims of U.S…more

America Invents Act, Inventions, Patent Reform, Patent Trial and Appeal Board, Patents

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Federal Merger Enforcement Increases To Highest Level In Five Years

Hart-Scott-Rodino Filings Decreased Slightly in 2012, but Percentage of Investigations Leading to Second Requests and Enforcement Actions Increased; FTC Continues to Enforce HSR Act in Connection with Corporate Officers' and…more

Board of Directors, Compliance, Corporate Governance, Corruption, Enforcement Actions

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United States: IP and Antitrust

United States antitrust law seeks to encourage free and open competition by preventing exclusionary conduct that threatens the competitive process. Intellectual property rights (IPR) laws, by contrast, are designed to encourage…more

FRAND, FTCA, Non-Practicing Entities, Patent Infringement, Patent Litigation

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Risks Of Tribute Advertisements Are Focus Of Seventh Circuit Decision

Think the First Amendment protects your business from liability for running an ad congratulating a celebrity or other public figure? Better think again…more

Advertising, Celebrities, First Amendment, Right of Publicity

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What is Patent Term Adjustment and Why Does It Matter?

For patents granted on applications filed on or after June 8, 1995, the enforceable patent term begins on the day the patent issues and generally expires 20 years from the earliest effective filing date of the application. …more

Exelixis, Novartis, Patent Prosecution, Patent Term Adjustment, Patents

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Medicare Appeals Panel Invalidates National Coverage Determination Prohibiting Coverage for Gender Reassignment Surgery

On May 30, 2014, the Departmental Appeals Board (DAB) issued a decision invalidating the long-standing National Coverage Determination (NCD) prohibiting Medicare payment for transsexual surgery (now known as gender reassignment…more

Healthcare, Medicare, Surgery, Transgender

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Exports of Lightly Refined Natural Gas Condensate Approved by Federal Agency

On June 24, 2014, the Bureau of Industry and Security (BIS) of the Department of Commerce issued two advisory opinions (AOs) allowing for the export from the United States of what was reported to be “unrefined” oil. The general…more

Energy, Exports, Natural Gas, Natural Resources, Oil & Gas

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SBA Issues Final Rule Implementing The Small Business Jobs Act Of 2010

On October 2, 2013, Small Business Administration (SBA) published a final rule to establish and revise rules and procedures pertaining to small business set-asides, partial set-asides, multiple award contracts (MACs), task and…more

Bundling Rules, Contractors, MACs, NDAA, SBA

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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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Insurance Coverage Available For Bitcoin Deposits – Devil Is In The Details

Elliptic, a London-based digital virtual currency services firm, announced this week that it has secured insurance coverage through Lloyd’s of London for Bitcoin deposits made into its “deep cold storage” vault. This is an…more

Bitcoins, Lloyds Banking Group, Virtual Currency

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IRS Broadens Offshore Amnesty Program

Over the last several years, the Internal Revenue Service (IRS) has focused its efforts on enforcement of U.S. laws with respect to offshore assets held by U.S. citizens and residents, including their tax payment and reporting…more

Amnesty, CID, Enforcement, FATCA, FBAR

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Oregon Supreme Court Decides Sales Factor Case

On December 12, 2013, the Oregon Supreme Court issued its decision in Tektronix, Inc. v. Oregon Dep’t. of Revenue. The court held that the taxpayer’s receipts from the sale of goodwill, making up a part of the sale of a…more

Acquisitions, Goodwill, Intangible Property, Intangibles, Tax Exemptions

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Food Litigation Newsletter

In This Issue: - Recent Significant Developments and Rulings ..100% Natural Tea Case Survives Dismissal ..Claims in Chocolate Case Survive Dismissal ..Court Denies Class Certification in “All Natural”…more

Class Action, Class Certification, Evaporated Cane Juice, Food Labeling, Food Manufacturers

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BLM Issues Proposed Rule to Establish Competitive Leasing for Renewable Energy Projects on Public Lands

On September 30, 2014, the Bureau of Land Management issued a proposed rule that would establish competitive processes, terms, and conditions, including rental and bonding requirements, for solar and wind energy development…more

Bureau of Land Management, Energy Projects, Ground Leases, NEPA, Proposed Regulation

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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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USPTO Patent Trial And Appeal Board Completes The First Patent Invalidity Trial Under The America Invents Act

In its first “final” decision under the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO)’s Patent Trial and Appeal Board (PTAB) has invalidated and cancelled all five challenged claims of U.S…more

America Invents Act, Inventions, Patent Reform, Patent Trial and Appeal Board, Patents

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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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Financial Reform Act: SEC Proposes CEO Pay Ratio Disclosure Rules

Recently, the SEC, by a vote of 3 to 2, proposed long-delayed and controversial rules to implement the “CEO pay ratio” disclosure mandated under the Dodd-Frank Wall Street Reform and Consumer Protection Act. The proposed rules,…more

CEOs, Disclosure Requirements, Pay Ratio, SEC, Wages

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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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Federal District Court Rules PRP Can Pursue CERCLA Cost Recovery Action Against State

Judge William B. Shubb of the Eastern District of California ruled last month that a state government agency can be held liable as a Potentially Responsible Party (PRP) even if the agency’s involvement at a particular site is…more

CERCLA, Government Entities, Governmental Liability, Hazardous Substances, Remediation

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FCC Clarifies TCPA Mandates

The FCC last week issued two declaratory rulings interpreting the Telephone Consumer Protection Act (TCPA). While the rulings in each are limited to the specific requests set forth in the petitions, they include broad language…more

FCC, TCPA

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Washington State Supreme Court Issues Landmark Ruling: “Overriding Considerations Of The Public Interest” Do Not Justify Reallocating Water Rights From Minimum Instream Flows To New Beneficial Uses

On October 3, 2013, the Washington State Supreme Court ruled in Swinomish Indian Tribal Community v. Wash. Dept. of Ecology (No. 87672-0, Wash. Oct. 3, 2013) that the Department of Ecology exceeded its authority by applying the…more

Public Interest, Water, Water Rights

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DID YOU KNOW? News You Need Now From Perkins Coie's Family Office Services Group

Welcome to the Family Office Services Group's new update series "Did You Know?" It is an easy-to-read, timely and brief focus on legal issues and developments facing you and Family Offices throughout the year…more

Estate Planning, Estate Tax, Exclusions, Gift Tax, Income Taxes

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Food Litigation Newsletter - October 2014

In This Issue: - RECENT SIGNIFICANT RULINGS ..Court Narrows “All Natural” Class Action Against Safeway ..Nationwide Class Certified in Olive Oil Labeling Fight ..Whole Foods “All Natural” and…more

Class Action, ECJ, Food Labeling, Food Safety, Putative Class Actions

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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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Supreme Court Rules That Isolated Genes Are Unpatentable Products Of Nature

On June 13, 2013, the Supreme Court issued its highly anticipated decision in Association for Molecular Pathology v. Myriad Genetics, Inc…more

AMP v Myriad, DNA, Human Genes, Myriad, Patent-Eligible Subject Matter

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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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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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Supreme Court Strikes Down Part of EPA Greenhouse Gas Permit Rule but Leaves the Rule Mostly Intact

In 2011, the Environmental Protection Agency, acting under the Clean Air Act, required all new sources that would emit more than threshold quantities of “greenhouse gases” to get a preconstruction “prevention of significant…more

BACT, Clean Air Act, Climate Change, Environmental Policies, EPA

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Federal District Court Rules PRP Can Pursue CERCLA Cost Recovery Action Against State

Judge William B. Shubb of the Eastern District of California ruled last month that a state government agency can be held liable as a Potentially Responsible Party (PRP) even if the agency’s involvement at a particular site is…more

CERCLA, Government Entities, Governmental Liability, Hazardous Substances, Remediation

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Final Endangered Species Act Policy Revises Definition of “Significant Portion of Its Range”

On July 1, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly published a final policy providing their interpretation of the phrase ‘‘significant portion of its range,’’ which is part of…more

ESA, Final Rules, Fish and Wildlife Service, National Marine Fisheries Service, Statutory Interpretation

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Dressing Up Your Trademarks For The Holidays

Are you contemplating dressing up your trademarks for the holidays? Adding a jaunty Santa hat and garlands to your company name on your website and shopping bags? Animating your logo to spin like a dreidel or fly like Rudolph?…more

Brand, Holidays, Marketing, Trademarks

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Government Brings Important Case Against Illegal Marketplace “Silk Road;” Government Acknowledges Lawful Uses Of Bitcoin

The virtual currency industry is in the news once again following the October 1, 2013, Federal Bureau of Investigation’s shutdown of the “Silk Road” website. As part of the shutdown of the well-known underworld bazaar, the…more

Bitcoins, FBI, Silk Road, Virtual Currency

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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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DoD's Updated FOIA Program and Exemption 4 Guidance

On September 3, 2014, the Department of Defense (DoD) issued a proposed rule updating its policies and procedures implementing the Freedom of Information Act (FOIA), including FOIA Exemption 4. FOIA Exemption 4 exempts from…more

Disclosure, DOD, Exemptions, FOIA, Request For Information

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Revisions To SEC Rule 506 Permitting General Solicitation Effective September 23, 2013

New SEC Rules Permitting General Solicitation - On September 23, 2013 the new Securities and Exchange Commission (SEC) rules permitting general solicitation and advertising of private securities offerings pursuant to the…more

General Solicitation, JOBS Act, Rule 506 Offerings, SEC

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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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Annual Investment Update: Economic Review & Outlook - December 31, 2013

Welcome 2014! We want to thank you for continuing to support the investment strategies we have in place to protect your wealth. The total return in the S&P Index in 2013 of 32.4% now has the index up an astounding 173% since the…more

Economic Development, Federal Reserve, Rating Agencies, S&P

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U.S. Industry Files New Allegations Against Solar Products From China And Taiwan

On December 31, 2013, SolarWorld Industries America (SolarWorld), a U.S. manufacturer of solar panels, petitioned the Department of Commerce (Commerce) and the International Trade Commission (ITC) for additional tariffs on…more

Anti-Dumping Duty, China, Countervailing Duties, ITC, Solar Panels

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Year 2014 IRS Dollar Limits

The IRS announced the Year 2014 cost-of-living adjustments for various provisions affecting employee benefit plans. The following table shows certain Year 2014 limits and those from prior years…more

401k, Benefit Plan Sponsors, COLA, Employee Benefits, FICA Taxes

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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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Federal District Court Rules PRP Can Pursue CERCLA Cost Recovery Action Against State

Judge William B. Shubb of the Eastern District of California ruled last month that a state government agency can be held liable as a Potentially Responsible Party (PRP) even if the agency’s involvement at a particular site is…more

CERCLA, Government Entities, Governmental Liability, Hazardous Substances, Remediation

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U.S. Industry Files New Allegations Against Solar Products From China And Taiwan

On December 31, 2013, SolarWorld Industries America (SolarWorld), a U.S. manufacturer of solar panels, petitioned the Department of Commerce (Commerce) and the International Trade Commission (ITC) for additional tariffs on…more

Anti-Dumping Duty, China, Countervailing Duties, ITC, Solar Panels

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KBR Decision: What Government Contractors Need To Know About Possible Erosion Of Internal Investigation Privilege Protections

In a significant legal development, a U.S. District Court Judge recently ordered KBR Inc. (KBR) to produce internal investigation materials addressing allegations of misconduct under a government contract for military support in…more

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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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Beware of the CIP—Parent Applications Can Be Prior Art

Companies file patent applications with the United States Patent and Trademark Office (USPTO) to protect promising innovations. Often, however, improvements, additional uses and refinements surface after filing a patent…more

CIP, Patent Applications, Patents, Prior Art, USPTO

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Chicago Enforcement Officials Discuss 2014 SEC & DOJ Priorities: New Regime At SEC Takes A Page From The Prosecutors’ Playbook

Enforcement officials from the U.S. SEC’s Chicago Regional Office and the U.S. Attorney’s Office for the Northern District of Illinois gathered to discuss their enforcement initiatives at the “SEC & DOJ Hot Topics 2014” program…more

DOJ, Enforcement Actions, SEC

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IRS Guidance On Same-Sex Marriage: Employee Benefit Considerations

In response to the Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the Internal Revenue Service issued Revenue Ruling 2013-17 (Ruling) on August 29, 2013, in which the IRS set forth the following…more

DOMA, Domestic Partnership, Employee Benefits, IRS, Qualified Retirement Plans

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FTC Sends Warning About Using Social Media With Promotions

The Federal Trade Commission (FTC) recently investigated whether Cole Haan’s “Wandering Sole” social media contest violated Section 5 of the FTC Act, which prohibits deceptive practices. In doing so, the FTC issued a…more

Advertising, Cole Haan, Endorsements, Enforcement Actions, FTC

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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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Don’t Let Your Super Sale Become A Violent Stampede

Earlier this week, the federal Occupational Safety and Health Administration issued the news release, “Crowd Management Measures Are Critical During Major Sales Events,” and sent a reminder to major retailers and retail…more

Black Friday, OSHA, Retailers, Safety Precautions, Sales

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SBA Issues Final Rule Implementing The Small Business Jobs Act Of 2010

On October 2, 2013, Small Business Administration (SBA) published a final rule to establish and revise rules and procedures pertaining to small business set-asides, partial set-asides, multiple award contracts (MACs), task and…more

Bundling Rules, Contractors, MACs, NDAA, SBA

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Security Breach Notification Chart - Revised June 2014

Perkins Coie's Privacy & Security practice maintains a comprehensive chart that summarizes state laws regarding security breach notification. The chart is for informational purposes only and is intended as an aid in…more

Breach Notification Rule, Chief Compliance Officers, Compliance, Cybersecurity, Data Breach

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13 Changes To California Law In 2014: What Employers Need To Know

Every new year brings employment law changes for California’s employers and, while the Affordable Care Act has taken the spotlight for 2014, a vast array of employment laws deserve special attention from California employers for…more

Attorney's Fees, Crime Victims, Domestic Workers, Employee Benefits, Evidence

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California Energy Commission Delays Implementation Of Nonresidential Building Energy Disclosure Regulations

On August 14, 2013, the California Energy Commission announced for the second time this summer that implementation of California’s new energy use disclosure regulations has been delayed…more

Delays, Disclosure Requirements, Energy, Energy Efficiency, Energy Policy

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PCAOB Proposes Significant Changes To Auditor’s Report And Responsibilities For Annual Reports Filed With The SEC

As a result of ongoing efforts to improve the informational value of the auditor’s reporting model, on August 13, 2013, the Public Company Accounting Oversight Board (PCAOB) proposed two new auditing standards for public comment…more

Annual Reports, Auditors, Audits, PCAOB, Reporting Requirements

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Delaware Chancery Court Applies M&F Worldwide Six-Factor Test in Private Company Freeze-Out Merger and Grants Motion to Dismiss Claims Against Controlling Stockholders

In a bench ruling in Swomley v. Schlecht, C.A. No. 9355-VCL (Del. Ch. Aug. 27, 2014), the Delaware Chancery Court relied on the six-factor test set out in Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014), to dismiss a…more

Business Judgment Rule, Controlling Stockholders, Dismissals, Freeze-Out Mergers, Privately Held Corporations

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Regrouping And Refocusing: 2013 FCPA Year-In-Review And Enforcement Trends For 2014

Following a relatively flat enforcement landscape and some bumps in the 2013 prosecutorial road, the Department of Justice (‘‘DOJ’’) and the Securities and Exchange Commission (‘‘SEC’’) appear poised to spring back into action…more

Anti-Bribery, Anti-Corruption, Compliance, Enforcement, Enforcement Actions

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Washington Legislature Passes Significant Changes To The Model Toxics Control Act

During the waning hours of the legislative session, the Washington State Legislature passed Substitute Senate Bill 5296 (SSB 5296) by large majorities and Governor Inslee signed the bill without changes…more

Brownfield Properties, Conservation, Department of Ecology, Environmental Policies, MTCA

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Supreme Court Reverses En Banc Federal Circuit on Divided Patent Infringement

Yesterday in Limelight Networks, Inc., v. Akamai Technologies, Inc. the U.S. Supreme Court unanimously reversed the en banc Federal Circuit and held that a defendant cannot be liable for inducing patent infringement under 35…more

Akamai Technologies, Appeals, Certiorari, Divided Infringement, En Banc Review

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JOBS Act: SEC Adopts Rules To Permit General Solicitation And Advertising For Private Offerings

When enacted on April 5, 2012, Title II of the Jumpstart Our Business Startups Act of 2012 (JOBS Act) endeavored to lift the long-standing ban on general solicitation and advertising for private securities offerings under Rule…more

Accredited Investors, Advertising, General Solicitation, Investors, JOBS Act

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Oregon Settlement Expands Disclosure Obligations Of Physicians Receiving Payments From Drug And Device Manufacturers

As of August 1, 2013, pharmaceutical companies and medical device manufacturers are required to report to the federal government payments made to physicians under the Physician Payment Sunshine Act (PPSA)…more

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Federal Court Holds That FTC May Regulate Company Data Security Practices

In a closely watched and first-of-its-kind case, the U.S. District Court for the District of New Jersey rejected, for purposes of a motion to dismiss, a defendant company’s argument that the Federal Trade Commission (FTC) lacks…more

Data Protection, FTC, Jurisdiction, Wyndham

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Top 10 Issues To Consider When You Are Sued: Issue #8: Disclosing Litigation And Reserving For Litigation Losses

(updated from April 11, 2007) - Determining when and how to account for loss contingencies is an important decision for companies that have been sued…more

Disclosure Requirements, GAAP, Legal Costs, Loss Contingencies, SEC

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The SEC Speaks In 2014: Enhanced Statutory Regime Combined With Data Analytics Tools Results In Enforcement 2.0

The annual “SEC Speaks Conference,” where the U.S. Securities and Exchange Commission (SEC) and its senior staff review the major developments from the prior year, and preview the SEC’s enforcement priorities for the upcoming…more

Daniel Gallagher, Dodd-Frank, Enforcement, FCPA, Fraud

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Virtual Currencies: International Actions and Regulations

Argentina - In addition to issuing warnings about their use, Argentina has suggested an increased interest in virtual currency transactions by requiring financial institutions and other entities to report virtual currency…more

Bitcoins, Popular, Virtual Currency

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The New COPPA Rule Takes Effect Today — Are You Ready?

In December 2012, the Federal Trade Commission (FTC) adopted final amendments to the Children's Online Privacy Protection Act (COPPA) Rule, which regulates how companies may collect information online from children under 13…more

COPPA, Data Protection, FTC, Parental Consent, Personally Identifiable Information

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New Self-Regulatory Rules For Mobile Apps: What Your Company Needs To Know

Even as efforts to achieve industry-wide consensus on Do Not Track appear to be stalling, self-regulatory associations are forging ahead with their own rules governing online and mobile data collection…more

Data Collection, Digital Advertising Alliance, Do Not Track, Marketing, Mobile Apps

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Seventh Circuit Draws Roadmap For Section 404 Review Of Major Infrastructure Projects

A recent opinion from the U.S. Court of Appeals for the Seventh Circuit provides a useful roadmap for U.S. Army Corps of Engineers’ review of major infrastructure projects under Section 404 of the Clean Water Act. See Hoosier…more

Clean Water Act, Federal Highway Administration, Highways, Infrastructure, Public Projects

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California Lease Disclosure Requirements Regarding ADA Accessibility Now In Effect

Beginning July 1, 2013, California commercial leases and rental agreements must include a disclosure regarding whether the property being leased has been inspected by a Certified Access Specialist (CASp) and, if a CASp…more

Accessibility Rules, ADA, CASp, Commercial Leases, Disclosure Requirements

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Bureau Of Indian Affairs Proposes Regulation To Allow Taking Of Land Into Trust For Tribes In Alaska

After decades of interpreting the Alaska Native Claims Settlement Act of 1971 (ANCSA) to preclude the federal government’s acquisition of land in trust for tribes in Alaska, on May 1, 2014, the Bureau of Indian Affairs announced…more

Bureau of Indian Affairs, Native American Issues, Tribal Lands, Trusts

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United States: IP and Antitrust

United States antitrust law seeks to encourage free and open competition by preventing exclusionary conduct that threatens the competitive process. Intellectual property rights (IPR) laws, by contrast, are designed to encourage…more

FRAND, FTCA, Non-Practicing Entities, Patent Infringement, Patent Litigation

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Mutual Legal Assistance Treaties And Letters Rogatory: A Guide For Judges

The investigation of transnational criminal conduct often involves gathering evidence located in foreign countries. However, national sovereignty, international treaties, and international law preclude U.S. law enforcement…more

Criminal Prosecution, International Treaties, Investigations, Law Enforcement

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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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Repeal Of Requirements For Arizona Registration Of Charities Soliciting Donations In Arizona

As of September 13, 2013, the Arizona Secretary of State is no longer accepting registrations from charities that solicit charitable donations in Arizona. Arizona House Bill 2457 repealed the former Section 44-6552 of the…more

Charitable Donations, Registration

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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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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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Insurance Coverage for Businesses Affected by Hurricane Odile

Reports are coming in from Baja California about substantial damages from Hurricane Odile. As of September 15, 2014, the airport in Cabo San Lucas is closed, as are roads up and down the Baja peninsula. While there is no way to…more

Additional Insured, Business Interruption, Hurricane Odile, Property Damage, Property Insurance

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Third Quarter 2014: States Expanding Data Breach Notification Requirements

California, Florida, Kentucky, and Iowa have changed their security breach notification requirements in the past few months: California passed legislation effective January 1, 2015, that for the first time, addresses identity…more

Corporate Counsel, Cybersecurity, Data Breach, Identity Theft, New Legislation

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Security Breach Notification Chart - Revised June 2014

Perkins Coie's Privacy & Security practice maintains a comprehensive chart that summarizes state laws regarding security breach notification. The chart is for informational purposes only and is intended as an aid in…more

Breach Notification Rule, Chief Compliance Officers, Compliance, Cybersecurity, Data Breach

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Colorado’s Marijuana Financial System Unlikely To Solve Pot Banking Dilemma

In January 2014, Colorado became the first state in the Union to permit the sale of recreational marijuana. On May 7, 2014, Colorado made history again by passing the Marijuana Financial Services Cooperatives Act (the…more

Banks, Marijuana, Marijuana Cultivation

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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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EPA Proposes Another Rule To Limit New Power Plant CO2 Emissions

Background - Section 111 of the Clean Air Act authorizes the Environmental Protection Agency to set “new source performance standards” (NSPS) for selected categories of air pollution sources. These standards must require…more

Carbon Emissions, Clean Air Act, Environmental Policies, EPA, Greenhouse Gas Emissions

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EPA Issues Rule Approving New ASTM E1527-13 Standard For All Appropriate Inquiries

On December 30, 2013, the U.S. Environmental Protection Agency (EPA) issued its final rule approving the use of ASTM International’s revised “Standard Practice for Environmental Site Assessments: Phase I Environmental Site…more

CERCLA, Environmental Assessments, EPA, Hazardous Substances, Land Developers

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Facebook Simplifies Its Promotion Guidelines

Facebook recently updated its Promotion Guidelines to ease restrictions on conducting contest and sweepstakes promotions on the Facebook platform. Facebook previously required promotion sponsors to administer promotions through…more

Contests & Promotions, Facebook, Mobile Apps, Social Media

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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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How Should U.S. Companies React To The Iran Nuclear Deal And Which Sanctions Are Suspended?

The United States agreed to suspend certain sanctions against Iran over the weekend as part of an agreement to curb the Iranian nuclear program. The agreement, which provides for a six-month first step towards a comprehensive…more

Barack Obama, Iran Sanctions, Nuclear Power, OFAC, SDN List

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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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FCC Clarifies TCPA Mandates

The FCC last week issued two declaratory rulings interpreting the Telephone Consumer Protection Act (TCPA). While the rulings in each are limited to the specific requests set forth in the petitions, they include broad language…more

FCC, TCPA

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SEC Answers Frequently Asked Questions About Conflict Minerals Disclosure — Finally

The Securities and Exchange Commission’s (the Commission or SEC) Division of Corporation Finance provided answers to questions regarding the Commission’s rules adopted in response to the Dodd-Frank Wall Street Reform and…more

Conflict Mineral Rules, Disclosure Requirements, Form SD, Generic, Mining

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Patterson v. Domino’s Pizza, LLC: Franchisors Are Not Vicariously Liable as “Employers” or “Principals” for Their Franchisees’ Employees’ Workplace Conduct, California High Court Rules

In a significant win for franchisors, the California Supreme Court ruled 4-3 that although Domino’s “imposes comprehensive and meticulous standards for marketing its trademarked brand and operating its franchises in a uniform…more

Dominos, Employer Liability Issues, Franchises, Franchisors, LLC

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Delaware Chancery Court Applies M&F Worldwide Six-Factor Test in Private Company Freeze-Out Merger and Grants Motion to Dismiss Claims Against Controlling Stockholders

In a bench ruling in Swomley v. Schlecht, C.A. No. 9355-VCL (Del. Ch. Aug. 27, 2014), the Delaware Chancery Court relied on the six-factor test set out in Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014), to dismiss a…more

Business Judgment Rule, Controlling Stockholders, Dismissals, Freeze-Out Mergers, Privately Held Corporations

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Experts In Patent Cases: Getting The Most Out Of Your Star Witness

In This Issue: - Introduction - Selecting the Right Expert(s) ..The Testifying Expert ..Non-Testifying “Supporting” Experts - Fed. R. Civ. 26 Rules Governing Interactions Between Counsel and Experts …more

Claim Construction, Discovery, Expert Witness, Infringement, Motion To Strike

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Russia Issues Draft Legislation Prohibiting Virtual Currencies

Last week, the Russian Finance Ministry, in conjunction with the Ministries of Economic Development, Communications, Internal Affairs and Financial Monitoring, issued draft legislation amending existing Russian law to prohibit…more

Bitcoins, Russia, Virtual Currency

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Risk of Data Breaches Keeping You Up? Assess Data Security Before The Holiday Season

Data security breaches marred the 2013 holiday season for many consumers and retailers. The most famous security breach, at Target Corporation (Target), involved the loss of information on 40 million payment cards and…more

Best Management Practices, Cybersecurity, Data Breach, Data Protection, Debit and Credit Card Transactions

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U.S. Fish And Wildlife Service Imposes First-Ever Criminal Penalties For Bird Deaths Caused By Wind Projects

The first criminal case ever prosecuted under the Migratory Bird Treaty Act (MBTA) against a wind energy company for bird deaths resulted recently in Duke Energy Renewables (Duke Energy) reaching a settlement with the U.S…more

Bird Fatalities, DOJ, Fish and Wildlife Service, Migratory Bird Treaty Act, Wind Power

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KBR Decision: What Government Contractors Need To Know About Possible Erosion Of Internal Investigation Privilege Protections

In a significant legal development, a U.S. District Court Judge recently ordered KBR Inc. (KBR) to produce internal investigation materials addressing allegations of misconduct under a government contract for military support in…more

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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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Virtual Currencies: International Actions and Regulations

Argentina - In addition to issuing warnings about their use, Argentina has suggested an increased interest in virtual currency transactions by requiring financial institutions and other entities to report virtual currency…more

Bitcoins, Popular, Virtual Currency

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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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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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Third Quarter 2014: States Expanding Data Breach Notification Requirements

California, Florida, Kentucky, and Iowa have changed their security breach notification requirements in the past few months: California passed legislation effective January 1, 2015, that for the first time, addresses identity…more

Corporate Counsel, Cybersecurity, Data Breach, Identity Theft, New Legislation

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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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Turmoil In Ukraine (Part II): U.S. Halts Export Licenses For Dual-Use And Defense Items To Russia; Congress Acts To Codify And Expand Russia Sanctions

U.S. government agencies announced this week that they have suspended issuing export licenses to companies sending or releasing sensitive goods, services and technology to Russia. This development will prevent companies from…more

Exports, Foreign Policy, Russia, Sanctions, Ukraine

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Retail Leasing: Tis’ The Season to Make Your List and Check It Twice

The holiday shopping season is fast approaching and for the brick and mortar retail industry, it is a critical time. Whether you are a landlord of a shopping center, a long-term retail tenant, or a temporary seasonal tenant,…more

Commercial Leases, Leases, Retailers

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Bay Area Commuter Benefits Program Basics

Employers in the San Francisco Bay Area must now help their employees use alternative transportation under a program approved by the Bay Area Air Quality Management District (BAAQMD) and the Metropolitan Transportation…more

Bay Area Air Quality Management District, Commuter Tax Benefits, Commuting, Public Transit

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New Rules Amend Regulatory Exceptions For Donation Of Electronic Health Records Items And Services

On December 27, 2013, the Department of Health and Human Services published two final rules, one amending the Office of Inspector General’s (OIG) Anti-Kickback safe harbor related to electronic health records (EHR) items and…more

CMS, Cybersecurity, Data Protection, EHR, Healthcare

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The Perfect Package: A Checklist to Avoid Legal Challenges

Your product teams surely have already finalized their lineup of holiday winners, the new gizmos and must-have widgets that you hope end up on everyone’s wish lists. Unless the product gets noticed by consumers, however,…more

Brand, Trademarks

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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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The SEC Speaks In 2014: Enhanced Statutory Regime Combined With Data Analytics Tools Results In Enforcement 2.0

The annual “SEC Speaks Conference,” where the U.S. Securities and Exchange Commission (SEC) and its senior staff review the major developments from the prior year, and preview the SEC’s enforcement priorities for the upcoming…more

Daniel Gallagher, Dodd-Frank, Enforcement, FCPA, Fraud

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Insurance Coverage for Businesses Affected by the Napa Earthquake

As the Napa Valley community begins the process of repairing damage and healing from injuries and losses related to the earthquake that struck on August 24, 2014, we extend our heartfelt wishes to those affected by the natural…more

Earthquakes, Property Damage, Property Insurance

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California Energy Commission Delays Implementation Of Nonresidential Building Energy Disclosure Regulations

On August 14, 2013, the California Energy Commission announced for the second time this summer that implementation of California’s new energy use disclosure regulations has been delayed…more

Delays, Disclosure Requirements, Energy, Energy Efficiency, Energy Policy

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Repeal Of Requirements For Arizona Registration Of Charities Soliciting Donations In Arizona

As of September 13, 2013, the Arizona Secretary of State is no longer accepting registrations from charities that solicit charitable donations in Arizona. Arizona House Bill 2457 repealed the former Section 44-6552 of the…more

Charitable Donations, Registration

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CEQA Year In Review 2013 - A Summary Of Published Appellate Opinions Under CEQA

INTRODUCTION AND OVERVIEW - The published court decisions in 2012 reflected a heightened recognition that CEQA does not require perfection, but rather a reasonable effort to provide environmental information that actually…more

CEQA, CEQA Reform, Environmental Impact Report, Land Developers, Urban Planning & Development

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Annual Investment Update: Economic Review & Outlook - December 31, 2013

Welcome 2014! We want to thank you for continuing to support the investment strategies we have in place to protect your wealth. The total return in the S&P Index in 2013 of 32.4% now has the index up an astounding 173% since the…more

Economic Development, Federal Reserve, Rating Agencies, S&P

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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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Supreme Court Reverses En Banc Federal Circuit on Divided Patent Infringement

Yesterday in Limelight Networks, Inc., v. Akamai Technologies, Inc. the U.S. Supreme Court unanimously reversed the en banc Federal Circuit and held that a defendant cannot be liable for inducing patent infringement under 35…more

Akamai Technologies, Appeals, Certiorari, Divided Infringement, En Banc Review

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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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Halliburton: SCOTUS Reaffirms Fraud-on-the-Market Presumption, Allows Attack at Class Cert Stage

On Monday the Supreme Court issued its much anticipated decision in Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317, 2014 WL 2807181 (U.S. June 23, 2014), rejecting all pleas to overturn the fraud-on-the-market…more

Basic v Levinson, Class Certification, Fraud, Fraud-on-the-Market, Halliburton

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13 Changes To California Law In 2014: What Employers Need To Know

Every new year brings employment law changes for California’s employers and, while the Affordable Care Act has taken the spotlight for 2014, a vast array of employment laws deserve special attention from California employers for…more

Attorney's Fees, Crime Victims, Domestic Workers, Employee Benefits, Evidence

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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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Don’t Let The Grinch Steal Your Holiday Season: Preserving Your Right To Rebuild Your Business After A Disaster

The one-year anniversary of 2012’s Hurricane Sandy has just passed, which is a fitting occasion to think about how or if your business could be rebuilt after suffering complete or near destruction. Hurricane Sandy, which…more

Hurricane Sandy, Natural Disasters, Property Damage

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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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Revlon “Ring-Fencing” Settlement: Greater Risk Of SEC Enforcement Activity In Going Private Transactions?

On June 13, 2013, the Securities and Exchange Commission announced the settlement of administrative proceedings against Revlon, Inc. In the settlement order, the SEC asserted that the company hid information regarding a 2009…more

401k, Board of Directors, Going-Private Transactions, Revlon, Ring-Fencing

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CEQA Year In Review 2013 - A Summary Of Published Appellate Opinions Under CEQA

INTRODUCTION AND OVERVIEW - The published court decisions in 2012 reflected a heightened recognition that CEQA does not require perfection, but rather a reasonable effort to provide environmental information that actually…more

CEQA, CEQA Reform, Environmental Impact Report, Land Developers, Urban Planning & Development

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Hart-Scott-Rodino 2013 Annual Report: Filings Decreased, Transactions Investigated Increased and Enforcement Continues for Corporate Officers' and Directors' Stock Acquisitions

On May 21, 2014, the Federal Trade Commission and the Department of Justice published the Hart-Scott-Rodino Annual Report Fiscal Year 2013 (for the period from October 1, 2012 to September 30, 2013). The Annual Report…more

Annual Reports, Board of Directors, Corporate Officers, DOJ, Enforcement

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Supreme Court Clarifies Bankruptcy Court Jurisdiction (Somewhat)

In 2011, the Supreme Court decided Stern v. Marshall, 564 U.S. ___, 131 S. Ct. 2594 (2011), which gave voice to the Court’s grave concerns about the constitutional limits of bankruptcy court jurisdiction and raised several…more

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

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Speak Up Now: Seattle $15 Minimum Wage Proposal Comment Period Begins May 22

The Seattle employment community is abuzz about the prospect of a $15 minimum wage for all Seattle employees, which would make it the highest minimum wage in the nation. The idea is not new; in the fall of 2013, voters in the…more

Minimum Wage, Public Comment

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The SEC Speaks In 2014: Enhanced Statutory Regime Combined With Data Analytics Tools Results In Enforcement 2.0

The annual “SEC Speaks Conference,” where the U.S. Securities and Exchange Commission (SEC) and its senior staff review the major developments from the prior year, and preview the SEC’s enforcement priorities for the upcoming…more

Daniel Gallagher, Dodd-Frank, Enforcement, FCPA, Fraud

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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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NLRB Challenges Franchise Model in Complaint Against McDonald’s

Last week, in an unprecedented shift away from long-standing Board precedent, Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (NLRB), asserted that McDonald’s, USA LLC (McDonald’s USA) — the…more

Employer Liability Issues, Franchises, Franchisors, Joint Employers, McDonalds

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EPA And Corps Of Engineers Release Proposed Rule On Scope Of Waters Covered Under Clean Water Act That Would Significantly Expand Permitting Requirements

On April 21, 2014, the Environmental Protection Agency and the Army Corps of Engineers jointly published a proposed rule to define those waters that fall under the jurisdiction of the Clean Water Act as “waters of the United…more

Clean Water Act, EPA, Jurisdiction, US Army Corps of Engineers, Waters of the United States

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NLRB Challenges Franchise Model in Complaint Against McDonald’s

Last week, in an unprecedented shift away from long-standing Board precedent, Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (NLRB), asserted that McDonald’s, USA LLC (McDonald’s USA) — the…more

Employer Liability Issues, Franchises, Franchisors, Joint Employers, McDonalds

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D.C. Circuit Vacates Barko Ruling on Scope of Privilege in Internal Investigations

On June 27, 2014, the D.C. Circuit vacated the U.S. District Court for the District of Columbia’s hotly-debated opinion in United States ex rel. Barko v. Halliburton Co., making it clear that internal investigation…more

Attorney-Client Privilege, Barko v Halliburton, Chief Compliance Officers, Corporate Counsel, False Claims Act

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Silk Road’s Ulbrecht Fails in Dismissal Bid, Court Strengthens Federal Bitcoin Enforcement

In another installment of the continuing saga surrounding the shuttering of the Silk Road online marketplace and arrest of its alleged creator and operator, Ross William Ulbricht (Ulbricht), a Southern District of New York judge…more

Bitcoins, FinCEN, Indictments, IRS, Motion to Dismiss

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Beware! Certificates Of Insurance Are Hardly Worth The Paper They Are Written On

Every day companies throughout the nation enter into contracts that require their business partners to list them as an additional insured under the business partner’s insurance policies. Having your company listed as an…more

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IRS Guidance On Same-Sex Marriage: Employee Benefit Considerations

In response to the Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the Internal Revenue Service issued Revenue Ruling 2013-17 (Ruling) on August 29, 2013, in which the IRS set forth the following…more

DOMA, Domestic Partnership, Employee Benefits, IRS, Qualified Retirement Plans

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Supreme Court Holds Computerization of Abstract Ideas Not Patent-Eligible

Earlier today, the Supreme Court decided Alice Corporation v. CLS Bank International and unanimously held that Alice’s patent claims were not patent eligible under 35 U.S.C. § 101 because they merely called for generic…more

Alice Corporation, Bilski, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus

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Federal Government Crackdown On Virtual Currency Heats Up

Asset Seizures and Arrests Mark Recent Federal Virtual Currency Enforcement Actions - Federal authorities have initiated several recent enforcement actions that are indicative of continuing regulatory changes in the…more

Bitcoins, Enforcement, FinCEN, Money Laundering, Virtual Currency

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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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Mexico's Growing Focus On Combating Corruption

First Annual Mexico Summit on Anti-Corruption - More than 100 members of the Mexican legal and business communities gathered in Mexico City on March 25 and 26, 2014 to attend the American Conference Institute’s First…more

Anti-Corruption, Compliance, Corruption, Mexico

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DID YOU KNOW? SEC Allows Family Offices to Include Members of an Extended Family

Family offices have existed for over a century and have been formed to implement very important and complex objectives, including investment management, corporate succession, estate, gift and income tax planning, and charitable…more

Dodd-Frank, Family Offices, Investment Adviser, Investment Advisers Act of 1940, SEC

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Is Your Company Ready For California's Expanded Data Security Notification Law?

Effective January 1, 2014, California residents must be notified when the information used to access their email or other online accounts is compromised in a data security breach incident. …more

Breach Notification Rule, Compliance, Cybersecurity, Data Breach, Data Protection

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Bureau Of Indian Affairs Proposes Regulation To Allow Taking Of Land Into Trust For Tribes In Alaska

After decades of interpreting the Alaska Native Claims Settlement Act of 1971 (ANCSA) to preclude the federal government’s acquisition of land in trust for tribes in Alaska, on May 1, 2014, the Bureau of Indian Affairs announced…more

Bureau of Indian Affairs, Native American Issues, Tribal Lands, Trusts

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Patterson v. Domino’s Pizza, LLC: Franchisors Are Not Vicariously Liable as “Employers” or “Principals” for Their Franchisees’ Employees’ Workplace Conduct, California High Court Rules

In a significant win for franchisors, the California Supreme Court ruled 4-3 that although Domino’s “imposes comprehensive and meticulous standards for marketing its trademarked brand and operating its franchises in a uniform…more

Dominos, Employer Liability Issues, Franchises, Franchisors, LLC

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Oregon Supreme Court Decides Sales Factor Case

On December 12, 2013, the Oregon Supreme Court issued its decision in Tektronix, Inc. v. Oregon Dep’t. of Revenue. The court held that the taxpayer’s receipts from the sale of goodwill, making up a part of the sale of a…more

Acquisitions, Goodwill, Intangible Property, Intangibles, Tax Exemptions

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Exports of Lightly Refined Natural Gas Condensate Approved by Federal Agency

On June 24, 2014, the Bureau of Industry and Security (BIS) of the Department of Commerce issued two advisory opinions (AOs) allowing for the export from the United States of what was reported to be “unrefined” oil. The general…more

Energy, Exports, Natural Gas, Natural Resources, Oil & Gas

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Seventh Circuit Draws Roadmap For Section 404 Review Of Major Infrastructure Projects

A recent opinion from the U.S. Court of Appeals for the Seventh Circuit provides a useful roadmap for U.S. Army Corps of Engineers’ review of major infrastructure projects under Section 404 of the Clean Water Act. See Hoosier…more

Clean Water Act, Federal Highway Administration, Highways, Infrastructure, Public Projects

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EPA Issues Proposed Rule to Remove Reference to ASTM E1527-05 in All Appropriate Inquiries Rule

On June 17, 2014, the U.S. Environmental Protection Agency published a proposed rule to amend the standards and practices for complying with the “All Appropriate Inquiries” rule under the Comprehensive Environmental Response,…more

ASTM, CERCLA, Environmental Site Assessment, EPA, Final Rules

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San Francisco Enacts New Workplace Protection For Caregivers

The San Francisco Family Friendly Workplace Ordinance goes into effect on January 1, 2014. The ordinance grants employees who act as caregivers the right to request accommodation from their employers, including flexible…more

Caregivers, Flexible Work Arrangements, Local Ordinance, Municipalities

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California Northern District Judges Split on Sufficiency of Damages Evidence at Class Certification – Will Ninth Circuit Weigh In?

Judges in the U.S. District Court for the Northern District of California are split on the sufficiency of damages evidence at the class certification stage. Jones v. ConAgra Foods, Inc, No. C 12-01633 CRB, 2014 WL 2702726 (N.D…more

Class Action, Class Certification, ConAgra, Damages, Food Labeling

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Facebook Simplifies Its Promotion Guidelines

Facebook recently updated its Promotion Guidelines to ease restrictions on conducting contest and sweepstakes promotions on the Facebook platform. Facebook previously required promotion sponsors to administer promotions through…more

Contests & Promotions, Facebook, Mobile Apps, Social Media

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New Law Eliminates Any Clean Water Act NPDES Permit Requirement For Logging Road Stormwater Runoff

On February 7, 2014, President Obama signed into law the 2014 Farm Bill, H.R. 2642. Section 12313 of the Bill (Silvicultural Activities) amends the Clean Water Act to make clear that a National Pollutant Discharge Elimination…more

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NLRB Challenges Franchise Model in Complaint Against McDonald’s

Last week, in an unprecedented shift away from long-standing Board precedent, Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (NLRB), asserted that McDonald’s, USA LLC (McDonald’s USA) — the…more

Employer Liability Issues, Franchises, Franchisors, Joint Employers, McDonalds

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Third Quarter 2014: States Expanding Data Breach Notification Requirements

California, Florida, Kentucky, and Iowa have changed their security breach notification requirements in the past few months: California passed legislation effective January 1, 2015, that for the first time, addresses identity…more

Corporate Counsel, Cybersecurity, Data Breach, Identity Theft, New Legislation

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Federal Circuit Holds That Issues Of Claim Construction Must Be Reviewed Without Deference On Appeal, Without Regard To Legal Or Factual Distinctions

Since 1998, when the Federal Circuit issued its en banc opinion in Cybor Corp. v. FAS Technologies, Inc., claim construction issues have been subject to de novo review on appeal. Under this standard of review, no formal…more

Claim Construction, Cybor Corp v FAS Technologies, Patent Infringement, Patent Litigation, Patents

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California Companies Liable for Subcontractor Wage Violations Beginning 2015

Companies that rely on labor provided by third-party contractors may be held jointly liable for wages owed to the contractor’s workers under a new California law that goes into effect on January 1, 2015. The legislation appears…more

Agricultural Workers, Construction Industry, Corporate Counsel, Employer Liability Issues, Labor Contractor

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EPA Proposes Another Rule To Limit New Power Plant CO2 Emissions

Background - Section 111 of the Clean Air Act authorizes the Environmental Protection Agency to set “new source performance standards” (NSPS) for selected categories of air pollution sources. These standards must require…more

Carbon Emissions, Clean Air Act, Environmental Policies, EPA, Greenhouse Gas Emissions

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Insurance Coverage for Businesses Affected by Hurricane Odile

Reports are coming in from Baja California about substantial damages from Hurricane Odile. As of September 15, 2014, the airport in Cabo San Lucas is closed, as are roads up and down the Baja peninsula. While there is no way to…more

Additional Insured, Business Interruption, Hurricane Odile, Property Damage, Property Insurance

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Directors Beware – The SEC’s High Expectations for Gatekeepers

In a recent speech, SEC Chair Mary Jo White put directors of public companies on notice of their responsibility as “essential” and “important” gatekeepers upon whom their investors and the SEC rely. Chair White described…more

Board of Directors, Chief Compliance Officers, Corporate Governance, Directors, Investors

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Third Quarter 2014: States Expanding Data Breach Notification Requirements

California, Florida, Kentucky, and Iowa have changed their security breach notification requirements in the past few months: California passed legislation effective January 1, 2015, that for the first time, addresses identity…more

Corporate Counsel, Cybersecurity, Data Breach, Identity Theft, New Legislation

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Second Circuit Holds That States May Tax Non-Indian Property On An Indian Reservation

On July 15, 2013, the United States Court of Appeals for the Second Circuit held that a state may impose a generally applicable personal-property tax on property owned by non-Indians but leased to an Indian tribe and used for…more

Bureau of Indian Affairs, Leases, Native American Issues, Property Tax

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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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Silk Road’s Ulbrecht Fails in Dismissal Bid, Court Strengthens Federal Bitcoin Enforcement

In another installment of the continuing saga surrounding the shuttering of the Silk Road online marketplace and arrest of its alleged creator and operator, Ross William Ulbricht (Ulbricht), a Southern District of New York judge…more

Bitcoins, FinCEN, Indictments, IRS, Motion to Dismiss

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IRS Guidance On Same-Sex Marriage: Employee Benefit Considerations

In response to the Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the Internal Revenue Service issued Revenue Ruling 2013-17 (Ruling) on August 29, 2013, in which the IRS set forth the following…more

DOMA, Domestic Partnership, Employee Benefits, IRS, Qualified Retirement Plans

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FCC Clarifies TCPA Mandates

The FCC last week issued two declaratory rulings interpreting the Telephone Consumer Protection Act (TCPA). While the rulings in each are limited to the specific requests set forth in the petitions, they include broad language…more

FCC, TCPA

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Supreme Court Upholds Arbitration Agreement, Rejects Effective Vindication Of Federal Rights

The U.S. Supreme Court rejected another challenge to the enforceability of arbitration agreements under the Federal Arbitration Act (FAA), holding that a contractual waiver of class arbitration is enforceable even if the cost of…more

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

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Financial Reform Act: SEC Proposes CEO Pay Ratio Disclosure Rules

Recently, the SEC, by a vote of 3 to 2, proposed long-delayed and controversial rules to implement the “CEO pay ratio” disclosure mandated under the Dodd-Frank Wall Street Reform and Consumer Protection Act. The proposed rules,…more

CEOs, Disclosure Requirements, Pay Ratio, SEC, Wages

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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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EPA Proposes Another Rule To Limit New Power Plant CO2 Emissions

Background - Section 111 of the Clean Air Act authorizes the Environmental Protection Agency to set “new source performance standards” (NSPS) for selected categories of air pollution sources. These standards must require…more

Carbon Emissions, Clean Air Act, Environmental Policies, EPA, Greenhouse Gas Emissions

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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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Virtual Currencies: International Actions and Regulations

Argentina - In addition to issuing warnings about their use, Argentina has suggested an increased interest in virtual currency transactions by requiring financial institutions and other entities to report virtual currency…more

Bitcoins, Popular, Virtual Currency

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Recent Changes In SEC Enforcement Policy Require Renewed Attention To Directors’ And Officers’ Insurance Terms

In recent months, the Securities and Exchange Commission (SEC) has announced and implemented policy shifts that could compromise the availability of directors’ and officers’ (D&O) insurance coverage for entities and individuals…more

Directors, Enforcement, Enforcement Actions, Officers, SEC

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U.S. Supreme Court Rules For Property Owner In Important Takings Case

In a 5-4 decision, the U. S. Supreme Court expanded the reach of the requirement that there be a “nexus” and “rough proportionality” between the impacts of a proposed development and governmental conditions imposed on the…more

Dolan v City of Tigard, Fifth Amendment, Koontz v St John's River Water Management, Land Developers, Nexus

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Turmoil In Ukraine (Part II): U.S. Halts Export Licenses For Dual-Use And Defense Items To Russia; Congress Acts To Codify And Expand Russia Sanctions

U.S. government agencies announced this week that they have suspended issuing export licenses to companies sending or releasing sensitive goods, services and technology to Russia. This development will prevent companies from…more

Exports, Foreign Policy, Russia, Sanctions, Ukraine

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Crowdfunding Leaps Closer To Becoming A Reality

The Securities and Exchange Commission (SEC) took a giant step in fulfilling its rulemaking obligation under the 2012 Jumpstart Our Business Startups (JOBS) Act last week when it released proposed Regulation Crowdfunding. …more

Crowdfunding, JOBS Act, SEC, Securities Act of 1933

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DoD's Updated FOIA Program and Exemption 4 Guidance

On September 3, 2014, the Department of Defense (DoD) issued a proposed rule updating its policies and procedures implementing the Freedom of Information Act (FOIA), including FOIA Exemption 4. FOIA Exemption 4 exempts from…more

Disclosure, DOD, Exemptions, FOIA, Request For Information

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Supreme Court Holds That SLUSA Does Not Preempt State Law Claims Of Investors In Stanford Ponzi Scheme

Recently, the U.S. Supreme Court limited the scope of the preemption of state law class actions afforded by the Securities Litigation Uniform Standards Act of 1998 (SLUSA) in Chadbourne & Parke LLP v. Troice, No. 12-79 (U.S…more

Chadbourne & Parke LLP v Troice, Ponzi Scheme, Preemption, SCOTUS, SLUSA

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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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NLRB Challenges Franchise Model in Complaint Against McDonald’s

Last week, in an unprecedented shift away from long-standing Board precedent, Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (NLRB), asserted that McDonald’s, USA LLC (McDonald’s USA) — the…more

Employer Liability Issues, Franchises, Franchisors, Joint Employers, McDonalds

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PCAOB Proposes Significant Changes To Auditor’s Report And Responsibilities For Annual Reports Filed With The SEC

As a result of ongoing efforts to improve the informational value of the auditor’s reporting model, on August 13, 2013, the Public Company Accounting Oversight Board (PCAOB) proposed two new auditing standards for public comment…more

Annual Reports, Auditors, Audits, PCAOB, Reporting Requirements

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USPTO Patent Trial And Appeal Board Completes The First Patent Invalidity Trial Under The America Invents Act

In its first “final” decision under the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO)’s Patent Trial and Appeal Board (PTAB) has invalidated and cancelled all five challenged claims of U.S…more

America Invents Act, Inventions, Patent Reform, Patent Trial and Appeal Board, Patents

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Supreme Court Strikes Down Part of EPA Greenhouse Gas Permit Rule but Leaves the Rule Mostly Intact

In 2011, the Environmental Protection Agency, acting under the Clean Air Act, required all new sources that would emit more than threshold quantities of “greenhouse gases” to get a preconstruction “prevention of significant…more

BACT, Clean Air Act, Climate Change, Environmental Policies, EPA

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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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Speak Up Now: Seattle $15 Minimum Wage Proposal Comment Period Begins May 22

The Seattle employment community is abuzz about the prospect of a $15 minimum wage for all Seattle employees, which would make it the highest minimum wage in the nation. The idea is not new; in the fall of 2013, voters in the…more

Minimum Wage, Public Comment

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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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Public Records Act Update: Washington Court of Appeals Endorses Flexible Approach to Agencies' Response Time to Public Records Requests

In Andrews v. Washington State Patrol, No. 32288-2-III, 2014 WL 4627656 (Wash. Ct. App. Sept. 16, 2014), a case involving response times to public records requests, the Washington Court of Appeals ruled in favor of the…more

Public Records, Public Records Act, Request For Information

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The New COPPA Rule Takes Effect Today — Are You Ready?

In December 2012, the Federal Trade Commission (FTC) adopted final amendments to the Children's Online Privacy Protection Act (COPPA) Rule, which regulates how companies may collect information online from children under 13…more

COPPA, Data Protection, FTC, Parental Consent, Personally Identifiable Information

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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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USCIS Releases New Policy Memorandum For EB-5 Program

Following numerous revisions and opportunities for public comment, on May 30, 2013, U.S. Citizenship and Immigration Services (USCIS) released a Policy Memorandum for all USCIS employees regarding EB-5 adjudications…more

EB-5, Investors, Memorandum of Guidance, NAICS, New Regulations

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Washington State Supreme Court Issues Landmark Ruling: “Overriding Considerations Of The Public Interest” Do Not Justify Reallocating Water Rights From Minimum Instream Flows To New Beneficial Uses

On October 3, 2013, the Washington State Supreme Court ruled in Swinomish Indian Tribal Community v. Wash. Dept. of Ecology (No. 87672-0, Wash. Oct. 3, 2013) that the Department of Ecology exceeded its authority by applying the…more

Public Interest, Water, Water Rights

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Supreme Court Clarifies Bankruptcy Court Jurisdiction (Somewhat)

In 2011, the Supreme Court decided Stern v. Marshall, 564 U.S. ___, 131 S. Ct. 2594 (2011), which gave voice to the Court’s grave concerns about the constitutional limits of bankruptcy court jurisdiction and raised several…more

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

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The SEC Speaks In 2014: Enhanced Statutory Regime Combined With Data Analytics Tools Results In Enforcement 2.0

The annual “SEC Speaks Conference,” where the U.S. Securities and Exchange Commission (SEC) and its senior staff review the major developments from the prior year, and preview the SEC’s enforcement priorities for the upcoming…more

Daniel Gallagher, Dodd-Frank, Enforcement, FCPA, Fraud

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The Perfect Package: A Checklist to Avoid Legal Challenges

Your product teams surely have already finalized their lineup of holiday winners, the new gizmos and must-have widgets that you hope end up on everyone’s wish lists. Unless the product gets noticed by consumers, however,…more

Brand, Trademarks

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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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New Law Eliminates Any Clean Water Act NPDES Permit Requirement For Logging Road Stormwater Runoff

On February 7, 2014, President Obama signed into law the 2014 Farm Bill, H.R. 2642. Section 12313 of the Bill (Silvicultural Activities) amends the Clean Water Act to make clear that a National Pollutant Discharge Elimination…more

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Food Litigation Newsletter - November 12, 2013

In This Issue: - Recent Significant Developments and Rulings ..Court Rains on Plaintiff’s Vitamin Drink Suit Parade ..Potato Chip Misbranding Claims Half-Baked, Says Court ..Court: Pasta Claims Need More…more

False Advertising, Food Marketing, Misbranding, Trans Fat

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FCC Considers Net Neutrality Rules, Could Impact Video Game Industry

“Net neutrality” has become one of the most hotly debated issues before lawmakers and regulators in Washington this year. Proponents of net neutrality argue that the government should regulate the conduct of broadband Internet…more

Appeals, Broadband, Entertainment Industry, FCC, Internet

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United States: IP and Antitrust

United States antitrust law seeks to encourage free and open competition by preventing exclusionary conduct that threatens the competitive process. Intellectual property rights (IPR) laws, by contrast, are designed to encourage…more

FRAND, FTCA, Non-Practicing Entities, Patent Infringement, Patent Litigation

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Exports of Lightly Refined Natural Gas Condensate Approved by Federal Agency

On June 24, 2014, the Bureau of Industry and Security (BIS) of the Department of Commerce issued two advisory opinions (AOs) allowing for the export from the United States of what was reported to be “unrefined” oil. The general…more

Energy, Exports, Natural Gas, Natural Resources, Oil & Gas

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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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Admin Rulings: FinCEN Clarifies Money Transmitter Exemptions for Virtual Currency and Payment-Related Services

On April 29, 2014, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a series of administrative rulings determining whether five different companies constitute money services businesses…more

Cryptocurrency, Exemptions, FinCEN, Money Transfer, Money Transmission Act

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Annual Investment Update: Economic Review & Outlook - December 31, 2013

Welcome 2014! We want to thank you for continuing to support the investment strategies we have in place to protect your wealth. The total return in the S&P Index in 2013 of 32.4% now has the index up an astounding 173% since the…more

Economic Development, Federal Reserve, Rating Agencies, S&P

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Ninth Circuit’s Twin Decisions May Signal Decline in Employment Class Actions and Rise in PAGA Claims

The future of California labor and employment class actions took several blows this week. First, the Supreme Court of California issued a decision in Iskanian v. CLS Transp. L.A., LLC, No S204032 (Cal. June 23, 2014) upholding…more

Arbitration, Arbitration Agreements, Class Action, Class Action Arbitration Waivers, Federal Arbitration Act

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New Simplified Conversion Process for Washington Corporations and Limited Liability Companies

Starting June 12, 2014, Washington law allows for the “conversion” of Washington corporations and limited liability entities into a variety of other business entities in Washington and other states through the simple adoption of…more

Choice of Entity, Corporate Conversions, Corporate Governance, Corporate Taxes, Dissenters Rights

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Medicare Appeals Panel Invalidates National Coverage Determination Prohibiting Coverage for Gender Reassignment Surgery

On May 30, 2014, the Departmental Appeals Board (DAB) issued a decision invalidating the long-standing National Coverage Determination (NCD) prohibiting Medicare payment for transsexual surgery (now known as gender reassignment…more

Healthcare, Medicare, Surgery, Transgender

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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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Don’t Let The Grinch Steal Your Holiday Season: Preserving Your Right To Rebuild Your Business After A Disaster

The one-year anniversary of 2012’s Hurricane Sandy has just passed, which is a fitting occasion to think about how or if your business could be rebuilt after suffering complete or near destruction. Hurricane Sandy, which…more

Hurricane Sandy, Natural Disasters, Property Damage

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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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Supreme Court Upholds Arbitration Agreement, Rejects Effective Vindication Of Federal Rights

The U.S. Supreme Court rejected another challenge to the enforceability of arbitration agreements under the Federal Arbitration Act (FAA), holding that a contractual waiver of class arbitration is enforceable even if the cost of…more

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

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Insurance Coverage for Businesses Affected by Hurricane Odile

Reports are coming in from Baja California about substantial damages from Hurricane Odile. As of September 15, 2014, the airport in Cabo San Lucas is closed, as are roads up and down the Baja peninsula. While there is no way to…more

Additional Insured, Business Interruption, Hurricane Odile, Property Damage, Property Insurance

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USCIS Releases New Policy Memorandum For EB-5 Program

Following numerous revisions and opportunities for public comment, on May 30, 2013, U.S. Citizenship and Immigration Services (USCIS) released a Policy Memorandum for all USCIS employees regarding EB-5 adjudications…more

EB-5, Investors, Memorandum of Guidance, NAICS, New Regulations

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Final Endangered Species Act Policy Revises Definition of “Significant Portion of Its Range”

On July 1, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly published a final policy providing their interpretation of the phrase ‘‘significant portion of its range,’’ which is part of…more

ESA, Final Rules, Fish and Wildlife Service, National Marine Fisheries Service, Statutory Interpretation

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Proposed Pay Transparency Rule

On September 15, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced a proposed rule that would prohibit federal contractors from enforcing pay secrecy policies. The proposed…more

Compliance, DOL, Federal Contractors, OFCCP, Transparency

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"Color" Is the New "Black and White" for EU Trademarks

Previously, a logo registered in black and white was considered sufficient to protect versions of the logo in any color, but this is not necessarily true for European Union (EU) Community Trade Marks (CTM). Under the new rule,…more

Color Marks, EU, Logos, Trademarks

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USPTO Launches Updated Version Of Its After Final Consideration Pilot Program

The U.S. Patent and Trademark Office (USPTO) has launched an updated version of its After Final Consideration Pilot Program (AFCP 2.0)…more

AFCP, Patent Applications, Patent Examinations, Patents, USPTO

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USPTO Patent Trial And Appeal Board Completes The First Patent Invalidity Trial Under The America Invents Act

In its first “final” decision under the America Invents Act (AIA), the United States Patent and Trademark Office (USPTO)’s Patent Trial and Appeal Board (PTAB) has invalidated and cancelled all five challenged claims of U.S…more

America Invents Act, Inventions, Patent Reform, Patent Trial and Appeal Board, Patents

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Crowdfunding Leaps Closer To Becoming A Reality

The Securities and Exchange Commission (SEC) took a giant step in fulfilling its rulemaking obligation under the 2012 Jumpstart Our Business Startups (JOBS) Act last week when it released proposed Regulation Crowdfunding. …more

Crowdfunding, JOBS Act, SEC, Securities Act of 1933

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CEQA Year In Review 2013 - A Summary Of Published Appellate Opinions Under CEQA

INTRODUCTION AND OVERVIEW - The published court decisions in 2012 reflected a heightened recognition that CEQA does not require perfection, but rather a reasonable effort to provide environmental information that actually…more

CEQA, CEQA Reform, Environmental Impact Report, Land Developers, Urban Planning & Development

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Risks Of Tribute Advertisements Are Focus Of Seventh Circuit Decision

Think the First Amendment protects your business from liability for running an ad congratulating a celebrity or other public figure? Better think again…more

Advertising, Celebrities, First Amendment, Right of Publicity

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District Court Remands Offshore Wind Project For Failure To Comply With Endangered Species Act

In a decision that has been nearly thirteen years in the making, on March 14, 2014, the U.S. District Court for the District of Columbia ruled that the U.S. Fish and Wildlife Service and U.S. National Marine Fisheries Service…more

Endangered Species Act, Offshore Wind, Wind Power

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Retail Leasing: Tis’ The Season to Make Your List and Check It Twice

The holiday shopping season is fast approaching and for the brick and mortar retail industry, it is a critical time. Whether you are a landlord of a shopping center, a long-term retail tenant, or a temporary seasonal tenant,…more

Commercial Leases, Leases, Retailers

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Proposed Pay Transparency Rule

On September 15, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced a proposed rule that would prohibit federal contractors from enforcing pay secrecy policies. The proposed…more

Compliance, DOL, Federal Contractors, OFCCP, Transparency

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Analyzing The Honeywell False Claim Act Decision: It's Not About Who Is "Right"

A United States District Court in California recently dismissed a False Claims Act (FCA) suit in which the plaintiff (the "Relator") alleged that Honeywell International Inc. ("Honeywell") fraudulently charged license fees for…more

False Claims Act, Fees, Fraud, Honeywell International

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Financial Reform Act: SEC Proposes CEO Pay Ratio Disclosure Rules

Recently, the SEC, by a vote of 3 to 2, proposed long-delayed and controversial rules to implement the “CEO pay ratio” disclosure mandated under the Dodd-Frank Wall Street Reform and Consumer Protection Act. The proposed rules,…more

CEOs, Disclosure Requirements, Pay Ratio, SEC, Wages

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Don’t Let Liability Exposure Be The Grinch That Ruins Your Holiday Season

With the holiday season quickly approaching, it’s a particularly good time to check your internal procedures. As you are certainly aware, a disappointed customer, or worse, an injured user, can assert claims against…more

Compliance, CPSC, Employer Liability Issues, Reporting Requirements, Workplace Injury

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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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Food Litigation Newsletter - October 2014

In This Issue: - RECENT SIGNIFICANT RULINGS ..Court Narrows “All Natural” Class Action Against Safeway ..Nationwide Class Certified in Olive Oil Labeling Fight ..Whole Foods “All Natural” and…more

Class Action, ECJ, Food Labeling, Food Safety, Putative Class Actions

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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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Bureau Of Indian Affairs Proposes Regulation To Allow Taking Of Land Into Trust For Tribes In Alaska

After decades of interpreting the Alaska Native Claims Settlement Act of 1971 (ANCSA) to preclude the federal government’s acquisition of land in trust for tribes in Alaska, on May 1, 2014, the Bureau of Indian Affairs announced…more

Bureau of Indian Affairs, Native American Issues, Tribal Lands, Trusts

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BLM Issues Proposed Rule to Establish Competitive Leasing for Renewable Energy Projects on Public Lands

On September 30, 2014, the Bureau of Land Management issued a proposed rule that would establish competitive processes, terms, and conditions, including rental and bonding requirements, for solar and wind energy development…more

Bureau of Land Management, Energy Projects, Ground Leases, NEPA, Proposed Regulation

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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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Federal Court Holds That FTC May Regulate Company Data Security Practices

In a closely watched and first-of-its-kind case, the U.S. District Court for the District of New Jersey rejected, for purposes of a motion to dismiss, a defendant company’s argument that the Federal Trade Commission (FTC) lacks…more

Data Protection, FTC, Jurisdiction, Wyndham

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Delaware Chancery Court Applies M&F Worldwide Six-Factor Test in Private Company Freeze-Out Merger and Grants Motion to Dismiss Claims Against Controlling Stockholders

In a bench ruling in Swomley v. Schlecht, C.A. No. 9355-VCL (Del. Ch. Aug. 27, 2014), the Delaware Chancery Court relied on the six-factor test set out in Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014), to dismiss a…more

Business Judgment Rule, Controlling Stockholders, Dismissals, Freeze-Out Mergers, Privately Held Corporations

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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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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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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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California Companies Liable for Subcontractor Wage Violations Beginning 2015

Companies that rely on labor provided by third-party contractors may be held jointly liable for wages owed to the contractor’s workers under a new California law that goes into effect on January 1, 2015. The legislation appears…more

Agricultural Workers, Construction Industry, Corporate Counsel, Employer Liability Issues, Labor Contractor

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California Companies Liable for Subcontractor Wage Violations Beginning 2015

Companies that rely on labor provided by third-party contractors may be held jointly liable for wages owed to the contractor’s workers under a new California law that goes into effect on January 1, 2015. The legislation appears…more

Agricultural Workers, Construction Industry, Corporate Counsel, Employer Liability Issues, Labor Contractor

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New Simplified Conversion Process for Washington Corporations and Limited Liability Companies

Starting June 12, 2014, Washington law allows for the “conversion” of Washington corporations and limited liability entities into a variety of other business entities in Washington and other states through the simple adoption of…more

Choice of Entity, Corporate Conversions, Corporate Governance, Corporate Taxes, Dissenters Rights

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Federal Court Holds That FTC May Regulate Company Data Security Practices

In a closely watched and first-of-its-kind case, the U.S. District Court for the District of New Jersey rejected, for purposes of a motion to dismiss, a defendant company’s argument that the Federal Trade Commission (FTC) lacks…more

Data Protection, FTC, Jurisdiction, Wyndham

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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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Insurance Coverage for Businesses Affected by the Napa Earthquake

As the Napa Valley community begins the process of repairing damage and healing from injuries and losses related to the earthquake that struck on August 24, 2014, we extend our heartfelt wishes to those affected by the natural…more

Earthquakes, Property Damage, Property Insurance

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Dressing Up Your Trademarks For The Holidays

Are you contemplating dressing up your trademarks for the holidays? Adding a jaunty Santa hat and garlands to your company name on your website and shopping bags? Animating your logo to spin like a dreidel or fly like Rudolph?…more

Brand, Holidays, Marketing, Trademarks

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U.S. Fish And Wildlife Service Imposes First-Ever Criminal Penalties For Bird Deaths Caused By Wind Projects

The first criminal case ever prosecuted under the Migratory Bird Treaty Act (MBTA) against a wind energy company for bird deaths resulted recently in Duke Energy Renewables (Duke Energy) reaching a settlement with the U.S…more

Bird Fatalities, DOJ, Fish and Wildlife Service, Migratory Bird Treaty Act, Wind Power

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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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EPA Issues Proposed Rule to Remove Reference to ASTM E1527-05 in All Appropriate Inquiries Rule

On June 17, 2014, the U.S. Environmental Protection Agency published a proposed rule to amend the standards and practices for complying with the “All Appropriate Inquiries” rule under the Comprehensive Environmental Response,…more

ASTM, CERCLA, Environmental Site Assessment, EPA, Final Rules

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PCAOB Proposes Significant Changes To Auditor’s Report And Responsibilities For Annual Reports Filed With The SEC

As a result of ongoing efforts to improve the informational value of the auditor’s reporting model, on August 13, 2013, the Public Company Accounting Oversight Board (PCAOB) proposed two new auditing standards for public comment…more

Annual Reports, Auditors, Audits, PCAOB, Reporting Requirements

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CEQA Year In Review 2013 - A Summary Of Published Appellate Opinions Under CEQA

INTRODUCTION AND OVERVIEW - The published court decisions in 2012 reflected a heightened recognition that CEQA does not require perfection, but rather a reasonable effort to provide environmental information that actually…more

CEQA, CEQA Reform, Environmental Impact Report, Land Developers, Urban Planning & Development

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California Energy Commission Delays Compliance With Energy Disclosure Program for Smaller Nonresidential Buildings

The California Energy Commission (CEC) implemented the Nonresidential Building Energy Use Disclosure Program in two phases. The first phase took effect on January 1, 2014 and applies to nonresidential buildings of at least…more

California Energy Commission, Compliance, Disclosure Requirements, Energy

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Turmoil In Ukraine (Part II): U.S. Halts Export Licenses For Dual-Use And Defense Items To Russia; Congress Acts To Codify And Expand Russia Sanctions

U.S. government agencies announced this week that they have suspended issuing export licenses to companies sending or releasing sensitive goods, services and technology to Russia. This development will prevent companies from…more

Exports, Foreign Policy, Russia, Sanctions, Ukraine

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Beware of the CIP—Parent Applications Can Be Prior Art

Companies file patent applications with the United States Patent and Trademark Office (USPTO) to protect promising innovations. Often, however, improvements, additional uses and refinements surface after filing a patent…more

CIP, Patent Applications, Patents, Prior Art, USPTO

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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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Final “Play-Or-Pay” Regulations Provide Relief And Much Needed Clarification

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 2015, certain employers, referred to as “applicable large…more

Affordable Care Act, Employee Benefits, Employer Mandates, Healthcare, Healthcare Reform

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Experts In Patent Cases: Getting The Most Out Of Your Star Witness

In This Issue: - Introduction - Selecting the Right Expert(s) ..The Testifying Expert ..Non-Testifying “Supporting” Experts - Fed. R. Civ. 26 Rules Governing Interactions Between Counsel and Experts …more

Claim Construction, Discovery, Expert Witness, Infringement, Motion To Strike

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What is Patent Term Adjustment and Why Does It Matter?

For patents granted on applications filed on or after June 8, 1995, the enforceable patent term begins on the day the patent issues and generally expires 20 years from the earliest effective filing date of the application. …more

Exelixis, Novartis, Patent Prosecution, Patent Term Adjustment, Patents

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NLRB Challenges Franchise Model in Complaint Against McDonald’s

Last week, in an unprecedented shift away from long-standing Board precedent, Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (NLRB), asserted that McDonald’s, USA LLC (McDonald’s USA) — the…more

Employer Liability Issues, Franchises, Franchisors, Joint Employers, McDonalds

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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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Immunizing Patent Portfolios Against “Infectious” Estoppel

Parties challenging patents under the post-issuance review proceedings authorized by the America Invents Act have long worried about estoppel in later district court cases if they lose before the Patent Trial and Appeal Board…more

Estoppel, Patent Infringement, Patent Litigation, Patent Trial and Appeal Board, Patents

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Final Endangered Species Act Policy Revises Definition of “Significant Portion of Its Range”

On July 1, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly published a final policy providing their interpretation of the phrase ‘‘significant portion of its range,’’ which is part of…more

ESA, Final Rules, Fish and Wildlife Service, National Marine Fisheries Service, Statutory Interpretation

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EPA And Corps Of Engineers Release Proposed Rule On Scope Of Waters Covered Under Clean Water Act That Would Significantly Expand Permitting Requirements

On April 21, 2014, the Environmental Protection Agency and the Army Corps of Engineers jointly published a proposed rule to define those waters that fall under the jurisdiction of the Clean Water Act as “waters of the United…more

Clean Water Act, EPA, Jurisdiction, US Army Corps of Engineers, Waters of the United States

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Supreme Court Reinstates Cross-State Air Pollution Rule

On April 29, 2014, the Supreme Court by a 6-2 vote reversed the D.C. Circuit and upheld the Environmental Protection Agency’s Transport Rule, which imposed specific Clean Air Act limits on emissions in certain states to prevent…more

Clean Air Act, Cross-State Air Pollution, EPA v EME Homer City, SCOTUS

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JOBS Act: SEC Adopts Rules To Permit General Solicitation And Advertising For Private Offerings

When enacted on April 5, 2012, Title II of the Jumpstart Our Business Startups Act of 2012 (JOBS Act) endeavored to lift the long-standing ban on general solicitation and advertising for private securities offerings under Rule…more

Accredited Investors, Advertising, General Solicitation, Investors, JOBS Act

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EPA Issues Proposed Rule to Remove Reference to ASTM E1527-05 in All Appropriate Inquiries Rule

On June 17, 2014, the U.S. Environmental Protection Agency published a proposed rule to amend the standards and practices for complying with the “All Appropriate Inquiries” rule under the Comprehensive Environmental Response,…more

ASTM, CERCLA, Environmental Site Assessment, EPA, Final Rules

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Some Employers Need To Start Affordable Care Act Measurement Periods In 2013

The employer shared responsibility provisions, sometimes referred to as pay-or-play, of the Affordable Care Act (ACA) will take effect on January 1, 2015, but in order to be ready to comply, some employers need to take action…more

Affordable Care Act, Compliance, Employer Mandates, Pay or Play

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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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JOBS Act: SEC Adopts Rules To Permit General Solicitation And Advertising For Private Offerings

When enacted on April 5, 2012, Title II of the Jumpstart Our Business Startups Act of 2012 (JOBS Act) endeavored to lift the long-standing ban on general solicitation and advertising for private securities offerings under Rule…more

Accredited Investors, Advertising, General Solicitation, Investors, JOBS Act

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Graphic User Interfaces (GUIs) Now Eligible For Design Patent Protection In China

On March 17, 2014, China’s State Intellectual Property Office announced an amendment to its current Guidelines for Patent Examination for design patent protection for graphic user interfaces (GUIs)…more

China, Design Patent, Graphical User Interface, Patent-Eligible Subject Matter, Patents

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Annual Investment Update: Economic Review & Outlook - December 31, 2013

Welcome 2014! We want to thank you for continuing to support the investment strategies we have in place to protect your wealth. The total return in the S&P Index in 2013 of 32.4% now has the index up an astounding 173% since the…more

Economic Development, Federal Reserve, Rating Agencies, S&P

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Food Litigation Newsletter - October 2014

In This Issue: - RECENT SIGNIFICANT RULINGS ..Court Narrows “All Natural” Class Action Against Safeway ..Nationwide Class Certified in Olive Oil Labeling Fight ..Whole Foods “All Natural” and…more

Class Action, ECJ, Food Labeling, Food Safety, Putative Class Actions

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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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Russia Issues Draft Legislation Prohibiting Virtual Currencies

Last week, the Russian Finance Ministry, in conjunction with the Ministries of Economic Development, Communications, Internal Affairs and Financial Monitoring, issued draft legislation amending existing Russian law to prohibit…more

Bitcoins, Russia, Virtual Currency

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Graphic User Interfaces (GUIs) Now Eligible For Design Patent Protection In China

On March 17, 2014, China’s State Intellectual Property Office announced an amendment to its current Guidelines for Patent Examination for design patent protection for graphic user interfaces (GUIs)…more

China, Design Patent, Graphical User Interface, Patent-Eligible Subject Matter, Patents

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800+ Attorneys

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