Proskauer Rose LLP

European Commission Publishes Anti Tax Avoidance Package

On 28 January 2016, the European Commission published a draft Anti Tax Avoidance Package in order to ensure increased tax transparency and effective taxation within, and outside of, the EU. The package includes a proposed…more

BEPS, Corporate Taxes, EBITDA, EU, European Commission

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The End of “Average Joe,” Class Plaintiff? The Supreme Court Will Review the Use of Composites in Class Actions

You run a business. You sell actual products. You employ hundreds, or even thousands, of warm-blooded employees, all with names, families, and histories. You battle real competitors daily. Your customers, thank goodness, are…more

Article III, Calculation of Damages, Certiorari, Class Action, Class Certification

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MNPI and NDAs: The Alphabet Soup of Getting Restricted

Investors wanting to equip and position themselves to negotiate a debtor's restructuring may temporarily relinquish their ability to buy and sell securities in exchange for access to material nonpublic information ("MNPI"). This…more

Commercial Bankruptcy, Creditors, Investors, Non-Disclosure Agreement, Restructuring

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Seventh Circuit Allows Reverse Racism Claims To Proceed Against Contractor

Earlier this week, the Seventh Circuit allowed a Caucasian construction worker to take his reverse racism claims to trial because there were factual disputes about the reason for his termination. The plaintiff, Terry Deets,…more

Affirmative Action, EEOC, Federal Contractors, Race Discrimination, Reverse Discrimination

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LGBT Rule Affecting Federal Contractors Will Become Effective April 8, 2015

Last week, the Office of Federal Contract Compliance Programs announced a Final Rule prohibiting discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. The Rule implements…more

Barack Obama, Discrimination, Employer Mandates, Executive Orders, Final Rules

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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The ERISA Litigation Newsletter - August 2015

Editor's Overview - As the summer draws to a close, this month's Newsletter previews three cases that the U.S. Supreme Court already has agreed to hear that ought to be of particular interest to ERISA plan sponsors and…more

401k, Actual Injuries, Affordable Care Act, Article III, Benefit Plan Sponsors

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New York Expands Liability for Employee Claims for Unpaid Services Performed in New York to the Top 10 Shareholders of Privately Held Corporations Organized in Other States

Under a New York law in effect for decades, the top 10 shareholders of a privately held New York corporation can be held liable in certain circumstances for amounts owed to the corporation's employees. On January 19, 2016, this…more

Corporate Counsel, Corporate Veil, Employees, Joint and Several Liability, Privately Held Corporations

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DC Council Proposes Common Sense Relief to DC Employers From the Wage Theft Prevention Act

Employers in the District of Columbia have been assessing how to deal with the requirements of the Wage Theft Prevention Act of 2014 (the “2014 Act”) since the 2014 Act was passed last year.  Among other things, the 2014 Act…more

Notice Requirements, Proposed Legislation, Wage Theft Prevention Act

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Third Circuit Finds Insured v. Insured Exclusion Precludes Recovery of Defense Costs

Many corporate executives may be under the impression that the defense costs they incur when sued for actions taken in their role as officers of the company would be covered by a “Management Protection” insurance policy. The…more

Attorney's Fees, C-Suite Executives, Commercial General Liability Policies, Court-Appointed Receivers, Insureds

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Trends in New Jersey Employment Law - July 2014

In recent weeks, New Jersey's primary whistleblower statute—the Conscientious Employee Protection Act ("CEPA")—has been the subject of increased judicial scrutiny…more

Employer Liability Issues, Whistleblower Protection Policies, Whistleblowers

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CFTC Proposes New Regulations For Algorithmic Trading

On November 24, 2015, the CFTC announced the new proposed Regulation Automated Trading (“Reg. AT”), which contains a variety of measures designed to prevent potential market disruptions arising from algorithmic trading. Among…more

Algorithmic Trading, CFTC, Comment Period, DCMs, FCMs

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Delaware Court of Chancery Rejects Another Disclosure-Only M&A Settlement and Warns of “Increasingly Vigilant” Scrutiny

The Delaware Court of Chancery dealt another blow to disclosure-only settlements of merger litigation and refused to approve a proposed class-action settlement arising from Zillow, Inc.'s acquisition of Trulia, Inc. Chancellor…more

Attorney's Fees, Class Action, Corporate Counsel, Disclosure-Based Settlements, Mergers

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Massachusetts Supreme Court Rules ZIP Codes Are Definitely “Personal Identification Information”

In a recent ruling arising from certain certified questions in Tyler v. Michaels Stores, Inc., Civ. No. 11-10920-WGY (D. Mass. Jan. 6, 2012, the Massachusetts Supreme Court interpreted “personal identification information” under…more

Credit Cards, Data Collection, Data Protection, Personally Identifiable Information, Retailers

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EEOC Proposes Expansive Enforcement Guidance for Retaliation Claims

For the first time in nearly 20 years, the Equal Employment Opportunity Commission has issued proposed enforcement guidance regarding retaliation claims. According to the EEOC, the revised guidance is necessary in light of…more

ADA, Best Practices, But For Causation, Comment Period, EEOC

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UK Whistleblowing – tips on the rise and the possibility of bounty

Whistleblowing tips reported to the Financial Conduct Authority (the “FCA”), one of the UK bodies with responsibility for regulating the financial services industry, have increased 35 per cent in the past 12 months according to…more

Compliance, Employer Liability Issues, Financial Conduct Authority (FCA), UK, Whistleblowers

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The ERISA Litigation Newsletter - May 2015

Editor's Overview - This month we focus on the EEOC's proposed rules concerning wellness programs. As our colleague, Amy Covert, discusses, a recent change of position by the EEOC provides employers with opportunities to…more

ADA, Affordable Care Act, Best Management Practices, DOL, EEOC

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Trends in N.J. Whistleblowing and Retaliation Law – 2014 Roundup

2014 was another busy year for developments in whistleblowing and retaliation law in New Jersey. This blog post summarizes noteworthy state and federal cases for employers to consider in the new year…more

Adverse Employment Action, Audio Recording, Confidential Documents, Dodd-Frank, Employer Liability Issues

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Supreme Court Takes Away a Class Action Defense Tool That We Couldn’t Really Use Anyway

On January 20, 2016, the Supreme Court held in Campbell-Ewald Co. v. Gomez, No. 14-857 (U.S. Jan. 20, 2016), that when a defendant makes an offer to resolve the named plaintiff’s claim for full value, but the plaintiff turns it…more

Campbell Ewald v Gomez, Class Action, Class Certification, Genesis Healthcare Corp. v. Symczyk, Mootness

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Three Point Shot - December 2015

Keep Off the (Patented) Grass - Maintaining a beautiful lawn usually requires a lot of work, unless you are friends with Edward Scissorhands or install a "Brady Bunch" lawn of artificial grass instead. Installing…more

Contempt, Copyright Infringement, Lanham Act, Lululemon, Patent Infringement

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The FTC's First Loss in Nearly Half a Decade, Illuminating the Difficulties of Prediction and the Merits of Litigating It

"Prophesy is a good line of business, but it is full of risks." Mark Twain could have been speaking about the FTC's recent challenge to a merger between the second- and third-largest sterilization companies in the world, Steris…more

Anti-Competitive, Competition, FTC, Innovation, Preliminary Injunctions

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U.S. Supreme Court Rules on the Patentability of Software Patents

The U.S. Supreme Court issued its decision Thursday in Alice Corp. Pty Ltd. v. CLS Bank Int'l, et al., holding that an otherwise unpatentably abstract idea does not become patentable simply by implementing it on a generic…more

Alice Corporation, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus, Patent Litigation

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Supreme Court Rules That Agency Interpretive Rules Are Not Subject to Notice-and-Comment Rulemaking

Recently, the Supreme Court issued a unanimous judgment that government agency "interpretive rules" are not subject to notice-and-comment rulemaking, but cautioned that those same rules do not carry the "force and effect of…more

Administrative Procedure Act, DOL, FLSA, Interpretive Rule, Notice and Comment

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The National Labor Relations Board says “Happy Labor Day” with Flurry of Late Summer Pro-Union Moves

While some people may have been on vacation at the end of August, the past few weeks have been extremely busy at the National Labor Relations Board (“NLRB” or “Board”), with a series of decisions that will continue to make it…more

Browning-Ferris Industries of California Inc., CBAs, Collective Bargaining, Displaced Building Service Workers Protection Act (DBSWPA), E-Signatures

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New Year: New Regulatory Developments Affecting Managers of Hedge Funds, Private Equity Funds and Other Private Funds

Regulators were busy at the end of 2015, especially in the United States, perhaps being motivated to push forward new rule proposals in anticipation of a change in administration after the presidential elections later this year…more

Accredited Investors, Algorithmic Trading, CFTC, Common Reporting Standard (CRS), Fund Managers

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The ERISA Litigation Newsletter - April 2014

This month we discuss the evolving case law on the issue of whether unpaid employer contributions due under a collective bargaining agreement can be viewed as plan assets such that the individuals who decide to withhold such…more

Breach of Duty, Collective Bargaining, ERISA, Executive Compensation, Fiduciary Duty

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New York Nonprofit Revitalization Act Rollout Challenges

As the July 1, 2014 compliance date of the New York Nonprofit Revitalization Act of 2013 (the "Revitalization Act") quickly approaches, many charities operating in New York are confronting some difficult rollout challenges…more

Board of Directors, Corporate Officers, Economic Development, IRS, Non-Profits

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Seventh Circuit Allows Reverse Racism Claims To Proceed Against Contractor

Earlier this week, the Seventh Circuit allowed a Caucasian construction worker to take his reverse racism claims to trial because there were factual disputes about the reason for his termination. The plaintiff, Terry Deets,…more

Affirmative Action, EEOC, Federal Contractors, Race Discrimination, Reverse Discrimination

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New Year: New Regulatory Developments Affecting Managers of Hedge Funds, Private Equity Funds and Other Private Funds

Regulators were busy at the end of 2015, especially in the United States, perhaps being motivated to push forward new rule proposals in anticipation of a change in administration after the presidential elections later this year…more

Accredited Investors, Algorithmic Trading, CFTC, Common Reporting Standard (CRS), Fund Managers

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Relating a Software Copyright Infringement Claim Back to its Source

In a recent order, Judge Douglas P. Woodlock of the District of Massachusetts untangled a complicated timeline to decide motions for summary judgment regarding several copyright infringement and related claims on a statute of…more

Copyright Infringement, Motion for Summary Judgment, Notice Requirements, Software Developers, Statute of Limitations

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2015 Global High-Yield Bond Study

In This Issue: - Executive Summary - Methodology - Definitions - Categories of Analysis - High-Yield Bond Study: ..Call Protection ..Change of Control Portability…more

Bonds, Global Market, High-Yield Markets

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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Budget Deal Alters Reimbursement to Off-Campus Hospital-Owned Facilities

On November 2, 2015, President Obama signed into law H.R. 1314, the Bipartisan Budget Act of 2015 (the "Act"), which significantly changes Medicare reimbursement for off-campus hospital services. The Act, which Congress passed…more

Barack Obama, Congressional Budget Office, Federal Budget, Health Care Providers, Healthcare

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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Fifth Circuit Weighs In On Breadth Of The Rehabilitation Act

Recently, a split has continued among the Circuit Courts as to whether Section 504 of the Rehabilitation Act permits employment discrimination suits by independent contractors. On February 1, 2016, the Fifth Circuit joined the…more

ADA, Corporate Counsel, Disability Discrimination, Federal Contractors, Hostile Environment

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Better vs. Cheaper? – Court Says Cost Trumps Quality in Health Care – Orders Undoing of Physician Group Tie-up

The health care industry is in the midst of a revolution caused by demographic changes, advancements in medical understanding and, of course, Obamacare. As health care providers scramble to adjust to this brave new world, the…more

Affordable Care Act, FTC, Healthcare, Physicians

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NJ Lawmakers Propose Legislation to Raise Minimum Wage To $15 Per Hour

On February 4, 2016, in Trenton, New Jersey State Assembly Leader Vincent Prieto, Assemblyman John Wisniewski and State Senator Ray Lesniak proposed a bill to raise the state minimum wage from $8.38 to $15 for all New Jersey…more

Consumer Price Index, Minimum Wage, Proposed Legislation, Wage and Hour

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Supreme Court Takes Away a Class Action Defense Tool That We Couldn’t Really Use Anyway

On January 20, 2016, the Supreme Court held in Campbell-Ewald Co. v. Gomez, No. 14-857 (U.S. Jan. 20, 2016), that when a defendant makes an offer to resolve the named plaintiff’s claim for full value, but the plaintiff turns it…more

Campbell Ewald v Gomez, Class Action, Class Certification, Genesis Healthcare Corp. v. Symczyk, Mootness

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The Future of Domestic Partner Health Benefits

If the U.S. Supreme Court rules that the federal Defense of Marriage Act (“DOMA”) is unconstitutional in Windsor v. U.S., which is expected to be decided this month, will employers that offer health benefits to employees’…more

DOMA, Domestic Partnership, Essential Health Benefits, Same-Sex Marriage

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FCC Chairman Announces Proposal to Classify Internet TV Services as Cable Providers

Over the past month, there have been many reports that the FCC would soon publish an NPRM classifying an online video distributor (OVD) that delivers linear streams of video programming as an MVPD ("multichannel video…more

Cable Television Providers, FCC, Internet Streaming, Online Videos, Rulemaking Process

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New Year: New Regulatory Developments Affecting Managers of Hedge Funds, Private Equity Funds and Other Private Funds

Regulators were busy at the end of 2015, especially in the United States, perhaps being motivated to push forward new rule proposals in anticipation of a change in administration after the presidential elections later this year…more

Accredited Investors, Algorithmic Trading, CFTC, Common Reporting Standard (CRS), Fund Managers

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2015 Global High-Yield Bond Study

In This Issue: - Executive Summary - Methodology - Definitions - Categories of Analysis - High-Yield Bond Study: ..Call Protection ..Change of Control Portability…more

Bonds, Global Market, High-Yield Markets

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Major Changes Coming to Canadian Trademark Law

Recent amendments to Canada’s trademark laws, which are expected to take effect as soon as late next year, will introduce a number of significant changes for owners of Canadian trademark registrations and applications. Various…more

Canada, International Harmonization, Trademarks

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Proposed Changes to Financial Accounting for Not-for-Profit Entities

The Financial Accounting Standards Board (“FASB”) has issued an exposure draft of a Proposed Accounting Standards Update, Presentation of Financial Statements of Not-for-Profit Entities, which would make significant changes to…more

Accounting, Audited Financial Statements, Disclosure Requirements, Financial Accounting Standards Board, Financial Statements

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Safe Harbor 2.0 Agreement Reached; New Program to be Named “Privacy Shield”

On February 2, 2016, the European Commission announced that EU and US officials had reached an agreement to implement a program known as the EU-US Privacy Shield. Privacy Shield is designed to be the successor to the Safe…more

EU, EU-US Privacy Shield, European Commission, European Court of Justice (ECJ), FTC

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Wealth Management Update - February 2016

February Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The February § 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and…more

Art, Estate Tax, Executors, Gift Tax, GRATs

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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2015 Global High-Yield Bond Study

In This Issue: - Executive Summary - Methodology - Definitions - Categories of Analysis - High-Yield Bond Study: ..Call Protection ..Change of Control Portability…more

Bonds, Global Market, High-Yield Markets

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Proposed EEO-1 Revisions Requiring Production Of Pay Data Published In Federal Register

On February 1, 2016, the U.S. Equal Employment Opportunity Commission’s (“EEOC’s”) proposed revisions to the Employer Information Report (“EEO-1”) were published in the Federal Register With the publication, the EEOC also…more

Comment Period, EEO-1, EEOC, Federal Contractors, OFCCP

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The ERISA Litigation Newsletter - December 2015

Editor's Overview - In this month's newsletter, we focus on the recent wave of guidance and case law related to the Affordable Care Act. We also discuss IRS Notice 2015-86, which provides guidance on the application of the…more

Affordable Care Act, Attorney's Fees, Automatic Enrollment, Burwell v Hobby Lobby, Cadillac Tax

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2015 IPO Study

In this Issue: - Executive Summary - 2014 Overview - Year-Over-Year Analysis - Health Care - Technology, Media & Telecommunications - Energy & Power - Financial Services - Industrials -…more

Corporate Issuers, Equity Financing, Investors, IPO, Master Limited Partnerships

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Regional Director Issues First Post-Pacific Lutheran Decision

It did not take long for the fallout from the NLRB’s Pacific Lutheran University decision to begin. That decision, issued on December 16, 2014, announced new standards for (1) exercise of NLRB jurisdiction over…more

Faculty, Jurisdiction, Managers, NLRB, Pacific Lutheran University

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NLRB Takes D.R. Horton One Step Further While the Ninth Circuit Upholds Its Contrary Decision

On January 17, 2014, the National Labor Relations Board Judge Lisa D. Thompson concluded that an agreement that did not prohibit class or collective action still violated Section 8(a)(1) of the National Labor Relations Act…more

Arbitration, Arbitration Agreements, Class Action, Collective Actions, D.R. Horton

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California Employment Law Notes - March 2015

Employee Who Was Working Elsewhere During Medical Leave Of Absence Was Properly Terminated - Richey v. AutoNation, Inc., 182 Cal. Rptr. 3d 644 (Cal. S. Ct. 2015). Avery Richey worked for Power Toyota Cerritos, part…more

AutoNation, CAFA, California Family Rights Act (CFRA), Car Dealerships, Disability Discrimination

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A Yarn Spun, But Advertising Not Tailored to a Lanham Act Claim

In a recent application of the Supreme Court’s 2014 Lexmark decision on standing, the Court of Appeals for the Third Circuit held last month that a yarn retailer who alleged it was misled by its supplier into purchasing…more

Breach of Warranty, Corporate Counsel, False Advertising, Lanham Act, Lexmark v Static Control Components

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2015 Global High-Yield Bond Study

In This Issue: - Executive Summary - Methodology - Definitions - Categories of Analysis - High-Yield Bond Study: ..Call Protection ..Change of Control Portability…more

Bonds, Global Market, High-Yield Markets

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Another SEC Whistleblower Amicus Brief On Whether Dodd-Frank Covers Internal Complaints

On February 6, the SEC filed its third amicus brief defending its interpretive rule on Dodd-Frank’s anti-retaliation provision, 15 U.S.C. §78u-6(h)(1). The impetus is a ruling out of the Southern District of New York in Berman…more

Anti-Retaliation Provisions, Dodd-Frank, Employer Liability Issues, Internal Reporting, SEC

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Significant Changes to U.S. Taxation of REITs and Investments by Non-U.S. Investors in Real Property under the PATH Act

On December 18, 2015, President Obama signed into law an omnibus appropriations bill which included the Protecting Americans from Tax Hikes Act of 2015 (the "Act"). In addition to extending or making permanent a number of…more

Dividends, FIRPTA, Foreign Investment, IRS, Pensions

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IRS Rules on Domesticated Organization and Tax-Exempt Status

Late last year, the Internal Revenue Service (“IRS”) issued a letter ruling, PLR 201446025, providing that, in certain instances, a nonprofit corporation exempt under Section 501(c)(3) of the Internal Revenue Code of 1986, as…more

501(c)(3), Domicile, Filing Requirements, IRS, Non-Profits

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Partnership-Level Tax Under New Audit Rules

The Bipartisan Budget Act of 2015, signed into law on November 2, 2015, has significantly changed the partnership tax audit rules, effective for tax years beginning after December 31, 2017. Under the current partnership…more

Audits, Bipartisan Budget, Burden-Shifting, Federal Budget, IRS

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DOL Open to Changing Fiduciary Proposal, But Some Press for it to be Scrapped

As we wrote about previously, in April the Department of Labor issued its highly anticipated, re-proposed regulation addressing the standard of care for broker-dealers and other financial professionals who provide retirement…more

Broker-Dealer, DOL, EBSA, Fiduciary Duty, FINRA

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SEC Timeout on Proxy Access Issue Has Wider Implications

On January 16, 2015, the SEC withdrew its December 1, 2014 no-action letter in which it concurred with the view of Whole Foods Market, Inc. that the company was entitled under SEC Rule 14a-8(i)(9) to exclude from its proxy…more

Corporate Governance, Management Proposals, Mary Jo White, No-Action Letters, Proxy Access Rule

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Major Changes Coming to Canadian Trademark Law

Recent amendments to Canada’s trademark laws, which are expected to take effect as soon as late next year, will introduce a number of significant changes for owners of Canadian trademark registrations and applications. Various…more

Canada, International Harmonization, Trademarks

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DOJ Breaks its Silence in 2015 FCPA Enforcement

Last week, the DOJ announced its first corporate enforcement action under the Foreign Corrupt Practice Act (“FCPA”) for 2015. IAP World Services, Inc., a Florida-based defense and government contractor, agreed to pay $7.1…more

Chief Compliance Officers, Compliance, Defense Sector, DOJ, Enforcement Actions

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Three Point Shot - December 2015

Keep Off the (Patented) Grass - Maintaining a beautiful lawn usually requires a lot of work, unless you are friends with Edward Scissorhands or install a "Brady Bunch" lawn of artificial grass instead. Installing…more

Contempt, Copyright Infringement, Lanham Act, Lululemon, Patent Infringement

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2015 IPO Study

In this Issue: - Executive Summary - 2014 Overview - Year-Over-Year Analysis - Health Care - Technology, Media & Telecommunications - Energy & Power - Financial Services - Industrials -…more

Corporate Issuers, Equity Financing, Investors, IPO, Master Limited Partnerships

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The ERISA Litigation Newsletter; November 2013

In This Issue: - Labor and Employment and ERISA Class Actions After Wal-Mart and Comcast — Practice Points for Defendants (Part I – Commonality)* - Agencies Release Guidance on HRAs, FSAs, and Employer Payment Plans…more

Affordable Care Act, Class Action, Class Certification, Comcast, Competition

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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BMI Wins Summary Judgment of Copyright Infringement After Restaurant Owner Fails to Respond to Requests for Admission

Plaintiff Broadcast Music, Inc. (“BMI”), a music rights management organization that offers licenses to a massive catalogue of popular songs on behalf of copyright owners, brought suit for copyright infringement against the…more

Copyright, Copyright Infringement, IP License, Music, Music Industry

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Regulatory And Litigation Hot Topics For Private Funds In 2016

Private investment funds are likely to face increased regulatory scrutiny and litigation risk in 2016, not only based on the Securities and Exchange Commission’s focus on the industry but also due to transparency and compliance…more

Cybersecurity, FASB, Fund Sponsors, Liability Insurance, Management Fees

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The ERISA Litigation Newsletter - July 2015

Editor's Overview - This month's article by Lindsey Chopin discusses Affordable Care Act ("ACA") litigation. Just five years old, the Supreme Court has considered issues related to the ACA numerous times. Two of those…more

Affordable Care Act, Burwell v Hobby Lobby, Chapter 11, Class Certification, Clawbacks

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Hong Kong Government to Extend Existing Offshore Funds Tax Exemption to Private Equity Funds

The Hong Kong government has announced in its latest budget a planned extension of the existing offshore funds tax exemption to bring offshore private equity funds investing in or through Hong Kong, within its scope. The scope…more

Hong Kong, Private Equity Funds, SPVs, Tax Exemptions

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New Year: New Regulatory Developments Affecting Managers of Hedge Funds, Private Equity Funds and Other Private Funds

Regulators were busy at the end of 2015, especially in the United States, perhaps being motivated to push forward new rule proposals in anticipation of a change in administration after the presidential elections later this year…more

Accredited Investors, Algorithmic Trading, CFTC, Common Reporting Standard (CRS), Fund Managers

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The ERISA Litigation Newsletter - January 2016

Editor's Overview - Happy New Year! Because 401(k) plans play an increasingly prominent role as an employee's principal retirement investment vehicle, fiduciaries overseeing those plans face increased pressure to see them…more

401k, Attorney's Fees, Collective Bargaining Agreements (CBA), Data Security, ERISA

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Second Circuit Decision Resuscitates EEOC’s Gender Discrimination Suit Against Sterling Jewelers

This week, the United States Court of Appeals for the Second Circuit sharply limited employers’ ability to challenge the adequacy of the EEOC’s pre-suit investigations. The Court issued an opinion vacating a district court…more

Determination Letter, Discrimination, EEOC, Enforcement Actions, Gender Discrimination

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Tennessee District Court Limits Scope of Dodd-Frank Whistleblower Claim

The Eastern District of Tennessee recently dismissed whistleblower claims, finding that the Plaintiff was not entitled to protection under Sarbanes-Oxley, Dodd-Frank, or the False Claims Act (“FCA”). Verble v. Morgan Stanley…more

Dodd-Frank, False Claims Act (FCA), Morgan Stanley, Popular, Retaliation

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District Court Allows ERISA Section 510 Retaliation Claim to Proceed

A federal district court in Pennsylvania concluded that Irene Najmola, a former employee of Chester County Hospital, sufficiently pled a retaliation claim under ERISA section 510 by alleging that her employment was terminated…more

Disability, Employer Liability Issues, ERISA, Retaliation

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The ERISA Litigation Newsletter - January 2016

Editor's Overview - Happy New Year! Because 401(k) plans play an increasingly prominent role as an employee's principal retirement investment vehicle, fiduciaries overseeing those plans face increased pressure to see them…more

401k, Attorney's Fees, Collective Bargaining Agreements (CBA), Data Security, ERISA

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Sixth Circuit to Construe Scope of CDA Section 230 Immunity on Appeal of Unusual Jones v. Dirty World Decision

How can a website operator lose the broad immunity for liability associated with user-generated content conferred by Section 230 of the Communications Decency Act (CDA)? Section 230 has been consistently interpreted by most…more

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Supreme Court Holds That Criminal Defendants Challenging Pre-Trial Asset Seizure Cannot Contest a Grand Jury’s Determination of Probable Cause

On February 25, 2014, in Kaley v. United States, the U.S. Supreme Court held 6-3 that criminal defendants challenging the legality of a §853(e)(1) pre-trial asset seizure may not contest a grand jury's determination of probable…more

Criminal Prosecution, Frozen Assets, Grand Juries, Kaley v. United States, Probable Cause

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Four Takeaways from the ABA Antitrust Section’s 2015 Spring Meeting

This year's 63rd ABA Section of Antitrust Law Spring Meeting featured extensive remarks from antitrust regulators forewarning of more vigorous antitrust enforcement in 2015. The Proskauer antitrust team was on the ground and…more

American Bar Association (ABA), Antitrust Provisions, DOJ, FTC, Professional Conferences

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US EPA Approves New Standard for Conducting Phase I Environmental Site Assessments

The United States Environmental Protection Agency (EPA) recently issued its final rule amending the standards and practices for conducting environmental "all appropriate inquiries" to include a new standard recently made…more

ASTM, CERCLA, Due Diligence, Environmental Assessments, Environmental Policies

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U.S. Supreme Court Holds ERISA Plan Cannot Enforce Equitable Lien Against Participant’s General Assets

On January 20, 2016, the U.S. Supreme Court reversed a decision by the Eleventh Circuit and held that when a ERISA plan participant obtains a third-party settlement subject to a plan’s subrogation provision, and then dissipates…more

Equitable Lien, ERISA, Montanile v Board of Trustees, Plan Participants, SCOTUS

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Delaware Supreme Court Holds Tooley Direct vs. Derivative Rule Is No Bar to Parent Corporation’s Contract Claim

As previously reported, in NAF Holdings, LLC v. Li & Fung (Trading) Limited, 772 F.3d 740 (2d Cir. 2014), the Second Circuit certified to the Delaware Supreme Court an unusual question regarding whether the direct vs. derivative…more

Breach of Contract, Breach of Duty, Complex Corporate Transactions, DE Supreme Court, Demand Futility

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New York Proposes First State Bitcoin Regulations

One might have thought the biggest news in the digital currency world lately was Dell announcing that it was now accepting bitcoin. However, after a series of highly-publicized hearings in January, New York State rolled out its…more

Bitcoin, Dell, Digital Assets, Licensing Rules, Proposed Regulation

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Trademark Practitioners Beware: Issue Preclusion May Now Apply to TTAB Findings More Often Than You Think

Trademark owners and practitioners who took heart in the Supreme Court's seemingly confined holding that issue preclusion can but does not necessarily apply to likelihood of confusion determinations by the Trademark Trial and…more

B&B Hardware v Hargis Industries, Corporate Counsel, Intellectual Property Protection, Inter Partes Review Proceedings, Issue Preclusion

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Holiday Planning Should Include H-1B Cap Planning

While it may seem early, the holiday season is a good time for employers to start preparing for the H-1B Cap for Fiscal Year 2017, which begins October 1, 2016. Demand for the H-1B has steadily increased so that last year, only…more

DOL, Filing Deadlines, Foreign Students, Form F-1, Green Cards

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Policyholders Face Uncertainty after Lapse of Terrorism Risk Insurance Program

Congress' failure to renew the Terrorism Risk Insurance Program Reauthorization Act (TRIPRA), a 2007 extension of the 2002 Terrorism Risk Insurance Act, could have significant implications for companies that rely upon property…more

Terrorism Insurance, TRIA

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Budget Deal Alters Reimbursement to Off-Campus Hospital-Owned Facilities

On November 2, 2015, President Obama signed into law H.R. 1314, the Bipartisan Budget Act of 2015 (the "Act"), which significantly changes Medicare reimbursement for off-campus hospital services. The Act, which Congress passed…more

Barack Obama, Congressional Budget Office, Federal Budget, Health Care Providers, Healthcare

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European Court of Human Rights Rules Employers Can Read Employees’ Emails

Last month, the European Court of Human Rights (“ECHR”), in the case of Barbulescu v. Romania, issued a ruling about the rights of employers to monitor their employees’ online communications, including those via personal email…more

Email, Employee Privacy Rights, EU, European Court of Human Rights, Right to Privacy

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Hong Kong SFC Continues To Step Up Its Enforcement Action amidst Enhanced Regulation of IPO Sponsors

With the date for the introduction of the new regulatory regime for IPO sponsors now just a matter of weeks away on October 1, 2013, the Hong Kong market has witnessed further action taken by the Securities and Futures…more

Compliance, Enforcement Actions, Futures, Hong Kong, Investors

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Beware Deceptive Trademark Solicitations from Organizations Not Affiliated with the US Patent and Trademark Office

Private organizations not affiliated with the United States Patent and Trademark Office (USPTO) often use the USPTO's publicly available trademark database to obtain applicant information, and then disseminate deceptive,…more

Patents, Scams, Trademarks, USPTO

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California Employers Down, But Not Out, Concerning Class Certification Issues

Shortly after the California Supreme Court issued its 2012 decision in Brinker Restaurant Corp. v. Superior Court, employers saw an immediate uptick in appellate court decisions supporting the denial of class certification to…more

Brinker, Class Action, Class Certification, Compliance, Employer Liability Issues

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Clearance: Proskauer's Quarterly Antitrust Update - Fall 2013

In Federal Trade Commission v. Actavis, Inc., the Supreme Court, in a 5-3 decision written by Justice Breyer, reversed the Eleventh Circuit's dismissal of an FTC complaint under Section 5 of the Federal Trade Commission Act[1]…more

Actavis Inc., Anti-Competitive, Antitrust Investigations, Antitrust Litigation, Competition

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Federal Appellate Court Rules that Certain Foreign Currency Options Are Subject to the Section 1256 Mark-to-Market Regime

Recently, in Wright v. Commissioner, the United States Court of Appeals for the Sixth Circuit has reopened the question of the application of Section 1256 to foreign currency options (and also, possibly, to foreign currency…more

Banking Sector, Derivatives, Foreign Currency, Income Taxes, IRS

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The ERISA Litigation Newsletter - May 2015

Editor's Overview - This month we focus on the EEOC's proposed rules concerning wellness programs. As our colleague, Amy Covert, discusses, a recent change of position by the EEOC provides employers with opportunities to…more

ADA, Affordable Care Act, Best Management Practices, DOL, EEOC

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Summary Judgment Ruling Not a Pretty Picture for Massachusetts Copyright Plaintiff

A recent decision from the District of Massachusetts demonstrates the difficulties that can arise when attempting to protect copyrighted works displayed on the internet. The July 29, 2015 order issued by the Honorable Patti B…more

Copyright, Copyright Infringement, Copyright Litigation, DMCA, False Advertising

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Massachusetts Jury Finds Violation of Stored Communications Act and Massachusetts Privacy Laws

In January 2011, David Cheng (Plaintiff) filed a lawsuit against his former co-worker and fellow radiologist, Laura Romo (Defendant), alleging a violation of the Stored Communications Act (SCA) and Massachusetts privacy law…more

Email, Jury Trial, Privacy Laws, Stored Communications Act, Yahoo!

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Digital Music Provider Grooveshark Dismantled in Major Victory for Music Recording Industry

On April 30, 2015, digital music provider Grooveshark—owned by Escape Media Group, Inc. ("Escape")—agreed to permanently shut down its controversial music streaming website following several years of litigation with major record…more

Digital Media, Internet Streaming, Music, Music Industry, Popular

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New Year: New Regulatory Developments Affecting Managers of Hedge Funds, Private Equity Funds and Other Private Funds

Regulators were busy at the end of 2015, especially in the United States, perhaps being motivated to push forward new rule proposals in anticipation of a change in administration after the presidential elections later this year…more

Accredited Investors, Algorithmic Trading, CFTC, Common Reporting Standard (CRS), Fund Managers

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The ERISA Litigation Newsletter - September 2015

Editor's Overview - It has been a little more than one year since the U.S. Supreme Court altered the legal landscape for litigating ERISA breach of fiduciary duty claims relating to the investment in employer stock funds. …more

Administrative Appeals, Affordable Care Act, Breach of Duty, Burwell v Hobby Lobby, Cadillac Tax

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4th Time is Not a Charm: Android Users Plead Themselves Out of Court

Finding that the Plaintiffs lacked Article III standing to pursue their case, Google, Inc. (“Google”) won dismissal of the Android users’ putative class action lawsuit after more than three years of litigation. In re Google…more

Android, Article III, Data Privacy, Disclosure, Electronic Data Transmissions

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Federal Circuit Revisits and Recasts Means-Plus-Function Claim Interpretation

An en banc decision from the Federal Circuit last week overruled a line of cases governing the interpretation of functional claim language, calling into question how courts, the PTO, and industry will treat such language in the…more

Claim Construction, Expert Testimony, Means-Plus-Function, Patent Litigation, Patents

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FTC Issues Report and Privacy Best Practices for the Internet of Things

On January 27, 2015 the Federal Trade Commission (the “FTC”) issued a report detailing best practices and recommendations that businesses engaged in the Internet of Things (“IoT”) can follow to protect consumer privacy and…more

Best Practices, Data Collection, Data Protection, FTC, Information Reports

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Supreme Court Holds That Criminal Defendants Challenging Pre-Trial Asset Seizure Cannot Contest a Grand Jury’s Determination of Probable Cause

On February 25, 2014, in Kaley v. United States, the U.S. Supreme Court held 6-3 that criminal defendants challenging the legality of a §853(e)(1) pre-trial asset seizure may not contest a grand jury's determination of probable…more

Criminal Prosecution, Frozen Assets, Grand Juries, Kaley v. United States, Probable Cause

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Seventh Circuit Allows Reverse Racism Claims To Proceed Against Contractor

Earlier this week, the Seventh Circuit allowed a Caucasian construction worker to take his reverse racism claims to trial because there were factual disputes about the reason for his termination. The plaintiff, Terry Deets,…more

Affirmative Action, EEOC, Federal Contractors, Race Discrimination, Reverse Discrimination

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NJ Lawmakers Propose Legislation to Raise Minimum Wage To $15 Per Hour

On February 4, 2016, in Trenton, New Jersey State Assembly Leader Vincent Prieto, Assemblyman John Wisniewski and State Senator Ray Lesniak proposed a bill to raise the state minimum wage from $8.38 to $15 for all New Jersey…more

Consumer Price Index, Minimum Wage, Proposed Legislation, Wage and Hour

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California Employment Law Notes - March 2015

Employee Who Was Working Elsewhere During Medical Leave Of Absence Was Properly Terminated - Richey v. AutoNation, Inc., 182 Cal. Rptr. 3d 644 (Cal. S. Ct. 2015). Avery Richey worked for Power Toyota Cerritos, part…more

AutoNation, CAFA, California Family Rights Act (CFRA), Car Dealerships, Disability Discrimination

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New Jersey State Court Rules Damage Caused by Superstorm Sandy Not Subject to Flood Sublimit

In a decisive victory for policyholders, Judge Thomas Vena of the Essex County Superior Court in New Jersey ruled that significant damages incurred by Public Service Enterprise Group Inc. (“PSEG”) as a result of storm surge…more

Extrinsic Evidence, Flooding, Property Damage, Property Insurance, Proximate Cause

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Supreme Court Holds That Criminal Defendants Challenging Pre-Trial Asset Seizure Cannot Contest a Grand Jury’s Determination of Probable Cause

On February 25, 2014, in Kaley v. United States, the U.S. Supreme Court held 6-3 that criminal defendants challenging the legality of a §853(e)(1) pre-trial asset seizure may not contest a grand jury's determination of probable…more

Criminal Prosecution, Frozen Assets, Grand Juries, Kaley v. United States, Probable Cause

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The ERISA Litigation Newsletter - October 2015

Editor's Overview - This month, we review the Second Circuit's ruling in New York State Psychiatric Ass'n, Inc. v. UnitedHealth Grp. wherein the Second Circuit ruled that: (i) a provider association has associational…more

Benefit Plan Sponsors, Breach of Contract, Breach of Duty, Class Action, Collective Bargaining Agreements (CBA)

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District Court Rules That Smartphone Passcodes Are Testimonial; Protected by Fifth Amendment

In Securities and Exchange Commission v. Huang, the district court held that the Fifth Amendment protected two former employees against having to disclose their personal passcodes for company-issued smartphones to government…more

Biometric Information, Capital One, Confidential Information, Databases, Discovery

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Cal. App. Court Finds in Favor of Whistleblower Who Never Complained of Unlawful Conduct by the Employer

In Cardenas v. M. Fanaian, D.D.S., Inc., Case No. F069305 (Cal. App. 5 Dist.), a California Court of Appeal determined that Plaintiff Cardenas could pursue a California Labor Code Section 1102.5 retaliation claim against her…more

Damages, Disclosure, Employee Rights, Employer Liability Issues, Labor Code

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Delaware Court of Chancery Rejects Another Disclosure-Only M&A Settlement and Warns of “Increasingly Vigilant” Scrutiny

The Delaware Court of Chancery dealt another blow to disclosure-only settlements of merger litigation and refused to approve a proposed class-action settlement arising from Zillow, Inc.'s acquisition of Trulia, Inc. Chancellor…more

Attorney's Fees, Class Action, Corporate Counsel, Disclosure-Based Settlements, Mergers

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Significant Changes to U.S. Taxation of REITs and Investments by Non-U.S. Investors in Real Property under the PATH Act

On December 18, 2015, President Obama signed into law an omnibus appropriations bill which included the Protecting Americans from Tax Hikes Act of 2015 (the "Act"). In addition to extending or making permanent a number of…more

Dividends, FIRPTA, Foreign Investment, IRS, Pensions

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The ERISA Litigation Newsletter - January 2016

Editor's Overview - Happy New Year! Because 401(k) plans play an increasingly prominent role as an employee's principal retirement investment vehicle, fiduciaries overseeing those plans face increased pressure to see them…more

401k, Attorney's Fees, Collective Bargaining Agreements (CBA), Data Security, ERISA

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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SEC Staff Announces 2016 OCIE Examination Priorities

On January 11, 2016, the staff of the Office of Compliance Inspections and Examinations (OCIE) of the Securities and Exchange Commission (SEC) released its annual announcement on examination priorities in the coming calendar…more

Cybersecurity, Hedge Funds, Investment Adviser, Liquidity, OCIE

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Placing Limits on the State Action Doctrine, the Supreme Court Subjects Local Government Hospitals to Scrutiny under the Antitrust Laws

Recent major regulatory and technological developments have brought forth historic changes to the health care market. Health care providers have responded to these developments in several ways. One such mechanism, hospital…more

FTC, FTC v. Phoebe Putney Health System, Hospital Mergers, Hospitals, Immunity

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NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity

In Richmond District Neighborhood Center, Case 20-CA-091748 (Oct. 28, 2014), the Board upheld an Administrative Law Judge’s ruling that a conversation between two employees, who were involved with student programming at the…more

Employee Rights, Facebook, NLRA, NLRB, Social Media

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Tips For Setting Employees’ Salaries And Benefits For MultiNational Companies

Setting the correct salary is never easy and is more an art than a science. In the current economic climate the market fluctuates according to industry, geographical location, budgetary constraints and a whole host of other…more

Bonuses, Discrimination, Employee Benefits, Minimum Wage, Multinationals

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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Fifth Circuit Tips Its Hand as to Analysis of FLSA’s Tip Credit

Restaurants throughout the Fifth Circuit, and even beyond, should review the recent decision of Montano v. Montrose Restaurant, which discusses the often tricky and always fact-intensive question of whether a restaurant employee…more

Class Action, FLSA, Intent, Minimum Wage, Resorts & Restaurants

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SEC Chair Calls for Reexamination of Treasury Market Regulations in Light of High Speed Electronic Trading

On October 20, 2015, SEC Chair Mary Jo White gave the keynote address at the “Evolving Structure of the U.S. Treasury Market” conference organized by the U.S. Department of Treasury and the Federal Reserve Bank of New York. The…more

Algorithmic Trading, Alternative Trading Systems, CFTC, Cooperation, Data Collection

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The $5 Million CAFA Question: Can You Provide Evidentiary Proof?

In December, we wrote about the recent Supreme Court decision in Owens v. Dart Cherokee Basin Operating Co. In Owens, the Court held that class action defendants need not provide evidentiary submissions in support of their…more

Amount in Controversy, CAFA, Class Action, Evidence

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Four More New Jersey Cities Enact Sick Leave Laws

Four New Jersey municipalities—Passaic, Paterson, Irvington, and East Orange—recently enacted ordinances requiring employers to provide paid sick leave to their employees…more

Employee Rights, Local Ordinance, New Regulations, Paid Leave, Sick Leave

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Goodyear Pays for the Sins of its Subsidiaries in a $16 Million FCPA Settlement

Following recent trends, the U.S. Securities and Exchange Commission brought an administrative proceeding against a U.S. issuer for the corrupt activities of its foreign subsidiaries. Earlier this week, Goodyear Tire & Rubber…more

Bribery, Corporate Counsel, Enforcement Actions, FCPA, Foreign Subsidiaries

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Philadelphia Joins List of Cities Mandating Paid Sick Leave

On February 12, 2015, Philadelphia became yet another jurisdiction to pass a law guaranteeing paid sick leave for employees. The Philadelphia ordinance grants certain employees paid sick leave which can be used to respond to…more

Employer Mandates, Local Ordinance, New Legislation, Paid Leave, Sick Leave

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IRS Provides Some Relief after Data Hacks

Citing scary facts like the 16.6 million victims of identity theft in 2012 and the recent customer data security breaches at major U.S. companies, the IRS recently announced special tax relief for identity protection services…more

1099s, Data Breach, Data Security, Free Identity Theft Protection, Income Taxes

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Employee Was Properly Terminated For Lying And Failing To Cooperate During Company Investigation

John McGrory sued his former employer, alleging he was unlawfully retaliated against for being uncooperative and deceptive during a company investigation into allegations that he had discriminated against a subordinate employee…more

Discrimination, Gender Discrimination, Hiring & Firing, Internal Investigations, Retaliation

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Illinois Appellate Court Examines Number of Occurrences and Limits Application of Time-and-Space Test

On January 11, 2013, the Illinois Appellate Court for the First District in Chicago issued an important decision concerning the test for the number of occurrences under an insurance policy…more

Number of Occurences

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DOJ Announces Postponement of the Release of Proposed Web Accessibility Regulations for Public Accommodations Until 2018

Businesses awaiting guidance from the U.S. Department of Justice (DOJ) on accessibility of online content for places of public accommodation under Title III of the Americans with Disabilities Act (ADA) were once again…more

ADA, DOJ, Proposed Regulation, Public Accommodation, Website Accessibility

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Significant Changes to U.S. Taxation of REITs and Investments by Non-U.S. Investors in Real Property under the PATH Act

On December 18, 2015, President Obama signed into law an omnibus appropriations bill which included the Protecting Americans from Tax Hikes Act of 2015 (the "Act"). In addition to extending or making permanent a number of…more

Dividends, FIRPTA, Foreign Investment, IRS, Pensions

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NNU Ebola “Day of Action” Slated for November 12, 2014

Registered nurses in 16 states and the District of Columbia are planning a national “Day of Action” by engaging in strikes, picketing, leafleting, rallies, and candlelight vigils on Wednesday, November 12, in support of demands…more

Ebola, Employer Liability Issues, Hospitals, Kaiser Permanente, Nurses

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The ERISA Litigation Newsletter - June 2013

Our articles this month focus on health care reform. First, Jim Napoli and Brian Neulander comment on the potential for litigation under the Affordable Care Act's (ACA's) whistleblower protections and ERISA Section 510 as a…more

Affordable Care Act, COBRA, Data Breach, Data Protection, DOL

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Supreme Court Holds That Criminal Defendants Challenging Pre-Trial Asset Seizure Cannot Contest a Grand Jury’s Determination of Probable Cause

On February 25, 2014, in Kaley v. United States, the U.S. Supreme Court held 6-3 that criminal defendants challenging the legality of a §853(e)(1) pre-trial asset seizure may not contest a grand jury's determination of probable…more

Criminal Prosecution, Frozen Assets, Grand Juries, Kaley v. United States, Probable Cause

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IRS Significantly Liberalizes Permitted Mid-Year Changes to Safe Harbor Plans

On January 29, 2016, the IRS issued Notice 2016-16 that provides guidance on mid-year changes to a safe harbor plan under sections 401(k) and 401(m) of the Internal Revenue Code. The guidance provides that a mid-year change…more

401k, 403(b) Plans, Benefit Plan Sponsors, Comment Period, IRS

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2015 IPO Study

In this Issue: - Executive Summary - 2014 Overview - Year-Over-Year Analysis - Health Care - Technology, Media & Telecommunications - Energy & Power - Financial Services - Industrials -…more

Corporate Issuers, Equity Financing, Investors, IPO, Master Limited Partnerships

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Third Circuit to Putative Class Action Plaintiffs: No Receipt, No Class Cert

On May 2nd, the Third Circuit declined to rehear en banc its 2013 decision to reverse class certification in Carrera v. Bayer Corp, which created a big hurdle for would-be plaintiffs bringing suit in New Jersey, Pennsylvania and…more

Ascertainable Class, Bayer, Class Certification, Putative Class Actions, Weight-Loss Products

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UK Supreme Court rules on priority ranking of pension liabilities in company insolvencies

On 24th July the UK Supreme Court handed down its unanimous decision in relation to the LBIE/Nortel appeal, overturning the previous Court of Appeal and first instance judgments…more

Defined Benefit Plans, Insolvency, Nortel, Pensions, UK

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Significant Changes to U.S. Taxation of REITs and Investments by Non-U.S. Investors in Real Property under the PATH Act

On December 18, 2015, President Obama signed into law an omnibus appropriations bill which included the Protecting Americans from Tax Hikes Act of 2015 (the "Act"). In addition to extending or making permanent a number of…more

Dividends, FIRPTA, Foreign Investment, IRS, Pensions

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Delaware Court of Chancery Rejects Another Disclosure-Only M&A Settlement and Warns of “Increasingly Vigilant” Scrutiny

The Delaware Court of Chancery dealt another blow to disclosure-only settlements of merger litigation and refused to approve a proposed class-action settlement arising from Zillow, Inc.'s acquisition of Trulia, Inc. Chancellor…more

Attorney's Fees, Class Action, Corporate Counsel, Disclosure-Based Settlements, Mergers

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California Supreme Court Rules On Mixed Motive Defense To Discrimination Claims, But Large Verdicts Persist…

Wynona Harris, a bus driver for the City of Santa Monica (the City), alleged that she was fired because of her pregnancy in violation of the prohibition against sex discrimination under the Fair Employment and Housing Act…more

Appeals, Compensatory Damages, Discrimination, FEHA, Mixed Motive Cases

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The ERISA Litigation Newsletter - April 2015

Editor's Overview - In this month's Newsletter, Robert Rachal discusses recent "church plan" rulings where some federal judges have declined to give deference to long-standing, consistent guidance from the Internal…more

Breach of Duty, Churches, CIGNA, Cost-Sharing, ERISA

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New DOJ Policy on Asset Forfeiture in Structuring Offenses

In an effort to lessen the risk that businesses and individuals performing legitimate financial transactions will have funds frozen through a prosecutor’s use of forfeiture laws, on March 31, Attorney General Eric Holder issued…more

DOJ, Eric Holder, Forfeiture, Frozen Assets, New Guidance

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New York Expands Liability for Employee Claims for Unpaid Services Performed in New York to the Top 10 Shareholders of Privately Held Corporations Organized in Other States

Under a New York law in effect for decades, the top 10 shareholders of a privately held New York corporation can be held liable in certain circumstances for amounts owed to the corporation's employees. On January 19, 2016, this…more

Corporate Counsel, Corporate Veil, Employees, Joint and Several Liability, Privately Held Corporations

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CFTC Issues Second Whistleblower Award To The Tune Of $290,000

On September 29, 2015, the U.S. Commodity Futures Trading Commission (CFTC) announced that it will make its second award as part of its whistleblower program, which was created by Dodd-Frank. The tipster will receive a bounty…more

CFTC, Dodd-Frank, Enforcement Actions, Whistleblower Awards, Whistleblowers

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2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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District Court Rejects Constitutional Challenge to SEC Administrative Proceedings

We recently wrote that critics, including Judge Jed Rakoff, have been questioning the SEC’s policy of increasingly bringing enforcement actions in its administrative forum rather than federal court. We noted that several cases…more

Administrative Hearings, Enforcement Actions, Jurisdiction, SEC, Subject Matter Jurisdiction

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The ERISA Litigation Newsletter

Editor's Overview - This month's newsletter focuses on repayment of pension plan overpayments. Our issue discusses pension plan overpayments to participants, a plan administrator's duties to seek repayment, corrections…more

Employee Benefits, ERISA, Income Taxes, Overpayment, Pensions

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Four Takeaways from the ABA Antitrust Section’s 2015 Spring Meeting

This year's 63rd ABA Section of Antitrust Law Spring Meeting featured extensive remarks from antitrust regulators forewarning of more vigorous antitrust enforcement in 2015. The Proskauer antitrust team was on the ground and…more

American Bar Association (ABA), Antitrust Provisions, DOJ, FTC, Professional Conferences

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Private Funds In Focus - Summer 2013

The Jumpstart Our Business Startups (JOBS) Act became law just over one year ago. The JOBS Act seeks to encourage capital formation and reduce burdensome regulations on smaller issuers of securities. Since its enactment on April…more

Advertising, Disclosure Requirements, EGCs, General Solicitation, Investment Funds

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2015 IPO Study

In this Issue: - Executive Summary - 2014 Overview - Year-Over-Year Analysis - Health Care - Technology, Media & Telecommunications - Energy & Power - Financial Services - Industrials -…more

Corporate Issuers, Equity Financing, Investors, IPO, Master Limited Partnerships

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Second Circuit Adopts The “Highly Individualized” Primary Beneficiary Test In Unpaid Intern Lawsuits

On July 2nd, the United States Court of Appeals for the Second Circuit issued its decisions in Glatt et al. v. Fox Searchlight Pictures, Inc. et al. and Wang et al. v. The Hearst Corp., the two unpaid intern lawsuits heard in…more

Appeals, Class Action, Class Certification, Classification, DOL

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Three Point Shot - December 2015

Keep Off the (Patented) Grass - Maintaining a beautiful lawn usually requires a lot of work, unless you are friends with Edward Scissorhands or install a "Brady Bunch" lawn of artificial grass instead. Installing…more

Contempt, Copyright Infringement, Lanham Act, Lululemon, Patent Infringement

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“Enough is Enough” – Governor Cuomo Signs Campus Sexual Assault Legislation

On July 7, 2015, New York Governor Andrew Cuomo signed into law legislation to combat sexual assault on both public and private college campuses throughout New York. With a few exceptions, the provisions in the law will take…more

Amnesty, Colleges, Community Colleges, Complaint Procedures, Consent

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SEC’s 2016 Examination Priorities Focus on Retail Investors, Market Wide Risk and Use of Data Analytics

The recently issued Examination Priorities for 2016 reveals that the SEC’s priorities are organized around the same three thematic areas as last year: (i) retail investors, including retirement investments; (ii) market-wide…more

Analytics, Cybersecurity, Investor Protection, Regulation SCI, SEC

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New York Nonprofit Revitalization Act Rollout Challenges

As the July 1, 2014 compliance date of the New York Nonprofit Revitalization Act of 2013 (the "Revitalization Act") quickly approaches, many charities operating in New York are confronting some difficult rollout challenges…more

Board of Directors, Corporate Officers, Economic Development, IRS, Non-Profits

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SEC’s 2016 Examination Priorities Focus on Retail Investors, Market Wide Risk and Use of Data Analytics

The recently issued Examination Priorities for 2016 reveals that the SEC’s priorities are organized around the same three thematic areas as last year: (i) retail investors, including retirement investments; (ii) market-wide…more

Analytics, Cybersecurity, Investor Protection, Regulation SCI, SEC

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Three Point Shot - December 2015

Keep Off the (Patented) Grass - Maintaining a beautiful lawn usually requires a lot of work, unless you are friends with Edward Scissorhands or install a "Brady Bunch" lawn of artificial grass instead. Installing…more

Contempt, Copyright Infringement, Lanham Act, Lululemon, Patent Infringement

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Wealth Management Update - February 2016

February Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The February § 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and…more

Art, Estate Tax, Executors, Gift Tax, GRATs

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European Commission Publishes Anti Tax Avoidance Package

On 28 January 2016, the European Commission published a draft Anti Tax Avoidance Package in order to ensure increased tax transparency and effective taxation within, and outside of, the EU. The package includes a proposed…more

BEPS, Corporate Taxes, EBITDA, EU, European Commission

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Significant Changes to U.S. Taxation of REITs and Investments by Non-U.S. Investors in Real Property under the PATH Act

On December 18, 2015, President Obama signed into law an omnibus appropriations bill which included the Protecting Americans from Tax Hikes Act of 2015 (the "Act"). In addition to extending or making permanent a number of…more

Dividends, FIRPTA, Foreign Investment, IRS, Pensions

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NYC Commission on Human Rights Issues Guidelines on Transgender Discrimination

On December 21, 2015, the New York City Commission on Human Rights issued new enforcement guidelines regarding discrimination on the basis of gender identity or expression. While the City Council added transgender protections to…more

Dress Codes, Gender Discrimination, Gender Identity, Hiring & Firing, NYCCHR

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Massachusetts Governor Signs Parental Leave Bill

On January 7, 2015, Governor Deval Patrick signed into law a Parental Leave bill, which significantly amends Mass. Gen. L. ch. 149, section 105D. Before the amendment, the Massachusetts Maternity Leave Act (“MMLA”) provided…more

Deval Patrick, Employer Mandates, New Legislation, Parental Leave

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Policyholders Face Uncertainty after Lapse of Terrorism Risk Insurance Program

Congress' failure to renew the Terrorism Risk Insurance Program Reauthorization Act (TRIPRA), a 2007 extension of the 2002 Terrorism Risk Insurance Act, could have significant implications for companies that rely upon property…more

Terrorism Insurance, TRIA

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Mihalik v. Credit Agricole Cheuvreux: Second Circuit Clarifies Standard of Review of New York City Human Rights Law Claims

On April 26, 2013, the Second Circuit held that New York City Human Rights Law ("NYCHRL") claims must be analyzed separately from federal and state discrimination claims and that the severe or pervasive standard of liability no…more

Discrimination, Gender Discrimination, Hiring & Firing, Hostile Environment, NYCHRL

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Constitutional Challenges to SEC Administrative Proceedings

May defendants charged in SEC administrative proceedings challenge the constitutionality of those proceedings in federal district court? The determination of whether district courts have subject matter jurisdiction over such…more

Administrative Hearings, ALJ, Bebo v SEC, Enforcement Actions, Judge Rakoff

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Connecticut Court Clarifies SOX Whistleblower Pleading Standard

On December 15, 2015, the District of Connecticut refused to dismiss a SOX whistleblower retaliation claim, ruling that: (1) the heightened Rule 9(b) pleading standard for fraud claims does not apply to SOX whistleblower…more

Pleading Standards, Retaliation, Sarbanes-Oxley, Termination, Whistleblower Protection Policies

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FCC Confirms Solicited Fax Ads Must Include An Opt-Out

Last Thursday the Federal Communications Commission (FCC) issued an order confirming that companies must include opt-out instructions on all fax ads, even for recipients who previously agreed to receive a fax from the company…more

Advertising, Faxes, FCC, Opt-Outs, Prior Express Consent

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Protecting Healthcare and Other Employees From Ebola

News that a U.S. based health-care worker in Dallas has contracted Ebola while caring for a patient with the disease has raised questions about the protections that health care facilities and other employers must provide for…more

Africa, CDC, Ebola, Health Care Providers, Healthcare

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The European Commission Issues Guidance on Alternative Cross-Border Data Transfer Tools

On November 6, 2015, one month after the European Court of Justice decision that invalidated the Safe Harbor framework, the European Commission (the “Commission”) issued a Communication setting forth its position on alternative…more

Binding Corporate Rules, Corporate Counsel, EU, European Commission, Informed Consent

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Significant Multiemployer and Single Employer Benefit Rule Changes Take Effect

On December 16, 2014, President Obama signed into law the $1.1 trillion Consolidated and Further Continuing Appropriations Act of 2015 (Appropriations Act), which includes some significant changes to the rules governing…more

Appropriations Bill, CBAs, Collective Bargaining, Defined Benefit Plans, Defined Contribution Plans

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California Legislature Targets Employment Arbitration Agreements

It is no secret that California is no friend to arbitration agreements. As the United States Supreme Court noted in its 2011 opinion in AT&T Mobility LLC v. Concepcion, “California’s courts have been more likely to hold…more

Arbitration Agreements, AT&T Mobility v Concepcion, Class Action Arbitration Waivers, Conditional Job Offers, Corporate Counsel

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Wealth Management Update - February 2016

February Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts - The February § 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and…more

Art, Estate Tax, Executors, Gift Tax, GRATs

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Second Circuit Strays From “Definitively and Specifically” Standard But Still Dismisses SOX Claim

On August 8, 2014, the Second Circuit affirmed the dismissal of a SOX whistleblower retaliation claim brought by a former AECOM Technology Corp. (“Company”) employee, holding that he did not engage in protected activity because…more

Corporate Counsel, Retaliation, Sarbanes-Oxley, Whistleblowers

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Broad Definition of "Disability" Endorsed By Fourth Circuit

In its recently published opinion in Summers v. Altarum Institute, Corp., No. 13-1645, decided January 23, 2014, the United States Court of Appeals for the Fourth Circuit became the first federal appellate court to hold that a…more

ADA, ADAAA, Disability

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Update: NYC Mayor Signs Caregiver Discrimination Bill into Law

On January 5, 2016, Mayor Bill de Blasio signed into law a New York City Council bill that prohibits employment discrimination based on an individual’s actual or perceived status as a caregiver. The new law will come into effect…more

Anti-Discrimination Policies, Caregivers, City Councils, Employee Training, Employment Discrimination

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