Proskauer Rose LLP

UK Summer Budget 2015 – Key Issues for Asset Managers and Non-UK Domiciled Individuals

On 8th July 2015, the UK Government announced several changes to UK tax legislation that will affect those holding carried interest in fund structures which utilise at least one partnership (including a limited partnership), and…more

Capital Gains, Carried Interest, Cost-Shifting, Foreign Investment, HMRC

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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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House Passes Veteran Preference Bill

Earlier this week, the House of Representatives unanimously approved a bill, titled the Boosting Rates of American Veteran Employment Act or “BRAVE Act.” The BRAVE Act authorizes the Department of Veterans Affairs (“VA”) to give…more

Federal Contractors, New Legislation, Public Procurement Policies, Veterans

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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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Deadline Looming for Comments on SEC Proposed Rules on CEO Pay Ratio Disclosure

The Securities and Exchange Commission (SEC) recently released its proposed rules to amend Item 402 of Regulation S-K to implement the pay ratio disclosure requirement in accordance with Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Dodd-Frank, Executive Compensation, Pay Ratio

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Trade Act Reinstates Expired Health Coverage Tax Credit (HCTC)

On July 6, 2015, President Obama signed the Trade Preferences Extension Act of 2015. Among other things, the Trade Act retroactively reinstated the Health Coverage Tax Credit (HCTC), which had previously expired on January 1,…more

Affordable Care Act, COBRA, Commercial Bankruptcy, Employer Group Health Plans, Health Insurance

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SEC Amendments to Regulation A Create New Exemptions for Offerings up to $50 Million

On March 25, 2015, pursuant to a JOBS Act mandate, the SEC adopted amendments to Regulation A, exempting offerings now of up to $50 million and eliminating some of the impediments to use of the exemption…more

IPO, Issuers, JOBS Act, Regulation A, Reporting Requirements

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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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UK Regulators Address Manipulation of Trading Benchmarks and Other Misconduct

Concluding a year-long review, UK regulators issued the final report of the Fair and Effective Markets Review Committee last week, making a number of recommendations intended to restore confidence in the trading markets for…more

Bank of England, Benchmark Pricing, Benchmarking, Benchmarks, Commodities

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Seventh Circuit Rejects Court Challenge to Pending SEC Administrative Enforcement Proceeding

The U.S. Court of Appeals for the Seventh Circuit held yesterday that federal District Courts do not have subject-matter jurisdiction to entertain challenges to ongoing SEC administrative enforcement proceedings where the…more

Article II, Bebo v SEC, Cease and Desist, De Novo Standard of Review, Dodd-Frank

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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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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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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, 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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Second Circuit Revives Contract Attorney’s Misclassification Suit

On July 23, 2015, the Second Circuit, in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, Tower Legal Staffing, Inc., revived a putative collective action brought by David Lola, a contract attorney, against Skadden and Tower…more

Appeals, FLSA, Independent Contractors, Misclassification, Over-Time

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Three Point Shot - June 2015

Jockeying for Dollars: Kentucky Downs Faces Two Lawsuits over Betting Machines - And they're off ... to the United States District Court for the Western District of Kentucky. One of the country's premier racetracks,…more

C-Suite Executives, Copyright, Copyright Infringement, Horse Racing, Misappropriation

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First Federal Appellate Court Holds a NonCash Reverse Payment Subject to Antitrust Scrutiny: Is the Third Circuit's Decision in King Drug a Turning Point?

Recently, the Third Circuit issued the first federal appellate decision interpreting the Supreme Court's landmark decision in FTC v. Actavis, Inc.[1], potentially greatly expanding the scope of settling parties in reverse…more

ANDA, Drug Manufacturers, Exclusivity, FDA, FTC

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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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Proposed Regulations Issued On Management Fee Waivers

On July 22, 2015, the U.S. Department of the Treasury and U.S. Internal Revenue Service issued proposed Treasury Regulations under Section 707(a)(2)(A) of the Internal Revenue Code of 1986, as amended, addressing management fee…more

Capital Gains, Deferred Compensation, Enterprise Risks, Fee Waivers, 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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Internal Investigation Documents Are Protected from Disclosure in False Claims Act Case, D.C. Circuit Holds

Reversing a lower court decision, the D.C. Circuit recently concluded – for a second time – that certain internal audit documents are protected from disclosure by the attorney-client communication and work production privileges…more

Attorney-Client Privilege, Disclosure, Discovery, False Claims Act, Internal Investigations

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ESMA stalls on extending the AIFMD Marketing Passport to Non-European Managers

The European Securities and Markets Agency (ESMA) today published its advice on extending the application of the marketing 'passport' under the Alternative Investment Fund Managers Directive (AIFMD) to non-European managers…more

AIFM, AIFMD, ESMA, EU, Hong Kong

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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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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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Proposed Rule's Medicaid Managed Care Medical Loss Ratio Requirement Will Likely Impact Plans, Providers and Patients in New York

On June 1, 2015, the Department of Health and Human Services Center for Medicaid and Medicare Services (CMS) published a proposed rule at 80 Fed. Reg. 31097 (Proposed Rule) that will fundamentally change state Medicaid Managed…more

Affordable Care Act, CMS, Enforcement, Managed Care Contracts, Medicaid

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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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DOD Issues Proposed Rule Extending Limitations on Contractor Employee Personal Conflicts of Interest

The Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have issued a proposed rule amending the Federal Acquisition Regulations (FAR) to extend the…more

Conflicts of Interest, Contractors, DOD, FAR, Federal Contractors

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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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Second Circuit Revives Contract Attorney’s Misclassification Suit

On July 23, 2015, the Second Circuit, in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, Tower Legal Staffing, Inc., revived a putative collective action brought by David Lola, a contract attorney, against Skadden and Tower…more

Appeals, FLSA, Independent Contractors, Misclassification, Over-Time

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Second Circuit Revives Contract Attorney’s Misclassification Suit

On July 23, 2015, the Second Circuit, in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, Tower Legal Staffing, Inc., revived a putative collective action brought by David Lola, a contract attorney, against Skadden and Tower…more

Appeals, FLSA, Independent Contractors, Misclassification, Over-Time

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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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Proposed Regulations Issued On Management Fee Waivers

On July 22, 2015, the U.S. Department of the Treasury and U.S. Internal Revenue Service issued proposed Treasury Regulations under Section 707(a)(2)(A) of the Internal Revenue Code of 1986, as amended, addressing management fee…more

Capital Gains, Deferred Compensation, Enterprise Risks, Fee Waivers, 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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Sixth Circuit Rules that “Pocket Dials” May Not Be Entitled to an Expectation of Privacy

In a move that may strike fear into the hearts of mobile phone owners everywhere, the Sixth Circuit recently ruled that a person’s “pocket dials” – those inadvertent calls made from a person’s mobile phone, generally when the…more

Cell Phones, Mobile Devices, Reasonable Expectation of Privacy, Smartphones, Wiretap Act

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UK Summer Budget 2015 – Key Issues for Asset Managers and Non-UK Domiciled Individuals

On 8th July 2015, the UK Government announced several changes to UK tax legislation that will affect those holding carried interest in fund structures which utilise at least one partnership (including a limited partnership), and…more

Capital Gains, Carried Interest, Cost-Shifting, Foreign Investment, HMRC

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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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Alaska Department of Labor and U.S. DOL Agree to Work Together Against Misclassification

The U.S. Department of Labor (“U.S. DOL”) and the Alaska Department of Labor and Workforce Development recently signed a memorandum of understanding to share information and conduct joint investigations regarding independent…more

Alaska, DOL, Employer Liability Issues, Independent Contractors, Memorandum of Understanding

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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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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, Car Dealerships, CFRA, Disability Discrimination

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Procter & Gamble Must Say Goodbye to Proposed Amended Claim against Hello, while Hello Says Goodbye to Lawsuit

A lawsuit between Procter & Gamble (“P&G”) and Hello Products (“Hello”) – a toothpaste start up that promotes its products as “naturally friendly” – settled last week with the entry of a stipulated injunction, but Hello might…more

Discovery, False Advertising, Lanham Act, Leave to Amend, Preliminary Injunctions

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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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U.S. Supreme Court Says “Regular Review” of ERISA Investments Required

ERISA plan fiduciaries charged with responsibility for selecting, monitoring or removing plan investment options should pay close attention to the U.S. Supreme Court’s recent ruling in Tibble v. Edison Intl., 135 S. Ct. 1823…more

401k, Benefit Plan Sponsors, Breach of Duty, ERISA, Retirement Plan

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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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UK Supreme Court case of Anson v. HMRC [2015] UKSC 44

Delaware LLC held to be UK tax transparent - The UK Supreme Court has handed down its judgment on the final appeal in the Anson case, in which it treated a taxpayer's interest in a Delaware LLC as transparent for UK tax…more

Corporate Taxes, Dividends, Double Taxation, HMRC, Income Taxes

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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 - June 2015

Jockeying for Dollars: Kentucky Downs Faces Two Lawsuits over Betting Machines - And they're off ... to the United States District Court for the Western District of Kentucky. One of the country's premier racetracks,…more

C-Suite Executives, Copyright, Copyright Infringement, Horse Racing, Misappropriation

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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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Broker-Dealer Beat - August 2015

SEC Adopts Registration Rules for Security-Based Swap Entities - On August 5, 2015, the SEC adopted rules and forms governing the registration process for security-based swap dealers and major security-based swap…more

Broker-Dealer, CFTC, Chief Compliance Officers, Compliance, Federal Register

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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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Managing Litigation Risk: Critical Questions for Private Equity Professionals Serving on Portfolio Company Boards

Private equity funds, and individuals affiliated with fund sponsors, are increasingly being named as defendants in lawsuits involving their portfolio companies. This litigation risk arises most frequently where a fund controls…more

Board of Directors, C-Suite Executives, D&O Insurance, Fund Sponsors, Personal Liability

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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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Proposed Regulations Issued On Management Fee Waivers

On July 22, 2015, the U.S. Department of the Treasury and U.S. Internal Revenue Service issued proposed Treasury Regulations under Section 707(a)(2)(A) of the Internal Revenue Code of 1986, as amended, addressing management fee…more

Capital Gains, Deferred Compensation, Enterprise Risks, Fee Waivers, Fund Managers

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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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SEC Issues Interpretive Rule Regarding Definition of Dodd-Frank “Whistleblower”

In response to the disagreement amongst courts regarding the scope of Dodd-Frank’s employment retaliation protections, on August 4, 2015, the SEC issued an “interpretive rule” clarifying that individuals who have not reported…more

Anti-Retaliation Provisions, Dodd-Frank, Internal Reporting, Interpretive Rule, Investor Protection

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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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Second Circuit: FAA Mandates Stay of Claims Pending Arbitration

The Second Circuit recently held in Katz v. Cellco P’Ship d/b/a/ Verizon Wireless, Nos. 14-138, 14-291, 2015 WL 4528658 (2d Cir. July 28, 2015) that, under the Federal Arbitration Act (“FAA”), district courts must stay all…more

Appeals, Arbitration, Dismissals, Federal Arbitration Act, Motion To Stay

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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, 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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Eleventh Circuit Again Affirms Dismissal of Stock Drop Claim Against Delta Air Lines

The Eleventh Circuit affirmed dismissal of ERISA breach of fiduciary claims against Delta Air Lines and other alleged plan fiduciaries in connection with a defined contribution plan’s investments in Delta Air Lines stock. In…more

Breach of Duty, Delta Airlines, Duty of Prudence, ERISA, Fiduciaries

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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

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

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Scope of Attorney-Client Privilege And Work Product Doctrine In Internal Investigations Clarified

The scope of the attorney-client privilege and work product doctrine for internal investigation reports has once again been clarified by the D.C. Circuit in a False Claims Act case against defense contractor KBR, Inc. In its…more

Attorney-Client Privilege, Discovery, False Claims Act, Federal Rules of Evidence, Internal Investigations

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H-1B Update – Is an Employer Required to file an H-1B Amendment Petition Due to a Change in Work Location which Occurred Prior to the Simeio Decision? Maybe Not!

USCIS, on July 21, 2015, issued final guidance as to the implementation of Matter of Simeio Solutions, LLC (Simeio). The Simeio decision requires employers to file an amended H-1B petition anytime an employee is moved to another…more

Corporate Counsel, Employee Relocations, Final Guidance, H1-B, Labor Condition Applications

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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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Attorney General Issues Guidance On State Not-for-Profit Law

On April 13, 2015, the New York Attorney General’s office released two guidance documents addressing key provisions of the New York Not-for Profit Corporation Law (the N-PCL) enacted as part of the Non-profit Revitalization Act…more

Board of Directors, Conflicts of Interest, Corporate Officers, Exemptions, Good Faith

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India’s Sexual Harassment Law Invokes New Pitfalls for Employers

India recently enacted the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal Act) 2013, which protects all “aggrieved women” in the workplace from unlawful harassment. To be clear, the term…more

Employer Liability Issues, India, Sexual Harassment

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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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Proposed Treasury Regulations Aim to Curb Elective Treatment of M&A Transaction Costs

Some taxpayers have taken the position that an acquiring corporation and a target corporation, when the target corporation is joining the acquiring corporation's consolidated corporate group, can choose between taking certain…more

Corporate Taxes, Proposed Regulation, Subsidiaries, Target Company, U.S. Treasury

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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 IRS Guidance on 40% Excise Tax Previews Future Regulatory Complexity

Although public opposition to the 40% excise tax on high-cost health care is rapidly growing, the IRS continued to develop a regulatory framework for administration of the excise tax through its issuance of Notice 2015-52 on…more

Affordable Care Act, Comment Period, Employer Liability Issues, Excise Tax, Flexible Spending Accounts

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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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House Passes Veteran Preference Bill

Earlier this week, the House of Representatives unanimously approved a bill, titled the Boosting Rates of American Veteran Employment Act or “BRAVE Act.” The BRAVE Act authorizes the Department of Veterans Affairs (“VA”) to give…more

Federal Contractors, New Legislation, Public Procurement Policies, Veterans

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Alaska Department of Labor and U.S. DOL Agree to Work Together Against Misclassification

The U.S. Department of Labor (“U.S. DOL”) and the Alaska Department of Labor and Workforce Development recently signed a memorandum of understanding to share information and conduct joint investigations regarding independent…more

Alaska, DOL, Employer Liability Issues, Independent Contractors, Memorandum of Understanding

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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, Car Dealerships, CFRA, 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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Supreme Court Invalidates Los Angeles Law Authorizing Warrantless Searches of Hotel Records

In City of Los Angeles v. Patel, the Supreme Court invalidated a Los Angeles law that allowed law enforcement officials to inspect hotel and motel guest registries at any time, without a warrant or administrative subpoena. The…more

Business Records, City of Los Angeles, City of Los Angeles v Patel, Due Process, Fourth Amendment

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San Francisco Passes the “Retail Workers Bill of Rights”

San Francisco recently enacted two sweeping ordinances that are being referred to as the “Retail Workers Bill of Rights”. The new laws impose strict new requirements on retail employers and establishments in the City of San…more

Employee Rights, Employer Mandates, Local Ordinance, Retailers, San Francisco

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Seventh Circuit Rejects Court Challenge to Pending SEC Administrative Enforcement Proceeding

The U.S. Court of Appeals for the Seventh Circuit held yesterday that federal District Courts do not have subject-matter jurisdiction to entertain challenges to ongoing SEC administrative enforcement proceedings where the…more

Article II, Bebo v SEC, Cease and Desist, De Novo Standard of Review, Dodd-Frank

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Welcome Guidance on the Definition of Real Property for REITs Proposed by IRS

On May 9, 2014, the Department of Treasury and the Internal Revenue Service (the "IRS") released proposed regulations (the "Proposed Regulations") revising and clarifying the definition of real property for the purposes of the…more

IRS, Property Tax, Real Estate Investments, REIT

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New Stock Identification Requirements for New York Corporate Tax Exemption

Effective for tax years beginning on or after January 1, 2015, pursuant to legislation enacted last year, income from "investment capital" is exempt from New York State franchise tax for corporate taxpayers otherwise subject to…more

Capital Assets, Capital Gains, Capital Losses, Corporate Taxes, Dealers

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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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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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Delaware Senate Passes Bill Prohibiting Bylaws on Fee Shifting

Tuesday, the Delaware Senate passed legislation prohibiting publicly-traded corporations from adopting bylaws that force shareholders to pay legal fees if they bring internal corporate claims against the company in court and do…more

Attorney's Fees, Bylaws, Corporate Counsel, Delaware General Corporation Law, Fee-Shifting

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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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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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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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U.S. Access Board Releases the Latest in a Series of Guidance on Accessible Design Requirements Under the Americans with Disabilities Act

Retail stores, restaurants, event venues, and other places of public accommodation seeking guidance on accessible design requirements under the Americans with Disabilities Act (“ADA”) should be aware of the latest installment of…more

Accessibility Rules, ADA, Best Practices, Design Professionals, Disabilities

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SEC Amendments to Regulation A Create New Exemptions for Offerings up to $50 Million

On March 25, 2015, pursuant to a JOBS Act mandate, the SEC adopted amendments to Regulation A, exempting offerings now of up to $50 million and eliminating some of the impediments to use of the exemption…more

IPO, Issuers, JOBS Act, Regulation A, Reporting Requirements

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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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EEOC Releases Proposed Rule on Employee Wellness Plans

On April 16, 2015, the Equal Employment Opportunity Commission (EEOC) released a long awaited proposed rule on employee wellness programs. The rule is designed to help companies structure such programs to meet their obligations…more

ADA, Affordable Care Act, EEOC, HIPAA, Popular

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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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Proposed Regulations Issued On Management Fee Waivers

On July 22, 2015, the U.S. Department of the Treasury and U.S. Internal Revenue Service issued proposed Treasury Regulations under Section 707(a)(2)(A) of the Internal Revenue Code of 1986, as amended, addressing management fee…more

Capital Gains, Deferred Compensation, Enterprise Risks, Fee Waivers, Fund Managers

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Seventh Circuit Rejects Court Challenge to Pending SEC Administrative Enforcement Proceeding

The U.S. Court of Appeals for the Seventh Circuit held yesterday that federal District Courts do not have subject-matter jurisdiction to entertain challenges to ongoing SEC administrative enforcement proceedings where the…more

Article II, Bebo v SEC, Cease and Desist, De Novo Standard of Review, Dodd-Frank

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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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Proposed Regulations Issued On Management Fee Waivers

On July 22, 2015, the U.S. Department of the Treasury and U.S. Internal Revenue Service issued proposed Treasury Regulations under Section 707(a)(2)(A) of the Internal Revenue Code of 1986, as amended, addressing management fee…more

Capital Gains, Deferred Compensation, Enterprise Risks, Fee Waivers, Fund Managers

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Fifth Circuit Revives SOX Whistleblower Claim But Rejects Allegations Not Exhausted Before OSHA

In Wallace v. Tesoro Corp., the Fifth Circuit revived a SOX whistleblower complaint that was dismissed by the U.S. District Court for the Western District of Texas, finding that the plaintiff’s alleged belief that the company…more

Corporate Counsel, Federal Rule 12(b)(6), GAAP, Motion to Dismiss, OSHA

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Louis Berger International Pays $17 Million Penalty for FCPA Violation

On July 17, 2015, Louis Berger International, Inc., a New Jersey-based construction management company, entered into a deferred prosecution agreement (DPA) with the Department of Justice under which it agreed to pay a $17.1…more

Bribery, Compliance, Construction Contracts, Cooperation, Corporate Counsel

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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, 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 - June 2015

Jockeying for Dollars: Kentucky Downs Faces Two Lawsuits over Betting Machines - And they're off ... to the United States District Court for the Western District of Kentucky. One of the country's premier racetracks,…more

C-Suite Executives, Copyright, Copyright Infringement, Horse Racing, Misappropriation

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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 Sanctions Dark Pool Operator and Affiliated High Frequency Trader

In the latest round of regulatory action involving high frequency trading and dark pools, the SEC announced yesterday that it reached a settlement with ITG, Inc., and its affiliate Alternet Securities, Inc., imposing a $20.3…more

Algorithmic Trading, Alternative Trading Systems, Brokers, Compliance, Dark Pool

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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 Sanctions Dark Pool Operator and Affiliated High Frequency Trader

In the latest round of regulatory action involving high frequency trading and dark pools, the SEC announced yesterday that it reached a settlement with ITG, Inc., and its affiliate Alternet Securities, Inc., imposing a $20.3…more

Algorithmic Trading, Alternative Trading Systems, Brokers, Compliance, Dark Pool

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Three Point Shot - June 2015

Jockeying for Dollars: Kentucky Downs Faces Two Lawsuits over Betting Machines - And they're off ... to the United States District Court for the Western District of Kentucky. One of the country's premier racetracks,…more

C-Suite Executives, Copyright, Copyright Infringement, Horse Racing, Misappropriation

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Wealth Management Update - August 2015

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

American Taxpayer Relief Act, Choice-of-Law, Decanting, DSUEA, Estate Tax

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UK Summer Budget 2015 – Key Issues for Asset Managers and Non-UK Domiciled Individuals

On 8th July 2015, the UK Government announced several changes to UK tax legislation that will affect those holding carried interest in fund structures which utilise at least one partnership (including a limited partnership), and…more

Capital Gains, Carried Interest, Cost-Shifting, Foreign Investment, HMRC

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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

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

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Second Circuit: FAA Mandates Stay of Claims Pending Arbitration

The Second Circuit recently held in Katz v. Cellco P’Ship d/b/a/ Verizon Wireless, Nos. 14-138, 14-291, 2015 WL 4528658 (2d Cir. July 28, 2015) that, under the Federal Arbitration Act (“FAA”), district courts must stay all…more

Appeals, Arbitration, Dismissals, Federal Arbitration Act, Motion To Stay

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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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Cal. Court Limits Protected Activity Under Dodd-Frank Whistleblower Provision

In Nazif v. Computer Sciences Corporation, No. 13-cv-5498 (N.D. Cal. June 17, 2015), the Northern District of California granted Defendant Computer Sciences Corp. (Company) summary judgment on Plaintiff Nazif’s Dodd-Frank…more

Dodd-Frank, Retaliation, Sarbanes-Oxley, Securities Fraud, Summary Judgment

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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, Healthcare, Healthcare Professionals

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Connecticut Joins States That Protect Personal Online Accounts of Employees

Connecticut has joined a list of twenty-one states with a statute designed to preserve the privacy of personal online accounts of employees and limit the use of information related to such accounts in employment decision-making…more

Anti-Retaliation Provisions, Data Privacy, Email, Employee Privacy Rights, Employee Rights

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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 - August 2015

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

American Taxpayer Relief Act, Choice-of-Law, Decanting, DSUEA, Estate Tax

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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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Employers To Face More Concurrent EEOC and Tort Suits after Second Circuit Decision

Last week the U.S. Court of Appeals for the Second Circuit held that filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) does not toll the statute of limitations for state-law tort…more

Discrimination, EEOC, Sex Discrimination, Statute of Limitations

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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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Can Employees “Blow the Whistle” by Simply Working? EANJ says No.

On behalf of the Employers Association of New Jersey (“EANJ”), Proskauer attorneys Mark Saloman, Daniel Saperstein, Allana Grinshteyn, and Nicholas Tamburri submitted an amicus brief on an important whistleblowing issue pending…more

Employee Rights, Whistleblowers

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New York's Highest Court Sends Strong Signal That Insurance Companies Will Be Held To Their Coverage Obligations

On June 11, 2013, the New York Court of Appeals decided two groundbreaking insurance coverage cases on public policy grounds…more

Bear Sterns, Disgorgement, Duty to Defend, Indemnification, Insurers

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Expanded HSR Antitrust Reporting for Pharma Licensing Deals Is Here to Stay

On June 9, 2015, the U.S. Court of Appeals for the D.C. Circuit, in its ruling in Pharm. Research & Mfrs. of Am. v. FTC, upheld the FTC's expansion of HSR reporting requirements for pharmaceutical companies, and solidified the…more

Appeals, Disclosure Requirements, FTC, Hart-Scott-Rodino Act, Licensing Rights

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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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Traveling to the United States: Restricting the Visa Waiver Program While Expanding the Trusted Traveler Programs

The Department of Homeland Security continues in its attempts to balance security considerations and hospitality to foreign visitors. The fascinating dilemma it confronts can be highlighted by press releases issued on…more

Canada, DHS, International Travel, Mexico, Passports

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The Bryant Park Hotel Denied Preliminary Injunction in Trademark Dispute

The Bryant Park Hotel has been using its registered trademarks, including the well-known mark THE BRYANT PARK HOTEL, in connection with hotel, restaurant, and bar services since 2001, but U.S. District Judge Rakoff found that…more

Hospitality Industry, Hotels, Judge Rakoff, Likelihood of Confusion, Restaurant Industry

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New Stock Identification Requirements for New York Corporate Tax Exemption

Effective for tax years beginning on or after January 1, 2015, pursuant to legislation enacted last year, income from "investment capital" is exempt from New York State franchise tax for corporate taxpayers otherwise subject to…more

Capital Assets, Capital Gains, Capital Losses, Corporate Taxes, Dealers

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Maine Enacts Social Media Protections for Applicants and Employees

Effective as of October 15, 2015, employers in Maine will be restricted in their ability to access the personal social media accounts of applicants and employees. Specifically, under the new law, an employer may not..…more

Employee Privacy Rights, Employer Liability Issues, Job Applicants, New Legislation, Popular

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Managing Litigation Risk: Critical Questions for Private Equity Professionals Serving on Portfolio Company Boards

Private equity funds, and individuals affiliated with fund sponsors, are increasingly being named as defendants in lawsuits involving their portfolio companies. This litigation risk arises most frequently where a fund controls…more

Board of Directors, C-Suite Executives, D&O Insurance, Fund Sponsors, Personal Liability

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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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Proposed Treasury Regulations Aim to Curb Elective Treatment of M&A Transaction Costs

Some taxpayers have taken the position that an acquiring corporation and a target corporation, when the target corporation is joining the acquiring corporation's consolidated corporate group, can choose between taking certain…more

Corporate Taxes, Proposed Regulation, Subsidiaries, Target Company, U.S. Treasury

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Washington State Amends Breach Notification Law to Expand Notification Requirements

On April 23, 2015, Washington State Governor Jay Inslee signed into law a bill strengthening the state’s data breach notification law (amending Wash. Rev. Code §§ 19.255.010 and 42.56.590 and creating a new section). H.B. 1078…more

Amended Legislation, Breach Notification Rule, Data Breach, Governor Inslee

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OIG Issues Special Fraud Alert on Business Arrangements with Physician-Owned Entities

On March 26, the HHS Office of Inspector General (OIG) issued a Special Fraud Alert (Fraud Alert) reiterating its long-standing concern that the opportunity for a referring physician to earn a profit by investing in a venture…more

Anti-Kickback Statute, Fraud, Healthcare, Joint Venture, Medical Devices

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U.S. Sentencing Commission Approves Amending Sentencing Guidelines to Reduce Penalties for Economic Crimes

As previously reported, the United States Sentencing Commission has proposed amendments to the widely criticized federal sentencing guidelines for economic crimes. On April 9, 2015, after hearing extensive public comment on the…more

Amended Legislation, Federal Sentencing Guidelines, Fraud-on-the-Market, Sentencing Enhancements, White Collar Crimes

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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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ACT Report on IRS and Small Exempt Organizations

The Advisory Committee on Tax Exempt and Government Entities (ACT) has released its annual report and recommendations to the IRS on selected issues concerning exempt organizations, employee benefit plans, tax-exempt financing,…more

Exempt Organizations, IRS

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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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Second Circuit Clarifies Pleading Standard for Title VII Claims

A Second Circuit panel recently revived a former employee’s racial discrimination suit against New York City, reversing in part the Southern District of New York’s dismissal of her case. In Littlejohn v. City of New York,…more

Adverse Employment Action, Corporate Counsel, Demotions, EEOC, Employee Rights

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Governor Cuomo Announces New Waiver Addressing Critical Issues in New York State Health Care System through DSRIP Program

On April 14, 2014, Governor Andrew Cuomo announced that New York has finalized terms and conditions with the federal government for a waiver that will allow the state to reinvest the $8 billion in federal savings from the…more

CMS, Healthcare, Hospitals, Medicaid, Waivers

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The ERISA Litigation Newsletter - February 2015

The Supreme Court cast a ray of sunlight for employers by rejecting the use of a problematic inference in adjudicating claims for retiree benefits brought pursuant to collective bargaining agreements. For many years, the Sixth…more

Employer Group Health Plans, Employer Healthcare Costs, Health Insurance, M&G Polymers v Tackett, Retirement

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Proposed Regulations Issued On Management Fee Waivers

On July 22, 2015, the U.S. Department of the Treasury and U.S. Internal Revenue Service issued proposed Treasury Regulations under Section 707(a)(2)(A) of the Internal Revenue Code of 1986, as amended, addressing management fee…more

Capital Gains, Deferred Compensation, Enterprise Risks, Fee Waivers, Fund Managers

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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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Wealth Management Update - September 2013

The September §7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 2.0%, which is the same as the August rate and an increase from July's rate of 1.2%. The applicable federal rate ("AFR") for…more

Estate Planning, Grantor Trusts, IRS, Trusts

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The Bryant Park Hotel Denied Preliminary Injunction in Trademark Dispute

The Bryant Park Hotel has been using its registered trademarks, including the well-known mark THE BRYANT PARK HOTEL, in connection with hotel, restaurant, and bar services since 2001, but U.S. District Judge Rakoff found that…more

Hospitality Industry, Hotels, Judge Rakoff, Likelihood of Confusion, Restaurant Industry

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A Woolley Situation: District of New Jersey Refuses to Enforce Arbitration Clause in Employee Handbook

New Jersey employers should consider the risks of including an arbitration agreement in a standard employment handbook in light of a recent decision by the United States District Court for the District of New Jersey. In Raymours…more

Arbitration, Employee Handbooks, Mandatory Arbitration Clauses

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Anti-Discrimination and Anti-Retaliation Policies Save Employer from $3.5 Million Punitive Damages Award

On January 7, 2015, the U.S. District Court for the District of Puerto Rico issued an opinion overturning a jury’s $3.5 million punitive damages award for retaliation claims brought under Title VII and Puerto Rico law, finding…more

Anti-Discrimination Policies, Anti-Retaliation Provisions, Corporate Counsel, Employer Liability Issues, Employment Policies

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Welcome Guidance on the Definition of Real Property for REITs Proposed by IRS

On May 9, 2014, the Department of Treasury and the Internal Revenue Service (the "IRS") released proposed regulations (the "Proposed Regulations") revising and clarifying the definition of real property for the purposes of the…more

IRS, Property Tax, Real Estate Investments, REIT

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Second Circuit: FAA Mandates Stay of Claims Pending Arbitration

The Second Circuit recently held in Katz v. Cellco P’Ship d/b/a/ Verizon Wireless, Nos. 14-138, 14-291, 2015 WL 4528658 (2d Cir. July 28, 2015) that, under the Federal Arbitration Act (“FAA”), district courts must stay all…more

Appeals, Arbitration, Dismissals, Federal Arbitration Act, Motion To Stay

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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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First Federal Appellate Court Holds a NonCash Reverse Payment Subject to Antitrust Scrutiny: Is the Third Circuit's Decision in King Drug a Turning Point?

Recently, the Third Circuit issued the first federal appellate decision interpreting the Supreme Court's landmark decision in FTC v. Actavis, Inc.[1], potentially greatly expanding the scope of settling parties in reverse…more

ANDA, Drug Manufacturers, Exclusivity, FDA, FTC

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Biosimilars Update

Novartis came one step closer to becoming the first company to offer a biosimilar drug for sale in the United States. Last month, an independent panel voted 14-0 to recommend FDA approval of Sandoz’s (Novartis’ generics…more

Article III, Biosimilars, BPCIA, Declaratory Judgments, FDA

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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

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

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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, Antitrust Provisions, DOJ, FTC, Professional Conferences

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California Breaks New Ground in Education Privacy Law with K-12 Student Data Privacy Bill

A substantial rise in schools’ use of online educational technology products has caused educators to become increasingly reliant on these products to develop their curricula, deliver materials to students in real time, and…more

Cloud Computing, Data Protection, New Legislation, Privacy Laws, Public Schools

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Proposed Regulations Issued On Management Fee Waivers

On July 22, 2015, the U.S. Department of the Treasury and U.S. Internal Revenue Service issued proposed Treasury Regulations under Section 707(a)(2)(A) of the Internal Revenue Code of 1986, as amended, addressing management fee…more

Capital Gains, Deferred Compensation, Enterprise Risks, Fee Waivers, Fund Managers

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Beer-Maker Puts an End to Brewhaha: Anheuser Busch Agrees to Settle Second of Two Class Action Lawsuits over Beer Origin Disclaimers

Anheuser Busch recently agreed to settle a consumer class action over Beck’s Beer labeling that we previously reported on with regard to the uptick in consumer class actions proceeding past the pleading stage in the Southern…more

Anheuser-Busch, Attorney's Fees, Class Action, False Advertising, Injunctions

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Proposed Regulations Issued On Management Fee Waivers

On July 22, 2015, the U.S. Department of the Treasury and U.S. Internal Revenue Service issued proposed Treasury Regulations under Section 707(a)(2)(A) of the Internal Revenue Code of 1986, as amended, addressing management fee…more

Capital Gains, Deferred Compensation, Enterprise Risks, Fee Waivers, Fund Managers

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Beer-Maker Puts an End to Brewhaha: Anheuser Busch Agrees to Settle Second of Two Class Action Lawsuits over Beer Origin Disclaimers

Anheuser Busch recently agreed to settle a consumer class action over Beck’s Beer labeling that we previously reported on with regard to the uptick in consumer class actions proceeding past the pleading stage in the Southern…more

Anheuser-Busch, Attorney's Fees, Class Action, False Advertising, Injunctions

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Wealth Management Update - August 2015

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

American Taxpayer Relief Act, Choice-of-Law, Decanting, DSUEA, Estate Tax

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First Federal Appellate Court Holds a NonCash Reverse Payment Subject to Antitrust Scrutiny: Is the Third Circuit's Decision in King Drug a Turning Point?

Recently, the Third Circuit issued the first federal appellate decision interpreting the Supreme Court's landmark decision in FTC v. Actavis, Inc.[1], potentially greatly expanding the scope of settling parties in reverse…more

ANDA, Drug Manufacturers, Exclusivity, FDA, FTC

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Three Point Shot - June 2015

Jockeying for Dollars: Kentucky Downs Faces Two Lawsuits over Betting Machines - And they're off ... to the United States District Court for the Western District of Kentucky. One of the country's premier racetracks,…more

C-Suite Executives, Copyright, Copyright Infringement, Horse Racing, Misappropriation

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