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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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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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OFCCP to Publicize New Affirmative Action Requirements

Speaking to employers during a June 6 affirmative action conference, the Office of Federal Contract Compliance Programs (“OFCCP”) Director Patricia Shiu announced the agency’s plan to launch a public service announcement (PSA)…more

ADA, Affirmative Action, OFCCP, PSA, Rehabilitation Act

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President Obama Amends Executive Order 11246 to Protect LGBT Workers of Government Contractors from Discrimination

As the White House announced last month, President Obama signed yesterday an Executive Order that bans workplace discrimination against lesbian, gay, bisexual, and transgender (“LGBT”) workers of federal contractors. Executive…more

Barack Obama, Burwell v Hobby Lobby, Discrimination, DOL, Employer Liability Issues

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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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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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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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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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Presumption of Reliance Survives in Securities Cases, But Defendants Can Dispute Price Impact at Class Certification

The U.S. Supreme Court yesterday declined to abandon the efficient-market theory, with its rebuttable presumption of reliance that enables securities class actions to proceed without proof of actual reliance on alleged…more

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

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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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E.D. Pennsylvania Limits Supreme Court’s SOX Whistleblower Decision

In a case of first impression, the U.S. District Court for the Eastern District of Pennsylvania ruled that the U.S. Supreme Court’s holding in Lawson v. FMR LLC, 134 S. Ct. 1158 (2014)—that the whistleblower protection provision…more

FMR LLC, Fraud, Lawson v FMR, Sarbanes-Oxley, SCOTUS

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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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Hobby Lobby: The Supreme Court’s View and Its Impact

For the second time in two years the United States Supreme Court (the “Court”) has ruled against the Obama Administration with respect to elements of the Affordable Care Act (the “ACA”). In a 5-4 decision announced today in…more

Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Contraceptives, Hobby Lobby, Religious Exemption

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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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Massachusetts Paid Sick Time

Rhode Island recently has followed Connecticut in mandating paid sick time, and now bills pending in Massachusetts and Vermont may spread the requirement through New England. New York and the District of Columbia also recently…more

Employee Rights, Paid Leave, Sick Leave

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Three Point Shot - June 2014

Federal Circuit Leaves Cobra Golf Co. in the Rough - It's dormie. On Eighteen. You're in great shape, having hit a solid drive, leaving yourself a fairway lie and a mid-iron into a back-right Sunday pin. Feeling good…more

Infringement, Laches, Nike, Petrella v. MGM, Raging Bull

See All Updates »

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

See All Updates »

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 Adopts "But For" Causation Standard for Title VII Retaliation Claims

On June 24, 2013, the Supreme Court ruled that a plaintiff in a Title VII retaliation case must prove that the retaliation was the "but for" cause of the employer's adverse action. University of Texas S.W. Med. Ctr. v. Nassar,…more

But For Causation, Discrimination, Racial Discrimination, Religious Discrimination, Retaliation

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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

See All Updates »

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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President Obama Amends Executive Order 11246 to Protect LGBT Workers of Government Contractors from Discrimination

As the White House announced last month, President Obama signed yesterday an Executive Order that bans workplace discrimination against lesbian, gay, bisexual, and transgender (“LGBT”) workers of federal contractors. Executive…more

Barack Obama, Burwell v Hobby Lobby, Discrimination, DOL, Employer Liability Issues

See All Updates »

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

See All Updates »

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

See All Updates »

New York Court of Appeals Clarifies Important Questions about Tip-sharing Statute

On June 26, 2013, New York's highest court for the first time weighed in and ruled on what types of employees are qualified to participate in tip-splitting or tip-pooling arrangements under the New York Labor Law, as well as the…more

DOL, Restaurant Industry, Tip-Pooling, Wages

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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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Death, Taxes and …ERISA Disclosure Regulations?

There are few sure things in life, and although it is probably safe to say that ERISA disclosure regulations would not be considered one of them, there has certainly been a steady stream of new ERISA-related disclosure and…more

401k, Disclosure Requirements, DOL, ERISA, Form

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Advisory Committee on Tax Exempt and Government Entities Makes Recommendations on Reporting of Unrelated Business Taxable Income

The Advisory Committee on Tax Exempt and Government Entities (“ACT”), an IRS advisory panel, made several recommendations on issues relating to unrelated business taxable income (“UBTI”) in its annual report to the IRS (the…more

Government Entities, IRS, Tax Exempt Entities, UBTI

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Court Holds That Prior Notice is Required to Record Cell Phone Conversations

Last month, a federal district court in the Northern District of California issued an order that may affect the policies of any company that records telephone conversations with consumers. The trouble began when plaintiff…more

Audio Recording, Notice Requirements

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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 - July 2014

"Unauthorized Alien" Who Provided False SSN Can Proceed With Disability Discrimination Lawsuit - Salas v. Sierra Chem. Co., 2014 WL 2883878 (Cal. S. Ct. 2014) Vicente Salas worked on Sierra Chemical's production…more

Adverse Employment Action, Age Discrimination, Anti-SLAPP, Car Accident, Class Action

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Cracking Under Pressure: “Raw” Juice Class Action down the Drain after Plaintiffs Cite Articles that Squeeze the Life out of their Complaint

On July 2, 2014 Judge Vince Chhabria dismissed a class action alleging that Hain Celestial Group, a manufacturer of “raw” juices, misleadingly labelled and advertised its wares. This dismissal is noteworthy – and should stand as…more

Class Action, Food Labeling

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S.D.N.Y. Takes Broad Approach To SOX and Dodd-Frank Whistleblower Claims

The U.S. District Court for the Southern District of New York recently denied a motion to dismiss a plaintiff’s SOX and Dodd-Frank whistleblower claims, ruling that (i) the plaintiff engaged in SOX protected activity even though…more

Dodd-Frank, Sarbanes-Oxley, Whistleblower Protection Policies, Whistleblowers

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The ERISA Litigation Newsletter - May 2014

Editor's Overview - This month our authors explore two important areas of ERISA's fiduciary duties applicable to single employer and multiemployer plans. First, Neal Schelberg and Aaron Feuer comment on a growing trend by…more

Bankruptcy Code, Collective Bargaining, Employer Contributions, Employer Liability Issues, ERISA

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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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Private Fund Managers Be Aware: FCPA Enforcement Is Coming Your Way

The increased globalization of the private investment industry has given rise to an enhanced focus by U.S. prosecutors and regulators on rooting out corrupt business activities in private equity firms and hedge funds. As private…more

Compliance, Enforcement Actions, FCPA, Fund Managers

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Three Point Shot - June 2014

Federal Circuit Leaves Cobra Golf Co. in the Rough - It's dormie. On Eighteen. You're in great shape, having hit a solid drive, leaving yourself a fairway lie and a mid-iron into a back-right Sunday pin. Feeling good…more

Infringement, Laches, Nike, Petrella v. MGM, Raging Bull

See All Updates »

The SEC Provides Guidance on the Use of Social Media for Public Company Disclosure

On April 2, 2013, the Securities and Exchange Commission issued a "report of investigation" that provides important guidance for companies that wish to use social media outlets, such as Facebook and Twitter, to publicly disclose…more

Facebook, Netflix, Public Disclosure, Reed Hastings, Regulation FD

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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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Treatment of Foreign Banks under Section 716 of the Dodd-Frank Act and Related Push-Out Provisions

Last month, the Federal Reserve Board issued an Interim Final Rule that treats uninsured U.S. branches and agencies of foreign banks the same as insured depository institutions ("IDIs") for purposes of Section 716 of the…more

Banks, CFTC, Compliance, Dodd-Frank, Federal Reserve

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The ERISA Litigation Newsletter - July 2014

Editor's Overview - The end of the U.S. Supreme Court's term brought two significant ERISA decisions. The first concerns the standard of review that courts apply when evaluating ERISA stock-drop claims. As discussed…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Employer Mandates, ERISA

See All Updates »

More Post-Windsor Tax Guidance: IRS Issues Letter Outlining Steps for Individuals to Obtain Tax Refunds for Same-Sex Spousal Health Coverage

On June 27, 2014, the IRS published a letter outlining the steps taxpayers should take in order to obtain a refund for taxes paid on the value of employer-sponsored health coverage provided to an employee’s same-sex spouse. The…more

Employer Group Health Plans, Interpretive Letters, IRS, Same-Sex Marriage, Tax Refunds

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SEC Brings First Dodd-Frank Anti-Retaliation Case

The SEC recently issued an Order against Paradigm Capital Management, Inc. (Paradigm), a registered investment adviser, and its principal for allegedly engaging in principal trades without effective client disclosure and…more

Dodd-Frank, Enforcement Actions, Retaliation, SEC

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Plan Sponsors’ Decision to Change Form of Employer Contributions Not A Fiduciary Function

The Second Circuit recently held that Morgan Stanley and others were not de facto ERISA fiduciaries by virtue of having authority and means to fund company contributions with stock rather than cash. In so ruling, the Court…more

Benefit Plan Sponsors, Employee Benefits, ERISA, Morgan Stanley

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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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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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Equitable Surcharge Awarded to Life Insurance Plan Beneficiary

A federal district court in California awarded relief in the form of surcharge to a life insurance plan beneficiary who claimed that a plan administrator failed to provide complete and accurate information in response to…more

Beneficiaries, Equitable Surcharge, Life Insurance

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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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UPDATE: U.S. Supreme Court Will Decide What Preclusive Effect, If Any, Should Be Given to Likelihood of Confusion Findings by the Trademark Trial and Appeal Board

As we reported in our May 29 client alert, the Solicitor General submitted an amicus brief recommending that the Supreme Court grant a petition for certiorari seeking a determination of whether likelihood of confusion findings…more

Certiorari, Claim Preclusion, Likelihood of Confusion, SCOTUS, Trademark Litigation

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DHS Announces New Rules To Facilitate Employment for Professionals in Efforts To Attract and Retain Highly Skilled Foreign Workers

With immigration reform at a standstill, the Obama administration is taking steps to help businesses attract and retain professionals working in the U.S. The Department of Homeland Security (DHS) announced two major advancements…more

CW-1, DHS, E-3, H-1B, H-1B1

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California Judiciary, not Governor, Leading Effort to Reign in Proposition 65 Abuse

Earlier this year, we reported on California Governor Edmund Brown's call for reform of the state's Safe Drinking Water and Toxic Enforcement Act of 1986 – better known as Proposition 65, the number of the ballot initiative that…more

Ballot Measures, Drinking Water, Jerry Brown, Proposed Amendments, Proposition 65

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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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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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The ERISA Litigation Newsletter - July 2014

Editor's Overview - The end of the U.S. Supreme Court's term brought two significant ERISA decisions. The first concerns the standard of review that courts apply when evaluating ERISA stock-drop claims. As discussed…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Employer Mandates, ERISA

See All Updates »

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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Second Circuit Finds Fair Use Doctrine Protects Digital Book Scanning from Copyright Infringement

On June 10, 2014, the U.S. Court of Appeals for the Second Circuit issued a notable opinion on the contours of the copyright law's fair use doctrine in the digital era. (Authors Guild, Inc. v. HathiTrust, No. 12-4547-cv, 2014 WL…more

Authors Guild, Books, Copyright, Copyright Infringement, Fair Use

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The ERISA Litigation Newsletter - May 2013

This month our articles focus on the availability of damages in complex ERISA class actions and withdrawal liability actions. Jackie Len first provides Proskauer's perspective on the implications for ERISA litigation arising out…more

403(b) Plans, Affordable Care Act, Class Action, Class Certification, Comcast v. Behrend

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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

See All Updates »

President Obama Amends Executive Order 11246 to Protect LGBT Workers of Government Contractors from Discrimination

As the White House announced last month, President Obama signed yesterday an Executive Order that bans workplace discrimination against lesbian, gay, bisexual, and transgender (“LGBT”) workers of federal contractors. Executive…more

Barack Obama, Burwell v Hobby Lobby, Discrimination, DOL, Employer Liability Issues

See All Updates »

Connecticut Moves Toward Highest Minimum Wage of Any State in the Country

On March 27, 2014, Connecticut Governor Dannel Malloy signed a law that is poised to make Connecticut's minimum wage the highest of any state in the nation by 2017 (if no other state enacts a higher wage in the interim)…more

Minimum Wage, Over-Time

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California Employment Law Notes - July 2014

"Unauthorized Alien" Who Provided False SSN Can Proceed With Disability Discrimination Lawsuit - Salas v. Sierra Chem. Co., 2014 WL 2883878 (Cal. S. Ct. 2014) Vicente Salas worked on Sierra Chemical's production…more

Adverse Employment Action, Age Discrimination, Anti-SLAPP, Car Accident, Class Action

See All Updates »

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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Governor Brown Signs New Laws Affecting California Employers

Gov. Brown has signed into law a measure that will increase California’s minimum wage from $8.00 per hour to $9.00 per hour on July 1, 2014, and to $10.00 per hour on January 1, 2016. So, California employers must prepare for a…more

Domestic Workers, Jerry Brown, Minimum Wage, Over-Time, Paid Leave

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Presumption of Reliance Survives in Securities Cases, But Defendants Can Dispute Price Impact at Class Certification

The U.S. Supreme Court yesterday declined to abandon the efficient-market theory, with its rebuttable presumption of reliance that enables securities class actions to proceed without proof of actual reliance on alleged…more

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

See All Updates »

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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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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Texas Federal Court Dismisses FCA Claims As Insufficiently Pled

In U.S. ex rel. Williams v. McKesson Corp., No. 3:12-CV-0371-B (N.D. Tex. July 9, 2014), a Texas federal court recently dismissed a qui tam whistleblower suit by a former employee of McKesson, a Texas-based entity that provides…more

False Claims Act, Fraud, Healthcare, Healthcare Fraud, McKesson Technologies

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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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The ERISA Litigation Newsletter - October 2013

This month we return to the age-old question – "What makes someone a fiduciary?" As Nicole Eichberger explains, the Seventh Circuit reminded us that the meaning of a "functional fiduciary" depends on exercise/conduct in relation…more

DOL, DOMA, Employee Benefits, ERISA, Fiduciary Duty

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New Jersey Employers Must Display Two Updated Posters

The New Jersey Department of Labor and Workforce Development ("Department") recently updated two of the posters that employers must conspicuously display in the workplace. The first updated poster—the New Jersey State Wage and…more

Employee Rights, NLRB, Wage and Hour

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IRS Says PCORI Fees Are Deductible

As employers plan for paying various health care reform fees, one question that arises is whether the fees owed are tax deductible. In particular, it has been unclear whether the fees paid pursuant the Affordable Care Act to…more

Affordable Care Act, Fees, Form 720, Healthcare, IRS

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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

Applied Signal Tech, Discrimination, Gender Discrimination, Hiring & Firing, Internal Investigations

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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

Cause Theory, Number of Occurences, Time and Space Test

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Fourth Circuit Finds District Court Erroneously Applied Wal-Mart Stores, Inc. v. Dukes In Denying Leave to Amend Complaint in Pay Discrimination Suit

In its recent decision in Scott v. Family Dollar Stores, Inc., No. 12-1610 (4th Cir. Oct. 16, 2013), the Fourth Circuit ruled that the district court abused its discretion by refusing to allow plaintiffs asserting claims of…more

Class Certification, Commonality, Dukes v Wal-Mart, Gender Discrimination, Gender-Based Pay Discrimination

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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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DC Circuit Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

A federal appeals court has rebuffed the NLRB's attempt to require employers to post in a "conspicuous" place in a workplace a poster that informs employees of their rights under the National Labor Relations Act. The NLRB's rule…more

Free Speech, NLRA, NLRB, Notice Requirements, Posting Requirements

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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

See All Updates »

More Post-Windsor Tax Guidance: IRS Issues Letter Outlining Steps for Individuals to Obtain Tax Refunds for Same-Sex Spousal Health Coverage

On June 27, 2014, the IRS published a letter outlining the steps taxpayers should take in order to obtain a refund for taxes paid on the value of employer-sponsored health coverage provided to an employee’s same-sex spouse. The…more

Employer Group Health Plans, Interpretive Letters, IRS, Same-Sex Marriage, Tax Refunds

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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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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, FSDC, Insolvency, Nortel, Pensions

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Presumption of Reliance Survives in Securities Cases, But Defendants Can Dispute Price Impact at Class Certification

The U.S. Supreme Court yesterday declined to abandon the efficient-market theory, with its rebuttable presumption of reliance that enables securities class actions to proceed without proof of actual reliance on alleged…more

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

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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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Unpaid Employer Contributions as Plan Assets: Expansion Of Liability Under ERISA

The Employee Retirement Income Security Act of 1974, as amended (“ERISA”), requires trustees of multiemployer pension and benefit funds to collect contributions required to be made by contributing employers under their…more

CBAs, Commercial Bankruptcy, Employee Benefits, Employer Contributions, Employer Liability Issues

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Fifth Circuit: FCA Inapplicable to Claims Involving Private Funds Administered by Government-Created Programs

In United States of America ex rel Rene Shupe v. Cisco Systems, Inc. and Avnet, Inc., No. 13-40807 (5th Cir. July 7, 2014), the Fifth Circuit reversed a district court’s order denying a motion to dismiss a qui tam whistleblower…more

Cisco, False Claims Act, Private Funds, Qui Tam, Telecommunications

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More Post-Windsor Tax Guidance: IRS Issues Letter Outlining Steps for Individuals to Obtain Tax Refunds for Same-Sex Spousal Health Coverage

On June 27, 2014, the IRS published a letter outlining the steps taxpayers should take in order to obtain a refund for taxes paid on the value of employer-sponsored health coverage provided to an employee’s same-sex spouse. The…more

Employer Group Health Plans, Interpretive Letters, IRS, Same-Sex Marriage, Tax Refunds

See All Updates »

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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Three Point Shot - June 2014

Federal Circuit Leaves Cobra Golf Co. in the Rough - It's dormie. On Eighteen. You're in great shape, having hit a solid drive, leaving yourself a fairway lie and a mid-iron into a back-right Sunday pin. Feeling good…more

Infringement, Laches, Nike, Petrella v. MGM, Raging Bull

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Unemployment Laws Have New Teeth under the Integrity Act: Are You Ready?

In 2011, President Obama signed the Unemployment Insurance Integrity Act (the "Act") as part of the enactment of the Trade Adjustment Assistance Extension Act of 2011 (“TAAEA”). The Act, which is a subsection of the Federal…more

Compliance, FUTA, TAAEA, Unemployment Insurance, Unemployment Insurance Integrity Act

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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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Three Point Shot - June 2014

Federal Circuit Leaves Cobra Golf Co. in the Rough - It's dormie. On Eighteen. You're in great shape, having hit a solid drive, leaving yourself a fairway lie and a mid-iron into a back-right Sunday pin. Feeling good…more

Infringement, Laches, Nike, Petrella v. MGM, Raging Bull

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Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

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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

Cause Theory, Number of Occurences, Time and Space Test

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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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Delaware Supreme Court Issues Decision Upholding Collateral Estoppel in Shareholder Derivative Actions

The Delaware Supreme Court issued a decision on April 4, 2013, in Pyott v. Louisiana Municipal Police Employees' Retirement System concerning duplicative shareholder derivative actions and the "race to the courthouse" that often…more

Board of Directors, Collateral Estoppel, Derivative Suit, Full Faith and Credit, Pre-Suit Notice

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Trade Dress Can Be Viable Means of Protecting Websites from Competitor’s Look-Alike Sites

Somewhere between a well-recognized website design like Google’s home page and a fledgling e-commerce venture built with free web building software lives most other websites. Depending on the investment in the development and…more

Infringement, Trade Dress, Trademarks, Website Design, Websites

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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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The ERISA Litigation Newsletter - August 2013

In this month's newsletter we address ten important issues to consider when drafting and amending a summary plan description…more

ERISA, Litigation Strategies, Summary Plan Description

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Rebuking “Trial by Formula,” Federal Court Decertifies Rule 23(b)(3) Class Action

In Stiller v. Costco Wholesale Corp., No. 3:09-cv-2473-GPC-BGS, Plaintiffs Eric Stiller and Joseph Moro alleged that Costco’s loss-prevention closing procedures effectively “forced” employees to work off-the clock without…more

Class Action, Class Certification, Costco, Employer Liability Issues, Loss Prevention

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Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

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DC Circuit Rejects Narrow View Of Attorney-Client Privilege In Internal Company Investigations

On June 27, 2014, the D.C. Circuit granted Kellogg Brown & Root’s (“KBR’s”) petition for a writ of mandamus and vacated a federal district court order requiring KBR to produce 89 documents related to an internal investigation…more

Attorney-Client Privilege, False Claims Act, Internal Investigations, Kellogg Brown & Root, Upjohn Warnings

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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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FINRA Alerts Investors to Bitcoin Risks

Bitcoin remains fixed on the front pages of the business and technology news for both the salacious and the positive. Much attention has been paid to the collapse of the former top bitcoin exchange, Mt. Gox, stemming from the…more

Bitcoins, FINRA, Virtual Currency

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DHS Announces New Rules To Facilitate Employment for Professionals in Efforts To Attract and Retain Highly Skilled Foreign Workers

With immigration reform at a standstill, the Obama administration is taking steps to help businesses attract and retain professionals working in the U.S. The Department of Homeland Security (DHS) announced two major advancements…more

CW-1, DHS, E-3, H-1B, H-1B1

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Second Circuit Finds Fair Use Doctrine Protects Digital Book Scanning from Copyright Infringement

On June 10, 2014, the U.S. Court of Appeals for the Second Circuit issued a notable opinion on the contours of the copyright law's fair use doctrine in the digital era. (Authors Guild, Inc. v. HathiTrust, No. 12-4547-cv, 2014 WL…more

Authors Guild, Books, Copyright, Copyright Infringement, Fair Use

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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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Final Regulations on Orientation Periods Released

On June 20, the Federal regulatory agencies in charge of health care reform guidance (the Departments of Labor, Treasury, and Health and Human Services) released final regulations (“Final Regulations”) clarifying the…more

Affordable Care Act, DOL, Eligibility, Employer Group Health Plans, Final Rules

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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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Private Fund Managers Be Aware: FCPA Enforcement Is Coming Your Way

The increased globalization of the private investment industry has given rise to an enhanced focus by U.S. prosecutors and regulators on rooting out corrupt business activities in private equity firms and hedge funds. As private…more

Compliance, Enforcement Actions, FCPA, Fund Managers

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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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San Francisco "Bans the Box" for Private Employers and City Contractors

The Mayor of San Francisco recently signed an ordinance that prohibits private employers and city contractors and subcontractors (collectively "contractors") from asking job applicants about their criminal histories until after…more

Arrest and Conviction Records, Ban the Box, Criminal Background Checks, Employment Application, Hiring & Firing

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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 - January 2014

This month we look at part three of our three part series on Class Actions. In part three, Robert Rachal and M. Todd Mobley address the role of experts in class certification post Wal-Mart and Comcast and how to use and attack…more

Blue Cross, Burden of Proof, Cafeteria Plans, Class Action, Class Certification

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The ERISA Litigation Newsletter - July 2014

Editor's Overview - The end of the U.S. Supreme Court's term brought two significant ERISA decisions. The first concerns the standard of review that courts apply when evaluating ERISA stock-drop claims. As discussed…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Employer Mandates, ERISA

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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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Hong Kong – Applying Securities Laws to Sales of Hotel Units

In a move that represents a first in Hong Kong, one of the territory's largest listed property developers, Cheung Kong (Holdings) Limited and certain of its subsidiaries have entered into an agreement with the Securities and…more

China, Hong Kong, Hotels, REIT, SFC

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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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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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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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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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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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Federal Trade Commission Announces 2014 Threshold Revisions for HSR Act and for Clayton Act Section 8 Prohibition on Interlocking Directorates

The Hart-Scott-Rodino Antitrust Improvements Act of 1976, commonly known as the HSR Act, requires parties to certain corporate transactions to notify the Federal Trade Commission and Department of Justice, and to observe a…more

Acquisitions, FTC, Hart-Scott-Rodino Act, Interlocking Directorate, Mergers

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Cracking Under Pressure: “Raw” Juice Class Action down the Drain after Plaintiffs Cite Articles that Squeeze the Life out of their Complaint

On July 2, 2014 Judge Vince Chhabria dismissed a class action alleging that Hain Celestial Group, a manufacturer of “raw” juices, misleadingly labelled and advertised its wares. This dismissal is noteworthy – and should stand as…more

Class Action, Food Labeling

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Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

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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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Three Point Shot - June 2014

Federal Circuit Leaves Cobra Golf Co. in the Rough - It's dormie. On Eighteen. You're in great shape, having hit a solid drive, leaving yourself a fairway lie and a mid-iron into a back-right Sunday pin. Feeling good…more

Infringement, Laches, Nike, Petrella v. MGM, Raging Bull

See All Updates »

Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

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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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Senator Grassley Seeks to Form Whistleblower Caucus

On the 25th anniversary of the Whistleblower Protection Act of 1989, co-author Senator Grassley announced that he would be seeking to form a new whistleblower caucus among colleagues in the Senate. In an address on the Senate…more

False Claims Act, Legislative Agendas, Whistleblower Protection Enhancement Act

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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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California Judiciary, not Governor, Leading Effort to Reign in Proposition 65 Abuse

Earlier this year, we reported on California Governor Edmund Brown's call for reform of the state's Safe Drinking Water and Toxic Enforcement Act of 1986 – better known as Proposition 65, the number of the ballot initiative that…more

Ballot Measures, Drinking Water, Jerry Brown, Proposed Amendments, Proposition 65

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Federal Trade Commission Announces 2014 Threshold Revisions for HSR Act and for Clayton Act Section 8 Prohibition on Interlocking Directorates

The Hart-Scott-Rodino Antitrust Improvements Act of 1976, commonly known as the HSR Act, requires parties to certain corporate transactions to notify the Federal Trade Commission and Department of Justice, and to observe a…more

Acquisitions, FTC, Hart-Scott-Rodino Act, Interlocking Directorate, Mergers

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Deadlines Approaching for Employer Return Requirements for ISOs and ESPPs – Reporting Requirements for 2014

Section 6039 of the Internal Revenue Code of 1986, as amended (the "Code"), requires corporations to furnish information statements to their employees (including former employees) and to the Internal Revenue Service ("IRS") with…more

Deadlines, Employee Stock Purchase Plans, Incentive Stock Options, IRS, Reporting Requirements

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Federal Trade Commission Announces 2014 Threshold Revisions for HSR Act and for Clayton Act Section 8 Prohibition on Interlocking Directorates

The Hart-Scott-Rodino Antitrust Improvements Act of 1976, commonly known as the HSR Act, requires parties to certain corporate transactions to notify the Federal Trade Commission and Department of Justice, and to observe a…more

Acquisitions, FTC, Hart-Scott-Rodino Act, Interlocking Directorate, Mergers

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Treatment of Foreign Banks under Section 716 of the Dodd-Frank Act and Related Push-Out Provisions

Last month, the Federal Reserve Board issued an Interim Final Rule that treats uninsured U.S. branches and agencies of foreign banks the same as insured depository institutions ("IDIs") for purposes of Section 716 of the…more

Banks, CFTC, Compliance, Dodd-Frank, Federal Reserve

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FINRA: The FAA Requires Enforcement of Judicial Class Action Waiver in Pre-Dispute Arbitration Agreement But Does Not Preempt FINRA Rules Permitting Consolidation of Multiple Parties' Claims

On February 21, 2013, the Financial Industry Regulatory Authority (FINRA) issued a written decision finding that the Federal Arbitration Act (FAA) bars FINRA from enforcing FINRA Rules intended to preserve judicial class actions…more

Arbitration, Case Consolidation, Class Action, Federal Arbitration Act, FINRA

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Policyholders Beware: New York Court Finds Policyholder Forfeited Excess Coverage By Settling With Underlying Carriers For Less Than Full Limits

Many excess insurance policies provide that coverage is not available unless all underlying insurers have first paid the full limits of their policies. Relying on such language, excess insurers argue that when a policyholder…more

Excess Policies, Forfeiture, Insurers, Policy Limits

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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

Cause Theory, Number of Occurences, Time and Space Test

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Final Regulations for the Mental Health Parity and Addiction Equity Act of 2008

On November 8, 2013, the Departments of Treasury, Labor, and Health and Human Services (collectively, the "Departments") jointly issued final regulations under the Mental Health Parity and Addiction Equity Act of 2008 (the…more

DOL, Employee Benefits, Employer Group Health Plans, Healthcare, HHS

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One year of Data Protection Enforcement in France: what the CNIL’s Activity Report 2013 Reveals and what to expect in 2014

According to the French Data Protection Authority’s (“CNIL”) recently issued activity report for 2013, the CNIL was especially busy in 2013. The main topics addressed by the CNIL in 2013 were the creation of a national consumer…more

CNIL, Data Protection, EU, EU Data Protection Laws, Popular

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General Counsel Office Advocates Dramatic Change to Joint Employer Standard

Earlier this year, in the case of Browning –Ferris Industries of California, Inc., 32-RC-109684, the NLRB invited parties to submit briefs on whether the Board should change its long-held standards for assessing when two…more

Joint Employers, NLRB

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Three Point Shot - June 2014

Federal Circuit Leaves Cobra Golf Co. in the Rough - It's dormie. On Eighteen. You're in great shape, having hit a solid drive, leaving yourself a fairway lie and a mid-iron into a back-right Sunday pin. Feeling good…more

Infringement, Laches, Nike, Petrella v. MGM, Raging Bull

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Pennsylvania Superior Court Finds Coverage Under CGL Policy For Product Defect Claims

Policyholders seeking defense costs for products liability claims received welcome support from a Pennsylvania appellate court which rejected an excessively restrictive view of the scope of coverage offered under commercial…more

Commercial General Liability Policies, Faulty Workmanship, Legal Costs

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New Illinois "Ban the Box" Law Covers Private Employers

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the "Act"), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on the…more

See All Updates »

Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

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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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Eighth Circuit: “Satisfactory to Us” Plan Language Sufficient to Entitle Plan Fiduciary to Deferential Review

The Eighth Circuit recently held that language in Prudential’s disability policy requiring proof of disability that is “satisfactory to Prudential” was sufficient to grant the plan discretionary authority and entitled the plan…more

Disability, Disability Benefits, Disability Discrimination, Employee Rights, Prudential

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International workplace dispute practices: key concepts for today’s global employers

Increasingly, companies with operations or employees in more than one country are exposed to the risk of court proceedings in a foreign jurisdiction and the unfamiliar practices and procedures arising out of overseas litigation…more

International Labor Laws

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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

See All Updates »

DHS Announces New Rules To Facilitate Employment for Professionals in Efforts To Attract and Retain Highly Skilled Foreign Workers

With immigration reform at a standstill, the Obama administration is taking steps to help businesses attract and retain professionals working in the U.S. The Department of Homeland Security (DHS) announced two major advancements…more

CW-1, DHS, E-3, H-1B, H-1B1

See All Updates »

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

Cause Theory, Number of Occurences, Time and Space Test

See All Updates »

Courts In 9th Circuit Continue To Split On Ascertainability: “All Natural” Class Action Dies On the Vine But Sexual Energy Supplement Suit Has Staying Power

On June 13, 2014, U.S. District Judge Charles R. Breyer of the Northern District of California, issued an order denying class certification to a putative class of consumers who had purchased ConAgra food products labeled as…more

Ascertainable Class, Bayer, Class Certification, ConAgra, POM Wonderful

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Article 29 Working Party Provides Guidance on Obtaining Valid Cookie Consent in the EU

This past month, the European Union’s Article 29 Data Protection Working Party (the “Working Party”) issued the Working Document 02/2013 providing new guidance on obtaining consent for cookies (“Working Document”). The Working…more

Cookies, Data Protection, EU, Internet, Privacy Laws

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FINRA: The FAA Requires Enforcement of Judicial Class Action Waiver in Pre-Dispute Arbitration Agreement But Does Not Preempt FINRA Rules Permitting Consolidation of Multiple Parties' Claims

On February 21, 2013, the Financial Industry Regulatory Authority (FINRA) issued a written decision finding that the Federal Arbitration Act (FAA) bars FINRA from enforcing FINRA Rules intended to preserve judicial class actions…more

Arbitration, Case Consolidation, Class Action, Federal Arbitration Act, FINRA

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Wealth Management Update - October 2013

The October § 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 2.4%. This is up from September's 2.0% rate. The applicable federal rate ("AFR") for use with a sale to a defective grantor…more

Beneficiaries, Estate Planning, Generation-Skipping Transfer, Gift Tax, Grantor Retained Annuity Trust

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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

See All Updates »

New Illinois "Ban the Box" Law Covers Private Employers

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the "Act"), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on the…more

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Hobby Lobby: The Supreme Court’s View and Its Impact

For the second time in two years the United States Supreme Court (the “Court”) has ruled against the Obama Administration with respect to elements of the Affordable Care Act (the “ACA”). In a 5-4 decision announced today in…more

Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Contraceptives, Hobby Lobby, Religious Exemption

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Watch Out for “Watchdogs”: The N.J. Appellate Division Expressly Expands CEPA Protection To a New Class of Employees

On September 4, 2013, the New Jersey Appellate Division in Lippman v. Ethicon, Inc., Docket No. L–9025–06, 2013 WL 4726834 (App. Div. September 04, 2013), reversed a ruling by the Superior Court, Law Division granting summary…more

CEPA, Hiring & Firing, Johnson & Johnson, Safety Precautions, Whistleblowers

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Tennessee Enacts Trio of Employment Laws

Tennessee's governor recently signed three new employment laws. The first, a social media law, takes effect on January 1, 2015, and provides applicants and employees with social media protections similar to those in fifteen…more

Discrimination, Employer Liability Issues, Employment Policies, Hiring & Firing, New Regulations

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France Facilitates Implementation of Whistleblowing Systems

In France, before implementing a whistleblowing process, a company must inform and consult with its employees’ representatives, inform its employees and notify the French Data Protection Agency (CNIL). There are two…more

CNIL, Employer Liability Issues, France, Notice Requirements, Whistleblowers

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Second Circuit Narrows Reach of Federal Securities Laws as to Foreign Securities Transactions

On May 6, 2014, the U.S. Court of Appeals for the Second Circuit issued a decision clarifying the applicability of the anti-fraud provisions of the Securities Exchange Act of 1934 to transactions in foreign securities. The court…more

Appeals, Extraterritoriality Rules, Foreign Equity Securities, Foreign Exchanges, NYSE

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Landmark Supreme Court Ruling Protects Cell Phones from Warrantless Searches

On June 25, 2014, the Supreme Court unanimously ruled that police must first obtain a warrant before searching the cell phones of arrested individuals, except in “exigent circumstances.” Chief Justice John Roberts authored the…more

Cell Phones, Evidence, Fourth Amendment, Law Enforcement, Riley v California

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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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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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DHS Announces New Rules To Facilitate Employment for Professionals in Efforts To Attract and Retain Highly Skilled Foreign Workers

With immigration reform at a standstill, the Obama administration is taking steps to help businesses attract and retain professionals working in the U.S. The Department of Homeland Security (DHS) announced two major advancements…more

CW-1, DHS, E-3, H-1B, H-1B1

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Bubba Gump Shrimp’s Social Media Policy Passes Muster, ALJ Says

In Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB Administrative Law Judge (ALJ) found a social media rule concerning its wholly owned subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., to not violate the NLRA…more

ALJ, Employee Rights, Employer Liability Issues, Employment Policies, NLRB

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New York Wage Theft Prevention Act Amendments Awaiting Governor's Signature

On June 19, 2014, both houses of the New York State Legislature passed a bill that would amend the N.Y. Wage Theft Prevention Act of 2010 (the "Act"). The amendments eliminate the annual wage rate notice requirement and increase…more

Employer Liability Issues, New Legislation, Notice Requirements, Wage and Hour, Wage Theft

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New York Court Strikes Down Regulations Limiting Executive Compensation and Administrative Expenses

A New York court has held that the State’s regulatory limits on executive compensation and administrative expenses for entities that receive state funds unconstitutionally exceed proper regulatory authority. The regulations,…more

Administrative Expenses, Executive Compensation, State Funding

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IRS Issues Revenue Ruling on Applicability of Section 457A to Options and Stock Appreciation Rights

On June 10, 2014, the IRS issued Revenue Ruling 2014-18, which holds that nonqualified stock options, as well as stock-settled stock appreciation rights (SARs), do not constitute nonqualified deferred compensation subject to…more

Deferred Compensation, Guidance Update, IRS, SAR, Section 409A

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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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End of Battery Class Actions Almost in Sight

On April 22, 2014, the Plaintiff in Poertner v. Gillette Co. moved for final approval of settlement and for attorneys’ fees and costs. The settlement, reached in September 2013, would bring to an end two class actions against…more

Attorney's Fees, Civil Monetary Penalty, Class Action, Gillette, Settlement

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California Supreme Court Leaves Unanswered Questions in Independent Contractor Case

On Monday, June 30, 2014, the California Supreme Court handed down its decision in Ayala v. Antelope Valley Newspapers, a lawsuit brought on behalf of a group of newspaper delivery carriers who alleged that they had been…more

Class Action, Class Certification, Employer Liability Issues, Independent Contractors, Misclassification

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Fourth Circuit Rejects Widow’s Claim for Equitable Relief

The Fourth Circuit recently rejected fiduciary breach and equitable estoppel claims for life insurance coverage by Leslie Moon, the widow of a deceased employee, who claimed that the employer’s actions resulted in Mr. Moon’s…more

Disability, Employer Liability Issues, Equitable Estoppel, Equitable Relief, Fiduciary Liability

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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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Wealth Management Update - May 2013

The May § 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 1.2%, which is a slight decrease from April's rate of 1.4%. The applicable federal rate ("AFR") for use with a sale to a…more

AFR, DING Trusts, GST, Interest Rates, IRS

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Texas Federal Court Dismisses FCA Claims As Insufficiently Pled

In U.S. ex rel. Williams v. McKesson Corp., No. 3:12-CV-0371-B (N.D. Tex. July 9, 2014), a Texas federal court recently dismissed a qui tam whistleblower suit by a former employee of McKesson, a Texas-based entity that provides…more

False Claims Act, Fraud, Healthcare, Healthcare Fraud, McKesson Technologies

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No Class: Hulu Users Lose Certification Motion

After a decision denying class certification last week, claims by Hulu users that their personal information was improperly disclosed to Facebook are limited to the individual named plaintiffs (at least for now, as the decision…more

Class Action, Hulu, Internet, Internet Streaming, Video Privacy Protection Act

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New Guidance on COBRA and ACA Marketplace Coverage: The Gap in Coverage is (Not Quite) Filled

There has been much confusion and concern about the interplay between the COBRA continuation coverage rules and the new Health Insurance Marketplace established under the Affordable Care Act (the “Marketplace”). One important…more

Affordable Care Act, Benefit Plan Sponsors, CMS, COBRA, DOL

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Proposed “Bitlicense” Regulations Published to the New York Register

Today’s New York State Register includes a Notice of Proposed Rule Making from the New York State Department of Financial Services (the “NYSDFS”) regarding the regulation of virtual currency (“Regulation of the Conduct of…more

Licenses, Licensing Rules, Rulemaking Process, Virtual Currency

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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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CEPA Roundup

In recent weeks, New Jersey’s primary whistleblower statute—the Conscientious Employee Protection Act (“CEPA”)—has been the subject of increased judicial scrutiny. In Hitesman v. Bridgeway, Inc., 214 N.J. 235 (2014), the…more

CEPA, Employer Liability Issues, Retaliation, Whistleblowers

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UPDATE: U.S. Supreme Court Will Decide What Preclusive Effect, If Any, Should Be Given to Likelihood of Confusion Findings by the Trademark Trial and Appeal Board

As we reported in our May 29 client alert, the Solicitor General submitted an amicus brief recommending that the Supreme Court grant a petition for certiorari seeking a determination of whether likelihood of confusion findings…more

Certiorari, Claim Preclusion, Likelihood of Confusion, SCOTUS, Trademark Litigation

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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

See All Updates »

Courts In 9th Circuit Continue To Split On Ascertainability: “All Natural” Class Action Dies On the Vine But Sexual Energy Supplement Suit Has Staying Power

On June 13, 2014, U.S. District Judge Charles R. Breyer of the Northern District of California, issued an order denying class certification to a putative class of consumers who had purchased ConAgra food products labeled as…more

Ascertainable Class, Bayer, Class Certification, ConAgra, POM Wonderful

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California Employment Law Notes - July 2014

"Unauthorized Alien" Who Provided False SSN Can Proceed With Disability Discrimination Lawsuit - Salas v. Sierra Chem. Co., 2014 WL 2883878 (Cal. S. Ct. 2014) Vicente Salas worked on Sierra Chemical's production…more

Adverse Employment Action, Age Discrimination, Anti-SLAPP, Car Accident, Class Action

See All Updates »

Three Point Shot - June 2014

Federal Circuit Leaves Cobra Golf Co. in the Rough - It's dormie. On Eighteen. You're in great shape, having hit a solid drive, leaving yourself a fairway lie and a mid-iron into a back-right Sunday pin. Feeling good…more

Infringement, Laches, Nike, Petrella v. MGM, Raging Bull

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UK Whistleblowing Protection Extended to Partners

In the UK, whistleblowing law is based on a statute prohibiting a “worker” being dismissed or subjected to any other detriment because of having made a “protected disclosure”. Until this week, the general view was that the…more

Employment Tribunals, Partnerships, UK, Whistleblower Protection Policies, Whistleblowers

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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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New Illinois "Ban the Box" Law Covers Private Employers

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the "Act"), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on the…more

See All Updates »

New Illinois "Ban the Box" Law Covers Private Employers

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the "Act"), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on the…more

See All Updates »

SEC Inadvertently Produces Whistleblower Complaint, But Then Obtains Protective Relief

During discovery in an SEC administrative and cease-and-desist proceeding instituted in December 2012 (pursuant to Sections 9(b) and 9(f) of the Investment Company Act of 1940)[1] the SEC Division of Enforcement (DOE)…more

Attorney-Client Privilege, Discovery, SEC, Whistleblowers

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Ten Questions Regarding Brazilian Labor and Employment law

1. What are the primary sources of labor and employment rights in Brazil? There are four major sources of labor and employment rights in Brazil: (i) the Federal Constitution; (ii) the Brazilian Labor Act (Consolidação das…more

Brazilian Labor Act, Collective Bargaining, Employee Rights, Employment Contract, Hiring & Firing

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New York Court of Appeals Clarifies Important Questions about Tip-sharing Statute

On June 26, 2013, New York's highest court for the first time weighed in and ruled on what types of employees are qualified to participate in tip-splitting or tip-pooling arrangements under the New York Labor Law, as well as the…more

DOL, Restaurant Industry, Tip-Pooling, Wages

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DC Circuit Court of Appeals Invalidates NLRB Rights Poster Holding Regulation Violates NLRA

A federal appeals court has rebuffed the NLRB's attempt to require employers to post in a "conspicuous" place in a workplace a poster that informs employees of their rights under the National Labor Relations Act. The NLRB's rule…more

Free Speech, NLRA, NLRB, Notice Requirements, Posting Requirements

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First Circuit Orders AIG To Advance Defense Costs In FDIC Suit Because Of “Likelihood Of A Remote Possibility Of Coverage”

On March 31, 2014, the First Circuit reaffirmed the breadth of an insurer’s duty to defend. In W Holding Co., Inc. v. AIG Ins. Co.-Puerto Rico, No. 12–2008, 2014 WL 1280246 (1st Cir. Mar. 31, 2014), the appellate court ruled…more

AIG, Board of Directors, Directors, FDIC, Legal Costs

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L’Oréal Smooths Things Over With FTC, Reaches Proposed Settlement Regarding Anti-Aging Claims For Its Skin Care Products

On June 30, the Federal Trade Commission announced that it had reached a proposed settlement with L’Oréal USA, Inc. related to the Commission’s investigation of anti-aging claims made in advertisements for Lancôme Génifique and…more

Advertising, False Advertising, FTC, L'Oreal

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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

See All Updates »

Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

See All Updates »

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

See All Updates »

The ERISA Litigation Newsletter - July 2014

Editor's Overview - The end of the U.S. Supreme Court's term brought two significant ERISA decisions. The first concerns the standard of review that courts apply when evaluating ERISA stock-drop claims. As discussed…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Employer Mandates, ERISA

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Deadlines Approaching for Employer Return Requirements for ISOs and ESPPs – Reporting Requirements for 2014

Section 6039 of the Internal Revenue Code of 1986, as amended (the "Code"), requires corporations to furnish information statements to their employees (including former employees) and to the Internal Revenue Service ("IRS") with…more

Deadlines, Employee Stock Purchase Plans, Incentive Stock Options, IRS, Reporting Requirements

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Oxford Health Plans v. Sutter

Arbitration clauses meant to prohibit class action arbitrations, whether in employment agreements or other documents, need to be reviewed after a recent Supreme Court decision…more

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The ERISA Litigation Newsletter - May 2014

Editor's Overview - This month our authors explore two important areas of ERISA's fiduciary duties applicable to single employer and multiemployer plans. First, Neal Schelberg and Aaron Feuer comment on a growing trend by…more

Bankruptcy Code, Collective Bargaining, Employer Contributions, Employer Liability Issues, ERISA

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California Courts May No Longer Be Able to Certify a Ham Sandwich

Commentators have quipped that class certification is so easy in California that with little effort a group of plaintiffs could certify even a ham sandwich. In fact, we have seen a proliferation of recent appellate decisions…more

Class Action, Class Certification, Dukes v Wal-Mart, Employment Policies, Evidence

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Displaced Building Service Workers Protection Act Development: Federal Judge Holds That Any Successorship Analysis Must Be Performed After the Statutory Employee Retention Period

Employers taking over unionized work covered by a statute mandating temporary retention of the existing workers may have assumed that they automatically have to recognize the existing union. In New York City, and possibly in…more

Collective Bargaining, NLRB, Unions

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Presumption of Reliance Survives in Securities Cases, But Defendants Can Dispute Price Impact at Class Certification

The U.S. Supreme Court yesterday declined to abandon the efficient-market theory, with its rebuttable presumption of reliance that enables securities class actions to proceed without proof of actual reliance on alleged…more

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

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Three Point Shot - June 2014

Federal Circuit Leaves Cobra Golf Co. in the Rough - It's dormie. On Eighteen. You're in great shape, having hit a solid drive, leaving yourself a fairway lie and a mid-iron into a back-right Sunday pin. Feeling good…more

Infringement, Laches, Nike, Petrella v. MGM, Raging Bull

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Treatment of Foreign Banks under Section 716 of the Dodd-Frank Act and Related Push-Out Provisions

Last month, the Federal Reserve Board issued an Interim Final Rule that treats uninsured U.S. branches and agencies of foreign banks the same as insured depository institutions ("IDIs") for purposes of Section 716 of the…more

Banks, CFTC, Compliance, Dodd-Frank, Federal Reserve

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What Are The Main Differences For Dismissing An Employee Between The US And France?

Contrary to the U.S., which has the concept of “at-will” termination, to dismiss an employee in France, an employer must have a “real and serious cause” and must comply with a specific procedure. The cause is not pre-determined…more

At-Will Employment, Employee Rights, Employment Contract, Termination

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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

Cause Theory, Number of Occurences, Time and Space Test

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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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The ERISA Litigation Newsletter - July 2014

Editor's Overview - The end of the U.S. Supreme Court's term brought two significant ERISA decisions. The first concerns the standard of review that courts apply when evaluating ERISA stock-drop claims. As discussed…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Employer Mandates, ERISA

See All Updates »

Three Point Shot - June 2014

Federal Circuit Leaves Cobra Golf Co. in the Rough - It's dormie. On Eighteen. You're in great shape, having hit a solid drive, leaving yourself a fairway lie and a mid-iron into a back-right Sunday pin. Feeling good…more

Infringement, Laches, Nike, Petrella v. MGM, Raging Bull

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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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Displaced Building Service Workers Protection Act Development: Federal Judge Holds That Any Successorship Analysis Must Be Performed After the Statutory Employee Retention Period

Employers taking over unionized work covered by a statute mandating temporary retention of the existing workers may have assumed that they automatically have to recognize the existing union. In New York City, and possibly in…more

Collective Bargaining, NLRB, Unions

See All Updates »

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

See All Updates »

New Illinois "Ban the Box" Law Covers Private Employers

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the "Act"), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on the…more

See All Updates »

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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Unpaid Employer Contributions as Plan Assets: Expansion Of Liability Under ERISA

The Employee Retirement Income Security Act of 1974, as amended (“ERISA”), requires trustees of multiemployer pension and benefit funds to collect contributions required to be made by contributing employers under their…more

CBAs, Commercial Bankruptcy, Employee Benefits, Employer Contributions, Employer Liability Issues

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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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M.D. Florida: Employee Must Report To SEC To Be A Protected Dodd-Frank Whistleblower

Two weeks ago, the U.S. District Court for the Middle District of Florida dismissed with prejudice a former employee’s Dodd-Frank whistleblower claim on the ground that the employee was not a “whistleblower” within the meaning…more

Dodd-Frank, Reporting Requirements, SEC, Whistleblowers

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Third Circuit Embraces "Lower Bar" for Successor Liability under the FLSA

In Thompson v. Real Estate Mortgage Network, No. 12-3828, 2014 WL 1317137 (3d Cir. Apr. 3, 2014), the Third Circuit adopted a standard of successor liability that will lower the bar for whether an employer can be held…more

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Death, Taxes and …ERISA Disclosure Regulations?

There are few sure things in life, and although it is probably safe to say that ERISA disclosure regulations would not be considered one of them, there has certainly been a steady stream of new ERISA-related disclosure and…more

401k, Disclosure Requirements, DOL, ERISA, Form

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How U.S. Supreme Court Ruling On Title VII Retaliation Standard Case May Affect Claims Under Whistleblower & Other Anti-Retaliation Statutes

“But-for” or “mixed motive” is a causation question not unknown to the U.S. Supreme Court. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a plurality held that the anti-discrimination provision of Title VII only requires a…more

ADEA, False Claims Act, Mixed Motive Cases, Nassar, Retaliation

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The First Amendment Goes Digital – Clicking “Like” on Facebook is Speech

With around 1.15 billion members, Facebook is a massive, global forum for communicating with friends and the world. For many users, it often feels as if their news feeds are clogged with vapid comments about the weather, meal…more

Facebook, First Amendment, Free Speech

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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

See All Updates »

The ERISA Litigation Newsletter - July 2014

Editor's Overview - The end of the U.S. Supreme Court's term brought two significant ERISA decisions. The first concerns the standard of review that courts apply when evaluating ERISA stock-drop claims. As discussed…more

Affordable Care Act, Burwell v Hobby Lobby, Contraceptive Coverage Mandate, Employer Mandates, ERISA

See All Updates »

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

See All Updates »

Supreme Court’s Sandifer Decision Is Not Just About Changing Clothes

In Sandifer et al. v. United States Steel Corp., a unanimous Supreme Court clarified the meaning of "changing clothes" found in Section 203(o) of the Fair Labor Standards Act ("FLSA" or "Act"), holding that "changing clothes"…more

Collective Bargaining, FLSA, Protective Gear, Sandifer v U.S. Steel Corp, SCOTUS

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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

See All Updates »

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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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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City Council Expands New York City Earned Sick Time Act

Yesterday, the New York City Council passed an amendment to the New York City Earned Sick Time Act (the "Act") expanding its coverage in several significant ways. The law, as amended, will take effect on April 1, 2014. As…more

Accrued Benefits, Employee Benefits, Employee Rights, Sick Leave

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The ERISA Litigation Newsletter - August 2013

In this month's newsletter we address ten important issues to consider when drafting and amending a summary plan description…more

ERISA, Litigation Strategies, Summary Plan Description

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Supreme Court Holds That State Attorney General Suits Brought on Behalf of a State's Residents Cannot Be Removed to Federal Court Under the Class Action Fairness Act

On January 14, 2014, in Mississippi ex rel. Hood v. AU Optronics Corp., the U.S. Supreme Court unanimously held that lawsuits brought by state attorneys general seeking, among other things, recovery of funds for the benefit of a…more

Attorney Generals, CAFA, Class Action, Manufacturers, Mississippi ex rel. Hood v. AU Optronics

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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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Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

See All Updates »

California Supreme Court Leaves Unanswered Questions in Independent Contractor Case

On Monday, June 30, 2014, the California Supreme Court handed down its decision in Ayala v. Antelope Valley Newspapers, a lawsuit brought on behalf of a group of newspaper delivery carriers who alleged that they had been…more

Class Action, Class Certification, Employer Liability Issues, Independent Contractors, Misclassification

See All Updates »

The ERISA Litigation Newsletter - August 2013

In this month's newsletter we address ten important issues to consider when drafting and amending a summary plan description…more

ERISA, Litigation Strategies, Summary Plan Description

See All Updates »

California Employment Law Notes - July 2014

"Unauthorized Alien" Who Provided False SSN Can Proceed With Disability Discrimination Lawsuit - Salas v. Sierra Chem. Co., 2014 WL 2883878 (Cal. S. Ct. 2014) Vicente Salas worked on Sierra Chemical's production…more

Adverse Employment Action, Age Discrimination, Anti-SLAPP, Car Accident, Class Action

See All Updates »

Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

See All Updates »

DHS Announces New Rules To Facilitate Employment for Professionals in Efforts To Attract and Retain Highly Skilled Foreign Workers

With immigration reform at a standstill, the Obama administration is taking steps to help businesses attract and retain professionals working in the U.S. The Department of Homeland Security (DHS) announced two major advancements…more

CW-1, DHS, E-3, H-1B, H-1B1

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Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

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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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CEPA Roundup

In recent weeks, New Jersey’s primary whistleblower statute—the Conscientious Employee Protection Act (“CEPA”)—has been the subject of increased judicial scrutiny. In Hitesman v. Bridgeway, Inc., 214 N.J. 235 (2014), the…more

CEPA, Employer Liability Issues, Retaliation, Whistleblowers

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New Labor and Employment Legislation in France - Is French Labor Law Becoming More Flexible?

The combination of the economic crisis and the growth of emerging markets has led to many European governments announcing initiatives to reform employment legislation with the intent of making it simpler and more flexible so as…more

EU, Hiring & Firing, Layoffs, Relocation, Settlement

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Tennessee Enacts Trio of Employment Laws

Tennessee's governor recently signed three new employment laws. The first, a social media law, takes effect on January 1, 2015, and provides applicants and employees with social media protections similar to those in fifteen…more

Discrimination, Employer Liability Issues, Employment Policies, Hiring & Firing, New Regulations

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New Illinois "Ban the Box" Law Covers Private Employers

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the "Act"), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on the…more

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NLRB Overturns Decert Election Based On Employer’s “Promises” Of 401(k)

The last few months have seen very little in the way of NLRB decisions. The recent Supreme Court decision where the recess appointments to the NLRB were invalidated, likely will further slow down the process of issuing…more

401k, Corporate Counsel, Employee Benefits, NLRA, NLRB

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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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FINRA Alerts Investors to Bitcoin Risks

Bitcoin remains fixed on the front pages of the business and technology news for both the salacious and the positive. Much attention has been paid to the collapse of the former top bitcoin exchange, Mt. Gox, stemming from the…more

Bitcoins, FINRA, Virtual Currency

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Pennsylvania Superior Court Finds Coverage Under CGL Policy For Product Defect Claims

Policyholders seeking defense costs for products liability claims received welcome support from a Pennsylvania appellate court which rejected an excessively restrictive view of the scope of coverage offered under commercial…more

Commercial General Liability Policies, Faulty Workmanship, Legal Costs

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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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Federal Judge Trims Diet Supplement Maker’s Earnings by $40M and Orders Recall of Banned Labeling

On May 14, a Georgia federal court dished out severe contempt sanctions against Hi-Tech Pharmaceuticals, its president and two others for violating a 2008 court order relating to the advertising and labeling of Hi-Tech’s “diet…more

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Wealth Management Update - May 2014

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

AFR, Grantor Trusts, Intentionally Defective Grantor Trusts, Intra-Family Loans, Professional Liability

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UPDATE: U.S. Supreme Court Will Decide What Preclusive Effect, If Any, Should Be Given to Likelihood of Confusion Findings by the Trademark Trial and Appeal Board

As we reported in our May 29 client alert, the Solicitor General submitted an amicus brief recommending that the Supreme Court grant a petition for certiorari seeking a determination of whether likelihood of confusion findings…more

Certiorari, Claim Preclusion, Likelihood of Confusion, SCOTUS, Trademark Litigation

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The ERISA Litigation Newsletter - August 2013

In this month's newsletter we address ten important issues to consider when drafting and amending a summary plan description…more

ERISA, Litigation Strategies, Summary Plan Description

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The Supreme Court’s Decision to Affirm An Arbitrator’s Decision Compelling Class Arbitration May Be Most Notable For What Was Not Said

ERISA plan sponsors, and employers more broadly, have been anxiously awaiting two rulings from the U.S. Supreme Court that they hope would clarify the ability to enforce class action waivers in arbitration agreements…more

Arbitration Agreements, Class Action, ERISA, SCOTUS, Waivers

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New Illinois "Ban the Box" Law Covers Private Employers

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the "Act"), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on the…more

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Supreme Court Holds Reverse Payment Settlements Are Subject to Rule-of-Reason Scrutiny in Landmark Ruling

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…more

ANDA, Antitrust Litigation, FTC, FTC v Actavis, Generic Drugs

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DHS Announces New Rules To Facilitate Employment for Professionals in Efforts To Attract and Retain Highly Skilled Foreign Workers

With immigration reform at a standstill, the Obama administration is taking steps to help businesses attract and retain professionals working in the U.S. The Department of Homeland Security (DHS) announced two major advancements…more

CW-1, DHS, E-3, H-1B, H-1B1

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Dodd-Frank Anti-Retaliation Provision Limited To Complaints About Securities Laws

The U.S. District Court for the Eastern District of Wisconsin ruled that an Illinois-based bank employee could not state a claim under the whistleblower protection provision in Dodd-Frank because his complaints alleged…more

Anti-Retaliation Provisions, Banks, Dodd-Frank, Securities, Whistleblower Protection Policies

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Federal Judge Trims Diet Supplement Maker’s Earnings by $40M and Orders Recall of Banned Labeling

On May 14, a Georgia federal court dished out severe contempt sanctions against Hi-Tech Pharmaceuticals, its president and two others for violating a 2008 court order relating to the advertising and labeling of Hi-Tech’s “diet…more

See All Updates »

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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The SEC Provides Guidance on the Use of Social Media for Public Company Disclosure

On April 2, 2013, the Securities and Exchange Commission issued a "report of investigation" that provides important guidance for companies that wish to use social media outlets, such as Facebook and Twitter, to publicly disclose…more

Facebook, Netflix, Public Disclosure, Reed Hastings, Regulation FD

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IRS Introduces New Procedures for Reinstatement of Tax-Exempt Status

Tax-exempt organizations that have had their tax-exempt status automatically revoked because of failure to file required annual returns for three consecutive years can follow new procedures for seeking reinstatement of their tax…more

Exempt Organizations, IRS, Reinstatement, Tax Exemptions

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New Illinois "Ban the Box" Law Covers Private Employers

Governor Quinn has signed the Job Opportunities for Qualified Applicants Act (the "Act"), which takes effect January 1, 2015 and prevents private employers from asking an applicant about his or her criminal history on the…more

See All Updates »

Areas of Practice
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