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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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Eleventh Circuit Limits Scope of FCA Whistleblower Suit

Late last month, a three-judge panel of the Eleventh Circuit Court of Appeals reinstated portions of a former executive’s False Claims Act (“FCA”) whistleblower action against Health Management Associates Inc. (“HMA”), alleging…more

Appeals, False Claims Act, Health Care Providers, Healthcare Facilities, Medicaid

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

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

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

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

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

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

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PBGC Issues Final Regulations Regarding Rollovers from Defined Contribution Plans to Pension Plans

The PBGC has recently initiated efforts to enhance retirement security for Americans by promoting lifetime income options (i.e., annuitized benefits). As part of these efforts, as well as those of the IRS and U.S. Department of…more

Annuities, Defined Contribution Plans, DOL, ERISA, Final Rules

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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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D.C. Council Passes “Emergency” Amendments to the Wage Theft Prevention Amendment Act

As we noted in our blog post last month, District of Columbia Mayor Vincent Gray recently signed an amendment to the Wage Theft Prevention Act. As detailed in our post and related client alert, the D.C. Wage Theft Prevention…more

Employer Mandates, Joint and Several Liability, Liability, Notice Requirements, Proposed Amendments

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Eleventh Circuit Requests Assistance in Interpreting Consent-to-Settle Provision

Most cases in the United States settle. Insurers are well-aware of this fact. Thus, insurance companies employ consent-to-settle provisions in insurance policies to limit and control their liability in the likely event of a…more

Class Action, Consent, Contract Formation, Limitation of Liability Clause, Settlement

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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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Recent Appellate Decisions Limit Access To Customer Assets Held At Foreign Bank Branches

On October 23, 2014, the New York Court of Appeals held for the first time that, under New York law, the "separate entity" rule prevents a court from ordering a foreign bank operating branches in New York from restraining a…more

Appeals, Asset Freeze, Banks, Foreign Subsidiaries, Judgment Debtors

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Second Circuit Clarifies Elements of Tippee Liability for Insider Trading

The U.S. Court of Appeals for the Second Circuit recently clarified the elements required to hold a tippee liable for insider trading: a tippee cannot be held liable unless the Government proves that the tippee knew both (i)…more

Fiduciary Duty, Hedge Funds, Insider Trading, Portfolio Managers, Securities

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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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Highlights of SEC’s 2014 Annual Report

On November 17, 2014, the Securities and Exchange Commission’s Office of the Whistleblower (“OWB”) released its fourth Annual Report on the Dodd-Frank Whistleblower Program to Congress, which details information on OWB’s…more

Annual Reports, Dodd-Frank, SEC, Whistleblower Awards, Whistleblower Protection Policies

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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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SCOTUS to Review Subsidy Issue

On November 7, the U.S. Supreme Court announced it was going to review King v. Burwell. At issue in the case is whether Fourth Circuit correctly determined that the IRS did not exceed its authority when it released a rule in…more

Affordable Care Act, Healthcare, Healthcare Reform, King v Burwell, SCOTUS

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Trends in New Jersey Employment Law - October 2014

Four More New Jersey Cities Enact Sick Leave Laws - Four New Jersey municipalities—Passaic, Paterson, Irvington, and East Orange—recently enacted ordinances requiring employers to provide paid sick leave to their…more

Anti-Retaliation Provisions, Collective Bargaining, Employee Rights, Employment Policies, Local Ordinance

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Massachusetts AG Advises on Domestic Violence Leave Act

The Massachusetts Attorney General recently issued an Advisory regarding the new Domestic Violence Leave Act, which was passed on August 8, 2014. The Advisory helped to clarify some of the requirements of the Act...…more

Domestic Violence, FMLA, Leave of Absence, New Guidance

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Three Point Shot - November 2014

Florida Broker Denied Assist in Argentine Soccer Media Rights Deal - 2014 has been a decent year for soccer – ahem, fútbol – in Argentina. An Argentine club team (San Lorenzo) won the 2014 Copa Libertadores, South…more

Copyright, Soccer, Sports, Trademarks

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Five Million Dollar Penalty is Stark Reminder About "Gun Jumping"

On November 7, 2014, the Antitrust Division of the Department of Justice ("DOJ") announced that it had imposed a civil penalty of $3.8M and disgorgement of $1.15M in profits on Flakeboard America Limited (and its parent company)…more

Antitrust Provisions, Civil Monetary Penalty, Disgorgement, DOJ, Due Diligence

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

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

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

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Supreme Court 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

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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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D.C. Circuit Rejects Challenge To Section 503 Regulations Administered by OFCCP

On Friday, December 12, 2014, the D.C. Circuit rejected a challenge by Associated Builders and Contractors, Inc. (“ABC”) to the recent rules promulgated by OFCCP under Section 503 of the Rehabilitation Act protecting individuals…more

Construction Industry, Disability Discrimination, Federal Contractors, General Contractors, OFCCP

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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

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

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

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

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New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

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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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A Primer on EMV Technology for Merchants

With the new year just around the corner, retailers should make a resolution to learn more about EMV technology. That’s because 2015 is slated to be the year EMV technology makes significant inroads in the United States, and…more

Credit Cards, EMV, Payment Systems, Retailers

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Rhode Island Establishes Tip Line For Worker Misclassification

Rhode Island’s Joint Task Force on the Underground Economy and Employee Misclassification announced earlier this month that it has set up an anonymous telephone tip line for reporting allegations of independent contractor…more

Independent Contractors, Misclassification

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Supreme Court Rules Employers Not Required To Pay Employees For Time Spent In Security Screenings

Yesterday the U.S. Supreme Court ruled that the Fair Labor Standards Act did not require employers to pay employees for time spent going through a security screening and waiting in line to be screened. Justice Thomas, writing…more

Amazon, FLSA, Integrity Staffing v Busk, SCOTUS, Security Checks

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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

Google Required To Produce Emails In Response To Former Employer's Subpoena - Negro v. Superior Court, 2014 WL 5341926 (Cal. Ct. App. 2014) - Navalimpianti USA, Inc. subpoenaed Google, Inc. to produce copies of…more

Email, Employee Rights, False Imprisonment, Fitness for Duty Exams, Google

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What a Tangled Web We Weave, When First We Practice to Deceive: Second Circuit Holds that “Deliberate Deception” Creates Legal Presumption of Consumer Confusion and Injury in a Two-Player Market

On July 29, the Second Circuit clarified its view that, in a two-player market, willfully deceptive advertising – even non-comparative advertising – creates a legal presumption of consumer confusion and injury, applicable to…more

Advertising, Damages, Deceptive Intent, False Advertising, Lanham Act

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3d Cir.: Dodd-Frank Anti-Arbitration Provisions Do Not Apply To Dodd-Frank Whistleblower Retaliation Claims

On December 8, 2014, the Third Circuit ruled that Dodd-Frank’s anti-arbitration provisions do not invalidate pre-dispute arbitration agreements with respect to whistleblower retaliation claims brought pursuant to the…more

Adverse Employment Action, Arbitration, Dodd-Frank, Employer Liability Issues, Retaliation

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How to Settle an ERISA Breach of Fiduciary Duty Case and Sleep at Night: A Checklist for Plan Trustees to Consider

Plan trustees often look to settle ERISA fiduciary breach claims brought against them as a way to put the past behind them. Assuming there is enough fiduciary liability insurance coverage available to pay the proposed settlement…more

Benefit Plan Sponsors, Breach of Duty, DOL, ERISA, Fiduciary Duty

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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 - November 2014

Florida Broker Denied Assist in Argentine Soccer Media Rights Deal - 2014 has been a decent year for soccer – ahem, fútbol – in Argentina. An Argentine club team (San Lorenzo) won the 2014 Copa Libertadores, South…more

Copyright, Soccer, Sports, Trademarks

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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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The ERISA Litigation Newsletter; November 2013

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

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

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Broker-Dealer Beat - December 2014

New FOCUS Reporting Requirement Commences January 2015 - A new FOCUS reporting requirement designed to enhance FINRA's ongoing monitoring of members' financial condition will take effect for the new year. Beginning…more

Broker-Dealer, FINRA, Market Participants, Regulation SCI, Reporting Requirements

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The ERISA Litigation Newsletter

Editor's Overview - As it is well known, in Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), the U.S. Supreme Court identified several forms of appropriate equitable relief that may be available under Section 502(a)(3) of…more

ADEA, Choice-of-Venue, CIGNA v Amara, Compensatory Awards, Employer Group Health Plans

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HIPAA Certificates Are No Longer Required As of January 1, 2015

Effective January 1, 2015, group health plans and insurers are no longer required to issue a certificate of creditable coverage (“HIPAA Certificate”) to individuals who lost group health plan coverage. As a reminder, HIPAA…more

Affordable Care Act, Employer Group Health Plans, HIPAA, Insurers

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Highlights of SEC’s 2014 Annual Report

On November 17, 2014, the Securities and Exchange Commission’s Office of the Whistleblower (“OWB”) released its fourth Annual Report on the Dodd-Frank Whistleblower Program to Congress, which details information on OWB’s…more

Annual Reports, Dodd-Frank, SEC, Whistleblower Awards, Whistleblower Protection Policies

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District Court Allows ERISA Section 510 Retaliation Claim to Proceed

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

Disability, Employer Liability Issues, ERISA, Retaliation

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Eleventh Circuit Enforces Subrogation Clause

The Eleventh Circuit recently concluded that Robert Montanile, a welfare plan participant, could not avoid reimbursing the National Elevator Industry Health Benefit Plan for benefits it paid on his behalf after he recovered from…more

Medical Reimbursement, Reimbursements, Subrogation

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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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Derailing an Expert in the Rail Freight Fuel Surcharge Antitrust Litigation: What Every Litigator Needs to Know

The business of buying, selling, investing in, and arbitraging legal claims continues to grow, and carries with it hidden pitfalls. This is particularly the case when a litigation expert has a business relationship with a…more

Antitrust Litigation, Arbitrage, Conflicts of Interest, Expert Witness, Investors

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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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401(k) Plan Participant Waived ERISA Stock-Drop Claim

The D.C. Circuit affirmed the decision of a district court that Plaintiff Patrick Russell, a 401(k) plan participant, had knowingly waived his right to assert an ERISA stock-drop claim based on, among other things, the alleged…more

401k, ERISA, Hiring & Firing, Popular, Severance Agreements

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New York Proposes First State Bitcoin Regulations

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

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

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Supreme Court Told That TTAB Preclusion Raises Constitutional Concerns

As reported in our September 23 Client Alert, the Supreme Court is set to hear argument on December 2 on the issue of whether likelihood of confusion findings by the Trademark Trial and Appeal Board (TTAB) are entitled to…more

Claim Preclusion, Lanham Act, Likelihood of Confusion, Patent Infringement, Patent Litigation

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E-Verify Maintenance Requirements Modified to Minimize Security Risks

On January 1, 2015, the United States Citizenship and Immigration Service (USCIS) will begin disposing of E-Verify records that are over 10 years old in accordance with the National Archives Records Administration records…more

Data Protection, E-Verify, Immigration Procedures, Immigration Records, USCIS

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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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Proskauer Obtains Dismissal of High-Stakes False Claims Act Suit

On August 7, 2014, Judge Castel of the Southern District of New York dismissed a False Claims Act (“FCA”) complaint that was based primarily on allegations that the defendant Hospital improperly focused on referral revenue in…more

False Claims Act, Fraud, Healthcare, Healthcare Fraud, Hospitals

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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

Editor's Overview - As it is well known, in Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), the U.S. Supreme Court identified several forms of appropriate equitable relief that may be available under Section 502(a)(3) of…more

ADEA, Choice-of-Venue, CIGNA v Amara, Compensatory Awards, Employer Group Health Plans

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

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

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

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Seventh Circuit Criticizes Second Circuit's "Transformative Use" Approach to Fair Use

On September 15, 2014, the U.S. Court of Appeals for the Seventh Circuit issued a notable opinion on the relevance and importance of "transformative use" on the copyright fair use analysis. (Kienitz v. Sconnie Nation LLC, No…more

Appeals, Copyright, Copyright Infringement, Corporate Counsel, 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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Attention Retailers: Target Data Breach Ruling Finds Duty Owed to Issuer Banks

The Court hearing the Target data security breach litigation issued a ruling on December 2, 2014, largely denying Target’s motion to dismiss the Consolidated Amended Class Action Complaint in the Financial Institutions Cases. In…more

Banks, Class Action, Data Breach, Retailers, Target

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Microsoft Ordered to Hand Over Data to the U.S. Government

In April, Microsoft tried to quash a search warrant from law enforcement agents in the United States (U.S.) that asked the technology company to produce the contents of one of its customer’s emails stored on a server located in…more

Data Centers, Databases, Email, Law Enforcement, Microsoft

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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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D.C. Circuit Rejects Challenge To Section 503 Regulations Administered by OFCCP

On Friday, December 12, 2014, the D.C. Circuit rejected a challenge by Associated Builders and Contractors, Inc. (“ABC”) to the recent rules promulgated by OFCCP under Section 503 of the Rehabilitation Act protecting individuals…more

Construction Industry, Disability Discrimination, Federal Contractors, General Contractors, OFCCP

See All Updates »

Rhode Island Establishes Tip Line For Worker Misclassification

Rhode Island’s Joint Task Force on the Underground Economy and Employee Misclassification announced earlier this month that it has set up an anonymous telephone tip line for reporting allegations of independent contractor…more

Independent Contractors, Misclassification

See All Updates »

California Employment Law Notes

Google Required To Produce Emails In Response To Former Employer's Subpoena - Negro v. Superior Court, 2014 WL 5341926 (Cal. Ct. App. 2014) - Navalimpianti USA, Inc. subpoenaed Google, Inc. to produce copies of…more

Email, Employee Rights, False Imprisonment, Fitness for Duty Exams, Google

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“Prior or Pending Litigation” Exclusion Bars Coverage for Litigation that Was Unknown to Policyholder

Companies that do business with the federal government, or whose business transactions otherwise involve payments by the government, undoubtedly understand the exposure they face to “whistleblower” or “Qui Tam” lawsuits brought…more

False Claims Act, Fraud, Policy Exclusions, Professional Liability, Qui Tam

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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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Native Advertisers Face Closer Scrutiny From Industry Self-Regulatory Bodies

With paywalls and premium subscriptions finding only modest success, paid advertisements remain the primary means of generating revenue from online content. Native advertising has emerged as a leader in the competition for ad…more

Advertising, Behavioral Advertising, Better Business Bureau, Digital Advertising Alliance, Facebook

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Cal. App. Court Finds in Favor of “Whistleblower” Who Never Blew the Whistle

In Diego v. Pilgrim United Church of Christ, — Cal.Rptr.3d —-, 2014 WL 6602601 (Cal. App. 4 Dist.), the California Court of Appeal determined that Cecilia Diego (Plaintiff) could pursue a common law public policy retaliation…more

Adverse Employment Action, Churches, Corporate Counsel, Employer Liability Issues, Public Policy

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Second Circuit Clarifies Elements of Tippee Liability for Insider Trading

The U.S. Court of Appeals for the Second Circuit recently clarified the elements required to hold a tippee liable for insider trading: a tippee cannot be held liable unless the Government proves that the tippee knew both (i)…more

Fiduciary Duty, Hedge Funds, Insider Trading, Portfolio Managers, Securities

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

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

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

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

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

Employee Rights, Facebook, NLRA, NLRB, Social Media

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Tips For Setting Employees’ Salaries And Benefits For MultiNational Companies

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

Bonuses, Discrimination, Employee Benefits, Minimum Wage, Multinationals

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Fifth Circuit Refuses Application of Bright-Line Test in FLSA Seaman Exemption Dispute

On November 13, 2014, the Fifth Circuit handed down its opinion in Coffin v. Blessey Marine Services, Inc., No. 13-20144, 2014 WL 5904734 (5th Cir. Nov. 13, 2014). The opinion addressed several key factors related to the FLSA’s…more

Employer Liability Issues, Exemptions, FLSA, Seamen, Vessels

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Four More New Jersey Cities Enact Sick Leave Laws

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

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

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DOL’s New Audit Focus? Health Plan Claims and Appeals and Hard to Value Assets

In recent talks and appearances, representatives of the U.S. Department of Labor have issued a warning about new areas of focus of DOL audits and enforcement actions. While there are a number of different enforcement priorities,…more

Administrative Appeals, AICPA, Audits, Benefit Plan Sponsors, Claims Procedures

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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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EEOC Wellness Program Suits Highlight Need for Agency Guidance

The EEOC has been pursuing litigation against wellness programs of late, arguing that certain health plan penalties render participation in wellness program health screens ”involuntary” and thus violate Americans with…more

ADA, Affordable Care Act, EEOC, Employer Liability Issues, Enforcement Actions

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

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

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

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The ERISA Litigation Newsletter - June 2013

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

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

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

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

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

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IRS to Close “Loophole” on “Sub-Standard” Plans without Hospitalization or Physician Services Coverage

On November 4, 2014, the Internal Revenue Service (“IRS”) announced that it intends to close a perceived “loophole” in health care reform. This so-called loophole allows employers to offer low cost health plans that don’t cover…more

Affordable Care Act, Employer Mandates, IRS, Minimum Essential Coverage

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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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New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

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Second Circuit Clarifies Elements of Tippee Liability for Insider Trading

The U.S. Court of Appeals for the Second Circuit recently clarified the elements required to hold a tippee liable for insider trading: a tippee cannot be held liable unless the Government proves that the tippee knew both (i)…more

Fiduciary Duty, Hedge Funds, Insider Trading, Portfolio Managers, Securities

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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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Ninth Circuit Breathes Life Into Participant’s Claim for Surcharge

A panel of the Ninth Circuit withdrew its earlier opinion and has now joined other circuits in finding that the equitable remedy of surcharge is available for participants seeking recovery of personal losses as opposed to losses…more

Breach of Duty, Equitable Surcharge, Fiduciary Duty, Pensions

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5th Circuit: Outing Whistleblower Equals Adverse Action

On November 12, 2014, in Halliburton, Inc. v. Admin. Review Bd., 5th Cir. No. 13-cv-60323, the Fifth Circuit affirmed an ARB’s decision that disclosing the identity of a whistleblower may constitute an “adverse action” under…more

Administrative Review Board, Adverse Employment Action, Corporate Counsel, Employer Liability Issues, Halliburton

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Recent Appellate Decisions Limit Access To Customer Assets Held At Foreign Bank Branches

On October 23, 2014, the New York Court of Appeals held for the first time that, under New York law, the "separate entity" rule prevents a court from ordering a foreign bank operating branches in New York from restraining a…more

Appeals, Asset Freeze, Banks, Foreign Subsidiaries, Judgment Debtors

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Critics Question SEC’s Increasing Use of Administrative Enforcement Proceedings

The SEC is increasingly bringing enforcement actions in its administrative forum rather than federal district court, setting the stage for a legal and policy battle over this tactic. The SEC’s approach has been made…more

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

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The ERISA Litigation Newsletter

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

Employee Benefits, ERISA, Income Taxes, Overpayment, Pensions

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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

See All Updates »

SEC Permits BDCs to Analyze LPs as Stockholders for Certain Co-Investments

On December 5, 2014, the Securities and Exchange Commission, through the Chief Accountant's Office of its Investment Management Division, issued a Guidance Update in response to a public inquiry regarding co-investment…more

Business Development Companies, Limited Partnerships, SEC, Shareholders

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Three Point Shot - November 2014

Florida Broker Denied Assist in Argentine Soccer Media Rights Deal - 2014 has been a decent year for soccer – ahem, fútbol – in Argentina. An Argentine club team (San Lorenzo) won the 2014 Copa Libertadores, South…more

Copyright, Soccer, Sports, Trademarks

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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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Second Circuit Extends Scope of Federal Jurisdiction In Litigation Arising From The Facebook IPO

In a recent case arising from the Facebook IPO, NASDAQ OMX Group v. UBS Securities, LLC, No. 13-Civ. 2657 (2d Cir. October 31, 2014), the Second Circuit determined that the federal courts had jurisdiction to enjoin an…more

Arbitration, Facebook, Federal Jurisdiction, Gunn Factors, IPO

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Three Point Shot - November 2014

Florida Broker Denied Assist in Argentine Soccer Media Rights Deal - 2014 has been a decent year for soccer – ahem, fútbol – in Argentina. An Argentine club team (San Lorenzo) won the 2014 Copa Libertadores, South…more

Copyright, Soccer, Sports, Trademarks

See All Updates »

Personal Planning Strategies - December 2014

2015 Estate, Gift and GST Tax Update: What This Means for Your Current Will, Revocable Trust and Estate Plan - As we previously reported, the American Taxpayer Relief Act of 2012 (the "Act") made the following permanent:…more

Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax, Gift-Tax Exemption

See All Updates »

New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

See All Updates »

New York Proposes First State Bitcoin Regulations

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

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

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Second Circuit Allows After-Acquired Evidence to Support Termination Decision

On October 9, 2014, the United States Court of Appeals for the Second Circuit, in a summary order, affirmed a district court’s admission of evidence at trial of a former employee’s misconduct, discovered after the employee’s…more

After-Acquired Evidence, Appeals, Corporate Counsel, Evidence, Former Employee

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Massachusetts AG Advises on Domestic Violence Leave Act

The Massachusetts Attorney General recently issued an Advisory regarding the new Domestic Violence Leave Act, which was passed on August 8, 2014. The Advisory helped to clarify some of the requirements of the Act...…more

Domestic Violence, FMLA, Leave of Absence, New Guidance

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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

See All Updates »

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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FCC Confirms Solicited Fax Ads Must Include An Opt-Out

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

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

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Protecting Healthcare and Other Employees From Ebola

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

Africa, CDC, Ebola, Healthcare, Healthcare Professionals

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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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Personal Planning Strategies - December 2014

2015 Estate, Gift and GST Tax Update: What This Means for Your Current Will, Revocable Trust and Estate Plan - As we previously reported, the American Taxpayer Relief Act of 2012 (the "Act") made the following permanent:…more

Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax, Gift-Tax Exemption

See All Updates »

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

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

Corporate Counsel, Retaliation, Sarbanes-Oxley, Whistleblowers

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Broad Definition of "Disability" Endorsed By Fourth Circuit

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

ADA, ADAAA, Disability

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

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

Discrimination, EEOC, Sex Discrimination, Statute of Limitations

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Tips For Setting Employees’ Salaries And Benefits For MultiNational Companies

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

Bonuses, Discrimination, Employee Benefits, Minimum Wage, Multinationals

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

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

Employee Rights, Whistleblowers

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

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

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

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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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Employer Alienage Discrimination – Must You Hire Anyone Authorized to Work?

Could it really be that an employer is obligated to hire any person in the United States who has employment authorization, even if it is short-term and temporary in nature? That may very well be the case if a finding in the…more

DACA, Discrimination, Employer Liability Issues, Foreign Nationals, Hiring & Firing

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Seventh Circuit Criticizes Second Circuit's "Transformative Use" Approach to Fair Use

On September 15, 2014, the U.S. Court of Appeals for the Seventh Circuit issued a notable opinion on the relevance and importance of "transformative use" on the copyright fair use analysis. (Kienitz v. Sconnie Nation LLC, No…more

Appeals, Copyright, Copyright Infringement, Corporate Counsel, Fair Use

See All Updates »

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 »

IRS to Close “Loophole” on “Sub-Standard” Plans without Hospitalization or Physician Services Coverage

On November 4, 2014, the Internal Revenue Service (“IRS”) announced that it intends to close a perceived “loophole” in health care reform. This so-called loophole allows employers to offer low cost health plans that don’t cover…more

Affordable Care Act, Employer Mandates, IRS, Minimum Essential Coverage

See All Updates »

New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

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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

See All Updates »

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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IRS Increases Maximum Employee Contribution to Health Care FSAs for 2015

The IRS announced yesterday that the maximum annual employee contribution to a health care flexible spending account plan is increasing by $50 to $2,550 for 2015 (up from the $2,500 limit that has applied since 2013)…more

Cafeteria Plans, Defined Contribution Plans, Flexible Spending Accounts, Health Insurance, IRS

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The ERISA Litigation Newsletter

Editor's Overview - As it is well known, in Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), the U.S. Supreme Court identified several forms of appropriate equitable relief that may be available under Section 502(a)(3) of…more

ADEA, Choice-of-Venue, CIGNA v Amara, Compensatory Awards, Employer Group Health Plans

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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

See All Updates »

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

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

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Five Million Dollar Penalty is Stark Reminder About "Gun Jumping"

On November 7, 2014, the Antitrust Division of the Department of Justice ("DOJ") announced that it had imposed a civil penalty of $3.8M and disgorgement of $1.15M in profits on Flakeboard America Limited (and its parent company)…more

Antitrust Provisions, Civil Monetary Penalty, Disgorgement, DOJ, Due Diligence

See All Updates »

New York Proposes First State Bitcoin Regulations

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

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

See All Updates »

Five Million Dollar Penalty is Stark Reminder About "Gun Jumping"

On November 7, 2014, the Antitrust Division of the Department of Justice ("DOJ") announced that it had imposed a civil penalty of $3.8M and disgorgement of $1.15M in profits on Flakeboard America Limited (and its parent company)…more

Antitrust Provisions, Civil Monetary Penalty, Disgorgement, DOJ, Due Diligence

See All Updates »

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

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

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

See All Updates »

New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

See All Updates »

Seventh Circuit Criticizes Second Circuit's "Transformative Use" Approach to Fair Use

On September 15, 2014, the U.S. Court of Appeals for the Seventh Circuit issued a notable opinion on the relevance and importance of "transformative use" on the copyright fair use analysis. (Kienitz v. Sconnie Nation LLC, No…more

Appeals, Copyright, Copyright Infringement, Corporate Counsel, Fair Use

See All Updates »

Personal Planning Strategies - December 2014

2015 Estate, Gift and GST Tax Update: What This Means for Your Current Will, Revocable Trust and Estate Plan - As we previously reported, the American Taxpayer Relief Act of 2012 (the "Act") made the following permanent:…more

Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax, Gift-Tax Exemption

See All Updates »

Five Million Dollar Penalty is Stark Reminder About "Gun Jumping"

On November 7, 2014, the Antitrust Division of the Department of Justice ("DOJ") announced that it had imposed a civil penalty of $3.8M and disgorgement of $1.15M in profits on Flakeboard America Limited (and its parent company)…more

Antitrust Provisions, Civil Monetary Penalty, Disgorgement, DOJ, Due Diligence

See All Updates »

Three Point Shot - November 2014

Florida Broker Denied Assist in Argentine Soccer Media Rights Deal - 2014 has been a decent year for soccer – ahem, fútbol – in Argentina. An Argentine club team (San Lorenzo) won the 2014 Copa Libertadores, South…more

Copyright, Soccer, Sports, Trademarks

See All Updates »

Personal Planning Strategies - December 2014

2015 Estate, Gift and GST Tax Update: What This Means for Your Current Will, Revocable Trust and Estate Plan - As we previously reported, the American Taxpayer Relief Act of 2012 (the "Act") made the following permanent:…more

Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax, Gift-Tax Exemption

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

See All Updates »

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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Proskauer Obtains Dismissal of High-Stakes False Claims Act Suit

On August 7, 2014, Judge Castel of the Southern District of New York dismissed a False Claims Act (“FCA”) complaint that was based primarily on allegations that the defendant Hospital improperly focused on referral revenue in…more

False Claims Act, Fraud, Healthcare, Healthcare Fraud, Hospitals

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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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Strong HSR Compliance Programs Remain a Necessity

Continued strong antitrust enforcement under the Hart-Scott-Rodino Act (HSR) reminds us that HSR compliance issues can arise in unexpected places. When Berkshire Hathaway Inc. acquired voting securities of Symetra Financial…more

Antitrust Litigation, Berkshire Hathaway, Compliance, FTC, Hart-Scott-Rodino Act

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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

See All Updates »

Five Million Dollar Penalty is Stark Reminder About "Gun Jumping"

On November 7, 2014, the Antitrust Division of the Department of Justice ("DOJ") announced that it had imposed a civil penalty of $3.8M and disgorgement of $1.15M in profits on Flakeboard America Limited (and its parent company)…more

Antitrust Provisions, Civil Monetary Penalty, Disgorgement, DOJ, Due Diligence

See All Updates »

New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

See All Updates »

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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More “Texas Justice” For Policyholder On Contractual Liability Exclusion

On October 29, the Fifth Circuit reversed itself for the second time this year in a case involving the interpretation of a contractual liability exclusion in a CGL policy. This recent decision by the Fifth Circuit in Crownover…more

Appeals, Commercial General Liability Policies, Construction Defects, Indemnification Clauses, 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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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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European DPA’s Give Privacy Recommendations to Stakeholders Regarding the “Internet of Things”

The Article 29 Working Party, which is composed of representatives of DPA’s from every European country, has recently rendered an opinion on data privacy issues surrounding the development of the “Internet of Things” (IoT),…more

Data Protection, EU, Internet of Things, Mobile Privacy, Popular

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National Labor Relations Board Issues New Rules Looking to Speed up Union Election Process

On December 12, 2014, the National Labor Relations Board (NLRB or the Board) issued its long-promised revision to its representation-case procedures. In its 733-page final rule, the Board outlined various changes that will take…more

Ambush Election Rules, Final Rules, NLRB, Union Elections, Unions

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Three Point Shot - November 2014

Florida Broker Denied Assist in Argentine Soccer Media Rights Deal - 2014 has been a decent year for soccer – ahem, fútbol – in Argentina. An Argentine club team (San Lorenzo) won the 2014 Copa Libertadores, South…more

Copyright, Soccer, Sports, Trademarks

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Texas Federal Court Clarifies Broad Scope of Professional Liability Policies for Lawyers

Lawyers may be surprised to learn that lawsuits brought by clients challenging something other than purely legal advice or advocacy—such as billing—may not be covered by their professional liability policies. Interpreting the…more

Contract Disputes, Liability Insurance, Policy Exclusions, Professional Liability

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New Massachusetts Law Entitles Employees to Domestic Violence Leave

On August 8, 2014, Massachusetts Governor Deval Patrick signed into law a far-reaching Act designed to combat the problems of domestic violence. Notably, the Act became effective immediately upon the Governor signing it into…more

Crime Victims, Domestic Violence, Employee Rights, Paid Leave, Unpaid Leave

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Personal Planning Strategies - December 2014

2015 Estate, Gift and GST Tax Update: What This Means for Your Current Will, Revocable Trust and Estate Plan - As we previously reported, the American Taxpayer Relief Act of 2012 (the "Act") made the following permanent:…more

Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax, Gift-Tax Exemption

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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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CFTC Grants Relief to Family Offices from Registration as Commodity Trading Advisor

On November 5, 2014, the U.S. Commodity Futures Trading Commission (CFTC) issued a no-action letter granting relief from registration as a commodity trading advisor (CTA) to family offices that qualify for the family office…more

CFTC, Commodities, CTA, Family Offices, Investment Adviser

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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

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Employer Alienage Discrimination – Must You Hire Anyone Authorized to Work?

Could it really be that an employer is obligated to hire any person in the United States who has employment authorization, even if it is short-term and temporary in nature? That may very well be the case if a finding in the…more

DACA, Discrimination, Employer Liability Issues, Foreign Nationals, Hiring & Firing

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Illinois Court of Appeals Decision Serves as Caution to Policyholders Seeking Coverage for Underlying Settlements

The Illinois Court of Appeals recently issued an opinion providing guidance for policyholders seeking insurance coverage under commercial liability policies for settlements to resolve class actions asserted against them. In…more

Class Action, Commercial General Liability Policies, Settlement, TCPA, Unsolicited Faxes

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What KIND of Juice Did They Say It Was?

On July 14, 2014, Northern District of Illinois Judge Sara L. Ellis dealt a blow to putative class action members protesting the use of “evaporated cane juice” to describe sugar in product ingredients lists. Plaintiff alleged…more

Evaporated Cane Juice, FDA, Food Labeling, Food Manufacturers, Putative Class Actions

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Advertising Industry Enforces Enhanced Behavioral Advertising Notice Requirements on Websites

On October 28, the Online Interest-Based Advertising Accountability Program (Accountability Program), released five decisions in which the website operators have agreed to update their respective websites to provide enhanced…more

Advertising, Behavioral Advertising, Digital Advertising Alliance, Notice Requirements, Websites

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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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Proskauer Obtains Dismissal of High-Stakes False Claims Act Suit

On August 7, 2014, Judge Castel of the Southern District of New York dismissed a False Claims Act (“FCA”) complaint that was based primarily on allegations that the defendant Hospital improperly focused on referral revenue in…more

False Claims Act, Fraud, Healthcare, Healthcare Fraud, Hospitals

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Employees Face Uphill Battle in Holding Private Equity Firms Accountable under WARN Act

The United States District Court in Delaware recently issued a welcome decision for private equity firms whose portfolio companies run afoul of the Worker Adjustment and Retraining Notification Act (the “WARN Act”). In In re…more

Commercial Bankruptcy, Employer Liability Issues, Investment Firms, Private Equity, Subsidiaries

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SCOTUS to Review Subsidy Issue

On November 7, the U.S. Supreme Court announced it was going to review King v. Burwell. At issue in the case is whether Fourth Circuit correctly determined that the IRS did not exceed its authority when it released a rule in…more

Affordable Care Act, Healthcare, Healthcare Reform, King v Burwell, SCOTUS

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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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Voters in Four Jurisdictions Pass Sick Leave Ballot Initiatives

The national sick leave trend continues to gain momentum as voters in Massachusetts, Trenton and Montclair, New Jersey, and Oakland, California approved ballot initiatives requiring employers within each jurisdiction to provide…more

Ballot Measures, Popular, Sick Leave

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From the Right to be Forgotten to the Right to an “e-Reputation’’: First Enforceability Ordered by French Court under Penalty

A few months after the European Court of Justice ruled on May 13, 2014 that search engines are considered personal data controllers under the EU Data Protection Directive of 1995 and, as such, should provide data subjects with a…more

Data Controller, EU Data Protection Laws, France, Google, Right to Be Forgotten

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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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Court Affirms $3M Jury Award In Illinois Whistleblower Action

On August 28, 2014, Judge James McCarthy issued a decision in Crawley v. Chicago State University, Case No. 10 L 12657 (Cook County, Ill., Law Div.), affirming payment of over $3 million to Plaintiff James Crowley (“Plaintiff”),…more

Chicago State University, Colleges, Jury Awards, Retaliation, Universities

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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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CFTC Grants Relief to Family Offices from Registration as Commodity Trading Advisor

On November 5, 2014, the U.S. Commodity Futures Trading Commission (CFTC) issued a no-action letter granting relief from registration as a commodity trading advisor (CTA) to family offices that qualify for the family office…more

CFTC, Commodities, CTA, Family Offices, Investment Adviser

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New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

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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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E-Verify Maintenance Requirements Modified to Minimize Security Risks

On January 1, 2015, the United States Citizenship and Immigration Service (USCIS) will begin disposing of E-Verify records that are over 10 years old in accordance with the National Archives Records Administration records…more

Data Protection, E-Verify, Immigration Procedures, Immigration Records, USCIS

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National Labor Relations Board Issues New Rules Looking to Speed up Union Election Process

On December 12, 2014, the National Labor Relations Board (NLRB or the Board) issued its long-promised revision to its representation-case procedures. In its 733-page final rule, the Board outlined various changes that will take…more

Ambush Election Rules, Final Rules, NLRB, Union Elections, Unions

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NYS Wage Theft Prevention Action – Summer 2014 Amendments Still Pending

This summer, we wrote about a bill passed by both the New York State Assembly and Senate to amend the New York State Wage Theft Prevention Act (the WTPA). Among other things, the amendments would eliminate the need for…more

Amended Legislation, Employer Mandates, Notice Requirements, Wage Theft Prevention Act

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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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ISS, Glass Lewis Release 2015 Proxy Voting Updates; Espouse Nuanced Review of Equity Compensation Practices

Proxy advisory firms Institutional Shareholder Services, or ISS, and Glass Lewis released their 2015 executive compensation proxy voting updates that may be particularly relevant for public companies that intend to submit new or…more

Employee Stock Purchase Plans, Equity Compensation, Executive Compensation, Glass Lewis, ISS

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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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Wasted Away in Margaritaville: With Unascertainable Class, District Court Denies Class Certification in Skinnygirl Margarita Case

Alleging violations of Illinois statutory and common law, Amy Langendorf brought suit on behalf of “Any and all persons who purchased ‘Skinnygirl’ Margarita spirits in Illinois from March 1, 2009 until the date notice is…more

Ascertainable Class, Class Action, Class Certification, False Advertising, Food Labeling

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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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Sixth Circuit Declines Deference to DOL and Enforces Venue Selection Clause

The Sixth Circuit recently held that a venue selection clause in an ERISA-governed pension plan was enforceable and, in so ruling, refused to give deference to the DOL’s contrary position. See Smith v. AEGON Cos. Pension Plan,…more

Choice-of-Venue, DOL, ERISA, Jurisdiction, Successor Liability

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Texas Supreme Court Denies Policyholder’s Discovery Regarding Claims Handling

It is rare to see a state’s highest court address a discovery issue. But the Supreme Court of Texas did just that recently in In re National Lloyds Insurance Co., holding that a policyholder’s demands for discovery about how…more

Bad Faith, Claims Adjusters, Discovery, Homeowner's Insurance, Property Damage

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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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Highlights of SEC’s 2014 Annual Report

On November 17, 2014, the Securities and Exchange Commission’s Office of the Whistleblower (“OWB”) released its fourth Annual Report on the Dodd-Frank Whistleblower Program to Congress, which details information on OWB’s…more

Annual Reports, Dodd-Frank, SEC, Whistleblower Awards, Whistleblower Protection Policies

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FCC: The New Data Security Sheriff In Town

Data security seems to make headlines nearly every week, but last Friday, a new player entered the ring. The Federal Communications Commission (“FCC”) took its first foray into the regulation of data security, an area that has…more

Communications Act of 1934, Data Protection, Electronically Stored Information, FCC, Personally Identifiable Information

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New Agency FAQs Drive a Stake Further into the Heart of Premium Reimbursement Arrangements and Eliminate a Common Executive Perk

In clear and unambiguous terms, the U.S. Departments of Labor (“DOL”) and Health and Human Services and the Internal Revenue Service (“IRS”) (the “Agencies”) drove a stake into the heart of two suspect health insurance…more

Affordable Care Act, DOL, Employer Liability Issues, Employer Mandates, Health Insurance

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SONY Pictures Breach Stresses Need to Revisit Document and Email Retention Policies

The SONY Pictures cybersecurity breach playing out in public over the last few weeks is just the latest in a series of high profile cybersecurity breaches. This one is a little different than some of the other commercial…more

Class Action, Cyber Attacks, Cybersecurity, Data Breach, Data Retention

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New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

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Lawsuits Grow Under “Old” Pennsylvania Background Check Law

A growing number of states and localities have enacted laws that restrict employers from considering certain types of criminal records in hiring and other personnel decisions. Though many of these laws are more recent,…more

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Supreme Court Told That TTAB Preclusion Raises Constitutional Concerns

As reported in our September 23 Client Alert, the Supreme Court is set to hear argument on December 2 on the issue of whether likelihood of confusion findings by the Trademark Trial and Appeal Board (TTAB) are entitled to…more

Claim Preclusion, Lanham Act, Likelihood of Confusion, Patent Infringement, Patent Litigation

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HIPAA Certificates Are No Longer Required As of January 1, 2015

Effective January 1, 2015, group health plans and insurers are no longer required to issue a certificate of creditable coverage (“HIPAA Certificate”) to individuals who lost group health plan coverage. As a reminder, HIPAA…more

Affordable Care Act, Employer Group Health Plans, HIPAA, Insurers

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What KIND of Juice Did They Say It Was?

On July 14, 2014, Northern District of Illinois Judge Sara L. Ellis dealt a blow to putative class action members protesting the use of “evaporated cane juice” to describe sugar in product ingredients lists. Plaintiff alleged…more

Evaporated Cane Juice, FDA, Food Labeling, Food Manufacturers, Putative Class Actions

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California Employment Law Notes

Google Required To Produce Emails In Response To Former Employer's Subpoena - Negro v. Superior Court, 2014 WL 5341926 (Cal. Ct. App. 2014) - Navalimpianti USA, Inc. subpoenaed Google, Inc. to produce copies of…more

Email, Employee Rights, False Imprisonment, Fitness for Duty Exams, Google

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Five Million Dollar Penalty is Stark Reminder About "Gun Jumping"

On November 7, 2014, the Antitrust Division of the Department of Justice ("DOJ") announced that it had imposed a civil penalty of $3.8M and disgorgement of $1.15M in profits on Flakeboard America Limited (and its parent company)…more

Antitrust Provisions, Civil Monetary Penalty, Disgorgement, DOJ, Due Diligence

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Three Point Shot - November 2014

Florida Broker Denied Assist in Argentine Soccer Media Rights Deal - 2014 has been a decent year for soccer – ahem, fútbol – in Argentina. An Argentine club team (San Lorenzo) won the 2014 Copa Libertadores, South…more

Copyright, Soccer, Sports, Trademarks

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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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Seventh Circuit Criticizes Second Circuit's "Transformative Use" Approach to Fair Use

On September 15, 2014, the U.S. Court of Appeals for the Seventh Circuit issued a notable opinion on the relevance and importance of "transformative use" on the copyright fair use analysis. (Kienitz v. Sconnie Nation LLC, No…more

Appeals, Copyright, Copyright Infringement, Corporate Counsel, Fair Use

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Don't Lose Your Trademark Through Careless Licensing

Trademark practitioners are well familiar with the requirement under U.S. law that trademark licenses must contain quality control provisions, and trademark licensors must actually exercise quality control in fact, to ensure…more

License Agreements, Popular, Quality Control Plan, Trademark Litigation, Trademarks

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NYS Wage Theft Prevention Action – Summer 2014 Amendments Still Pending

This summer, we wrote about a bill passed by both the New York State Assembly and Senate to amend the New York State Wage Theft Prevention Act (the WTPA). Among other things, the amendments would eliminate the need for…more

Amended Legislation, Employer Mandates, Notice Requirements, Wage Theft Prevention Act

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3d Cir.: Dodd-Frank Anti-Arbitration Provisions Do Not Apply To Dodd-Frank Whistleblower Retaliation Claims

On December 8, 2014, the Third Circuit ruled that Dodd-Frank’s anti-arbitration provisions do not invalidate pre-dispute arbitration agreements with respect to whistleblower retaliation claims brought pursuant to the…more

Adverse Employment Action, Arbitration, Dodd-Frank, Employer Liability Issues, Retaliation

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Firms Have Roadmap for Expanding Litigation of Customer Disputes After Second Circuit Holds Forum Selection Clauses Trump FINRA’s Mandatory Arbitration Rule

In the recent decision, Goldman Sachs & Co. v. Golden Empire Sch. Fin. Auth., 764 F.3d 210 (2d Cir. 2014), the Second Circuit held that nearly-identical forum selection clauses in broker-dealer agreements between the…more

Broker-Dealer, FINRA, Forum Selection Clause, Goldman Sachs, Mandatory Arbitration Clauses

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Thou Shalt Not Bully – Employers Must Educate Supervisors about “Abusive Conduct”

California businesses that have 50 or more employees are already required to train supervisors on legally prohibited sexual harassment. Following California Governor Jerry Brown’s recent signing of A.B. 2053, that training must…more

Bullying, Training, Workplace Bullying

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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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Firms Have Roadmap for Expanding Litigation of Customer Disputes After Second Circuit Holds Forum Selection Clauses Trump FINRA’s Mandatory Arbitration Rule

In the recent decision, Goldman Sachs & Co. v. Golden Empire Sch. Fin. Auth., 764 F.3d 210 (2d Cir. 2014), the Second Circuit held that nearly-identical forum selection clauses in broker-dealer agreements between the…more

Broker-Dealer, FINRA, Forum Selection Clause, Goldman Sachs, Mandatory Arbitration Clauses

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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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National Labor Relations Board Issues New Rules Looking to Speed up Union Election Process

On December 12, 2014, the National Labor Relations Board (NLRB or the Board) issued its long-promised revision to its representation-case procedures. In its 733-page final rule, the Board outlined various changes that will take…more

Ambush Election Rules, Final Rules, NLRB, Union Elections, Unions

See All Updates »

New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

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Fourth Circuit Holds That Insurer Waived Right to Rescind Commercial Property Policy

A powerful weapon in any policyholder’s arsenal is the potential to argue that an insurer waived its right to rescind a policy or deny coverage. Successfully arguing waiver may allow a policyholder to obtain coverage even where…more

Insurers, Misrepresentation, Rescission, Waivers

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Lawful Waffle: California Courts Dismiss “Natural” Food False Ad Claims

Two California courts have recently dismissed false advertising claims concerning the marketing of food products as “natural,” marking a departure from the trend in consumer class actions in that state. In Richards et…more

Advertising, Class Action, Corporate Counsel, False Advertising, Food Labeling

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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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Personal Planning Strategies - December 2014

2015 Estate, Gift and GST Tax Update: What This Means for Your Current Will, Revocable Trust and Estate Plan - As we previously reported, the American Taxpayer Relief Act of 2012 (the "Act") made the following permanent:…more

Estate Tax, Estate-Tax Exemption, Generation-Skipping Transfer, Gift Tax, Gift-Tax Exemption

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DOL’s New Audit Focus? Health Plan Claims and Appeals and Hard to Value Assets

In recent talks and appearances, representatives of the U.S. Department of Labor have issued a warning about new areas of focus of DOL audits and enforcement actions. While there are a number of different enforcement priorities,…more

Administrative Appeals, AICPA, Audits, Benefit Plan Sponsors, Claims Procedures

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The ERISA Litigation Newsletter

Editor's Overview - As it is well known, in Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), the U.S. Supreme Court identified several forms of appropriate equitable relief that may be available under Section 502(a)(3) of…more

ADEA, Choice-of-Venue, CIGNA v Amara, Compensatory Awards, Employer Group Health Plans

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ISS, Glass Lewis Release 2015 Proxy Voting Updates; Espouse Nuanced Review of Equity Compensation Practices

Proxy advisory firms Institutional Shareholder Services, or ISS, and Glass Lewis released their 2015 executive compensation proxy voting updates that may be particularly relevant for public companies that intend to submit new or…more

Employee Stock Purchase Plans, Equity Compensation, Executive Compensation, Glass Lewis, ISS

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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

See All Updates »

Procedural Errors Don’t Alter Standard of Review In ERISA Claim for Benefits

The Ninth Circuit recently held that where an ERISA plan provides the plan administrator discretionary authority to determine benefit claims, procedural violations that occur during the course of the administrative claims…more

Claim Procedures, ERISA, Plan Administrators

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Multiple PAGA Representative Claims Crumble As Federal Courts Continue To Reject Iskanian and Enforce Arbitration Agreements Containing PAGA Waivers

When the California Supreme Court decided Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348 (2014), this June, some legal commentators assumed that employees could not waive pre-litigation claims under the Private…more

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

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Massachusetts AG Advises on Domestic Violence Leave Act

The Massachusetts Attorney General recently issued an Advisory regarding the new Domestic Violence Leave Act, which was passed on August 8, 2014. The Advisory helped to clarify some of the requirements of the Act...…more

Domestic Violence, FMLA, Leave of Absence, New Guidance

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Second Circuit Allows After-Acquired Evidence to Support Termination Decision

On October 9, 2014, the United States Court of Appeals for the Second Circuit, in a summary order, affirmed a district court’s admission of evidence at trial of a former employee’s misconduct, discovered after the employee’s…more

After-Acquired Evidence, Appeals, Corporate Counsel, Evidence, Former Employee

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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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Employees Face Uphill Battle in Holding Private Equity Firms Accountable under WARN Act

The United States District Court in Delaware recently issued a welcome decision for private equity firms whose portfolio companies run afoul of the Worker Adjustment and Retraining Notification Act (the “WARN Act”). In In re…more

Commercial Bankruptcy, Employer Liability Issues, Investment Firms, Private Equity, Subsidiaries

See All Updates »

Second Circuit Clarifies Elements of Tippee Liability for Insider Trading

The U.S. Court of Appeals for the Second Circuit recently clarified the elements required to hold a tippee liable for insider trading: a tippee cannot be held liable unless the Government proves that the tippee knew both (i)…more

Fiduciary Duty, Hedge Funds, Insider Trading, Portfolio Managers, Securities

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Three Point Shot - November 2014

Florida Broker Denied Assist in Argentine Soccer Media Rights Deal - 2014 has been a decent year for soccer – ahem, fútbol – in Argentina. An Argentine club team (San Lorenzo) won the 2014 Copa Libertadores, South…more

Copyright, Soccer, Sports, Trademarks

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Broker-Dealer Beat - December 2014

New FOCUS Reporting Requirement Commences January 2015 - A new FOCUS reporting requirement designed to enhance FINRA's ongoing monitoring of members' financial condition will take effect for the new year. Beginning…more

Broker-Dealer, FINRA, Market Participants, Regulation SCI, Reporting Requirements

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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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New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

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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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How to Settle an ERISA Breach of Fiduciary Duty Case and Sleep at Night: A Checklist for Plan Trustees to Consider

Plan trustees often look to settle ERISA fiduciary breach claims brought against them as a way to put the past behind them. Assuming there is enough fiduciary liability insurance coverage available to pay the proposed settlement…more

Benefit Plan Sponsors, Breach of Duty, DOL, ERISA, Fiduciary Duty

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Three Point Shot - November 2014

Florida Broker Denied Assist in Argentine Soccer Media Rights Deal - 2014 has been a decent year for soccer – ahem, fútbol – in Argentina. An Argentine club team (San Lorenzo) won the 2014 Copa Libertadores, South…more

Copyright, Soccer, Sports, Trademarks

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Further Expanding An Already Expansive NJ Whistleblowing Law

Often touted as the most expansive state whistleblowing law in the U.S., New Jersey’s seemingly boundless Conscientious Employee Protection Act (“CEPA”) may get even broader…more

Employer Liability Issues, New Legislation, Whistleblower Protection Policies

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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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Trends in New Jersey Employment Law - October 2014

Four More New Jersey Cities Enact Sick Leave Laws - Four New Jersey municipalities—Passaic, Paterson, Irvington, and East Orange—recently enacted ordinances requiring employers to provide paid sick leave to their…more

Anti-Retaliation Provisions, Collective Bargaining, Employee Rights, Employment Policies, Local Ordinance

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Amendments To DC Accrued Sick And Safe Leave Act Now Fully Apply To Employers

As if employers in DC didn’t have enough to worry about, the 2013 amendments to the District of Columbia Accrued Sick and Safe Leave Act of 2008 (“ASSLA”), which became effective in March 2014, finally became fully applicable to…more

Employee Rights, Paid Leave, Sick Leave

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Lawsuits Grow Under “Old” Pennsylvania Background Check Law

A growing number of states and localities have enacted laws that restrict employers from considering certain types of criminal records in hiring and other personnel decisions. Though many of these laws are more recent,…more

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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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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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In The Eleventh Circut, Employers Can Terminate “Protected” Employees For Poor Performance And Violation Of Company Policy

On December 4, 2014, the U.S. Court of Appeals for the Eleventh Circuit upheld summary judgment in favor of an employer against a pregnant employee who had requested FMLA, who was told by her direct supervisor “that [her]…more

Appeals, FMLA, Poor Job Performance, Pregnancy, Pregnancy Discrimination

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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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New Developments on International Automatic Financial Information Exchange and Disclosure

We last updated our clients and friends in February 2014 (Feb 2014 Memorandum) on issues related to the disclosure and automatic exchange of financial information on an international basis. Since then, the pressure from…more

G20, International Financial Reporting Standards, Multilateral Agreement, OECD

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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

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The ERISA Litigation Newsletter

Editor's Overview - As it is well known, in Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), the U.S. Supreme Court identified several forms of appropriate equitable relief that may be available under Section 502(a)(3) of…more

ADEA, Choice-of-Venue, CIGNA v Amara, Compensatory Awards, Employer Group Health Plans

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SEC Permits BDCs to Analyze LPs as Stockholders for Certain Co-Investments

On December 5, 2014, the Securities and Exchange Commission, through the Chief Accountant's Office of its Investment Management Division, issued a Guidance Update in response to a public inquiry regarding co-investment…more

Business Development Companies, Limited Partnerships, SEC, Shareholders

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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 Supreme Court Clarifies an Insurer’s Duty to Defend in Disparagement Cases

Advertising injury liability coverage offered under commercial general liability (“CGL”) policies is aimed at protecting companies against claims, often brought by competitors, alleging harm by purportedly derogatory statements…more

Advertising, Advertising Injury, Commercial General Liability Policies, Disparagement, Duty to Defend

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