Proskauer Rose LLP

2016 Proskauer Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

Accredited Investors, Administrative Proceedings, ALJ, Annual Reports, Brazil

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A Bogosian Shortcut Through the Mushroom Patch – The Latest Chapter of a Fairytale Doctrine

Few cases in the antitrust canon have been invoked more frequently, for the wrong reasons, than the Third Circuit’s 1977 decision in Bogosian v. Gulf Oil. For four decades now – culminating in the recent release of a decision…more

Antitrust Conspiracies, Antitrust Litigation, Class Action, Class Certification, Price-Fixing

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2016 Proskauer Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

Accredited Investors, Administrative Proceedings, ALJ, Annual Reports, Brazil

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Value Insights: Delivering Value in Labor and Employment Law survey

Proskauer's Labor and Employment Law Department released its Value Insights: Delivering Value in Labor and Employment Law survey, a resource that illuminates current practices and future trends in managing labor and employment…more

Alternative Fee Arrangements, Arbitration Agreements, Class Action, Electronically Stored Information, FLSA

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EEOC Announces New EEO-1 Rule

Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it had finalized its rule for new EEO-1 pay equity reporting requirements.  The final rule has not yet been published in the Federal Register…more

Data Collection, EEO-1, EEOC, Employment Discrimination, Equal Pay

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2016 Proskauer Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

Accredited Investors, Administrative Proceedings, ALJ, Annual Reports, Brazil

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Policy Fights in the Courts: United States v. Texas

On April 18, 2016, the Supreme Court heard oral argument in a major immigration suit, United States v. Texas. This case is a highly-politicized lawsuit in which dozens of states have sued the federal government over what is…more

Administrative Procedure Act, Arbitrary and Capricious, Article III, DACA, Driver's Licenses

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

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

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

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

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

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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ERISA Litigation Newsletter - July 2016

Editor's Overview - This month we take a look at the plaintiffs' past successes in fee litigations, and the influx of such lawsuits seeking to impose heightened fiduciary standards for 401(k) plans. Regardless of the…more

401k, Best Interest Contract Exemptions, Chevron Deference, CMS, Conflicts of Interest

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SEC Staff Issues Guidance Affecting the Registration of Securities for Resale on Form S-3

The staff of the Securities and Exchange Commission recently issued interpretive guidance relating to the registration of the resale of shares sold to an investor pursuant to a private placement, if the issuer concurrently sold,…more

Form S-1, Form S-3, Private Company Shares, Private Resales, Registration Statement

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

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

Notice Requirements, Proposed Legislation, Wage Theft Prevention Act

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A Cloud on the Horizon? Attorneys’ Obligations when Using a Third-Party’s Cloud-Based Services

When we think of clouds, we likely picture cumulus, stratus, and cirrus ones, not the type of “cloud” that holds data and software. The latter type of cloud is generally controlled by a third-party service provider and is used…more

Advisory Opinions, Attorney-Client Privilege, Cloud Computing, Cloud Storage, Confidential Information

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No Stay Pending IPR in Brewing Patent Dispute

District court patent defendants often request a parallel inter partes review (“IPR”) proceeding at the U.S. Patent Office to challenge the validity of the patent at issue. As such IPR proceedings have the potential to kill the…more

Declaratory Judgments, Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Keurig Inc, Patent Infringement

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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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SEC Overrules Its Own Administrative Law Judge to Clear Customer of Fraud Charges

In a rare reversal of its own administrative law judge in the Matter of optionsXpress, the full Securities and Exchange Commission unanimously held that the SEC’s Enforcement Division had not met its burden of proof that the…more

ALJ, Broker-Dealer, Enforcement Actions, Financial Markets, Market Manipulation

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IRS Issues Final and Temporary Debt-Equity Regulations Under Section 385

On October 13, 2016, the Treasury Department and the Internal Revenue Service issued final and temporary regulations under section 385 of the Internal Revenue Code. The final and temporary regulations recharacterize certain debt…more

Acquisitions, Bifurcation, Corporate Taxes, De Minimus Quantity Exemption, Debt Instruments

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Supreme Court Reaffirms Personal-Benefit Requirement for Insider Trading

The Supreme Court confirmed today that the "personal benefit" required to establish a claim for insider trading can consist of making a gift of material, nonpublic information to a family member or friend and that an exchange of…more

Confidential Information, Dirks v SEC, Fiduciary Duty, Financial Markets, Illegal Tipping

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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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Seventh Circuit Affirms Denial of Class Certification for Failure to Show Commonality under Dukes in Vacation Pay Suit

Last week, in McCaster et al. v. Darden Restaurants, Inc. et al., No. 15-3258 (7th Cir. Jan. 5, 2017), the Seventh Circuit relied on Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) and affirmed the district court’s denial of…more

Class Action, Class Certification, Commonality, Dukes v Wal-Mart, Hiring & Firing

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A Month in UK Employment Law - November 2016

Taxation of termination payments draft legislation published - At present, in certain circumstances the first £30,000 of a termination payment is exempt from income tax and national insurance ("NIC"). However, there have…more

BIS, Data Protection Authority, Disability Discrimination, Employment Contract, Employment Rights Act

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The ERISA Litigation Newsletter - May 2015

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

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

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Illinois Prohibits Non-Compete Agreements with Low-Wage Employees

Effective January 1, 2017, the Illinois Freedom to Work Act (the “Act”) will prohibit private sector employers from entering into non-competition agreements with employees earning a “low wage.” The Act defines low-wage…more

Freedom To Work Act, Low-Wage Workers, Minimum Wage, Non-Compete Agreements, Restrictive Covenants

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Seventh Circuit Affirms Denial of Class Certification for Failure to Show Commonality under Dukes in Vacation Pay Suit

Last week, in McCaster et al. v. Darden Restaurants, Inc. et al., No. 15-3258 (7th Cir. Jan. 5, 2017), the Seventh Circuit relied on Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) and affirmed the district court’s denial of…more

Class Action, Class Certification, Commonality, Dukes v Wal-Mart, Hiring & Firing

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Three Point Shot - December 2016

In Partial Trademark Victory over Chinese Sportswear Company, MJ Posterizes Unauthorized User of Chinese Version of His Name - In Game 3 of the first round of the 1991 NBA Eastern Conference playoffs between the New York…more

Appeals, Basketball, Breach of Contract, Broadcasting, Burden of Proof

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

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

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

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

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

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

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Second Circuit Seeks Guidance from NY Court of Appeals on Standard for Awarding Punitive Damages Under the New York City Human Rights Law

The Second Circuit is once again seeking guidance from the New York Court of Appeals, this time on the question of the appropriate standard for awarding punitive damages for unlawful discriminatory acts under the New York City…more

Actual Malice, Employment Discrimination, Maternity Leave, NYHRL, Pregnancy Discrimination

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Board Outs 32-Year-Old Rule Allowing Employers to Oust Mixed-Guard Unions

For thirty-two years, it has been a settled proposition that an employer may, upon the expiration of a contract, refuse to continue to negotiate with a “mixed-guard” union that represents its security guards. Continuing its long…more

Collective Bargaining, Collective Bargaining Agreements (CBA), Corporate Counsel, Employer Liability Issues, Expiration Date

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SEC Adopts Higher Net Worth Threshold for Qualified Clients under the Advisers Act

In an order dated June 14, 2016, the Securities and Exchange Commission (SEC) adopted its prior proposal to increase the net worth threshold for "qualified clients" under Rule 205-3 of the Investment Advisers Act of 1940 (the…more

Advisory Contracts, High Net-Worth, Investment Advisers Act of 1940, Investment Company Act of 1940, Performance Fee Rule

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NY Court of Appeals Clarifies What May Constitute a Binding Agreement in the Sale of Syndicated Loans

A unanimous New York Court of Appeals recently held that the acceptance of an auction bid for the sale of a syndicated loan may constitute a final and binding trade, even if there is language indicating that the agreement is…more

Appeals, Auction, Bids, Binding Agreements, Buyers

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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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OFCCP Sues Google, Seeking Pay Data

On January 4, 2017, the Office of Federal Contractor Compliance Programs (OFCCP) sued Google, claiming that the tech giant is illegally withholding information about the compensation it provides its employees.  OFCCP seeks the…more

ALJ, Anti-Retaliation Provisions, Audits, Compensation & Benefits, Discovery

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ESMA issues advice on extension of the AIFMD Third Country Passport to 12 non-EU countries, including the United States

On July 19, 2016, the European Securities and Markets Authority (ESMA) published its final advice (Advice) on extending the application of the marketing passport under the Alternative Investment Fund Managers Directive (AIFMD)…more

AIFM, AIFMD, Alternative Investment Funds, EU, EU Passport

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Relating a Software Copyright Infringement Claim Back to its Source

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

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

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2015 Global High-Yield Bond Study

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

Bonds, Global Market, High-Yield Markets

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2016 Proskauer Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

Accredited Investors, Administrative Proceedings, ALJ, Annual Reports, Brazil

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

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

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

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The Modern Slavery Act 2015 and Supply Chain Transparency

The Modern Slavery Act 2015 is new legislation introduced in the UK with the intention of combatting slavery and human trafficking. Continuing the trend for legislation to have extra-territorial reach, as illustrated by the UK…more

Board of Directors, Disclosure Requirements, Human Rights, Human Trafficking, Modern Slavery Act

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OFCCP Sues Google, Seeking Pay Data

On January 4, 2017, the Office of Federal Contractor Compliance Programs (OFCCP) sued Google, claiming that the tech giant is illegally withholding information about the compensation it provides its employees.  OFCCP seeks the…more

ALJ, Anti-Retaliation Provisions, Audits, Compensation & Benefits, Discovery

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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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Appellate Division Rules That Paid Blogger Was Not An “Employee” Entitled To Unemployment Benefits, Signaling Trend Toward More Searching Judicial Review of Agency Decisions

One of the recurring themes in workplace law in 2016 was the continued crackdown on independent contractor misclassification. Both federal and state agencies, as well as the plaintiffs’ bar, invested significant resources to…more

Administrative Appeals, ALJ, Appeals, Audits, Corporate Counsel

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Seventh Circuit Affirms Denial of Class Certification for Failure to Show Commonality under Dukes in Vacation Pay Suit

Last week, in McCaster et al. v. Darden Restaurants, Inc. et al., No. 15-3258 (7th Cir. Jan. 5, 2017), the Seventh Circuit relied on Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) and affirmed the district court’s denial of…more

Class Action, Class Certification, Commonality, Dukes v Wal-Mart, Hiring & Firing

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NLRB Rules That Graduate Students Are Employees

Yesterday, the National Labor Relations Board (“the Board”) issued its long awaited decision in Columbia University. Not surprisingly, the Board, in a 3-1 decision, overturned 12 years of precedent by ruling that “student…more

Brown University, Collective Bargaining, Colleges, Educational Institutions, Graduate Students

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Taming the Bull Rider: Chancery Court Reining in Mootness Fee Awards in Merger Litigation

Last month, the Delaware Chancery Court drastically reduced – from $275,000 to $50,000 – a mootness fee award requested by plaintiffs’ counsel in a lawsuit challenging the merger between PayPal and Xoom Corporation, finding the…more

Breach of Contract, Controlling Stockholders, Corporate Counsel, Derivative Suit, Fee Reductions

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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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Private Investment Fund Managers and Other Investment Advisers May Be Affected by the U.S. Department of Labor’s New Fiduciary Rules

On April 6, 2016, the U.S. Department of Labor (DOL) issued its highly anticipated final rule addressing when a person is considered to be a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) and the…more

Benefit Plan Sponsors, Best Interest Contract Exemptions, Conflicts of Interest, DOL, ERISA

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Proskauer's 2016 IPO Study

Proskauer's Global Capital Markets Group presents the third annual IPO Study, a comprehensive analysis of U.S.-listed initial public offerings in 2015 and identification of three-year comparisons and trends of U.S.-listed…more

Capital Markets, Corporate Governance, EBITDA, Foreign Issuers, Initial Public Offerings

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Major Changes Coming to Canadian Trademark Law

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

Canada, International Harmonization, Trademarks

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S.D.N.Y. Dismisses SOX and Dodd-Frank Whistleblower Claims For Lack Of Protected Activity

On June 22, 2016, Judge Daniels of the Southern District of New York dismissed SOX and Dodd-Frank whistleblower claims, ruling that Plaintiff’s alleged internal complaints did not constitute protected activity, as they did not…more

Conflicts of Interest, Corporate Counsel, Dismissals, Dodd-Frank, Employee Transfers

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

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

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

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European DPAs Issue First GDPR Guidance

On Friday, the Article 29 Working Party issued official guidance relating to the General Data Protection Regulation, or GDPR. The Article 29 Working Party is comprised of representatives of the various EU Member States’ data…more

Article 29 Working Party (WP29), Data Protection, Data Protection Authority, Data Protection Officers (DPOs), Data Retention

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Wealth Management Update - December 2016

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

Beneficiaries, Death Tax, Deceased Spousal Unused Exclusion, Decedent Protection, Digital Assets

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The War on Modern Slavery Continues

On July 30, 2016, newly-elected British Prime Minister, Theresa May, wrote an article detailing how her government would lead the charge in combatting modern slavery. As a major proponent of the UK Modern Slavery Act (and one…more

Human Trafficking, Modern Slavery Act, Slavery, Supply Chain, UK

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Proposed New UK Penalties Regime Precipitated by CRS

Many people will be familiar with the information gathering and reporting requirements the OECD’s Common Reporting Standard (“CRS”) places on financial institutions. The first exchanges of information between tax authorities…more

Beneficial Owner, Capital Gains, Common Reporting Standard (CRS), Financial Institutions, Financial Sector

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2015 Global High-Yield Bond Study

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

Bonds, Global Market, High-Yield Markets

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Fifth Circuit Joins Sister Circuits in Holding That Employees May Recover Emotional Distress Damages in FLSA Retaliation Suits

On December 19, 2016, the Fifth Circuit joined the Sixth and Seventh Circuits in holding that “employees” under the FLSA may recover emotional distress damages in FLSA retaliation actions, finding that the district court erred…more

Appeals, Corporate Counsel, Emotional Distress Damages, FLSA, Jury Verdicts

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EFFECTIVE TODAY: FAR Barring Certain Contractor Confidentiality Agreements

Today (January 19, 2017), the Employee Internal Confidentiality Agreements or Statements Federal Acquisition Regulation (the “Rule”) goes into effect. The Rule prohibits the government from contracting with companies that…more

Certification Requirements, Confidentiality Agreements, Employment Contract, Federal Acquisition Regulations (FAR), Federal Contractors

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The ERISA Litigation Newsletter - December 2015

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

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

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SEC Staff Issues Guidance Affecting the Registration of Securities for Resale on Form S-3

The staff of the Securities and Exchange Commission recently issued interpretive guidance relating to the registration of the resale of shares sold to an investor pursuant to a private placement, if the issuer concurrently sold,…more

Form S-1, Form S-3, Private Company Shares, Private Resales, Registration Statement

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NLRB Rules That Graduate Students Are Employees

Yesterday, the National Labor Relations Board (“the Board”) issued its long awaited decision in Columbia University. Not surprisingly, the Board, in a 3-1 decision, overturned 12 years of precedent by ruling that “student…more

Brown University, Collective Bargaining, Colleges, Educational Institutions, Graduate Students

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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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FAQ About California’s New Law on Venue and Choice of Law in Employment Agreements

We recently blogged about Governor Brown signing S.B. 1241, which is now codified as Section 925 of the California Labor Code. The law, which affects venue and choice of law provisions in agreements entered into as a condition…more

Arbitration, Arbitration Agreements, Attorney's Fees, Choice-of-Law, Contract Terms

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

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

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

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2015 Global High-Yield Bond Study

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

Bonds, Global Market, High-Yield Markets

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

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

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

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The ERISA Litigation Newsletter - May 2016

Editor’s Overview - In this issue of Proskauer's ERISA Litigation Newsletter, we review a recent ruling by the Tenth Circuit Court of Appeals concerning the application of controlled group principles to the building and…more

Affordable Care Act, Arbitrators, COBRA, Collective Bargaining Agreements (CBA), Construction Industry

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Proposed Regulations Issued for Supporting Organizations

On February 19, 2016, the IRS and Treasury Department issued proposed regulations regarding (i) prohibitions on certain contributions to Type I and Type III supporting organizations and (ii) requirements for Type III supporting…more

Comment Period, IRS, Notification Requirements, Pension Protection Act of 2006, Proposed Regulation

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Partnership-Level Tax Under New Audit Rules

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

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

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2016 Proskauer Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

Accredited Investors, Administrative Proceedings, ALJ, Annual Reports, Brazil

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SEC Timeout on Proxy Access Issue Has Wider Implications

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

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

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Major Changes Coming to Canadian Trademark Law

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

Canada, International Harmonization, Trademarks

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DOJ Breaks its Silence in 2015 FCPA Enforcement

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

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

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Three Point Shot - December 2016

In Partial Trademark Victory over Chinese Sportswear Company, MJ Posterizes Unauthorized User of Chinese Version of His Name - In Game 3 of the first round of the 1991 NBA Eastern Conference playoffs between the New York…more

Appeals, Basketball, Breach of Contract, Broadcasting, Burden of Proof

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Brexit – No Short Term Regulatory Change but Significant Longer Term Implications

The United Kingdom (UK) has voted to leave the European Union (EU). Although the vote will have long term implications, in the short term there will be no change to the current legal and regulatory status quo; the UK will remain…more

AIFMD, Antitrust Provisions, David Cameron, EU, EU Passport

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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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2016 Proskauer Annual Review and Outlook for Hedge Funds, Private Equity Funds and Other Private Funds

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

Accredited Investors, Administrative Proceedings, ALJ, Annual Reports, Brazil

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

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

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

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SEC Issues $26M in Whistleblower Awards Over One-Month Period

In a clear sign of the increased awareness – and effectiveness – of the SEC’s whistleblower program, the SEC awarded five whistleblowers a total of over $26 million for their assistance in four separate enforcement actions…more

Dodd-Frank, Enforcement Actions, Popular, SEC, Securities Violations

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The ERISA Litigation Newsletter - December 2016

This month Richard Zall, Chair of Proskauer's Health Care Department, explores developments likely to occur with respect to the Affordable Care Act as a result of the new administration. In our Rulings, Filings and Settlements…more

21st Century Cures Act, Affordable Care Act, CEOs, CMMI, Conflicts of Interest

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

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

Hong Kong, Private Equity Funds, SPVs, Tax Exemptions

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

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

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

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The ERISA Litigation Newsletter - January 2016

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

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

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

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

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

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NY Law Journal Report: Trump And The Future Of The SEC Whistleblower Program

As reported by Ryan Barber of the National Law Journal, the Trump administration could change the trajectory of the SEC whistleblower office, potentially halting the SEC’s recent strict scrutiny of potential impediments for…more

Pre-Employment Agreements, SEC, Severance Agreements, Trump Administration, Whistleblower Protection Policies

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The ERISA Litigation Newsletter - October 2016

Editor's Overview - This month, we look at the implications of the two federal district court cases from California that applied the ban on discretionary clauses typically found in ERISA plans to self-insured plans. The…more

Abuse of Discretion, Administrative Procedure Act, Arbitrary and Capricious, Audits, Best Interest Contract Exemptions

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The ERISA Litigation Newsletter - November 2016

This month we review a recent Second Circuit decision addressing ERISA plan status as a class member in a securities shareholder class action. As discussed in the article, the decision exposes a potential conflict among the…more

AARP, ADA, Administrative Procedure Act, Affordable Care Act, Appeals

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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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The Sixth Circuit’s Continued Scrutiny of Sealing Decisions

We wrote here previously regarding the Sixth Circuit’s decision in Shane Group v. Blue Cross Blue Shield of Michigan vacating a class action settlement because the district court improperly refused to unseal the parties’…more

Appeals, Class Action, Confidential Business Information (CBI), Discovery Disputes, Motion To Seal

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Can Parties Use Settlement Agreements to Vacate a Prior Judgment?

In Hartford Accident and Indemnity v. Crum & Forster Specialty Insurance et al., the Eleventh Circuit recently reversed a District Court’s decision refusing to vacate its prior judgments even though vacatur was a condition of a…more

Abuse of Discretion, Appeals, Exceptional Case, Hartford Insurance Company, Insurance Litigation

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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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The ERISA Litigation Newsletter - September 2016

Editor's Overview - This month, we have re-published an interview of our colleague Seth Safra discussing the Department of Labor’s final regulation concerning fiduciaries and conflicts of interest. In this interview, Seth…more

401k, Best Interest Contract Exemptions, Breach of Duty, Dismissals, DOL

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

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

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

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The Modern Slavery Act 2015 and Supply Chain Transparency

The Modern Slavery Act 2015 is new legislation introduced in the UK with the intention of combatting slavery and human trafficking. Continuing the trend for legislation to have extra-territorial reach, as illustrated by the UK…more

Board of Directors, Disclosure Requirements, Human Rights, Human Trafficking, Modern Slavery Act

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Second Circuit To Determine Whether Artful Pleading Can Extend FCPA Jurisdiction

Prosecutors in the District of Connecticut have appealed a district court’s ruling that conspiracy and aiding and abetting charges cannot be used to extend the FCPA’s jurisdictional reach. The FCPA has three…more

Aiding and Abetting, Alstom, Congressional Intent, Corporate Counsel, Criminal Conspiracy

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H-1B Cap: The Receipts Are Trickling In!

On April 7, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it received more H-1B petitions than available under the statutory cap of 65,000 general-category visas and 20,000 U.S. Master's visas for…more

H-1B, Highly-Skilled Workers Visa, Lottery, USCIS, Visa Caps

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Five Ways to Prepare for Business Interruption Insurance Claims in a Natural Disaster

The extraordinary images and reports of the devastation from Hurricane Matthew have filled the news outlets. While the focus remains on the human toll and concern for the well-being of friends, colleagues and business partners…more

Business Interruption, Hurricane Season, Ingress/Egress, Insurance Claims, Insurance Industry

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HHS OIG Adopts NewAnti-Kickback Safe Harbor and Civil Monetary Penalty Exceptions

On December 7, 2016, the Department of Health and Human Services (HHS), Office of Inspector General (OIG), issued a final rule that will have a widespread impact on health care service providers, medical transport providers,…more

Ambulance Providers, Anti-Kickback Statute, Civil Monetary Penalty, Cost-Sharing, FQHC

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Antitrust Agencies Propose Updates to IP Licensing Guidelines and Invite Comments

In 1995, the Federal Trade Commission and the Department of Justice first issued the Antitrust Guidelines for the Licensing of Intellectual Property. They represent the antitrust enforcement policy of the agencies with respect…more

Antitrust Provisions, Comment Period, Competition, Copyright, FTC

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High Court Decision Serves as a Cautionary Tale for Office Holiday Parties

The High Court ruled on December 1, 2016 that Northampton Recruitment Limited was not liable when a manager punched an employee twice in the head after a Christmas party. While the Company was not held liable, the case is a…more

Code of Conduct, Employer Liability Issues, Holiday Parties, Holidays, Wine & Alcohol

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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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Final Regulations Released Regarding PFIC Ownership Determination and Annual Reporting Requirements

On December 27, 2016, the Treasury Department (Treasury) and Internal Revenue Service (IRS) released final regulations regarding the determination of ownership of a passive foreign investment company ("PFIC") and regarding…more

Business Ownership, C-Corporation, Final Rules, Foreign Corporations, IRS

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The ERISA Litigation Newsletter - May 2015

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

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

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Halo Shines Bright in D. Mass.

A recent order from the District of Massachusetts sheds light on how the Supreme Court’s June 2016 decision in Halo Electronics v. Pulse Electronics is being interpreted by the district courts. The Memorandum and Order by Chief…more

Enhanced Damages, Halo v Pulse, Induced Infringement, Jury Instructions, Patent Infringement

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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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Second Circuit Finds Use of "Who's on First" Routine Not Transformative and Not Fair Use

Earlier this month, the U.S. Court of Appeals for the Second Circuit issued a consequential opinion on the meaning and scope of what has become the "transformative use" factor of the fair use defense to copyright infringement…more

Appeals, Copyright, Copyright Infringement, Copyright Litigation, Entertainment Industry

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

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

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

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The ERISA Litigation Newsletter - September 2015

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

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

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

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

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

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SEC Announces Record Number of Investment Adviser Cases for FY 2016

The Securities and Exchange Commission today announced its enforcement results for fiscal year 2016, reaching new highs in the number of actions filed and money ordered forfeited through disgorgement and penalties. The SEC…more

Administrative Proceedings, Disgorgement, Enforcement Actions, FCPA, Financial Markets

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

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

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

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

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

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

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

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

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

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The Potential Impact Of The Congressional Review Act On New Employment Regulations In Light Of The Recent Election

The Obama administration has finalized a number of employment-related regulations over the past few months, including rules on overtime, worker benefits, paid sick leave for employees of federal contractors, and union elections…more

Congressional Review Act, DOL, Labor Regulations, Legislative Agendas, NLRB

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Brexit – No Short Term Regulatory Change but Significant Longer Term Implications

The United Kingdom (UK) has voted to leave the European Union (EU). Although the vote will have long term implications, in the short term there will be no change to the current legal and regulatory status quo; the UK will remain…more

AIFMD, Antitrust Provisions, David Cameron, EU, EU Passport

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Yoga Instructors Can Be Independent Contractors, Says NY Court of Appeals

Earlier this week, the New York State Court of Appeals in Yoga Vida NYC, Inc. v. Commissioner of Labor., No. 130 (N.Y. Oct. 25, 2016), issued a rare decision concerning an unemployment determination, reversing the Appellate…more

Appeals, Control Test, Independent Contractors, Misclassification, Reversal

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California Employment Law Notes - March 2015

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

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

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War of the World Wide Webs: D.C. Circuit Refuses Terror Victims’ Attempt to Seize Internet Domain Names

In early August, the D.C. Circuit refused to allow victims of terror attacks to take control of the Internet domain names of Iran, North Korea, and Syria as a means of satisfying previous money judgments awarded to the victims…more

Asset Seizure, Crime Victims, Domain Names, FSIA, gTLD

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An Offer You Can’t Refuse: Are Deathtraps a Tool for Fostering Settlements, or a Method of Coercion?

Accept an unpalatable offer, or reject it and risk getting much less (or even nothing)? This is the choice stakeholders in chapter 11 bankruptcies increasingly face as a result of the proliferation of “deathtrap” provisions in…more

Chapter 11, Coercion, Commercial Bankruptcy, Creditors, Debtors

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California Court Permits Whistleblowing Lawyer To Use Privileged Information

A California Federal Magistrate Judge in Sanford S. Wadler v. Bio-Rad Laboratories Inc. et al., No. 3:15-cv-02356 (N.D. Cal. Dec. 20, 2016), recently ruled that the Sarbanes-Oxley Act preempts California’s ethical rules…more

Amicus Briefs, Attorney-Client Privilege, Bio-Rad Laboratories, Confidential Information, Corporate Counsel

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

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

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

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SEC Issues Another Multi-Million Dollar Whistleblower Award

Less than one month after issuing a $22 million award, the SEC issued another multi-million dollar whistleblower award on September 20, 2016. The SEC’s most recent award exceeded $4 million. The SEC issued its typical…more

Dodd-Frank, Enforcement Actions, SEC, Securities Violations, Whistleblower Awards

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Supreme Court Reaffirms Personal-Benefit Requirement for Insider Trading

The Supreme Court confirmed today that the "personal benefit" required to establish a claim for insider trading can consist of making a gift of material, nonpublic information to a family member or friend and that an exchange of…more

Confidential Information, Dirks v SEC, Fiduciary Duty,