Proskauer Rose LLP

European Commission Publishes Anti Tax Avoidance Package

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

BEPS, Corporate Taxes, EBITDA, EU, European Commission

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Justice Scalia and the Demise of the “Genteel Monopolist”

A year before he took his seat on the Supreme Court, Justice Scalia’s future colleagues issued a decision encouraging dominant firms to behave more like that genteel, top hat wearing fellow from the Monopoly game than like any…more

Abuse of Dominance, Anti-Competitive, Anti-Monopoly, Antitrust Litigation, Judicial Intervention

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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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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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SEC Intervenes In Former In-House Attorney’s Whistleblower Lawsuit

On March 28, 2016, the U.S. Securities and Exchange Commission (“SEC”) filed an amicus brief in a whistleblower lawsuit brought by a former in-house attorney against Vanguard Group (the “Company”).  The case is Danon v. Vanguard…more

Amicus Briefs, Corporate Counsel, Dodd-Frank, Internal Reporting, Protected Activity

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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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The ERISA Litigation Newsletter - April 2016

Editor's Overview - This month we feature three key developments. First, we review the U.S. Supreme Court's decision in Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 947 (2016) wherein the Supreme Court held that a…more

401k, Benefit Plan Sponsors, Best Interest Contract Exemptions, Best Interest Standard, Closely Held Businesses

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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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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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The Most Overlooked Exception to Attorney-Client Privilege

In-house counsel often communicate with corporate management under the assumption that these communications are protected by the attorney-client privilege— absent some type of unusual and extraordinary circumstance, such as…more

Attorney Communications, Attorney-Client Privilege, Corporate Counsel, Corporate Executives, Discovery

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N.Y. Court of Appeals Adopts Business Judgment Rule, with Conditions, for Going-Private Mergers

The New York Court of Appeals has followed Delaware in holding that the business-judgment rule applies to going-private mergers as long as certain shareholder-protective measures are met. The court’s May 5, 2016 decision in In…more

Bad Faith, Breach of Duty, Business Judgment Rule, DE Supreme Court, Fairness Standard

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Trends in New Jersey Employment Law - July 2014

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

Employer Liability Issues, Whistleblower Protection Policies, Whistleblowers

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CFTC Proposes New Regulations For Algorithmic Trading

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

Algorithmic Trading, CFTC, Comment Period, DCMs, FCMs

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California Federal Court Holds That U.S. Securities Laws Do Not Apply to Unsponsored, Unlisted ADRs

The U.S. District Court for the Central District of California held on May 20, 2016 that the federal securities laws do not apply to U.S. transactions in unlisted, unsponsored American Depositary Receipts (ADRs) for a foreign…more

Accounting Fraud, Application of Foreign Laws, Comity, Foreign Issuers, Forum Non Conveniens

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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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CFTC Issues Record-High Whistleblower Bounty Award

On April 4, 2016, the U.S. Commodity Futures Trading Commission (CFTC) issued its third and largest award, of more than $10 million, as part of its Dodd-Frank whistleblower program. As was the case with the CFTC’s two previous…more

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

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The UK Modern Slavery Act 2015 and Supply Chain Transparency: The Impact on Private Investment Funds

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

Disclosure Requirements, Due Diligence, Extraterritoriality Rules, Fund Managers, Human Trafficking

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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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President Signs Defend Trade Secrets Act Into Law

On May 11, 2016, President Obama signed the Defend Trade Secrets Act (“DTSA”) into law, for the first time creating a federal cause of action for trade secret misappropriation. The law has sweeping implications and is expected…more

Barack Obama, Defend Trade Secrets Act (DTSA), Misappropriation, New Legislation, Notice Requirements

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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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Three Point Shot - March 2016

California Court to PGA Tour Caddies: You'll Get Nothing and Like It! As the full swing of the PGA season rounds the corner, and with the azaleas blooming at Augusta, the trusted confidants of golf's premier players have…more

Amazon, App Developers, Apple, Class Action, Consumer Product Safety Commission (CPSC)

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

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

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

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

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

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

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

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

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

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NYC Expands Scope of Displaced Building Service Workers Protection Act

Background - In 2002, Mayor Bloomberg signed the New York City Displaced Building Service Workers Protection Act ("DBSWPA" or "Act") into law. The DBSWPA significantly affects companies' labor and employment considerations…more

Amended Legislation, Back Pay, Displaced Building Service Workers Protection Act (DBSWPA), Employer Liability Issues, Injunctive Relief

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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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Amended Rule 34: No Boilerplate Objections, but Specificity Remains a Question

Amended in December alongside many other rules in the Federal Rules of Civil Procedure, Rule 34(b)(2)(B) now requires that objections to document requests be stated with “specificity.” The early applications of the amended rule…more

Federal Rules of Civil Procedure, New Amendments, Objections, Rule 34

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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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Obama Administration Publishes Spring Agency Rule List Highlighting Key Dates For Final Publication of Controversial Regulations

The Obama administration has released its Spring Agency Rule List. The list provides updates on the priorities of the Obama administration as it relates to pending rules and regulations. The agenda notes that the Obama…more

Disclosure Requirements, Executive Orders, Fair Pay and Safe Workplaces, Federal Contractors, Labor Law Violations

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

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

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

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Relating a Software Copyright Infringement Claim Back to its Source

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

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

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2015 Global High-Yield Bond Study

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

Bonds, Global Market, High-Yield Markets

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

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

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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

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

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

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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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Fifth Circuit Weighs In On Breadth Of The Rehabilitation Act

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

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

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

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

Affordable Care Act, FTC, Healthcare, Physicians

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New Federal Overtime Rule Announced, To Become Effective on December 1st

The DOL has released detailed information about the new overtime exemption rule, which is expected to be published in the Federal Register on May 18, 2016. As predicted in our prior post, the new regulation will take effect…more

DOL, Final Rules, FLSA, Minimum Salary, Over-Time

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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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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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Final DOL Fiduciary Rule – Q&As for Employers and Plan Sponsors on Investment Education

On April 6, 2015, the U.S. Department of Labor (Department) issued its final rule defining who is a fiduciary of an employee benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA) as a result of giving…more

Benefit Plan Sponsors, DOL, Employer Liability Issues, ERISA, Fiduciary Duty

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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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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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The Supreme Court’s Spokeo Decision and its Potential Impact on Privacy and Data Security Class Actions

On May 16, 2016, the Supreme Court decided Spokeo, Inc. v. Robins, ruling that a plaintiff must sufficiently allege an injury that is both concrete and particularized in order to have Article III standing, and further that a…more

Article III, Class Action, FCRA, Injury-in-Fact, SCOTUS

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Wealth Management Update - March 2016

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

Appraisal, Charitable Deductions, Collateral Estoppel, Conservation Easements, Gifts

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Full Disclosure: An Overview of Global Supply Chain Regulations

You may have read our recent client alert on the UK Modern Slavery Act and Global Supply Chain Transparency, where we highlighted the extraterritorial safeguards against human trafficking and slavery as well as the corresponding…more

Disclosure, EU, Executive Orders, Human Trafficking, Modern Slavery Act

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Tax Announcements in the UK’s Budget 2016

The UK’s 2016 budget was announced on Wednesday 16 March 2016. Although we are waiting for detailed legislation for most of the tax-related announcements, below is a brief summary of some tax points which have caught our…more

BEPS, Capital Gains, Carried Interest, Corporate Taxes, EBITDA

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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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Obama Administration Publishes Spring Agency Rule List Highlighting Key Dates For Final Publication of Controversial Regulations

The Obama administration has released its Spring Agency Rule List. The list provides updates on the priorities of the Obama administration as it relates to pending rules and regulations. The agenda notes that the Obama…more

Disclosure Requirements, Executive Orders, Fair Pay and Safe Workplaces, Federal Contractors, Labor Law Violations

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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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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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Regional Director Issues First Post-Pacific Lutheran Decision

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

Faculty, Jurisdiction, Managers, NLRB, Pacific Lutheran University

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

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

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

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California Employment Law Notes - March 2015

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

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

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

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

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

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2015 Global High-Yield Bond Study

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

Bonds, Global Market, High-Yield Markets

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

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

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

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

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

Dividends, FIRPTA, Foreign Investment, IRS, Pensions

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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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Criminal Division Launches New FCPA Pilot Program

On April 5, 2016, the Department of Justice upped the ante in its efforts to encourage companies to self-report potential Foreign Corrupt Practices Act (“FCPA”) violations when it unveiled a one-year pilot program that includes…more

Compliance, Cooperation, Corporate Misconduct, Corruption, Criminal Prosecution

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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 - March 2016

California Court to PGA Tour Caddies: You'll Get Nothing and Like It! As the full swing of the PGA season rounds the corner, and with the azaleas blooming at Augusta, the trusted confidants of golf's premier players have…more

Amazon, App Developers, Apple, Class Action, Consumer Product Safety Commission (CPSC)

See All Updates »

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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The ERISA Litigation Newsletter; November 2013

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

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

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

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

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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

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

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

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Portfolio Company Litigation: Some Practical Considerations for Board-Designees of Private Funds

Individuals affiliated with private fund managers are increasingly being named as defendants in lawsuits involving fund portfolio companies, particularly where the fund controls one or more seats on the portfolio company’s…more

Board of Directors, D&O Insurance, Duty to Defend, Fund Managers, Indemnification Clauses

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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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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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SEC Issues Two Multi-Million Dollar Whistleblower Awards

Over the past week, the U.S. Securities and Exchange Commission (“SEC”) announced two multi-million dollar awards to whistleblowers who provided the SEC with information in ongoing investigations. On May 13, 2016, the SEC…more

Corporate Counsel, Dodd-Frank, Enforcement Actions, Government Investigations, SEC

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District Court Allows ERISA Section 510 Retaliation Claim to Proceed

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

Disability, Employer Liability Issues, ERISA, Retaliation

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The ERISA Litigation Newsletter - February 2016

Editor's Overview - This month's article reviews a few non-ERISA cases before the U.S. Supreme Court, which may, depending on the breadth of the decisions, impact ERISA litigation. First, in Spokeo, Inc. v. Robins, the…more

401k, ADA, Campbell Ewald v Gomez, Class Action, Class Certification

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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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Surviving Settlement Provisions in Joint Defense Agreements

Anyone who watches Survivor or Game of Thrones knows that alliances are critical. And while they may be necessary to endure from one day to the next, alliances are inevitably broken. Co-defendants in antitrust cases can…more

Antitrust Litigation, Attorney-Client Privilege, Breach of Contract, Cooperation, Defense Strategies

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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 - March 2016

Editor’s Overview - This month we review the U.S. Supreme Court’s decision in Montanile v. Board of Trustees of National Elevator Industries Health Benefit Plan where the Supreme Court considered the scope of "appropriate…more

401k, Affordable Care Act, Anti-Assignment Clauses, Applicable Large Employers (ALE), Benefit Plan Sponsors

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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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Policyholders Face Uncertainty after Lapse of Terrorism Risk Insurance Program

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

Terrorism Insurance, TRIA

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

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

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

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New Law Imposes Additional Requirements on NGOs Operating in China

Until recently, there have been few formal regulations regarding the operation of foreign non-governmental organizations (NGOs) in China. While the Chinese government has expressed skepticism and, at times, hostility toward…more

China, Criminal Penalties, Foreign Charities, Government Entities, New Legislation

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

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

Compliance, Enforcement Actions, Futures, Hong Kong, Investors

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

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

Patents, Scams, Trademarks, USPTO

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

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

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

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Clearance: Proskauer's Quarterly Antitrust Update - Fall 2013

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

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

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

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

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

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The ERISA Litigation Newsletter - May 2015

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

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

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Summary Judgment Ruling Not a Pretty Picture for Massachusetts Copyright Plaintiff

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

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

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

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

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

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

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

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

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

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

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

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The ERISA Litigation Newsletter - September 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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OSHA Issues Final Rule Regarding Injury and Illness Reporting

Yesterday, OSHA issued its long-anticipated final rule regarding injury and illness reporting. The final rule generally requires employers to submit electronically certain injury and illness information. OSHA will place that…more

Anti-Retaliation Provisions, OSHA, Reporting Requirements, Workplace Injury

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New Federal Overtime Rule Announced, To Become Effective on December 1st

The DOL has released detailed information about the new overtime exemption rule, which is expected to be published in the Federal Register on May 18, 2016. As predicted in our prior post, the new regulation will take effect…more

DOL, Final Rules, FLSA, Minimum Salary, Over-Time

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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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CA Court Plays “Tag” – Judge Refuses to Drop Facebook Photo-Tagging Privacy Case

Earlier this month, a judge from the Northern District of California allowed a putative class action suit to proceed against Facebook. In this case, the plaintiffs alleged Facebook collected and stored biometric data of…more

Biometric Information, Biometric Information Privacy Act, Choice-of-Law, Facebook, Facial Recognition Technology

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Supreme Court Clarifies That Untainted Assets Cannot Be Frozen Pre-Trial By The Government

Last week the Supreme Court further clarified the procedures and limits regarding the government’s ability to freeze assets in connection with criminal prosecutions. Following the 2014 decision in Kaley v. United States, where…more

Asset Freeze, Criminal Prosecution, Kaley v. United States, Luis v United States, Right To Counsel

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The ERISA Litigation Newsletter - October 2015

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

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

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

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

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

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California Raises Minimum Wage to $15 Per Hour and Increases Minimum Salary for Exempt Employees

On April 4, 2016, Governor Brown signed Senate Bill 3, which will increase California’s minimum wage annually, reaching $15 per hour for employers with at least 26 employees by January 1, 2022. This bill enacts the highest…more

Exempt-Employees, Governor Brown, Minimum Salary, Minimum Wage, New Legislation

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Key Takeaways from SEC/DOJ Enforcement Panel

Last week, representatives of the U.S. Securities and Exchange Commission (“SEC”) and the U.S. Department of Justice (“DOJ”) participated in Sandpiper Partners LLC’s Annual SEC/DOJ Enforcement 2016 Panel at the Metropolitan…more

Attorney-Client Privilege, Cooperation, Cyber Crimes, Dodd-Frank, DOJ

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Real Estate Investments by Qualified Foreign Pension Funds After the PATH Act

The Protecting Americans from Tax Hikes Act of 2015 (“PATH Act”) included a number of significant changes to the U.S. federal income tax rules related to real estate investment trusts (“REITs”) and investments by non-U.S…more

FIRPTA, Foreign Investment, Income Taxes, IRS, Pension Funds

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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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Proposed FBAR Regulations Expand Filing Exemption and Reporting Requirements

As reported in our prior client alerts, the Report of Foreign Bank and Financial Accounts, FinCEN Form 114 (FBAR), must be filed by a U.S. person that holds a financial interest in, or signature or other authority over, a…more

Exemptions, FBAR, FinCEN, Foreign Bank Accounts, IRS

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

On Wednesday, May 18, 2016, the U.S. Securities and Exchange Commission (SEC) proposed to increase the net worth threshold for qualified clients from $2 million to $2.1 million. This proposed adjustment is being made pursuant…more

Advisory Contracts, Dodd-Frank, Exemptions, High Net-Worth, Investment Advisers Act of 1940

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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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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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Tips For Setting Employees’ Salaries And Benefits For MultiNational Companies

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

Bonuses, Discrimination, Employee Benefits, Minimum Wage, Multinationals

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

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

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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

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

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

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Amended Rule 34: No Boilerplate Objections, but Specificity Remains a Question

Amended in December alongside many other rules in the Federal Rules of Civil Procedure, Rule 34(b)(2)(B) now requires that objections to document requests be stated with “specificity.” The early applications of the amended rule…more

Federal Rules of Civil Procedure, New Amendments, Objections, Rule 34

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

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

Amount in Controversy, CAFA, Class Action, Evidence

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Four More New Jersey Cities Enact Sick Leave Laws

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

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

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

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

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

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To Save Secrecy Lawsuit, Twitter Must Challenge DOJ’s Decision to Classify Surveillance Requests

This month, a federal judge dismissed Twitter’s lawsuit challenging limits on the disclosure of government requests for information on Twitter users, pressing the company to file an amended complaint contesting the government’s…more

Amended Complaints, Amicus Briefs, DOJ, First Amendment, Foreign Intelligence Surveillance Act

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Philadelphia Joins List of Cities Mandating Paid Sick Leave

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

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

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IRS Provides Some Relief after Data Hacks

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

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

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

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

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

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

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

Number of Occurences

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EEOC Issues Final Rules On Employer-Sponsored Wellness Program Compliance Under the ADA and GINA

The Equal Employment Opportunity Commission (“EEOC”) has issued two final rules addressing employer-sponsored wellness programs’ compliance with Title I of the Americans with Disabilities Act (“ADA”) and Title II of the Genetic…more

ADA, EEOC, Employer Group Health Plans, Final Rules, GINA

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

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

Dividends, FIRPTA, Foreign Investment, IRS, Pensions

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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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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 Clarifies That Untainted Assets Cannot Be Frozen Pre-Trial By The Government

Last week the Supreme Court further clarified the procedures and limits regarding the government’s ability to freeze assets in connection with criminal prosecutions. Following the 2014 decision in Kaley v. United States, where…more

Asset Freeze, Criminal Prosecution, Kaley v. United States, Luis v United States, Right To Counsel

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The ERISA Litigation Newsletter - February 2016

Editor's Overview - This month's article reviews a few non-ERISA cases before the U.S. Supreme Court, which may, depending on the breadth of the decisions, impact ERISA litigation. First, in Spokeo, Inc. v. Robins, the…more

401k, ADA, Campbell Ewald v Gomez, Class Action, Class Certification

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

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

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

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

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

Defined Benefit Plans, Insolvency, Nortel, Pensions, UK

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IRS Proposed Regulations Under Section 305(c)

In April, the IRS issued proposed regulations interpreting deemed distributions under Section 305(c). Specifically, the proposed regulations would clarify the amount and timing of deemed distributions that result from an…more

Fair Market Value, Foreign Entities, IRS, Proposed Regulation, Reporting Requirements

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California Federal Court Holds That U.S. Securities Laws Do Not Apply to Unsponsored, Unlisted ADRs

The U.S. District Court for the Central District of California held on May 20, 2016 that the federal securities laws do not apply to U.S. transactions in unlisted, unsponsored American Depositary Receipts (ADRs) for a foreign…more

Accounting Fraud, Application of Foreign Laws, Comity, Foreign Issuers, Forum Non Conveniens

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Where’s the Octopus? New False Advertising Class Action against Goya Foods, Inc. Claims Octopus Is Missing from Products

A new putative consumer class action claiming damages in excess of $5,000,000 was filed earlier this month in the Northern District of California against Goya Foods, Inc. (“Goya”). The plaintiff, a purchaser of Goya octopus…more

Breach of Warranty, CLRA, False Advertising, Food Labeling, Food Manufacturers

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The ERISA Litigation Newsletter - April 2015

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

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

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New DOJ Policy on Asset Forfeiture in Structuring Offenses

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

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

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

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

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

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

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

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

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

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

China, Cybersecurity, EU, Gift Tax, Hedge Funds

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District Court Rejects Constitutional Challenge to SEC Administrative Proceedings

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

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

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The ERISA Litigation Newsletter

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

Employee Benefits, ERISA, Income Taxes, Overpayment, Pensions

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Four Takeaways from the ABA Antitrust Section's 2016 Spring Meeting

Antitrust practitioners, enforcers and industry professionals came together in Washington, D.C. for the 64th installment of the ABA Section of Antitrust Law's annual Spring Meeting. The Spring Meeting provides a look at the year…more

American Bar Association (ABA), Anti-Competitive, Antitrust Litigation, Baker Hughes, Criminal Penalties

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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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