Reed Smith

Financial Services Regulatory Bulletin - December 2014

In this issue: - CFPB Issues Final Rule on Regulation P: Annual Privacy Notices Can Be Delivered By Posting Online - ‘It Takes Hutzpah!’: D.C. Federal Judge Issues Stunning Rebuke of HUD Disparate Impact Rule…more

Annual Notices, CFPB, Debt Collectors, Disability Benefits, Discrimination

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China Auditor Update: SEC and Chinese Audit Firms "Settle" for the Status Quo

In an Order of Settlement released February 6, 2015, the SEC agreed to stay the administrative action against the Chinese affiliates of the “Big Four” accounting firms for refusing to turn over their audit work papers relating…more

Auditors, China, Deloitte, Enforcement Actions, Ernst & Young

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Court of Appeal provides useful reminder on narrow application of litigation privilege

In the case of Rawlinson & Hunter Trustees SA v Akers & Another the Court of Appeal considered the parameters of litigation privilege, providing a useful reminder of how narrow the protection is and the care that must be taken…more

Appeals, Document Productions, Litigation Privilege, Litigation Strategies, Third-Party

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Congress Revives the Generalized System of Preferences and Makes Benefits Retroactive to August 1, 2013 but Requires Affirmative Applications for Refund by U.S. Importers.

Amid the often rancorous debate on the Trans Pacific Partnership and the Trade Promotion Authority enabling legislation, both the House and the Senate last week found a common ground in addressing legislation related to the…more

Generalized Scheme of Preferences, Legislative Agendas, Trade Policy, Trans-Pacific Partnership

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Pumped Up Protein Powder Preemption

While some of us are naturally jacked up—have you seen Bexis in short sleeves?—others turn to supplements to build up their beach bodies. We are not talking about the injectables favored by 1970s East German Olympians or 1980s…more

ad, Express Warranty, False Advertising, FDCA, Food Labeling

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21st Century Cures Bill Includes Proposal to Broaden Sunshine Act Exclusions Related to Education

As we reported last week, on May 21, 2015, the House Energy and Commerce Committee approved H.R. 6, the “21st Century Cures Act,” by a bipartisan, unanimous 51-0 vote. This major legislation is intended to accelerate the pace of…more

CMS, Congressional Committees, Medical Devices, Medicare, Prescription Drugs

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Indonesia’s Presidential Elections Dispute and Idul Fitri 2014 – Are You and Your Company Prepared?

On July 9, within just a few hours of the polls closing in the tightly contested presidential election in the world’s third-largest democracy – the Republic of Indonesia – the only two contestants running had claimed victory…more

Election Laws

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Iran: No decision reached; further extension of limited sanctions relief until 7 July 2015

Yesterday, the P5+1 (made up of the United States, Russia, China, the United Kingdom, France and Germany) together with Iran, announced the extension of the Joint Plan of Action (JPOA) Relief Period (JPOA Relief Period) for…more

Iran, Iran Sanctions, JPOA, P5+1 Nations

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Using Pennsylvania Law to Defend the Heinz Merger with Berkshire Hathaway and 3G Capital

Over the past several years, shareholder litigation challenging mergers and acquisitions has become a virtual certainty in any sizeable deal. A recent decision from a state court in Pittsburgh illustrates how Pennsylvania law…more

Berkshire Hathaway, Business Judgment Rule, Corporate Governance, Derivative Suit, Fiduciary Duty

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Expo 2020 – Part 2: Sustainability

One of three main themes of Expo 2020 is sustainability. During the event, the participants will explore and discuss the development of sustainable sources of energy and water. However, sustainability is not just a theme…more

Energy, Green Buildings, Renewable Energy, Sustainability, Water

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Anti-suit injunctions, OW Bunker and ISDA Master Agreements

Anti-suit injunctions, OW Bunker and ISDA Master Agreements SwissMarine Corporation Limited v O.W. Supply & Trading A/S (in bankruptcy) [2015] EWHC 1571 (Comm) - The Commercial Court has recently refused to grant an…more

Anti-Suit Injunctions, Commercial Bankruptcy, Cross-Border, Denmark, Insolvency

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OIG Partners with Industry Associations by Issuing Practical Guidance for Health Care Governing Boards on Compliance Oversight

On April 20, 2015, the Office of the Inspector General of the Department of Health and Human Services (“OIG”) released educational guidance designed to assist governing boards of health care organizations (“Boards”) in their…more

Chief Compliance Officers, Corporate Governance, Health Care Providers, Hospitals, New Guidance

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Financial Services Regulatory Bulletin - December 2014

In this issue: - CFPB Issues Final Rule on Regulation P: Annual Privacy Notices Can Be Delivered By Posting Online - ‘It Takes Hutzpah!’: D.C. Federal Judge Issues Stunning Rebuke of HUD Disparate Impact Rule…more

Annual Notices, CFPB, Debt Collectors, Disability Benefits, Discrimination

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Technology-Assisted Review: Please Show Me Your Seed Set

It has been three years since Magistrate Judge Andrew Peck issued his February 2012 decision in Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y. 2012), judicially accepting for the first time the use of…more

Da Silva Moore, Discovery, Electronically Stored Information, Popular, Predictive Coding

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IP/IT & Media Newsletter - Issue 1/2014

In this issue: - Apps and Data Privacy – New Guidelines from the German DPAs New Developments in Cybersecurity Regulation - Refer-a-Friend Functionality on the Internet – Federal Court underpins its view…more

Data Protection, ECJ, EU, EU Data Protection Laws, Mobile Apps

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Whole Foods’ Proposal for Proxy Access Is Sufficient to Exclude Shareholder Proposal

In a closely watched development, the SEC’s Division of Corporation Finance Staff (Staff) granted no-action relief in early December to Whole Foods Market, Inc. (Whole Foods, or the Company) in response to the Company’s request…more

No-Action Relief, Proxy Season, Proxy Statements, SEC, Shareholder Proposals

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Landmark Supreme Court ruling on default clauses and damages: Bunge SA v Nidera BV

The decision has been long awaited. In its landmark unanimous ruling handed down on 1 July 2015, The Supreme Court laid down clear guidance on the assessment of damages arising out of a wrongful repudiation of a contract for the…more

Commodities, Contract Disputes, Damages, Exports, GAFTA

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U.S. Court of Appeals Provides Long-Awaited Guidance Regarding Whether an Entity Should be Considered an ‘Instrumentality’ of a Foreign Government under the FCPA

In a decision with significant implications regarding the application of the Foreign Corrupt Practices Act (“FCPA”), the U.S. Court of Appeals for the Eleventh Circuit has clarified the framework for determining whether an…more

Appeals, DOJ, FCPA, Foreign Entities, Foreign Official

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Delaware Court of Chancery Upholds Validity of Forum Selection Bylaws

On June 25, 2013, in a judicial development that should ease the burden of multi-jurisdiction litigation, Chancellor Leo E. Strine, Jr. of the Delaware Court of Chancery held that forum selection bylaws adopted by the respective…more

Bylaws, Forum, Forum Selection Clause, Forum Shopping, Jurisdiction

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SEC Pushes for Enhanced Disclosure of Pay Versus Performance

On April 29, 2015, the Securities and Exchange Commission issued proposed regulations to implement section 14(i) of the Securities Exchange Act of 1934, as added by section 953(a) of the Dodd-Frank Wall Street Reform and…more

Disclosure Requirements, Executive Compensation, Pay-for-Performance, Proposed Regulation, SEC

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Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon (3rd Edition)

In this edition: - Introduction - Advertising & Marketing - Brand Protection & Reputational Management - Copyright (EU) - Copyright (U.S.) - Data Privacy & Security -…more

Copyright, Cybersecurity, Data Protection, EU, FDA

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UK update - Type 2 diabetes controlled by diet is not automatically a disability

In Metroline Travel v Stoute, the Employment Appeal Tribunal (“EAT”) decided that employees with type 2 diabetes controlled by diet (rather than medication) are not automatically protected by disability discrimination…more

Disability Discrimination, UK, UK Employment Appeal Tribunal

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(US) Revised Phase I Environmental Standards Will Impact Property Acquisitions this Fall

The All Appropriate Inquiries Rule (the “AAI Rule”), set forth at 40 CFR Part 312, serves as a benchmark protocol for inspecting a property’s environmental condition. If the benchmark is met, a prospective purchaser can be…more

ASTM, CERCLA, Due Diligence, EPA, Vapor Intrusion

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IRS Provides Helpful Updates to Retirement Plan Correction Program

The IRS has issued Revenue Procedures 2015-27 and 2015-28 (“Rev. Proc. 2015-27” and “Rev. Proc. 2015-28”), which modify the IRS’ retirement plan correction programs known as the Employee Plans Compliance Resolution System…more

Automatic Enrollment, Benefit Plan Sponsors, Defined Contribution Plans, Elective Deferrals, EPCRS

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What is your broker up to? Broker found to have authority to enter into a fixture and guarantee

Mitsui OSK Lines Ltd v Salgaocar Mining Industries Private Ltd (2015) (Unreported) - After extensive negotiations, London brokers fixed a 10-year charterparty on behalf of their principals, the Charterers. The Charterers…more

Arbitration, Charterparties, Maritime Transport, Mining, Shipping

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California ‘Under 2 MOU’ Demonstrates Ambition and Bottom Up Support for GHG Reductions in the Lead Up to COP 21

On May 19, 2015, California Governor Jerry Brown entered into a Memorandum of Understanding on Subnational Global Climate Leadership (the “MOU”) with eleven other leaders from jurisdictions in North America, South America and…more

Global Warming, Greenhouse Gas Emissions, Jerry Brown, Memorandum of Understanding

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Foreign Investments in France Subject to the Prior Authorisation of the French Government

Since 2005, France has enacted various regulations in order to control foreign investments in French companies operating in specified sectors considered as being strategic or sensitive. As a result of these regulations,…more

EU, Foreign Investment, Investors

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UK power generation assets: optimisation and monetisation

In recent years, the UK power sector has seen owners and/or operators of generation assets increasingly reflect on their commercial strategies with respect to their operations. In the case of power plants, this has involved a…more

Energy, Power Plants, UK, Utilities Sector

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FinCEN and ICE Issue Geographic Targeting Order Against Electronics Exporters in the Miami Area

On April 21, 2015, the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) served a Geographic Targeting Order (GTO) on about 700 electronics exporter businesses in the Miami area, in an investigation into cash…more

Cartels, Electronics, Export Controls, Exporters, FinCEN

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Amarin Pharma v. FDA – More Briefs Filed Regarding Off-Label Promotion And The First Amendment

Our prior posts looked at the Amarin Pharma, Inc. v. United States Food and Drug Administration lawsuit, which raises issues regarding the First Amendment and how it applies to speech by drug and device manufacturers regarding…more

Amarin, Amicus Briefs, Clinical Trials, Device Manufacturers, Drug Manufacturers

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Commercial Restructuring & Bankruptcy Alert - February 2015

In This Issue: - Minority Holders Gain Leverage Through Recent Interpretation of Trust Indenture Act - New Jersey Joins Number of States Creating Specialty Business Courts - Credit Bid Rights Bolstered in…more

Bankruptcy Code, Business Court Division, Commercial Bankruptcy, Construction Loans, Consumer Bankruptcy

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SEC Announces Enforcement Actions Relating to Section 16 Reporting Violations

On September 10, the SEC announced enforcement actions against 28 individuals and investment companies for failing to promptly report their holdings of and transactions in public company stock. The SEC also brought charges…more

Compliance, Enforcement, Enforcement Actions, Reporting Requirements, SEC

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CMBS 2.0 – Quantum or Solace

Sunday marked the fourth anniversary since Deutsche Bank successfully brought to market Deco 2011-CSPK (“Chiswick Park”). As many market observers will testify, this was a defining moment for the European CMBS market as it not…more

CMBS, Deutsche Bank, EU, JPMorgan Chase, Mortgage-Backed Securities

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Indonesia’s New Draft Oil & Gas Law

Legislators in Indonesia have recently suggested that all petroleum production operations should effectively be state controlled, making many foreign investors in south east Asia’s largest country fear that their assets could in…more

Energy Sector, Foreign Investment, Indonesia, Oil & Gas, Popular

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Sickness absence management - employee rights, risks and recommendations

France - Under French law, the employment contract of an employee who is on sick leave is suspended. The employee is expected to inform his or her employer and the relevant social security organisations of the sickness…more

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DOE’s New $55 Billion ESPC Solicitation - A Move from “Show me the Money” to “Share the Money”

On March 23, 2015, the U.S. Department of Energy (DOE) released a Request for Proposals (RFP) for the implementation of energy savings performance contracts (ESPCs) at any U.S. federal government site worldwide. The intent is to…more

DOE, Energy Projects, Energy Sector, ESPCs, Federal Contractors

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The Capital Markets Union – a great race?

The Investment Plan, developed by the European Commission, has the potential to be one of the most important and radical changes to how the European Union operates in the last 25 years. Not only will it seek to harmonise the…more

Capital Markets, EU

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Crowded Skies: Opportunities and Challenges in an Era of Drones

In this paper: - Advertising & Promotion - Aviation - Regulatory - Copyright (EU) - Employment and Labor - Export Controls - Film and Television (UK) - Film & Television…more

Advertising, Aircraft, Airspace, Commercial Use, Copyright

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Enforced subject access requests now a criminal offence in the UK

In September 2014 we reported on the UK’s intention to stamp out a practice commonly known as “enforced subject access requests”. This concerned the previously dormant section 56 of the UK Data Protection Act 1998 (‘DPA’),…more

Criminal Background Checks, Criminal Prosecution, Subject Access Request, UK

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Refusing to engage in alternative dispute resolution becomes harder to justify

The English courts are getting tougher on parties that refuse to participate in alternative dispute resolution (ADR), the most common form of which is mediation. Since 2004, an unreasonable refusal to participate in ADR has…more

BAE Systems, License Agreements, Northrup Grumman, UK

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Unfortunately Disappointing 3D Printing Law Review Article

We’ve blogged before about the interesting product liability issues created by 3D printing/additive manufacturing, in particular the novel separation that these techniques create (at least potentially) between “manufacturing”…more

3D Printing, FDA, Medical Devices, Pharmaceutical

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Consumer Class Action Suit Alleging Sales Tax Misconduct is Partially Dismissed

On June 15, 2015, the United States District Court for the Northern District of Illinois, Eastern Division, partially granted Whole Foods’ motion to dismiss in the case of Wong v. Whole Foods Market Group, Inc.1 In that case,…more

Class Action, Coupons, Motion to Dismiss, Retailers, Sales Tax

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Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon (3rd Edition)

In this edition: - Introduction - Advertising & Marketing - Brand Protection & Reputational Management - Copyright (EU) - Copyright (U.S.) - Data Privacy & Security -…more

Copyright, Cybersecurity, Data Protection, EU, FDA

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Massachusetts Tax Developments - A Reed Smith Quarterly Update: June 2015

Welcome to the latest Reed Smith Massachusetts State Tax Quarterly Update. In this update, we’ll look at the most recent developments in Massachusetts corporate tax, provide some administrative updates, and discuss some hot…more

Corporate Taxes, Intercompany Transactions, Interest Payments, MassMutual, Staples

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Indonesia’s New Draft Oil & Gas Law

Legislators in Indonesia have recently suggested that all petroleum production operations should effectively be state controlled, making many foreign investors in south east Asia’s largest country fear that their assets could in…more

Energy Sector, Foreign Investment, Indonesia, Oil & Gas, Popular

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U.S. Supreme Court Upholds Fourth Circuit Victory for Omnicare, Inc. in High-profile, Precedent-setting False Claims Act Case

On October 6, 2014, the U.S. Supreme Court denied review of a groundbreaking Fourth Circuit decision affirming the dismissal of a novel False Claims Act suit against Reed Smith client Omnicare, Inc. In its February 2014…more

DOJ, False Claims Act, Omnicare, Prescription Drugs, Qui Tam

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New reporting requirements for employment intermediaries

HM Revenue & Customs (HMRC) continues to strive to reduce the number of workers not subject to PAYE. It has added new reporting requirements for businesses that it considers to be ‘employment intermediaries’. Care is now…more

Hiring & Firing, HMRC, Independent Contractors, Misclassification, Supply Chain

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Crowded Skies: Opportunities and Challenges in an Era of Drones

In this paper: - Advertising & Promotion - Aviation - Regulatory - Copyright (EU) - Employment and Labor - Export Controls - Film and Television (UK) - Film & Television…more

Advertising, Aircraft, Airspace, Commercial Use, Copyright

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What’s in the Pensions Pipeline for 2014?

How the time flies. With 2013 having now drawn to a close, the attention of pension trustees and employers has turned to what pensions issues 2014 may bring. We have discussed some of the likely “agenda items” below…more

Employee Benefits, Income Taxes, Pensions, Retirement, UK

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Unanimous Supreme Court Rejects Wartime Tolling of Statute of Limitations for Civil False Claims but Opens Door to Successive Qui Tams

On May 26, 2015, the United States Supreme Court resolved uncertainty surrounding the application of wartime tolling of the statute of limitations under the civil False Claims Act (FCA), but simultaneously opened the door to…more

False Claims Act, Government Contractors, KBR (formerly Kellogg Brown & Root), Kellogg Brown & Root, Qui Tam

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CFPB Updates - March 2015

CFPB Report Claims Arbitration “Less Beneficial To Consumers” than Individual or Class Litigation, Foreshadows Attempt to Impose Restrictions in Future - On March 10, Director Richard Cordray of the Consumer Financial…more

Arbitration, CFPB, Class Action, Consumer Financial Products, Richard Cordray

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Faulty Workmanship Can Be An Accident

After a spate of bad decisions for policyholders on whether general liability policies can ever provide coverage for construction liabilities, three courts, in the past few weeks, have done an about-face, holding that there is…more

Commercial General Liability Policies, Construction Defects, Subcontractors

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No Planning for Change of Use?

We have all seen a lot of publicity on the government’s proposals to speed up and simplify the system for getting planning permission to kick start the economy. From 30 May 2013 various changes of use can be made without the…more

Affordable Housing, Change of Use, Economic Development, Housing Developers, Office Space

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Financial Industry Regulatory Update - December 2014

In this issue: - The Financial Services (Banking Reform) Act 2013 - Proprietary Treading And Ring Fencing (EU) - Shadow Banking - Mobile Banking And Payments - Stress Testing And Asset…more

Banking Sector, Capital Requirements, Financial Regulatory Reform, Mobile Apps, Mobile Payments

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The High Court has confirmed the effectiveness of contractual carve-out by bank of duty of care and advisory relationship and that a bank did not owe a fiduciary duty

Facts - Barclays Bank plc acted as agent and offshore security trustee under a Facility Agreement, whereby a syndicate of lenders, including Barclays Capital, lent US$45 million in late 2007 to Svizera, a Dutch company,…more

Barclays, Duty of Care, Lenders

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The JOBS Act – Where Are We Now – 2014?

On April 5, 2012, President Barack Obama signed the Jumpstart Our Business Startups Act (the “JOBS Act”) into law. The stated purpose of the JOBS Act was to increase job creation and stimulate